L7. Copyright - Subsistence PDF

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Mark Thomas, IP Law, Lecture 7...

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L7. Copyright - The law of Subsistence

This covers subsistence in literary, dramatic, musical and artistic works and also an . overview of other types of works

Recap (Copyright, Designs and Patents Act 1988 (CDPA s.1(1) - Copyright is a property right which subsists in accordance with this Part — in the following descriptions of work Original literary, dramatic, musical or artistic works (known as (A (”“Authorial Works” or “Classic Works Sound recordings, films or broadcasts, and (B .The typographical arrangement of published editions (C

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”a) - Known as “Authorial Works” or “Classic Works) b) & (c) - as “Entrepreneurial Works” or “Neighbouring ) ”Works s.1(2) - In this Part “copyright work” means a work of any of those descriptions .in which copyright subsists

Introduction to Copyright Protection ; In order for copyright to exist, the following conditions must be met (It must amount to a “work” (i.e. there is subsistence .1 .’The work must be ‘original’ or ‘not copied .2 The work must be recorded in a material form (Applies only to literary, .(dramatic, and musical works The work is sufficiently connected to the United Kingdom to qualify for .protection under UK law

We focus on 1 and the podcast covers 2, 3, 4

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What must actually exist in order for the work to be considered capable of protection Literary Works .1 Dramatic works .2 Musical works .3 Artistic works .4 Other categories of work

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Literary works .1 s.3 CDPA 1988 In this Part, “literary work” means any work, other than a dramatic or musical ; work, which is written, spoken or sung, and accordingly includes ;A table or compilation other than a database (A ;A computer program (B Preparatory design material for a computer program, and A database (D

(1)

(C

Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise; and references in this Part to the . time at which such a work is made are to the time at which it is so recorded

(2)

Words when spoken are inchoate (just begun and thus not fully developed) Copyright. Once fixed, they become literary works. The fact the lecture is being recorded means . it is capable of copyright protection

:Writing is defined in s.178 CDPA 1988 as including Any form of notation or code, whether by hand or otherwise and regardless of the method by which, or medium in or on which, it is recorded, and “written” shall be construed accordingly

”Printed Matter“

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Literary works are not limited to works of literature, but include all works .( expressed in print or writing (other than dramatic or musical works

University of London Press v. University Tutorial Press [1916] 2 Ch 601 Peterson J - accorded protection to examination papers - ‘…In my view the words “literary work” cover work which is expressed in print or

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writing, irrespective of the question whether the quality or style is high. The word “literary” seems to be used in a sense somewhat similar to the use of the word “literature” in political or electioneering literature and refers to written or printed matter. Papers set by examiners are, in my opinion, “literary work” within the meaning of the present Act Effect of London Press - a wide range of everyday items fall within the scope of copyright - the work will be protected irrespective of the quality or style of the creation in question. Copyright law does not pass (judgement on the standard of the work (Bentley & Sherman

Examples

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A five-letter code for sending messages - Anderson & Co v Lieber Code Co [1917] 2 KB 469

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Greyhound race forecast cards - Bookmakers Afternoon Greyhound Services v Wilf Gilbert [1994] FSR 723

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Lists of TV programmes - Independent Television Publications v Time .Out [1984] FSR 64 Football pools coupons - Ladbroke v William Hill [1964] 1 WLR 273 Football betting coupons by D resembled P’s

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Skill, judgment in the assembling of the coupons so © subsisted Compilation considered as a single work Substantial part was taken

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D’s argument: fragments of the compilation taken separately would not be © and therefore whole could not be © – dismissed Appeal by D dismissed by HL

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Reiterated Peterson, J “What is worth copying is prima facie worth ”protecting

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The minimum standard was applied in Hollinrake v Truswell [1894] 3 Ch 420 (Davey LJ) - this concerned the design process for a shirt sleeve - ‘…a literary work is intended to afford either information and instruction, or pleasure, in the form of ’.literary enjoyment

Information or instruction For a work to provide information or instruction, it must be capable of conveying an intelligible meaning - Apple Computer v Computer Edge [1984] - Here . could the coding of a computer programme have an intelligible meaning

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In order for a work to ‘convey an intelligible meaning’, it is not necessary that the work be understood by the general public; it is sufficient that the work is understood by a ; limited group with special knowledge [Brigid Foley v Ellott [1982 This concerned an instruction manual for a knitting machine which included a detailed set of instruction involving words and numerals. Although the words and numerals may only be understandable by someone intelligible in this area, they still qualify as works capable of protection even if a certain part of the population doesn’t understand .it

De Minimis For copyright to subsist, the work must be more than de minimis - this means more than trivial or significant. However, following Infopaq, this list may need substantial .amendment

:Protected :Tables or Compilations S.3(1)(a) CDPA 1988 specifically states that literary work includes ‘tables or .’(compilations (other than a database Anacon v Environmental Research [1994] FSR 659 [Football League v Littlewoods [1959 :Computer Programmes s.3(1)(b) 1988 Act protects computer programs as literary works (Gates v. Swift ([[1982 While the Act does not define what is meant by a ‘computer program’, it is clear that .it includes source code, assembly code, and object code It is also clear that ‘computer program’ is not synonymous with software. On this -

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basis, it has been held that the definition of computer program includes instructions permanently wired into an integrated circuit (that is, firmware). (The Software .(Directive, R7 .GUI is not a computer programme Preparatory Design Material for Computer Programs To bring British law into conformity with the Software Directive, preparatory design mat .lite :Da Intr : S.3 — co a)ar . b)a ● It seems that the definition is broad enough to cover most, if not all, of the material previously protected as tables and compilations

Literary works that are not protected Names and Invented Words - despite the fact that names and titles are expressions in writing or print, United Kingdom refuses to protect them as literary works

Exxon Corporation v Exxon Insurance Consultants [1982] - Invented words such as exxon, which had been invented by Esso Petroleum as a trade name, have been held not to be protected by copyright as literary works and didn’t pass the de minimis mark. Here it would have been better to seek protection by other means e.g. Trade marks. The rationale here is the general inconvenience that would arise if someone were able to control the way in which certain words and phrases were used. It’s unnecessary to do so, given that they are adequately protected by passing off, trade marks and artistic .copyright - see the Cullabine [1992] arguments Infopaq International v. Danske Dagblades Forening [2009] - The Court of Justice, likewise, has stated that words ‘considered in isolation, are not as .’ such an intellectual creation of the author who employs them

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Titles and Headlines - the UK courts have consistently refused to recognised titles .and headlines as amounting to copyrightable work

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Green v. Broadcasting Corp. of New - courts refused protection to the name of a game show Francis Day and Hunter v. 20th Century Fox - the song title ‘The man who . broke the bank at Monte Carlo’ was not capable of copyright protection

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Shetland Times v Jonathan Wills [1997] FSR 604 - where it was assumed for the purposes of granting interim relief that newspaper headlines were copyright works. Justify it on the basis that there is a sufficient level of skill, . labour and judgment in choosing headlines that attract readers

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Dramatic works .2 s.3(1) CDPA 1988 - “dramatic work” includes a work of dance or mime. By s.3(2) a (dramatic work must be recorded in some form (“Writing or otherwise” - e.g. film There is no definition of “dramatic work” in the statute, however a definition was offered in Norowizian v Arks Ltd (No. 2) - “a work of action, with or without words or music, which is capable of being performed .”before an audience

Threshold for protection Dramatic work requires some sort of presentation or delivery - Fuller v Blackpool Winter Gardens [1895] 2 QB 429 - ‘simply singing in costume is not enough’ , there must be some form of acting or the use of scenery UK copyright law assumes that a work (whether dramatic or some other category) must in some way be united, finite and complete (i.e. the content does not change regularly) - Green v Broadcasting Corp of New Zealand [1989] RPC 700 (see .(below

Green v Broadcasting The issue here was over catchphrases and a clapometer to measure audience .reaction There was no script

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No more than a general idea for a talent contest

Dramatic work must have sufficient unity -

It lacked certainty to attract CR protection

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Capable of performance - a television show was not capable of repetitive ’‘performance Lord Bridge - ‘the appellant's claim relies upon the “dramatic format” of “Opportunity Knocks”, by which their Lordships understand is meant those characteristic features of the show which were repeated in each performance. These features were, in addition to the title, the use of the catch phrases “for [name of competitor] opportunity knocks,” “this is your show folks, and I do mean you,” and “make up your mind time,” the use of a device called a “clapometer” to measure audience reaction to competitors' performances and the use of sponsors to introduce ’.competitors it seems to their Lordships that a dramatic work must have sufficient …‘ unity to be capable of performance and that the features claimed as constituting the “format” of a television show, being unrelated to each other except as accessories to be used in the presentation of some other dramatic or musical performance, lack that essential ’.characteristic

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In Wilson - The New Zealand courts were prepared to find copyright existed in a game show where it was laid out with sufficient detail in a written document and the project was feasible In RTI - The Italian Supreme Court found that TV formats can be protected under Italian copyright law where it has both a structure that can be repeated and certain fixed elements, despite the possibility of unexpected creativity. The Italian courts used, with great emphasis, the EU approach to originality – i.e. the author’s intellectual .creativity Banner - This concerned the format of a TV show called ‘minute winner’ which the ’ defendants had taken to create their own format called ‘Minute to win it In a case management conference Snowden J - ‘it is at least arguable, as a matter of concept, that the format of a television game show can be the subject of copyright protection as a dramatic work’. He went on to explain the requirements of protection and then found against the claimant’s arguing that the contents of the show did not qualify for protection. Given the lack of coherent framework or structure and the features were commonplace amongst many other game shows. The judge was wrong to conclude the format of a TV show if show that is capable of being protected as a dramatic work. It sits on the edge of idea/expression and would be a slippery slope to allow such formats to be protected. Following Snowden’s reasoning, sporting matches like football could be classed as dramatic given that they follow basic and identifiable rules, the format or structure of the work is individual and capable of repetition with pre-determined rules and requirements AND, much like a game show, is subject to unpredictability

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Compare - Pop Idol v X-Factor and Great British Bake off v Great British Sewing bee Interestingly, in practice the television and media industry tends to operate on the basis that TV formats are protectable. Nonetheless, in the UK, case law .suggests TV formats are not protectable Possibility a dramatic work is a work of action, with or without words or music, …‘ which is capable of being performed before an audience’ - Norowzian v Arks (No 2) [2000] FSR 363

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Impossibility of performance will prevent the work from being classed as “dramatic” (i.e. must be capable by a human being) - Nova Productions Ltd v Mazooma Games Ltd [2007] RPC 589

Musical Works .3 s.3(1) CDPA 1988 - “musical work” means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music. There is .no definition of “music” in the CDPA

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Mummery LJ provided a definition in Sawkins v Hyperion Records [2005] - ‘In the absence of a special statutory definition of music, ordinary usage assists: as indicated in the dictionaries, the essence of music is combining sounds for listening to. Music is not the same as mere noise. The sound of music is intended to produce effects of some kind on the listener's emotions ’.and intellect . Basically apply common sense as to what music actually is

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Lyrics are excluded from the definition, however but are protected as literary works. It is clear from wording or s.3(1) that words and music are separate copyrights .and can be owned by different people

Threshold for Protection .The threshold is very low

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The creation of music has to involve the writing down (or at least the recording) of the notes divorced from any input from the performers - Hadley v Kemp [1999] EMLR 589 - there must be a separation of authorship and performance. The focus is .literally what appears on the page If someone changes the musical notes e.g. remix - this can also be afforded

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protection

Example - The four-note tune used as the ‘ident’ of Channel 4 - Lawson v .(Dundas 12 June 1985 (unreported Can John cage’s 4:33 (where he sat in front of a piano but didn’t play for 4 minutes 33) be capable of protection as a musical work? Majority of academics say no as there is no commendation of sounds to listen to. Other academics believe it can be treated as ( a dramatic work (as it can be repeated many times

Artistic works .4 —s.4(1) CDPA 1988 - In this Part “artistic work” means A graphic work, photograph, sculpture or collage, irrespective of ,artistic quality A work of architecture being a building or a model for a building, or . A work of artistic craftsmanship (C

(A (B

This is an exhaustive list – if a piece of work is not featured in the list, it cannot be . protected as an artistic work

Irrespective of artistic quality – refers to originality. Originality does not require . any artistic intent or skill We are only concerned with (a) – we do not considered (b) or ©. Details on (b) :and (c) can be found below

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:Work of Architecture - s.4(2) CDPA 1988 ; building” includes any fixed structure, and a part of a building or fixed structure “ Low threshold so does not have to involve a grand, or Pritzker Award winning, .building

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Building plans are not protected as buildings but are protected as drawings under .the heading “artistic work” – s.4(1)(b) CDPA 1988 In Meikle v Maufe [1941] 3 All ER 144, copyright was held to exist in showrooms on Tottenham Court Road, London, the infringement being by the building of an extension which matched the original facade and . interior

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In Hay v Sloan (1957) 12 DLR 2d 397 (a case concerned with suburban housing) the judge speculates as to how low the threshold for works of architecture might be, contemplating that even a crenellated .pigsty might be a copyright work In Hensher v Restawile [1976] AC 64, Lord Reid (in obiter) explained that a work need not be of significant artistic quality to be a work of .architecture

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Works of artistic craftsmanship This is not defined in the CDPA 1988 - Though is generally understood as being “eye .” appealing” or “aesthetically attractive ? Whether a work was intended to be a work of artistry, is determined by who .George Hensher v Restawile Upholstery [1976] AC 64 .Merlet v Mothercare plc [1986] RPC 115

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Graphic work —s.4(2) CDPA 1988 - “graphic work” includes Any painting, drawing, diagram, map, chart or plan, and (A . Any engraving, etching, lithograph, woodcut or similar work (B Merchandising Corporation of America v Harpbond [1983] - painting was defined as involving ‘representation or depiction by colours on a surface’. Could a blank canvas be a painting? What is a “surface”? - A “surface” does not include a persons face (Harpbond – Adam Ant) and because face paint lacks a degree of . permanence it cannot be capable of protection A lack of permanence will be fatal to a copyright claim ‘

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. King Features Syndicate Inc v O & M Kleeman Ltd [1941] AC 417 -

Drawings Rough fashion sketches were protected - Bernstein v Sidney Murray [1981] RPC 303

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Drawings for machine parts - British Northrop v Texteam Blackburn [1974] RPC 57

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Circuit diagrams - Anacon v Environmental Research Technology [1994] (FSR 659 Architect’s plans - Jones v London Borough of Tower Hamlets [2001] RPC 407

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Engraving It might be thought that the terms ‘engraving’ and ‘etching’ are concerned with types of pictorial representation only, but two cases have given them wide meanings so that three-dimensional objects fall within their scope. In the New Zealand case of Wham-O Manufacturing Co v Lincoln [1985] RPC 127 it was held that plastic frisbees made by extrusion mouldings were engravings and the wooden models for the moulds were sculptures, and in Hi-Tech Autoparts Ltd v Towergate Two Ltd [2002] FSR 254 it was held that rubber . car mats with grooves cut in them to help drainage were etchings

Photograph s.4(2) CDPA 1988 - “photograph” means a recording of light or other radiation on any medium on which an image is produced or from which an image may by any .means be produced, and which is not part of a film Distinguishes between “still” and “cinematic” photography - this is a very wide . definition and can cover (inter alia); Celluloid, X-Ray, Digital imagery In Graves’ Case (1869) LR 4 QB 715 it was held that a photograph of an engraving was itself an artistic work. The case has been criticised (on the ground that there was no originality) and also justified (on the basis that the technology of the time required a greater effort on the...