#1681 - Copyright Infringement - Intellectual Property Law

4. Infringement

The Economic Rights

Restricted acts - violation of which is a primary infringement of copyright:

These economic rights comprise the copyright owner’s monopoly and allow the owner to exploit the work in a variety of ways.

‘Infringement’ is defined as:

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a) Reproduction

= Simply digitizing a work amounts to a copy and includes transient and incidental copying. So running a computer program or browsing an internet page involves copying because transient copies are made in the computer’s RAM.

S.17(3): Copying includes changes of dimension from 2D to 3D and so on. This can create tension between copyright and design laws.

Issue: Is reproduction in a different dimension or material form prohibited for works other than artistic works? Does a set of instructions (such as a recipe or knitting pattern) and producing an article according to those instructions amount to infringement of the literary work represented by the instructions?

• Brigid Foley v. Ellot [1982]; Craft books and knitting patterns not covered.

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b) Distribution

S.18 CDPA: Contains the right to issue copies of a work to the public. S.18 has been amended twice in order to implement Art.4 of the Software Directive and Art.9 of the Rental Rights Directive.

Issue: There is uncertainty regarding at what point issuing of copies to the public occurs.

+ Bently and Phillips: Important to find out because anyone who deals with the copies subsequent to the first issuing to the public will not liable for infringement due to s.18(3). ‘Destination theory’ (issuing only occurs when distribution reaches its final destination, the consumer; so retail sale point. Supported by phrase ‘the act of putting into circulation’. Generates strict liability for the retailer) vs. ‘disposition theory’ (implies every act is sufficient).

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c) Performance in Public

S.19 CDPA: Grants the exclusive right to perform a literary, dramatic, or musical work in public, and the right to play or show a sound recording, film, or broadcast in public.

Issue: Difficult to determine when the performance is in public. Different approaches have been adopted by the cts –

• Harms Ltd and Chappell v. Martans Club Ltd [1927]; + Hanworth MR: 1. Has there been admission of any portion of the public – ‘the class of persons who would be likely to go to a performance if there was a performance at a public theatre for profit’. 2. Consider the performance is ‘domestic’, ‘a matter of family and household concern only’. 3. Consider where the performance took place.

• Jenning v. Stephens [1936]; ‘The true criterion seems to be the character of the audience’.

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d) Communication to the Public

S.20 CDPA: The exclusive right to communicate a work to the public applies to all works, except for typographical arrangements of published editions.

Key difference between this right and that of performance in public is that, for the latter, the audience is in the same place at the same time, whereas, with the right of communication to the public, the audience may be geographically and chronologically dispersed.

S.20(2): Makes clear that communication to the public covers both broadcasting and internet transmissions, the latter being covered by the language of ‘making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them’.

Issue: Where exactly does the communication take place?

• *Football Dataco v. Sportradar [2011]; Another case about data of football matches.

Facts: Info on D’s website about who got red cards etc. in matches. D’s website based in Germany, Austria or Netherlands, but could be accessed from UK. Question arose – were they making available the data or copyright work in the UK, even though their server was in the Netherlands? Did they infringe UK copyright or database rights where act physically took place outside UK? Depended whether you adopt the ‘emission theory’ (work made available when emitted and sent out – D said done in Germany), C argued that work could be received in UK, so was made available.

Decision: 1^st instance held making available occurred where signals uploaded (emission theory) – no infringement. CA referred to CJEU in March this year.

Criticism: Do not know the answer yet. Interesting q. Policy arguments – uploaded v. received. If uploaded then that is at least within the control of the actor; but from C’s perspective D could upload from a country with a weak copyright law. Copyright owner want to be received theory – uploaders do not like as they would have to comply with highest copyright law in any country that can receive websites. So lot at stake.

• SGAE v. Rafael Hoteles SL [2007]; While the mere provision of physical facilities did not amount to a communication within the meaning ofDirective 2001/29, the distribution of a signal by means of television sets by a hotel to customers staying in its rooms, whatever technique was used to transmit the signal, constituted communication to the public within the meaning of Art.3(1) .

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e) Adaptation

S.21: Right is restricted to literary, dramatic, and musical works and is defined narrowly.

S.21(3)(a): It includes a translation of literary or dramatic work or converting a non-dramatic form into a dramatic form.

S.21(3)(b): In relation to musical works, adaptation means an arrangement or transcription.

Adaptations may qualify separately for protection assuming that the originality requirement has been satisfied:

• Redwood Music v Chappell [1982]; musical adaptation held to qualify separately for copyright protection because it satisfied the requirement of originality. The fact that the adaptation is carried out without permission will not preclude it from protection.

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Primary Copyright Infringement

‘Primary infringement’: Occurs where a person does, or authorises another to do, without the licence of the copyright owner, one of the exclusive acts restricted by the copyright (s.16). There is no requirement of knowledge on the part of the infringer and so innocently doing one of the acts will not constitute a defence; it may be relevant to an award of damages (s.97(1)).

Structure:

1. Has P carried out one of the exclusive acts or authorised the doing of one of them?

2. Does the alleged infringing activity fall within the scope of an express or implied licence?

3. Is there a causal connection or copying of the copyright right?

4. Has the act been done in relation to the ‘whole or substantial part’ of the work?

‘Causal connection’ – Essential to show that the allegedly infringing work was copied or derived from the relevant copyright work. Independently creating the same or similar work will not amount to infringement. Sometimes D will argue that the circumstances in which they created their work had nothing to do with the claimant’s copyright work.

• *Designer Guild v. Russell Williams [1998];

Facts: DG owned copyright in a painting from which it had produced its Ixia fabric design; vertically stripped pattern scattered with flowers. DG complained RW infringed copyright in its painting, by copying the Ixia design in its own Marguerite design; i.e. indirect copying.

D’s arguments: Claimed it was unaware of Ixia design at the time of creating its own design. However, there was evidence the Ixia design had been displayed at a trade show D attended.

Decision: Collins QC held here that copying had occurred because of numerous similarities. Decided for the claimants because of the, ‘(1) many and obvious similarities; (2) the opportunity to copy; and the (3) complementary nature of the acetate.’

+ Hoffman: Famous for saying CR protects “foxes better than hedgehogs”.

+ Chacksfield: Believes this comes from a speech of Isaiah Berlin indicating a comparison between the trivia/minutiae (hedgehogs) against a grander, large idea (foxes).

Principles:

• Causal connection – ‘There must be a causal connection between the copyright work and any infringing work; infringement may be negatived by acceptable evidence of independent design and copying may not be an infringement if it fails to create a sufficient resemblance to amount to a reproduction’.

• Independent work - ‘There is no infringement if a person arrives by independent work at a substantially similar result to that sought to be protected’.

• Burden of proof – ‘The necessary proof of copying normally lies in the establishment of similarity combined with proof of access to the plaintiff’s productions (LB Plastics Ltd v Swish Products).’ ‘If there is proof of access and a sufficient similarity there will be a shift to the D of the evidential burden’.

= CA wrong as they broke work into its constituent parts. Called it ‘altered copying’. HL said you must look at the...