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1. What tests do the courts employ in order to determine the originality of literary, dramatic, musical and artistic works? A good answer will: u explain how originality is a requirement for copyright protection by virtue of the wording of s.1(1) of the CDPA u accurately summarise the explanation in the University of London case that originality is concerned with source not inventiveness u explain that ‘original’ now means ‘resulting from an author’s own intellectual creativity’ and explain how this text has been interpreted and applied u critically explore some of the difficulties caused by this minimalist approach, especially with regard to revisions, adaptation, compilations and ‘reporter’s copyright’. Originality is one of the fundamental requirements for copyright protection as it relates directly to literary, dramatic, musical or artistic works. The Berne Convention is viewed as the source of modern copyright authority, Article 2(1) does not speak to originality however Art 2(3) states that “translation and adaptations, etc are to eb treated as original works without prejudice to the copyright in the original work.” Bainbridge, Intellectual Property. It goes on to say in Art 2(5) to refer the collective works of literary and artistic works, such as encyclopaedias to be viewed as intellectual creativity. According to the CJEU originality is view as “the author’s own intellectual creation” Levola Hengelo v Smilde Foods, also Infopak International A/s v Danske Dagblades Froening confirming the interpretation in the Berne Convention. Thus resulting in a test for originality being, the works must show skill and judgement. This was confirmed in Cramp (GA) & Sons Ltd v Frank Smythson Ltd where it was found that merely setting out facts in a table showed no skill or judgement resulting in no protection, the same was found in the United States when the White Pages of a Telephone Directory was not protected because it lacked skill and judgement in its compilation it only showed labour or effort. Needless to say, it reinforces that the work must be of the author’s intellectual creation to succeed for protection. Some have taken a minimalist approach to originality and may view creating minor changes to the work as sufficient, however the court’s view is different. In Interlego AG v Tyco Industries Inc, minor changes to the lego block even though technically significant did not result in a new

copyright. The courts viewed copying a original art work does take skill, labour and judgement however in the creation of an original other skills are utilised, for instance in painting of a still life, the artist would use compositional and lighting skills, which is more than applying paint to canvas, Lord Oliver in Lego. The creation of a good quality copy falls under the same scrutiny as it would fail in comparison to skill and judgement used in the original expression, the same speaks true for photographs. Judgement and skill in lighting and composition to what a photographer is looking for creates his expression, but a copy of that photo does not show the expression of the person taking the photo, therefore it cannot be original. Another factor the courts considered was that of drafts and preceding version of a work. The courts viewed the use of sketches that precedes the final work, does not prejudice it. This was seen in Biotrading and Financing OY v Biohit Ltd. The concept was similar to using a written plan for a speech, which precedes the final speech, does the plan invalidate the originality of the final work? It is fair to say no. In the University of London Press Ltd v University Tutorial Press Ltd, it was found that the “copyright Acts are not concerned with originality of ideas but rather expression of thought … in print or writing” Peterson J. It could be said that the idea is not protected but the expression of the idea is, so the work itself should not be copied but the idea could be but expressed in a different way. This means the idea does not have to be new, and could be found from multiple existing sources. This was confirmed in Macmillan & Co Ltd v K & J Cooper, where it concerned a street directory, the argument was there was skill, labour and judgement expended in its creation even though it was a compilation of multiple non original sources, it was allowed. It is important to note that copyright does not protect one’s idea but rather the expression of it, or the form in which it is expressed, this was show in Donoghue v Allied Newspapers. Lloyd LJ in Baigent And Lee v Random House: “copyright does not subsist in ideas. It protects the expression of ideas, not the ideas themselves. There is no clear principle ‘is or could be laid down...to tell whether what is sought to be protected is on the ideas side of the dividing line, or on the expression side”. It is clear that the courts will uphold the principle that ideas can be used but the expression cannot, in Green v Broadcasting Corp of New Zealand, the television show format was copied but it was held the idea was copied not the expression. Similarly, in

Norowzian v Arks Ltd, the technique used in editing a film was copied but it was found that the idea was used not the work of the claimant. The test of originality continues to be utilized through out all cases of copyright where, there must be an examination of labour, skill and judgement, which in turn highlights whether the work is original or not.

Question 1 ‘English law does not provide adequate protection for moral rights, in particular in relation to authors who do not own the copyright in works that they have created.’ Discuss. Question 1 A good answer will: u explain how moral rights were introduced into the CDPA in order to meet the UK’s obligations under the latest version of the Berne Convention u set out the rights found in Chapter IV Part I of the CDPA and explain how they can be infringed u concentrate on the rights of paternity and integrity, commenting critically on the definition of each of these rights u consider critically the conditions attached to the right of paternity, especially the need to assert the right on assignment of the copyright in the work, and consider whether in the light of potential inequality of bargaining power between publisher and author such a requirement is appropriate u consider also in relation to the right of paternity whether the requirement of assertion is consistent with the civil law view of copyright as an aspect of the natural law rights of the author u consider critically the exclusions and exceptions imposed on these two rights by the terms of the CDPA u consider critically whether the limited case law available so far on the right of integrity protects the interests of the author u conclude by discussing whether the UK copyright system, which treats copyright as an economic right, can readily adjust to civil law concepts of copyright as an aspect of the author’s personality.

It is expected that a good answer will make use of the arguments raised by the authors of various articles referred to in this module guide and in the recommended textbooks.

Question 2 In the summer of 2018, Shelley, a famous poet, wrote a poem to English football entitled ‘We will win’, timed to coincide with the World Cup. He recited this poem at a formal dinner held for the England players, the team organisers and other special guests. David, one of the England players, responded with an impromptu speech thanking Shelley for his support. Unbeknown to Shelley or David, a reporter from The Daily Grime newspaper was present at the dinner. The reporter recorded the evening’s events. The exact wording of David’s speech and Shelley’s poem were reported in The Daily Grime newspaper the next morning. The following week, England played Guatemala in the World Cup and lost 4–0. Magnus, a columnist in The Daily Grime, wrote a humorous poem entitled ‘We will lose’. Each verse reproduced a verse of Shelley’s poem, except that the word ‘lose’ was always substituted for the word ‘win’. The verses were interspersed with a chorus which reproduced one line from David’s impromptu speech. Louise read the ‘We will lose’ version of the poem in The Daily Grime newspaper. Later the same day, she started to write the words to a new song. The song was called ‘The losers’ and it contained passages which were remarkably similar to the poem in The Daily Grime. When asked by her best friend, Susie, how she wrote the lyrics, Louise answered ‘the words just came to me’. Susie then added the music to Louise’s words. Susie is a member of the pop group, the Cheaters. The Cheaters recorded and released ‘The losers’ earlier this year. The song was distributed by Swerve Records and became a commercial success. Advise Shelley and David.

Question 2 A good answer will: a. Begin by considering what copyrights exist, and whether the conditions for copyright protection are met. u Both Shelley and David are potentially the authors of literary works under s.3 of the CDPA. u Are these original? Is David’s speech sufficient to attract copyright protection? u Have they been recorded? Shelley’s poem presumably is already written down (the question says ‘he wrote’ and ‘he recited’), but David’s speech is ‘impromptu’. Have David’s words been recorded in accordance with s.3(2) of the CDPA? Consider the effect of the reporter’s recording

in the light of Walter v Lane and Express Newspapers v News (UK). u Are the authors ‘qualifying persons’? u Who would be the owner of each of the two works?

b. Consider next the various acts of infringement which may have been committed. Take the facts chronologically. u The reporter at the dinner. He copies (s.17) Shelley’s poem by means of the recording but only ‘fixes’ David’s speech – can he simultaneously fix and infringe? (See the Phillips article discussed in relation to spoken word copyright in Chapter 7.) u Magnus copies Shelley’s poem (consider the parody cases, especially those where only minor changes were made to the source work) and David’s speech. Is there substantial taking? Would taking one line of a speech suffice? Has Magnus exercised enough skill, labour and judgment for him (or his employers) to acquire copyright in what he has written (consider ZYX Music v King)? u The Daily Grime will have issued copies of the works to the public. Louise has indirectly copied Shelley’s and David’s works by copying Magnus’s work (assuming the last-mentioned could claim copyright); subconscious copying suffices. It is important to understand the chain of copying here (from Shelley to Magnus to Louise): Solar Thompson v Barton is a useful illustration of how indirect copying can occur. u Susie has added her own musical copyright and so does not infringe anything. u The Cheaters and Swerve Records have copied by means of a sound recording (s.17) of a work (the words of the song) which is an indirect copy of the poem and the speech; copies of the sound recording have been issued to the public (s.18); there may also be public performance (s.19).

c. Consider lastly whether there are any defences available to any of the defendants. The most appropriate would be: u for the newspaper, use of the recording of spoken words (s.58 – but consider whether the conditions are met) u for the newspaper, reporting current events. Consider in detail whether Magnus and The Daily Grime could meet the exacting standards set out by the Court of Appeal in Pro Sieben.

Question 1 Lustre Ltd is a UK manufacturer of skin-care products. It seeks your advice about its plans to launch two new products in the UK. u Lustre Ltd intends to launch a new range of facial washes and soaps in the UK called FRENCH SOAP. The company has chosen this name as market research shows that a substantial section of the UK public consider French soap to be a luxury item. The French soap-making industry, led by the largest French company in the industry, Grand SA, wants Lustre Ltd to rename its FRENCH SOAP range. Grand SA acknowledges, however, that much of the soap sold in France is actually produced by French companies based in Switzerland and that, in practice, there is little difference between French soap and soap from other countries.

u Lustre Ltd is about to launch a budget range of shampoo in the UK, called GRAND HAIR. The French company Grand SA has written to Lustre Ltd to protest about this planned launch. Grand SA produces its own luxury hair products (GRAND HAIR LUXE) which are very popular with English people visiting France, and Grand SA had intended to begin selling these luxury Products in the UK next year.

u Assuming that there are no registered trade marks in respect of FRENCH SOAP or GRAND HAIR, advise Lustre Ltd as to whether Grand SA can stop it from using FRENCH SOAP and GRAND HAIR. Question 1 Answer As there are no registered marks, Lustre Ltd may become the defendant to passing off actions brought by Grand SA. A good answer should do the following. u List the elements of the action as given by Lord Oliver in Reckitt & Colman Products Ltd v Borden Inc. u In respect of FRENCH SOAP, consider the requirement of shared reputation as discussed in the various drinks cases. Does FRENCH SOAP meet these criteria? Consider further the Chocosuisse case and the difficulties encountered by the Court of Appeal in determining who were the relevant producers. u In respect of FRENCH SOAP, are the other elements of passing off established?

Does it matter that there will not be confusion, bearing in mind that this type of misrepresentation falls within ‘extended’ passing off? u In respect of GRAND HAIR, where Grand SA will be suing on its own behalf, can Grand SA meet the requirements for a foreign claimant? Are the other elements of passing off established?

Question 2 ‘The fact that there is no general concept of unfair competition in the UK is indefensible.’ Discuss. Question 2 A good answer should: u explain the traditional approach under UK law which has denied the existence of protection against unfair competition (as explained in the Australian cases of Victoria Park Racing v Taylor and Moorgate Tobacco v Philip Morris discussed in Chapter 2) u consider whether passing off could be developed to encompass unfair competition, but add that this would depend on judicial willingness to expand the tort; comparison could be made between the views of Lord Diplock in Erven Warnink BV v Townend & Sons and Lord Scarman in Cadbury-Schweppes v Pub Squash Co about how the common law should respond to unfair trading practices u rehearse some of the arguments for and against the need for a law of unfair competition, making reference to the extensive literature cited in Bently et al.

Question 1 Consider whether EACH of the following could be registered under the provisions of the Trade Marks Act 1994. a. The sound of bird song for breakfast cereal. b. The colour red for fire extinguishers. c. Soap in the shape of a heart. d. KILLER for clothing. Question 2 ‘Likelihood of association has no role to play in determining the scope of the trade mark owner’s monopoly.’ Explain and comment critically on this statement. Question 3 Consider the following in the context of ss.5 and 6 of the Trade Marks Act 1994. a. An application to register PHARMATIN for analgesic preparations when PHARMATON is already used and registered in respect of vitamin capsules.

b. An application to register DAILY for dried milk when DAISY is already used and registered in respect of margarine. Question 1 A good answer should tackle each part of the question systematically, as follows. a. Sound marks. These should first be considered under Article 2 s.1. Are they a ‘sign’ (Sieckmann) (they appeal to the senses) and are they capable of distinguishing (in principle a sound could be a trade mark)? Before the recent amendment of the law, the requirement of graphic representation under Sieckmann, as applied to sound marks by the Shield Mark decision, would have presented a problem. However, now sounds are explicitly identified as an example of a potentially registrable type of mark under TMA 1994, s.1. As long as the sound can be represented clearly and precisely (an audio file?), the requirement to satisfy this condition is unlikely to present a problem. However, would the mark be met by any Article 3/s.3 objections? Would it be devoid of distinctive character, is it inherently distinctive – do consumers perceive sounds as trade marks (possibly not) or would it be descriptive? What has the CJEU said about the meaning of those phrases? Could these objections be overcome by evidence of factual distinctiveness? What does Windsurfing Chiemsee say about this? What would need to be proved? How much evidence would be needed? b. Colour marks. Again the discussion should begin with Article 2 s.1 and the issues of ‘sign’, ‘clear and precise representation’ and ‘capable of distinguishing’. In relation to representation, the CJEU ruling in Libertel should be discussed: has the particular shade of red been indicated by use of the Pantone system or similar? Under s.3, would this mark be devoid of distinctive character: do consumers see colours as trade marks? (Here, would red simply indicate danger?) Would it be descriptive, for example, of a particular type of fire extinguisher? Might it not be common to the trade? Again, what sort of evidence of use would be needed to overcome these objections? Even if they could be overcome, what about an objection that the mark is deceptive or is contrary to public policy? c. Shape marks. These are mentioned in Article 2 s.1 as being potential trade marks (though care should be taken with the graphic representation – Swizzels Matlow).

Applying s.3(2) first (Linde), is this a shape resulting from the nature of the goods or could soap be any shape? Is it a shape necessarily attributable to a technical result (Philips)? Is it a shape which adds substantial value to the goods? In the last instance the question to be asked is not whether the branded goods cost more but whether consumers buy the product for its shape alone or for some other reason (presumably, here, to wash) (you should refer to the arguments in the Strowel article). Even if the shape escapes refusal under s.3(2), it is still necessary to see if there are objections under s.3(1). Paragraphs (b), (c) and (d) (together with relevant CJEU case law as summarised by the Court of Appeal in Bongrain) should be discussed in detail. Do consumers normally see shapes as trade marks? What sort of evidence of factual distinctiveness would be needed under the proviso? d. Word marks. KILLER: as a word mark there should be no problem with Article 2 s.1. Applying the concrete test of s.3(1), would the average consumer perceive this as a trade mark or think that it describes the goods or is common in the trade? Unlikely. The difficulty here is s.3(3)(a) and objections on the grounds of public policy, as discussed in Ghazilian. The Appointed Person’s views in Ghazilian should be explored. If there is an objection under s.3(3)(a), acquired distinctiveness would not help. From the above, you can see that the systematic approach involves a discussion of s.1 (where appropriate – i.e. ‘non-standard’ trade marks), followed by a detailed examination of s.3(1)(b), (c) and (d), followed by a discussion of what would be necessary to satisfy the proviso on acquired distinctiveness, with an appropriate selection of other grounds of objection in s.3. In the case of shape marks, s.3(2) is to be considered before s.3(1). Question 2 A good answer will: u explain the context in which the phrase ‘likelihood of association’ occurs (Articles 4(1) and 5(1) of the Directive, ss.5(2) and 10(2) TMA) and its origin in Benelux law u explain its relationship with ‘likelihood of confusion’ and the types of confusion which can occur u discuss Sabel v Puma and the conclusions reached in there u consider the role of ‘association’ in the application of s.5(2), namely the effect of

Recital 10, the concept of indirect confusion, and the global appreciation test in Sabel and Canon u consider the role of ‘association’ in the application of s.5(3) u link the above material to the functions...