BPP University College Of Professional Studies Limited (BPP)
I completed the LPC (Legal Practice Course) at BPP University in 2017 with a 90% distinction. These detailed and condensed notes cover the entire Commercial Law and Intellectual Property module, including templates of CLIP agreements and amended clauses. I have covered every SGS and highlighted all...
BPP University College Of Professional Studies Limited (BPP)
Legal Practice Course
Commercial Law and Intellectual Property
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COPYRIGHT • 4) S9(1) Author = creator, e.g. photographer, Shakespeare *Author + owner ≠ always same
o S9(2) E.g. film = producer + principal director / typological arrangement = publisher
2) Compare works + decide if similarities = sufficiently close, numerous + extensive that ≠
merely coincidence
o S10(1) Joint authorship = films § Identical story/sequence of ideas/phrase/words/imagery of nimbus cloud /sounds/arrangement
STRUCTURE
o “Requires ↑ info on creation of lyrics” § Differences: Nothing noteworthy, new ideas of ‘sun’
• Identify relevant facts
• State law • 5) Duration expired? o Conclude:
• Apply law to FACTS (40% marks) *State if needs ↑ info o S12(2) End of year in which author died + 70 years *Copyright still subsists after dies § Sufficient similarity to indicate copying
• CONCLUDE o S13A Sound recordings § Proving access + objective similarity = shifts burden to D to prove no copying
o S13B(2) Films
*ALWAYS check Q: Registrability / subsistence OR Infringement? • 2) S16(3)(a) SUBSTANTIAL PART OF CLAIMANT’S WORK = COPIED? *Refer to claimant’s work, not D’s
o S14 Broadcasts
§ 1) WHAT: Duration, [renewal] o 1. QUANTITY
o S15 Typographical arrangement: End of year in which first edition was published + 25 years
§ 2) WHO: Ownership + assignment VS. Licensing § E.g. 1/2 verses taken + parts of chorus ∴ approx. 1/3 rd of lyrics = substantially copied
§ E.g. 1951 à expired in 1976 = outside duration = no copyright
§ 3) WHY: Infringement + enforcement M&S
• 6) Ownership *Look out for: ‘X owns all the IP’ - Copying single article ≠ substantial copying of typological arrangement of whole newspaper
• Protects creative works + expression of ideas (not technological developments) o S11(1) Author = first owner
• ≠ Registered o 2. QUALITY: Copied key idea/feature?
o S11(2) Employee in course of employment = employer
• ≠ Monopoly, b/c infringes IF access + copied, e.g. 2 take identical photos = incidental ≠ infringe copyright Spelling Goldberg
*May be employee, despite no employment contract
- Qualitatively copied (1 frame) = substantial part of 24-frame film
1) SUBSISTENCE + OWNERSHIP *Go through all criteria, b/c no register *Not if employed as gardener > composer
E.g. Z wrote lyrics = similar to Y’s poem, which X copied onto flyers + posted on website o 1. Commissioned works: Current owner? *Copyright in CD + song = may be diff owners Robbie Williams
§ Check contract between agency + freelance photographer (≠ employee) § Copied key elements: 1st verse (↑ memorable), repetitive chorus
• 1) Identify work(s) *Go through seperately
Griggs = prevented creator’s unfair use in equity § Copied elements showing skill of lyricist, e.g. nimbus cloud metaphor
o S1(1)(a) + 3(1)
§ 1. Literacy works ≠ literacy merit, e.g. lyrics - X designed logo, which claimant used o Requires ↑ info (e.g. copy of poem + lyrics) to establish if poem incorporates substantial part of lyrics
§ Cannot protect single words - X sold to 3rd party
- Claimant entitled to beneficial ownership ∴ X could not complete sale 4) DEFENCES
Exxon
- Not made-up word EXXON. Work gives info/instruction/pleasure via literacy enjoyment. • 1) Attack elements of claim:
o 2. Assign / license? o Lyrics ≠ original (evidence of 3 rd common source), consent (implied license)
Meltwater § Check contract between agency + X if X has license/owns copyright
o ≠ Copy (summarised info ≠ substantial part)
- Newspaper headlines = literacy works § “Requires ↑ info, e.g. still owner / assigned her copyright?”
§ Hard to argue, b/c objective similarity
§ S90 Assign/license copyright / s91 future copyright
§ S3(1)(b) + (d) Computer program + databases, e.g. exam papers, application forms, calendars • 2) Statutory defences:
§ S90(2) Partial assignment, e.g. assigns right to publish novel, but retains right to adapt into film
§ S3A ‘Database’: Selection/arrangement of database, not contents = wide o S28-40 Fair dealing defences, incl. quoted to criticise/review, parody, teaching, research
§ License ≠ affect ownership
o S28A Temporary electronic copying
§ 2. Dramatic works, e.g. dance, mime, play • Conclude: Copyright subsists + owner is X § For lawful use of work, e.g. read/view + free
§ Work of action, regardless if words/music + can be performed before audience *Despite subsists, if owns copyright under acquisition = no infringement § Not if hacks paying-website
o S70 Recording for time-shifting + private use
§ 3. Musical works, e.g. tune 2) INFRINGING ACT
• 1) Infringing act? *May be > 1 infringing act 5) REMEDIES *State all, then pick most relevant
o S1(1)(a) + 4(1) Artistic works not prototypes, b/c trainer cup ≠ artistic work
o S16(1)(a) + 17 Copying / s16(3)(b) Indirectly • S96 Injunction / S97A ISP
§ (a) Graphic works / photos / sculptures / collages ≠ artistic merit
§ Reproduce in any way, e.g. copied individual film frames, photocopied typographical • S96 + 97 Damages / account of profits (not both)
§ Graphic work, e.g. drawings, etchings, diagrams, maps, charts, plans
arrangement o S97(1) If innocent D = NO damages
§ Photo: Incl. new technologies
§ “ X copied Y’s poem, not Z’s lyrics directly” • S99 Order for delivery up
§ Sculpture: Cast/model, e.g. art installation
§ S17(3) Artistic works: ‘Dimensional shift’ copying = 2D to 3D / 3D to 2D • Interim injunction +/ search order
§ (b) Works of architecture, incl. models (+ drawings, written notes ≠ prevent using info in diff form)
§ S51 Unless 3D article ≠ artistic work = not infringed • E.g. Cartoon on website = ££ for it, keep on website
§ (c) Works of artistic craftsmanship, e.g. jewellery, furniture, ceramics, quilts
§ 1. Aesthetic appeal: Artistic? o S16(1)(b) + 18 Issuing copies to public *Active act of distributing PRACTICAL STEPS TO ↓ RISK?
Hensher § E.g. publishes book, distributes flyers, sells postcards • 1) Take down: Stops infringement
- Commercial exploitation/mass production ≠ artistic • 2) Get owner’s consent
o S16(1)(ba) + 18A Rent/lend to public
§ Intended to create work of art / commercial use? Skilled person? o But is it worth getting consent? Tips off owner of potential infringement, pay fee, unlikely to consent
§ Focus on sofa itself: Public ≠ get pleasure viewing it o S16(1)(c) + 19 Performing work in public • 3) Take another photo
§ If domestic/private setting ≠ infringing act
§ 2. Made by craftsperson > factory-made MORAL RIGHTS
§ If outside = potentially ‘public’ = risks infringing
Hensher • Weak personal rights = cannot assign
§ Consider: open venue, nature of audience, harms owner’s economic interests (receives royalties?)
- Requires skill/training + has pride in his workmanship • Only literacy/dramatic/musical/artistic + films
§ Not no. of people present
o S5A, 5B + 6 Sound recordings (e.g. CD) / films / broadcasts • Time limits:
o S16(1)(d) + 20 Communicating to public via electronically o Right to prevent false attribution: End of year author died + 20 years
§ Secondary works w/ underlying literacy/dramatic/musical work
*If posts on website = copying and communicating to public via electronically, NOT issuing copies to public o Others: End of year in which author died + 70 years
o S1(1)(c) + 8 Typographical arrangement of published editions
§ 1) Yes, Old Timer (poster) = copying + communicating work to public
§ Layout, e.g. headers, font, size, spacing, margins, page size, positioning of page numbers • May waive moral rights = avoid litigation
§ 2) Yes, G (online forum) by storing on server = copying + communicating work to public
§ ≠ Reprint previous edition o E.g. Freelance writers waive = company avoids acknowledging each contribution
§ Cannot avoid liability merely b/c didn’t put work on servers itself
o E.g. Filmmakers ask author to waive derogatory treatment = avoids litigation on artistic judgment
o E.g. Poetry book o S16(1)(e) + 21 Adaptation
§ Literacy: Poems, blurb, database (selection + arrangement of content) • S77 Identified as author/director
§ Artistic works: Drawings, cover photo • 2) S16(2) W/o owner’s consent • S80 Object to derogatory treatment of work, e.g. manipulated film
§ Typographical arrangement o E.g. Left manuscript behind • S84 Object to false attribution of work, e.g. spoof diary allegedly written by author
§ Works of artistic craftsmanship: Leather binding o E.g. Z may have consented Y using lyrics, but not benefit of license being transferred to X • S85 Privacy of photos/films, e.g. wedding photos
§ But the fact Z ≠ heard of Y ≠ likely to have consented
• 2) S3(2) Fixed = written/recorded, e.g. on website, saved on computer, audio tape DATABASE RIGHT
o ≠ Requirement for artistic works, b/c fixed by its very nature 3) COMPARISON • Unlike s3A(2), prevents unauthorised extraction of contents (raw data) ≠ copyright
• 1) CAUSAL CONNECTION • 15 years from end of year database was completed
• 3) S1(1)(a) Original = own work, not copied o 1. Did Y have ACCESS to Z’s lyrics? *Opportunity to hear it, not when actually heard • Defence: Fair dealing for teaching + research
o 1. S3A2 Databases = ↑ standard, e.g. selected content/arrangement = own intellectual creation § When did Z write lyrics?
o 2. Independent creation § When lyrics accessible to Y?
§ 2/more copyrights subsist independently in similar works, provided ≠ copied § When did Y write poem?
§ E.g. Took photo of same building at same time = 2 copyrights in 2 identical photos
o 3. S21(3) Adaptations, e.g. translations, adapted into dramas/novels, new musical arrangements etc.
§ When was poem published?
*Check when Y completes poem:
DESIGN RIGHTS + EUTM: Single registration protects in every EU MS
§ E.g. Book translated into French = prevent 3 rd parties copying that particular French translation,
unless made from scratch § 1) Proves poem ≠ copied from lyrics /
§ E.g. Completes poem before lyrics = no access REGISTERED DESIGN RIGHT = same as EU RDR *Go through stages for 1 st right, then 2 nd right
o Principles: § ∴ Both works had common source / coincidence • Protects outer appearance of (part of/) product
§ 1. De minimis: Too small to protect, e.g. Exxon, ‘pull ring tab to open’ § Burden of proving no copying ≠ shift to X REGISTRATION
Meltwater
§ 2) Shows Y had access to lyrics before completes poem • 1) S1(2) RDA Design? ‘Appearance of whole/part of product b/c features, esp. lines / contours / colours /
- Single-word headline = too short to be original
§ Z argues Y heard lyrics during composition period shapes / texture / materials / decoration’
§ 2. In practice, idea vs. expression of idea ≠ relevant § Subconscious copying w/o realising o E.g. fabric design, wallpaper texture, container shape
• 2) S1(3) Product? Handicraft / industrial
o “Nothing suggests copied ∴ original” / “commissioned to photographer to take photo” o 2. OBJECTIVE SIMILARITY o Dual protection: Copyright = artistic craftsmanship
o E.g. ‘Pull ring tab to open’ = literacy work, but not original, b/c no other way to convey info Designers Guild
o NOT computer programs
o E.g. Lyrics message (of love) ≠ original, but words + images = original 1) Identify original features claimant says were copied
o E.g. Idk: Inspired by same source, heard on radio, coincidence, copied § Ignore commonplace features: Verse structure, rhyming scheme, meaning (love)
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