#1686 - Copyright Subject Matter - Intellectual Property Law

1. Copyright Subject Matter

The Copyright, Designs and Patents Act 1988 (CDPA) – Provides an exhaustive list of the specific types of creation automatically protected by copyright law. Must bring creation within one or more of these categories to show they attract copyright protection.

Issue: The closed nature of the categories has meant that copyright has been ‘stretched to give protection to creative talents and activities the protection of which was never in the contemplation of those who have been responsible for framing the statutes’ (CBS v. Ames).

In other cases, the fact that the list is exhaustive has led to the exclusion from UK copyright law of ‘works’ which would be protected in countries operating a non-exhaustive system:

• Creation Records v. News Group [1997]; Noel Gallagher arranged for a series of objects to be placed around a swimming pool and then photographed by C to be used as an album cover. C’s interim injunction claim against a newspaper photographer who had taken pictures of the arrangement failed because the scene did not fall within the meaning of a protectable work, primarily it was not an artistic or dramatic work.

• Lancome Parfums v. Kecofa [2006]; Dutch Supreme Court protected perfumes by copyright. Clearly not possible under UK law.

Issue: Is it possible for a creation to fall within two categories of works simultaneously? Unclear.

No:

• Electronic Technique v. Critchley [1997];

Facts: Laddie J had to consider whether a circuit diagram could simultaneously be a literary and an artistic work.

Decision: Laddie J: Although it might be possible in theory that a single creative effort may ‘give rise to two or more copyrights in respect of the same creative effort’, nonetheless, ‘there are compelling arguments that the author must be confined to one or other of the categories.’ Thought was too substantial for protection purposes. It is not possible for two distinct copyrights to subsist in the result of a single creative effort.

Yes:

• Anacon Corpn. [1994]; Jacob J suggested that a circuit diagram is both a literary and an artistic work. Held literary, not artistic work, was infringed.

• Norowzian v. Arks (No.2) [2000]; CA accepted that the maker of a film may simultaneously produce two copyright works: a film copyright in the fixation and a dramatic work in the ‘cinematographic’.

Important because an artistic work that is 2d can be infringed by 3d copies. But that is not true for literary works. So a new 3d circuit could infringe the 2d artistic work.

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(a) Is the work a protected work?

1. Literary Work – S.3 CDPA defines ‘literary work’:

Scope of ‘literary works’:

• Literary works are mutually exclusive of dramatic/musical works – i.e. for a song the copyright works will be split in two: literary work (lyrics) and musical work (music).

• Literary works includes works that are spoken so spontaneous conversations and interviews may be protected, but only if it is recorded.

• Copyright not does pass judgment on the standard of the work:

• *University of London Press v University Tutorial Press [1916]; Quality irrelevant.

Facts: Were mathematics examination papers were ‘original literary works’ for copyright?

Decision: Peterson J: Yes - ‘The words ‘literary work’ cover work which is expressed in print or writing, irrespective of the question whether the quality or style is high’.

Principles: 1) Literary works are not limited to works of literature, but include all works expressed in print or writing (other than dramatic or musical works).

2) The definition of ‘written’ highlights that aesthetic or qualitative criteria are irrelevant when it comes to identifying a literary work’.

Where are the boundaries of the category to be drawn?

• Hollinrake v. Truswell (1894); To qualify as a ‘book’ under Literary Copyright Act 1842, the creation must afford ‘either information and instruction, or pleasure, in the form of literary enjoyment’. This is not a comprehensive or exhaustive definition.

• Protection also includes symbols and numerals. Courts have been willing to accept a low threshold when considering whether a work ‘conveys an intelligible meaning’:

• Express Newspapers v. Liverpool Daily Post (1985);

Creating the sequences of letters set out in 5x5 grids published in a newspaper involved skill and labour and provided info. as to whether a reader had won or lost a bingo game so work.

Criticism: Dangerous as drifting towards protecting the ideas themselves. Just result though.

For a work to convey an ‘intelligible meaning’ it is not necessary that the work be understood by the general public; sufficient a limited group with special knowledge understands:

• Apple Computer v. Computer Edge [1984]; Ciphers, mathematical tables, systems of shorthand and Braille catalogues convey meaning and qualify as literary works. However, ‘meaningless rubbish would plainly be excluded’.

• *Exxon; Held the invented company name failed to convey info.

Categories:

1. Names, trademarks and titles

*Copyright does not exist in titles to things, names or trade marks:

• Green v. Broadcasting Corpn of New Zealand [1989]; Game show title ‘Opportunity Knocks’ was held not to be protected.

• Rose v. Information Services Ltd [1987]; ‘The Lawyer’s Diary’ - Phrase held to be a simple, accurate description of the product and not a literary work of originality.

• Francis Day and Hunter v. 20^th Century Fox [1940]; Copyright in the song, ‘The Man Who Broke the Bank at Monte Carlo’ was not infringed by the performance of a motion picture with the same title.

• Sinanide v. La Maison Kosmeo; Phrase: ‘Beauty is a social necessity not a luxury’ held not to be infringed by: ‘A youthful appearance is a social necessity’.

Justifications:

1. These matters are not literary works at all because they do not afford information or literary pleasure (Exxon) – criticised by Dworkin and Taylor.

2. Names and titles are not ‘original’. The title is not the result of a substantial amount of labour, skill and judgment, or it itself not ‘substantial enough’ (Rose and Francis Day). This approach leaves room for the possibility that some creative titles might qualify for copyright protection, particularly lengthy titles which are a product of substantial skill, labour and judgment. PC indicated that in future this might be possible in Francis Day:

• Lamb v. Evans [1893]; Headings in trade directory protected.

• Shetland Times v. Dr Jonathan Wills [1997]; Arguable news headline of 8 words was protected because it was designedly put together for purpose of imparting info.

3. Policy: General inconvenience if someone was able to control the way certain words and phrases were used. Unnecessary too as adequately protected by passing off and TM law.

2. Tables and Compilations (other than databases)

*Prior to the amendment made to s.3 CDPA by the Database Directive (which recognised databases as a specific type of literary work) a wide range of subject matter had been protected as compilations:

• Ladbroke v. William Hill [1964]; Lord Evershed said football pools coupons constituted ‘a compilation in the sense that it is made up by putting together in writing (in print) a number of individual items or components’. The work as a whole attracted copyright protection, although the individual components did not.

• Elanco v. Mandops [1980]; Leaflet conferring info. about herbicides.

• Independent Television Productions v. Time Out [1984]; TV schedules protected.

• Blacklock v. Pearson [1915]; A timetable index.

NB. Most of this subject matter would now be protected as databases so there will be little room for ‘tables and compilations’ in the future.

3. Computer programs

*Decided in 1980s that computer programs are protected by copyright law as literary works. Entrenched by the European Software Directive. ‘Computer program’ clearly includes source code (Ibcos Computers [1994]), assembly code and object code.

4. Preparatory design material for computer programs

*Brought British law into conformity with the EC Software Directive. It has been suggested that this is an inappropriate way of implementing the Directive and that preparatory design material should be treated as part of a computer program (Chalton [1993]; Mejiboom).

5. Databases

S.3(1)(d) CDPA: In order to comply with the Database Directive, ‘databases’ is now a distinct class of literary works.

‘Database’: S.3A CDPA: ‘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’. Broad enough to cover most things previously seen as tables or compilations, so can include paper databases.

Databases are protected in two ways:

1. By copyright if they reach the threshold for originality; or

2. By a sui generis database right (15 years) if the maker can show ‘there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents’ of the database.

• Fixtures Marketing Ltd v. OPAP [2005]; ECJ considered that the notion of a database was intended to have ‘a wide scope, unencumbered by considerations of a formal, technical or material nature’. Consequently there was no reason why a collection of sporting info. (fixture lists) could not be a database. Court noted that the materials should be arranged in a ‘systematic or methodical’ manner so as to be individually accessible. Hence a book of poems could be a database or...