Country: GB
Tribunal: House of Lords
Date: 27/2/86
Case No.: --
Parties: British Leyland Motor Corp Ltd v Armstrong Patents Co Ltd
Design: --
Citation(s): [1986] R.P.C. 279, [1986] UKHL 7
Author: David Musker, R G C Jenkins & Co

This was a copyright infringement action concerning the shape of an exhaust pipe. The plaintiff made cars and spare parts for them. They also licensed third parties to make spare parts for a royalty. The pipes were made from bend dimensions stored in a computer. There were simple drawings which also included text indicating the dimensions. The copyright in these drawings was said to be infringed. The defendant never saw those drawings, but reverse-engineered the claimant’s exhaust pipe, and made a substitute. They did not want to take a licence. The evidence showed that at that time, exhaust pipes needed to be changed after 2 years, well before the rest of the car needed repair, and this was known to manufacturers. The case was appealed to the House of Lords. During that appeal, it was known that the Government was planning to reform copyright law. The new law emerged in 1988. Thus, this case is no longer good law in the UK or the EU.

The defendant argued many points. Among them, the defendant tried to use the “implied licence” and “right to repair” arguments. The defendant also pointed out that since the spare part had to fit into the car, anyone wishing to compete was forced to copy some dimensions of the plaintiff’s exhaust pipe The plaintiff would thus have a true monopoly in the spare, not just a copyright. They also said that the spare was just one of many parts making up the article, and the spare part had no independent life of its own.

The Court found that copyright protection existed for such purely functional spare parts, lasting 50 years from the author’s death (longer than the protection for more artistic products). They were unhappy about that, but said that it was a matter for the Government to change the law, not the Courts. They held, however, that the person selling a complex, long lasting consumer product such as a vehicle could not refuse the customer the right to repair it, and that this principle of “non-derogation from grant” extended to third party manufacturers such as the defendant. It was not applicable to patents or registered designs, where the different and narrower principle of “implied licence” applied. The principle of “non-derogation from grant” has not been applied by Courts since then (e.g. in Canon Kabushiki Kaisha v. Green Cartridge Company (Hong Kong) Limited [1997] F.S.R. 817, Mars U.K. Ltd v. Teknowledge Ltd [2000] E.C.D.R. 99).

Relevance to the new laws
The case explains the concerns that led to the special treatment of spare parts both in the new UK legislation (removing copyright and substituting a new unregistered design right) and the new EU legislation (the must-fit clause, CDR Art. 7(2) and the “repair clause”, CDR Art. 110). In fact, the repair clause more or less follows the principle of “non-derogation from grant”.