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Trial and error

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technical & practice

The expert witness in a 'copying' scandal is found not guilty of misconduct. What does that say about the original ruling?

Part 35 of the Civil Procedure Rules.

Wilkey had no opportunity to address the judge's concerns before the judgement was delivered. He was allowed to make written representations on why he should not be reported to his professional body (the ARB), but the judge effectively rejected these and caused him to be reported by solicitors acting for Koolhaas and others.

With his professional reputation heavily damaged, Wilkey defended the charges of professional incompetence and misconduct. His defence involved addressing the House of Lords case, Designers Guild v Russell Williams, 2001 [ECDR 10 (HL)]. The submissions relied on the judgement of Lord Millett by means of a series of propositions from his judgement:

'An action for infringement of artistic copyright is very different' to one of passing off.

'The gist of an action for passing off is deceptive resemblance and a visual comparison is often all that is required'.

'An action for the infringement of artistic copyright is not concerned with the appearance of the defendant's work but with its derivation'.

'The reproduction may be exact or it may introduce deliberate variations - involving altered copying or colourable imitation as it is sometimes called'.

'Even where the copying is exact, the defendant may incorporate the copied features into a larger work, much and perhaps most of which is original or derived from other sources'.

'But while the copied features must be a substantial part of the copyright work, they need not form a substantial part of the defendant's work'.

'Thus, the overall appearance of the defendant's work may be very different from the copyright work. But it does not follow that the defendant's work does not infringe the plaintiff 's copyright'.

'The first step in an action for infringement of copyright is to identify those features of the defendant's design that the plaintiff alleges have been copied from the copyright work'.

'The court undertakes a visual comparison of the two designs, noting similarities and differences'.

'The purpose of the examination is not to see whether the overall appearance of the two designs is similar, but to judge whether the particular similarities relied on are sufficiently close, numerous or extensive to be more likely to be the result of copying than of coincidence'.

'If the plaintiff demonstrates sufficient similarity, not in the works as a whole but in the features he alleges have been copied, and establishes that the defendant had prior access to the copyright work, the burden passes to the defendant to satisfy the judge that, despite the similarities, they did not result from copying.'

Mr Justice Jacob was reluctant to view the case as one of plan-to-plan copying. Having ordered a site visit to the Kunsthal (against opposition from Pearce), the judge and parties went on what was no doubt an expensive visit.

The judge criticised Wilkey for not having expressly stated in his report that he had not visited the Kunsthal, saying, 'after all, it was clear that its design as a 3D building was central to the case'. Wilkey, however, asserted that such a statement was unjustified, and claimed that no reasonable reading of his report could have suggested he had visited the Kunsthal, and since this was a case of plan-to-plan copying, it was unnecessary for him to have done so.

Following the visit, Mr Justice Jacob stated: 'The buildings are simply nothing like each other.' That indicated an approach to the case akin to one for passing off, not copyright infringement. He also said: 'There is no accidental copying here. It is all or nothing. If it is all, then he was lying.

That is a matter for me. And [project architect, Fuminori] Hoshino.'

The ARB tribunal suggested that, with the benefit of hindsight, Wilkey (when asked to accept that a witness who asserted copying had not taken place was thereby lying) might have said: 'That is not a matter for me as an expert witness. I do not think I should answer the question.' But one must question whether an expert witness in Wilkey's position would have been allowed to deal with that line of questioning in that way.

The verdict After a two-day contested hearing, all charges of professional incompetence and professional misconduct against Wilkey were unanimously dismissed by the ARB disciplinary tribunal and he was found not guilty.

Philip Newman is a barrister and represented Michael Wilkey at the ARB hearing

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