#16781 - Copyright - Intellectual Property Law

1. Subject matter

s1(1) CDPA closed list covers

(a)original literary, dramatic, musical or artistic works,

(b)sound recordings, filmsor broadcasts, and

(c)the typographical arrangement of published editions.

• For the wardrobe to be a copyright work under the CDPA, B will need to bring it within one of the prescribed categories in s1(1) (‘closed list’).

Authorial works (require fixation - s3(2))

• Literary

• Dramatic

• Musical

• Artistic

Entrepreneurial works

• Films (can also be dramatic though)

• Sound

• Broadcast

• Typographical arrangement of published editions

s3(1) Literary work

“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

(b)a computer program;

(c) preparatory design material for a computer program and

(d) a database - see s3A

• A literary work is not limited to works of literature; can include anything written or printed - University of London Press {maths exam paper}.

• Artistic quality is irrelevant - University of London Press

Invented names (no)

• Not literary works (Exxon)

Titles and headlines (possibly)

• In general, a title is not sufficiently substantial to be a literary work (Francis, Day and Hunter v 20^th Century Fox):

  • In that case: ‘The Man Who Broke the Bank at Monte Carlo’ was not protected – ‘broke the bank’ is a common expression and ‘Monte Carlo’ is the place most obvious to break a bank at).

• But possibly a creative title would distinguish Francis and can be a literary work

Computer program

• Graphic User Interface (GUI) is not a computer program because a key characteristic of a computer program is that it enables the reproduction of the program itself.

Databases

s3A

(1)In this Part “database” means a collection of independent works, data or other materials which—

(a)are arranged in a systematic or methodical way, and

(b)are individually accessible by electronic or other means.

Fixtures Marketing:

• The data was football fixtures:

  • Each fixture was independent of each other (i.e. had independent autonomous value)

  • Arranged in methodical way: organised chronologically.

s3(1)

“dramatic work” includes a work of dance or mime; and

Each individual episode can be protected as a film and dramatic work, but can the series format itself (i.e. the features repeated show-to-show) be a dramatic work?

General:

• A TV series format will not be a dramatic work as the features which repeat show-to-show must have sufficient unity in order to be capable of being performed – Green v BCNZ.

  • In that case: the features of ‘Opportunity Knocks’ were unrelated to each other; just a selection of random elements

Exception

• Banner Universal Motion Pictures: it is at least arguable that a TV series format is a dramatic work if it (i) has clearly identifiable features, which taken together (ii) distinguish the show from similar shows, and (iii) can make up a coherent framework which can be repeatedly applied.

Will have literary and artistic works within it, but can the whole video game itself be a dramatic work?

• No as the sequence of images will not be the same from one game to another, so (1) no sufficient unity, and (2) not capable of being performed - Nova v Mazooma Games.

• A film can be protected as a dramatic work as it is capable of being performed in front of an audience (performance by artificial means) (Norowzian v Arks)

• Three situations:

1. Recording of a Broadway show:

• Broadway show is a dramatic work (capable of being performed).

• Recording is a film and a dramatic work (capable of being performed (both actually in a physical sense and the artificial sense)).

2. Recording of a sporting event, news reel, static plant plot

• Sporting event, news reel, static plant pot is not a dramatic work (sporting event can be as is a ‘work of action’ but just won’t be original)

• Recording is just a film.

3. Recording of a cartoon, heavily-edited film

• The cartoon, heavily edited film is not a dramatic work (not capable of being performed)

• Recording is a film and a dramatic work (capable of being performed in front of an audience in the artificial sense)

s3(1)

musical work” means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music.

Note: musical works are not lyrics (literary works), dances or performances (dramatic works)

• Mere noise is not a musical work - Hyperion Records v Sawkins

• The actual notes of music are not the only subject matter covered; also covers other elements that contribute to the sound as performed, e.g. tempo and performance instructions - Hyperion Records v Sawkins

• Arguments against:

  • Mere noise is not a musical work (Hyperion Records v Sawkins) – in a way silence is similar to mere noise.

• Arguments for:

  • The fact that the Cage dispute resulted in a six-figure settlement could indicate that silence can count as a musical work.

4 Artistic works.

(1)In this Part “artistic work” means—

(a)a graphic work, photograph, sculpture or collage, irrespective of artistic quality,

(b)a work of architecture being a building or a model for a building, or

(c)a work of artistic craftsmanship.

s4(2)

“graphic work” includes—

(a)any painting, drawing, diagram, map, chart or plan, and

(b)any engraving, etching, lithograph, woodcut or similar work;

Can make-up constitute a painting?

• No (Merchandising v Harpbond)

Can a tattoo constitute a painting?

• Make up is not (Merchandising v Harpbond)

• But is a tattoo different?

  • Merchandising v Harpbond said that a painting needs a surface and a face (unlike a canvas) is not, indicating that a tattoo on the body is not a painting either.

  • But if the decision is instead justified on the basis that make-up is temporary, and a painting is intended to be permanent: then a tattoo would be protected.

• E.g. sketches of people, landscape, industrial designs

Test

• To be a sculpture, the primary purpose of object must be for visual appeal (MANN J’s in Lucasfilm)

Examples applying the test

If the primary purpose is not visual appeal, but utilitarian/functional, then is not a sculpture

• The Stormtrooper helmet (Lucasfilm)

  • Primary purpose was utilitarian/functional (worn as a costume in a film to identify a character)

  • CoA distinguished the Stormtrooper helmet from the helmet that appears on a bronze statue of a soldier:

    • Statue of solider: the helmet has no functional/practical purpose; primary/intrinsic purpose is for visual appeal.

‘Ready made’ art (e.g. Damien Hurst’s shark, bricks, urinal)

• Under LADDIE J’s test in Metix v Maughan (a sculpture is a three-dimensional work made by ‘an artist’s hand’)

  • would fail as not made by artist’s hand.

• Under MANN J’s test in Lucasfilm might succeed if primary/intrinsic purpose is for visual appeal:

  • A pile of bricks, displayed at the Tate modern, is capable of being a sculpture (has artistic purpose); whereas the identical pile of bricks at the end of my driveway is not (has functional/utilitarian purpose) (MANN J’s example).

(b)a work of architecture being a building or a model for a building

s4(2)

- building” includes any fixed structure, and a part of a building or fixed structure;

• Do buildings include things like greenhouses, portable cabins and swimming pools built off-site (i.e. not part of a fixed building)

  • According to Australian case of Darwin Fibreglass: a swimming pool built off-site and capable of being removed was a building.

• Artistic quality – legislative history suggests that artistic quality is not relevant.

1. Artistic quality

1. In George Henscher, LORD KILBRANDON focused on whether it was the creator’s intention create something artistic.

2. Another focus is whether it has an objective artistic quality (Vermaat v Boncrest) either to the public or to experts (Henscher)

2. Craftsmanship

• To be a work of craftsmanship, it must be a manifestation of sound workmanship (Henscher).

s6(1)

Broadcasts = electronic transmissions of images, sounds or other information, incl:

(a) ordinary broadcasting (transmitted for simultaneous reception by members of the public)

(b) transmissions at a time determined by the person making the transmission (e.g. ‘narrowcasting’)

Covers: TV broadcasting, radio broadcasting, teletext. Technology neutral so covers analogue and digital etc.

Ordinary broadcasting (s6(1)(a))

E.g. BBC One on television

• ‘Simultaneous reception by members of the public’

  • So excludes on demand services (e.g. Netflix) because that is not simultaneous reception.

Narrowcasting (s6(1)(b))

E.g. playing music in a store, football game beamed back to away team stadium’s massive projector.

• Broadcaster decides the time of transmission.

s6(1A)

(1A)Excepted from the definition of “broadcast” is any internet transmission unless it is—

(a)a transmission taking place simultaneously on the internet and by other means,

(b)a concurrent transmission of a live event,

• Internet transmissions are excluded from the definition of a broadcast – s.6(1A), unless:

1. The transmission is taking place simultaneously on the internet and by other means ;...