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Summary LPC Commercial Law & IP exam notes BPP - High Distinction
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Consolidated LPC Commercial Law & IP notes with exam technique and structures Made for the open book exams with ease of reference
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COPYRIGHTCopyright, Designs and Patents Act 1988
SUBSISTENCE
CATEGORIES OF WORK
LO 1: Identify various categories of copyright work
Under s1(1), the following are protected by copyright:
Literary, dramatic, musical, and artistic works (s1(1)(a))
Sound recordings, films, and broadcasts (s1(1)(b))
Typographical arrangements of published editions (s1(1)(c))
Literary (s3(1)) Any work, other than a dramatic or musical work, which is written, spoken, or sung
Dramatic (s3(1)) Includes a work of dance or mime
Musical (s3(1)) A work consisting of music, exclusive of any words or actions intended to be sung, spoken, or
performed with the music
Artistic Graphic works, photographs, sculptures, or collages (s4(1)(a)) - interpreted flexibly
Works of architecture (s4(1)(b)) - includes models of buildings
Works of artistic craftsmanship (s4(1)(c)) - includes furniture, jewellery etc., must have
aesthetic appeal and be made by a craftsperson
Typographical (s8) Layout and typesetting of a book, newspaper, journal etc. which qualifies as a 'published edition'
CRITERIA FOR PROTECTION
LO 2: Apply the criteria for copyright protection to a work
Fixation
A work must be fixed in order to gain protection so it must have been recorded in writing or otherwise (s3(2))
Originality
Works falling within s1(1)(a) must be original
Low threshold - indicate that the work originated from the author
Databases have a higher threshold - they must be their author's intellectual creation in order to be regarded as
original (s3A(2))
Copyright is not a monopoly right so two or more copyrights could subsist independently in very similar or even
identical works
Derivative works: a work of any category can be based on, or include elements taken from, a pre-existing work
but must be considered 'original'
,DURATION
s12(2) For literary, dramatic, musical, and artistic works, protection expires 70 years after the end of the year in
which the author dies
s13A For sound recordings, protection expires 70 years from the end of the later of the year in which it was made
or the year in which it was first published (for sound recordings made before 1 Nov 2013, the period is 50
years)
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 principle director
The author of the screenplay
The author of the dialogue
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, protection expires 25 years from the year in which the edition was
published
AUTHORSHIP AND OWNERSHIP
LO 3: Ask the right questions to identify the owner(s) of copyright in a work
Author will never change, even if the owner does
First owner is generally the author (s11(1))
Author – the person who created it (s9(1) and s9(2))
Test for joint authorship – s10(1)
Commissioned works – still owned by the creator, unless there has been an assignment or licence
Where a literary, dramatic, musical, or artistic work or a film has been made by an employee in the course of their
employment, the employer will be the first owner of the copyright, unless there is an agreement to the contrary (s11(2)) -
the employee is still considered the author of the work
INFRINGEMENT
LO 4: Analyse simple claims for copyright infringement, recognising where further information and/or legal research may
be needed to advise fully
IDENTIFY THE INFRINGING ACT(S)
Author is granted the exclusive right to copy, perform, adapt etc. the work (s2(1))
1. Identify the 'verb' (e.g., copying, issuing…) (s16(1))
2. Must have been done without the owner's consent (s16(2))
Primary infringement:
s16(1) gives the owner the exclusive right to do any of the following in relation to a protected work:
s16(1)(a); s17 Copying the work
s16(1)(b); s18 Issuing copies of the work to the public
s16(1)(ba); s18A Renting or lending copies of the work to the public
s16(1)(c); s19 Performing, showing, or playing the work in public
s16(1)(d); s20 Communicating the work to the public
s16(1)(e)); s21 Making an adaptation of the work or doing any of the above in relation to an adaptation
COMPARISON OF THE TWO WORKS
,Has D copied the whole or a substantial part of C's work? – necessary to prove copying (i.e., that D's act was in relation to
C's work)
Designers Guild test
1. Can you infer a causal connection?
a. Is D's work objectively similar to D's?
Identify the features in C's work that C says were copied
Compare the two works, noting similarities and differences, to decide whether the similarities
are sufficiently close, numerous and extensive so as not to be merely a coincidence
b. Was D's work made at a time when D had access to C's work?
If this can be shown, C will have established a prima facie case that D copied their work - the burden of proof then
shifts to D to prove the similarity was a coincidence
2. Has a substantial part of the work been copied? (s16(3)(a))
a. Quantity: no fixed threshold or percentage
b. Quality: was it an important part of the work? Is it the essence of the work?
c. Consider the part(s) of C's work identified at (i) above, their cumulative effect and their importance to
C's work as a whole
d. Need to be a substantial part of C's work, not necessarily D's
DEFENCES
D will have a defence if they can demonstrate any of the following:
They have not infringed the owner's copyright
There is no copyright in the work
The period of protection has expired
They have a licence to use the copyright (either express or implied)
They have copied an insubstantial part of C's work
Their use falls in one of the permitted exceptions:
o Limited use ("fair dealing") for non-commercial research/private study (s29)
o Limited use for teaching in educational establishments (s32 - 36A)
o Criticism, review, quotation, and news reporting (s30)
o Caricature, parody, or pastiche (s30A)
o Incidental inclusion of copyrighted material (s31)
o Recording for the purposes of time shifting for private domestic use (e.g., taping TV programmes) (s70)
o Making temporary electronic copies (s28A)
Many of the above exemptions require the use to be accompanied by sufficient acknowledgement of the owner's
rights
REMEDIES
All of the usual remedies for breach of property rights are available (s96(2)):
An injunction preventing infringement
Account for profits or damages
o Damages are not available where D did not know, and had no reason to believe, that the copyright
subsisted (s97(1))
o Where the infringement was particularly flagrant, or D obtained a particular benefit, the court may
award additional damages (s97(2))
An order for delivery up of the infringing goods (s99)
Right to seize infringing copies - self-help remedy (s100)
Where infringement is deliberate and for commercial gain, it is also a crime (s107)
PRACTICAL STEPS TO AVOID INFRINGEMENT
LO 5: Suggest practical steps a client can take to avoid infringing copyright of third parties
Remove the content; Rewrite/redo any infringing content; Seek assignment or consent
, MORAL RIGHTS
The right to be identified as the author Duration - 70 years from death (s86(1))
or director of a work (s77) - the The author must have asserted this right in order to enforce it (s78)
'paternity right'
The right to object to derogatory Duration - 70 years from death (s86(1))
treatment of a work (s80) - the 'right of Can prevent others from mutilating the work or harming its reputation
integrity'
The right to object to false attribution of Duration - 20 years from death (s86(2))
a work (s84)
The right to privacy of certain photos Duration - 70 years from death (s86(1))
and films (s85) Can prevent further use of such items if they were intended for
private purposes (e.g., wedding photos)
Moral rights do not apply to typographical arrangements or sound recordings
DATABASE RIGHT
Databases can only be protected in two ways: (1) through the sui generis database right and (2) through copyright
Copyright only protects the arrangement of a database, not the specific content
Database right can protect the content of a database - it is not a form of copyright but an independent IP right
Databases have a higher threshold for originality - they must be their author's intellectual creation (s3A(2))
Step 1: Subsistence and Ownership of Database Right
Protects the investment made in obtaining, verifying, or presenting content
The first owner is the person who takes the initiative and investment risk
Duration: 15 years from completion of the database
Step 2: Infringement
The owner can prevent unauthorised extraction or realisation of the database
o Includes repeated and systematic use, or insubstantial use of important elements
Step 3: Defences
Once in the public domain, individuals can extract information for private use
There is a fair dealing defence for teaching and research, provided the information is not used for commercial
purposes
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