#3606 - Copyright 3 (Infringement) - Intellectual Property Law

COPYRIGHT 3 (INFRINGEMENT)

Restricted Acts

• Restricted acts are those which only the owner of copyright is allowed to perform.

• Section 16: owner of copyright has exclusive right to:

1. Copy the work

2. Issue copies of work to public

3. Perform or show the work in public

4. Communicate work to public

5. Make an adaptation of work, or do any of (i)-(iv) in relation to an adaptation

• C does not necessarily have a positive right to do any of these

• i.e. as it is possible he may infringe someone else’s copyright when doing so (e.g. joint author)

• Robin Ray [2001]

• Section 16(2): however C may prevent others from either:

1. Carrying out any of the acts;

2. Or authorising others to carry out any of the acts

INFRINGEMENT

For direct infringement:

1. D must carry out (or authorise someone to carry out) a restricted act directly or indirectly

2. in relation to substantial part of the work;

3. must be some causal connection

1. Directly or Indirectly

• A restricted act may be done directly or indirectly.

• “Indirect”: can be infringement even if author did not know of existence of original work

• e.g. where D was following instructions given to him designed to reproduce substantial features of the original

• Solar Thomson Engineering v Barton [1977]

2. Substantial Part

   Section 16(3): D infringes copyright if he copies at least a substantial part of C’s work.

• To be substantial, part copied must contain “elements that are the expression of the intellectual creation of the author of a work”

• i.e. parts of a work are treated same as the whole

• Infopaq Internationl [2009] (ECJ)

• Test for substantiality has been “restated, but for present purposes not significantly altered” by Infopaq.

• i.e. question is whether what is taken demonstrates stamp of individuality reflective of author’s creation

• NLA v Meltwater [2010] (UK)

  E.g. 11-word sample of text may constitute ‘substantial part’ depending on circumstances

  NLA v Meltwater [2010]

Quality v Quantity

• Whether D has copied substantial part based on quality not quantity of what he has taken

• Designers Guild v Russell Williams [2001]

• Part is substantial if it represents a sufficient amount of original author’s skill and labour.

• Newspaper Licensing Authority v Marks and Spencer [2003]

• Relevant factor is importance of copied material to original work

• And NOT its importance to D’s copied work

• Designers Guild v Russell Williams [2001]

Nature of Test

• Relevant quality which D must appropriate to ‘copy a substantial part’ depends on purpose of type of copyright protection subsisting in C’s work

• E.g. ‘literary work’, film’, ‘typographical arrangement’

• NLA v Marks and Spencer [2003]

• Thus e.g.:

1. typographical arrangement copyright: relevant quality is the overall presentation and layout of edition

• in newspaper, this is a combination of: choice of typeface, number and width of columns, relationship between headlines and text, number of articles per page etc.

2. literary copyright: relevant quality is literary originality of what has been written

• NLA v Marks and Spencer [2003]

Ideas/Expressions Divide

• Can be infringement for taking of an idea expressed in C’s work where originality of work resides in manner in which ideas are combined/developed.

• even if there is no literal copying by D.

• Designer Guild v Russell Williams [2000]

• For this to be case, what D copies must represent substantial part of author’s skill and labour.

• Designers Guild v Russell Williams [2000]

• Baigent v Random House Group [2006]

• Whether substantial part of artistic work has been taken depends upon cumulative effect of copied features

• i.e. and not whether copying of each feature individually is substantial.

• e.g. if D copies plot of book, is infringement even if D does not reproduce a single sentence from original book

• Designers Guild v Russell Williams [2001] (Lord Hoffmann)

Limitations

Designers Guild [2000] (Lord Hoffmann)

• Expression of idea will not be protected where:

1. idea has no connection with expression of work

   • e.g. a drawing (literary work) listing the idea for an invention

   • copyright is literary, but not infringed if D makes the invention

2. idea is commonplace (i.e. not original)

   • here, idea does not represent a substantial part of work

   • E.g. Kenrick v Lawrence [1890] (pointing hand on vote form)

3. idea is not sufficiently detailed

   • Is generally case that the law:

1. Protects specific detailed ideas

2. Does not protect big general ideas

   • Hoffmann: “Copyright law protects foxes better than hedgehogs”

Sufficient Detail

• If C’s idea taken is framed at too high a level of abstraction, no infringement.

• as abstract ideas do not represent product of C’s skill and labour

• fall on wrong side of ideas/expression divide

• Baigent v Random House Group [2006]

• Mere replication of themes, arguments and facts from C’s original work not sufficient.

• Must be shown that there has been substantial copying of the original selection, arrangement and structure of such material

• Baigent v Random House Group [2006]

• Whether idea is sufficiently detailed to be protected against copying is question of degree.

• Nova Productions v Mazooma Games [2007]

  Prevents authors monopolising e.g. historical knowledge or conspiracies.

Altered v Unaltered Copying

• Lord Scott: is distinction between:

1. Unaltered copying

• for infringement, proportion of C’s work taken need not be large

2. Altered copying

• for altered copy, similarity is determinative both for issue of copying and substantiality

• i.e. if D has copied C’s work, will automatically follow that this copying is substantial.

Causal Connection

• Beginning of proof of copying normally comes from:

1. Proof D had access to C’s work;

2. And sufficient similarity between D and C’s work

• Hunter v Bron [1963]

• Where C shows this, D has evidential burden to show copying did not take place.

• i.e. is infringement unless D shows he arrived at similar result to C via process of independent creation

• Designer Guild v Russell Williams [1998]

  Conscious/Subconscious

  Copying may be:

1. Conscious; or

2. Subconscious

   to show subconscious copying, must be proof (or a strong inference) that D had de facto familiarity with C’s work.

   Hunter v Bron [1963]

Authorisation

• Section 16(2): copyright is infringed by anyone who, without licence of the copyright owner, authorises another person to do any of restricted acts.

• ‘Authorise’: this is the grant or purported grant to carry out a restricted act.

• Twentieth Century Fox Ltd v Newzbin [2010]

Provision of Equipment

• Mere provision of equipment by D which others can use to make copies is NOT an infringement.

• So long as:

1. provider of equipment does not purport to have authority to let others make copies;

2. and reasonable members of public would not suppose that this was case

• CBS Songs v Amstrad [1988]

• Thus mere provision of a photocopier in a library does not amount to ‘authorisation’

  Moorhouse v University of NSW [1976]

• However if product supplied by D can only be used for purposes of infringement by others, is probably implied authorisation

• Twentieth Century Fox Ltd v Newzbin [2010]

Implied Grant

• D’s grant or purported grant of right to carry out restricted act may be express or implied.

• Relevant factors to whether there is implied authorisation include:

• Relationship between authoriser and primary infringer

• Whether equipment provided by D constituted means of infringement

• Whether it is inevitable equipment will be used to infringe

• Degree of control retained by D

• i.e. if D retains control over means in which equipment is used, more likely to have authorised any infringement carried out

• Twentieth Century Fox v Newzbin Ltd [2010]

TYPES OF INFRINGEMENT – Chapter II

1. Primary Infringement – SECTIONS 16-21

1. Copying

• Section 17: For LDMA works, copying is reproducing the work in any material form.

• Ttis includes electronic means

• e.g. storing content of a book on a CD-ROM

• Section 17(3): Copying of artistic works can be done via ‘dimensional shift’

• E.g. where a 3D copy is made of a 2D work (such as an enactment of a cartoon)

• Where a 2D copy is made of a 3D work (such as a drawing of a sculpture)

  Typographical Arrangement

  Section 17: copying can only be done by making a photocopy

  D breaches C’s typographical arrangement copyright where he copies the presentation and layout of newspaper

  NLA v Marks and Spencer [2003]

  Parody

  English law has no defence of parody

  Schweppes v Wellingtons [1984]

2. Issuing Copies to Public

• Is infringement for D to issue copies of C’s work to public.

• Once C has issued copies to public, this right is exhausted.

• i.e. members of public are free to put those copies on second-hand market

3. Rental Rights

4. Performing or Showing a Work in Public

• Is infringement for D to show or perform C’s work in public.

• Where performance involves use of equipment, person in charge of equipment is responsible for infringement.

• Is only infringement where people to whom work is performed are part of likely paying customers for copyright work in issue

• thus performances in quasi-domestic situations are NOT infringement

• Duck v Bates [1884] (performance to a small group of doctors and nurses at a hospital not infringement)

5. Communication to the Public

• Is infringement for D to communicate C’s work to public; e.g.:

  • broadcasting of work

  • electronic transmission of work

    • e.g. internet transmissions and on-demand services

• D’s act of communication takes place where the transmission/broadcast takes place from

• thus for transmission, this is where information is uploaded

• where D’s act of transmission...