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BPP University College Of Professional Studies Limited (BPP)
Legal Practice Course
Commercial Law and Intellectual Property
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COPYRIGHT s.4(1)(c) Works of artistic craftsmanship:
There are two types of questions that can come up in relation to 1. Craft: skill + pride in workmanship, and
copyright: 2. Artistic: intended for aesthetic appeal. High standard -
1. Subsistence questions – questions asking whether copyright not mass-produced - 1,000 pieces are too many.
subsists in a given work.
2. Infringement questions – where copyright clearly subsists and • s5A, 5B – Sound recordings, films
we want to find out if there has been an infringement. • s1(1)(c) and s.8 – Typographical arrangement of published
editions. - This includes the overall appearance of the page, the
font, margins, spacing and structure.
GENERAL:
Conclude: All items fell within ss. 1 and 4 CDPA as artistic works.
Protects creative works - eg. artworks, sculptures, songs and novels
Fixation:
Not a monopoly right: incidental copying does not amount to
infringement, only infringes if D had access + carried out infringing act. s. 3(2) Literary, dramatic and musical works must be fixated.
Artistic works and typographical arrangements need not be fixated as
Copyright Designs and Patents Act 1988 The act that covers copyright. they are fixated by their nature.
Copyright is a territorial right, valid in the UK. International conventions DEAL WITH WORKS SEPARATELY:
agreed to mutual recognition.
Originality:
Copyright is an unregistered right:
- Pro: the author need not register the work s. 1(1)(a) Must be original = not copied. Low standard, need not be an
- Con: there is no register to prove clear subsistence original spark of thought, simply must be author’s own creation.
- Con: in practice, every time there has been an infringement, you Eg. Client claims the lyrics are original because she wrote them. Check
need to first establish whether copyright subsists as without circumstances of composition.
subsistence, there cannot be infringement.
Consider factors:
Rights similar to copyright: • Is there another work to call into question originality?
- Moral rights (= authors’ rights, these are personal rights often • No subsistence if work is a direct copy of existing work in which
waived in commercial situations) no copyright subsists.
- Database rights (= rights protecting the contents of a database, • De minimis: too small to protect - eg. 1 word.
this differs from copyright in a database which protects the
selection and arrangement of content.) • Derivative works = works based on another work. – Eg. a film
based on the Harry Potter books.
SUBSISTENCE QUESTION PREP These works are only original if the author exercised skill, labour
or judgement in creating the work. If so, new work will be held
Copyright Subsistence - Structure: to be a separate work with separate copyright.
1. Identify work(s) and categorise them
2. Fixation • May be independent creation of a similar imagery. This is not
3. Originality copyright infringement, if actual creation is proven (eg by
4. Authorship submitting original sketches) – Eg independent creation is when
5. Duration two photographers take pictures of the same image at the same
6. Ownership time.
7. Conclude
If Typographical arrangement – only go through the below:
s. 1(1)(c) Typographical arrangements need not be original.
DEAL WITH ALL WORKS TOGETHER: s.8(2) However, copyright cannot subsist if the typographical
arrangement reproduces the arrangement of the previous edition.
Identify the work(s) and categorise them:
If Database – only go through the below:
• s1(1)(a) and s3(1) CDPA 1988 – mention both sections! s.3A(2) A database is original if it is the author’s own intellectual
1. Literary works: Written, spoken or sung. Need not have creation. – Same standard of originality as for other works.
literary merit - eg. may be software, application form, lecture Author’s own creation: if at least some skill, labour or judgement was
or database used in the structure of how the data is presented and/or how the data
2. Dramatic works: Production of a play – not the script (= was selected.
which is literary work) – eg. staging of a play is dramatic work
3. Musical works: Melody or arrangement of a song – not lyrics Conclude: Copyright Subsists.
(= which is literary work)
Authorship:
• s1(1)(a) and s4(1) – Artistic works:
s.4(1)(a) graphic works, need not have artistic merit. s.9(1) Author = person(s) who created the work. - cannot be a company
s.4(1)(b) works of architecture (including models) s.9(2)(d) For Typographical arrangements, – deemed authorship:
publisher is author
s.10(1) Joint authorship – test: the contributions of one author must not
be distinct from the other author. – Eg. Joint authors if: one of the
authors of a novel wrote the first draft then the second author edited it.
Not joint authors if: one author wrote the first 5 chapters and the second
author wrote the last 5.
s.12(8)(a)(i) If joint authorship: duration: 70 years from the end of the
calendar year when the last joint author dies.
Copyright: in the above three works + the photographs taken of them
Duration:
Three-dimensional works: *3D work or not is a question of fact*
- Sculpture Lit, dram, musical and artistic works:
- Work of architecture s.12(2) End of year when author died + 70 years
- Work of Artistic Craftmanship Assuming client is the author, copyright has not expired as he is alive.
Sculptures: Special rules for other types of work:
Sculpture = cast or model, made for the purposes of a sculpture. s.15 Typographical arrangements = 25 years from year of first
publication
Lucas Film Use the ordinary meaning of word sculpture. Main
purpose of the work must be visual appeal. Other uses are Identify exact duration.
irrelevant. – Helmet was not held to be a sculpture (main use was
to use as a helmet not as a sculpture) Ownership:
s.11(1) Author is first owner.
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
Commercial Law and IP – Copyright – Lecture and SGS notes | Page 1 of 5
, contract may state employee remains owner, check contract.
2. Designers Guild Establish objective similarity:
Commissioned works:
Eg. Owner of CD and music may be 2 different people. Step 1: Establish non-commonplace parts of the work that have
Commissioned works are relevant for freelancers (not for employees). been copied.
Check contract between agency + freelancer Mention any non-literal copying where imagery is similar.
Also, check if assigned right or right was inherited, thus new owner. Step 2: Compare works:
For infringement, similarities must be sufficiently close,
Conclude: numerous and extensive so that it cannot be a coincidence.
Literal copying: eg. if someone copies a pdf and pastes it onto
Copyright in the oil paintings would have expired by reference to the their website.
date of death of the artist, whereas copyright still subsisted in the Similarities with identical motives: In this case, set out which
drawings and photographs. parts of the works are identical and which parts are merely
similar.
INFRINGEMENT QUESTION PREP Conclude:
Sufficient similarity to indicate copying. Access and objective similarity
Copyright Infringement - Structure: are proven so burden shifts to D to prove he has not copied.
I. Subsistence and Ownership (briefly)
II. Infringing act Substantiality:
III. Comparison
IV. Defences s.16(3)(a) Designers Guild Non-literal copying is still copying. Facts: two
V. Remedies fabrics looked similar with both featuring similar floral elements and
VI. Optional (only if asked): Moral rights both used the same colours. Test:
VII. Optional (only if asked): Advice on managing infringement risk • What is the cumulative effect of the work’s features and what
are their relative importance to the Claimant’s whole work?
SUBSISTENCE AND OWNERSHIP: • Was a substantial part copied?
Identify what the work is, type of work and state that copyright subsisted Substantial can be:
in the work. 1. Quantitatively – how much? Eg 4 lines out of 20
M&S Must be copying of more than 1 article
Identify the author and check if the copyright is still valid.
2. Qualitatively – copied the central feature/idea?
Also identify copyright owner: Spelling Goldberg Qualitative copying if copied the key element,
s.11(1) Author is first owner. even if only coped 1 frame of 24 frame film. – eg. the key
s.11(2) If author was, at the time of creation, an employee acting in element of a book might only be 4 pages long, but if the key idea
course of employment, employer will own the work – check contract as was copied, then still amounts to copying.
these rules can be displaced by agreement.
Conclude:
Eg. if A creates a work in the course of employment, the owner is the The similar elements are likely to be (quantitatively and qualitatively)
employer, B. But if the work was commissioned by C and the agreement substantial parts of the work.
states that C owns copyright, the owner is C.
Also, check if assigned right or right was inherited, thus new owner. – DEFENCES:
in practice, you might need to trace past ownership to find current
owner. • Work is independent creation
INFRINGING ACT: • Dispute elements of infringement:
1. No infringement – unlikely
Possible infringing acts: 2. No causal link – eg. by not having access to the work.
*Put down more than 1 act* 3. Not substantial part copied.
• s.16(1)(a) and s.17(2) Copying
s.17(2) Copying = making copies, reproducing them or storing • Statutory defences:
copies electronically. – also includes unconscious copying or 1. s.28-40 Fair dealing defences
simply authorizing that someone else copies the work. 2. s.28A Temporary electronic copy for lawful use.
s.16(3)(b) Indirect copying – eg. selling or dealing with an But not if hacks into a website to avoid payment
infringing product. 3. s.70 Recording for purposes of time-shifting
eg. to be able to watch a film at home after work.
• s.16(1)(b) and s.18 Issuing copies to the public
Must have committed active act of distributing the work to the
public. REMEDIES:
Eg. issuing copies of a song to the public.
1. s.96 Injunction (interim and final)
• s.16(1)(c) and s.19 Performing work in public 2. s.96-97 Damages or Account of profits (one or the other) -
Consider factors: Damages are usually very small, reasonable royalty so apply for
1. Venue: Not infringing, if private setting, but potentially Account of profits rather than damages
public if outside 3. s.99 Order for delivery up
2. Any fees: if so, it may harm owner’s economic interests 4. s.114 Order for destruction
and thus, infringe original work 5. Interim injunction and/or search order while proceedings are
3. Number of guests - less important. pending.
• s.16(1)(d) and s.20 Communicating work to public OPTIONAL: MORAL RIGHTS:
Posting on website / Storing on server (forums): copying
(electronically storing pic) and communicating to the public Personal rights, Unassignable, only available for certain types of work.
These rights are often waived in commercial documents.
s.16(2) Act is only infringing if done without owner’s consent. – eg not
infringing if licenced to use the work. s. 77 Right to be identified as author or director – eg if using a work,
the owner must identify the author and add their names somewhere
COMPARISON: near the work.
s. 80 Right to object to derogatory treatment of work
Causal link: eg. manipulating a photo, even if D made it more appealing/artistic.
s. 84 Right to object to false attribution of work eg. work cannot be
1. s.16(3)(b) Establish access: attributed to someone else but the author.
- Did D have access to the work? Eg. access if work is
popular/sold in huge quantities/available on the market. ADVICE ON MANAGING INFRINGEMENT RISK:
- D will argue: common source or coincidence
- C will argue: subconscious copying. – the courts accept • Stop using the copyrighted work and choose work with expired
that this is possible, eg. you might hear a music on the copyright. Pros: Best option as this avoids infringement risk and
radio and then write a similar sounding musical piece will cost nothing.
without knowing that he copied.
Commercial Law and IP – Copyright – Lecture and SGS notes | Page 2 of 5
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