#10540 - Copyright Law Rights And Infringement - Intellectual Property Law

Rights and infringement

Nature of the rights

• The scope of rights is important – it determines the types of activity which, unless done with the copyright owner’s consent, amount to an infringement of the owner’s copyright

• Theme – the types of activity that have fallen within the copyright owner’s control have expanded

  • Statute of Anne 1710 – conferred on author’s the limited right to ‘print and reprint’ those books

• One of the key features of the restricted activities in s16-21 – based on a notion of strict liability – the state of mind of the defendant is irrelevant when determining if infringement has occurred

  • The defendant’s innocence may only be relevant when determining damages – s97(1)

2 issues when determining infringement:

• Has D committed an act reserved to the copyright owner (without his permission) – s16(1) CDPA

• Has D committed such an act in relation to the work directly or indirectly, in relation to a whole of a substantial part of it? – s16(3) CDPA

The right to copy/the right of reproduction

• Section 16(a) – copying the work is an act reserved to the copyright owner

• Section 17 CDPA – the act of copying is defined as such:

  • S17(2) – LDMA works – “reproducing the work in any material form. This includes storing the work in any medium by electronic means”

  • S17(3) – artistic works – includes “making a copy in 3D of a 2D work and the making of a copy in 2D of a 3D work”

  • S17(4) – films/broadcasts – copying includes “making a photograph of the whole or any substantial part of any image forming part of the film or broadcast”

  • S17(5) – typographical arrangement – copying means “making a facsimile copy of the arrangement”

  • S17(6) – all works – copying includes “the making of copies which are transient or incidental to some other use of the work”

• Info Soc Direction – Art 2

  • “MSs shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part: (a) for authors, of their works”

• Right applies to all works but the scope of the right varies depending on the type of work in Q

• A common factor to all works – infringement takes place whether the copy is permanent, transient, temporary, or incidental to some other use of the work

  • The problems posed by the internet for copyright holders are ones of detection rather than absence of liability

• Beyond the specific examples listed in the 1988 Act – q of how different a copied work can be from the “original” work is a Q decided by the courts

• The courts have stated that in order to infringe, the derived form must be “objectively similar” to the copyright work – Francis Day Hunter v Bron [1963]

Davis Holdings v Wright Health Group [1988]

• Where the copyright work consists of instructions how to make or do something, the literary copyright in the instructions will be infringed if the instructions are copied or repeated in different words

• BUT (as in this case) the copyright will not be infringed where someone follows the instructions of a recipe and bakes a cake to the recipe

• This is because what is protected is the literary effort in creating the recipe as a work of information and not the cake per se

Sandman v Panasonic [1998]

• Hmm but note this case

• A copyright infringement action was brought in respect of two circuit diagrams that were included in an article

• C argued that the copyright that existed in the two-dimensional descriptive literary work was infringed when the design was made into a 3D circuit and incorporated into amplifiers, CD players etc

• Pumfrey J – noted that Lord Oliver’s comment in Interlego indicated that protection for change of form from 2D to 3D was limited to artistic works

• BUT Pumfrey went on to say that “I suspect that the proper answer is that the circuit itself is reproduction because it still contains all the literary content of the literary work”

• Accepted that in certain circumstances, a 2D literary work that described something could be reproduced in 3D form

Analysis

• Possibly a distinction between non-factual and factual descriptions – a description written by an engineer would more likely be protected than a description written by a novelist/poet

• It also seems that the work would have to be precisely defined – this reduces the risk of inhibiting creation

Infopaq [2009] CJEU

• Is the following an act of reproduction? – storing temporarily and printing an extract of a literary work eg a newspaper article. Yes

• Remember – Infopaq establishes that phrases can be protected by copyright as literary works in themselves (but not words – need some “arrangement”)

• The case was brought before the Højesteret, which referred questions to the Court of Justice concerning the interpretation of Directive 2001/29/EC (Info Soc Directive) on the harmonisation of certain aspects of copyright and related rights in the information society, and in particular on the concept of reproduction in part and on whether the procedure in question can be used without the consent of the rightholders

• ECJ – preamble of Info Soc Directive:

  • States that a harmonised legal framework on copyright, through increased legal certainty and through providing a high level of protection of intellectual property, will foster substantial investment in creativity and innovation

  • Without harmonisation at Community level… “restriction on the free movement of services and products… leading to a refragmentation of the internal market”

  • “Any harmonisation of copyright and related rights must take as a basis a high level of protection” so that authors receive an appropriate reward for their work

  • The Directive should define the scope of the acts covered by the reproduction right and “a broad definition of these acts is needed to ensure legal certainty within the internal market”

• Art 2(a) Info Soc Directive – “MSs shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part: for authors, of their works”

• The parties did not dispute that the procedure entailed the reproduction of parts of the scanned printed articles BUT the dispute – whether there is reproduction as contemplated by Art 2

• Q: does Art 2 reproduction encompass the storing and subsequent printing out of a text extract consisting of 11 words?

• ECJ – the Directive does not define “reproduction” or “reproduction in part” SO the concepts must be defined having regard to the overall objectives of the directive

  • Recital 21 in the preamble – acts covered by the right to reproduction must be construed broadly

  • Art 2 itself seems to signal that the acts should be broadly defined – uses expressions such as “by any means” and “in any form”

• ECJ – authors have an exclusive right to prohibit reproduction only OF THEIR WORKS protected by copyright

  • The protection of subject matter as literary works presupposes that they are intellectual creations

  • Works are protected by copyright if they are original in the sense that they are the author’s own intellectual creation

  • There is nothing in the Directive to suggest that parts are to be treated any differently from the work as a whole

  • “they are protected by copyright since, as such, they share the originality of the whole work”

  • As regards newspaper articles, the author’s own intellectual creation is evidenced from the manner in which the subject is presented and the linguistic expression

  • NOTE – words in isolation are not an intellectual creation of an author who employs them – “it is only through choice, sequence and combination of those words that the author may express his creativity in an original manner”

  • BUT given the requirement of a broad interpretation of the scope of protection, isolated sentences or “even certain parts of sentences” may be suitable for conveying the originality

  • IN THIS CASE the extract comprising of 11 consecutive words “is such as to constitute reproduction in part… if that extract contains an element of the work which… expresses the author’s own intellectual creation; it is for the national court to make this determination”

SAS Institute v World Programming (2012)

• Claimant – SAS Institute is a developer of analytical software known as SAS

• SAS System is a set of programs that enables users to carry out data processing tasks/statistical analysis

• There were many other suppliers of analytical software that compete with SAS Institute

• A customer who wanted to change over to another supplier’s software would be faced with re-writing its existing application programs in a different language

• Defendant, World Programming (WPL) thought there would be a market demand for alterative software which would be able to execute application programs written in the SAS Language

• It created WPS – World Programming system, where it sought to emulate much of the functionality of the SAS Components

• No suggestion that WPL copied SAS’s source code

• STILL SAS Institute contended that WPL had committed a series of copyright infringements in creating WPS

• Claimed:

  • WPL copied the SAS manuals (infringing copyright in these)

  • By copying the SAS manuals, WPL indirectly copied the SAS Components (infringing copyright in these)

  • Infringed the copyright in the Learning Edition

  • Infringed the copyright in the SAS manuals by creating its own WPS Manual

• FIRST ISSUE – WHAT AMOUNTS TO AN ORIGINAL LITERARY WORK?

• Software Directive – Art 1 (Object of protection)

  • (1) MSs shall protect computer programs as literary works. The term ‘computer programs’ shall include their preparatory design material

  • (2)...