L.B. (Plastics) Ltd v Swish Products Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Wilberforce,Lord Hailsham of St. Marylebone,Lord Salmon,Lord Fraser of Tullybelton,Lord Keith of Kinkel |
| Judgment Date | 01 February 1979 |
| Judgment citation (vLex) | [1979] UKHL J0201-2 |
| Date | 01 February 1979 |
| Court | House of Lords |
[1979] UKHL J0201-2
House of Lords
Lord Wilberforce
Lord Hailsham of St. Marylebone
Lord Salmon
Lord Fraser of Tullybelton
Lord Keith of Kinkel
Upon Report from the Appellate Committee to whom was referred the Cause L.B. (Plastics) Limited against Swish Products Limited That the Committee had heard Counsel as well on Monday the 20th, Tuesday the 21st, Wednesday the 22nd, Thursday the 23rd, Monday the 27th, Tuesday the 28th, Wednesday the 29th and Thursday the 30th days of November last upon the Petition and appeal of L.B. (Plastics) Limited of Firs Works, Nether Heage, Derby., DE5 2JJ praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 26th day of October 1977 might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, varied or altered or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as also upon the Case of Swish Products Limited lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 26th day of October 1977 complained of in the said Appeal be, and the same is hereby. Reversed and that the Order of Mr. Justice Whitford of the 27th day of January 1977 be, and the same is hereby, Restored: And it is further Ordered, That the Respondents do pay or cause to be paid to the said Appellants the Costs incurred by them in the Court of Appeal and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments if not agreed between the parties: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Chancery Division of the High Court of Justice to do therein as shall be just and consistent with this Judgment.
My Lords,
The appellants claimed, in this action in the Chancery Division, that the respondents had infringed their copyright in certain drawings relating to plastic knock-down drawers. A "knock-down drawer" is a furniture drawer made of components, usually delivered unassembled, which the customer puts together, and which he can if he wishes, dismantle. Out of ten drawings the subject of this claim, the trial judge (Whitford J.) held that there had been infringement as regards two, numbered and known as "433" and "479A". The Court of Appeal reversed his judgment; the appellants now ask to have it restored.
It is not now disputed that the two drawings are entitled to copyright as artistic works within section 3 of the Copyright Act 1956 nor that the appellants are the owners of this copyright. Nor I think is it disputed that the drawings are "original" artistic works as that word is used in this Act—comporting not "originality" but that the work is the product of the author's work and labour. The only issue is whether the respondents have infringed the copyright by "reproducing the work in any material form" (section 3(5)(a)). An infringement occurs if there has been reproduction of "a substantial part of the work" (section 49(1)).
The infringement alleged consists of the reproduction of the drawing, or of a substantial part thereof, by the manufacture of three components known as LGL9, LGL10 and LGL11. Since these alleged reproductions are in three dimensions whereas the drawings are in two, it becomes necessary to consider the provisions of section 9(8) which reads:
"The making of an object of any description which is in three dimensions shall not be taken to infringe the copyright in an artistic work in two dimensions, if the object would not appear, to persons who are not experts in relation to objects of that description, to be a reproduction of the artistic work."
It is important to bear in mind, as has not invariably been done in the course of this case, that this is not a patent action. The appellants did, it is true make some attempts to patent some elements in their drawer, but no grant was made. The defendants too, at the critical time, thought that there might be some patent protection and were concerned to avoid it. But this was not a case of patent infringement, actual or potential. The issue is simply one of copying. No question of novelty or originality, in the patent sense, arises and so it is not necessary to enter in any great detail into the mechanics of the appellants' drawer; some two dimensional description of it is required in the interest of narrative clarity.
There are three critical components:
(i) the sides (ii) the back corner pieces, (iii) the front facia pieces.
Once the appellants had succeeded in producing a successful knock-down drawer, (theirs is called "Sheerglide") its design and construction seems very simple. But, as commonly happens and as the history shows, a great deal of effort and ingenuity has gone into devising these key components. The requirements are that they fit together neatly and firmly; that they can be dismantled without difficulty; that they can be easily mass-produced in plastic by extrusion or moulding; that they are economical in the use of material; that they are adaptable to the requirements of furniture manufacturers, who order them for insertion in their furniture. Most other attempts which have been made at designing such drawers have failed to meet one or more of these objectives, or at least have realised them less well than the appellants with Sheerglide.
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(i) The sides, which can be cut to any length, consist of extruded plastic panels.On the outer side in the middle is a horizontal groove ("integral runner rebate") into which there will fit a horizontal runner to be placed by the furniture manufacturer on the piece of furniture into which the drawer is to go. On the inner side at the bottom is a smaller horizontal groove ("integral baseboard groove") into which the manufacturer can fit the base, usually hardboard, of the drawer.
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(ii) The back corner pieces. These are of moulded plastic and are designed to join sides and back. This is effected by spigots which fit into the end of the side, and back, extrusions. They are held in place by means of rectangular projections or studs, placed on flexible tongues which latch into holes in the outside wall of the extrusions. These projections are called "detents" and the appellants' system is known as external latching.
Several varieties of fixing have been tried by designers. One, of considerable ingenuity, was tried by the respondents and consisted of an internal latching (i.e. inside the extrusions) effected by a flexible hook which clicked over an internal web in the extrusions; this was known as "hook-tenon". Another, adopted by the respondents in the allegedly infringing component, consisted in using a triangular detent instead of a rectangular one, located on a somewhat different tongue. This, like the appellants', operated externally.
(iii) The facia pieces. These moulded components fit into the front end of the side extrusions. Their purpose is to provide a base for the front facia of the drawer which is provided by the manufacturer. These pieces, too, are latched, externally, into the side extrusions by the use of rectangular (or in the respondents' case triangular) detents. The piece is provided with holes for the screws fixing the facia. A feature which has attracted attention is that the outsides of these holes are recessed (or "countersunk") so as to accommodate debris produced by the screws. Another important feature, in the interest of simplicity and economy, is that these pieces should be "unhanded", i.e. usable on either side.
My Lords, though reference was made, quite properly, to authorities on copyright law, I do not think that the present case (apart from the defence based on section 9(8)) raises or involves any legal issue. There can be no copyright in a mere idea, so if all that the respondents had done was to take from the appellants the idea of external latching, or the "unhanding" of components, or any other idea implicit in their work, the appellants could not complain. Nor is there infringement if a person arrives by independent work at a substantially similar result to that sought to be protected. The protection given by the law of copyright is against copying, the basis of the protection being that one man must not be permitted to appropriate the result of another's labour. That copying has taken place, is for the plaintiff to establish and prove as a matter of fact. The beginning of the necessary proof normally lies in the establishment of similarity combined with proof of access to the plaintiffs' productions.
It is obvious to the eye, testified by expert witnesses, and held by the judge, that, though on inspection there are differences, there is a striking general similarity between the respondents' drawer and those of the appellants. Moreover, it is clear, and was so held by the judge, that the respondents had the opportunity to copy the appellants' drawer. They had specimens of the appellants' components (based of course on the appellants' drawings) in their possession, and later, before finally designing their own, they had redrawings and even tracings of some of the appellants' drawings passed to them by an associated company, Grovewood, to whom the appellants supplied Sheerglide drawers. These components and drawings the respondents must have known were components and drawings of the appellants. These facts establish a prima facie case of copying which the...
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