2,665
Introduction
The CDPA (Copyrigiht Designs and Pattens Act 1988) iispecifies the types of work protected by British
copyright law. "Literary, dramatic, musical, and artistic works; films; sound recordin iiigs; broadcasts;
and typographical arrangements" are among the eight categories. As a member of the Berne Union, the
UK's exhaustive list of protected categories corresponds with Article 2(1) of the Berne Convention;iv
nonetheless, this piece of law permits various union members to interpret subject matter differently,
resulting in a divide. In contrastto the EU, the UK, a common law system, employs a closed-list
approach to subject matter, exerting judicial restraint with restricted categories of work which can be
protected.
The Berne Convention and Directive 2001/29/EC encompass EU legislation on copyright law. The
seminal case of Infopaq International A/S v Danske Dagblades Foreningv encapsulated the EUs open
approach in which the author's originality is valued in determining subject matter. vi
In principle, this is meant to promote legal simplification, however, its usefulness has been called into
doubt. In this paper, I will first examine the method's inadequacies, including concerns about gaps in
protection, a lack of clarity, and how it fails to fulfil its judicial restraint aims. This will be through the
lens of literary, musical, dramatic and artistic works. I then intend to examine the future of the closed-
list system, and particular its issues with technology, and AI.
Subject matter
Literary
Section 3 of the CDPA 1988 vsets out the definition of ‘literary works’ it states that this category can be
defined as “any work, other than a dramatic or musical work, which is written, spoken or sung”. This
contra-distinctive definition then further lists technological works as also included under this subject
matter. This is significant because it demonstrates a willingness to expand categories beyond their basic
definition, a reasonable conclusion given that only eight categories are protected in Britian.
The disadvantages of a closed-list system manifest differently in each subject matter. The key issues in
this category is that the application of this subject matter is so expansive that there is a sense of a
distortion of the original meaning of the word literary. Secondly the diverse categories of works such
as mathematical, technological, and traditional literary works are being judged by the similar criteria,
creating gaps in protection for some works.
Finally, the procedure of a closed-list system concerning literary work gives the judiciary a great deal
of authority in determining whether works merit or do not merit protection under this category, which
is especially problematic because they frequently reach contradictory conclusions.
, The case of University of London Press v University Tutorial Press [1916] vi outlined that a mathematics
university paper would receive copyright protection under the assumption of it being a literary work
after the claimant sought to be protected under this category. Due to the CDPA inherent limits, claimants
frequently seek to categorise their works in a broad range of subject matters in order to get protection;
this is a recurring theme in cases .This is a consequence of a closed-list system; whereby regular
assumptions of words like ‘literary’ are lost due to wide interpretation of said categories due to the
scarcity of protection under British law. Judge Petterson even stated this in this landmark case “It may
be difficult to define ‘literary work’ as used in this Act, but...it is not confined to ‘literary work’ in the
sense in which that phrase is applied”vii. This misunderstanding undermines the aim of a system that is
meant to function by producing legal clarity in its proceedings.
A fundamental problem within the ambit of this subject matter is whether a single word or phrase may
be protected under British copyright law, given the Act does not explicitly clarify this concern. Exxon
viiiestablished
v Exxon a test by which, Stephenson LJ references the case of Hollinrake v. Truswell
[1894 stating that a literary work ordinarily should be something that “intended to afford either
information and instruction, or pleasure in the form of literary enjoyment”. ixThis test rendered the
copyright protection of a single word, particularly one made up, ineffective. This might be regarded
favourably, considering that British copyright policy has been lauded for its measures aimed at
preventing monopiles.
In theory capacity to ban the use of words, particularly widespread idioms, would contradict the notion
of copyright as a tool for inspiring the creation of new work, this justification was used for cases like
that of Francis, Day and Hunter v 20th Century Fox.x The issue with this test however is that it judges
literary works as a category which must provide a purpose, despite initial statements by Peterson J who
clarified that the quality of the work would not be judged, it leaves the power to judicial authorities to
define what literary work deserves protection, and what work achieves these aims. This is frequently in
favour of conventional literary work, although these words, phrases, or works are the author's
expression of creativity. There is also a reluctance of courts to often completely rule out the protection
of a category. This is despite them stating contradictory legal arguments and providing little information
on how these categories might try to demonstrate this condition in a court of law. as seen in Francis,
Day, and Hunter v 20th Century Fox case. This undermines the concept of judicial restraint and adds
to clarity issues.
Dramatic
Section 3(1) of the CDPA specifies dramatic works as a "work of dance or mime." With the caviate of
fixiation. This definition lacks the depth and nuance to assist judges to navigate the legal criteria for
this sphere, leaving the true definition to be developed in courts, and through precedent. Where the
closed-list system fails in copyright law, is in its inability to calm the major contention on the topic
which is: whether tv show formats and films are protected under copyright law.
