Copyright, Designs and Patents Act 1988, section 263

Minor definitions

Part III Design Right

(1)In this Part—

  • F743 “British design” means a design which qualifies for design right protection by reason of a connection with the United Kingdom of the designer or the person by whom ... the designer is employed;

  • “business” includes a trade or profession;

  • F744 ...

  • “the comptroller” means the Comptroller-General of Patents, Designs and Trade Marks;

  • “computer-generated”, in relation to a design, means that the design is generated by computer in circumstances such that there is no human designer,

  • “country” includes any territory;

  • “the Crown” includes the Crown in right of Her Majesty’s Government in Northern Ireland [F745 and the Crown in right of the Scottish Administration F745][F746 and the Crown in right of the Welsh Assembly Government F746] ;

  • “design document” means any record of a design, whether in the form of a drawing, a written description, a photograph, data stored in a computer or otherwise;

  • “employee”, “employment” and “employer” refer to employment under a contract of service or of apprenticeship;

  • “government department” includes a Northern Ireland department [F747 and any part of the Scottish Administration F747][F748 and any part of the Welsh Assembly Government F748] .

(2) References in this Part to “marketing”, in relation to an article, are to its being sold or let for hire, or offered or exposed for sale or hire, in the course of a business, and related expressions shall be construed accordingly; but no account shall be taken for the purposes of this Part of marketing which is merely colourable and not intended to satisfy the reasonable requirements of the public.

(3) References in this Part to an act being done in relation to an article for “commercial purposes” are to its being done with a view to the article in question being sold or hired in the course of a business.

Definitions used in section 263 4

design

1 (1) In this Act “design” means features of shape, configuration, pattern or ornament applied to an article by any industrial process, being features which in the finished article appeal to and are judged by the eye, but does not include—

(a)a method or principle of construction, or

(b)features of shape or configuration of an article which—

(i)are dictated solely by the function which the article has to perform, or

(ii)are dependent upon the appearance of another article of which the article is intended by the author of the design to form an integral part.

Defined in Sch.4 para.38 · see it in the full Act

(2) In this Part “design” means the design of ... the shape or configuration (whether internal or external) of the whole or part of an article.

Defined in s.213(2) · see it in the full Act

“design” has the meaning assigned to it by section 1(1) of this Act ;

Defined in Sch.4 para.38 · see it in the full Act
designer

(1) In this Part the “designer”, in relation to a design, means the person who creates it.

Defined in s.214(1) · see it in the full Act
employment

“employee”, “employment” and “employer” refer to employment under a contract of service or of apprenticeship;

Defined in Sch.4 para.38 · see it in the full Act
article

“article” means any article of manufacture and includes any part of an article if that part is made and sold separately;

Defined in Sch.4 para.38 · see it in the full Act

Cases considering section 263 4

A. Fulton Company Ltd v Grant Barnett & Company Ltd

[2000] EWCA Civ 513 · 5 October 2000Interprets

Applies the statutory meaning of employee in section 215 and rejects the argument that the absence of a written employment contract prevented employee status. (see ownership section)

Societa Esplosivi Industriali SPA v Ordnance Technologies (UK) Ltd & Ors

[2007] EWHC 2875 (Ch) · 5 December 2007Interprets

The court applied the broad definition of design document to computer-stored design data and treated the definition as relevant to the document class of primary infringement. (see paras [46], [55]) The court treated commercial purpose as requiring conduct done with a view to sale or hire in the course of business. It assumed that the DMP articles were supplied for monetary consideration and therefore met that requirement. (see paras [52], [64])

Ultraframe (UK) Ltd v Fielding & Ors

[2003] EWCA Civ 1805 · 12 December 2003Defines

The statutory definition requires a commission for money or money’s worth. The court treated this as requiring a prior contractual exchange of obligations, rather than payment unconnected to an undertaking to create the design (see paras [28]-[33]).

What each judgment says about section 263 is in the case-law panel in the full Act.

Amendments and notes

6 notes from legislation.gov.uk

Amendments

  1. F743Words in s. 263(1) omitted (1.10.2014) by virtue of Intellectual Property Act 2014 (c. 18), ss. 2(2)(i), 24(1) (with s. 2(3)); S.I. 2014/2330, art. 3, Sch.
  2. F744Words in s. 263(1) omitted (1.10.2014) by virtue of Intellectual Property Act 2014 (c. 18), ss. 2(2)(j), 24(1) (with s. 2(3)); S.I. 2014/2330, art. 3, Sch.
  3. F745Words in definition of "the Crown" in s. 263(1) inserted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. I para. 93(4)(a); S.I. 1998/3178, art. 3
  4. F746S. 263(1): words in definition of "the Crown" inserted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para. 31(2) (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act. text inserted for certain specified purposes only, see the commentary.
  5. F747Words in definition of "government department" in s. 263(1) inserted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. I para. 93(4)(b); S.I. 1998/3178, art. 3
  6. F748S. 263(1): words in definition of "government department" inserted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para. 31(3) (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act. text inserted for certain specified purposes only, see the commentary.