Copyright

Sources	Copyright Designs and Patents Act 1998 (‘CPDA’) EU legislation
Aims	encourage and protect creative and original types C is an unreg’d IP right C does not give the owner a monopoly. A third party will only infringe if he has had access to the work or copied it or (in respect of secondary infringement) he knows or ought to have known he is dealing in infringed goods

Stage 1 - Subsistence and Validity

Types of C	s.1(1)(a) and s.3 Literary works - this has nothing to do w/literary merit or style and includes computer software and databases. Database defined v widely in s.3A S.1(1)(a) and s.3 dramatic works. Includes dance and mime. S.1(1)(a) and s.3 musical works. Nb. Tunes for a song will be musical works but the lyrics will have literary C in their own rights. S.1(1)(a) and s.4 artistic works: S.4(1) sets restricts scope of artistic works to 3 x categories: S.4(1)(a) graphic works, photographs, sculptures and collages (irrespective of artistic merit) S.4(1)(b) works of architecture (including models) S.4(1)(c) Works Of Artistic Craftsmanship (‘WOAC’). Must have: some aesthetic appeal (‘be artistic’) and be made by a ‘craftsperson’. To be assessed from point of view of a 3rd party. Eg. Architectural drawings for Shard, Alexander McQueen’s dress sketches Nb. S.4 is drafted v widely so ultimately @ court’s discretion as to whether a particular item can be protected Ss.5A, 5B and 6 sound recordings, sometimes referred to as secondary works S.1(1)(c) and s.8 typographical arrangement of published editions (must be published in book, newspaper or journal, can’t just be reprinted by someone)
Subsistence/ criteria for copyright protection	Identify type of work s.1 [see above] Fixed? Original?
Fixation	Fixed s.3(2)? No protection will be given to a literary, dramatic or musical work unless it has been recorded “in writing or otherwise”. There is no fixation requirement for works which are recorded by their nature - eg. A painting, sculpture
Originality	Original s.1(1)(a)? usually assume on facts - usually a low threshold which has nothing to do w/creative spark or inventiveness - just that the work originated from author and not copied form anywhere else Databases which have been singled out in s.3(2) as requiring a higher level of originality than other literary works . The way that the content has been selected or the arrangement of the components of the work must the artist’s own intellectual creation Independent creation - C is not a monopoly right like a reg’d TM, it is possible (although not common) for two or more Cs to subsist independently in v similar works providing that one is not copied from another Adaptations - defined in s.21(3) in relation to literary and musical works and includes: translations of works into different languages and into other forms eg. Dramatisation. Can be based on, or include elements from, pre-existing work w/o falling w/in this fairly narrow stat definition. Any such work has its own separate C to the extent that it is original
Author and duration	Authorship s.9/10? Usually creator s.9(1) Duration s.12? Expires 70 yrs from end of calendar yr in which author dies s.12(2) Exceptions: typographical layout of a published edition s.15 25 yrs from calendar yr in which edition was published Sound recordings s.13A and broadcasts s.14 - basic period of protection is 50 yrs from end of calendar yr of creation - not measured w/reference to author’s life Artistic works which have been exploited by an industrial process s.52 - period of C is reduced by 25 yrs. In exam, they try and trick you by saying C disappears, remember it doesn’t it’s just reduced. “Exploitation by industrial process” is defined as making more than 50 articles
Ownership	Ownership s.11? First owner = author unless during course of e’ent then belongs to e’er Those commissioning third parties will need the contract to deal w/ownership because CPDA is silent. They should obtain C by way of assignment in writing and signed by creator. Otherwise, creator is first owner.

Stage 2 - infringement

Infringement -

Look @ verb in exam q

can be primary or secondary
Primary = direct copying of C work
Secondary = dealing in infringing items or assisting their production
S.16(1) lists acts which amount to primary infringement
Ss.17-21 go on to provide (partial) definitions of and clarifications in relation to particular acts
Act must be w/o consent of owner of C

Most important restricted acts

Copying - s.16(1)(a) and s.17: copying means reproducing in any material form - this includes copying of individual frames from a film and making a photocopy of typographical arrangements of a published work
For artistic works only, infringement can occur from a dimensional shift copying. Eg. Making a sculpture by using drawings (2D) to make a 3D sculpture. However, effect of s.51 is to restrict the circs of s.17(3) so only copying if 3D is artistic form - so use UDR [cf. Chap 2]
Issuing copies of work to public s.16(1)(b) and s.18: clearest example is taking proof copy of a book and publishing it yourself. Ie. Handing out/publishing yourself
Performing, show or playing the work in public s.16(1)(c) and s.19: definition of ‘issuing to public’ is v wide.
Communicating to public s.16(1)(d) and s.20
Making an adaptation of work or doing any of the other infringing things in relation to an adaptation s.16(1)(e) and s.20

Stage 3 - Comparison: compare the works

(1) can you infer a causal connection	2 x pronged test: did D have access to cl’s work? Could D have copied cl’s work? Is D’s work objectively similar to cl’s work? Does it appear that there has been actual copying or has the D independently created a similar work? If so ...
(2) substantially -	Has D taken the whole, or a substantial part of Cl’s work? Look @ qualitative and quantative approaches ...
Qualitative approach	If a large portion of the original work appears word-for-word in D’s work then there is a prima facie case for infringement. Nb. There is no fixed % to measure what is quantatively substantial
Qualitative approach	It is imp to look @ this point of view too. Has the D copied a v important/unique part of the work?
Testing for infringement - Designer’s Guild	Designer’s Guild - correct procedure in summary is: identify features in cl’s work that the cl says were copied Compare the two works, noting similarities and differences (but ignoring commonplace features.) This is to establish whether there has been copying in the first place (ie. This q goes to causal link - stage 2) If so, decide whether copying is substantial. Consider the part(s) of cl’s work identified at (i) above, their cumulative effect and their importance to cl’s work as a whole. The copied features must be a substantial part of cl’s work - they need not be a substantial feature of D’s work which could look v different overall

Stage 4

Defences	statutory ‘fair dealing’ defences ss.29 and 30 - actually v narrow. Only available in relation to act done for a purpose specified in CPDA D’s dealing must be ‘fair’ and this will depend on facts of case Other stat defences Recording for purposes of time-shifting s.70 - eg. On sky plus Temporary electronic copying s.28A - eg. Downloading pdfs

Stage 5

...

#8600 - Copyright - Commercial and IP

Sources

Aims

Types of C

Subsistence/ criteria for copyright protection

Fixation

Originality

Author and duration

Ownership

Infringement -

Look @ verb in exam q

Most important restricted acts

(1) can you infer a causal connection

(2) substantially -

Qualitative approach

Qualitative approach

Testing for infringement

- Designer’s Guild

Defences

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