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Copyright Intellectual Property LLM Notes
Table of Contents
LLM IP Lecture Notes
Introduction to Copyright The CDPA 1988 gives a detailed and exhaustive list of the types of creation that are protected by copyright. There are 8 categories, and if the work does not come within these categories, it will not attract protection. This has led to a generous interpretation of the categories, especially because there is no law of unfair competition in the UK (CBS v Ames Records). This means that some works get excluded from the regime of protection. Creation Records v News Group Preparation of an album cover for Oasis' Be Here Now. Noel decided to arrange a series of objects in and around a swimming pool for the cover. Someone from News oTW. Was the arrangement of artefacts a copyright work? There was some creativity in the selection and arrangement of the objects, no doubt. Lloyd J went through the boxes, and found that the arrangement was not within any of the boxes. All protected subject-matter are 'works', but not all works are treated the same. In particular, there is still an informal distinction between authorial and entrepreneurial works. Per Laddie J in Electronic Technique v Crtichley, a single piece of creative effort can be 2 or more copyrights, in theory, though in practice it should be confined to one of the categories. This has been doubted, and Norowzian v Arks (No 2) must surely mean that this is not the case any more. The British approach of closed list boxes looks suspect in the light of the CJEU jurisprudence (BSA, SAS - see concession by Arnold J - "it may be arguable that it is not a fatal objection to a claim that copyright subsists in a particular work that the work is not one of the kinds of work listed in section 1(1)(a) of the Copyright, Designs and Patents 1988 and defined elsewhere in that Act"), though it might already have been suspect in light of other international obligations, see Christie (EIPR, 2001. This means that the courts need to interpret the categories differently - they need to interpret national law in accordance with their obligation under EU law (Marleasing) such that all intellectual works need to be protected by copyright. This makes the Lucasfilm case look very odd indeed - if the CJEU would regard these as being intellectual creations, then there is an obligation on UK courts to protect them through copyright. Thus, the Supreme Court's finding in this case will now become an irrelevance. THIS IS PROBLEMATIC ON ]THE BASIS THAT SOME INFRINGEMENTS ONLY APPLY TO CERTAIN GROUPS - WHOLESALE LEGISLATIVE REFORM IS PROBABLY NEEDED IF THIS IS THE CASE.
Primary Works Literary Works S3(1) CDPA 1988 for definition, which broadly includes words, symbols and numerals. No judgement on the standard of the work, but (Hollinrake v Truswell) must read information and instruction or pleasure (literary enjoyment - in effect the Court held that it was the function of copyright to protect works designed to interact with the human mind, not works designed to provide a mere practical aid to a manufacturing process - this is arguably similar to the requirement of "production in the literary, scientific and artistic domain", pursuant to art.2(1) and (2) of the Berne Convention). Not comprehensive or exhaustive, but useful. Needs to convey an intelligible meaning (low threshold)-Apple Computer v Computer Edge, see Express Newspapers v Liverpool Daily Post (bingo letters sufficient), and code only understood by few (DP Anderson v Lieber Code Company), and ciphers, maths tables etc (Apple v Edge), but this case held "not gibberish" and no copyright in Exxon-invented name.
4 Little on enjoyment but seems to be qualitative, but this runs against no taking quality into account. Focus has been on names, trademarks and titles: all excluded. Analysis mixed as to why. Maybe fail Hollinrake test (Exxon) (Dworkin and Taylor, Collabine disagree). Maybe also not original, so insubstantial skill, labour and judgement in creation of it. Possible that this could be overridden if lengthy and important enough. See Privy Council in Francis Day and Hunter. Policy reason is that this amounts to control over words, which is inconvenient and already protected in other intellectual property law. Tables and compilations are not databases, which are separate-different level of originality. Maybe redundant, as almost all now databases. Computer programs - Now, as per the software directive these are literary and not sui generis. This includes firmware, software (source code, object code and assembly code). No definition of a computer program: WIPO uses vague language (a 'set of instructions' etc). The EC Software Directive brings in preparatory design material for computer programs. Bently and Sherman think that these should be part of computer programs - WHY?
Databases are a distinct class - a collection of independent works arranged in a systematic or methodical way and accessible (electronically or otherwise) individually. This might exclude collections of 3D objects. See reasoning in OPAP - CJEU held wide scope. Data on a map - no; fixtures - yes; poetry - yes. Independent means separable without informative or other value being affected. Systemic/methodical means technical or other means for searching. This does not require a computer program must be used to make or operate a database, but a computer program can be a database, which leads to fewer defences. Multimedia seems inevitably to be protected here (weird but true) - Kalamazoo v Compact Business Systems. A combination of multimedia can be a database, but not a compilation(table) maybe, as maybe only a compilation of literary works, not information. 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) a table or compilation other than a database (b) a computer program (c) preparatory design material for a computer program and (d) a database Exxon v Exxon Could 'Exxon' be a copyright word?
Literary work is a work is intended to 'instruct, inform, or please in a literary way'. A single word did not satisfy these criteria. Francis Day & Hunter v 20th Century Fox Could the title of a song 'The Man Who Broke the Bank at Monte Carlo?' be copyright, such that a film with the same name (very different) be a copyright infringement?
A title could not be a copyright on its own, such that a reproduction would be an infringement policy implications of this: reference to the consequences of recognising a title. NLA v Meltwater Did D need a licence need a licence to carry out the activity of forwarding news, about certain people, to members of an organisation (the PRCA), including the title of the article, and the context of the search result? A subquestion was whether the titles of the articles were copyright-protected?
Some of the headlines were capable of being literary works, but to make a ruling in the abstract would be difficult.
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Dramatic Works S3(1): "dramatic work" includes a work of dance or mime The case law shows that scenarios, scripts and choreographic works count, whether fixated in writing or otherwise. There must be a 'work of action', 'capable of being performed'. Green v Broadcasting Corp of NZ Ta show in NZ - different performers each week, but there was some continuity in the format - could the shared features of the format be a protected dramatic work? "I've never used a script in my life!!" Held by PC not to be a dramatic work - the format of a TV show lacked sufficient unity to be capable of a performance. Film is included where there is cinematographic work on the film, though. Norowzian v Arks Claimant had created a film of somebody dancing, edited using jump-cutting. D had seen the video and used the style in their own video to advertise Guinness. Was the film, being an edited version of the dance, itself a dramatic work? This is distinct from the dance itself, where the choreography probably would be a dramatic work. CA held that it was a dramatic work - they gave a broad definition of dramatic work - a work of action, with movement, with or without words or music, capable of being performed before an audience. A film with often, though not always, be a work of action, and it is capable of being performed (played) before an audience. Artificial performance (e.g. playing a video) is therefore added to the liberal interpretation of that requirement. Nova v Mazooma 2 video games - 'Pocket Money' and 'Jackpot Pool' - was the visual experience generated by C's game a dramatic work? The ordered series of events, including the cue pulsing, and the rolling behaviour of the ball, in particular. No sufficient unity in the game capable of performance - there were certain features that were aspects of the game, but they would operate differently depending on who played the game, so they were more like Green than Narowzian.
Musical Works S3(1): "musical work" means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music. Sawkins v Hyperion D reconstructed 18th Century scores in a way that the scores were translated such that they could be played in the modern day, as well as adding in missing notes. Was this a new, original part of musical work? In particular, the changes were literary in character - they were editorial. CA rejected the argument for literary definition. Defined music as sounds being arranged for listening to, as distinct from noise. Singing in the shower might be music, and the combining of sounds must be designed to produce effect on listener's emotions or intellect. This reconstruction would be different from the original because of Sawkin's input, and so this was musical.
Artistic Works Graphic Works Sculpture Lucasfilm v Ainsworth Were the Stormtropper helmets in Star Wars sculptures?
At all 3 levels, they were held not to be sculptures - the Supreme Court affirmed the lower courts' finding, particularly Mann J's 9-stage test. CA affirmed the finding, and SC did not disagree or interfere with the lower courts' findings. The SC argued that there was a danger of Copyright encroaching into design rights, where there were other rights, and protections, and had been for centuries.
Architecture A building is defined as including any fixed structure or part of a building or fixed structure (s4(2)). The definition would include a temporary addition to an old building (e.g. the Clore Gallery at Tate Britain in London). There is no need for these works to have an artistic quality. In principle, the protection is the same for a monolithic office block as to The Shard. However, originality may have a role here.
Works of Artistic Craftsmanship This is the only area where the courts may be called upon to make an artistic judgment. Hensher Ltd v Restawile Upholstery A mock-up of a suite of furniture was argued to be a work of artistic craftsmanship. The House of Lords disagreed as to why, but held that it was not. Lord Reid suggested that it was a work of art if it was appreciated as such by the public. Lord Kilbrandon said that it was the author's conscious intention to create a work of art that was key. Vermaat and Powell v Boncrest - it must be possible to say of a work of artistic craftsmanship that the author was both a craftsman (something who made something in a skilful way and who rook justified pride in his workmanship) and an artist (someone with creative ability who produced something with aesthetic appeal). Doesn't have to emanate from the same individual. Lucasfilms - the helmet was not a work of artistic craftsmanship, it was not artistic - there had been no intention that it should appeal as a work of art.
Secondary (Entrepreneurial) Works These works are protected in order to protect the investment in their production, rather than any sort of creative endeavour. However, otherwise they are treated no differently from primary works.
Sound Recordings (CDPA 1988, s5A(1)(a) and (b)) These are: recordings of sounds, from which the sounds may be reproduced; or recordings of any of the whole or any part of a LMD work, from which sounds reproducing the work or part may be produced. The medium and method is not relevant. Samples are infringements, but the work may itself be original, so attract its own copyright - see Salmon (2010).
Film (CDPA 1988, s5B(1)) Film means a recording on any medium from which a moving image may be produced. Film sound tracks are part of the film. No requirement of originality. Instead, copyright does not subsist in a sound recording or film which is, or to the extent that it is, a copy taken from a previous sound recording or film (s5B(4)). No new copyright in a simple re-recording of a rented DVD, for example. A 'film' is the actual film itself, not the subject matter. Mike Leigh films, where much of the script is
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improvised creates two different copyrights: one in the film and one in the original dramatic production it records.
Broadcasts (CDPA 1988, s6) These rights subsist without fixation. A broadcast is an electronic transmission of visual images, sounds or other information, which is transmitted for simultaneous reception by members of the public, and is capable of being lawfully received by them, or is transmitted at a time determined solely by the person making the transmission for presentation to members of the public. Internet transmissions are excepted from the definition of a broadcast, apart from webcasts. Police radio is not a broadcast - not for public consumption, but a broadcast that can only be received through the use of decoding equipment would be. Retransmission is a separate act of broadcasting (FAPL v QCL). Copyright does not subsist in a broadcast that infringes, or to the extent that it infringes, the copyright in another broadcast or in a cable programme (s6(6)). S6A for non-EEA broadcasts.
Published Editions Essentially, this copyright protects the typographical arrangement (or layout) of a LMD work against reprographic copying. It is concerned with the way that the published edition looks, rather than its contents. It protects the whole edition of a work, rather than separate parts of it. For instance, it will protect a newspaper as a whole, not individual articles (NLA v Marks & Spencer plc).
Conclusion There doesn't seem to be much coherence, and EU law does not add anything to the mix - everyone had assumed that 'works' was a matter for national law, but the CJEU has interpreted Art 2 of the InfoSoc Directive 2001/29 as meaning that there needs to be a conception of what is protected. A subsequent case held that InfoPack implicitly contained a conception of the idea that all 'intellectual creations' must be protected.
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