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Wednesday, 20 June 1906

Senator KEATING (Tasmania) (Honorary Minister) .- Provision is made, in the clauses which we have just passed, for securing damages and an injunction against any person who infringes the copyright of the owner of a design. With re gard to the forfeiture of goods to which a design may be applied, I would point out that the question is not exactly on all-fours with pirated literary or artistic works that are the subject of copyright under the Act passed last session. I laid some stress, in moving the second reading of this Bill, upon the distinction which has to be drawn between an article itself and the design. All that the law gives is copyright in the design.

Senator Givens - How can they be separated after a design is applied, say, to cotton goods?

Senator KEATING - They can easily be separated for the purposes of the law and for the purposes of the rights of the holder of the copyright. The design is treated as an entirely distinct subject-matter from the article to, which it is applied. But, although that is the case, there are certain circumstances in which the design may be more closely related to particular articles than it is in other instances'. In this case it is quite possible that the Courts, even without express statutory provisions similar to those alluded to by Senator Givens, as contained in the Copyright Act, might give redress in the nature of an order for the delivery up of the piracies. There have been some cases in which that procedure has been followed. As I have already pointed out, we have in this Bill largely followed English legislation, which extends from the Patents Designs and Trades Marks Act of 1883 down to amending legislation passed in 1888 ; and, as has been said in the course of the debate, we have thereby secured the full advantage of interpretations which may from time to time be put upon the English legislation by the highest Courts in the United Kingdom. So far as concerns legislation upon this subject, there is no express statutory power given to the Courts to award or order the delivery of piracies to the owner of a design; nor is there any express provision entitling the person aggrieved to obtain the piracies. But in cases which have arisen, the Courts have, nevertheless, acted upon that principle.

Senator Givens - Why not embody it in Statute law?

Senator KEATING - Because there will then be a danger of limiting the power of the Court. Let me draw attention to some of these cases. I have not the full text of them here, but they have been commented upon by Coppinger in his Law of Copyright. On page 451 reference is made to this very point. The author says -

There was no provision in the Designs Acts, nor is there in the present Act, analogous to that of the 23rd section of the Literary Copyright Act 1842, as to the delivery up of unsold copies of a pirated Hook to the proprietor of the copyright without his making any compensation for the cost of production and publication ; but in the case of McCrae v. Holdsworth, Lord Justice Knight Bruce made an order under the Designs Act for the delivery up to the plaintiff, " for the purpose of being destroyed, the drawing or drawings, point paper, and the several cards used in applying his design, and also of the articles manufactured by the defendants to which the plaintiff's design had been applied."

In a subsequent case, similar proceedings were authorized by the Court; and Coppinger goes on to say -

An order for the delivery of pirated designs now usually follows an injunction, but of course such an order cannot be made against a person who is not a party to the action.

Having in view the fact that we are not, as we were in the case of the Copyright Act, originating a large number of provisions, but are following as closely as we can the English legislation upon this subject; having regard to the further fact that there is no express provision for the delivery up of piracies in the case of designs as there is in the case of literary and artistic copyright: and to the still further fact that, notwithstanding such omissions from the English Act, the Courts, uniformly in the case of an application for an injunction, order the delivery up of piracies - I submit that we are on the safest possible ground in adhering to the Bill as it stands. By so doing, we shall have the benefit of the interpretation given to these provisions, and of the procedure that has been adopted by the highest courts in the old country, in enforcing the law. I feel sure that that is all that Senator Givens wants. He wants the persons who have designs to be fully and amply protected ; and, so far as the law stands, he may rest assured that they will be as amply protected in that regard as they are being protected under the provisions of the Australian Copyright Act.

Clause agreed to.

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