Unit 4 – Consolidation IP – COPYRIGHT

TPs = third parties

What is protected?	Creative output (expression of an idea NOT the idea itself)
What benefit is there?	Prevents copying
How is it obtained?	Arises automatically (no registration)
How long does it last?	70 years from death of creator (in most cases)

OUTCOME 1 – Analyse a client’s situation to decide whether copyright exists in its creations;

What is ?

Protects the results and expressions of creative ability. No formality is involved, right comes into existence as that tangible results of creativity appear

Necessary if a work is to be made available to the public, recognising the effort and investment involved in such ventures

“Works” = the tangible expression of ideas

Duration is usually 70 years, however, artistic items which are mass produced is 25 years (same as RDR)

Two categories of

Classic LDMA (literary, dramatic, musical, artistic) protect the creative efforts of the author
Entrepreneurial (film, sound recording, published editions of LDMA) protect investment

categories are important:

An item can fall into more than one
If it doesn’t fall into a category, then it doesn’t fall within law
Rules relating to subsistence, duration, ownership and infringement vary
Different rights in the same item can be owed by different people

LDMA works

Pg 257 has relevant CDPA provisions s.1-4

Requirements for existence:

Original – s.1(1)(a) – authors own work, not copies from anything else. It is an originality of expression and form, not of idea or content that is required
Minimum Effort – no unless a certain minimum amount of effort has gone into the work

A joint author has to do more than merely contribute ideas and has to participate actively Ray v Classic FM 1998

Literary: Low threshold – almost any work expressed in print or writing (University of London Press v University Tutorial Press 1916), but not a word, jingle, title or short slogan (Exxon 1981)

Compilations now have a high originality threshold and more likely to be protected by a database right

Artistic: Very low threshold s.4(a)(a) but artistic merit is requires for architecture s.4(1)(b)

Artistic craftsmanship: 3D item but not a sculpture (hand made musical instrument, furniture, wooden boat) – requires a significant degree of artistic merit

Most industrially manufactured articles will lack any craft skills
Key factor: did the author consciously intend to create a work of art?

3. Recorded: For LDM but not A the work must be recorded s.3(2) on any medium (tape/typing)

Literary works

“Any work, other than a dramatic or musical work which is written, spoken or sung” s.3(1)

Need not have any artistic merit and covers business documents
Computer programs are expressly included s.3(1)(b)
Databases and compilations can qualify for this if they satisfy s.3A

Collection of independent works, data or other materials
Arranged in systematic or methodical way
Individually accessible by electronic/other means
Original because selection/arrangement of database content is author’s own intellectual creation
Theoretically may be protected even though just an assemblage of existing material as long as way its put together is original.
Most wont be original enough s.3A so the Database right will cover them

Dramatic works

“Includes a work of dance or mime” s.3(1)

Covers anything that is intended to be acted

Play or film script will have dramatic not literary

A ballet is a dramatic work but the accompanying music is a musical work
Not footballers famous goals because of the crucial absence of a script

Musical works

“Music, exclusive of any words or action intended to be sung, spoken or performed with the music” s.3(1)

- A song will have musical the words are not musical but literary and may be separately owned

Artistic works

s.4 – includes graphic works, photos, sculptures, works of architecture, works of aesthetic craftsmanship (3D works which are neither sculptures or works of architecture – unimportant in practice as likely to be protected by design rights s.4(1)

Duration

Normally 70 years from the end of authors death (even if assigned or vests in employer)

If author unknown, 70 years from creation or first publication (whichever is later)
Computer generated work, period is 50 years from creation

- If it is industrially exploited this is reduced to 25 years s.52

Ownership

Initial is held by owner or co-owners s.11(1)
If author is an employee and work was done in course of employment, owned by employer s.11(2)
If the work is commissioned then resides with author s.11(1) (important to have assignment clause but license usually implied, person commissioning has the right to prevent publication s.85)

Moral rights

Where the creative author retains rights regarding his creation, even after he has sold the

the right to be identified (where asserted by the author) s.77
the right to object to derogatory treatment s.80

Morrison Leahy Music v Lightbond 1993 – C obtained injunction to restrain release of a recording consisting of C’s music interspersed with other music, altering the character of their music

the right against false attribution of a work s.84
the right to privacy in photographs and films s.85

Moral rights are alienable s.94 cannot be assigned, but can be waived
Apply to LDMA works and films (director owns them) – exception is computer programme where employees don’t enjoy them
Most moral rights last as long as s.86(1) except paternity rights which last for 20 years after death of author s.86(2)

Entrepreneurial

These are designed to give effect to the commercial, artistic and financial realities of creativity in the modern world – pg 263 for relevant CDPA s.5A-8

Divided into LDMA an entrepreneurial for conceptual convenience not because of legal distinction

s.5A – sound recordings
s.5B – films
s.6 – Broadcasts
s.8 – published editions of LDMA

- No req of originality and minimum effort because everything protected under entrepreneurial rights are based on something else (e.g. published edition is based on literary work)

- No req of recording because by their nature entrepreneurial works are all recorded

- No to the copies of other works s.5A and s.5B(4) a problem arising because there is no req of originality, creating a copy of work could have created a new work

- Only films have moral rights

LDMA works normally 70 years from end of year of authors death
BUT CDPA 1988 s.52 – 25 years for industrial exploitation
SI 1989/1070 – exception for certain artistic articles

Ownership and duration

Entrepreneurial Right	Ownership	Duration
Sound recording (s.5A)	Producer	50 years from making/being released
Film (s.5B)	Producer and principal director	70 years from last to die of principle director, screenplay author, dialogue author, composer of specifically written music
Broadcast (s.6)	Person making the broadcast	50 years from first broadcast
Typographical arrangement (s.8)	Publisher	25 years from end of year published

EXAMPLES

Idea for new sitcom
no as can only exist in the tangible expression of ideas
Doodle of Xmas Tree
artistic low threshold of artistic merit s.4
Report written for co by employee
literary s.3 (doesn’t have to have creative flare to it) First owner – author – s.11(1) Main exception = In course of employment then your employer owns it s.11(2) If you commission someone to do work for you (Agent not employee) then the author (s.11(1)) STILL owns the work NOT you! Therefore essential you have a contract clause assigning the from agent to you
Telephone directory
S.3(1)(d) – database as a literary work S.3A(1) “database definition” (telephone directory could fit within this definition) Higher threshold for database - if the selection of arrangement of the contents of the database the authors own intellectual creation? S.1(1)(c) / s.8 – typographical arrangement (lesser 25 years duration protection) so if you copy a Shakespeare book – there is no copyright in the play as it has expired BUT the arrangement of the book you copied is covered by typographical arrangement OR Database regulations 1997: Reg 13(1) – property right in database right subsists if substantial investment in obtaining, verifying and presenting the contents of the database Duration of protection under database is only 15 years duration (Reg 17) BUT database will most likely be updated more frequently than that
Film – “Casino Royal”
Entrepreneurial S.5B(1) – “Film”- recording on any medium from which a moving image may by any means be produced Includes the sound UNLESS it is released separately Ownership s.9(1) and 2(ab) FILM = Producer and principle director Duration – s.13B – 70 years from last of the people to die out of principle director, author of screenplay, author of dialogue or composer of specially written music Underlying LDMA rights: Script = dramatic Music = musical/literary Drawings = artistic ALL owned by individual authors unless assigned to film studio

OUTCOME 2 – Identify and advise on possible infringements of copyright;

Infringement of

s.16 – owner has exclusive right to copy, publish, perform or show in public and or adapt the work

- Any infringing copying need not be of the whole work only a “substantial part” (by virtue of quality not quantity

- Copying of any LDMA works means reproducing them in any form s.17

- Artistic can be infringed by turning a 2D image into a 3D object and vice versa s.17(3)

- Adaptations infringe –...

#10479 - Unit 4 – Copyright - International Intellectual Property

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