#15017 - Copyright Issues With Technology And P2 P - Intellectual Property Law

• Expanded from the original copyright under the Statute of Anne (1710) which only prohibited copying

• If a new mode of exploitation arises, it must either fit within the existing rights or a new right must be added to the legislation

• COMPARE: French approach

  • 2 broad rights of reproduction and performance

  • No need for regular amendments since these have been interpreted to include new forms of exploitation

• For literary, dramatic, musical and artistic works, this means “reproducing the work in any material form”

  • Includes “storing the work in any medium by electronic means”: so digitising the work (e.g. scanning) is copying

• For any type of work, includes transient or incidental copying

  • Considerable disagreement over the status of transient copying as a prohibited act

    • Some argued that this creates a right of access and is too far-reaching

    • Litman: “centrality of copying to use of digital technology is precisely why reproduction is no longer an appropriate way to measure infringement”

    • Makeen: There might be undue overlap with right of communication

  • NOTE: EU Information Society Directive creates a mandatory exception for transient or incidental copying as part of network transmission or legal use

    • Implemented in CDPA s28A

    • Infopaq: This exception only covers copies which are deleted automatically without human intervention

    • PRCA v NLA [2013] UKSC 18: UKSC held that normal browsing benefits from the temporary copies exception (for copies on the screen and cache)

      • Confirmed by the CJEU

• For artistic works, includes changes of dimension (2D to 3D or vice versa)

  • Unlikely for change of dimension or material to apply to other types of work

    • Making a dish based on a recipe is not copying

  • Autospin (Oil Seals) Ltd v Beehive Spinning [1995] RPC 683

    • C designed new type of oil seal, produced instruction charts for the calculation of necessary dimensions

    • D (ex-employees of C) manufactured oil seals which C claimed infringed copyright in their measurement charts

    • Laddie J: Not reproduction to create an oil seal based on instructions for calculation of measurements in a chart

      • “just as it cannot be a reproduction of literary copyright in a recipe for a cake to make a cake to the recipe, so it is not a reproduction to follow such mathematical instructions”

      • ALTHOUGH he left open the possibility that “making a three dimensional article from a data file in a computer (a literary work) which precisely defines the shape of the article is to reproduce it”

• Narrowly defined

  • Applies to literary/dramatic/musical works but NOT artistic works

  • Includes translation of a literary/dramatic work into another form

  • Includes arrangement or altered version or translation of a computer program

• An adaptation can qualify for its own copyright if it is sufficiently original

  • Even if it was carried out without permission (ZYX v King, 1995)

• Originally only a right of divulgation (right to publish for the first time)

• Phillips and Bently: 2 possible interpretations for when “issuing to the public” occurs

  • Point of disposition (when work is first put into circulation)

    • S18(2) defines issuing copies to the public as “the act of putting into circulation”

    • This interpretation supports the distinction between primary infringement (strict liability) and secondary infringement (liability for dealing in infringing copies with knowledge)

    • CJEU has held that the distribution right is exhausted once the goods are placed on the market in any EU country

  • Point of destination (when work is actually sold)

    • Art 4 of the Software Directive refers to “any form of distribution to the public by sale or otherwise” which may not include distributors/wholesalers

    • This interpretation gives more protection to copyright owners since those further down the distribution chain can be held liable

      • Avoids an overlap with the reproduction right

    • English first instance decisions (KK Sony Computer [2006] and Independiente Ltd [2007]) have implicitly accepted this approach

• Distribution right for computer programs

  • Art 4 of Software Directive: includes rental rights

  • UsedSoft v Oracle (2012): CJEU held that the right is exhausted through authorised downloading from the internet with right to unlimited use in return for a fee

• Distribution right for works other than computer programs

  • Not exhausted unless there is a first sale or ownership transfer with rightholder’s consent (doesn’t include online dissemination)

• Applies to literary, dramatic, musical and artistic works (besides architecture and applied art), as well as films as sound recordings

  • Implantation of Rental and Lending Rights Directive

• Rental: “making a copy of the work available for use, on terms that it will or may be returned, for direct or indirect economic or commercial advantage”

• Lending: Similar but not for economic/commercial advantage, through an establishment accessible to the public

  • Doesn’t include lending between public establishments (e.g. inter-library loans)

• S18A(3): Exclusions

  • Public performance, exhibition or on-the-spot reference use

• Unlike distribution right, not exhausted by distribution of copies or prior rental/lending

  • Foreningen v Laserdisken (1999): CJEU held that rental right can “be exploited by repeated an potentially unlimited transactions”

• When is the performance “in public”?

  • Harms Ltd and Chappell v Martans Club Ltd [1927] 1 Ch 526

    • Performance of a musical work at exclusive London club

    • CA (Lord Hanworth): The performance was in public

      • Should consider injury to the author, of which profits is a “very important element”

      • Should consider if there is “admission of any portion of the public”, which refers to the “class of persons who would be likely to go to a performance” at a public theatre for profit

      • Should consider if the performance is “private and domestic, a matter of family household concern only”

      • The location need not be one “kept habitually for the exhibition of dramatic entertainments”

  • Jennings v Stephens [1936] Ch 469

    • Play performed without consent at Duston Women’s Institute (62 members present, no guests)

    • CA: The performance was in public

    • Lord Wright: Presence of visitors, payment or number of audience are not decisive factors

      • “The true criterion seems to be the character of the audience”

      • Membership of the institute was open to all adult female residents of the village, so they were considered the public

        • Residence in the same village lacks the “quality of domesticity or quasi-domesticity”

      • If this sort of performance was not in public and could be repeated, then the “performing right would not be of much value”

    • Greene LJ: The “expression ‘in public’ must be considered in relation to the owner of the copyright”

      • If the audience was the “owner’s ‘public’ or part of his ‘public’”

Originally broadcast, aimed at bbc

• WIPO Copyright Treaty Art 8

  • Expanded on the rights in the Berne Convention

  • “exclusive right of authorising any communication to the public of their works … including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them”

    • Aimed at dealing with digital transmission of works

  • Definition of “to the public” left to national law

    • Reinbothe and Lewinski: This excludes close family circle and closest social acquaintances

    • Aplin/Davis: Should exclude material on domestic intranets and material on the internet which isn’t accessible to anyone but family and friends

      • Would not necessarily exclude material on school or company intranets

• Art 3 ISD implements this WCT right

• Previously covered only broadcasting and cable

• Now s20(2) includes:

  • Broadcasting

  • “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”

  • NOTE: These are not the only means of communicating to the public (Kitchin J in TV Catchup)

• No guidance as to where the communication takes place

  • Emission theory: Depends on where the interactive transmission originates

    • Davis/Aplin: Unclear if this is the place of upload or where the server is located

  • Communication theory: Depends on where the work is accessed or accessible (can also include the laws of place of origin)

• D showed live broadcasts of EPL matches using Greek satellite decoder cards (cheaper subscription) to receive the broadcasts from overseas

• Kitchin LJ: This was communication to the public, based on the CJEU reference

  • Communication to the public must be interpreted broadly in light of the objective of author protection

  • Includes “any transmission of the protected works, irrespective of the technical means or process used”

  • There must be transmission “to a new public” which wasn’t “taken into account by the author” when he first authorised its use

    • Authorising a broadcast covers TV owners who receive the signal for themselves (and family), not in a public place

  • The work must be “transmitted to a public not present at the place where the communication originates”

  • Relevant consideration that the communication is profit-making

  • BUT s72 exception applied (free public showing or playing of broadcasts)...