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Summary LPC Media & Entertainment Law exam notes BPP - High Distinction
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EXPLOITATION OF COPYRIGHT AND MORAL RIGHTSExam Approach – Ownership Exam Approach – Infringement
Identify relevant copyrights – s1, 3, 5, 6 Restricted Acts – s16
o Additional requirements for classic Who are the possible infringers?
works o How is the copyright being
Who is the author? infringed?
o s9(1) [or s9(2)(aa/ab)] o 3 step test to establish claim for
o s10(1) – if relevant, apply case law infringement?
o s11(1) owner / [s11(2) – if relevant] o Apply test and case law
Conclude on ownership of copyright Are moral rights and/or performers’ rights
Duration being infringed?
Any relevant moral rights? o How?
o Who owns? Defences?
Any relevant performers’ rights? Remedies?
o Property and non-property
COPYRIGHT WORKS
Copyright, Designs and Patents Act 1988
LO 1: Understand the main aspects of copyright protection and important categories of copyright works
LO 3: Appreciate how the different types of copyright works sit together
COPYRIGHT
A property right
Subsists in certain types of ‘works’
Exclusive right of an owner of a work in which copyright subsists to do certain acts under s16 (‘Restricted Acts’)
Prevents others from copying or using that work without their permission
No registration requirements - right automatically arises as soon as the work is “fixed”
Not a 'monopoly' right
Classic Works (s1(1)(a)) Derivative Works (s1(1)(b) and s1(1)(c))
Literary copyright (s3) - any work, other than a dramatic or Sound recordings (s5A)
musical work, which is written, spoken, or sung
Examples: recordings on CD and digital recordings
Examples: a novel, a poem, a script, or song lyrics
Dramatic copyright (s3) Films (s5B) - a recording on any medium from which a
moving image may by any means be reproduced
Examples: choreography, stage directions, works of dance
and mime
Musical copyright (s3) - a work consisting of music, Broadcasts (s6) - electronic transmission of visual images,
exclusive of any words or actions intended to be sung, sounds, or other information to members of the public
spoken, or performed with the music
Examples: broadcasts transmitted to the public by TV or
Examples: the sequence of notes in an advertising jingle radio
Artistic copyright (s4) Typographical copyright (s1(1)(c) and s8) - published
editions of the whole or part of literary, dramatic, or
Examples: graphic works, paintings, and photographs musical works – gives protection to the publisher's
investment in the formatting and layout
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,Requirements for Classic Works copyright protection
Originality Work must originate from the author and the creation of the work must involve some skill and judgement
(s1(1)(a)) (i.e., not copied from elsewhere or be so simple as to require no skill or judgement)
Fixation The classic copyright must be recorded in some form (in writing or otherwise)
(s3(2)) Can be on any medium and in such a way that it can be reproduced. The protection only arises when the
idea had been expressed by being recorded in some permanent form
Expression As copyright protects the expression of an idea rather than the idea itself, the expression of the idea must
be developed sufficiently to attract copyright protection
De Minimis The work has to be substantial enough to attract copyright. It is arguable whether a mere title, slogan or
(for literary phrase will attract copyright - Exxon Corp. v Exxon Insurance Consultants
works)
Other examples of song and film titles or character names have been held to be de minimis (e.g., Kojak)
AUTHORSHIP
LO 2: Understand how copyright ownership arises and the exclusive rights that are available to the copyright owner
including moral rights
The author of the work is the person who creates it
Classic works – s9(1)
Derivative works – s9(2)
Sound recordings (s9(2)(aa)) Films (s9(2)(ab)) Broadcasts (s9(2)(b)) Typographical arrangements (s9(1)(d))
Producer Producer and Person making the Publisher of the edition
principal director broadcast
JOINT AUTHORSHIP
Where two or more persons collaborate to create a work, and each author's contribution is not separate and
distinct from each other, then it will be a work of joint authorship (s10(1))
All collaborators must separately be capable of being an ‘author’
Collaboration required – must be a common aim
The work of each author must be substantial in order to be considered an author
Films are automatically works of joint authorship if the producer and principal director are not the same person
Hadley v Kemp Contributions do not have to be at the same level in quantity, quality, or originality, but they must
be significant and original and slight contributions will be insufficient
NOT JOINT AUTHORSHIP
Fisher v Brooker Distinctive and sufficient contribution can amount to joint authorship as it is the product of skill
and labour on the part of the person who created it
JOINT AUTHORSHIP (40%)
Kogan v Martin Elements of collaboration, contribution of an author, and whether the contributions were
distinct
Contribution:
Non-textual contributions are sufficient to qualify someone as an author
K contributed characterisation, musicality, terminology, and incident – these were
enough
It did not matter that M did the actual writing
Collaboration:
The couple were on a ‘path together towards the screenplay’ and their conduct
indicated a common design
Separate contributions?:
K’s influence ran throughout the film
JOINT AUTHORSHIP (20%)
Where there are joint authors, the permission of all joint authors is required before the copyrighted work can be used
OWNERSHIP
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,The general rule is that the first owner of a work will be the author (s11(1)), other than films and unless otherwise agreed
This is true even if a third party has paid to commission the work
First owner is still the author (s9)
Client cannot make further copies or distribute the work even if they now have physical possession
Commissioning party to ensure that any intellectual property rights in the work are assigned or a licence
Implied licence could be relied on for the purpose for which the commission was given as necessary to ‘give
business efficacy to the arrangement’
If the work is created by an employee in the course of employment then their employer will be the first owner (s11(2))
DURATION
The duration of the copyright depends upon the category of work in question
s12 For literary, dramatic, and musical works, protection expires 70 years after the end of the year in which the
author dies
s12 For artistic works, protection expires 70 years after the end of the year in which the author dies
s13A For sound recordings, protection expires 50 years from the end of the year in which it was made or 70 years
from the date on which the recording was published
s13B For films protection expires 70 years after the end of the year in which the death occurs of the last to survive
out of:
The principal director;
The author of the screenplay;
The author of the dialogue; and
The composer of the film's soundtrack
s14 For broadcasts, protection expires 50 years from the end of the year in which they were broadcast
s15 For typographical arrangements in published editions, protection expires 25 years from the year in which
edition was first published
Where the creator is an employee, but the first owner is the employer, the duration of the copyright is linked to
the death of the author
Where works are subject to joint authorship, the period is linked to the last to die of the joint authors (s12(8))
Sound recordings – calculated from the date of recording unless that sound recording is published during the
period of copyright protection, then the time starts to run again from the date of publication. If the recording is
not published but is played/communicated to the public within the period of copyright protection, the period
starts to run again (s13A(2))
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, INFRINGEMENT OF COPYRIGHT
LO 4: Analyse questions in order to gain a practical understanding relating to copyright ownership, infringement, defences,
and remedies
RESTRICTED ACTS – s16
s16(2) – infringement under the CDPA may be by doing or authorising another to do an infringing act
s16(3) – copyright may be infringed by doing a Restricted Act either directly or indirectly
Infringement is divided into primary and secondary infringement
Primary Infringement:
Any person who performs a Restricted Act without the consent of the copyright owner, whether or not they
knew that the act constituted an infringement
s16(1) gives the owner the exclusive right to do any of the following in relation to a protected work:
s17 Copying the work
“Reproducing the work in any material form” (s17(2))
Storing the work in any electronic medium is itself an act of copying (e.g., downloading)
Temporary copies automatically made are permitted (s28A)
Private copying exception (s28B) – allows an individual to copy content they own which they acquired
lawfully onto another medium or device for personal use
s18 Issuing copies of the work to the public Not a RA to further distribute copies if
previously put into circulation in EEA
s18A Renting or lending copies of the work to the public
s19 Performing, showing, or playing the work in public
Performance – any method of visual or acoustic presentation, including presentation by means of
sound recording, film, or broadcast
No precise test for “public” but likely to include if they paid for it or in a public place
s20 Communicating the work to the public
Includes broadcasting the work or making it available to public on-demand
s21 Making an adaptation of the work or doing any of the above in relation to an adaptation
s21(3) – an adaptation includes a translation and a version converted from a non-dramatic to a
dramatic work and vice versa
An adaptation of a musical work includes a new arrangement
Secondary Infringement:
Necessary to show that the alleged infringer knew or had reason to believe that he was dealing with infringing
copies of a work
A person also infringes copyright if they do any of the following in relation to a protected work without the
owner's permission:
s22 Importing a work that they know or reasonably believe to be infringing
s23 Possessing or dealing with a work that they know or reasonably believe to be infringing
s24 Providing the means for making an infringing copy of a work
s25 Permitting their premises to be used to infringe a literary, dramatic, or musical work
s26 Providing apparatus to infringe copyright of sound recordings, films, or visual images
Once secondary infringement is discovered, all dealers can be put on notice that they are dealing with infringing
products
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