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Taylor v Maguire  EWHC 3804 (IPEC),  All ER (D) 43 (Dec) is a High Court IPEC case. It shows interesting unsuccessful use of the educational defence.
The claimant was an artist working in the medium of papercutting. She exhibited and sold her works from a Facebook page and had been commissioned to produce marketing works for the US chain Pottery Barn. The defendant also produced various papercutting works that she exhibited and had sold from a Facebook page.
The claimant claimed that the defendant had infringed her copyright in various original artistic works. The defendant denied this, contending that the works complained of were original artistic works independently created by her and her minor daughter. As well as claiming a lack of originality and substantial similarity, the defendant relied on the educational defence contained in the Copyright Designs and Patents Act 1988 (CDPA 1988).
The claimant successfully sought an injunction preventing further infringement and destruction of infringing works, among other remedies.
How did the court deal with subsistence of copyright?
The court continued with the emerging two pronged test (or are they parallel tests?) for copyright subsistence by covering both the ‘skill and labour’ and the ‘author’s own intellectual creation’ tests. In the space of two paragraphs, the court stated: ‘an original artistic work is a work in which the author/artist has made an original contribution in creating it – for example by applying intellectual effort in its creation’ (para 6). And “For an artistic work to be original it must have been produced as the result of independent skill and labour by the artist” (para 7)
We are told that the outcome should be the same using either test, by Mrs Justice Proudman who caused all the commotion in November 2010 in the High Court Newspaper Licensing Agency v Meltwater Holding BV  EWHC 3099 (Ch) case (85 of the judgment) but who had pulled back from this approach by the time she heard Future Publishing Ltd v Edge Interactive Media  EWHC 1489 (Ch) June 2011, in June 2011.
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