Burge v Swarbrick

The High Court of Australia heard an appeal from the Full Court of the Federal Court of Australia concerning alleged copyright infringement. The respondent, Mr Swarbrick, claimed copyright in a "plug" used to create a mould for a yacht hull and deck, and in the mouldings themselves. The appellants, Burge and others, argued that these items were not protected by copyright, or if they were, such protection should have been sought under designs registration law. The central dispute revolved around whether the plug and mouldings qualified as "works of artistic craftsmanship" under the Copyright Act 1968 (Cth), and how this interacted with the designs registration provisions.

The primary legal issues before the High Court were whether the "plug" and the yacht hull and deck mouldings constituted "works of artistic craftsmanship" for the purposes of copyright protection. This required the Court to consider the meaning of "work of artistic craftsmanship" as a composite phrase, and the relevance of aesthetic appeal, machine production, and functional or utilitarian constraints to its existence. Furthermore, the Court had to determine the application of the anti-overlap provisions, specifically whether copyright protection was excluded due to the industrial application of a "corresponding design" in the absence of a registered design.

The High Court reasoned that the determination of whether a work is one of artistic craftsmanship is an objective one, not solely dependent on the author's intentions or aspirations. The Court found that while aesthetic considerations were present in the design of the plug, they were subordinated to significant functional and engineering requirements inherent in the design of a sports boat. Unlike items such as jewellery or stained glass where design choice is relatively unconstrained by function, the design of the yacht plug was heavily influenced by utilitarian constraints. The Court concluded that the plug and mouldings did not meet the threshold for being considered works of artistic craftsmanship, and therefore, copyright protection was not available under the Copyright Act, particularly in light of the designs legislation's anti-overlap provisions.

The appeal was allowed with costs. The orders of the Full Court of the Federal Court were set aside, and in their place, the respondent's application to the Federal Court was dismissed. Questions regarding cross-claims were to be determined by a judge of the Federal Court, and the respondent was ordered to pay the appellants' costs of the proceedings before Carr J.