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As IPRoo notes, on 18 June 2008 the Federal Court (Weinberg J) handed down yet another decision in the recent spate of Australian copyright cases regarding copyright in the plans for project homes: Inform Designs and Construction Pty Ltd v Boutique Homes Melbourne Pty Ltd [2008] FCA 912. One can’t help but wonder whether there isn’t some kind of guerrilla war going on in the project homes industry at the moment, that war is being waged not only through prices, but through the indirect means of copyright litigation.

Anyway. The interesting thing about this case is that, unlike other recent cases, in this case the alleged infringer actually won – they were held not to have infringed.

The secret, it seems, is keeping drafts. Lots of them. In fact, if there is a ‘moral’ to the Inform v Boutique case, it is that: keep your drafts. This is because the secret to winning, if this case is any guide, seems to be convincing the court that despite whatever similarities might appear between your houses and your competitor’s houses, you did in fact come up with the designs independently. That may sound obvious, but actually, in these cases, it is not. Convincing the court means:

1. Dealing with the fact that people look at each others’ designs; that in a tight market people are going to each others’ display homes and looking at their plans. This, you might think, is pretty normal competitive behaviour. But proof of such visits and access of course will tend to lead a court more readily to draw the inference of copying;
2. Showing a convincing development of design that explains the final shape of the alleged infringing design without reference to copying. Copyright is often not proved directly, but by inference (‘they are so similar it can’t be coincidence’). If you have another plausible explanation for how you got where you are, it will be much harder for the accuser to make the court infer copying. (Preferably, this should not involve, as one recent case did, a finding that your source design was copied, but from another person entirely, and not the accuser).

In Inform v Boutique, Justice Weinberg was confronted with two house designs that really were similar in relatively broad design. He was also confronted with evidence that the accuser’s house designs were award-winning, very popular, highly publicised, and in particular very popular and awarded at around the time that the alleged infringer decided to revive an old plan and rework it in ways that ended up making it quite similar to the accuser’s design. You can fairly easily imagine this case going the other way on the facts (subject to my comments below about the kind of claim being made).

But.

His Honour was also confronted, it appears, with a series of house plans: developing from an early design, through hundreds of variations and amendments over time to end up with the final alleged infringing design. In other words, there was a ready-made, and in this case, accepted design trajectory that could be accepted and that did not involve infringing copying. And that evidence, his Honour accepted, emphasising, in the process, that the onus was on the accuser to prove their case of copying. [I should note that this kind of argument is usually made, and was in fact made in the trial of Barrett v Metricon. It just wasn’t accepted on the facts]

So. Keep your drafts. Especially if you are in the project homes market or if you are an architect who designs homes for individuals (since you, too, are at risk of a claim of infringement if a project homes builder decides you are too close to their design).

By the way, this moral applies to people other than house designers. There was another case, recently, in the Federal Court, about copyright in computer software. In that case, the accuser (plaintiff) had a problem – they didn’t have a copy of the software that they alleged had been infringed by the respondent. The software had been changed, over time, by various people, and re-modelled to suit various clients. There wasn’t a clear history of how, and by whom, the software had been created and there was no way to revert to the version they alleged to have been infringed.

Keep your drafts, and keep a good record of amendments.

There’s another interesting thing about the Inform Design v Boutique Homes case though. And that is that we have a similar issue going on here as we have in the Barrett Properties cases I’ve discussed before: the big legal issue in the case is the issue: just how big, and fat, a monopoly do you give a project home designer if they happen to be the first to come up with a particular design concept? When discussing Barrett v Metricon, I argued that I thought the courts (Federal and Full Federal) went too far: that they effectively gave copyright in the ‘idea’ of the ‘al fresco quadrant’ – protecting multiple different instantiations of a fairly basic collocation of fairly basic rooms in a fairly functional way.

In Inform Design v Boutique Homes, we see the same kinds of issues play out. Boutique (the accused) argues that, in effect, Inform wants to claim copyright over the ‘idea’ of a two story house with central U-shaped or dog-leg stair surrounded by the ‘wet areas’ (kitchen, bathroom, laundry) on both levels. Inform of course argues that Boutique has copied the ‘expression’ – the whole shape of the house. But Inform get pretty close to claiming copyright over the ‘idea’: arguing that “the arrangement of a centralized staircase in proximity to a ‘core’ of wet areas with living area and bedrooms then arranged around that core … this aspect of the design was of key qualitative significance”.

What follows, in the judgment, is a very interesting exposition: Inform’s arguments, and Boutique’s arguments, laid out clearly by his Honour, with citations to the relevant authorities. What emerges, I think, from this really very good discussion by the judge, is that Australian law in this space is on a knife edge. Depending on what side you are on, you can marshall court judgments in your favour. As the accused, you can point to the many authorities warning against overbroad protection of simple design concepts. As accuser you can point to cases like Tamawood, which are much more fierce in their protection of the overall design concepts in a house. It cannot be easy offering legal advice to architects in this space.

It’s a very good summary of the state of the law, embodied in the opposing arguments of the two competitors in this project homes market. It’s a deep pity, then, that the judge, having found no copying, never had to get to the question of whether a substantial part had been copied. It would have been most interesting to see him ‘choose a side’ in this collocation of contrasting authorities.

Reading these cases, too, I wonder whether it could be said that, over time, and after many, many projects homes cases, Australian courts have got themselves into something of a tangle. Eagle Homes extended quite broad protection to project home designs, Tamawood tried to find ways to qualify that broad protection – but without rejecting the Eagle Homes analysis, which continues to stand to the aid of parties and judges wanting to put a stop to sharp practice. Judgments in this set of self-referencing cases bear little relation, I think sometimes, to our broader ideas about how copyright works. The idea/expression dichotomy has a life (or more accurately, death) of its own in these cases. Broad protection is given to simple, functional designs. And in that context, I suspect, the project homes cases will keep on coming. Why wouldn’t they? The courts hold out the possibility, at least, of monopolising new design concepts. I’d be suing too.