Copying in substantial part
75.s.16(3)(a) of the 1988 Act, because of Directive 2001/29 and judgments of the CJEU. It was now necessary to show that the alleged infringer has taken the author’s intellectual creation, i.e. that part of the work which is original. He argued that Response had not identified the original part of the Wave Fabric and therefore could not establish infringement. 76.I accept Mr Harbottle’s submission as to the change in the law, but his argument presupposes that when the Wave Fabric was created, the employee of GIN Textile copied an earlier design to make part of the Wave Fabric, the remainder of which was the employee’s intellectual creation. This suggestion was not supported by evidence from either expert and I find it improbable. The design embodied in the Wave Fabric is of a nature such that it is likely to have been created by the employee as a unit of design which is repeated; if one had the patience it may be possible to spot the unit. There was discussion of this design approach by the experts. In other words, the design is of a nature which does not lend itself to the idea that some of it was copied and some of it was not. 77.The design of the Wave Fabric was not copied in every detail in any of the accused fabrics, but in each case it has been reproduced closely enough for a substantial part of the design of the Wave Fabric to have been copied. I am satisfied that in every case the intellectual creation of the unidentified GIN Textile employee was taken. The Visage, Cingo and Bengal Knittex Fabrics are all infringing copies of the Wave Fabric.