The Gazette 1983

JANUARY/FEBRUARY 1983

GAZETTE

1927 Act, they could have no copy- right protection. The Court however Held that the design in this case was a shape in which all the features were dictated solely by the function which was to be performed by the article to which the share was applied, that the shape possessed no features beyond those necessary to enable the article to fulfil its function and therefore could not be regarded as "Designs" within the meaning of the 1927 Act. On the question of whether the Defendants had infringed the Plaintiffs copyright, the striking similarities between the Plaintiffs fish boxes and those produced by the second-named Defendants raised a prima-facie case that a substantial part of the Plaintiffs copyright work had been copied and the second-named Defendants were unable to rebut this with evidence. The Defendants could not rely on S. 14(7) of the 1963 Act, as the making of the object in three dimensional form would appear to a non-expert to be a reproduction of the artistic work in two dimensions. The first-named Defendant had infringed the Plain- tiffs copyright by the advertisement importation and sale of the offending fish-boxes but as his infringement was found to be innocent, he could rely on the protection of S.24 of the 1963 Act. The Plaintiffs were entitled to damages against the second-named Defendants for the infringement of their copyright by the importation and . sale of the fish-boxes. An injunction was granted against both Defendants. Damáges under S.22 of the 1963 Act were measured against loss of profit on the sale of a consignment of fish boxes which it would have made had the Defendants not made such a sale. The Plaintiff also claimed damages under S.24 of the 1963 Act for wrongful conversion of copyright. It was held that Sections 22 and 24 were cumulative and not alternative, but to make an award under both sections in the present case would result in an award of exemplary damages, which the Court felt itself precluded from doing in the absence of such an express provision in the 1963 Act. Allibert S.A. v. James O'Connor, trading as James O'Connor & Associates and Can-Am Containers Limited (High Court) (per Costello J.) 1982 ILRM 40. Daire Hogan

FAMILY LAW Adoption Act 1974 — Death of Natural Mother — Order sought to dispense with consent. An illegitimate child, born 6 March 1977, was subsequently validly placed for adoption by the natural mother with the Southern Health Board on 14 June 1977. The Board placed the child with the Plaintiffs, who were the prospective adoptive parents, on 20 June 1977. The Plaintiffs applied for an Adoption Order on 4 July 1977 but before the consent of the natural mother was obtained, as it was necessary, the natural mother died on 2 October 1977. The question was whether the consent of the natural mother was essential to the making of the final Adoption Order. The Court Held that the consent being dispensed of by the court under Section 3 of the Adoption Act 1974 must be a necessary consent at the date of the Court Order to the making of the Adoption Order, and such consent must be withheld through neglect, failure or refusal. In this case the consent of the natural mother was not necessary after her death. The necessary consent was that of the guardian or person having charge and control of the child under Section 14 Adoption Act 1952, at the date of the court order. Section 3 was held not to be relevent in the instant case and no claim was being made by any person, either the grandparents, or the Southern Health Board in relation to the custody of the child, other than the Plaintiffs. The persons who, had charge and control over the child at the date of the court order were the plaintiffs and theirs, therefore, was the only consent necessary under Section 14 of the Act. However, the Court left open the question whether any other person — either a relation of the child or the Southern Health Board — would have the right to claim that they were guardians or were in charge or in control of the child, and thereby necessitating their consent or the dispensing of same to the making of an Adoption Order. This however was not a matter at issue in the instant case.

Recent Irish Cases

COPYRIGHT Production drawing depicting 3 Dimensional Objects. Whether copyright in drawings can be i n f r i n g ed by u n a u t h o r i s ed r epr oduc t i on of the ob j e c ts d e p i c t ed t h e r e i n. Wh e t h er damages recoverable under S.22 and S.24 of Copyright Act 1963. The Pa i nt i f fs claimed an injunction against and damages for infringement of their copyright in certain production drawings of plastic fish boxes. (The drawings had also been registered as designs under the Industrial and Commercial Property (Protection) Act 1927 but it was conceded on behalf of the Plaintiff that the designs had been wrongly registered, and an Order rectifying the register pursuant to S.29 of the 1927 Act was made.) The first-named Defendant had acted as a manufacturer's agent and had imported sold and advertised plastic fish boxes manufactured by the second-named Defendant which the Plaintiffs claimed were reproduc- tions infringing their copyright. The Court Held that the Plaintiffs could claim copyright protection in product drawings (even though based on earlier product drawings) where the designer had performed sufficient independent labour to justify copyright protection i.e. that the drawings in this case contained significant technical improvements on an earlier (missing) drawing, illustrating the principle that copyright protection is given to the work, not the idea. The Defendants argued that even if the drawings were "original" drawings, they were not subject to copyright protection because of the provisions of S. 172 of the 1927 Act, which when combined with S. 3( 11) of the Copyright Act, 1963 has the effect that if the drawings on which the Plaintiff relied were capable of being registered as "designs" under the

T.H. & N.H. v. An Bord Uchtala, (High Court) (per McMahon J.) — unreported — 20 November 1981. Nicola Barr

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