British Leyland Motor Corporation Ltd v Armstrong Patents Company Ltd

JurisdictionUK Non-devolved
JudgeLord Scarman,Lord Edmund-Davies,Lord Bridge of Harwich,Lord Templeman,Lord Griffiths
Judgment Date27 February 1986
Judgment citation (vLex)[1986] UKHL J0227-1
Date27 February 1986
CourtHouse of Lords

[1986] UKHL J0227-1

House of Lords

Lord Scarman

Lord Edmund-Davies

Lord Bridge of Harwich

Lord Templeman

Lord Griffiths

British Leyland Motor Corporation Limited and Others
(Respondents)
and
Armstrong Patents Company Limited and Others
(Appellants)
Lord Scarman

My Lords,

1

I had intended to deliver a reasoned speech in this very important appeal. But I find myself in total agreement with the speech to be delivered by my noble and learned friend, Lord Templeman: further words from me are, therefore, superfluous. I would allow the appeal with costs for the reasons which he gives.

2

The Copyright Act 1956 is, I gladly hear, presently under review. This case illustrates that more than redrafting with a view to clarification is needed: nothing less than an overhaul of some of the principles of the modern extended law is necessary. Judicial decision has extended copyright protection to industrial drawings of purely functional objects. These objects in themselves do not attract copyright protection; nor are they patentable, since they embody no new invention, and their design is not registrable under the registered designs legislation since they have no "eye appeal." Thus there has arisen the anomaly that in effect (though not, perhaps, in jurisprudential theory) a manufacturer can achieve in respect of such objects, (of which a Marina car exhaust pipe is but one example), a more enduring monopoly than would have been available even if the object had been, which it is not, patentable or its design had been, which it is not, registrable.

3

If it be right, as my noble and learned friend Lord Templeman asserts and as I also think, "that Parliament did not intend the protection afforded by copyright to a drawing should be capable of exploitation so as to prevent the reproduction of a functional object depicted in a drawing," the present review of law should lead to legislation to bring the law back within the limits intended by Parliament. This would involve a legislative rejection of the view of the law upon which the House acted in deciding L.B. (Plastics) Ltd. v. Swish Products Ltd. [1979] R.P.C. 551.

4

But further it would be helpful if the current review of the law could lead to incorporating in the Copyright Act the principle latent in our law but not fully discussed or expressed until the present case that the manufacturer of an article such as a motor vehicle or other "consumer durable" cannot by the exercise of copyright preclude the user of the article from access to a free market for spares necessary to maintain it in good working order.

Lord Edmund-Davies

My Lords,

5

The facts and the law relevant to this appeal have been spaciously discussed in the speeches prepared by others of your Lordships and which I have had the advantage of reading in draft. This obviates the necessity of my doing more than indicating with brevity why I concur in holding that this appeal should be allowed. Two broad questions arise for consideration: (I) Did the appellants' ("Armstrong") indirect copying of the respondents' ("BL") copyright drawings of their exhaust system constitute "reproduction" within the meaning of the Copyright Act 1956? (II) Even if the answer to (I) be the affirmative, should BL nevertheless be barred from invoking the Act to prevent such reproduction by Armstrong? I proceed to deal shortly with these questions.

Question (I)
6

I can find no support in the wide language of the Act or in the decided cases for Armstrong's submission that the indirect copying of drawings of functional objects (such as the BL exhaust system) is outside the Act. In particular, the decision of this House in L.B. (Plastics) Ltd. v. Swish Products Ltd. [1979] R.P.C. 551, is to the opposite effect, and, though criticised, it was in my judgment correctly decided. Learned counsel for Armstrong strongly relied on the Gregory Report (Report of the Copyright Committee (1952) (Cmnd. 8662)); and, in the light particularly of paragraph 258 thereof, the noble and learned Lord, Lord Templeman, has expressed the view that section 9(8) of the Act of 1956 failed to achieve the intended purpose of preventing the extension of the scope of copyright to such cases as the present one. My Lords, I have to say respectfully that I do not know what Parliament intended to do. Assume, as one reasonably may, that the Gregory Report was available to the legislators in 1956, and one will still have no knowledge of how far they intended to implement any of its recommendations when legislating as expansively as they did. We may think that they could, and should, have done better, but that is by the way. Recalling, as I do, the observation of Holt C.J. that "Parliament can do no wrong, though it may do several things that look pretty odd" City of London v. Wood (1701) 12 Mod. Rep. 669, 687, I hold, in common with the majority of your Lordships, that an affirmative answer must be given to this first question.

Question (II)
7

I have found this question far more difficult. Neither party could usefully invoke settled practice. Instead, reference was made to such topics as public policy, fair dealing, the undesirability of permitting monopolies, the maintenance of legal rights, the prohibition of derogation from grants, and the existence of an implied licence in favour of Armstrong. These and other notions were canvassed widely and at length during the hearing of the appeal. At the end of the day (I should perhaps say, at the end of very many days), I favour most the "spare parts exception" upheld in the speeches of the noble and learned Lords, Lords Bridge of Harwich and Templeman. I nevertheless share to a considerable extent the misgivings eloquently expressed by the noble and learned Lord, Lord Griffiths, on this topic. But my doubts, though substantial and subsisting, are not sufficient to compel me to dissent from the conclusion arrived at by the majority of your Lordships. In the result, I hold that this question, like the first, should be answered in the affirmative.

8

It follows that I concur in allowing the appeal.

Lord Bridge of Harwich

My Lords,

9

The respondents ("BL") claim to be entitled, as owners of the copyright in the drawings from which various spare parts of BL cars are made, to restrain other manufacturers from making and selling copies of BL's spare parts without the licence of BL. The market in spares for BL cars alone exceeds £800 million a year. In practical terms it would seem that the claim, if well founded, is effective to confer a monopoly in this market on BL and their licensees. Its importance, therefore, can hardly be overestimated. But beyond settling the dispute between BL and those, including the present appellants ("Armstrong"), who assert their independent right to make and market copies of spares for BL cars, your Lordships' decision in the present appeal will have far reaching consequences for all sections of manufacturing industry whose products are of such a nature as to require replacement parts with any degree of frequency, where those parts can, in practice, only be effective if they reproduce the shape or configuration of the originals and where copyright is claimed in the drawings from which the original parts were made.

10

BL first asserted their copyright claim in relation to spare parts in 1973. In due course they managed to persuade the majority of competing manufacturers in the spare parts market to enter into agreements whereby BL licensed the manufacture of copy spare parts for BL cars in consideration of a royalty payment on sales. Armstrong resisted BL's claim. The present litigation is concerned only with exhaust pipes. The exhaust pipe is the part of a car which is likely to require the most frequent replacement. In the lifetime of a car the exhaust may need to be renewed as many as ten times. Hence the market in replacement exhaust systems is one of the most important and, no doubt, lucrative sections of the spare parts market. At the trial much detailed evidence was led relating to a number of typical BL exhaust systems. But the issues on which the present appeal turns are issues of broad principle and, at this stage, it seems to me that most of the detail is unimportant. It is now either common ground or well established that copyright subsists in the drawings from which BL's exhaust systems are made and that the exhaust systems manufactured by Armstrong for BL cars (except the silencer components) are made by copying examples of BL systems by a process described as "reverse engineering" and are thus indirectly copied from BL's drawings, even though Armstrong have never seen those drawings. It is from these premises that the issues of principle must be addressed.

11

Having lost in both courts below, Armstrong challenge the validity of BL's claim, as a matter of English law apart from the Treaty of Rome, on two broad grounds. The essence of the first contention is that copyright in a drawing whose sole purpose is to serve as a blueprint for the construction of a three-dimensional article of purely functional or utilitarian value and with no aesthetic or decorative element is not infringed by the reproduction of an identical three-dimensional article. Success in this first contention would be sufficient for success in the appeal. But if the first contention fails, Armstrong contend in the alternative that special considerations apply to the manufacture of replacement parts necessary to the repair of cars, or indeed any other machinery, which operates in law to preclude the owner of the copyright in the drawings from which the original parts were made from so enforcing his copyright as to maintain a monopoly in the supply of necessary replacement parts for himself and his licensees.

12

As the number of days taken by the hearing of this appeal sufficiently testifies, the argument ranged over an extremely wide field. Your...

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