#1687 - Introduction To Copyright Law - Intellectual Property Law

Copyright Law

*PQ Structure:

1. Is this a type of qualifying material which is capable of being protected by copyright?

   1. A protected work?

   2. Material form?

   3. Originality?

2. Was the work created by a qualifying person?

3. Who owns the copyright and what is its duration?

4. Have the owner’s rights been infringed by D performing a restricted act?

5. Permitted acts and defences?

6. Remedies?

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‘Copyright’: Describes the area of IP law that regulates the creation and use that is made of a range of cultural goods, such as books, songs, films and computer programs. Copyright is an unregistered right, meaning that protection arises automatically without having to satisfy any formalities. Mandated by Article 5(2) of the Berne Convention. Makes it easier and less expensive to acquire and maintain copyright protection than other IPRs.

Separation of copyright and physical ownership - Although copyright is a property right, it is limited in time. Ownership of a physical copy of a copyright work does NOT imply ownership of the copyright itself; so I cannot make copies. E.g. You cannot publish letters sent to you.

Idea-Expression dichotomy – Copyright does not exist in the ideas themselves, but only in the forms they are expressed in.

TRIPS Art 9(2): ‘Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such’.

United States Copyright Act 1976: ‘In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in the work.’

UK embodies the principle through common law:

• Jeffery’s v. Boosey (1855); + Erle J: ‘the claim is not to ideas but to the order of words, and this order has a marked identity and a permanent endurance...the order of each man’s words is as singular as his countenance, and although if two authors composed originally with the same order of words, each would have a property therein, still the probability of such an occurrence is less than there should be two countenances that could not be discriminated’.

• *Nova v. Mazooma Games [2007]; N had CR in a computer game simulating games of pool. Trial judge said he could see there was similar features of the game but not substantial copying. Ideas are not protected. TRIPS lays down positive rule that copyright protection does not extend to ideas. Nova had simply been inspired. It had emulated but did not copy any programme code so was legitimate.

• *SAS Institute Inc v. World Programming Ltd [2010];

Facts: SAS is major player in business analytics software market. WPL saw market opening for alternative software which would be able to execute application programmes written in the SAS language so WPL creating a product to do that. WPL emulated functionality of SAS components as closely as possible, so tried to ensure that the same inputs would produce the same outputs, so its users would get same performance on the SAS or WPL system. No suggestion that WPL has access to source codes, or that WPL copied text or structural designs of the source code. Was it copyright infringement or clever business practice?

Decision: Following Nova, J Arnold found that replicating functionality did not infringe copyright; but some of the manuals did infringe. Asks Court of Justice questions about boundaries: Whether programming languages, interfaces and functions are protected by copyright? Raised issues surrounding boundary between ideas and expressions.

• *Elanco v. Mandops [1979];

Facts: Instructions on a can of weed killer. C had invented and patented a weed killer sold with a leaflet. When patent expired D began to sell weed killer with a leaflet similar to C’s. D brought out 2 further versions of the leaflet, not so similar in detail, but conveying the same data. Date was publically available.

Decision: CA granted an injunction. Lord Goff thought that revising away from a deliberate copy is not enough. If D had gone to the publically available scientific sources of info and produced their own leaflet that would have been ok.

Characteristics of the UK copyright system: Common law copyright is said to be the opposition to the civil law droit d’auteur system.

• Common law copyright model – Said to be primarily concerned with encouraging the production of new works, reflected in the law’s emphasis on economic rights, such as the right to produce copies. Another distinguishing factor is its relative indifference to authors, shown in the fact that British law presumes that an employer is the first owner of works made by an employee, the paucity of legal restrictions on alienability, and the limited and half-hearted recognition of moral rights. Although British law has abandoned the formal distinction between ‘author’s rights’ and ‘entrepreneurial works’, copyright treats these two broad categories differently.

• Civil law droit d’auteur model – Said to be more concerned with the natural rights of authors in their creations, reflected in the fact that the model not only aims to secure the author’s economic interests, but also aims to protect works against uses which are prejudicial to an author’s spiritual interests (in particular through moral rights). Also distinguishes between ‘author’s rights’ (droits d’auteur – literary, musical, dramatic and artistic work) and ‘neighbouring rights’ or entrepreneurial works (droits voisins). This division is based upon the belief that copyright for authors is the pure form and should not be conflated or equated with rights given in return for investment.

+ G. Davies and J. Ginsburg: Question the accuracy of these portrayals.

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International Agreements

• Berne Convention for the Protection of Literary and Artistic Works 1886 (with revisions to 1971). Based on principle of national treatment – states must treat its own nationals same as others from other signatory states.

- protection arises without formality such as registration,

- minimum term of protection for most works is life plus 50 years.

*Berlin updated to life + 70 years.

• Rome...