Legality of Copying Commercial Parts

[PaulCheffus]

Geoff is right, but which law? The US has a very different system to the EU, which have different rules within member states anyway, and in large parts of Asia "copyright" is rather a farce... :-\

 

AFAIK, copying parts from commercial vendors for your personal use is allowed, reselling these w/o approval of the original manufacturer isn't... As for making models of real trains: during the BR era the taxpayer fitted the bills for the design of rolling stock. And I presume nationalisation handed all IP rights of the pre-BR companies into the hands of BR too. Besides, wouldn't they be expired by now?

 

Hi

 

If that were true I could go out an buy for example a kit copy the parts and deprive the manufacturer of sales to myself of lets say ten more kits. Surely that isn't legal.

 

Cheers

 

Paul

[darren01]

HI

Peter waterman a few month ago in Model Rail mag go on about this ,don't know who he was having a go at?

[peach james]

I do not, yet, see this as being as big a deal as some people have made it out to be. When the techniques advance to the point where a 3D laser printer can make items fast enough to beat the chinese girls at assembling models, then BachHornDal will make models that way, rather than with the chinese girls. Simple. And, with items like this, I would assume that the cost will be in making them...at which, a factory which turns out a few thousand of something will still likely be cheaper than a home making 1-10 of them, on a per unit basis. If the cost centers don't work out that way, well, we have Record Companies as a example of how change will overtake to some extent. (or more shiningly, record stores...the're getting thin on the ground over here).

 

If the price of physically making a model at home drops to under the 7 PS that it is now via a laser printer, then someone will market it that way, I am sure. How many people with thousands of images on Fotopic or so on would be able to draw up a waggon and "sell" you the drawing? Probably a fair #...the cost would then be either having the laser 3d copier & printer, or buying the image & just having the printer.

 

I tend to think that while there may be substantial down sides to this, there are potential serious upsides too. I also think that getting a "full" waggon out of a laser printer is something that will take at least 10 more years, based on the differing mediums that are used at present, plus the issue of then painting said item.

 

I'd be happy to be wrong on that timescale though!. I have 16 Judith Edge "kits" for UYV's downstairs, which need bodies & a lot of work...

 

James Powell

[DavidB-AU]

Following on from what Dutch_Master and PaulCheffus said, copying commercial parts for your own personal use is not allowed. You are free to use any ideas embodied in commercial parts and make your own entirely from scratch, but you may not copy the expression of an idea fixed in a tangible medium.

 

Copying a commercial part for personal use is a civil matter. A manufacturer is entitled to sue you if you use their part as a master to cast your own. As with the Lego example, designing something from scratch to be compatible with a simple commercial product may be hard to enforce. If you are making something to an agreed standard (e.g. NEM or NMRA wheel profiles) then your product is going to look pretty much the same as everybody else's product anyway.

 

However copying a commercial part for the purpose of selling infringing copies is a criminal offence.

 

Cheers

David

[Revolution Mike]

Following on from what Dutch_Master and PaulCheffus said, copying commercial parts for your own personal use is not allowed. You are free to use any ideas embodied in commercial parts and make your own entirely from scratch, but you may not copy the expression of an idea fixed in a tangible medium.

 

I agree with what you said, I think the grey area is if I take a commercial part, chop it into bits and change it substantially (eg say making a 455 out of a 150) and then having done all that want to cast replicas of the very heavily modified result.

[MarkSG]

Coming to this slightly late, but I thought I'd stick my oar in since this is an area of law that impacts my day job and therefore, although I'm not a lawyer, I'd be so bold as to say that I understand it pretty well.

 

One thing that needs to be borne in mind when discussing copying and the law is that the term "Intellectual Property" encompasses a very wide range of situations and copyright is only one form of IP, albeit one of the best known. It's important, though, to remember that the law which applies to one area of IP doesn't necessarily apply to another - just because you can copy one thing, it doesn't mean you can copy another, and just because you can't copy something doesn't mean you can't copy anything. Each case has to be taken according to the law which applies to that case, not to the law which applies to other cases.

 

Anyway, the original assertion by tebee is absolutely correct: Copyright does not apply to three-dimensional objects. The relevant law is the Copyright, Designs and Patents Act, and, as the title suggests, there is a difference between copyright and design.

 

Specifically, copyright applies to original written and recorded material. It does not apply to physical objects, although it does apply to any plans, drawings or instructions used to create the object. So a physical model is not, itself, protected by copyright, and if you can make a copy of it without reference to any of the written or recorded material (including computer software) used to create it then you haven't breached copyright. However, that doesn't mean it's necessarily a free-for-all, as other areas of IP do apply.

 

There are two forms of Intellectual Property which apply to physical objects: Design Right and Patents. Patents aren't really relevant in this context, as they cover things which are an innovative invention, and merely making an object - even a very good one - doesn't qualify it for a patent unless it has something which is entirely new. A model is pretty much unpatentable, since the concept of modelling has been around for so long that there's virtually nothing new to add in terms of concept. In theory, some particular features of models could be patented - for example, whoever (Triang?) invented the hook-and-bar coupling could have patented it, and if they had then all other manufacturers would now need to pay a licence fee to use it. But they didn't, and I'm not aware of any other patents which do apply to modelling.

 

That leaves us with Design Right. As the name suggests, Design Right applies to designs, and in law this specifically means three-dimensional designs - eg, physical objects - in most cases. There are two forms of Design Right: Unregistered Design Right and Registered Design Right. Unregistered Design Right is, like copyright, automatic and applies to any original design. Registered Design Right requires the design to be registered (obviously!) and is the design equivalent of a trademark - it doesn't exist unless it is registered, but once it is registered it gives stronger rights than the automatic rights offered by unregistered design right. A model could, therefore, be subject to design right which would legally protect it from copying.

 

However - and this is the biggie, in this context - design right (either unregistered or registered) only applies to things that are new and don't look like anything else which currently exists. This could apply to some models - it would apply to these, for example - but it can't apply to scale models of real prototypes because the design in question belongs to the original, not the model. In fact, the better a scale model is, the less original it is, in terms of design - Hornby tinplate models might have qualified as original designs, but their Devon Belle Pullman Car certainly doesn't. It's worth noting here that size doesn't affect design - otherwise, if making something a bit smaller made it an original, then someone could create an identikit Coca-Cola bottle (which is a registered design) that's just a bit smaller than the real thing and claim that they're not infringing because it's a different size. Instead, the design is inherent in the overall shape and proportion of the object, and anything that's the same shape and proportion is the same design even if it's an order of magnitude bigger or smaller. For the same reason, souvenir sellers can't sell miniatures of The Angel of the North without permission, as that's an original design. But, by the same token, a model of a Class 66 has the same design as a full-size Class 66 and therefore is not original and not subject to design right in itself

 

Having said that, models don't appear ex nihilo. The model itself may not be subject to design right, but the moulds which created it are, and the CAD/CAM drawings used to create the moulds are subject to copyright. So creating a copy in a way which involved reproducing either of those would be at risk of infringement. A commercial rival of a manufacturer, therefore, could be in danger of litigation if they made models which were clearly copies, as it would be at risk of infringing on the IP in the underlying mechanism used to create them. The only certain way to avoid that would be to make their own CAD/CAM drawings and create their own moulds - but if they do that, then it's not a copy anyway. For the scratchbuilder/hobbyist, though, there's no possibility of infringing any design right by copying a commercial model of a real prototype as the methods used by individuals are so different to those involved in mass production that no IP is being copied in order to copy the model.

 

Where the scratchbuilder might be in breach of design right, of course, is in the design of the original prototype. And that's not a theoretical issue - even though the overall shape of the original may not be particularly original, the livery applied to it almost certainly consists of registered designs and trademarks, so if you scratchbuild a Class 66 and paint it in Railfreight livery then you're infringing the IP of Railfreight. In practice, the chances of being sued are so close to zero as to be disregarded (since you can't be causing them any financial loss and hence they've got nothing worthwhile to sue you for), but it is nonetheless a technical breach. If you're prepared to disregard this, though (and I'm pretty sure that all of us are), then you'd have even less reason to avoid copying commercial models if you want to.

 

One final point about Design Right: Unlike copyright, which lasts for ages (70 years after the death of the creator, usually), Design Right has a very limited term. In most cases, it only lasts a maximum of 15 years from creation or 10 years from first marketing, and never lasts more than 25. So anything first manufactured before 2000 in most cases, or 1985 in extremis, can be copied entirely legitimately - even commercially, if you want, provided that you don't infringe any other, longer-lasting IP such as trademarks. So you could, for example, set up a factory to manufacture identical copies of the ex-Dapol products now manufactured by Hornby, as the moulds used to create them are all out of design right by now. The same applies to most of the products formerly manufactured by Lima and Airfix and anything by Bachmann from the former Mainline range. Maybe a business opportunity there for someone?

 

Mark

[Happy Hippo]

All this chat about copying is all very well, but ask yourself this:

 

How many of you have actually sat down drawn up a narrow gauge wagon. Then cut out all the woden parts, and then drawn out and made the masters for the brass castings. Designed and paid for the mould for an injection moulded curly spoke wheel, added steel rims to same and mounted them on axles. Then you've sat down and wrote up a set of instructions, then packed these into bags and boxes and advertised them for sale?

 

Then having sold a few as kits, suddenly find some nice kind person starts producing an identical kit from white metal in the USA at half the price?

 

I have!

 

All that time and effort and then see someone else making money by blatently ripping off my work does not endear me to him/them. And there was not a thing I could do about it.

 

Sorry, if I appear a little bitter and twisted, but as far as I am concerned, copying commercial parts without the permission of the originator is the province of...........I will let you insert your own choice phrase of derision.

 

Rant over

 

Regards

 

HH

[spamcan61]

HI

Peter waterman a few month ago in Model Rail mag go on about this ,don't know who he was having a go at?

 

Yes, having read the piece I thought ' either pee or get off the pot ' i.e. name the company. He could almost certainly afford a much better lawyer than whatever company he was having a pop at; I don't have a clue either.

[Leicester Thumper]

sorry late in topic, but here's something of interest:

 

in terms of copyright, Fender, the famous guitar making company, took many manufacturers of guitars, including encore, gibson, ibanez, etc, to court over the copyright of the Stratocaster design. The lawyers for the other companies did their bit and then the Judge said that Fender were in the wrong, they couldn't win.

 

The design has been copied ever since the 1950's when the design originated, on many thousands of occasions. It's easy to see this, in the 70's, walk into a shop, walk out with a Yamaha copy of the Strat, today, i walk in the music shop, i can pick up a cruddy Strat for £100. like we said, the car parts are a similar thing, there's probably about 200 factories (maybe slight over exaggeration) in china reproducing exhuast systems for bloomin' corsa's and dang fiesta's, see ford and GM kicking up a fuss? however that is patents, a different issue, though similar.

 

thing is i think its about time that the copyright laws, particularly in the UK were cleared up and sorted out, because, who makes the spare bits for Hornby Minitrix N gauge? Lima N? the Peco Jubilee? AFAIK, No one, if i technically made those parts myself and sold them i would be legally allowed to be thrown in jail, but i'd do it cos i was serving the modelling community, not for the fact i was set out to make money. if i did say mass produce parts for the Hornby Minitrix range, would anyone complain? the copyrifght on those products must be well.... well... dimished, i suppose...

 

i don't know maybe i'm wrong? but i thought i'd chip in my two cents there,

 

LT

[MarkSG]

thing is i think its about time that the copyright laws, particularly in the UK were cleared up and sorted out, because, who makes the spare bits for Hornby Minitrix N gauge? Lima N? the Peco Jubilee? AFAIK, No one, if i technically made those parts myself and sold them i would be legally allowed to be thrown in jail, but i'd do it cos i was serving the modelling community, not for the fact i was set out to make money. if i did say mass produce parts for the Hornby Minitrix range, would anyone complain? the copyrifght on those products must be well.... well... dimished, i suppose...

 

i don't know maybe i'm wrong? but i thought i'd chip in my two cents there,

 

LT

 

Actually, you are wrong, in this case

 

Third party manufacture of spare parts and/or accessories for an existing product is definitely permitted. There is clear case law on this, and the ruling is that manufacturers of a product cannot prevent others making parts or equipment to fit it unless they have a patent on the parts in question. And there's precedent for this in the modelling community anyway; there are plenty of niche manufacturers such as Romford who make at least part of their income from providing spares and/or replacement parts to fit RTR models.

 

Mark

[Leicester Thumper]

Actually, you are wrong, in this case

 

Third party manufacture of spare parts and/or accessories for an existing product is definitely permitted. There is clear case law on this, and the ruling is that manufacturers of a product cannot prevent others making parts or equipment to fit it unless they have a patent on the parts in question. And there's precedent for this in the modelling community anyway; there are plenty of niche manufacturers such as Romford who make at least part of their income from providing spares and/or replacement parts to fit RTR models.

 

Mark

 

this is where i go a bit dumb..... lol

 

so if i reproduced and manufactured parts for the aforemention products, would i need the patents to do it?

[MarkSG]

All that time and effort and then see someone else making money by blatently ripping off my work does not endear me to him/them. And there was not a thing I could do about it.

 

That's the point, though. There's nothing you could do about it, because the law is on the side of your competitor in this case.

 

Whether or not it's a good thing that copying physical objects is generally permissible in law is a different argument. I can certainly understand how you feel, having been in a situation where you lost out commercially because of it. But, on the other hand, if manufacturers could stop their competitors from making anything that the same as their own products then it would give carte blanche to the unscrupulous to set themselves up as monopoly suppliers of a product at inflated prices. The purpose of Intellectual Property law isn't just to protect the interests of the producers (many in the music industry seem to be under the impression that it is, but that's a different argument for a different place!), it's also to protect the interests of consumers. And consumers are, on the whole, best served by allowing producers to compete on price for the same or similar products. As someone who makes his living in the commercial world, I'm acutely aware of that - if someone comes along and does what we do better than we do, then I'm out of a job. But that's the reality of competing in a commercial environment. None of us has an automatic right to be successful.

 

Mark

[MarkSG]

this is where i go a bit dumb..... lol

 

so if i reproduced and manufactured parts for the aforemention products, would i need the patents to do it?

 

No. Patents have nothing to do with it, in this context.

 

A patent is a specific type of protection applied to an invention. To be an invention, it doesn't merely need to look different to existing products, it has to do something that's not been done before (or do something in a way that hasn't been done before). It's not the same as copyright or design right, which is what this topic is about.

 

Where a patent could come into it is if a manufacturer invented something new and patented it. If, say, Bachmann came up with a totally new type of coupling for OO models, then they could patent it and non-one else would be able to manufacture it without a licence. But, as it happens, all the main RTR manufacturers use Hornby-style couplings, without needing to ask permission from Hornby, because Hornby don't have a patent on them and any design right in them will have long-since expired.

 

Mark

[Leicester Thumper]

thanks for that clarification Mark

 

LT

[karabuni]

Yup, etched artwork is protected just like a drawing or picture by the design copyright laws, but there is nothing to stop you redrawing the artwork using the original for dimensions, just as you can redraw a drawing then do with it as you will. So I can't scan a Roche and distribute or sell it without getting into trouble, but if I import it into Autocad and trace over the top, then the resulting image is mine, and I could distribute or sell it willy-nilly. Legal yes, moral???

 

You might want to find out if is a correct scale drawing before spending much time on it.

 

 

Quite a while ago now, we asked British Rail (Derby, I think) if they could supply a drawing of a particular wagon. The reply came, not from them, but from "Trainlines of Britain" who apparently had some sort of deal with BR to charge commission per kit, if BR drawings were used to "design" it. We didn't take up their offer, but took photos instead.

 

It would seem that the area which would be protected from copying, would be the way the model is "constructed" from its components, which would incorporate elements peculiar to a model, in that it is not being fabricated from sheets of metal on a frame etc., but from various plastic mouldings which by their nature would generally be fairly unique, and possibly covered by design rights. Copying these mouldings would be getting pretty close to "passing off", as someone might be fooled into thinking that it was a product of the original manufacturer. (As opposed to the manufacturer using a kit in their catalogue to portray a forthcoming RTR model)

 

The chances of a modified model infringing anything seem slim - otherwise no weathering or repainting of a commercial offering then? Just as slim as encountering secret agents from the "Railway Modeller" looking for tatty copies being sold by "way of trade" or whatever it used to say in said journal.

 

Of course there are always people out for a quick buck, see: Apple, Google, world+dog named in mobile patent suit.

 

Barry,

Cambrian Models