#15019 - Copyright Subject Matter And Originality - Intellectual Property Law

The need for copyright resulted from the invention of the printing press

16^th Century: Printing of books was a monopoly (controlled by a guild)

• Only the Stationers’ Company was given royal authorization to print books and in turn carried out a censorship function

• Its authority ended in 1695 when the Licensing Act 1662 lapsed

Statute of Anne 1710

• First copyright Act

• Any printer or author could obtain protection by enrolling the book in the register of the Stationers’ Company

  • Would receive 14 year copyright for printing and reprinting (could be renewed)

• Possible significance

  • Helped secure the interests of printers and booksellers?

  • Broke the printing monopolies?

  • Decoupled the roles of censorship and printing

Copyright Act 1814

• Extended copyright in literary works to 28 years after publication

  • If the author was still alive at the end of 28 years, it would last for the remainder of his life

• Met with suggestions from Talfourd that the term be life + 60 years

Copyright Amendment Act 1842

• Extended the term to life + 7 years or total 42 years from publication (whichever was longer)

Other non-literary works (e.g. plays, art) were protected on subject-specific basis

• Engravers’ Act 1735: 14 year copyright

• Models and Busts Act 1798: 14 year copyright

• Dramatic Literary Property Act 1833: 28 year copyright

• Fine Arts Copyright Act 1862:

Copyright Act 1911

• Codified the copyright legislation, increased the scope to other works (e.g. sound recordings, architecture and films)

• Protection was granted to both published and unpublished works

• Abolished common law copyright

• Life + 50 years

• Abolished all formalities (no need to register)

Copyright Act 1965

• Protection extended to sound and TV broadcasts and typographical arrangements

  • Later amended to include cable transmissions and software

  • These were classified as “subject matter” instead of “works” (which referred to literary, dramatic, musical and artistic works)

Copyright Designs and Patents Act 1988 (CDPA)

• Based on a review by the Whitford Committee

• Removed the distinction between subject matter and works

• Protection was extended to include distribution, rental rights and even moral rights

Berne Convention on the Protection of Literary and Artistic Works 1886

• First multilateral treaty on copyright law

  • Grown from 10 to 168 contracting countries

• Art 1: Signatories “constitute a Union for the protection of the rights of authors in their literary and artistic works”

• Applies to authors who are nationals/residents in a Union country or whose works are first published in a Union country

• Fundamental Principle 1: National treatment

  • National copyright legislation in one Union country cannot discriminate against authors from other Union countries

  • EXCEPTIONS

    • Droit de suite: right to receive percentage of sale price on original works that are subsequently sold

    • Duration of protection

    • Works of applied art and industrial designs and models

• Fundamental Principle 2: Minimum rights

  • Union countries are obliged to offer the minimum rights to authors from all other Union countries (although most also offer these to their nationals)

  • Include economic rights, moral rights and minimum duration of protection

International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations 1961 (Rome Convention)

• Response to technological developments resulting in new types of works

  • Performers, sound recording producers and broadcasters weren’t protected under the Berne Convention (not literary or artistic works)

  • The Rome Convention doesn’t affect literary and artistic works

• Grown from 41 to 92 contracting States

• Fundamental Principle 1: National treatment

  • Performers: Only if the performance takes place in another Contracting State or is incorporated in a protected phonogram or broadcast

  • Phonograms: Only if the producer is a national of another Contracting State or the sound was first fixed or published in another Contracting State

  • Broadcasting: Only if the HQ of the organization is in another Contracting State or the broadcast was transmitted from another Contracting State

• Fundamental Principle 2: Minimum Rights

  • NOTE: Unlike Berne, doesn’t contain moral rights

  • Performers: Have the possibility of preventing broadcasting/communication to the public without consent, reproduction or fixation of the performance

  • Phonograms: Right to authorize/prohibit direct or indirect reproduction

  • Broadcasting: Right to authorize/prohibit rebroadcasting, fixation or reproduction

  • These rights must last for at least 20 years

Agreement on Trade Related Aspects of Intellectual Property Rights 1994 (TRIPS)

• Part of the WTO Agreement (binds all WTO members)

• Art 9: All Members must comply with Art 1-21 of the Berne Convention

  • BUT no obligation to comply with Art 6bis (moral rights)

• Art 9(2): Copyright protection is for “expressions” and not “ideas”

• Art 10(1): Computer programs are literary works under the Berne Convention

• Art 14: Extends Rome Convention protection (performers, broadcasters and sound recording producers) to 50 years

• Disputes between WTO Members about TRIPS obligations are subject to WTO’s dispute settlement procedures

  • Since Berne Convention is incorporated, this is a means of enforcing it

WIPO Copyright Treaty 1996 (WCT)

• Agreement entered into by Berne Union countries

• Clarifies Berne Convention provisions

  • Computer programs and databases are literary works

• Term of life + 50 years applies to all works (including photographic and artistic)

WIPO Performances and Phonograms Treaty 1996 (WPPT)

• Improves on protection under Rome Convention

  • Creates moral rights and give exclusive rights to performers as well

  • Term of 50 years

WIPO Beijing Treaty on Audiovisual Performances

• Creates minimum protection standards for audiovisual performers (e.g. film actors)

• Adopted in 2012 but will only enter into force after 30 parties have rectified it

  • UK has not yet signed the treaty

EU Directives

• Specific subject matter directives

  • E.g. Software Directive and Database Directive

• Dealing with specific rights or issues

  • E.g. Rental Right Directive

• General harmonization directives

  • Information Society Directive

• Much of the amendments to UK copyright protection are a result of having to implement such EU directives

1. Ownership of physical copy of copyright work does not imply ownership of the copyright

2. Copyright arises without formality

3. Idea and Expressions (Jefferys v Boosey 1855)

   1. Claim is as to order of words, not ideas.

   2. Way of justifying copyright protection. Work flows from individual, and is distinctively individual.

   3. McQueen/Moss, and Cadbury ad. Very thin line between Ideas and expressions.

Unregistered right: no formalities required

• Mandated by Berne Convention

• Formalities abolished in UK by Copyright Act 1911

• Implications

  • Easier to acquire than other types of IP rights

  • BUT when there are infringement proceedings, the owner will have to prove that he is entitled to copyright protection

BEFORE:

• Part I works: classic copyright works

  • Literary, dramatic, artistic and musical works

• Part II works: Subject matters of copyright (neighboring rights)

  • Sound recordings, films, broadcasters and published editions.

NOW:

• Copyright is a property right which subsists in ALL OF THOSE THINGS (CDPA s.1)

• Note that common for one piece of work to have more than one copyright

• Berne Convention protects all “literary and artistic works”

  • Includes a non-exhaustive list of examples

• Open List approach (France)

  • Intellectual Property Code 1992 refers to “all works of the mind”

  • Non-exhaustive list

• Closed List approach (UK)

  • CDPA 1988 protects ONLY 8 specific types of works

    • Literary, dramatic, musical and artistic works, films, sound recordings, broadcasts and typographical arrangements

  • In order to rely on copyright, the work must fall within one or more of these categories. Have to get case within one of these.

  • NEEDS TO BE A ‘WORK’ – but note that this is under attack.

• Is it the ‘author’s own intellectual creation?’

  • Infopaq, BSA, FAPL, Nintendo

• BSA v Ministerstvo kultury (2011) C-393/09

  • Held that GUI is not computer program, but still can be protected by copyright if it is author’s own intellectual creation

  • CJEU suggested that a graphic user interface (GUI) could be protected by copyright if it is “original in the sense that it is its author’s own intellectual creation” (as a result of Infopaq)

• Football Association Premier League v QC Leisure (2011) C-403/08

  • CJEU considered if football matches could be copyright protected

  • Nope, cant be protected – cannot be regarded as intellectual creations classifiable as works.

  • BUT accepted that, in principle, they could be protected as long as they were original “in the sense that it is the author’s own intellectual creation”

• Nintendo: Video games comprise a computer programe and sound elements

  • They are part of originality, and will be protected with entire system.

  • HOW IS THIS GOING TO FIT IN with our closed systems?

• IMPLICATION: CJEU has suggested that intellectual creations can be protected by copyright without having to categorise them as particular works

CDPA s3(1): “any work, other than a dramatic or musical work, which is written, spoken or sung”

• Includes tables or compilations other than a database, computer...