#3604 - Copyright 2 (Subsistence) - Intellectual Property Law

COPYRIGHT 2 (SUBSISTENCE)

1. Fixation

• Section 3(2): copyright only subsists in a work if it is recorded, in writing or otherwise.

• idea must be given physical expression

• TRIPS Article 9(2): Copyright protection shall extend to expressions

• and NOT to ideas, procedures, methods of operation or mathematical concepts.

• Thus a LDMA work must be recorded in some form; e.g.:

• Music: can be recorded in form of a score, or an audio recording

• i.e. a music score has musical copyright (but not literary copyright)

• Literary: a sound recording of a speech has copyright both as a sound recording, and as a literary work

• Section 5: NB a film script does not have separate literary copyright

• However the film soundtrack does have separate musical copyright

2. ‘De Minimis’ Rule

• Copyright applies in relation to subject-matter that is original in the sense that it is the author’s own intellectual creation

  • Infopaq International [2009]

• Thus in principle originality is “the only real test”

  • i.e. to determine whether copyright subsists, court must look at originality of work in which copyright is alleged

  • and NOT the size/length of it

  • Meltwater [2010]

• Thus even a headline or an 11-word extract from an article is capable of being an independent literary work, provided it is the author’s own intellectual creation

  • Meltwater [2010]

• Thus appears that a very short work can attract copyright.

Single Words

• A single word is too short to be have copyright protection.

• As it cannot have sufficient originality.

• NLA v Meltwater [2011]

• Thus a single word is not a ‘work’ (and copyright cannot subsist in it).

• Exxon v Exxon Insurance [1982] (see supervision 1)

3. Originality

• Work must have sufficient originality.

• Only work for which requirement of originality is defined is databases.

• section 3A: database is original only if, by reason of the selection or arrangement of the contents of the database, it constitutes author’s own intellectual creation

English Law

• Originality is a matter of degree depending on skill, labour and judgment involved in C creating his work

• i.e. more skill, labour and judgment on part of C, more likely his creation is a ‘work’

• Labroke v William Hill [1964]

• Principle of copyright is that someone else is not allowed to avail himself of C’s skill, labour and expense by copying C’s work.

• Walter v Lane [1900]

No Merits Judgment

• Originality has nothing to do with literary/artistic merits of author.

• Walter v Lane [1900]

• Is no requirement for original or inventive form

• must simply be case that work originated from the author.

• Ladbroke v William Hill [1964]

• Thus a work that is simply a minor alteration of a previous work can be original if skill and labour was involved in its creation

  • e.g. Walter v Lane [1900]

Relevant Factors

1. Preliminary Work

• Skill, labour and judgment includes any preliminary work done by C.

• i.e. work done by C which he later relies upon to help him create the object in which he claims copyright

• No need that preliminary work done has as its sole or even main object the subsequent production of an object based upon the preliminary work

• Suffices that creation of a ‘work’ is an object of preliminary work

• Labroke v William Hill [1964]

• However if preliminary work was done with no intention of later creating the object in which copyright is claimed, case may be different.

• i.e. preliminary work might not count towards originality of the object later produced

• Ladbroke v William Hill [1964]

Compilations

• One case suggested that compilation of printed literary works is sufficiently original

  • i.e. where skill and labour went into choosing which works were to be included and arranging them

  • Macmillan v Cooper [1923] (Privy Council) (student text incorporating extracts)

2. Size of Work

• Headlines from newspaper articles are both capable of being original literary works.

• Infopaq International [2009]

• NLA v Meltwater [2011]

• However single words are not sufficiently original to attract copyright.

• NLA v Meltwater [2011]

3. Exact Copies

• Subject to Interlego (as interpreted in Sawkins), exact copies of an original work CAN attract copyright.

1. No Copyright

• One case stated an exact copy is NOT original, even if making it required skill or labour

• i.e. for copy to be original, there must be some addition

• Interlego v Tyco [1989]

2. Copyright

• Remarks in Interlego are too general.

  • Sawkins v Hyperion [2005] (Jacobs LJ)

• Is necessary to look at extent to which the creator of the alleged copy is a ‘mere copyist’

• i.e. at the extent to which making of copy required easy mechanical function

• more this is case, less likely new creation is ‘original’

• Sawkins v Hyperion Records [2005]

• Relevant factors in question of originality include both:

1. Additions/alterations made (i.e. as these are evidence of skill, labour and judgment)

2. Energy and skill expended on making of work

• Sawkins [2005]

Photos

• A photo of an object can be original

  • i.e. provided that the composition of the image is product of skill and labour (or intellectual creation) of the photographer

  • Temple Island Collections [2012]

• In this regard, is distinction between:

1. a ‘mere photograph’

   • i.e. C happens to simply click the camera in the right place at the right time (no copyright)

2. a ‘photographic work’

   • i.e. a product of deliberate choices and manipulations by the author (copyright)

   • Temple Island Creations [2012]

• Thus fact that technique used is simple (i.e. camera) does not prevent image having copyright

  • i.e. is copyright wherever result has a deliberate aesthetic quality

  • Temple Island Collections [2012]

• This echoes comments made in other cases

1. UK: had been suggested that photo of a 3D object may be sufficiently original to have copyright

   • though not necessarily 2D objects

   • Antiquesportfolio.com v Rodney Fitch & Co [2001] (Ch.)

2. Photo can be original if it is an “intellectual creation” which:

1. reflects author’s personality

2. and expresses his free and creative choices in its production

   • Eva-Maria Painer [2011] (CJEU)

Impact of European Law

1. Intellectual Creation

• Something is a ‘work’ only if it is “original, in the sense that it is an author’s own intellectual creation”

• Infopaq International [2009] (ECJ)

• confirmed by Bezpecnostni Sofwarova Associace [2011] (ECJ)

• However “intellectual creation” test does not qualify test of originality in English law

  • NLA v Meltwater [2011] (CA)

• I.e. reference of ECJ to “intellectual creation” relates to origin

  • and NOT novelty or merit.

    • court cannot make qualitative judgments

    • court must still look at skill and labour involved in producing work

  • NLA v Meltwater [2011] (Ch.)

• Nevertheless seems wording of originality test has changed

  • i.e. relevant question is always whether C’s work amounts to an “intellectual creation”

  • Temple Islands [2012]

    • this proposition was accepted by both counsel

2. Expressions of Limited Form

• Expression of an idea is not original where idea is only capable of expression in a limited number of technological or functional manners

• i.e. if the means by which an idea can be expressed is dictated by that idea’s technical function, cannot be an “intellectual creation”

• e.g. cursors on a computer screen, drop-down boxes upon opening a text file

• Bezpecnostni Softwarova Asociace [2011]

• If this were not case, would be easy for computer firms to get monopolies

• Bezpecnostni [2011]

• Unclear whether this decision can be reconciled with Walter v Lane

• i.e. a very few functional ways of taking down a speech other than by shorthand

3. Intellectual Creation = Sufficient?

• One case seems to suggest something is capable of copyright protection merely by virtue of being an “intellectual creation”

• i.e. WITHOUT creation needing to fall into a recognised category of “work”

• Bezpecnostni Softwarova Asociace [2011] (ECJ)

• Logical conclusion: any expression of an idea can be protected if sufficiently original.

• without it needing to fall into recognised category (e.g. ‘literary/artistic work’)

• Hence rather than originality being necessary for subsistence, it would be conclusive.

Impact on English Law

• English law operates closed-list system.

• Earlier in judgment was stated that:

• “consequently the graphical user interface can, as a work, be protected by copyright if it is its author’s own intellectual creation”

• possibly suggests that a creation must still fall into recognised classes of ‘works’ to have copyright

4. Qualifying Requirements

• For work to be protected by copyright, must be qualification.

• i.e. there must be some connection between the work and the UK.

• Section 153: Qualification may arise via either:

1. Author’s connection with UK

2. If place of publication was UK; or

3. If place in which a broadcast was made was UK

5. Ownership – SECTION 11

CDPA 1988

Section 11

1. First owner of copyright in a work is its author

2. However where work is made by employee in course of his employment, ownership vests in employer.

• In absence of agreement to contrary in employment contract.

• Hence for copyright to vest in employer, C must:

1. Be an ‘employee’;

2. Have created work ‘in course of employment’

1. ‘Employee’

• Section 178: C is an “employee” if under a contract of service or apprenticeship.

• And not if he is merely under contract for services.

• Employee is someone:

1. employed as part of the business;

2. and whose work is an integral part of the business

• Beloff v Pressdram [1973]

Relevant Factors

• Various factors relevant tend to show C is under contract of service:

• Regular...