#10539 - Copyright Law Copyright Subsistence - Intellectual Property Law

Subsistence of copyright

• Central questions

  • Is the material of the kind that attracts copyright?

  • If so, for what duration?

• Previous copyright act distinguished between Part 1 - copyright of creators in literary, dramatic, musical and artistic works (authors rights) and Part 2 – copyright, given in other subject-matter to entrepreneurs who produced sound recordings, films, broadcasts and published editions (neighbouring rights)

  • This distinction is also reflected in International Conventions – the 1886 Berne Convention protects ‘author’s rights’ and the 1961 Rome Convention protects ‘neighbouring rights’

• Copyright, Designs and Patents Act 1988 obliterated the division – the two types are listed indiscriminately

• The copyright is in a “work” and is usually initially granted to an “author” who “creates” it

• The old strain of common law – did not see a difference between true creators and investors in the creations of others – it inclined to prefer the latter

Whether a right attracts copyright – CHECKLIST

• The work must fall within one of the 8 categories of work listed in the Act

• For copyright to subsist, the work must be recorded in a material form – this only applies to literary, dramatic and musical works

• The work must be ‘original’ – this only applies to literary, dramatic, musical and artistic works.

• For sound recordings, films, broadcasts and typographical arrangements, copyright subsists to the extent that such works are not copied from previous works

The type and quality of subject matter

1(1)(a) Original literary, dramatic, musical and artistic works

• These works are accorded copyright by the CDPA 1988

• Root requirement – sufficient “skill, judgment and labour” OR “selection, judgment and experience” OR “labour, skill and capital” (last formulation – Lord Atkinson Macmillan v Cooper (1923) – useful when facts have been amassed by “sweat of the brow” – must be expended by the author in creating the work

  • The input must satisfy a certain minimal standard of effort

  • Otherwise, there is nothing that can be treated as a “work” or the work will not be regarded as original

• Another basic axiom – copyright protects the expression of an idea rather than the idea itself

  • In the case of literary, dramatic and musical works this leads to difficult questions about the need to record the expression in some permanent form

• UK copyright law requires that the creation fit within at least one of the 8 categories of work – less flexible than Continental systems which favour an “open list” approach to subject matter

• Since the Act provides an exhaustive list of the protected subject-matter, there is little opportunity for the courts to recognise new forms of subject-matter, although they can through the creative interpretation of the existing categories

• Since there is no law of unfair competition in UK law, copyright has sometimes been ‘stretched to give protection to creative talents and activities the protection of which was never in the contemplation’ of those who made the statutes (CBS v Ames Records [1981])

• UK law treats separate elements in a creation as having distinct copyrights – the words and music of a song are respectively literary and musical works, each with their own author and term

  • Now that much material can be held in digital form this distinction may disappear

  • The rights attaching to each type of work differ – should the law adopt an exclusive or a cumulative approach? -

  • Should copyright law hold that work be placed in only one category, by reference to its main attributes?

  • OR should it always be separated into its constituents, each enjoying their own relevant type of copyright?

  • The issue needs to be settled

Literary works

• CDPA ss1(1)(a) recognises that copyright subsists in literary works

• S3(1) – literary work is work which is written, spoken or sung, and accordingly includes –

• (a) a table of compilation other than a database

• (b) a computer program

• (c) preparatory design material for a computer program

• (d) a database

University of London Press v University Tutorial Press [1916]

• Peterson J – “work which is expressed in print or writing, irrespective of the question whether the quality or style is high”

• Copyright has been allowed in mundane compilations of information

• In this case, copyright was allowed for an examination paper

• The principle of sufficient “skill, judgment and labour” operates to exclude only those cases where the degree of literary composition is slight – de minimis principle

NAMES AND TITLES

Exxon v Exxon Insurance [1982]

• It seems that a literary work must convey information or instruction and must therefore convey an intelligible meaning – Hollinrake v Truswell (1894) - but intelligible meaning should be given a low threshold

• SO this case could be said to have been decided on the basis that a work fails to provide information where it is an invented name

• In this case it was held that the word EXXON which had been created to act as a company name, conveyed no information and hence was not protected as a literary work

• In most cases, the name/title of books and films are treated as insufficiently substantial to attract copyright themselves

• The same is true of a trade mark or name – copyright is not a means of preventing a well-known mark from being applied to an entirely different product or service (that was the issue in this case)

• Two reasons are used to account for the exclusion of names or titles from copyright:

  • That these matters are not ‘literary works’ at all – although names and titles are in writing, they do not afford ‘information, instruction or pleasure of a literary kind’ – this indeed seemed to be the basis for the decision in EXXON – perhaps seems to suggest a qualitative test that would run counter to the widely accepted principle that the quality of the work is not to be taken into account

  • We could instead focus on the fact that names and titles are not ‘original’ – that is to say that a title is not the result of a substantial amount of labour, skill and judgment – this approach leaves room for the possibility that creative titles might still qualify for protection

  • POLICY REASONS – general inconvenience would arise if someone was able to control the way certain works and phrases were used

  • ALSO – unnecessary to protect titles and names – they are adequately protected under trade mark law and artistic copyright

TABLES AND COMPILATIONS

• The reason why databases were placed in a separate category was to enable the 1988 Act to impose a different requirement of originality on databases from that applied to tables and compilations

• A database is defined in very wide terms – 1988 s3A(1) – a collection of independent works, data or other materials which are (a) arranged in a systematic or methodical way and (b) are individually accessible by electronic or other means

  • 3A(2) – original only if ‘author’s own intellectual creation’

• Prior to the amendments, a wide range of subject matter had been protected as compilations eg Ladbroke v William Hill [1964] – case of football pools coupons - Lord Evershed said that the coupon is ‘a compilation in the sense that it is made up by putting together in writing a number of individual items or components’

• Now, the subject matter previously protected as compilations would probably be protected as databases

• If this is the case, it will leave little or no room for ‘tables and compilations’ in the future

• It is unclear whether multimedia works can be protected as compilations – is protection afforded to compilations of information or to compilations of literary works?

• Databases are wider – defined without restriction to the type of material

  • It therefore seems that a compilation of artistic works or sound recordings could be protected as a literary work

Secondary work

• Literary work also covers secondary work on existing sources, provided that it involves literary “skill, labour and judgment” – the same de minimis principle applies

• A piece of historical writing, a news report, a selection of poetry all attract copyright once the choice and arrangement of source material is more than minimal

• Ashmore v Douglas-Home [1987] – it makes no difference to the position whether the material taken from elsewhere is in or out of copyright

• BUT if the source(s) are still in copyright and they are reproduced to a substantial extent in the final work, the permission of all will be needed for reproducing it – this applies where the work evolves through a series of drafts/formulations

Walter v Lane [1900]

• Literary, dramatic and musical works cannot generate copyright unless they are recorded

• If the record was the taking down of an oral version writing, for instance, by shorthand, then this case still applies

• This treated the reporter as entitled to literary copyright in the report of the speech by virtue of his skill and labour in reducing it to permanent form

• However, this decision was reached before the statutory requirement of “originality” was included in the law

• Is this case still applicable? – Roberton v Lewis (1960) suggested a distinction between one who uses an aesthetic skill to make a record and one who uses a standard technique, such as tape recording

The test of sufficient skill

Ladbroke v William Hill [1964]

• In deciding whether there has been sufficient skill, the courts take account not just of skill in literary expression but also of commercial judgment

• A fixed-odds football pool form attracted copyright even though it only consisted of a compilation of 16 known forms of bet

• Account was taken of the skill deployed in...