#19694 - 5. Copyright - Intellectual Property Law

IP WEEK 5 – COPYRIGHT

Subject matter and Criteria for protection

Justifications of copyright

1. Natural rights

Intellectual production emanates from the mind of an individual author

Right over the product of one’s labour (locke) – author’s property

Positive law; potentially leading to stronger protection of the author

Critics:

• Social nature of creation vs. individual author

• Reworking on existing ideas and weakening the ownership claim

2. Reward

Reward for creating work and giving it to the public; an end in itself.

Critics

• Too many rewards, low bar

• Is a reward an exclusive right?

• Surely there are other types of rewards other than copyright.

3. Incentive based theory

Good for society – a means to an end, utilitarian arguments

incentive to produce and disseminate, correct market failure

hard to produce, but easy to copy; rectify market failure

critics:

• Creativity without incentive of copyright as a reality

• Exclusive property rights impose costs to the users

• What is optimal?

4. Neoliberal economics

Eight categories of work protected by copyright law

1. Literary works

2. Dramatic works

3. Musical works

4. Artistic works

5. Films

6. Sound recordings

7. Broadcasts

8. Published editions (or typographical works)

   1. Newspapers, magazines, books

   2. Page numbers?

*Individual tangible objects may embody a number of different copyright works.

- eg. newspapers might contain a literary work, artistic work and typographical arrangement

All types of subject matter protected are called ‘works’

• Different to France’s stance which distinguishes ‘authors’ rights’ and ‘neighbouring rights’ or entrepreneurial works.

• These distinctions are also reflected in intl conventions

The eight categories are seemingly an exhaustive list – little opportunity for the courts to recognize new forms of subject matter.

• Creation Records v News Group [1977]– in preparation for a production of the cover for Oasis’s album, a photographer from D’s newspaper was present and took a photograph of the scene which was to be used as the album cover. The record company sought an injunction alleging infringement of copyright.

  • The claim failed because it did not fall within the meaning of any of the eight categories.

  • It was neither an artistic work nor a dramatic work.

EU Directives by CJEU’s interpretation challenges the notion of a closed list. The court takes the view that work is an autonomous concept of EU law (Levola Hengelo BV v Smilde Foods BV)… nevertheless, the clear implication = no room for any additional criteria (?)

The CoJ has defined ‘Work’ (by the EU’s definition) = has three components (Levola Hengelo BV v Smilde Foods BV) in accordance with the Directive 2001/29

1. There must exist an original subject matter, in the sense of being the author’s own intellectual creation

   1. Originality (football match not a work)

2. It must be an expression of such creation

   1. Excluding certain clothing designs… (Cofemel – Sociedad de Vestuário SA v G-Star Raw CV)

   2. Excluding recipes…. (Levola Hengelo BV v Smilde Foods BV)

3. The subject matter should be identifiable with clarity and precision

   1. Third parties (competitors) need to be able to identify clearly and precisely the subject matter

   2. Excludes subjectivity – tatse is perceived by the consumer of the cheese, and this experience is subjective thus taste cannot satisfy the requirement of a ‘work’

SAS Institute v World Programming [2013] EWHC 69– Arnold J insisted that while a scientific theory might be an intellectual creation, it would not in itself be a work

• Likewise, a computer language, being a system of rules for the generation and recognition of meaningful statements is not a work albeit an intellectual creation.

(Critique of CJEU - depriving copyright law of any principle to limit its domain as it merges the concept of work with that of its originality)

Post-Brexit

• Following general principles of EU law, the terms of a UK statute still has to be read as far as possible to reflect the EU principle that: anything constituting an ‘identifiable expression of intellectual creation’ should be protected

• Broad reading to ensure the protection…

• ‘Work of artistic craftsmanship’ broadly interpreted in light of CJEU jurisprudence

  • Response Clothing Ltd v The Edinburgh Woollen Mill Ltd [2020] EWHC 148)

• Principle of supremacy still applies.

• Exhaustive lists of protectable subject matter are incompatible with EU law (SAS Institute v World Programming [2013] EWHC 69)

MOVING FORWARD…

1. Literary works

s.3(1) CDPA 1988 –

not limited to works of literature

• Include works expressed in print/writing (other than dramatic or musical works)

• Writing includes symbols and numerals.

• Novels, poems, song lyrics, advertising slogans, railway timetables, examination papers (University of London Press v University Tutorial Press [1916] 2 Ch 601)

• Works that are spoken meaning spontaneous conversations, interviews – however copyright does not subsist in spoken word unless recorded.

Hollinrake v Truswell [1894] (test)

• To qualify a book as a literary work, it must afford ‘either information and instruction, or pleasure, in the form of literary enjoyment’

Must be capable of conveying an intelligible meaning – low threshold

• Sufficient that the work is understood by limited group with special knowledge

• Telegraphic code even if the words of the code were meaningless in itself (DP Anderson v Lieber Code Company [1917])

  • Work cannot be meaningless or gibberish

Names & invented words

• EXXON (as a company name) conveyed no information and will not be protected as a literary work, but possibly for other grounds (Exxon Corp v Exxon Insurance [1982])

• Inconvenience would arise if someone were able to control in which certain words/phrases were used (eg. in newspapers, campaign literature, broadcasts)

• Adequately protected by passing off, trade mark law, and artistic copyright.

Titles & Headlines

• Similar approach to names

Tables and Compilations (other than databases)

• Databases are a separate type of literary work subject to a distinct requirement of originality

Computer Programs

• Gates v Swift [1982] – computer programs ought to be protected as literary works by copyright law.

• 1988 Act does not define a computer program, but it includes: source code, assembly code, object code, instructions permanently wired into an integrated circuit (aka. Firmware)

• Computer program is not synonymous as software.

• ‘The expression in any form of a computer program which permits reproduction in different computer languages, such as the source code and object code’ (Bezpecnostní sofwarová asociace Case C-393/09 [2010])

Preparatory design material for computer programs (should it be part of the computer program?)

Databases

• Distinct class of literary works as amended from 1998 January to comply with the Database Directive

• Defined broadly ‘collection of independent works, data, or other materials which (a) are arranged in a systemic / methodical way, and (b) are individually accessible by electronic or other means’

• Covers most material previously protected as tables and compilations…

• CJEU – ‘wide scope, unencumbered by considerations of a formal, technical or material nature’ (Fixtures Marketing v OPAP, Case C-444/02 [2004])

  • Collection of sporting information can be a database

2. Dramatic works

CDPA 1988 – includes a work of dance or mime

• It must be a work of action that is capable of being performed (Norowzian v Arks (no. 2) [2000] EMLR 67)

• A film will be a dramatic work where there has been ‘cinematographic work’ on the film (Norowzian v Arks (no. 2) [2000] EMLR 67)

Includes:

• Scenario and Script for films, plays (written for the theatre, cinema, tv or radio)

• Choreographic works

• In some limited circumstances, sports (gymnastics and synchronized swimming)

Does not include static objects, sets, scenery, or costumes (although these may be protected under artistic works)

Hughie Green case (Green v Broadcasting Corp. of New Zealand [1989] RPC 469)

• Green was the originator and producer of a talent show that followed a particular format, certain catchphrases were used, sponsors introduced contestants… content of the show varied show to show.

• A broadcasting corporation in NZ broadcasted a TV Talent quest which was similar in the title and catchphrases

• Action failed

  • Unable to show as a dramatic work – show lacked specificity or detail for it to be performed.

  • Scripts provided only a general idea/concept of a talent quest, which is not capable of being protected.

  • Dramatic work must have sufficient unity for it to be capable of being performed – features of the program that were repeated in each show were not dramatic works (format/style of the show were held to be accessories to be used in the presentation of some other dramatic performance)

Criticism to this ruling – fails to provide sufficient incentive to tv producers… formats require creative input similar to that involved in existing copyright works.

• Opposed to format rights – problems of defining ‘format’, anticompetitive effects, costs of such rights, including the potential for nuisance litigation

Unity –

• Interactive videogames are not dramatic works (Nova Productions v Mazooma Games)

  • Involved artistic works and literary works

• Also precludes protection of an elaborated idea of having a group of musicians in formal attire, playing music not written for the ukulele on that instrument (The Ukulele Orchestra of Great Britain v Clausen [2015] EWHC 1772)

• If work lacked ‘unity’, a vast array of alternative performances would infringe

Norowizian v Arks

• Whether a Guiness advertisement had infringed...