#5615 - Copyright - Intellectual Property Law

Copyright

Intellectual Property LLM

Notes

Introduction to Copyright 4

Primary Works 4

Literary Works 4

Dramatic Works 6

Musical Works 6

Artistic Works 7

Graphic Works 7

Architecture 7

Works of Artistic Craftsmanship 7

Secondary (Entrepreneurial) Works 7

Sound Recordings (CDPA 1988, s5A(1)(a) and (b)) 7

Film (CDPA 1988, s5B(1)) 7

Broadcasts (CDPA 1988, s6) 8

Published Editions 8

Conclusion 8

Originality 9

EU Directives 9

Functional Constraints 10

‘Weak’ Creations 10

Directive is Exhuastive? 14

Cases: 15

Subsistence 15

Authorship, Ownership and Moral Rights 16

The Apparent Centrality of Authorship 16

Joint Authorship (CDPA s10) 16

Collaboration 16

Contribution 16

Not Distinct Contribution 17

Co-Authorship 17

Statutory Authorship (s9) 18

Ownership 18

Four Requirements for Employee Rules to Apply 18

Employee 18

Made in the Course of Employment 18

No Agreement to the Contrary 19

Why have special rules for employees? 19

EU Harmonisation 19

Assignments: CDPA s90 20

Limits of Assignments 20

Moral Rights 21

British Moral Rights 21

Attribution 21

Integrity 22

Economic Rights and Infringement 23

The 1988 Act 23

Reproduction Right (s17 CPDA) 25

Distribution (s18) 27

Exhaustion 27

No International Exhaustion 28

Rental and Lending 28

Public Performance 28

Communication (s20) 28

Making Available 30

Adaptation (s21) 30

Authorisation 31

Secondary Infringement (ss22-27 CDPA) 32

Exceptions and User Rights 33

Protection of Users 33

CDPA s28A – Temporary Copies 33

Fair Dealing 34

CDPA s29 – Fair Dealing for Research and Private Study 34

CDPA s30(1) – Fair Dealing for Criticism or Review 34

Reform 35

CDPA s30(2) – Fair Dealing for Reporting Current Events 35

CDPA s31 – Incidental Inclusion 35

Public Interest – s171(3) 35

Legal Basis for the Defence 35

Necessary Circumstances: 35

Introduction to Copyright

The CDPA 1988 gives a detailed and exhaustive list of the types of creation that are protected by copyright. There are 8 categories, and if the work does not come within these categories, it will not attract protection. This has led to a generous interpretation of the categories, especially because there is no law of unfair competition in the UK (CBS v Ames Records). This means that some works get excluded from the regime of protection.

Creation Records v News Group

Preparation of an album cover for Oasis' Be Here Now. Noel decided to arrange a series of objects in and around a swimming pool for the cover. Someone from News oTW. Was the arrangement of artefacts a copyright work? There was some creativity in the selection and arrangement of the objects, no doubt.

Lloyd J went through the boxes, and found that the arrangement was not within any of the boxes.

All protected subject-matter are ‘works’, but not all works are treated the same. In particular, there is still an informal distinction between authorial and entrepreneurial works. Per Laddie J in Electronic Technique v Crtichley, a single piece of creative effort can be 2 or more copyrights, in theory, though in practice it should be confined to one of the categories. This has been doubted, and Norowzian v Arks (No 2) must surely mean that this is not the case any more.

The British approach of closed list boxes looks suspect in the light of the CJEU jurisprudence (BSA, SAS – see concession by Arnold J – “it may be arguable that it is not a fatal objection to a claim that copyright subsists in a particular work that the work is not one of the kinds of work listed in section 1(1)(a) of the Copyright, Designs and Patents 1988 and defined elsewhere in that Act”), though it might already have been suspect in light of other international obligations, see Christie (EIPR, 2001. This means that the courts need to interpret the categories differently – they need to interpret national law in accordance with their obligation under EU law (Marleasing) such that all intellectual works need to be protected by copyright. This makes the Lucasfilm case look very odd indeed – if the CJEU would regard these as being intellectual creations, then there is an obligation on UK courts to protect them through copyright. Thus, the Supreme Court’s finding in this case will now become an irrelevance.

This is problematic on ]the basis that some infringements only apply to certain groups – wholesale legislative reform is probably needed if this is the case.

S3(1) CDPA 1988 for definition, which broadly includes words, symbols and numerals. No judgement on the standard of the work, but (Hollinrake v Truswell) must read information and instruction or pleasure (literary enjoyment - in effect the Court held that it was the function of copyright to protect works designed to interact with the human mind, not works designed to provide a mere practical aid to a manufacturing process – this is arguably similar to the requirement of “production in the literary, scientific and artistic domain”, pursuant to art.2(1) and (2) of the Berne Convention).

Not comprehensive or exhaustive, but useful. Needs to convey an intelligible meaning (low threshold)–Apple Computer v Computer Edge, see Express Newspapers v Liverpool Daily Post (bingo letters sufficient), and code only understood by few (DP Anderson v Lieber Code Company), and ciphers, maths tables etc (Apple v Edge), but this case held “not gibberish” and no copyright in Exxon–invented name.

Little on enjoyment but seems to be qualitative, but this runs against no taking quality into account. Focus has been on names, trademarks and titles: all excluded. Analysis mixed as to why. Maybe fail Hollinrake test (Exxon) (Dworkin and Taylor, Collabine disagree). Maybe also not original, so insubstantial skill, labour and judgement in creation of it. Possible that this could be overridden if lengthy and important enough. See Privy Council in Francis Day and Hunter. Policy reason is that this amounts to control over words, which is inconvenient and already protected in other intellectual property law.

Tables and compilations are not databases, which are separate–different level of originality. Maybe redundant, as almost all now databases.

Computer programs – Now, as per the software directive these are literary and not sui generis. This includes firmware, software (source code, object code and assembly code). No definition of a computer program: WIPO uses vague language (a ‘set of instructions’ etc). The EC Software Directive brings in preparatory design material for computer programs. Bently and Sherman think that these should be part of computer programs – WHY?

Databases are a distinct class – a collection of independent works arranged in a systematic or methodical way and accessible (electronically or otherwise) individually. This might exclude collections of 3D objects. See reasoning in OPAP – CJEU held wide scope. Data on a map – no; fixtures – yes; poetry – yes. Independent means separable without informative or other value being affected. Systemic/methodical means technical or other means for searching. This does not require a computer program must be used to make or operate a database, but a computer program can be a database, which leads to fewer defences. Multimedia seems inevitably to be protected here (weird but true) – Kalamazoo v Compact Business Systems. A combination of multimedia can be a database, but not a compilation(table) maybe, as maybe only a compilation of literary works, not information.

In this Part—

“literary work” means any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes—

(a) a table or compilation other than a database

(b) a computer program

(c) preparatory design material for a computer program and

(d) a database

Exxon v Exxon

Could 'Exxon' be a copyright word?

Literary work is a work is intended to 'instruct, inform, or please in a literary way'. A single word did not satisfy these criteria.

Francis Day & Hunter v 20th Century Fox

Could the title of a song 'The Man Who Broke the Bank at Monte Carlo?' be copyright, such that a film with the same name (very different) be a copyright infringement?

A title could not be a copyright on its own, such that a reproduction would be an infringement - policy implications of this: reference to the consequences of recognising a title.

NLA v Meltwater

Did D need a licence need a licence to carry out the activity of forwarding news, about certain people, to members of an organisation (the PRCA), including the title of the article, and the context of the search result? A subquestion was whether the titles of the articles were copyright-protected?

Some of the headlines were capable of being literary works, but to make a ruling in the abstract would be difficult.

S3(1):

“dramatic work” includes a work of dance or mime

The case law shows that scenarios, scripts and choreographic works count, whether fixated in writing or otherwise. There must be a ‘work of action’, ‘capable of being performed’.

Green v Broadcasting Corp of NZ

Ta show in NZ - different performers each week, but there was some continuity in the format - could the shared features of the format be a protected dramatic work? “I’ve never used a script in my life!!”

Held by PC not to be a dramatic work - the format of a TV show lacked sufficient unity to be capable of a performance.

Film is included where there is cinematographic work on the film, though.

Norowzian v Arks

Claimant had created a film of somebody dancing, edited using jump-cutting. D had seen the video and used the style in their own video to advertise Guinness. Was the film,...