beauty lies in the eyes of the beholder meaning

#BEAUTY LIES IN THE EYES OF THE BEHOLDER MEANING REGISTRATION#

In light of the above, it is submitted that the term “utilitarian” should be interpreted against an industrial backdrop a derivative article must be a useful thing in an industrial context for the exception of Section 15(3A) to apply. Section 15(3A) never meant to deprive authors of their copyright protection in their aesthetic creations.

#BEAUTY LIES IN THE EYES OF THE BEHOLDER MEANING REGISTRATION#

At the same time, the Designs Act was amended to make provision for the registration of functional designs. Section 15(3A) was introduced into the Copyright Act to preclude copyright owners from effectively using their copyright as a form of unregistered design and thus preventing competition in the manufacture of technical products and more particularly spare parts for motor vehicles, mining equipment, machinery and the like. Furthermore, it is submitted that by using the word “primarily” the legislature had a specific purpose in mind – the purpose of which becomes clear when one considers the backdrop to the Copyright Amendment Act 66 of 1983 which introduced Section 15(3A) into the Copyright Act. The Oxford Dictionary provides that “utilitarian” means “useful or practical rather than attractive”. Section 15(3A) of the Copyright Act provides that where a copyright owner has directly or indirectly produced and sold three-dimensional derivative articles of his or her work anywhere in the world and such derivative articles primarily have a utilitarian purpose and are made by an industrial process, no infringement occurs thereafter by the making of unauthorized reproductions by means of indirect copying. In Van Dijkhorst J’s judgement in Bress Designs (Pty) Ltd v GY Lounge Suite Manufacturers (Pty) Ltd and Another 1991 (2) SA 455 (W) it was held that a peculiar, yet original – the Copyright Act does not consider the artistic quality of a work – “M-shaped” sofa had a primarily utilitarian purpose and as such fell within the ambit of Section 15(3A) of the Copyright Act – the so-called “reverse engineering” of products exception.

This is, however, a misconception and even after the six-month grace period for filing a registered design has lapsed, one is still entitled to copyright protection for certain industrially manufactured aesthetic creations. The legal fraternity often misinterprets the judgment given in BMW AG v Grandmark International (Pty) Ltd and Another 2014 (1) SA 323 (SCA) and wrongly assume that as a consequence of this judgment, aesthetic creations which also has a functional aspect to it and which is to be manufactured in a so-called “industrial process”, can no longer be protected under the Designs Act 195 of 1993, nor the Copyright Act 98 of 1978. Like a butterfly flapping its wings on the other side of the world, a single judgment often has far reaching implications on our interpretation and application of the law.

Beauty lies in the eyes of the beholder meaning