Case review - Burge v Swarbrick - Phillips Ormonde & Fitzpatrick
Case review - Burge v Swarbrick
4 May 2007
On 26 April 2007 the High Court of Australia handed down its decision in the Burge v Swarbrick case setting aside a finding of copyright infringement made by the Full Federal Court.
The ultimate issue was whether the “plug” and “hull and deck mouldings” of the JS 9000 yacht designed by Swarbrick were “works of artistic craftsmanship”. As the problems overcome during the design of the yacht had been predominantly matters to do with function, requiring engineering skills rather than artistic effort, the High Court held that the “plug” and “hull and deck mouldings” were not “works of artistic craftsmanship” and therefore not afforded copyright protection.
The case emphasises the need to obtain appropriate protection for intellectual property and to not rely on copyright protection for industrially applied designs that are constrained by functional considerations. Design registration (or patent protection where relevant) is the more appropriate form of intellectual protection for such works.
