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Wednesday, 1 August 1906
Page: 2162

Mr GLYNN (Angas) -- I looked -through the Bill very carefully this morning, and I think it is to be more commended for its purpose than for what it achieves. I had thought that a Bill which aims at uniformity would have been more in line with English legislation. We have welcomed the tendency recently shown to promote uniformity throughout the Empire in matters regarding which there is no necessity to have local diversity ; especially when that uniformity is only part of the greater scheme of uniformity which is aimed at under international reciprocity treaties. The growth of international reciprocity in these matters makes us more hopeful that the comity of nations will become a little more marked than in the past. Imperial statesmen, as well as commercial representatives of the Empire, desire that there shall be" uniformity as far as possible in regard to patents, copyrights, and designs. Copyright is a general term, covering copyright in books and designs. From the syllabus of the Sixth Congress of the Chambers of Commerce of the Empire, published in the Weekly Times of 20th June, 1906, I find that one of the notices of motion given was -

That it is desirable that the law of copyright should be uniform throughout the Empire, and that the existing laws relating to copyright be amended when necessary by Imperial and Colonial legislation, so as to give to all citizens of the Empire, subject to local conditions and formalities, identical rights and protection throughout the Empire for all their productions, whether literary, artistic, musical, or dramatic.

The same principle, of course, applies to designs. I think that the expediency of Imperial uniformity in these matters was referred to at some of the Imperial Conferences of the last few years. It was mentioned at the Conference of 1902, if not at that of 1887. Under these circumstances, it is to be deplored that Ministers, whilst professing to follow the spirit, depart from the letter and structure, of the Imperial Acts. .1 do not intend, in connexion with such a technical subject, to quote more than one or two instances of the departure referred to. In England, designs and patents are dealt with in the one Act, and the articles to which designs have to be affixed and with respect to which designs may be registered are scheduled, not in the Act, but in the rules laid down by the Board of Trade. These rules have a publicity - a far wider publicity - than regulations such as those prescribed by the' Bill, which will be found only in the somewhat cloistral seclusion of that interesting periodical, which no one reads, called the Commonwealth Government Gazette. In a matter of this kind, which is to some extent Imperial, if not international, it is desirable that our laws should be made as public as possible, so that people of other nations, as well as the citizens of the Commonwealth, may have an opportunity of ascertaining by reference to the statute-book the full meaning and scope of our legislation. . If, however, they have to wade through the, sometimes not proper,] y indexed, files of our Government Gazette and Blue Books to find out which of the articles will come within the category of designs, they may quite innocently commit an offence against the law. The Board of Trade have made rules in England, under which fourteen articles are specified as coming within the designs part of the Patents Act. I cannot understand why patents and designs should have been dealt with in two separate measures, except that it may have been desired to introduce the Bills in different sessions. The effect is to duplicate the machinery, because in the English Act' a great many of the sections are quite as applicable to copyright in designs as to patents. Under this Bill we have adopted a good many of the sections of the Patents Act, whereas if the two matters had been dealt with in the one measure we should have saved ourselves the trouble of repeating the provisions. Why should we not follow the sufficiently concise terminology of the English Act ? They have a good drafting staff in England, and it is desirable that, as far as possible, our laws should run upon all fours with the Imperial Statutes, so that the decisions of the Courts upon Imperial Statutes may be applicable to the interpretation of our local laws. The Privy Council still reconciles most of the decisions of our Courts, and that tribunal is nothing more than another edition of the House of Lords. The same Judges sit upon both Benches, and act as interpreters of Imperial as well as Australian legislation. Therefore it is eminently desirable that there should be no difference in the wording or structure of the Imperial and Australian

Statutes. At all events, where no apparent object is served, I do not see why the Commonwealth draftsman should alter the structure of the Imperial provisions, split up the sections, and very often vary the terminology. Clause 4 of the Bill contains a definition of "design." It is very small, and embraces only a small portion of the Imperial definition. It may simplify matters if I read section 60 of the Patents Designs and Trade Marks Act of 1883, which contains a definition of " design." It reads - " Design " means any design applicable to any article of manufacture, or to any substance, artificial or natural, ot partly artificial and partly natural, whether the design is applicable for the pattern or for the shape or configuration, or for the ornament thereof, or for any two or more such purposes, and by whatever means it is applicable, whether by printing, painting, embroidering, weaving, sewing, modelling, casting, embossing, engraving, staining, or any other means "whatever, manual, mechanical, or chemical, separate or combined.

In drafting the Bill, which from the marginal notes professes to be in conformity with the Imperial Act, the method has been adopted of knocking out a part of the specification in the Imperial definition and then dividing the remainder into two sections, one of which is included, as it ought to be, in the interpretation clause, whilst the other is not. The definition of " design " is to toe found partly in the interpretation clause, -and partly in clause 5, which may be regarded as one of the enacting provisions of the measure. The structure of the expression in clause 5 has been varied from that adopted in the English Act. Some words have been added, and others have been left out. In clause 4 it is provided - " Design " means an industrial design applicable, in any way or by any means, to the purpose of the ornamentation, or pattern, or shape, or configuration, of an article, or to any two or more of those purposes ;

The word " industrial," which has been added, and appears also in the title of the Bill, does not occur in the English Act, and I fail to see the object of its insertion here. It may mean a limitation. The Imperial Act of 1883 was a consolidation of the Act of ^842 and some amending Acts. The Act of 1842 dealt only with ornamental designs, but the Act of 1883 relates to ornamental and useful designs - the word " useful " not being employed in the definition, but being the result of the definition. Therefore, designs under the Imperial law, as well as under the Bill, may be ornamental or useful. If the word " industrial " is not qualified by the use of other words, the meaning of the term " design " will be somewhat limited. Owing tothe distinction previously drawn and still drawn in the Act of 1883 between "ornamental " and " useful," the word " industrial " may limit the application of the definition. It is certainly inconsistent with, the subsequent wording of the clause, which includes the word " ornamentation." It is incongruous with the context. I regret that the Minister has not shown Us why this departure has been made from the wording of the English Act, and why a word has been inserted which may lead tb diversity of interpretation. In the English Act the means of attachment are specified, whether they be by printing, painting, embroidering, weaving, &c. That, I believe, is done with a twofold object. The first is a desire to' indicate to some extent how the attachment is to be made, because in both the Imperial Act and in this Bill there is a provision that the registered mark must be attached to the goods. It is not left to each person to decide with what publicity the mark shall be so attached. In the English legislation, I repeat, the method of attachment is specified. But in this Bill the definition is contained in two provisions. Clause 5- declares -

A design shall be deemed to be applied to anarticle when -

(4)   the design is applied, in any way, or by any means to the purpose of the ornamentation, or pattern, or shape, or configuration of the article, or to any two or more of those purposes.

Thus it does not afford any indication of what is meant by the Legislature as does the Imperial Act. Again, from that clause we have omitted the words " artificial, or natural, or partly artificial and partly natural." That fact enhances the difficulty which I have been endeavouring to indicate in connexion) with the use of the word "industrial," which, is more related to artificial substances than it is to natural substances. By the excision of the words towhich I have referred the limitation of meaning that I have indicated may be given to the word " industrial." As the method" adopted is not in the interests of lucidity,. I fail to see why it has been employed. Again, in the Imperial Act there is a' definition of copyright in designs. That definition reads - " Copyright " means the exclusive right tbapply a design to any article of manufacture, or to any substance as aforesaid in the class or classes in which the design is registered. ° Copyright in a design means the exclusive right to apply the design - and then these words are added - or authorize another person to apply the design to the articles in respect of which it is registered.

Why are these words inserted? They cannot be required in connexion with assignments, because the latter are specially provided for. They are not intended to designate persons who take designs for value or consideration. The object of that definition is attained by clause 30, which is supposed to be similar in purport to section 58 of the Imperial Act. The clause reads -

A person shall- be deemed to infringe the copyright in a registered design, if, whilst the copyright continues he, without the licence or authority of the owner of the copyright . does certain things. These words being used subsequently, I hold that there is no necessity to include them in clause 12. If honorable members will look at clause 32 they will find that it reads -

A person shall not knowingly infringe the copyright in a registered design.

The penalty provided for any such offence is £50 and sub-clause 2 declares that -

Any penalty under this section may be sued for and recovered for his own use by the registered owner of the design.

But why is not the person authorized under clause 12 - if the definition contained in that provision means anything - also entitled to sue for and recover for his own use the penalty provided under this clause ? It seems to me that a departure has been made from the English terminology without regard to its effect.

Mr Higgins - Is not this better draftsmanship ?

Mr GLYNN - I do not think so. In the Imperial Statute the particular Act in relation to which knowledge is implied is specified in connexion with the word " knowinglv."

Mr Higgins - Clause 32 uses the words " knowingv infringe. ' '

Mr GLYNN - But the word "infringe" means several things which relate to different breaches of the Act, whereas in the Imperial law the particular breach is

It shall not be lawful for any person to publish or expose for sale any article of manufacture or any substance to which such design or any fraudulent or obvious imitation thereof shall have been so applied, &c.

In this Bill, however, a person is deemed to infringe t'he copyright in a registered design if, whilst the copyright continues, lie, without licence or authority of the owner of the copyright, " sells or offers for sale " any article to which the design or any fraudulent or obvious imitation of it has been applied. I point out these difficulties to indicate that a departure has been made from Imperial legislation. I do not say that the Imperial Acts are always right, but I do say "that they are generally excellently drafted.

Mr Higgins - Some of our Statutes are better drafted than are the corresponding Imperial Acts.

Mr GLYNN - No doubt. Our Customs Act is better drafted than are most Imperial Statutes, and I know that some of the Imperial authorities highly complimented the right honorable member for Adelaide upon his draftsmanship of that Act. But, having uniformity in view, it is our duty to see whether we are justified in departing from the draftsmanship of Imperial legislation in this connexion. In some of our State Acts we have literally adopted the phraseology of legislation in the old country. This is notably the case in connexion with the Sale of Goods Act. I do not think that I need detain the House further in discussing this Bill, which is purely one for Committee. Something was said last night about the right of appeal from a decision of the Registrar in connexion with an application to register an industrial design under clause 39. That clause provides -

Subject to this Act, the Supreme .Court, on the application of any person aggrieved, may order the rectification of the register by -

(a)   the making of any entry wrongly omitted to be made in the. register.

That, I take it, refers to an omission in connexion with an entry which has been actually made. That is what is meant by the provision in the Imperial Act, in which different words are employed. lt does seem to me that the power of rectification conferred by clause 39 is the power to rectify a certain entry which has been actually made. . But the earlier part of the Bill seems to make the decision of the Registrar in connexion with applications for the registration of industrial designs, final. I repeat that the Bill is essentiallyone to be threshed out in Committee, and, therefore. I do not propose at this stage to offer any further criticism of its provisions.

Question resolved in the affirmative.

Bill read a second time.

In Committee :

Clauses 1 to 3 agreed to.

Clause 4 - -

In this Act, unless the contrary intention appears . . . "The Supreme Court" means the Supreme Court of a State or any Judge thereof. . . .

Suggest corrections