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3 - Before and after Designers Guild: Another Look at Appellate Deference in New Zealand’s Copyright Law

from A - Forms and Institutions

Published online by Cambridge University Press:  29 December 2020

Niklas Bruun
Affiliation:
Hanken School of Economics (Finland)
Graeme B. Dinwoodie
Affiliation:
Chicago-Kent College of Law
Marianne Levin
Affiliation:
Stockholm University Department of Law
Ansgar Ohly
Affiliation:
Ludwig Maximilian University of Munich Faculty of Law
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Summary

In Designers Guild Ltd v. Russell Williams (Textiles) Ltd,2 the House of Lords held that the Court of Appeal had erred by assessing anew the decision of the trial judge as to the substantiality of the defendant’s copying of the plaintiff’s fabric and wallpaper designs. As Lord Hoffmann explained, because that decision involved “the application of a not altogether precise legal standard to a combination of features of varying importance,” analysis of substantial copying “falls within the class of case in which an appellate court should not reverse a judge’s decision unless [the judge] has erred in principle.”3 Their Lordships agreed that there had been no such error. The New Zealand Supreme Court endorsed this approach in 2006. Citing Designers Guild, it said: “[I]t is appropriate for appellate Courts to give the trial judge’s assessment the degree of latitude that conventionally applies to appellate review of a discretion.”4

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Transition and Coherence in Intellectual Property Law
Essays in Honour of Annette Kur
, pp. 46 - 55
Publisher: Cambridge University Press
Print publication year: 2021

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