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Intellectual Property Copyright Law Lecture Copyright Topic Covered 1 History, justifications key concepts 2 Categories of work, authorship ownership 3 Exclusive rights, duration and infringement 4 Defences and moral rights 5 Copyright in the digital realm Introduction Copyright law is a crucial for...

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Intellectual Property Copyright Law

Lecture

Copyright Topic Covered

1

History, justifications & key concepts

2

Categories of work, authorship & ownership

3

Exclusive rights, duration and infringement

4

Defences and moral rights

5

Copyright in the digital realm

Introduction Copyright law is a crucial form of IP that protects a range of creative works, including music, literature, photographs, films and broadcasts. The main provisions are set out in the Copyright, Designs & Patents Act 1988, though European Directives, such as the Information Society Directive, also play a crucial part. This area of law raises important questions about ‘ownership’ of cultural works, free expression and the extent to which people should be able to use or build upon the work of others.

[1] History, Justifications & Key Concepts Copyright laws emerged across the 17 th-18th centuries in response to a radical new technology – the printing press. Monarchs, wary of the capacity of the printing press to spread dangerous and dissenting ideas, sought to regulate it. Over the following centuries, copyright came to be applied to other new types of work such as photographs, films and software. Various theoretical arguments are typically advanced to justify copyright protection for creative works. The two most prominent justifications are based on Lockean labour theory and utilitarianism. The former tends to favour individual rights-holders, claiming that labouring to create a work establishes an entitlement that should be protected by copyright. Alternatively utilitarian arguments justify copyright laws on the basis of the social and economic benefits they bring to the community; as such, these arguments favour the wider policy benefits of copyright laws. For a literary, dramatic, musical or artistic work to be protected by copyright, 2 key requirements must be met. These requirements reflect two key concepts in copyright law:

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(1) The work must be recorded/fixed in material form idea/expression dichotomy)

(the

(2) The work must be ‘original’ (the originality requirements)

[1.1] Key Concept: The Idea/Expression Dichotomy The idea/expression dichotomy is a core principle in copyright law. In short, copyright will protect expression, but not ideas. The rationale for this is that ideas are building blocks that many creators may wish to use in many different ways, so no one individual should own them. The idea/expression principle is reflected in section 3(2) of the CDPA, which requires copyright work to be recorded in some form for LDMs (but, note, not artistic works). The principle also plays an important role in infringement (which we will look at in lecture 3). Cases illustrating the idea/expression dichotomy include: 

Kenrick v Lawrence (1890) 25 QBD 99.

•

Baigent v Random House (Da Vinci code case) [2007] EWCA Civ 247

[1.2] Key Concept: ‘Originality’ A literary, dramatic, musical or artistic work must also be ‘original’. The meaning of this term in copyright law is different to its meaning in regular conversation. It does not mean that a painting or poem must be novel or innovative in order to be protected by copyright. Copyright can actually protect many artistically mundane, mediocre works. ‘Originality’ in a copyright sense is thus a more modest standard. Even so, there have been changes to the terminology of ‘originality’ in recent years. The traditional approach of the UK courts has been to understand originality as requiring the work to have originated from the author, and to ensure the author has spent ‘skill, effort and labour’ in producing the work: 

University of London Press v Tutorial Press [1916] 2 Ch 601



Ladbroke v William Hill [1964] 1 All ER 465

But the European Court of Justice (CJEU) decision in Infopaq introduced a new interpretation of ‘originality’; it required a work to be the author’s ‘own intellectual creation’. In the UK Meltwater case, the Court of Appeal confirmed that this terminology now applies, though doubted it would make a significant difference in many cases: 

Infopaq International AS v Danske Dagblades Forening C-302/10, [2009] All ER (D) 212



Newspaper Licensing Agency v Meltwater Holding BV [2011] EWCA Civ 890 (CA)

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[2] Categories Ownership

of

Work,

Authorship

&

The CDPA protects 2 broad categories of work: 1) Authorial works. These are the creative works that we tend to think of as being copyright works. They include literary, dramatic, musical and artistic works (regularly shortened to ‘LDMA’s in the literature. 2) ‘Entrepreneurial works’. Copyright also sets out ‘neighbouring rights’ (or derivative rights). It provides protection for activities allied to creative works, including film, sound recordings, broadcasts and the typographical layout of publications. We will only briefly touch upon those rights in these lectures. Copyright and related laws also provide protection for databases. One crucial point to remember is copyright is multi-layered. different copyrights may subsist in one piece of work.

Numerous

[2.1] Categories of Work The CDPA lists the various types of work that can be protected by copyright (e.g. artistic works, sound recordings). If a work does not fall within one of these categories, it will not be protected by copyright. This is called a ‘closed list’ system. The categories of work protected by the CDPA are: Literary works – Section 3 CDPA Literary works do not just include novels and poems. It covers a wide range of works, including almost anything that is written, spoken or sung (if recorded). So, e.g. letters, emails, song lyrics, business documents, even computer programs are covered. Dramatic works – Section 3(1) CDPA The CDPA does not define what a dramatic work is, though Norowzian v Arks [2000] FSR 363 indicates that it must be a ‘work of action … capable of being performed’. This category can include film or theatre scripts Musical works – Section 3(1) CDPA The CDPA definition of music excludes any lyrics or actions (e.g. dances) that accompany the music; these accompaniments are protected by separate ‘layers’ of copyright. Artistic works – Section 4 CDPA Like ‘literary works’, this category covers a wide range of subject matter, including photographs, sculpture and works of architecture. It can cover technical drawings (e.g. plans, design drawings). Film works – Section 5B(1) CDPA

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The CDPA definition of ‘film’ is much wider than simply a ‘movie’. It also includes any moving image recording in any medium (e.g. celluloid or digital) so could cover, e.g. CCTV footage or video captured on a mobile phone. Sound recordings – Section 5A CDPA A sound recording can be a recording of anything, e.g. political speeches, interviews or music, to nature, trains or urban bustle. If the sound recording covers a literary or musical work, copyright in the sound recording will exist in addition to the literary or musical copyright. Broadcasts – Section 6(1) CDPA Section 6(1) provides copyright protection for the transitory electronic transmission of images, sounds or information. It thus protects the act of communication itself.

Typographical arrangement – Section 8 CDPA This category of copyright provides protection for the format and layout of publications. For example, when a newspaper or magazine is published, the presentation of the text will require planning and work. For example, what size and font of lettering should be used? How are margins, titles and subheadings to be arranged? How will each page be presented and set out? Typographical copyright covers this and will co-exist alongside any literary copyright in the writing itself. See lecture slides for additional information on each type of work.

[2.2] Authorship & Ownership of A Copyright Work In any copyright ‘problem scenario’ it is wise to clarify the following matters: 1) Who is the author of the work or works? In many cases, this may be obvious, but there are circumstances where this may be difficult, e.g. where works are very old or where works have been produced collaboratively by numerous people. 2) Who is the owner of the work or work? This may also be a difficult question to answer. We cannot assume that the author is also the owner of the work. The law allows the ‘property right’ of copyright to be transferred. So it may have been sold to another party, or it may vest in the employer of an author.

Authorship of A Copyright Work Section 9(1) CDPA sets out a starting point – the ‘author’ of a work is the person who creates it. The CDPA also specifies who the individual author will be for certain types of work (e.g. the author of a sound recording will be the producer). See lecture slide for further details. Work produced collaboratively by numerous people may raise difficult issues of authorship (and thus ownership that usually flows from it). Not every person who works collaboratively to produce a work will be an ‘author’ at law. Section 10(1) covers works of ‘joint authorship’. A work of joint authorship must meet the following requirements:  It must be produced by collaboration  The contribution of each author must not be distinct

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

Each author’s contribution must be of the right kind

Cases providing guidance on joint authorship include: 

Robin Ray v Classic FM [1998] FSR 622



Cala Homes v Alfred McAlpine [1995] FSR 818

Ownership of a Copyright Protected Work Ownership of copyright work is crucial. The owner can control a protected work as they have exclusive rights over it, including the right to copy it, communicate it to the public etc. The starting point of copyright law is that the author of a work will be the owner of it: section 11(1) CDPA. However, the author and first owner of a copyright work may enter into contracts with other parties (e.g. publishing houses or record companies) to assign (i.e. transfer) their ownership, and therefore the rights over the work. Alternatively, the author may be employed. Section 11(2) states that the employer will be the owner of copyright where a work is produced by an employee in the course of employment. See lecture slide for further information.

[3] Exclusive Rights, Duration & Infringement [3.1] Duration of Copyright How long does copyright last? Though it lasts a long time, copyright does not last indefinitely. When considering a problem scenario we need to know whether copyright is still in force. When copyright expires, a work falls into the public domain and can be used freely by anyone. The duration of copyright has been a controversial issue in recent decades. This is because it terms of protection have gradually increased (critics say as a result of lobbying by powerful media corporations). The durations for different categories of work vary. But the duration of copyright protection for LDMAs and films is life of the author plus 70 years (section 12 & 13B CDPA). This means that much creative work produced in the 20 th century remains subject to copyright restrictions. Critics argue that the duration of copyright is too long, unjustified and limits the creative use and reinterpretation of works for new generations. Those of you who are interested should note the optional further reading on copyright duration in lecture slides.

[3.2] Exclusive Rights of the Owner The Information Society Directive 2001 29/EC sets out the following exclusive rights of the copyright owner:

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- Art 2: Reproduction right - Art 3: Right to communicate work to the public - Art 4: Distribution right Section 16(1) CDPA also sets out exclusive rights of ownership that include the rights outlined above.

[3.3] Infringement - Requirements To establish that the copyright in his/her work has been infringed, an owner must show the following: 1) That the defendant has committed a ‘restricted act’ 2) That there is a ‘causal link’ between the owner’s work and the defendant’ work 3) That the defendant has used the whole or a ‘substantial part’ of the owner’s work We will look at each of these elements in turn. 

Restricted Act

Certain acts in relation to a copyright work are restricted. These are acts that the owner has an exclusive right to do. They are set out in section 16(1) of the CDPA, but the Information Society Directive also sets out such rights. The main acts of importance are:   

Copying (or reproducing) Communicating work to the public Distributing copies of the work

Section 16(2) states that copyright will be infringed where someone does one of these ‘restricted acts’ without the copyright owner’s permission. 

Causal Link Between Works

Copyright law allows independent creation of works. So for example, if you write a short story, and elsewhere another person independently writes their own story which co-incidentally happens to be very similar to yours, then copyright will not afford you a remedy. Therefore claimants in infringement actions must establish a causal link (or a causal connection) between their work and the defendant’s. In basic terms this means that the defendant’s work must have been derived from the claimant’s, either directly or indirectly. Whether a causal connection is present will be a question of fact. A causal link can be established in one of two ways: (1) Direct evidence of copying may exist, as in Ibcos v Barclays [1994] FSR 275 or… (2) A causal link between the two works in question may be inferred from the facts of the case, as in:  Designers Guild Ltd v Russell Williams (Textiles) Ltd [2001] FSR 11

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 Francis Day v Bron [1963] Ch 587 In this case Diplock LJ claimed that a causal connection between the two works must be present, and that it could be inferred from 2 facts:  Objective factual similarities between the two works. This was an ‘essential’ ingredient and could constitute ‘very cogent material from which to draw the inference that the defendant has in fact copied’.  Whether the defendant had access to the claimant’s copyrighted work.



A Whole or Substantial Part

The restricted act, usually copying, must have been carried out in relation to the whole or a ‘substantial part’ of a work (section 16(3)). Where a whole work has been copied (e.g. the downloading of a whole film), this will be fairly straight forward. But partial copying can be much trickier for courts to determine. What amounts to a ‘substantial part’ of a song or a novel? How much of a work can another person use or copy without being liable for infringement. ‘Substantiality’ will depend upon the type of copyright work in question and is determined on a case by case basis. However, caselaw suggests that the following factors may come into play when determining substantiality:  Quality not quantity Ladbroke v William Hill confirmed that substantiality is assessed according to the importance of the claimant’s work that a defendant has taken, not necessarily just the amount. Obviously, if a defendant has used a large majority of the work then it may well constitute a ‘substantial’ amount, but the amount taken is not the conclusive issue. For example, if the unique and distinctive guitar riff from a musical work is used by a defendant, then this may amount to a ‘substantial part’, even though it only represents 20 seconds of a 3 minute song.  Substantiality is judged in relation to the claimant’s work The courts ask ‘has the defendant taken a substantial part of the claimant’s work?’ When assessing substantiality the defendant’s own work is irrelevant. So it does not matter if the claimant’s work occupies only a small part of the defendant’s work, or even that the defendant has used his/her own intellectual creativity in making his/her work.  Originality and idea/expression The precise relationship between originality, idea/expression and ‘substantiality’ in an infringement action is vague. However it is clear that the courts have used these basic copyright principles to help guide their decisions as to whether a defendant has taken a substantial part. Useful guidance is provided in the leading cases of:  Designers Guild Ltd v Russell Williams (Textiles) Ltd [2001] FSR 11  Baigent v Random House (Da Vinci code case) [2007] EWCA Civ 247

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[4] Defences & Moral Rights The Information Society Directive (Article 5(3)) set out various copyright exceptions that EU member states could choose to adopt. These include measures for scientific research, quotation and parody. As a result, numerous reforms to UK copyright law were made in 2014. There are a range of defences and exceptions to copyright that you can read about in the main textbooks. These lectures will focus on the two main defences of fair dealing and public interest.

[4.1] Fair Dealing Defence A successful fair dealing defence justifies the defendant’s infringing use of copyright work. For the defence to apply the defendant must establish two conditions: (1) That his/her actions came within one of the statutory activities, and (2) That his/her treatment of the copyright owner’s work was fair. Statutory Activities These include:     

Section Section Section Section Section

29 & 29A: Private study & non-commercial research 30(1): Criticism & review 30(2): Reporting current events 30(1ZA): Quotation 30A: Parody or Pastiche

See slides for further information. Treatment Was Fair Even if a defendant’s actions fall within one of the three statutory grounds, a fair dealing defence will fail if the defendant’s treatment of the claimant’s work is not ‘fair’. The CDPA does not specify the factors that must be considered when deciding whether a claimant’s work has been treated fairly. Fairness will often be a question of degree or impression, and will depend on the facts of the case. A number of cases set out factors to be considered, though these factors can vary across judgments. Leading cases providing guidance on this issue include: 

Ashdown v Telegraph Group Ltd [2001] EMLR 20



Hyde Park Residence v Yelland [2000] RPC 604

[4.2] The Public Interest Defence

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We encountered the public interest defence in misuse of private information law. This same common law defence is available to defendants in a copyright infringement action. A defendant may be able to argue that though they have breached confidence, doing so was in the public interest: 

Hubbard v Vosper (1972) 2 QB 84



Lion Laboratories Ltd v Evans (1985) QB 526

In Spycatcher, ‘public interest’ arguments were used in a slightly different way as both parties sought to rely on public interest justifications. The Law Lords had to ‘balance’ these versions of the public interest’: 

A-G v Guardian Newspapers (No. 2) (1990) 1 AC 109

The public interest defence was also claimed in Ashdown v Telegraph and Hyde Park Residence v Yelland. However, the public interest arguments were unsuccessful in both.

[4.2] Moral Rights Moral rights are rights that vest in the author of creative works, as distinct from the copyright owner. Moral rights protect the creator’s non-economic interests. They do not set out rights that able the exploitation of works. Instead they are concerned with the reputation of the creator and his/her relationship with the work. The main moral rights include:  Section 77 CDPA 1988 – the right of paternity. The right to be credited as author of a work one has created.  Section 80 CDPA 1988 – the right of integrity. The right of a creator to object to derogatory treatment of their work, e.g. where the work is di...