BPP University College Of Professional Studies Limited (BPP)
Notes on CLIP (Commercial Law and IP) for the LPC at BPP University to help you revise.
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BPP University College Of Professional Studies Limited (BPP)
Legal Practice Course
Commercial Law and Intellectual Property
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Please make sure you check the statutory references in these notes, I found around 20 wrong/incomplete references which would have lost me a lot of marks
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Set out assignment/licencing rules at the bottom of statute book. Authorship:
CLIP Exam: Multiple choice + long form questions.
Permitted materials: Code of Conduct/PCR Handbook + CLIP Handbook s.9(1) Author = person(s) who created the work
Deemed authorship for certain works:
COPYRIGHT s.9(2)(d) Typographical arrangement – publisher is author
s.10(1) Joint authorship
Protects creative works - eg. artworks, sculptures, songs and novels
Not a monopoly right: incidental copying does not amount to Duration:
infringement, only infringes if D had access + carried out infringing act.
Author need not register the work. Lit, dram, musiscal and artistic works:
s.12(2) End of year when author died + 70 years
COPYRIGHT – SUBSISTENCE QUESTION Assuming client is the author, CR has not expired as she is alive.
Special rules for other types of work:
Copyright Subsistence - Structure: s.15 Typographical arrangements = 25 years from year of first
1. Identify work(s) publication
2. Fixation
3. Originality Identify exact duration.
4. Authorship
5. Duration Ownership:
6. Ownership
7. Conclude
s.11(1) Author is first owner
DEAL WITH ALL WORKS TOGETHER: s.11(2) If author was, at the time of creation, an employee acting in
course of employment, the employer will own the work – employment
contract may state employee remains owner, check contract.
Identify the work(s):
Commissioned works:
• s1(1)(a) and s3(1) CDPA 1988 – mention both sections! Eg. Owner of CD and music may be 2 different people.
1. Literary works: Written, spoken or sung, need not have Commissioned works are relevant for freelancers (not for employees).
literary merit. Check contract between agency + freelancer
2. Dramatic works: Production of a play – not the script
(=literary work) Also, check if assigned right or right was inherited, thus new owner.
3. Musical works: Melody of a song – not lyrics (=literary work)
Conclude:
• s1(1)(a) and s4(1) – Artistic works:
s.4(1)(a) graphic works, need not have artistic merit. Copyright in the oil paintings would have expired by reference to the
s.4(1)(b) works of architecture (including models) date of death of the artist, whereas copyright still subsisted in the
drawings and photographs.
Three-dimensional works:
- Sculpture
- Work of architecture COPYRIGHT – INFRINGEMENT QUESTION
- Work of Artistic Craftmanship
Sculptures: Copyright Infringement - Structure:
Sculpture= a cast or a model, made for the purposes of a sculpture. 1. Subsistence and Ownership (briefly)
Lucas Film Use the ordinary meaning of word sculpture. Main 2. Infringing act
purpose of the work must be visual appeal. Other uses are 3. Comparison
irrelevant. – Helmet was not held to be a sculpture (main use was 4. Defences
to use as a helmet not as a sculpture) 5. Remedies
6. Optional (only if asked): Moral rights
s.4(1)(c) Works of artistic craftsmanship: 7. Optional (only if asked): Advice on managing infringement risk
Craft: skill + pride in workmanship and artistic: intended for
aesthetic appeal. High standard SUBSISTENCE AND OWNERSHIP:
(not mass-produced - 1,000 pieces are too many)
Identify what the work is, type of work and state that copyright subsisted
• s5A, 5B – Sound recordings, films in the work. Identify the author and check if the copyright is still valid.
• s1(1)(c) and s8 – Typographical arrangement of published editions Also identify copyright owner. – Be brief as this is only an introduction.
Conclude: All items fell within ss. 1 and 4 CDPA as artistic works. INFRINGING ACT:
Fixation: Possible infringing acts: Put down more than 1 act
• s.16(1)(a) and s.17 Copying
s. 3(2) Literary, dramatic and musical works must be fixated. Add this section if indirect copying: s.16(3)(b)
Artistic works need not be fixated. s.17(2) Copying = making copies, reproducing them or storing
copies electronically.
DEAL WITH WORKS SEPARATELY:
• s.16(1)(b) and s.18 Issuing copies to the public
Originality: Must have committed active act of distributing.
Eg. issuing copies of a song to the public.
s. 1(1)(a) Must be original = not copied.
Eg. Client claims the lyrics are original because she wrote them. Check • s.16(1)(c) and s.19 Performing work in public
circumstances of composition. Consider factors:
1. Venue: Not infringing, if private setting, but potentially
Consider factors: public if outside
• Is there another work to call into question originality? 2. Any fees: if so, it may harm owner’s economic interests
• No subsistence if work is a direct copy of existing work in which and thus, infringe original work
no copyright subsists. 3. Number of guests - less important.
• De minimis: too small to protect - eg. 1 word.
• May be independent creation of a similar imagery which is • s.16(1)(d) and s.20 Communicating work to public
accepted but must be able to prove actual creation (eg sketches) Posting on website / Storing on server (forums): copying
• Derivative works (based on another work): to be original author (electronically storing pic) and communicating to the public
must exercise skill, labour or judgement.
s.16(2) Act is only infringing if done without owner’s consent.
Conclude: Copyright Subsists.
Commercial Law and IP – All chapters – Revision notes | Page 1 of 13
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