#19695 - 6. Moral Rights And Copyright On The Internet - Intellectual Property Law

WEEK 6

Copyright: Authorship, Ownership and Duration

Cases of importance

1. Noah v Shuba [1991] FSR 15

2. Hadley v Kemp [1999] EMLR 589

3. Brigid Foley v Ellott [1982] RPC 433

4. SGAE v Rafael Hotels Case C-306/05 [2006] ECR I

The moral rights attached to the protected types of work are attached to the author of the work in question

Authorship – the person who creates the work (Copyright, Designs and Patents Act 1988) (CDPA 1988)

• More than one person involved in the creation of the work – special provisions

• Few problems arise when ascertaining who the author is of most literary, dramatic, musical and artistic works

• More problems arise with the entrepreneurial works and computer generated works.

  • We don’t typically think of a sound recording, a typographical arrangement or broadcast as having an author

Sound recordings, broadcasts, typographical arrangements - The ‘author’ is effectively defined as a person who made the work possible (as distinct from the creator)

Literary dramatic musical artistic work that is computer-generated – the author is the person whom the arrangements necessary for the creation of the work are undertaken (ss. 9(4) CDPA 1988)

1988 Act sets out statutory presumptions

• Section 104 – the name appears on a literary dramatic musical and artistic work as published, or on the work when it is made, shall be presumed to be the author.

• Section 105 – similar presumptions with respect to sound recordings, films, computer programs

• Burden of proof – placed on the person claiming that someone other than the ‘named’ author is the true creator of the work in question

Literary, dramatic, musical, and Artistic works

• The person who creates it is the author – no further guidance in statute

  • Few problems in identifying the author anyway!

• Author need not necessarily be the person who fixes/records the work (s.3(2)), though this will usually be the case

• Essentially, for someone to be classified as author, it is necessary for them to be able to show their contribution to the work is of the type and amount protected by copyright

  • Contribution would be sufficient to confer ‘originality’ on the relevant work

  • Must contribute ‘skill, labour of the right kind’ (British test of originality)

  • Intellectual creation (European test)

• Unlikely that a Stenographer, an amanuensis or a person who merely photocopies/traces a work will be considered an author (Donoghue v Allied Newspapers [1938])

• Cummins v Bond [1927]– a spiritualist who produced automatic writing dictated to her from beyond the grave at a séance was the author of the resulting work. Great speed and skill translating the spiritual communication given in an unknown tongue meant she exercised skill labour and effort

• Ghost-writers – the telling of a person’s experiences in a resulting book are unlikely to satisfy authorship; rather the ghost-writer who determines the way in which the stories are expressed will be regarded in law as the author

  • Donoghue v Allied Newspapers [1938]; reporter was the author of stories about jockey Steve Donoghue’s life

• Celebrity Pictures v B. Hannah [2012]; general brief to a photographer as to the types of pose that the party commissioning the photographs wanted did not make that party a joint author

• Contributions to editing is not sufficient (Martin v Kogan [2017])

• The more specific the contribution, the more likely the person will be treated as the author (Donoghue v Allied Newspapers)

• A person who developed an idea for a house design explained in detail verbally and through sketches to a technical draftsman was a joint author of the plans (Cala Homes (South) v Alfred McAlpine Homes East [1995])

• A person who suggested the title, leading characters, a few catchwords, the scenic effects for the play had not contributed sufficiently to be treated as a joint author (Tate v Thomas [1921])

• Suggestions made to a director to a playwright for issues with the script encounted during rehearsals do not justify the director’s claim to co-authorship (Brighton v Jones [2005])

  • Interpretation and theatrical presentation do not count as sufficient contribution

Essentially: Expended labour does not necessarily mean the resulting work is original if it is the wrong type of contribution

Computer-generated works – no human author for the work

• Creator is the person by whom the arrangements necessary for the creation of the work are undertaken (s.178 CDPA)

• While the identification is circumstantial on the facts, it seems it might include the person who operates the computer, the person who puts inputs for the computer system, or even the programmer (Nova Productions v Mazooma Games [2006] EWHC 24)

  • Author of the computer-generated videogame is the author of graphics and software, not the player of the game

Unknown authorship

• Anonymously , false name , pseudonym – author acts as the focal point around which many of the rules of copyright are organised thus this creates issues!

• s.9(4) CDPA 1988– a work is a work of unknown authorship if the identity is unknown and it is not possible for a person to ascertain the author’s identity by reasonable inquiry

• CDPA 1988 s.12(3) – while the author remains the first copyright owner, since it is impossible when to know when the author of such work died, the duration of copyright is 70 years from the date on which the work was first made available to the public

Entrepreneurial Works – Statutory Authors

• Section 9(2) CDPA 1988 – defines who is the author of each different entrepreneurial work

• Sound recordings – the producer;

  • Section 3(2)(aa) – the producer is the author of a sound recording

  • The person by whom the arrangements necessary for making the sound recording are undertaken

  • Most often the record company; this may change where the sound recording is produced cooperatively or where non-traditional modes of distribution (internet) are used.

• Films – same as sound recordings before the Term Directive; authors of a film made after 1994 July are producer and principal director of the film.

  • Joint authors (except where they are the same person) (ss.9(2)(ab) and 10(1A) CDPA)

  • Hybrid of entrepreneurial and authorial works with the recognition of the principal director as author of a film

  • Principal director is defined as ‘the person who has creative control of the making of the film’

    • (Slater v Wimmer [2012] – the camera man in the scale film about a sky-diving on Everest)

  • Problems identifying authorship often are resolved through industry practice

  • S.105(6) adds that a person is named as the director of the film it is presumed they are the principal director.

  • Producer = ‘the person by whom the arrangements necessary for the making of the film are undertaken’ (s.178 CDPA)

    • Same definition determining the sound recordings authorship

    • Usually determined contractually

  • Problems may arise because the production of sound recordings and films frequently involve the input of a range of people, many of whom may lay claim to having helped organise and facilitate the making of the sound recording or the film

  • Courts have emphasized there is a distinction between one who ‘makes’ the recording and ‘makes the arrangements for the production of a recording’ (the latter is the author, not the person who operates the recording system)

    • Adventure Films v Tully [1993]

    • A&M Records v Video Collection [1995]

    • Bamgboye v Reed [2004]

    • Slater v Wimmer [2012]

  • A producer presupposes that at the core of the production process, there is a person who coordinates, controls and organises the production of the work

    • (Century Communications v Mayfair Entertainment [1993]) – film made under restrictive conditions in China was produced by organiser outside China

  • Exercises a degree of direct organisational control over the process of production – Adventure Films v Tully [1993]

    • Finance for the film or a sound recording does not regard the person as a producer, but it may be one of the organisational matters which amount to a necessary arrangement.

• Broadcasts

  • The person who makes the broadcast (s.9(2)(b) CDPA)

  • Where someone receives and immediately retransmits a broadcast, the author is the maker of the original broadcast rather than the person who relays it

• Typographical arrangements

  • The publisher of a published edition of a work (S.9(2)(d) CDPA)

Joint Authorship

• Possible for any work to be jointly authored – but normally associated with literary dramatic musical and artistic works.

• The 1988 Act also extends the conept to a broadcast where more than one person is taken as making the broadcast

  • Those providing and taking responsibility for the contents of the program

  • Those making arrangements necessary for its transmission (s.10(2) CDPA) cross reference to s.6(3) CDPA)

• A general principle – a work is a joint authorship work if it is ‘produced by the collaboration of two or more authors in which the contribution of each other is not distinct from that of the other author or authors

• Martin v Kogan – D who was an opera singer and author had suggested to her then partner who had hitherto written material for TV that he develop the screenplay for a film. Over various drafts he had offered a number of suggestions that made its way to the final form. The court of appeal held that a work is a joint authorship if it satisfies the four conditions:

  • 1) Collaboration

  • 2) Authorship

  • 3) Contribution

  • 4) Non-distinction of contribution

Collaboration

• Common design, cooperation or plan that united the authors (even if in a very loose sense)

• Levy v Rutley [1871]

• Martin v Kogan [2019]

• No need for a close proximity, a shared plan...