In what may well be the last intellectual property issue it decides on appeal from the Hong Kong Court of Appeal, the Judicial Committee of the Privy Council has held that no derogation from the rights of a copyright holder exist that would permit producers of toner cartridges for laser printers to copy the designs of the original designer of the printer to produce cartridges for use in such printers. In the case of Canon KK v. Green Cartridge Co., the Committee declined to extend the repair parts exception adopted by the House of Lords in the infamous case of British Leyland v. Armstrong Patents. It will be recalled that in the latter case, the House had in effect stated that the owner of a useful article that was the subject of copyright, in that case a car, had a right to have it repaired irrespective of whether the repair part, in that case an exhaust pipe, was itself the subject of copyright. In the present case Lord Hoffmann giving the decision of the Judicial Committee saw no reason to extend the reasoning of the British Leyland case beyond its own facts and indeed seemed to doubt whether it had been correctly decided. In his view, there was no inherent reason why copyright in the design of a toner cartridge should not be used to control the after-sales market in toner. There was no evidence in the case to conclude that such an act was an abuse of monopoly and in his opinion "it could not be assumed without evidence that the exercise of its intellectual property rights was giving the plaintiff a monopoly position, let alone that the position was being abused."




