Legal question - Licensing Agreement

[Poida]

G'day Fred

Dunno where the Fast bit came from?

Just as well you don't call yerself Reading Fred.

I'm not talking about copyright, I made that clear.

Onlee jokin Fred I bet yer reeel intelijunt.

Poida

[outside the box]

Originally Posted by waikikin

Here's some stuff that went down in Aus a few years back http://www.davies.com.au/pub/detail/...igga-australia

Personally, don't think too highly of the flopper, regardless of the legalities it's a grubby practice.
If you take on work for some one either as a business or employee it's your moral responsibilty to act in their benifit.
Jeff

JFWIW
A well known design that became an International success story by a notable New Zealand designer was it stolen or was it the clients to produce modify or whatever they so desired....

[Frog4]

outside the box, interesting read. A question arose:

Who will hold China accountable for their blatant theft and infringement of copyrighted material?

[outside the box]

Originally Posted by Frog4

outside the box, interesting read. A question arose:

Who will hold China accountable for their blatant theft and infringement of copyrighted material?

The Kiwi client took production to China so presumably the Kiwi client should still be accountable at law in Kiwi land one would think.... I have know idea who is correct and who is not but just as a general thing one would think Designer should have had the right to have held the exclusive right to his design and the client should have paid royalty for anything other than one build.... a loop hole if ever their was one to be exploited by a client (dodgy client or not) perhaps....
It does make interesting reading that designer quoted ("I designed the boat, taught the owner much about modern composite fiberglass techniques, supervised the build process, sailed the prototype and was involved in the changes to bring the boat to a production standard)" and the client assumed this was all done for a fee of only NZ $500.00....... to my mind this gives insight to the fact the designer expected more to be built than one and the royality would have been fairly expected..... who knows who is correct and who is not...Lawyers feast on this sort of thing that we regular everyday Joe blows take for granted that the right thing is done on a hand shake....

[philSweet]

Poida, you can't just go and compare dress patterns, clock patterns and boat patterns and think they are all handled the same. To take a silly example, if I bought a cookbook I'd be pretty pissed if it said I could only make one meatloaf. But with boat plans it is standard practice. If a country won't protect the seller then the seller shouldn't do business there if it's important to him. I would be inclined to counter with a request that as long as I didn't transfer possession of the boat, I could continue to use the plans to maintain one boat for myself. So if the one burned or got wrecked, I could replace it. The new one would have a different reg. no. and be insured differently and be identifiable as a different boat, but still covered under the license.

[Poida]

Yes you are being silly Phil, because recipes can't be copywritten.

[rwatson]

Originally Posted by waikikin

Here's some stuff that went down in Aus a few years back http://www.davies.com.au/pub/detail/...igga-australia

I love the bit
"Save for one component which will be discussed subsequently, the Court found that Digga’s manufacture of substantially identical components fell within the exemptions to copyright infringement. However that did not get Digga off the hook as in the process of manufacturing those components Digga, of necessity, had to prepare drawings and the Court held that in relation to those drawings, the copyright had been infringed."

Frog4 - you are being very 'glass half full'. I bet you only paid a few hundred dollars for a design that probably would have cost thousands of dollars to develop from scratch.

Likewise, we all pay hundreds of dollars for software that costs millions of dollars to develop.

Licensing is a great concept, and generally allows people to spend a lot of time and effort developing much better things knowing they will be re-imbursed.

[rwatson]

Originally Posted by philSweet

...., I could continue to use the plans to maintain one boat for myself. So if the one burned or got wrecked, I could replace it. The new one would have a different reg. no. and be insured differently and be identifiable as a different boat, but still covered under the license.

No, that is is not correct.

You get to build 1 boat, and 1 boat only from most plan sellers.

Its not the same as software where you have the right to use the product as long as you have the licence. (Microsoft will even send you new disks)

[Cheesy]

Originally Posted by Frog4

outside the box, interesting read. A question arose:

Who will hold China accountable for their blatant theft and infringement of copyrighted material?

Interestingly but slightly off topic, if you have registered you IP in China (possibly not copyright) the Chinese authorities are more than helpful when it comes to stopping the infringement. The problem that most have though is that they design and patent something in NA or Europe but not in China... Legally there is no reason why the item could not be duplicated in China at all, it is then up to the IP owners/government or whoever else to protect their their IP by preventing the importation.

I would have guessed with your boat plans, that if it wasnt stated that you were buying a license to build one boat as opposed to buying a set of plans (the copyright to a copy of the set of plans) it would be very much like buying a pattern book as described above. There is no IP on the boat design itself unless it is a registered design (maybe a design patent in other countries).

What seems kind of strange is that say you did buy the rights to make one boat from the plans that were supplied, you cant make any more of this boat without buying a further license, however as far as I can tell there is no law to stop someone else splashing your boat and building one (or as many as they want!) assuming that it is not a registered design.

[philSweet]

rwatson,

what I said was-

I would be inclined to counter with a request that as long as I didn't transfer possession of the boat, I could continue to use the plans to maintain one boat for myself.

[Frog4]

Originally Posted by rwatson

Frog4 - you are being very 'glass half full'. I bet you only paid a few hundred dollars for a design that probably would have cost thousands of dollars to develop from scratch.

Turns out, it's a blatant rip-off of a craft designed in Holland ... exact lines, displacement, everything ... one change, these are for a wooden build and the originals are steel built ...

[philSweet]

Conversion to a different process is legitimate IP as far as I'm concerned. Protecting a shape is something of an IP bugaboo.

[rwatson]

Originally Posted by philSweet

rwatson,

what I said was-

ahhhh - that makes more sense. One must read the detail fully. Hmm, sounds like a case for licence agreements :-)

[philSweet]

regarding waikikin's post and reference-

an excerpt-

Burge v Swarbrick [2007] HCA 17
In Burge on appeal from the Full Court of the Federal Court, the High Court was required to make a determination as to whether a handcrafted full scale model (referred to as “the Plug”) of the hull and deck sections of a yacht was a work of artistic craftsmanship. In the manufacture of the yacht the hull and deck mouldings were produced from moulds which were exact, although reversed, copies of the Plug. Burge and others had produced a yacht with hull and deck sections substantially identical to that of the Plug.

The decision at first instance
Swarbrick had not registered the design of the yacht and was relying on copyright in the Plug as a work of artistic craftsmanship. In the Federal Court at first instance, the Court found for Swarbrick in his claim for copyright infringement and that was upheld on appeal to the Full Court on the basis that the Plug was a work of artistic craftsmanship.

At first instance, the primary judge considered that a work of artistic craftsmanship required the work to have both craftsmanship and aesthetic appeal and that the considerations were to be considered as distinct and separate questions. The High Court determined that this was an erroneous construction and application of the Copyright Act. The primary judge had also given great weight to evidence given by Swarbrick that he had intended to design and build a yacht of “great aesthetic appeal”.

The High Court's reasoning
The High Court found that in placing the weight on Swarbrick’s evidence, the primary judge had given only limited weight to the evidence of an independent yacht designer and naval architect of considerable experience who affirmed that the class of yacht in question, known as a “sports boat” was designed to sail as fast as possible within the constraints of a specified overall length. Speed was said to be the overriding consideration and that other factors such as considerations of appearance or aesthetics were of secondary importance.

The High Court was influenced by that independent evidence and also by earlier authorities (principally English) concerning the significance of functional constraints on a design. These authorities, when considering works of artistic craftsmanship, discussed them in terms of a work of one who is an artistcraftsman. An example is given of a glazier.

While an ordinary glazier may be a craftsman he could not properly claim that his craftsmanship is artistic, but the maker of stained glass windows could probably make such a claim. The Court seemed to find attractive the concept of the artist-craftsman.

The Court, while declining to make any attempt to provide a fully predictive indication of what can and cannot amount to a work of artistic craftsmanship, held that the determination will turn on the assessment as to the extent to which the particular work’s artistic expression is unconstrained by functional considerations. The more substantial are the requirements in a design brief to satisfy utilitarian considerations of the kind indicated with the design of the Swarbrick yacht, the less is the scope for the encouragement of real or substantial artistic effort.

The Court found that the evidence should have led the primary judge to conclude that the Plug was not a work of artistic craftsmanship because the work of Swarbrick in designing it was not that of the artist-craftsman. In coming to this conclusion, the Court allowed the appeal by Burge.

Implications
Although this decision does not close the debate on what can or cannot constitute a work of artistic craftsmanship, nevertheless it does provide considerable assistance in determining the factors which need to be applied when making that consideration. On the basis of this decision it does seem that only a limited range of products can properly be claimed to be the subject of works of artistic craftmanship.

my opinion- This blows. Where on earth do they get the idea that the potential for artistic expression is constrained by a design brief? The person who wrote the legal brief basically says that artistic content times design constraints = constant. Ok, so the court may be reasoning that the construction of the the racing rule or other design goal is itself a work of artistic-craftsmanship and any compliant design is only an attempt to utilize this art. Since when is art a zero sum game? Is the performance of a boat during a race determined by a point cloud? does art not motivate the crew, the owners, the sponsors? When did art become detrimental to competition? What if they showed that they had expenditures in excess of that needed to meet the rule. That could be presented as evidence of artistic content, for lack of a better metric.

It would be interesting to see the specs on a contract for replacing a stained glass window in a cathedral and replacing a big bay window in a house. Which would have the tighter specs? Does that imply greater or lesser freedom of expression?

What if I contract for a statue. It has to be smaller than a certain size. It must be made of certain stuff. It should withstand a certain environment. I guess it isn't art anymore. I suggest that any creation can "be claimed to be the subject of works of artistic craftmanship." It is for the court to decide on a case by case basis. How on earth can art be handled any other way.

Perhaps there was a better way for the plaintiff to protect his IP, but having failed to avail himself of it , he was left grasping at straws. Nevertheless, I think dismissing an object's potential for artistic content because it is well suited to a functional requirement is just plain daft.

[Willallison]

Yes... clearly no judges who are boat owners on that bench, otherwise they might have recognised that there is art in almost every design... not all of it good, I will grant!

In terms of the OP, I agree that it would have been considerate for the people from whom the plans were boughtto make the one-build situation clear before the deal was done. I guess it is such a widely accepted convention that they didn't think to mention it....