Primary Infringement

Substantial Part

Newspaper Licensing Authority v Marks and Spencer [2003]

D, Marks and Spencer, obtained press cuttings of articles in which they were mentioned from an agency licensed by C. D then made further copies of those cuttings for circulation to its Executives; in this process, changes were made so that articles fitted on an A4 sheet. C alleged that the copying of those articles was an infringement of typographical arrangement copyright (section 8) subsisting in newspapers. Relevant question was whether typographical arrangement copyright subsisted in the individual articles, or just in the newspaper as a whole. Held:

Test for Substantiality

See notes.

Typographical Arrangement

‘Presentation and layout’ in a newspaper is a combination of: choice of typeface, number and width of columns, relationship between headlines and text, number of articles per page etc.
The relation between size of copied part and size of work as a whole is irrelevant to this test

Therefore it is irrelevant whether copyright subsists in the individual articles or newspaper as a whole

Facts

On facts, changes made to make sure articles fit on A4 sheet mean there is no breach.

Designer Guild v Russell Williams [1998]

C owned copyright in a painting from which it produced a fabric design – design was stripes with flowers on top of it. C complained that D had infringed copyright in its painting through copying the fabric design in D’s own fabric design.

D claimed he was not aware of C’s design, though there was evidence D had attended trade show at which C’s design was displayed. Held:

There was infringement.

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

And NOT upon whether each feature has in isolation been substantially copied.

If similarities between two works are sufficient to raise inference of copying, those similarities will normally satisfy requirement of substantiality.

See notes.

Baigent v Random House Group [2007]

C published a non-fiction book, “The Holy Blood and the Holy Grail” based on proposition that Jesus’ bloodline had survived. D wrote the fictional thriller “The Da Vinci Code” based on same main idea. D had access to C’s book when writing Da Vinci Code, and C claimed for breach on grounds C had copied 15 Central Theme elements. Held:

Parts allegedly copied by D were not protected by the literary work copyright subsisting in HBHG

parts allegedly copied were merely general propositions at too high a level of abstraction to attract copyright
thus fell on wrong side of ideas/expression divide

In addition, what D had taken from C’s work was not sufficiently substantial to qualify for copyright protection

the Central Theme was not a substantial part of HBHG
was simply a selection of similar features compiled in order to give impression of copying

Impact of EU Law

Newspaper Licensing Authority v Meltwater [2011]

For facts see supervision 2. One issue was whether the 256-character extracts copied from the articles were ‘substantial’ enough for there to be an infringement of copyright in those articles. Held:

Facts

On facts, 256-character extracts sufficiently substantial to give rise to infringement.

Causal Connection

Hunter v Bron [1963]

D published a song in 1959. C alleged that this infringed copyright of his song published in 1926. D denied that he had copied C’s work, and accepted that if he had heard it, it was when he was young. Held:

See notes.

Possibility that D heard work when he was young insufficient to give rise to inference of subconscious copying.

Designers Guild v Russell Williams [1998]

D claimed that it was not aware of design it had allegedly copied from C. However was evidence that D’s design had been displayed at a trade show which D had attended. Held:

First Instance

Where C can show that:

D had access to C’s work; and
that the two works have a sufficient similarity;

D has evidential burden to show copying did not take place.

If D cannot then show he arrived at similar result by independent work, will be infringement.

Authorisation

CBS Songs v Amstrad [1988]

D, Amstrad, manufactured and sold a dual-tape cassette machine, which enabled recordings to be made from one cassette tape to another. C sued on behalf of the record industry, alleging that D had authorised members of public to C’s copyright by virtue of making, advertising and selling the machine. Held:

See notes. On facts, Amstrad’s adverts heavily implied that machine could be used to make illegal copies

however this is not authorisation of the making of copies.

Twentieth Century Fox v Newzbin Ltd [2010]

D, Newzbin, was a members-only site with a movies section. Website provided an extensive indexing and search facility, as well as a ‘NZB’ facility which enabled premium members to download the contents of files, including films. C alleged that D had authorised infringement of copyright in its films through provision of these facilities. Held:

See notes.

On facts,

once a film was entered into the indexing facility, use of NZB facility would inevitably result in an infringement;
NZB facility was created by D and was under D’s control

Thus a reasonable person would have supposed from D’s activities that D purported to have authority to grant permission to copy films.

Infringement

Primary Infringement

Schweppes v Wellingtons [1984]

C produced the drink ‘Schweppes’. D produced a bubble bath almost identical in appearance to a bottle of Schweppes, but called ‘Schlurppes’. C sued for breach of copyright. Held:

Parody is irrelevant to issue of infringement.
Thus as a substantial part had been copied, there was infringement.

Secondary Infringement

LA Gear v Hi-Tech Sport [1992]

C made a shoe. D began to sell a prototype shoe which C alleged was an infringing copy of C’s shoe. C sent letter to D enclosing a picture of C’s shoe, asking D to refrain from selling shoe. D refused and advertised its shoes for sale; C sued for secondary liability. Held:

D’s shoe was an infringing copy of C’s shoe.
Moreover, as D had received design drawings, was obvious D had reason to believe shoe it was selling was breach of copyright.
Thus D was liable for dealing in infringing copies.

Permitted Acts/Defences/Exceptions

Temporary Copies

Infopaq International v Danske Dagblades Forenung [2009] (ECJ)

For facts see supervision 2. Issue was whether the transient exception applied. Held:

Exemption

See notes.

Act of reproducing 11 words and then printing them for clients means reproduction is only destroyed once the paper itself is destroyed

i.e. and this is entirely dependent upon will of a human.

Therefore data capture process not transient.

Meltwater [2011]

Facts above. One issue was whether D’s activities fell under transient exception in section 28A. Held:

See notes.

On facts:

Copying carried out by D was for its own sake

i.e. D did it in order that its customers could receive it – this was D’s business plan

in addition, D was making commercial profit out of copies

thus they were of ‘economic significance’

Therefore section 28A cannot apply

Fair Dealing

‘Fair’

Hubbard v Vosper [1972]

D, a disenchanted member of Church of Scientology, publicly circulated bulletins sent by the church to its members. C, the author of those bulletins, sued for breach of copyright. Held:

See notes.
On facts, bulletins had already been widely circulated

thus D’s distribution of them was ‘fair dealing’

Beloff v Pressdram [1973]

C wrote an internal memorandum relating to a member of the government which was leaked to Private Eye, who then published it. D sought to rely on defence of ‘fair dealing for the purposes of review or criticism’. Held:

For unpublished works, is generally not ‘fair’ dealing to reproduce any of work at all.

this is especially case where unpublished work has been ‘leaked’ by unidentified source, or obtained in breach of confidence.

Thus on facts, D could not rely on defence of fair dealing.

Ashdown v Telegraph Group [2002]

D, Sunday Telegraph printed article including extracts from the unpublished memorandum of C, a politician. C had shown the article to publishers while attempting to secure the publication of his diaries. C sued, and D relied on defence of fair dealing. Held:

See notes.
On facts, was no fair dealing

D’s use of work conflicted with C’s own expectations of making a profit out of it
D’s work was obtained in breach of confidence
Substantial part of work was copied, and parts of work printed in paper were the most important passages

Time Warner v Channel 4 [1994]

Film ‘Clockwork Orange’ was removed from British market at request of its director in 1970s. Channel 4 wished to make documentary on it, so purchased a copy from a Parisian store rather than ask the owner of copyright for permission to make documentary. Amount of film excerpted in documentary was around 10%. C sued, D relied on defence of fair dealing for purposes of review/criticism. Held:

D was not in breach of copyright.
This despite fact that 10% of the film (a large proportion) had been copied

this because quantity of review/criticism was even greater, and of a very high quality

If work is already published, fact that it was obtained in underhand manner irrelevant to question of whether D’s dealing was ‘fair’.

rather here, ‘fairness ‘ depends primarily upon how work is treated by D

Hyde Park Residence v Yelland [2000]

Sun published stills from security camera footage which showed Princess Diana...

#3605 - Copyright 3 (Infringement) Cases - Intellectual Property Law

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