Jacob LJ

A singular merit

Speaking of s 213 of the Copyright, Designs and Patents Act 1988 (UK), Lord Justice Jacob expressed this rather unflattering assessment of legislative drafting and intendment (citations omitted):

It has the merit of being short. It has no other. Jonathan Parker J considerably understated the position, when he said ‘regrettably, the drafting of s 213 leaves much to be desired’ … It is not just a question of drafting (though words and phrases such as ‘commonplace’, ‘dependent’, ‘aspect of shape or configuration of part of an article’ and ‘design field in question’ are full of uncertainty in themselves and pose near impossible factual questions). The problem is deeper: neither the language used nor the context of the legislation give any clear idea what was intended. Time and time again one struggles but fails to ascertain a precise meaning, a meaning which men of business can reasonably use to guide their conduct. The amount of textbook writing and conjecture as to the meaning is a testament to its obscurity. … The absence of any clear policy, as to where the line of compromise was intended to run, means that brightline rules cannot be deduced.

Citation: Dyson v Qualtex [2006] RPC 31, [14]
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