Siti Norma Yaakob J:

Nine questions of law were argued before me as preliminary issues arising from two consolidated suits brought by the plaintiffs against the defendant to enforce their copyright in certain artistic works relating to a type of pump known as the "slurry pump", which is designed, manufactured and distributed by the plaintiffs worldwide. Slurry pumps are mining equipments used to transport bulk materials such as coal, sand and gravel suspended in a fluid and flowing in a system of pipes.

The plaintiffs are Australian-based companies and in the lead action 1357, they allege that the defendant, a company incorporated in Malaysia, are reproducing slurry pump parts which are copies of the plaintiffs' slurry pump parts and engineering drawings of the same, with the intention to distribute their products by sale to the public. In the other action 1515, the plaintiffs allege that the defendant are reproducing certain moulds identical to moulds used by the plaintiffs to make the slurry pump parts.

It is the plaintiffs' case that they have not given their consent or licence to the defendant to copy, reproduce or manufacture any slurry pump part or mould and any attempt by the defendant to indirectly copy, reproduce or manufacture any pump part or mould by a process known as "reverse engineering" is an infringement of the plaintiffs' copyright to the engineering drawings relating to such parts and moulds and the 3 dimensional form of the plaintiffs' slurry pump parts and moulds.

In denying any wrong doing, the defendant have pleaded that since they are not copying any of the plaintiffs' engineering drawings to reproduce the pump parts and moulds, reproducing such pump parts and moulds by way of reverse engineering does not amount to an infringement of either the plaintiffs' copyright to the engineering drawings relating to the pump parts and moulds or the 3 dimensional form of the plaintiffs' slurry pump parts and moulds.

With that brief background as to what is actually in issue, I shall now turn to the nine questions that have been posed to me, three of which come under the heading of Copyright, two under Infringement, two more under Enforcement and the last two under the Copyright (Application To Other Countries) Regulations 1990.

Copyright

Question 1 Are engineering drawings (2 dimensional) capable of being eligible for copyright under the Copyright Act 1987 as "artistic works"?

Section 7 of the Copyright Act 1987, deals specifically with works that are eligible for copyright protection, and sub-section (1)(c) of the same section identifies artistic works as being one of such works.

Section 3 of the same Act defines artistic work to include paintings, drawings, etchings, lithographs, woodcuts, engravings and prints and any three dimensional work thereof. From this definition, it is clear that s. 3 does not qualify the type of drawings eligible for protection and because of this, the plaintiffs contend that engineering drawings of the pump parts and moulds fall within the category of drawings and are, therefore, within the definition of artistic work under s. 3 read together with s. 7(1)(c) of the Act.

The defendant, on the other hand, argues that because drawings have been placed in the same category as paintings and other forms of fine art, there must be read into it an artistic quality to qualify to the meaning of artistic work. To that end, they contend that engineering drawings which have no eye appeal whatsoever, cannot be regarded as artistic works as by their very nature, they deal with shapes, configurations, dimensions and measurements which are contributed by the skill and labour of the design engineer and not by the draftsman.

Two cases concerning infringement of copyright of engineering drawings through the process of reverse engineering were cited to show just how the English Courts deal with issues of this nature.

In British Northrop Ltd. v. Texteam Blackburn Ltd. [1974] RPC 57, the