Copyright: Lecture 1
Background to Relevant legislation: CDPA 1988, s. 1(1) – assume that is the relevant
Copyright (CR) legislation that applies.
Reasoning for copyright:
CR exists as a right for the life of the author + 70 years from the year-end of
their death (n.b., that the right passes to the author’s estate).
Natural rights (right to the fruit of your intellectual endeavours), these are
common in civil law jurisdictions. Civil law based.
Utilitarian, granting CR will encourage more works which benefits society.
Common law based.
Copyright is not a monopoly, rather it allows you to prevent copying of the
copyrighted work. It is a negative right.
Copyright is largely informal, with no requirement for registration. If the work
is fixed and is original (LDMA only), then it is protected.
Subsistence: when does copyright protect something (discussed later).
Idea-expression Copyright protects the expression of an idea, not the idea itself.
dichotomy
See, Baigent & Leigh v The Random House Group Ltd [2007] EWCA
Civ 247 – a case brough against the publication of The Da Vinci
Code, where the claimant asserted that their book “The Holy Blood
and the Holy Grail” had been copied. Court held that the parts
allegedly copied by the defendant were too general and abstract to
be protected by CR. Fell on the wrong side of the idea-expression
dichotomy.
But the line can become blurred, particularly relating to software.
BSA C-393/09 and SAS Institute Inc v World Programming Ltd C-
406/10 – The source code (expression) is protected by copyright, but
not the function (i.e., what the software does).
European Partial Harmonisation through EU Legislation: most important is Information
Copyright Society Directive 2001/29/EC (“copyright directive”).
Harmonisation
Brexit:
UK laws implementing EU Directives prior to 31/12/2020 remain in effect.
Note that the Digital Single Market directive was not implemented as a result
of Brexit.
EU regulations prior to 31/12/2020 continue to have effect in the UK due to
the EU Withdrawal Act.
Harmonising role of CJEU through case decisions. These are retained case
law which is binding on UK courts, however the CA and supreme court can
depart from them. (n.b., that the courts can take future CJEU decisions into
account).
Berne Convention: Berne Convention: work originating in one Contracting state must be given
International the same protection in each of the other Contracting States.
Framework for CR
, Automatic protection and not dependent on formalities of registration.
Subject-matter UK Closed List Approach:
protected
According to s. 1 CDPA 1988 works must fall within one of 8 exhaustive
“closed list” of categories:
LDMA (authorial works):
i. literary,
ii. dramatic,
iii. musical,
iv. artistic works, works of artistic craftsmanship (sub-category, e.g.,
jewellery, lighting, furniture, etc.).
Note that artistic works also includes photographs.
Works of artistic craftsmanship are difficult to discern what is both
craftsmanship and artistic.
Entrepreneurial works (based on someone else’s original work, the signal is
being protected):
v. sound recordings,
vi. films or
vii. broadcasts and
viii. the typographical arrangement of published editions
See, Creation Records v News Group, 1997 – Newspaper photographer
took a photo of the live scene being photographed separately for an
album cover. Claimant sued the news photographer claiming CR
infringement. The court held it was not infringement as the scene did not
constitute any work included in the closed list of s. 1 CDPA.
EU InfoSoc Directive Approach:
Art. 2(a) InfoSoc Directive: protection given to authors of a “work”. No
exhaustive list given.
Anything that constitutes the author’s own intellectual creation should be
protected. The subject matter doesn’t matter, as long as it is an original work
which is the author’s own intellectual creation.
Infopaq v Dankske Dagblades Forening C-5/08 – 11 word extract can
be sufficiently original.
BSA C-393/09 – GUI.
FAPL v QC Leisure C-403/08 – football match is constrained by the
rules of the game. Not CR.
Levola Hengelo v Smilde Food C-310/17 C-310/17 – set out the rules for
determining if a work is deserving of copyright protection:
(i) Is the work original (author’s own original intellectual creation).
(ii) Is the work an expression of the author’s own original
intellectual creation?
(iii) Subject matter identified and defined with sufficient precision
and objectivity.
, Therefore, for expressions of subject matter which are identified and defined
broadly, loosely and subjectively they will not be deserving of CR protection.
Examples would include the taste of cheese, smell of perfume. (n.b., the
court did include a proviso that should technology establish an objective way
of defining the subject matter expressed, then it could be protected).
Retained EU case law in the UK, but there is a tension where the closed lists
approach still exits.
Copyright for EU Approach:
designs
Art. 17 Design Directive: designs may also be protected by copyright (c.f. Art.
96(2) CDR).
Cofemel v G-Star Raw (C-683/17) – EU Member States cannot through
national law impose a requirement of aesthetic or artistic value, it only has to
meet the Levola framework – this may be incompatible with UK law which
grants protection for “artistic craftmanship”.
Pursuant to the Marleasing principle, the judge was required to
interpret the CDPA in line with the Information Society Directive
(2001/29/EC) so far as possible and therefore “in conformity with the
way in which that Directive has been interpreted by the CJEU”.
Brompton Bicycle Ltd v Get2Get (CJEU), June 2020 – CR protection
may be available to a product who’s design is in part necessary to
perform a technical function and that you are still able to express
your free and creative choices. The fact that the bicycle had a patent
was irrelevant.
UK Approach:
Response Clothing v Edinburgh Woollen Mill, IPEC, 2020 – wave pattern was
a work of artistic craftsmanship (i.e., falls within the closed list) and worthy of
protection – did not therefore need to consider the functionality of the design
and originality/creativity.
Shazam v OFDE, IPEC, 2022 – protection granted for the Del Boy character
based on the Cofemel test (continuation of Levola test), however it was under
the guise of it being a literary work – so again fell within the closed list.
WaterRower v Liking, IPEC, 2022 – defendant asserted that there are
technical considerations and restraints which mean the object has to be
designed in the way it is. Claimant is arguing that it can be either an artistic
craftsmanship or applying the Cofemel test.
Literary Works Section 3(1) CDPA: excludes dramatic or musical work, but generally applies
to written, spoken, sung works.
Titles:
Infopaq v Dankske Dagblades Forening C-5/08 – 11-word extract can be
sufficiently original and the author’s own intellectual creation..
NLA v Meltwater [2011] EWCA Civ 890 – newspaper headlines
capable of being original literary works, (e.g., GOTCHA!).
Exxon Corp v Exxon Insurance [1982] RPC – “Exxon” is not a form of
literary works, doesn’t convey literary enjoyment for example.
Databases:
, Two tier protection for databases: (1) copyright as a literary work, (2) sui
generis database right in databases.
Dramatic Works No definition in CDPA, except that it includes a work of dance or mime s.3(1).
Norowzian v Arks (No. 2) [2002] EMLR 67 – the dramatic work must be a
work of action that is capable of being performed. This can include films
which are capable of being performed before an audience.
Banner Universal Motion Pictures v Friday TV AB [2017] 2600 (Ch) – Format
of TV show can be protected as a dramatic work provided there are a number
of clearly identified features which in combination distinguish the show.
Answers to 1–C
Questions 2 – B (decisions that pre-date are binding, post-date can be considered, but
they are not binding – i.e., they are relevant)
3 –A
4 –A
5 –A
6–D
7–B
8–C
9–B
10 – C (but really B)
