JPG Enterprise Pte Ltd v Hairspec Private Limited
Jurisdiction | Singapore |
Judge | Vince Gui |
Judgment Date | 14 January 2020 |
Neutral Citation | [2020] SGDC 12 |
Court | District Court (Singapore) |
Docket Number | District Court Summons No 3066 of 2019 in District Court Suit No 1441 of 2019 |
Published date | 13 March 2020 |
Year | 2020 |
Hearing Date | 29 October 2019,22 November 2019 |
Plaintiff Counsel | Arivanantham s\o Krishnan and Chong Yew Meng Luke (Ari Goh & Partners) |
Defendant Counsel | Tan Teck San Kelvin and Choy Wai Kit Victor (Drew & Napier LLC) |
Subject Matter | Civil Procedure,Pleadings,Striking out,Whether supporting evidence required to resist striking out application,Copyright,Subject matter,Literary works,Whether advertisement lacks originality,Whether work too short to warrant copyright protection,Subsistence of copyright,Whether prior publications preclude copyright protection,Evidence,Proof of Evidence,Proving historical contents of webpage |
Citation | [2020] SGDC 12 |
This action arose from a dispute between two competing hair salons offering hair replacement services. The Plaintiff, JPG Enterprise Pte Ltd, sued the Defendant, Hairspec Private Limited, for copyright infringement. The Plaintiff alleged that the Defendant had unlawfully reproduced an advertorial write-up authored by the Plaintiff. The Defendant brought this application to strike out the Plaintiff’s claim on the basis that the write-up lacked the requisite originality to warrant copyright protection. After hearing parties, I dismissed the application on the basis that there were triable issues. The Defendant has appealed against my decision. I now deliver the written grounds of my decision, beginning with a brief summary of the facts.
Background factsBoth parties used the same write-up to promote and advertise a hair replacement service on their respective websites. The Plaintiff’s write-up reads:1
Our unique and revolutionary hair system is undetectable and the latest in hair loss solutions. It consists of human hair that has been implanted into a micro-thin layer of artificial skin. We then gently bond this artificial skin with the implanted hair onto your scalp. The whole procedure is pain-free, non-surgical and takes less than 90 minutes.
An identically worded write-up was published on the Defendant’s website, save that the phrase “90 mins” reads “60 mins”.2 For ease of reference, I shall refer to the write-ups published on the Plaintiff’s and the Defendant’s website as the “Plaintiff’s Advertisement” and “Defendant’s Advertisement”.
The hair replacement service essentially entails the implantation of hair onto the customer’s scalp. The salient features of the treatment process was described as follows:3
The Plaintiff claims that it was the original author of the Plaintiff’s Advertisement. Its pleaded case is that the Plaintiff’s Advertisement was drafted, selected and arranged by its director through his skill, labour and independent judgment, and was first published on its website in or around May 2015.4 According to the Defendant, the Defendant’s Advertisement was first published in or around March or April 2017.5 Upon discovering that the Defendant’s Advertisement was a replica of the Plaintiff’s Advertisement, the Plaintiff commenced this action for copyright infringement.
Parties’ submissions The Defendant’s striking out application was initially brought under all four limbs of O 18 r 19(1)(
In its written submissions, the Plaintiff argued that originality does not equate to a finding of novelty.10 At the hearing, counsel for the Plaintiff, Mr Arivanantham s\o Krishnan (“Mr Arivanantham”) argued that the question of originality was not suitable for summary determination. In this regard, he argued that striking out its claim now would deny the Plaintiff the opportunity to cross-examine the authors of the prior works cited by the Defendant, which could shed light on whether those prior works themselves could possibly warrant copyright protection. In addition, he put the Defendant to strict proof of the authenticity of the prior works. He sought to distinguish the Plaintiff’s Advertisement from short, descriptive phrases found by courts to have fallen short of the threshold of originality. He further argued that the affidavit averment on authorship made by the Plaintiff’s director is sufficient to resist a striking out application.
General legal principles on striking out applications The power to strike out pleadings is a draconian one which should not be exercised unless the claim is wholly devoid of merit (
To strike out a claim under O 18 r 19(1)(
To strike out a claim under O 18 r 19(1)(
Originality is the touchstone of copyright. Copyright protection may only be conferred upon “original” works. To qualify as an original work, the claimant has to establish two key matters:
With the general principles in mind, I turn to address each of the Defendant’s contentions in sequence.
Discussion Do the prior publications preclude copyright protection?The Defendant relied on prior publications to defeat the Plaintiff’s claim of originality. In this regard, the Defendant exhibited copies of at least four (4) identically worded write-ups on the internet used by hair salons, manufacturers or suppliers to describe, market or advertise what appears to be the same treatment offered by the Plaintiff and the Defendant. The four write-ups were purportedly published within the period of one year prior to the publication of the Plaintiff’s Advertisement.
To my mind, two issues emerge for consideration. Does the mere existence of a prior publication preclude an author of a subsequent publication from asserting copyright? If not, are prior publications nevertheless relevant to the assessment of originality?
Originality does not mean novelty In my view, the starting point of the analysis should be that a prior publication does not
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