Commercial Law and
Intellectual Property
, SGS 1- Copyright
Learning outcomes 1. identify various categories of copyright work;
2. apply the criteria for copyright protection to a work;
3. ask the right questions to identify the owner(s) of copyright in a work;
4. analyse simple claims for copyright infringement, recognising where
further information and/or legal research may be needed to advise
fully; and
5. suggest practical steps a client can take to avoid infringing copyright
of third parties.
Categories of S1(1) CDPA 1988 (pg 1)
copyright work
a) original literary, dramatic, musical and artistic works
b) sound recordings, films or broadcasts and
c) typographical arrangement of published editions
s3 CDPA- definition of literary, dramatic and musical works
s4 CDPA – definition of artistic works
a) a graphic work, photograph, sculpture or collage, irrespective of artistic
quality
b) a work or architecture being a building or a model for a building or
c) a work of artistic craftsmanship
s8 – meaning of published edition for typographical arrangements
Copyright infringement
Structure
1. subsistence and ownership
identify and categorise the work
fixation required?
Original?
Authorship and duration
Ownership
2. Infringement
Infringing act
Without owners consent?
3. Comparison
Causal connection: objective similarities
Substantial part
4. Defences
5. Remedies
Copyright subsistence and ownership
Subsistence 1. Categorise the work
overview S1(1) CDPA
2. Is the work fixed? S3(2)
If nothing in facts to suggest otherwise, then it is fixed
Is it written down?
Artistic works do not to be fixed as they are fixed by their nature
3. Is the work original?
Needs to have some level of skill, labour, and judgement
Must not be copied from somewhere
4. Has copyright expired?
Need to identify the author to know this
Step 1: identify and Literary works: s.1(1)(a) and s.3 CDPA
catagorise the work
, Artistic works: s.1(1)(a) and s.4 CDPA
o s.4(1)(a): graphic works, photographs, sculptures and
collages
o s.4(1)(b): works of architecture (including models)
o s.4(1)(c): works of artistic craftsmanship
Typographical arrangement of published editions: s.1(1)(c) and s.8
Step 2: is the work Apply to facts
fixed?
Artistic work fixed by its nature
Step 3: is the work Literary, dramatic, musical or artistic works
original?
o Must be original: s.1(1)(a) CDPA
o Original = not copied
Typographical arrangements
o Originality not required: s.1(1)(c) CDPA
o BUT should not be reproduced: s.8(2) CDPA
Step 4: Authorship Author is the person who creates copyright s9(1) (pg 4)
s.9(2)(d) CDPA: Author of typographical arrangements is thepublisher of
the relevant edition
Two authors that create a work can be joint authors but their work must
not be distinct s10(1)
Step 5: Ownership Author is the first owner s11(1) (pg 4)
Where literary, dramatic, musical or artistic work or film is made by an
employee in the course of his employment, the employer is the first
owner s11(2)- has to be part of employment not just a separate hobby
Owner can change upon assignment s90 CDPA (pg 20)
Is the work commissioned?
If employed by an agent, then agent may be owner
If freelance photographer for example, then the photographer would be
the owner
Secure license to use the commissioned work
Look at the facts
Step 6: Duration For literary, dramatic, musical and artistic works copyright expires at
the end of the period of 70 years from the end of the calendar year in
which the author dies s12(1) & (2) (pg 5)
For works of joint authorship the reference to the death of the author
shall be construed as the last author to die if the identity if the authors is
known s12(8)(a)(i)
For typographical arrangements of published editions copyright
expires at the end of the period of 25 years from the end of the calendar
year in which the edition was published s15
Infringement
Step 1&2: Infringing The acts restricted by copyright in a work
act & without
consent s16(1)- the owner of the copyright work has the exclusive right to do the following
acts in the United Kingdom….
a) To copy the work (see section 17)
b) To issue copies of the work to the public (section 18)
Ba) to rent or lend the work to the public (section 18(A))
c) To perform, show or play the work in the public (section 19)
d) To communicate the work to the public (section 20)
e) To make an adaptation of the work or do any of the above in relation to an
adaptation (section 21)
S17(3) dimensional shift copying from 2D to 3D for example
, S16 (2) copyright in a work is infringed by a person who without the license of the
copyright owner does, or authorises another to do, any of the acts restricted by
copyright
When referencing in an exam make sure you reference the section here you can find
more information eg: s16(1)(a) – see section 17
Check that the owner of copyright has not consented to the infringing act – if they
have then there will be no infringement s16(2)
Step 3: Comparison 1. There must be a causal connection between the copied work and the
original
Access
- Establish whether the ‘infringer’ copied the other person’s work
- When was the original work created?
- When did the defendant have access to it?
- When was the copy created?
- What evidence is there?
Objectively similar
- Are the works objectively similar?
- Put the two works side by side
Note: if C can prove access and objective similarity the burden of proof shifts to the
defendant to prove they did not copy the work. If C can only prove objective similarity
but no access then the burden of proof remains with C.
2. Has a substantial part of the work been copied? S16(3)(a)
- Look at the quantity of what has been copied
a) Large portion?
- Look at the quality of what has been copied
a) Copied a very important part of the work ie: chorus?
- Has the work been copied directly or indirectly? S16(3)(b)
3. Combine the two steps of causal connection and substantial part
- Designers Guild Ltd v Russell Williams (Textiles) Limited [2001] 1 All
E.R. 700
Causal connection
a) Work out which parts the claimant says are copied and which
parts are common place (court will ignore unimportant parts of
Cs work eg: software, routine instructions etc)
b) Compare the two works- are the two things so close, numerous
and extensive to amount to more than a coincidence
c) Look at how much of the work has been copied (quantitively and
qualitatively)
Substantial part
- if an only if a causal connection is established, compare the works again
to decide whether this relates to a substantial part
a) consider the part(s) of Cs work identified above, their cumulative
effect and their importance to C’s work as a whole
- the copied features must be a substantial part of C’s work – they need
not be a substantial art of Ds work which could look very different
Step 4: Defences Statutory fair dealing:
Examples of purposes in respect of which a fair dealing defence may apply
include: criticism and review, parody, selective quotation, non-commercial
