Witnesses
8.Response relied on two witnesses of fact. One was Faisal Patel, the sole director and shareholder of Response. He was a good witness, I believe doing his best to give honest and accurate answers. There was also a witness statement from Ray Park, President of GIN Textile Inc, a South Korean manufacturer of fabrics (‘GIN Textile’). Mr Park did not attend at trial, but a Civil Evidence Act Notice was filed. 9.Three witnesses of fact attended on behalf of EWM. They were Jason Anderson, Managing Director of EWM, Jean Paul Chan, country manager of EWM responsible for Bangladesh and Alizon Blythe, senior ladieswear buyer for EWM. Mr Anderson and Mr Chan were both good witnesses. Ms Blythe was shown in cross-examination to be sometimes willing to make assertions about matters outside her knowledge. There were also witness statements from Chen Shen of China Ningbo International Co. Limited (‘China Ningbo’), a fabric mill in China, and from Shen Qiang, Deputy Manager of Sinotex Corporation Limited, a clothing manufacturer in China. Mr Chen’s and Mr Shen’s witness statements were filed with Civil Evidence Act Notices. 10.Response’s expert witness was Victor Herbert. Mr Herbert is, among other things, a designer and design consultant with considerable experience in the design of fabrics and fashion garments. Alexander MacLellan, EWM’s expert, has over 40 years’ experience in the design of textiles and has taught fashion at the Chelsea School of Art and The Royal College of Art and at fashion institutes in Italy. Both experts provided helpful answers to all the questions put to them. 11.12.In a reply to a Part 18 Request, Response repeated its assertion that the work was either a graphic work or a work of artistic craftsmanship, but added this: “The Claimant understands that the work was created on the loom by the weaver and is therefore a product of craftsmanship. The narrative details of its creation are a matter of evidence and in any event, the Claimant has not been able to obtain further information from GIN Textile at this time for the reasons set out at length above.” 13.14.Notwithstanding the answer given to the Part 18 Request, Mr Smith maintained the case based on a graphic work. He argued that the Wave Fabric qualified as such. 15.A graphic work within the meaning of s.4(1)(a) of the Copyright, Designs and Patents Act 1988 (‘the 1988 Act’), as defined in s.4(2): “(2) In this Part –
…
‘graphic work’ includes – (a)
any painting, drawing, diagram, map, chart or plan, and (b)any engraving, etching, lithograph, woodcut or similar work;” 16.It is true, as Mr Smith said, that the statute defines ‘graphic work’ to include the types of work listed and the list is therefore not exhaustive. It does not follow that the definition is endlessly flexible. All the examples of a graphic work set out in the subsection are created by the author making marks on a substrate to generate an image. I do not think that the definition of a graphic work can be stretched to include a fabric, whether made on a loom or a knitting machine. 17.The author of the Wave Fabric was never identified and there was no evidence as to what he or she did in creating it. In his supplemental report Mr MacLennan, EWM’s expert, speculated that the designer had first created a freehand drawing of the Wave Arrangement design. Mr Herbert, Response’s expert, said in cross-examination that the designer would not sketch a technical design such as that used on the Wave Fabric and that it would have been created first on the machine making the fabric. 18.