Legality of Copying Commercial Parts

[tebee]

There has been a certain about of discussion on here about whether making a copy of a commercial part for personal use infringes copyright. Well the short answer is it does not, as you cannot copyright a physical object apart from a work of art like a sculpture.

 

It has been argued that the existence of the physical object infringes on the copyright of the drawings from which that object was made - see British Leyland Motor Corp. v. Armstrong Patents Co. for all the arguments. ( the answer is yes it does infinge, but it's allowed anyway !)

 

If you could copyright things it would put a lot of power into the hands of the manufactures. Imagine a world where you could only buy your spare parts from the manufacture of your car and, if after five years they stopped making that part, you had no alternative but to buy a new car as soon as that part need replacement.

 

I feel it's only the current climate of FUD ( fear, doubt and uncertainty – but not in that order) over copying of all sorts of media , created by the content providers, that means we have to ask this question. Twenty years ago no one would have cared about one individual's private copying.

 

I must admit a certain bias here. I'm part of the open source programming community, where we do our best to ensure openness and actually encourage copying!

 

You may ask is this important anyway – well technology moves on. Looking ahead to the next few years 3d scanning and printing is going to become cheap and , I suspect, popular. You don't think Bachmann have got that roof contour quite right, well just scan the original roof, edit it in you favourite 3d editing program and make a new one.

 

It's almost certainly not illegal to sell the parts you make as long as you do not pass them off as the originals – if it is morally right or not is, of course, another question.

 

Tom

[Andy Y]

There's a lot of things people do in the privacy of their own homes that I tend not to be judgmental about. However on here I can't condone copying anyone's intellectual property particularly where it may be injurious to their business interests.

 

It's a rather large can of worms and I'll be keeping an eye on the topic and hope that it can stay within legalities and be supportive of investment in the hobby.

 

 

[Andy Y]

Interesting topic for the legal eagles, but consider this. Manufacturers recently ( no names) have made models from laser scanned real loco's in the National Railway Museum, like the blue Deltic. The intellectual rights were not the property of the NRM, but are probably still the ownership of the original designers/manufacturers.

Did the model manufacturers get a licence ( or agreement at least ) to copy and scale the intelectual property of their design.... mmmm I somehow doubt it, even it were possible to trace who owns them now. I know they got NRM permission , but  that would only be to use the laser scans that they did.

 

 

I can't comment on the specific case above as I'm not party to any IP ownership and licencing therein but I am very aware of the hoops that major manufacturers jump through to avoid infringement of IP and adherence to licencing conditions and working with interested parties. Such matters can determine how long a product takes to market as this is often done before design work is undertaken.

 

 

 

[Russ (mines a pint)]

You may ask is this important anyway – well technology moves on. Looking ahead to the next few years 3d scanning and printing is going to become cheap and , I suspect, popular. You don't think Bachmann have got that roof contour quite right, well just scan the original roof, edit it in you favourite 3d editing program and make a new one.

 

It's almost certainly not illegal to sell the parts you make as long as you do not pass them off as the originals – if it is morally right or not is, of course, another question.

 

I can see two sides to this one- the comment about the roof contours- well if you made a replacement 'better' part the intellectual property would be yours as you have made the improvement- if it was a class 24/25 cab I'd have a few

 

However the implications of 'photocopying' whole kits or items is a bit different- you could use for your own purposes for sure and the implications for slight modifaications are probably huge- generic RTP buildings for example, but again this intent to make something different out of existing stuff then you are probably covered intellectual property wise.

 

The case where there could potentially damage for the hobby is where a person would 'copy' a kit in order to make multples, without buying extra kits, thus depriving the manufacturer's of revenue for new projects?

[Dagworth]

An example:

My class 309 Clacton units are built from very heavily cut and shut Bachmann mk1 coaches with scratchbuilt cabs. If I was to make resin castings of these vehicles would I be infringing someone elses IP rights?

 

Andi

[djparkins]

No one cared eh? Shows a lack of knowledge of this industry. So why as a 'content providor' should I work (photography) for free? Are you going to give me thousands of pounds worth of camera gear for free, or is my duty to buy the gear and provide content for free? Same argument for modelling, why should a small manufacturer, Kemilway for example, produce a range of kits for them to be directly copied and marketed at a cheaper price at poorer quality? Funny old thing they got fed up and didn't bother, depriving the industry of an inovative producer.

 

 

Absolutely - I couldn't agree more.

 

I think we should cut to the chase on this issue. Instead of seeking to defend what is basically theft, some of those who have posted on the neighbouring/related thread to this and are seeking to justify the incorporation of other manufacturers shapes and parts into a moulded part [for whatever purpose] would be better employed developing their modelling skills so that they might, just might, one day, be able to produce their own 100% original masters.

 

Adding bits of wire or microstrip to someone elses' part and re-moulding it is NOT pattern making. If they cannot do it they should stop pretending and leave it to others who can - others who make the required investment and take the risks that are always involved with bringing any product to market.

 

David Parkins,

Modern Motive Power

[Andy Y]

very heavily cut and shut Bachmann mk1 coaches 

 

That's the part that could infringe design rights as it's still copying elements of a design. If Bachmann have registered the design then it can't legally be copied without permission, if they hadn't registered it it would still be protected for a minimum of 10 years.

 

 

Of course someone could approach a manufacturer and seek permission to use the product or elements of it for that purpose and stating its usage.

[bertiedog]

An example:

My class 309 Clacton units are built from very heavily cut and shut Bachmann mk1 coaches with scratchbuilt cabs. If I was to make resin castings of these vehicles would I be infringing someone elses IP rights?

 

Andi

As said before components can be used for new work, a new design, and no permission is needed if the parts used are reasonably considered to be components. But it would be a minefield to defend yourself or seek to sue someone in this area.

Other posters think it is completely open to use anything....up to no copying, but in fact it is very complex. I have read up on the latest legislation on the net,(Gov., sites), and both ends of the argument can appear to be right.

 

Stephen.

[buffalo]

...I note with software its not quite the same as having to operate a manufacturing facility or photographic studio, I imagine the overheads are a bit less. How do you actually make your money to live from then if your core business is providing open source programming?

 

You're right, it's not the same at all. The key to understanding this is that commercially, the software is not the product. Whilst many open source programmers give freely of their time because they like doing it or for various altruistic reasons, the key to generating income is in providing training, support and maintenance services. Individuals, often with significant programming skills may use the software and generally increase the store of knowledge about it. For them, the support from the OS community is adequate. However if commercial organisations want to use it, they will not do so without a well designed support package for which they will pay large sums of money. You only need to look at Sun's approach to Java and later to MySQL to illustrate this approach. That this fitted well with the way Oracle operate was probably a major factor in their takeover of Sun. Similarly, see Google's approach to Android. It's a bit murky as OS goes, but here it's important to realise that their core business, despite appearances, is advertising, not search engines or software development. Another example, For many years, Xerox were seen as a photocopier and, to a lesser extent, research oriented software company. Really though, there core business was selling paper to feed those copiers.

 

Nick

 

ps. to get back on track, there is a partial parallel here with the production of add-on parts and instructions, training, support for those who want to improve RTR models. Even thought the later are commercial products.To copy and claim as your own is still illegal with open-source software -- see the recently ended long-running issue related to parts of JMRI.

[Russ (mines a pint)]

Absolutely - I couldn't agree more.

 

I think we should cut to the chase on this issue. Instead of seeking to defend what is basically theft, some of those who have posted on the neighbouring/related thread to this and are seeking to justify the incorporation of other manufacturers shapes and parts into a moulded part [for whatever purpose] would be better employed developing their modelling skills so that they might, just might, one day, be able to produce their own 100% original masters.

 

Adding bits of wire or microstrip to someone elses' part and re-moulding it is NOT pattern making. If they cannot do it they should stop pretending and leave it to others who can - others who make the required investment and take the risks that are always involved with bringing any product to market.

 

David Parkins,

Modern Motive Power

Though I've not read the 'other thread' this seems a bit of an extreme viewpoint, has there not been a fairly large trade in detailing and conversion kit parts long before the digital age?- where would for instance someone stand on converging the 'best bits' of 2 loco bodies and marketing this as a resin cast body shell? again the Hornby vs. Bachmann 25 and varients is an ideal example here, and one I am familiar with, but there must be other prototypes, you can see where the cottage industries who have done their research properly should not be affected, but might it just focus the big manufacturers to make an effort to get it right first time? I am purely devils advocate here, because we all know that the costs of getting something right first time is probably far outweighed by the collector/trainset market income.

[Guest jim s-w]

this is simple.

 

If you originate something you are the intelectual copyrite owner - you can do what you want. If you buy it you are the end user - you can do what you like to it provided you don't copy it (or in many cases lend it to someone else). If you do copy something that you didn't originate without the owners permission you are a thief.

 

If you think it OK to copy a Bachmann locomotive for your own use why not contact Bachmann and tell them what you are doing to see what reaction you get. Until you do and you get an official response telling you its fine there is no point to discussing it any further.

 

I can only assume that you are trying to ague the point without talking to the manufacturer because you know its wrong but you are hoping someone on here, who you probably dont know and could be anyone, will give you some sort of justification for theft. Thing is even if they do it doesn't make it any more ok.

 

Simples!

 

Jim

[Neil]

An example:

My class 309 Clacton units are built from very heavily cut and shut Bachmann mk1 coaches with scratchbuilt cabs. If I was to make resin castings of these vehicles would I be infringing someone elses IP rights?

 

Andi

 

That's the part that could infringe design rights as it's still copying elements of a design. If Bachmann have registered the design then it can't legally be copied without permission, if they hadn't registered it it would still be protected for a minimum of 10 years. .....

 

I note that Andy Y has qualified his statement in a couple of places, an acknowledgment that there's some uncertainty about the position?

 

There are a couple of ways of looking at the example given. It could be said that one was in essence copying a Bachmann mk1 or at least significant elements of one. It could equally be said that the Bachmann mk1 was as much raw material as plasticard, brass sections, yoghurt pots or anything else that went into making the master. It's a matter of interpretation, and I'm not at all surprised to see the range of responses that have been aired so far. To the best of my knowledge there's never been a case taken to court of heavily cut and shut mk1s being used to make masters for a Clacton unit, so unfortunately there's only one way to definitively determine the legality. Courts look at the merits of each case, and while guided by precedent can come up with decisions that can lead to fresh interpretations of the law. I'd be wary of any of us that would claim to know what the courts would decide.

[Russ (mines a pint)]

Of course someone could approach a manufacturer and seek permission to use the product or elements of it for that purpose and stating its usage.

 

Having now read between the lines of some of the replies and now going to search out the 'other topic' I think that Andy's advice above is paramount. If its a detailing/conversion project and you ask permission first, you would probably gain approval and encouragement. If its something else or something that you feel uncomfortable in asking permission for then it probably isn't right?

[Adrian]

Well the short answer is it does not, as you cannot copyright a physical object apart from a work of art like a sculpture.

[...snip...]

You may ask is this important anyway – well technology moves on. Looking ahead to the next few years 3d scanning and printing is going to become cheap and , I suspect, popular. You don't think Bachmann have got that roof contour quite right, well just scan the original roof, edit it in you favourite 3d editing program and make a new one.

 

Sorry but IANAL (I Am Not A Lawyer) so my comments are entirely my own opinion and have no basis in law. Having got that out of the way I am curious as to your qualifications to espouse so authoritively on the subject. I presume you have some legal qualifications.

 

IMHO you immediately raise a valid objection to your point of view. I'm sure a competent lawyer could quite legitimately claim that a model is a work of art - which by your admission it is possible to copyright. In building a model I consider that I'm creating a work of art, why is a commercial company any different?

 

I've seen the model making industry from both sides of the fence, my Dad used to run a model making business and now I'm a consumer. As far as I can tell none of the cottage industries supplying the model trade are raking it in. They are doing everything to make ends meet and doing a fantastic service to serve the punter. To actively encourage the undermining of these businesses to me is morally reprehensible.

 

I must admit a certain bias here. I'm part of the open source programming community, where we do our best to ensure openness and actually encourage copying!

I'm sorry but I too am involved in various open source programs and I don't recognize this ethos. Copying is only encouraged on open source projects, in no way does this condone the copying of protected and commercial software. If Bachmann have released their latest model under an open source license then you'd be justified in copying it, but they didn't so IMHO you haven't.

 

Alternatively you are a troll, aicmfp!

 

It's wrong and you know it - no matter how you try to justify it.

[Ron Solly]

this is simple.

 

If you originate something you are the intelectual copyrite owner - you can do what you want. If you buy it you are the end user - you can do what you like to it provided you don't copy it (or in many cases lend it to someone else do you mean by this that I cannot lend my loco to my mate so he can test his trackwork? ). If you do copy something that you didn't originate without the owners permission you are a thief.

 

If you think it OK to copy a Bachmann locomotive for your own use why not contact Bachmann and tell them what you are doing to see what reaction you get. Until you do and you get an official response telling you its fine there is no point to discussing it any further. Does this mean Jim, that I cannot purchase a Bachmann van & spend time making a copy out of plastic card, etc to create another van for my use?

 

I can only assume that you are trying to ague the point without talking to the manufacturer because you know its wrong but you are hoping someone on here, who you probably dont know and could be anyone, will give you some sort of justification for theft. Thing is even if they do it doesn't make it any more ok.

 

Simples!

 

Jim

 

 

Having now read between the lines of some of the replies and now going to search out the 'other topic' I think that Andy's advice above is paramount. If its a detailing/conversion project and you ask permission first, you would probably gain approval and encouragement. If its something else or something that you feel uncomfortable in asking permission for then it probably isn't right? So do I assume then that by adding brake detailing etc, I should contact the manufacturer first? I think not ! Who would I contact to detail a Lima locomotive for instance? Or change wheels from 00 to P4 ?

 

 

I can see a real mess here. Is it there a difference between something that is written, typed, drawn as compared to something built out of wood, plastic, etc?

[Simon V]

The original post and the thread it links to is absolutely outrageous.

 

What is it with some of you that you think it is perfectly OK to go around copying things as and when you see fit to do so?

 

I am currently working on a range of kits (in 7mm) that will in the near future be available to all.

 

The work involved in doing this is huge. I don’t have manufacturer’s drawings of the real thing; neither do I have 3D scanning devices and the software to interpret the results. I have spent quite literally 100s of hours doing research, taking photographs, sometimes in the most appalling weather conditions. Taking my own measurements and translating all of this and much, much more into CAD drawings and working down to 4 decimal places for what? So that one of you can pour some rubber over it to produce a mould and make a poor copy of it. I think not!

 

Everything I have done so far is original to me and I have laboured long and hard to produce what will hopefully be an accurate kit/kits that look right, allow the builder to acquire new skills and are fun to build and run.

 

I am not going to get rich from any of this. Heck I will be lucky to get my investment back. I am doing it for the love of the hobby and because I want things that are either not available or if they are they are pretty awful interpretations. The reason that I shall make them available to the rest of you is because I have not ripped off anything, it’s all my own work.

 

The production of masters for kits is an art form in itself. Have a look at these. Birth of a kit. The detail on some of these parts is exquisite and some of them have been hand crafted from solid blocks of metal. If you had produced something like this to this level of detail would you be happy if someone just copied it?

 

Speaking purely from my own point of view, when I release the fruits of my labours to the world I will be more than a little miffed if I find parts or the whole copied and I will fight my corner to the best of my ability.

[tebee]

Sorry if I've stirred up a can of worms with this, it's a bit of a pet peeve of mine, people creating intellectual property rights where none exist in law.

 

It maybe because I've been involved with a couple of open source projects were people have tried to enforce invalid IP claims but I find it irritating when people suggest something is illegal just because they feel the law should protect some nominal " intellectual property"

 

Now it may be the law is not just, but as it stands at the moment you have more IP rights in the instructions for a kit or a virtual model of a loco than in a physical model.

 

Just because you are the first person to make something it does not mean that it's illegal for anyone else to make the same thing.

 

If Ben makes a chair there is nothing to stop Bill making the same chair or even buying Ben chair measuring it and making an exact copy.

 

There exists no copyright in the physical object, the drawings that were used to make it , yes, but not in the object itself.

Lets face it, the Japanese and now the Chinese have built whole industrial empires on copying things other people have made.

 

To give an example from the model railway field , the Life-Like proto 2000 drives are almost exact copies of Athearn ones ( but better built!) even to the extent you can use spares from one to mend the other.

 

Intellectual property as we think of it today is a fairly recent invention, It's worth reading Adrian John's book "Piracy: The Intellectual Property Wars from Gutenberg to Gates" to see how it has developed over the years. Interestingly he projects that over zealous enforcement of IP may undermine support for those very laws. There is a new generation growing up with very different expectations .

[tebee]

I can see a real mess here. Is it there a difference between something that is written, typed, drawn as compared to something built out of wood, plastic, etc?

 

Yes, copyright applies to the first but not the second.

 

Don't blame me - I didn't write the laws.

[Ron Solly]

Interesting because in Australia, we are legally able to copy/record television programmes now.

 

http://www.austlii.edu.au/au/legis/cth/num_act/caa2006213/sch6.html from changes in 2006 - part 1 deals with electronic copying & part 2 with reproducing in different formats

 

http://www.ipaustralia.gov.au/ip/copyright.shtml

[hollywoodfoundry]

Wouldn't it be lovely if we could get someone who actually knows the law to post a definitive reply here, as against all those who THINK they know the law?

[Ron Solly]

While the problem of copying a physical object is up for a lot of discussion, what is the situation then if I am building a model Hotel & the windows I require are only available in a commercial kit & are not available separately even after contacting the Kit manufacturer?

 

Does the term "copying" mean in how the original was made & I replicate that or just the appearance for instance, the original is made out of plastic & I make mine out of card & to most people, especially me, they look the same. If someone makes 3 link couplings that look the same as commercial units, is that not "copying"?

It has been pointed out regarding car parts - copies are legally allowed to be sold.

[DavidB-AU]

Copyright does not protect ideas, but only the expression of ideas. If the expression of an idea is original and contains at least a modicum of creativity, it is protected by copyright at the moment it is fixed in a tangible medium.

 

Creating an unauthorised copy of such an expression infringes copyright unless a specific use is a fair use. You are free to make use of the idea embodied in a particular expression, but you may not copy the expression itself.

 

Under UK law, the commercial manufacture of infringing copies, making or possessing equipment for the purposes of making infringing copies, or importing infringing copies for non-personal use is a criminal offence.

 

Cheers

David

[Andy Y]

I'll lock this temporarily until I'm back tonight to keep an eye on it.

[Ron Solly]

Just hoping that the questions I posed in Posts #17 &23 can be answered definitively or at least with good replies.

 

Does this mean that I should not build my handmade PCB points as ideas and concepts "copied" from commercial units? - a real can of worms indeed.

[Guest jim s-w]

Hi Ron

 

I was refering to copyright as a whole when I said that sometimes you are prohibited to lend an item you have brought - I am sure you have read the copyright message at the start of any DVD?

 

If you wanted to copy a Bachmann van out of plasticard again that is not a copyright issue. The point is that if you were to take a copy of it using the Bachmann model as a master and casting from it then you are breaking copyright laws. Although quite why you would want to spend the time and effort to scratchbuild something you can buy for a few pounds escapes me somewhat.

 

Going back to what Tom said lets take a hypothetical example. Lets say Tom buys autocad, learns how to use it and through trial and error and several phototools (£50 a shot) comes up with a fabulous sprung bogie. Great - lets say he sells them at a fiver a pair - even better. Eventually all his effort and cash investment in software and development would be rewarded and he might start to make money.

 

However he seems to think as long as its for my personal use it doesnt matter if I just copy what he has done and do my own version. As people might be aware I need a lot of coaches for the layout (lets say 200 as a very conservative figure), do I buy Tom's bogie at a grand total of £1000 or as its for my own use do I just cut him out of the loop, steal his idea and do my own thing?

 

So how about it Tom, its for personal use so I assume you are happy to loose out on £1000 from just me - what about others?

 

Cheers

 

Jim