A complete summary of all chapter handouts, lecture recordings and SGSs consolidated into just 44 pages of clear and concise notes with worked examples. Contains everything you need to know for the BPP Commercial Law and Intellectual Property elective.
1. What category of work?
Literary Works: S.1(1)(a) and S.3
o Computer software and databases o Catalogues
o Exam papers o Football fixture lists
o Application forms o Newspaper headlines
S.3(1): Any work other than musical or dramatic work that is written, spoken or sung, merit not
relevant.
Exonn: Composite term signifying information, instruction or pleasure – use trade mark instead.
Dramatic Works: S.1(1)(a) and S.3
o Work of action with or without words or music which is capable of performance before an
audience and needs to be performed for full realisation.
o Script would be literary, performance would be dramatic.
Musical Works: S.1(1)(a) and S.3
o Tune for a song.
o Lyrics are a literary work – could have two types of copyright in one work.
Artistic Works: S.1(1)(a) and S.4
o S.4(1)(a): Irrespective of artistic merit – intention of author and value do not matter.
Graphic Works: Paintings, drawings, engravings, maps, charts and plans.
Photograph: Defined to include developing technologies.
Sculpture: Exception - should have some visual appeal and have been made to be enjoyed.
Collage: Must be stuck together.
Not qualified as artistic works:
Make up designs – impermanent.
Careful assembly of 3D objects for album cover.
Stormtrooper helmets – not sculptures as served a functional role without artistic intent.
o S.4(1)(b): Architecture (including models)
Fixed structures and models made before structures are built.
Must have artistic merit – not all buildings protected.
Architectural drawings are protected as graphic works.
o S.4(1)(c): Works of Artistic Craftsmanship
Craftsmanship: Skill, expertise and pride – thatched roof, horseshoes, dental prostheses.
Artistic: Aesthetic dimension – wrought-iron gates, hand-painted tiles, stained glass windows.
Automated / mass production will rarely qualify, limited edition likely to be sufficient.
Typographical Arrangements: S.1(1)(c) and S.8
o Layout and typesetting of a newspaper, book or journal.
o Applies even where copyright in the original novel has expired.
o Copying could infringe the literary work and typographical arrangement.
,2. Is it fixed? - S.3(2):
Needed for literary, dramatic and music must be recorded in writing or otherwise (audio / digital).
No fixation requirement for other works – recorded by their nature.
Moment of fixation marks beginning of copyright.
3. Is it original? - S.1(1)(a)
Literary, dramatic, music and artistic must be original.
No need for creative spark or inventiveness, only requirement is not copied.
Need to have exercised labour, skill or judgement – not basic instructions.
Databases: S.3A(2) - Requires a higher level of originality than other works – content or arrangement of
fields of data must be author’s own intellectual creation.
Independent Creation: Not a monopoly right – copyright can subsist in two similar or identical works
(photograph taken in same position, light and camera).
Derivative Works: Can include elements from pre-existing works – copyright to the extent it is original
(copyright in a French translation of a book).
General Principles (not strict requirements)
o De Minimis: Works may be too small to qualify for protection – Exxon, Kojak and Hitchi.
o Idea v Expression: Ideas in Da Vinchi Code claimed to be copied were too general – no infringement.
4. Who is the author?
S.9(1): Author is the person who creates the work.
S.10(1): Test for joint authorship.
S.9(2): Specific category requirements.
5. What is the Duration?
S.12(2): End of the year the author died plus 70 years.
S.15: Typographical layout: 25 years from the end of the year when edition first published.
S.13A and S.14: Special rules for sound recordings and broadcasts.
6. Who is the owner?
If it doesn’t subsist at this stage or person bringing the claim isn’t the owner then no concerns.
First Owner: S.11(1) – Author is generally the first owner.
o Single item can consist of many works with different owners for each work.
o S.11(2): Exception where made by employee in course of employment.
o Employee remains the author, but ownership determines the copyright.
Dealings: Free to assign the copyright so first owner may not be the current owner.
o Can assign future copyright, becomes effective once work is fixed.
o S.90(2): Partial assignment – translation to one, adaptation to screenplay for another.
o Grant of a licence does not affect ownership of copyright.
Commissioned Works:
o General rule that the author, not the commissioner owns the copyright.
o Contract needs to include a term addressing copyright and extent of rights to work.
, o May imply a licence to allow the commissioner to use the work to the extent required by contract.
7. Conclusion - Who is permitted to use and risks of infringement.
STAGE 2: INFRINGING ACT WITHOUT CONSENT
Copying: S.16(1)(a) and S.17
o Reproducing in any material form – individual frames from a film or a photocopy.
o Artistic works: Infringement can occur by a ‘dimensional shift’ – sculpture based on drawing.
Issuing Copies to the Public: S.16(1)(b) and S.18
o Postcards of paintings or photocopies of sheet music.
o Public interpreted widely – members of choral society are public.
Performing, Showing or Playing the Work in Public: S.16(1)(c) and S.19
o Any performance outside the home – including schools.
o Not about number present, about nature of audience.
Communicating a Work to the Public: S.16(1)(d) and S.20
o Only applies to communication by electronic means – broadcasts and internet.
o S.20(2)(b): Covers websites and streaming.
Other Infringing Acts
o S.16(1)(ba) and S.18A: Rent or lend a work to the public.
o S.16(1)(e) and S.20: Make an adaptation of the work.
o S.21(3): Narrow interpretation of adaptation – translation, dramatization, novelisation of comic
books and new arrangements of music.
S.16(2): Acts only constitute infringing acts if done without the copyright owner’s consent.
STAGE 3: COMPARISON - Designers Guild v Russell Williams
C produced artwork for a printed fabric with impressionistic stripes and flowers – artistic work.
D’s design had similar features and acknowledged they had access to C’s fabric – inspired by.
1. Can you infer a causal connection?
No monopoly, if independent and coincidental then no cause of action – prove infringement of C’s work.
a) Access
No need to prove D actually had access.
Just prove timing and publicity means D could have accessed.
b) Objectively Similar
Identify features C says were copied, ignore routine or unimportant parts.
Similarities are so close, numerous and extensive that it cannot just be coincidental.
Examples: Choice and order of words, images, structure.
B of P then on D to show just coincidental – may be liable just by copying subconsciously.
, 2. Has a substantial part of C’s work been used? – S.16(3)(a)
a) Quantity
Large proportion word-for-word is a prima facie case for infringement.
No strict threshold to measure if quantifiably substantial.
Copying typographical arrangement of a single article with press cutting was not enough.
Poster of a single frame of film with key character and motifs – infringement.
b) Quality
Cumulative effect and importance of parts to C’s work: original or commonplace theme.
Copied features must be a substantial part of C’s work – D’s irrelevant.
Essential theme or chorus would indicate quality is copied.
STAGE 4: DEFENCES
Permitted Copying: Defence even where there is substantial copying without permission.
S.28 – 40: Fair Dealing – Criticism and review, parody, selective quotation, non-commercial research,
private study, current affairs reporting and making available to people with disabilities.
S.70: Recording for the purposes of time shifting – Home recordings to watch later, private only.
S.28A: Temporary electronic copying – Transient, incidental copy made to view on screen provided no
independent economic significance (would not usually pay to access).
Elements not made out: No subsistence, did not copy (or only insubstantial), implied licence, third
common source – both copied.
STAGE 5: REMEDIES
S.76 and 97A: Injunction, including against ISP.
S.96 and S.97: Damages or an account of profits - damages not available against an innocent infringer.
S.99: Order for destruction or delivery up.
Interim injunction or search order.
Resolve
Take down and remove all electronically stored copies, replace with licenced (most cost efficient).
Seek permission from the owners outright – licence.
Extras
Moral Rights:
Personal to author and cannot be assigned, common to waive in commercial situations.
Only arise in relation to literary, dramatic, musical and artistic works.
S.77: Paternity Right (70 years after death)
Right to be identified as the author.
Applies where all of part of work is commercially exploited.
S.78: Must be asserted by the author to be effective.
Novel author named when adapted for TV by another screenwriter.
Director’s right to be named in film credits.
S.80: Right of Integrity (70 years after death)
Right to object to derogatory treatment.
Prevent others from altering where would mutilate or harm reputation as an artist.
May seek a waiver to avoid litigation over matters of artistic judgement.
S.84: Right to Object to False Attribution (20 years after death)
MP prevented newspaper from printing a spoof diary purported to be written by the MP.
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