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Wednesday, 20 June 1906

Senator KEATING (Tasmania) (Honorary Minister) . - I think I can illustrate to Senator Givens how dangerous it would be to introduce such a provision into the Bill. Designs are not confined simply to such as can be printed by the means set out in his amendment. If he sets out that these particular articles which may. be used for certain classes of designs become forfeitable if they are wrongly applied the question arises, what will be the law with regard to cases where, other kinds of designs, not specifically adverted to in the amendment, have been wrongly applied ? For instance, in this text book Coppinger' s Law of Copyright, I find a number of cases in which a distinction has been drawn between the design itself and the article to which it is applied. Here is one, on page 410 -

Thus, where M. registered as a design a picture of a basket, stating that his claim was for the pattern of a basket consisting in the osiers being worked in singly, and all the butt ends being outside, it was held that what the plaintiff had registered was in reality a process or mode of manufacture, and was not a design within the meaning of the Patents Designs and Trade Marks Act.

That illustrates how the design itself may be severed altogether from the article as a legal concept and as a subject of legislation. What he was registering was not the design of a particular kind of basket that he wanted to make. A person might register a design for a water decanter, and the design might be used either in that article of utility or in an article of adornment. A man might design a certain form of chair, and the design might be applied in respect of an article of the value of a few shillings or of as many pounds ; it might be used in respect of an article of pure ornament, and not an article of utility. But this amendement, it appears to me, only extends to the means of applying designs to fabric, and in so far as Senator Givens provides that the Court may forfeit those means of applying the designs, when they are piratically or authorizedly applied to articles, he leaves other classes of designs out of consideration.

Senator Givens - No, I have plenty of other amendments to deal with them.

Senator KEATING - In his amendment the honorable senator does not deal with any other class of design. What we are protecting here and what we are assuring to the person who registers his design is the exclusive right to apply it. We are protecting to him not any article at all, but merely a right to apply his design. Thereis no express provision in this Bill for the forfeiture of articles used in connexion with piracies, nor is there in the English legislation. The law, as it exists in England, and as it has been given effect to by English Judges, is stated on page 451 of Coppinger' s Law of Copyright, as follows -

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 book 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 - which was decided in 1848 under the Copyright Act -

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."

Then the author goes on to say -

An order for delivery of pirated designs now usually accompanies an injunction.

In a previous part of the Bill we have made a provision that a party aggrieved may apply for an injunction. The provisions of this Bill are analogous to' the English provisions. The procedure which will be adopted here for the enforcement of these provisions and the rules which will govern the action of the Courts will be the same as those which prevail in Great Britain, and an order for the delivery of pirated designs will usually accompany an injunction. Because, as I said before, the circumstances' are dissimilar in that regard from the cases of literary piracies. A man may have a design which may be applied to different articles of the same class.

Senator Givens - Hear, hear ! But it will notbe applied if a man knows that the articles will be liable to forfeiture.

Senator KEATING - It is not the article to which a design is applied, but the design itself that the Bill has in contemplation. I would ask the honorable senator not to press his amendment. It would complicate considerably our law. It would do what is worse than that. By making express provision which could only cover a certain number of cases, it would probably exclude a large number of cases from the benefits which are now enjoyed in England by the action of the Courts in enforcing the forfeiture of pirated designs. Evidently the honorable senator does not realize that he proposes to forfeit, not only the blocks, plates, negatives, and matrices, but also everything by means of which the pirated articles' are made.

Senator Givens - I copied almost word for word the provision in the Copyright Act dealing with a firm which pirated artistic works.

Senator KEATING - This amendment is going right beyond the scope of the Bill, which is introduced to protect copyright in designs, and not to protect the right in articles, which may be made in accordance with designs. How far would the amendment go ? Take the case of a manufacturer of lamps. Does the honorable senator propose to forfeit all the machinery which the manufacturer had employed in the production of his wares for sale to the public? It seems to me that he does.

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