305 / 346
GAZETTE
JANUARY/FEBRUARY 1983
Recent
Irish
Cases
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.
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.
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
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
T.H. & N.H. v. An Bord Uchtala,
(High Court) (per McMahon J.) —
unreported — 20 November 1981.
Nicola Barr
i