#3603 - Copyright 2 (Subsistence) Cases - Intellectual Property Law

COPYRIGHT 2 (SUBSISTENCE)

De Minimis

Newspaper Licensing Authority v Meltwater [2011]

D was a media monitoring organisation. Its customers would give D a search term, and D would allow website users to access the headline, opening text and an extract from articles matching their search terms. C, a company managing intellectual property right of various newspapers, claimed this was breach of copyright.

One issue was whether headlines could constitute independent literary works. Held:

• Infopaq test followed.

• Therefore in principle, originality is “the only real test”

• Headlines are capable of being an independent literary works in their own right.

• i.e. provided they are the expression of the intellectual creation of author

Originality

English Law Test

Walter v Lane [1900]

An Earl gave public speeches on 5 occasions. Reporter from newspaper took down speeches in shorthand and later transcribed them. D published book which included Earl’s speeches taken mainly from the reports published in newspaper. Newspaper brought action for breach of copyright. Held:

• Copyright has nothing to do with or literary/artistic merits of the author.

• Copyright simply requires that A shall not avail himself of B’s skill, labour and expense by copying the end product.

• To be ‘author’, written work in question must have necessitated more than mere skill of knowing how to write.

• i.e. must require intellectual skill.

• Production of report required more than mere act of writing; e.g.:

• ability to write shorthand

• subsequent transcribing, with punctuation and revisions added

• memory and judgment of reporter

• Thus on facts, reporters for paper were authors.

Ladbroke v William Hill [1964]

C, William Hill, claimed copyright in their football betting coupons; alleged D, Ladbroke, had infringed this. Question was whether coupons were an ‘original literary work’. D argued there was no copyright in the coupons, on basis that there was distinction between:

1. preliminary work

• i.e. deciding what to sell

• in this case, making a decision of which bets to include

2. recording this work

• i.e. deciding how to sell it

• in this case, putting those bets on paper.

D claimed only second stage was relevant for purposes of copyright; and that so little skill was involved in recording result of the preliminary work onto paper that no copyright could subsist in it. Held:

Originality

• “Originality” relates to the expression of a thought.

• To be original, no requirement for original or inventive form.

• Must simply be case that work has originated from the author.

• With regards compilations, originality is a matter of degree depending on amount of skill, judgment or labour involved in making compilation.

Constituent Parts

• Value of work as a whole is relevant when considering originality.

• Thus not possible to split constituent parts of work of making coupons.

• no need that preliminary work done should have as sole or even main object the preparation of a document.

• Suffices that it is an object.

• Case might be different if preliminary work was done with no intention of later writing this down.

ICE TV Limited v Nine Network Australia [2009] (Australian Case)

D, ICE TV, created a electronic schedule of programmes to be broadcast on Australian TV each week. C alleged that this was an infringement of the copyright subsisting in its weekly TV guide. Held:

• Ladbroke v William Hill referred to unfavourably.

• Purely informative material reproduced by D is not sufficiently original to have copyright.

• Court distinguished between:

1. Provision of names and title information (which is unoriginal)

2. Selection of what programmes to put on when, and manner of presentation of that information (which is original)

Exact Copies

Interlego v Tyco [1989]

Lego had expired patent and design rights on its bricks. In 1972, Lego redrew the design drawings for its bricks – with substantial features of the previous design kept, and the only main changes being to the written information on the drawing which were of technical importance for manufacturing purposes. D made and sold bricks in Hong Kong which were compatible with those of Lego, by copying principal features of Lego’s design. Issue was whether post-1972 drawings had copyright. Held:

Lord Oliver

• Skill, labour or judgment merely in process of copying does not confer originality.

• Thus an exact copy is not original, even if making it required skill or labour.

• copy must contain some alteration or addition to the earlier work.

• Whether addition is sufficient is question of degree having regard to quality of addition.

• And not the quantity.

• Thus even relatively small addition may suffice.

• Is no universal test of originality.

• i.e. test in William Hill cannot be applied to all copyright cases.

• On facts, graphical drawings were not original.

Obiter

• A photo of an existing painting (or painting of an existing photo) does not have copyright.

• Despite skill required in making the copy of the original photo/painting, the copy painting or photo are unoriginal.

Antiquesportfolio.com v Rodney Fitch and Co [2001]

Issue was whether a photograph of a three-dimensional object, such as a vase, was original artistic work. Held:

• Photos were taken with view of highlighting particular qualities of objects

• e.g. colour, features, details.

• Thus may be the case that degree of skill was involved in:

• Positioning and angle of object

• Lighting and focus.

Sawkins v Hyperion Records [2005]

See supervision 1 for facts. Another issue was whether musicologist’s work in creating performance editions was ‘original’ as per CDPA 1988 s.1(1)(a). Held:

Originality

• See notes.

Discussion of Interlego

• Lord Oliver’s remarks about copies that require skill not being original unless they make some addition/alteration are too general.

• Only appropriate in cases like that before court in Interlego

• i.e. in cases involving technical drawings

• this because nature of technical drawings means any competent draftsmen would find it easy to replicate a technical drawing

• Thus e.g. a painter who makes an exact replica of a famous painting has copyright.

• remarkable degree of skill is required to paint in same manner as a famous painter

• would be perverse to punish a good painter whose copy is very similar, whilst allowing a poor copy which bears no resemblance to have originality

Facts of case

• Effort and skill expended by C in making performance editions of Lalande’s music sufficient to make those editions original.

• This despite fact that C worked on someone else’s original scores, and added no new notes of his own.

Influence of European Law

Infopaq International [2009] (ECJ)

D ran media analysis business. This involved “scraping” of newspaper articles, whereby employees would scan newspapers and other periodicals into computer; computer would then convert articles into text formats, and scan them for the occurrence of a particular word indicated by customers. At end of process, a cover sheet would be printed out showing a summary of all of the occurrences of that word in the publications. Issue was whether these actions constituted ‘reproduction’ as per Infosoc Directive 2001 Article 2(a). Held:

• Protection against reproduction in Article 2(a) must be given broad meaning.

• Thus for purposes of Art 2(a), copyright applies in relation to subject matter that is original in sense that it is author’s own intellectual creation.

• Words alone do not constitute a ‘work’

• is only through choice, sequence and combination of those words that author achieves result that is an intellectual creation.

• However given that protection is ‘broad’, isolated sentences or even parts of sentences may constitute an intellectual creation.

• Storing an 11 word extract of a longer work constitutes ‘reproduction’ if the elements reproduced can be classified as an intellectual creation.

Bezpecnostni Softwarova Asociace [2011] (ECJ)

Czech organisation, C, wished to set up licencing scheme for computer software, which included right to transmit works by cable TV. Each computer programme had its own ‘graphical user interface’ (GUI). GUI was an interactive interface, i.e. the means by which users of the software actually made use of the software; involved users clicking on various icons on the screen in order to be able to use the relevant computer software. Issue was whether copyright could subsist in GUI. Held:

Intellectual Creation

• Infopaq test affirmed.

• Thus GUI can be protected by copyright under Infosoc Directive if it is its author’s own intellectual creation.

Limited Expression

• Where an idea is only capable of being expressed in a very limited number of technological or functional manners, the expression of that idea is not original.

• Thus where the expression of an idea is dictated by that idea’s technical function, expression cannot be an “intellectual creation”

• If this were not case, computer companies could get monopoly on basic concepts

• On facts, majority of elements comprising the GUI have a functional purpose

• i.e. are designed simply to facilitate the use of the computer programme in question

• e.g. the drop-down menus, cursor icon on screen which moves when the mouse is moved.

• Thus national court must exclude any elements of GUI that have functional purpose from their assessment of whether GUi as a whole is an intellectual creation.

Authorship and Ownership

Ownership

‘Employee’

Beloff v Pressdram Ltd [1973]

Journalist for Observer produced an article, extracts of which were reproduced by Private Eye. Journalist, as well as her work for Observer, also...