BPP University College Of Professional Studies Limited (BPP)
*Up-to-date 2024 Distinction level EXAM READY notes* for the CLIP elective module of the LPC at BPP University.
*Achieved a grade of 96% with just these notes in the exam*
*Suitable for students studying the LPC, LLM or SQE at the University of Law, BPP & all other universities*
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BPP University College Of Professional Studies Limited (BPP)
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Commercial Law And Intellectual Property (CLIP)
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Thank you for the review. I worked really hard on these notes for the CLIP exam in February 2024 and got a high distinction: 96%. You will do well just by following the step-by-step solution guides. Good luck with your exams!
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SUBJECT STEP STEPS REQUIRED
COPYRIGHT COPYRIGHT OWNER (i) s.2(1) Copyright Designs and Patent Act 1988: Rights subsisting in
RIGHTS copyright works
** Copyright protects The owner of the copyright in a work of any description has the exclusive right
‘works’ (i.e. the form of an s.2(1) CDPA 1988 to do the acts specified in Chapter II as the acts restricted by copyright in a
expression of ideas) work of that description:
s.96(1) CDPA 1988 a) Copying [s.16(1)(a) & s.17 CDPA 1988]: reproducing in any material
** Copyright cannot be form, e.g. saving individual frames from a film as digital images or making
registered in the UK so a photocopy of the typographical arrangement of a published work.
have to prove: (i) that b) Issuing copies of the work to the public [s. 16(1)(b) and s. 18] public
copyright subsists; and (ii) interpreted widely: e.g. members of a choral society held to be the public
you are the owner of it; c) Performing, showing or playing the work in public [s. 16(1)(c) and s.
then (iii) prove the 19]
infringement. d) Communicating a work to the public [s.16(1)(d) and s. 20]:
broadcasting/ transmission on cable TV/ accessible on the internet
**Copyright is not a e) Rent or lend a work to the public [s. 16(1)(ba) and s. 18A]
monopoly right- cannot f) Make an adaptation of a work [s. 16(1)(e) and s. 21] term ‘adaptation’ is
claim copyright defined narrowly (s. 21(3)): Literary and Dramatic works: adaption means
infringement if the D hasn’t translations of those works into other languages, dramatisations,
seen your work/copied your novelisations and comic books. Musical works: adaption means new
work therefore can be mere arrangements (e.g. an orchestral version of a piano piece).
coincidence
(ii) s.96(1) CDPA 1988: Infringement actionable by the copyright owner
**The term of copyright for An infringement of copyright is actionable by the copyright owner**
primary works is the end of
the calendar year in which MORAL RIGHTS of the **[Moral rights arise in relation to: literary, dramatic, musical or artistic works and
the author died plus 70 author/director/commissioner films. DO not arise for: sound recordings, broadcasts or typographical arrangements]
years of the work (whether or not
he is the copyright owner) 1. Rights lasting for 70 years after the end of the year in which the author
dies
(i) Right to be identified as author or director [s.77] (the ‘paternity
s.77-s.85 CDPA 1988 right’): right arises, generally, when the work is exploited commercially
e.g. right of the author of a novel to be named when the novel is published.
(ii) Right to object to derogatory treatment of work [s.80] (the ‘right of
integrity’): the author of a work the right to prevent others from altering
his work, if this would amount to a mutilation of the work or harm his
reputation and integrity as a creative artist
(iii) Right of privacy of certain photographs and films [s.85]: right of the
subject of a photograph/film to prevent further use of the photograph/film
if it was commissioned for private purposes
2. Rights lasting for 20 years after the end of the year in which the author
dies
(i) Right to object to false attribution of work [s.84]: e.g. successful claim
by former cabinet minister, Alan Clark, against The Evening Standard for
a spoof diary purporting to be written by Mr Clark himself.
STEP 1 Subsistence and (i) Is it type of work that falls within s.1(1) closed list? [can be
Ownership [Look at the C’s overlapping]
work] a) Literary works [s.1(1)(a) & s.3(1) CDPA 1988]
▪ s.3(1): any work (other than a dramatic or musical work) which is written,
(i) Categorise the owner’s work spoken or sung and includes: table/compilation; computer programme;
[s1(1) CDPA]; database
(ii) establish that the literary/ ▪ Exxon [1982]: single words do not qualify as “original literary work”.
dramatic/ musical work is fixed
▪ Newspaper Licensing Agency v Meltwater [2010]: newspaper
[s.3(2) CDPA];
(iii) establish that the literary/ headlines may be protected as literary works (although single-word
dramatic/ musical/ artistic work is headline is too short to convey sufficient originality).
original [s.1(1)(a) CDPA];
(iv) establish the author [s.9 b) Dramatic works [s.1(1)(a) & s.3(1) CDPA 1988]
CDPA] and duration [s.12(2) ▪ s.3(1): includes a work of dance or mime e.g. production of a play on
CDPA] of the copyright; and stage is a dramatic work BUT script for the play is a literary work
(v) prove who is the owner of the
copyright [s.11 CDPA]
c) Musical works [s.1(1)(a) & s.3(1) CDPA 1988]
b. s.3(1): music excluding any works/actions to be sung/performed with the
music e.g. tune for a song is a musical work but lyrics are a separate
literary work
,SUBJECT STEP STEPS REQUIRED
d) Artistic works [s.1(1)(a) & s.4 CDPA 1988]
(i) s.4(1)(a): graphic works, photographs, sculptures and collages
(qualify as works irrespective of artistic merit)
▪ Graphic work [s.4(2)]: e.g. paintings, drawings, engravings and
etchings, diagrams, maps, charts and plans. NOT graphic work:
distinctive make-up design (as worn by Adam Ant) was NOT a
painting because make-up is impermanent
▪ Photograph [s.4(2)]: recording of light on any medium on which an
image is produced and which is not part of a film
▪ Sculpture [s.4(2)]: cast or model made for purposes of sculpture
‘irrespective of artistic quality’. Case law: should have, as part of its
maker’s purpose, some visual appeal and have been made to be
enjoyed for that alone (e.g. might include a work of installation art
shown in an art gallery). NOT sculpture/collage: careful assembly of
3D objects arranged in a particular way to be photographed for an
Oasis album cover was held not to amount to a sculpture or collage.
NOT sculpture/collage: Stormtrooper helmets as within the world of
the films they served a functional role and were not created with
artistic intent however visually interesting they may be.
▪ Collage [case law]: the various elements of a collage must actually be
stuck together.
(ii) s.4(1)(b): works of architecture being a building (including models)
(DOES need artistic merit to qualify as works)
▪ E.g. fixed structures/parts of buildings/models of buildings (even if the
building isn’t built)
▪ not qualified as ‘irrespective of artistic merit’ therefore not all
buildings are works of architecture.
▪ N.B. Architectural drawings are separately protected as graphic
works
(iii) s.4(1)(c): works of artistic craftsmanship (not anything mass-
produced)
1. First decide whether it is “craftsmanship”: skill, expertise and pride in
sound workmanship? E.g. thatched roofs, horseshoes, dental
prostheses, watch movements and plumbing. NOT craftsmanship:
product designed to be mass-produced on a production line. Restawile
Upholstery [1976]: a roughly ‘mocked up’ temporary prototype/model
for a sofa was very unlikely to be a work of craftsmanship
2. Second decide whether it is “artistic” i.e. craftsmanship intended for
aesthetic appeal where its’ maker must’ve intended that simply looking
at it should give us some pleasure or satisfaction e.g. wrought-iron
gates, hand-painted tiles, stained glass windows, fine jewellery,
tapestries and some items of furniture or ceramics.
e) Sound recordings [s.5A], films [s.5B] and broadcasts [s.6] [s.1(1)(b)]
▪ secondary works because there will be at least one underlying primary (i.e.
literary, artistic, dramatic or musical) work.
f) Typographical arrangement of published editions [s.8] [s.1(1)(c)]
▪ The typographical arrangement is a work in its own right, independent of
the underlying literary work. Allows the publisher to prevent unauthorised
photocopying off the page.
▪ the layout and typesetting of a book, newspaper, journal etc. which
qualifies as a ‘published edition’
▪ NOT new typographical arrangement: s.8(2): simply reprinting a previous
edition of a typographical arrangement book will NOT mean that copyright
subsists in the new edition.
,SUBJECT STEP STEPS REQUIRED
(ii) Is the literary/dramatic/musical work FIXED [per s.3(2)]?
a. s.3(2): No protection will be given to a literary, dramatic or musical
work unless it has been recorded ‘in writing or otherwise’. NOT fixed:
any poem/tune in your head
b. N.B. NO fixation requirement for artistic works/sound
recordings/films/broadcasts/typographical arrangement because they are
recorded by their very nature.
(iii) Is the literary/dramatic/musical/artistic work ORIGINAL [per
s.1(1)(a)]?
a. Case law: low threshold simply means that the work originated from its
author and not copied from somewhere else. BUT must be a modicum of
labour, skill or judgment in creating it e.g. ‘pull ring tab to open’ is a
literary work (it conveys information/instruction), but NOT an original
literary work as there is really no other way to convey that information so
succinctly.
b.Databases [s.3A(2)]: requires a higher level of originality than other
literary works. The way that the content of the database has been
selected/the arrangement of its fields of data must be the author’s own
intellectual creation.
c. CAN be original where:
-Independent creation [can be mere coincide without being a copy]:
copyrights CAN subsist independently in similar/identical works as long as
one not copied from the other e.g. photograph of the same building.
-Derivative works: can be based on/include elements taken from a pre-
existing work E.g. a translation of a book will have a separate copyright
because it is the product of labour, skill or judgment
(iv) Authorship [s.9] and Duration [s.12(2)] (i.e. has the copyright expired
based on the death of the author?)
a) Authorship [s.9(1)]: first establish who is the author: “the person who
creates it”
▪ Once an author has been decided, then this is fixed and can’t change
history
▪ Authors must be human i.e. can’t be companies
▪ For a typographical arrangement: the author is the publisher (s.9(2)(d))
▪ For a sound recording: the author is the producer (s.9(2)(aa))
▪ For a film: the joint authors are the producer and principal director
(s.9(2)(ab))
▪ s.9(2): deemed authorship: (i) sound recording (producer is the author);
(ii) film (producer and director are authors); (iii) typographical
arrangement of a published edition (publisher is the author)
▪ s.10: joint authorship:
▪ s.10(1): work of joint authorship means a collaboration of 2/more
authors where the contribution of each author is not distinct from
each other.
▪ N.B. 2 separate authors where: can the different contributions be
distinguished? If yes, then it is 2 separate works with 2 separate
authors.
▪ s.10(2): a film shall be treated as a work of joint ownership unless
the producer and principal director are the same person
b) Duration [s.12(2)]: The term of copyright for primary works is the end of
the calendar year in which the author died plus 70 years.
▪ NB specific rules for certain works:
1. Joint ownership [s.12(8)(a)(i)]: 70yrs from the end of the
calendar year in which the last of the author dies.
2. Films [s.13B(2)]: 70yrs from end of the calendar year in
which the last to die out of director/screenplay
author/dialogue author/musical composer dies.
3. Typographical layout of a published edition [s.15]: 25yrs
from the end of the calendar year in which the edition was
first published.
4. Broadcast [s.14]: 50yrs from the end of the calendar year
when the broadcast was made.
,SUBJECT STEP STEPS REQUIRED
(v) Ownership [s.11] (i.e. does the claimant own the copyright or has the
right been assigned?)
a. The author of a work is generally the first owner of the copyright in it
[s.11(1)]
b.BUT if made by an employee in the course of employment then the
employer is the first owner of the copyright (subject to any agreement to
the contrary) [s.11(2)] E.g. BUT gardener who writes music does NOT do
so in the course of employment
c. Copyright can be assigned by first owner to 3rd party [s.90] (even future
copyright over work that doesn’t yet exist) (can be partial assignment e.g.
right to publish novel to one person and right to translate to another
person)
d.If commissioned work then the author, not the commissioner, will own
the copyright in the first instance. N.B. therefore the commissioner should
include a term in the commissioning contract: (i) author, or other first
owner (e.g. the author’s employer) assigns the future copyright to the
commissioner; OR (ii) commissioner should at least secure an express
licence (permission to use the work). If no express agreement in contract
then general rule is: implied right for the commissioner to use the work,
strictly limited to such use as was envisaged by the parties at the time of
the commission. Any use of the work by the commissioner beyond that
point will be a breach of implied licence and thus infringement of
copyright.
STEP 2: Infringing Act: (i) Is there an infringing act per s.16(1)? [Identify the “verb” e.g. copying,
[What restricted act has the issuing copies etc. What has the defendant done?]
defendant done and is it
without consent?] a) Copying [s.16(1)(a) & s.17 CDPA 1988]
▪ Copying means reproducing in any material form,
(i) Is there an infringing act per ▪ Reproducing in any material form includes “storing the work in any
s.16(1)? medium by electronic means” [s.17(2)]
(ii) The infringing act MUST have ▪ Dimensional shift copying: N.B for artistic works only, infringement can
been done without the copyright occur by ‘dimensional shift’ copying, e.g. copying a drawing (which is
owner’s consent per s.16(2)
two-dimensional) to make a sculpture (which is three-dimensional)
(s.17(3)).
▪ Copying a copy: N.B. copyright in an original artistic work CAN be
infringed by copying a copy of the original work (s.16(3)(b): an infringing
act may be committed ‘either directly or indirectly’) E.g. C makes original
sculpture and then uses mould of sculpture to create copies of the
sculpture. Each new product is a sculpture BUT copyright doesn’t subsist
as they are not original sculptures. If D copies the copy under s.16(3)(b) it
copies the original sculpture indirectly and has infringed copyright in the
original.
▪ If D makes a 3D copy of a 2D artistic design (dimensional shift):
copyright only infringed if the 3D copy is an artistic work:
N.B.**s.51(1): Copyright in design drawings cannot prevent copying of
the design of ordinary (non-artistic) products.
▪ First: under s.17(3) it is possible to infringe copyright in a two-
dimensional work (e.g. a graphic work) by copying it in three
dimensions [‘dimensional shift’ copying]
▪ Second ask whether or not the three-dimensional copy is an
artistic work in its own right.
a. If the 3D copy is an artistic work/sculpture in its own
right THEN copyright has been infringed e.g. making a
sculpture from a 2D drawing is a dimensional shift per
s.17(3), the copy is an artistic work therefore s.51 does not
apply and there has been an infringement of copyright in
the drawing
b. If the 3D copy is NOT an artistic work/sculpture
THEN s.51(1) applies and copyright has not been
infringed e.g. making a spanner out of a drawing is a
dimensional shift per s.17(3) but it is not a sculpture nor a
work of artistic craftsmanship therefore s.51(1) applies
,SUBJECT STEP STEPS REQUIRED
and there has NOT been infringement of copyright in the
drawing.
c. If a photocopy (i.e. a non-dimensional shift) is taken of
the 2D drawing then copyright has been infringed
[ignore s.51 as there is no dimensional shift copying]
b) Issuing copies of the work to the public [s. 16(1)(b) and s. 18]
▪ public interpreted widely: e.g. members of a choral society held to be the
public
▪ e.g. are publishing a literary work as a book, selling postcards of a
painting or distributing photocopies of sheet music.
c) Performing, showing or playing the work in public [s. 16(1)(c) and s. 19]
▪ public interpreted widely: any performance outside the home is potentially
risky
▪ N.B. NOT if: it was a purely domestic occasion within the home, then
there would be no copyright infringement.
▪ court would consider other factors, including whether there was any harm
to the economic interests of the copyright owner: How many people in
attendance? How was admission gained to the venue? whether there was
any harm to the economic interests of the copyright owner?
d) Communicating a work to the public [s.16(1)(d) and s. 20]
▪ restricted to an act of communication by electronic means: broadcasting/
transmission on cable TV/ making the work accessible on the internet
e) Rent or lend a work to the public [s. 16(1)(ba) and s. 18A]
f) Make an adaptation of a work [s. 16(1)(e) and s. 21]
▪ term ‘adaptation’ is defined narrowly (s.21(3)):
▪ Literary and Dramatic works: adaption means translations of those
works into other languages, dramatisations, novelisations and comic
books.
▪ Musical works: adaption means new arrangements (e.g. an orchestral
version of a piano piece).
(ii) The infringing act MUST have been done without the copyright
owner’s consent per s.16(2)
a) s.16(2): copyright in a work is infringed by a person who without the
license of the copyright owner does, or authorises another to do, any of
the acts restricted by the copyright. Therefore if works performed in public,
not only will the performer be liable but also the person who authorized
those acts
STEP 3: Comparison: Can (i) Can you infer a causal connection [apply the Designers Guild test
you infer a causal connection? steps (1) and (2)]?
Has a substantial part of the [prove both: (i) that the defendant had access to the work; and (ii) the new work is
Claimant’s work been copied? objectively similar to the copyrighted work]
[N.B. compare the work twice] [necessary to prove that the defendant’s act was done in relation to the claimant’s work
.because if defendant acted independently and coincidentally similar to the claimant’s,
there will be no cause of action]
(i) Can you infer a causal
connection [apply the Designers
Guild test steps (1) and (2)]? a) Was the defendant’s work made at a time when the defendant had
(ii) Has a substantial part of the access to the claimant’s work
claimant’s work been used [apply ▪ When did the copyright owner create the work? When did the work
s.16(3)(a) and Designers Guild test become accessible to the defendant? When did the defendant create his
step (3)]? work?
b) Is the defendant’s work objectively similar to the claimant’s work in a
case of non-literal copying? Designers Guild [2001] objectively similarity
test to establish whether there has been copying the first place:
1. Identify the (non-commonplace) features in the claimant’s
work that the claimant says were copied (The court will ignore
unimportant parts of the claimant’s work: e.g., in software,
routine instructions for the computer.) Non-commonplace
, SUBJECT STEP STEPS REQUIRED
features could be: the sequencing of the ‘story’ told in the
extracts; the choice and order of words; and the image of a
person’s faults as a nimbus cloud. Commonplace features that
would be ignored: The verse structure, rhyming scheme and
meaning (‘I love you despite your faults’) are probably
commonplace
2. Compare the two works, noting similarities and differences
(but ignoring commonplace features), to decide whether the
similarities are sufficiently close, numerous and extensive so
as not to be merely coincidence. E.g could be sufficient
similarity to indicate copying if: For both works the ‘story’ is
identical and, line-by-line, the sequence of ideas is the same.
There are several identical turns of phrase and many of the same
words are used. Both works use the nimbus cloud image.
c) Access AND objective similarity = a presumption of copying
THEREFORE burden of proof then shifts and it will be for the defendant
to prove that his/her work is original and that any similarity is a result of
coincidence rather than copying.
(ii) Has a substantial part of the claimant’s work been used [apply
s.16(3)(a) and Designers Guild test step (3)]?
[The question is whether the copying is substantial not only in quantity but also in
quality]
a) Designers Guild [2001] test: If, and only if, a causal connection is
established above, compare the works again to decide whether this
relates to a substantial part of the CLAIMANT’s work (their cumulative
effect and their importance to the claimant’s work as a whole NOT whether
the parts copied form a substantial part of the defendant’s work)
▪ Look at Quantitive & Qualitative copying
▪ E.g. therefore defendant can’t use a smokescreen in their work to
cover up the fact that a substantial part of the claimant’s work has
been taken as the test looks at the claimant’s work
b) Quantity (copying is quantitively substantial)
▪ If a large portion of the original work appears word-for-word in the
defendant's work then there is a prima facie case for infringement
▪ A single article out of a whole newspaper is NOT quantitively
substantial: NLA v Marks and Spencer [2001]: copying the
typographical arrangement of a single article was not substantial
copying of the typographical arrangement of a whole newspaper,
so infringement was not proved.
c) Quality (copying is qualitatively substantial)
▪ E.g. if defendant has copied a very important part of the work
which conveys the ‘guts’ of the story.
▪ Spelling Goldberg v BPC [1981]: poster made from single frame
of a 1hr long Starsky & Hutch film was a tiny part quantitively
BUT was copying of a qualitatively substantial part of the whole
film as it featured main characters and some key motifs (e.g. a
distinctive-looking car).
STEP 4: Defences to (i) NB best defence at the outset is for the defendant to seek the copyright
Infringement [s.28A- 40 & owner’s permission to use the work
s.70] [“permitted acts” even if
there is substantial copying (ii) NB in proceedings defendant may dispute elements of infringement:
without the copyright owner’s a) the claimant does not have copyright in the work (e.g. the work does
permission] not fall into one of the specified categories or it is not original);
b) the defendant has not copied the work (e.g. it has merely summarised
information conveyed by the work and has not copied the work itself);
c) the claimant consented to the defendant's use of the work (i.e. there is
an implied licence);
d) rebut the presumption of copying (which won’t be easy if there are
objective similarities between the 2 works);
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