Copyright Infringement Notes PDF

Preview

Summary

Notes on the rights of copyright owners and what amounts to infringement ...

Description

IP Tutorial 3 – Infringement of Copyright P 141-180, 193-225 The reproduction right - Harmonised in EU Law - Article 2 InfoSoc - Infringement takes place regardless of whether the copy is permanent, transient, temporary or even incidental a. LDMA - Copying means reproducing the work in any material form – Eu law says any means, any form b. Broadcasts - Audio recording of the broadcast c. Typographical arrangements - Typographical infringement it by was of facsimile copy – photocopy, faxing, scanning – retype in different font is not The Distribution Right Owner of any work is given the right to issue copies of the work to the public under s18 of the CDPA - implements article 4 of InfoSoc a. Distribution - Peek v Cloppenburg – could distribution by sale or otherwise include display in a shop window – No – distribution primarily concerns transfer of ownership - However the court has held that ‘distribution’ as per article 4(1) InfoSoc can encompass a series of acts that do not Involve transfer of ownership  Advertising (Donner and Dimension direct), agreement to sell, delivery - Peek is limited to a display of goods for sale

b. To the public - Between personal friends – probably not , between wholesalers – yes c. Exhaustion - Distribution right applies to the first issuing of the copy, after that it can be resold = exhaustion principle - Must be by the right holder and with their consent - May only apply to tangible objects but largely rejected my the court in Used Soft GmbH v Oracle the court held that the exhaustion doctrine applies to computer programms made available electronically where the substance of the arrangement is to transfer the copy to the user for an indefinitie period – no exhaustion of lawfully made back up copies The Public Performance Right - Right to perform the work in public CDPA 1988 s19

EU Division between performance and communication - European categories do not map onto the division in UK law between s19 and s20 - Difference is in the sense that under EU the public must be present at the place in which the performance occurs - FA Premier league v QC Leisure – shoeing a football broadcast on a public screen in pub was communication to the public – s19(3) - Public performance is not harmonised – caf muic = communication; music before circus event = performance Location - Takes plae where it can be heard – where an apparatus is used it is who operates he mechanism In Public (Domestic) - In order to infringe, it must be carried out in public 1. Section of the general public – shop, hotel lobby, etc - share a private or domestic link 2. Private viewing, boarding school, dinner party, etc 3. Copyright owners monopoly - Jennings v Stephens – performance of a play without audience was held to be infringement  Historically the notion of public has been defined increasingly expansively so as to favour the copyright owner – it is clear that public (Barbers etc) are performances to the public, performances to a substantial number not connected by family or domestic ties - Not falls on marginal cases The Communication Right - S20 CDPA – right to broadcasr and make the work available a. -

Communicating E.g. internet streaming When deciding is something g is communication to the public, an individual assessment is needed Justifying the approach – required to afford a high level of protection and to interpret the concept broadly

Communication requires 5 elements i. An ntervention to give access to or experience of works or other subject matter ii. Going beyond the mere provision of physical facilities iii. T a public that is not present at the place where the work or subject matter originate iv. When it would otherwise have had such access v. Which is a deliberate act, carried out with full knowledge of the consequnences

i.

(Intervention condition) An intervention to give access to or experience of works or other subject matter - CJEU said that communication = transmission - Intervening however means ‘to give access’ - intervention test is thus broader than simply transmitting the work  Hyperlink (Svenson)

 Sells multimedia device with links to streaming services (Stichting)  Does not cover the mere provision of televisions in hotel room however Arguably too low – libraries and art galleries which provide access – this is communicating to the public?

ii. Going beyond the mere provision of physical facilities - Meerly supplying TV to a hotel would thus not be commuiction  Structured hyperkinks giving access to content (Stichting)  Indexing and structuring torrent files by pirate bay made them readily available to the public (Ziggo) - Thus it must go beyond mere infrastructure that can supply content – must be in order to make it accessible iii. At a public that is not present at the place where the work or subject matter originate - Must give the public access to the work - The public should not be present at the place where the communication originates – if the public is present or else the act concerns the unharmonized public performance right (s19) iv. When it would otherwise have had such access (Indispensable provision) - Action of the user must be essential to enable the public to access the work - Public in question would not have access BUT FOR the intervention - GS Media – hyperlink is only is only indispensable if it gives access to the material which is not otherwise accessible - court did not follow this approach – Not required that the intervention render possible access to the work that is otherwise impossible but only that the intervention makes it less difficult/complex - pirate bay, the indexing made them much easier to access

vi. -

Which is a deliberate act, carried out with full knowledge of the consequences (Intention requirement) SGAE v Rafael Hotels – organisation intervenes in the full knowledge of the consequences of its action to give access to protected work to customers

To the Public -

Pubic is the same ans InfoSoc definition

a. ‘The Public’ 1. Is it made available 2. Is it a new public To define public i. Large group – likely to be pubic even if not all in th same place ii. Character f group – indeterminable number of potential listeners or viewers as apposed to a prvate group iii. Character of the communication – for profit? Targeted or chance?

Hotel resudents, Spa = communication to public. Dentist radio was not as the audience was small, is determinatable audience size and facility was neither profit making nor a technique for attracting business – contradt to hotel – but lok at specific factual circumstances which gave rise to judgement (Reha training – AG on dental chair exception)

b. A new public - If communication is made to the public it will not necessarily lead to liability if the communication is of material that has already been communicated with the right holders consent - SGAE – author licensed broadcase, could they object to retransmission to hotel rooms? This was a public distinct to the one the author had in mind when it lisenced the broadcast - New pubic is ennential where there is a retransmission of a work that has already been communicated - The provision of access to broadcast was an additional service provided by the hotel and profit making New public? – Test is one of expectations of the author when the initial communication was made. If the author hoped or expected the work to be received by a particular audience group then merely doing an act that assists what aim does not make it available to a new public – booster aerials does not make it available to a new public (FAPL) -

But new public – ITV Broadcasting v TV CatchUp – captured tv signals and retransmistted to subscribers – could have received them anyway - tv catch up added advertising – court said that each transmission or retransmission of a work which uses a specific technical means must be individually aithorised by the author - New technical means meant that it was irrelevant that the audience was the same

-

SEE AKM V ZURS.NET

C. Hyperlinking - Svensson – creating a hyperlink involved communicating the work ro which the link led It only occurred if the link was one which made content not readily available available – e.g. content normally behind a paywall - GS Media – the new public applied where the work had been made avilabel on the internet without the permission of the right holder - If copyright work is freely available on the internet but has been posted without the consent of the right holder then the work has been communicated to a n ublic because the author had not contemplated making it public to any public - BUT Knowledge component was introduced in the analysis – depends on whether they knew or could reasonably have not known that the work was posted without the consent of the right holder - if the negative then there is no communication to the public - If motivated by profit making that gives rise to a rebutable presumption that the person is aware of the legality – thus GS Media was operating for profit and thus knew that the photographs had been linked illegally

-

Search engines are most likely not included – See Bestwater as well

Who Makes a communication? In the UK there is primary liability and accessory liability – for an accessory to be liable they must have procured or induced an act or it must have been a result of their common design - See Popcorn Time - where they were liable as accessories Only primary liability has been harmonied within the European union - court has tended to expand the concept of communication rather than answer the question of responsibility - Ziggo – operated of the site (Pirate bay) were also communicating the work – but ziggo offers no clear guidance Location of Act -

Football Dataco v Sportradar – sports results uploaded in genmany to a dutch server from which they were accessible in the UK. ECJ said the wrongful act takes place in a member state from which the material can be accessed Language of the site and domain name will be considered as well as the context (EPL in elngland)

Broadcasting

S20 CDPA the copyright of the owner to communicate the work to the public includes the right to broadcast it a. Who makes? - S6 CDPA, the person who makes the broadcast is either the person transmitting an item, such as a programme or the person providing the item for transmission b. Where occur - The country of introduction is treated as the relevant place only where the standard of copyright protection is satisfactory c. -

Making the work available S20 CDPA – copyright owners have an exclusive right to make the work available to the public Placing the work on the web in such a way that members of the public can access it Installing peer to peer software that allows third parties to access works from the installers computer – live streaming is not however – does not make it available as only a limited time

Reform – communication to the public right seems to be the most controversial

Right to make an adaption of the work

S21 confers on the owners of LDM works the exclusive right to make an adaption of the work - This is not granted to the owner of copyright in artistic works, sound recordings or films This right includes the right to do any f the restricted acts in relation to adaption Def of adaption? - Lit and dram – translation both literal and in relation to technical language or a dramatization of a non-dramatic work (Norowzian v Arks – a film) - For a dramatic work, an adaption means a version of a dramatic work this is converted into a non-dramatic work - involves changing the form of the work - Musical works it is an arrangement or transcription of the work - Computer programmes and databases – arrangement or altered version of the program or a translation of it The Authorization Right -

Means to sanction, countenance or approve or alternatively to grant to a tp the right to do the act CBS v Amstrad – the person who authority has illegitimately been granted must in fact commit an infringing act Where a person makes facilities available in the knowledge that they will probably be used to infringe this is equivalent to authorising infringement E.g. makes photocopying available in a library In CBS the HoL defined the term authorized restrictively - sold machine for copying – held that neither the sale of the equipment nor th advertising amounted to authorisation 0 authorisation means a grant express or implied of the right to do the act complained of - but was crucial that a footnote had warned that certain trypes of copying required permission it was left to the operator whether to infringe or not – Amstrad in no way pretended to give authority to copy

For internet Twentieth century fox v Newzbin - Newzbin enabled users to to download the infringing files from the bulletin boards - Authorization required a grant ot purported grant of the freedom to do the relevant act – could be implied from relevant circumstances - May include – nature of relationship, control of supplier, inevitability of being used to infringe -

Infringement Primary infringement Falls upon the claimant to show on the BoP that.. i. D carried out one of the activities that falls within the copyright owners control ii. D’s work was derived from the copyrighted work (causal connection) iii. The restricted act was carried out in relation to the work or a substantial part thereof 1. Restricted Activities - See above 2. -

Causal Connection Does not have to be direct, only need to base it on the work – CDPA s16 Is for c to convince a tribunal that this has occurred A court is likely to accept that there is a causal connection between the two works if the similarities are are very numerous or so individual that the possibility of them having been independently conceived is resmote – where such an inference of copying has been established by a claimant the onus shifts onto the defendant to prove created work independently  Designers Guild v Russell Williams - Fabric designs with similarities – similar pattern, theme, execution – similarities went far beyond the similarities which would be expected simply from being based on an impressionistic style - Also found that the designer had the opportunity to copy it since she was present at a place it was exhibited - Judge rejected the defendants own account of how she came to produce the design Contrast  Mitchell v BBC - Copied cartoon was not found to be copied – they could provide evidence that sketches were drawn up before, could show various inspirations for different sources and unlikely they had seen the others when they drew it up Often if the same work contains the same mistakes as another – sometimes intentional by the owner/author Subconscious copying is possible – character of the work and the degree of similarity between them - While similarity combined with access might shift the onus of proof and evidence onto the defendant - The intention of the defendant is not relevant – fact that he believed he was allowed to copy does not make a difference - Francis Day and Hunter – In finding the causal lik, the judges will consider  The degree of familiary with the infringed work – character of the work, qualities making it memorable, other influences on defendant

Indirect Copying - Causal relationship can be turned into a causal chain - Drawings often made before a 3 dimmensional object is made – if someone makes his or her own drawings after having seen the object but without seeing the drawings, the copyright of the drawings will still be infringed - The chain can be long but not interrupted, the final infringing work must be linked to the original work (16(3) - Canon Kabushiki kaisha v green cartridge – copy of cartridges was indirect copyinh of drawings in which artistic cr existed - Cannot be used if two similar objects are created and drawings of each of these objects are made – here no indirect infringements as the objects and not the drawings are the starting point of the chain 3. -

Whole work or a substantial part thereof ? S16(3)(a) Necessary to assess the importance of the copied material - see designers guild Identical copy (Piracy) See Table pg 200

Under infosoc, the test is whether the defendant has reproduced a part of the work The British Approach Designers Guild - Q is whether whay has been taken constitutes all or a substantial part of the copyright work - deemed by quality over quantity - Depends upon importance to the defendants work – the pirated part on its own and its importance to the work assessed i. ii.

What is the claimants work Has the defendant utilized the whole of the claimants work or a substantial part thereof

i. What is the work - Whole or substantial part a. Parameters of the work - Hyperion Records – A copyrighted work is not a package of copyrighted works – 8 notes as part of the song was not protected - 8 notes were not a work in their own right - Whether something is whole or substantial part depends on what it is judges against - Parameters discussed in Hyperion Records v Warner Music – application for a summary judgement – owned copyright for a 5 minute song which appeared on an album. Alledges that the copyright had been infringed when the electro pop band - sampled 8 notes – argued that the 8 notes could amount to a work - Considerations  Work must have a discrete, natural, or non-artificial shape  Level of independence and interdependence of the units concerned  Commercial form in which the work is published and made available b. Distinguishing protected from non-protected

-

-

When the work has been identified the question is what aspects of the work are protected. Copyright is concerned only with the protected parts of the work – that is those that are original (Ladbroke Football) Designers Guild – if a defendant takes a number of elements from a work which are non original from a work together they may be taking a substantial part of the labour and skill (Or intellectual creativity) involved in collating the material.

ii. Has D taken the whole or substantial part? - The meaning of substantial will always depend upon the facts of the case and is for the courts to decide if the part taken is important - It will consider  Way in which the work was created  Nature of the work  Relationship between the parties Ladbroke v William Hill – Substantiality is a matter of quality not quantity – reason why the work was afforded copyright protection will be the quality - InfoPaq puts the focus on originality also – Temple Island Case – difference in pictures, structure of bridge and river – key combination of the basic composition of the scene itself a. Importance to C’s Work - Importance of the part taken is judged in terms of its importance to the copyright work and not the defendants work b. Quality over quantity (Ladbroke) - Literary – NLA v M&S – qualatively important part of the work would be identified as the reason for which the work was given protection in the first place - Artistic – Billhofer – lord Hoffman – visual significance for what has been copied c. Importance to Audience - Hawkes v paramount – substantial because the audience would recognise it – part by which was thought to cause its popularity d. Functional importance - Judged on a criteria relevant to the type of work in question – e.g. where a small part of a computer programme is copied – will it function without the part, does not mean every part will be treated as substantial e. Must be capable of being protected - Will not be substantial if the amount that is taken would not in itself attract copyright - Francis Day v 20th Century Fox – owners of the song the man who broke the bank in monte carlo brought a claim against a film with the same name. – copyright of the title I too unsubstantial to amount to infringement - Lord wright was saying – no copyright of title alone - Williamson v Music – only a small sample of the song parodied – the wor...