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United Kingdom - House of Lords Gives Expansive View of Copyright Protection

In Designer Guild Limited v. Russell Williams (Textiles) Limited, the House of Lords was called upon to consider the question of whether there had been infringement of copyright in a fabric design. The design comprised vertical stripes with flowers of various designs scattered haphazardly across the stripes. The defendant's design was similar but differed in detail. It was accepted that the defendant had had an opportunity to see the plaintiff's design before creation of its own design and the defendant's denial of copying had been rejected by the trial judge.

On appeal to the Court of Appeal, the defendants argued that if there had been copying it was not of a "substantial part" of the original work because of the differences in detail. U.K. copyright law provides that there is infringement when the "work as a whole or any substantial part of it" has been copied. The trial judge had not found that any particular arrangement of stripes or particular design of flowers had been copied, rather he had concluded that the overall impression of the design had been copied. Since the defendant's design was not an exact copy of the original work, it would only be an infringement if it were found to be a copy of a "substantial part" of the plaintiff's design. The Court of Appeal concluded that although the defendant's design may have been based on the same idea as the plaintiff's, in view of the actual differences between the various elements, the defendants could not be said to have copied a substantial part of it. Therefore there was no infringement.

In the House of Lords, four separate speeches were given in favor of reversing the Court of Appeal. However, certain themes emerged:

a) When considering whether there has been copying of a substantial part of a work, the test is a qualitative rather than a quantitative one.

b) There are two situations in which a substantial part of a work may be copied: the first is when a definite portion of the work is copied; the second is when there has been copying by alteration. In the latter case, the test of infringement is "has the infringer incorporated a substantial part of the independent skill, labor etc. contributed by the original author in creating the copyright work?"

c) Care must be exercised in applying maxim that copyright protects the expression of an idea rather than the idea itself under British law. Lord Hoffman set out his view as follows:

If one examines the cases in which the distinction between ideas and the expression of ideas has been given effect, I think it will be found that they support two quite distinct propositions. The first is that a copyright work may express certain ideas which are not protected because they have no connection with the literary, dramatic, musical or artistic nature of the work. It is on this ground that, for example, a literary work which describes a system or invention does not entitle the author to claim protection for his system or invention as such. .... The other proposition is that certain ideas expressed by a copyright work may not be protected because, although they are ideas of a literary, dramatic or artistic nature, they are not original, or so commonplace as not to form a substantial part of the work. .... It is on this ground that the mere notion of combining stripes and flowers would not have amounted to a substantial part of the plaintiff's work. At that level of abstraction, the idea, though expressed in the design, would not have represented sufficient of the author's skill and labour as to attract copyright protection.
It therefore appears that copyright protection will still be available in the United Kingdom for protection against those who copy the overall impression of another's copyrighted work even if there are significant differences in detail, at least if the aspects that were copied have involved skill and labor in their creation. One is reminded of the dictum in an earlier House of Lords case "if it is worth copying, it is worth protecting".

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