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Law Notes Intellectual Property Law Notes

Copyright 2 (Subsistence) Notes

Updated Copyright 2 (Subsistence) Notes

Intellectual Property Law Notes

Intellectual Property Law

Approximately 1014 pages

IP law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB Intellectual Property law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).

These were the best IP Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highes...

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COPYRIGHT 2 (SUBSISTENCE)

  1. Fixation

  • Section 3(2): copyright only subsists in a work if it is recorded, in writing or otherwise.

  • idea must be given physical expression

  • TRIPS Article 9(2): Copyright protection shall extend to expressions

  • and NOT to ideas, procedures, methods of operation or mathematical concepts.

  • Thus a LDMA work must be recorded in some form; e.g.:

  • Music: can be recorded in form of a score, or an audio recording

  • i.e. a music score has musical copyright (but not literary copyright)

  • Literary: a sound recording of a speech has copyright both as a sound recording, and as a literary work

  • Section 5: NB a film script does not have separate literary copyright

  • However the film soundtrack does have separate musical copyright

  1. ‘De Minimis’ Rule

  • Copyright applies in relation to subject-matter that is original in the sense that it is the author’s own intellectual creation

    • Infopaq International [2009]

  • Thus in principle originality is “the only real test”

    • i.e. to determine whether copyright subsists, court must look at originality of work in which copyright is alleged

    • and NOT the size/length of it

    • Meltwater [2010]

  • Thus even a headline or an 11-word extract from an article is capable of being an independent literary work, provided it is the author’s own intellectual creation

    • Meltwater [2010]

  • Thus appears that a very short work can attract copyright.

Single Words

  • A single word is too short to be have copyright protection.

  • As it cannot have sufficient originality.

  • NLA v Meltwater [2011]

  • Thus a single word is not a ‘work’ (and copyright cannot subsist in it).

  • Exxon v Exxon Insurance [1982] (see supervision 1)

  1. Originality

  • Work must have sufficient originality.

  • Only work for which requirement of originality is defined is databases.

  • section 3A: database is original only if, by reason of the selection or arrangement of the contents of the database, it constitutes author’s own intellectual creation

English Law

  • Originality is a matter of degree depending on skill, labour and judgment involved in C creating his work

  • i.e. more skill, labour and judgment on part of C, more likely his creation is a ‘work’

  • Labroke v William Hill [1964]

  • Principle of copyright is that someone else is not allowed to avail himself of C’s skill, labour and expense by copying C’s work.

  • Walter v Lane [1900]

No Merits Judgment

  • Originality has nothing to do with literary/artistic merits of author.

  • Walter v Lane [1900]

  • Is no requirement for original or inventive form

  • must simply be case that work originated from the author.

  • Ladbroke v William Hill [1964]

  • Thus a work that is simply a minor alteration of a previous work can be original if skill and labour was involved in its creation

    • e.g. Walter v Lane [1900]

Relevant Factors

  1. Preliminary Work

  • Skill, labour and judgment includes any preliminary work done by C.

  • i.e. work done by C which he later relies upon to help him create the object in which he claims copyright

  • No need that preliminary work done has as its sole or even main object the subsequent production of an object based upon the preliminary work

  • Suffices that creation of a ‘work’ is an object of preliminary work

  • Labroke v William Hill [1964]

  • However if preliminary work was done with no intention of later creating the object in which copyright is claimed, case may be different.

  • i.e. preliminary work might not count towards originality of the object later produced

  • Ladbroke v William Hill [1964]

Compilations

  • One case suggested that compilation of printed literary works is sufficiently original

    • i.e. where skill and labour went into choosing which works were to be included and arranging them

    • Macmillan v Cooper [1923] (Privy Council) (student text incorporating extracts)

  1. Size of Work

  • Headlines from newspaper articles are both capable of being original literary works.

  • Infopaq International [2009]

  • NLA v Meltwater [2011]

  • However single words are not sufficiently original to attract copyright.

  • NLA v Meltwater [2011]

  1. Exact Copies

  • Subject to Interlego (as interpreted in Sawkins), exact copies of an original work CAN attract copyright.

  1. No Copyright

  • One case stated an exact copy is NOT original, even if making it required skill or labour

  • i.e. for copy to be original, there must be some addition

  • Interlego v Tyco [1989]

  1. Copyright

  • Remarks in Interlego are too general.

    • Sawkins v Hyperion [2005] (Jacobs LJ)

  • Is necessary to look at extent to which the creator of the alleged copy is a ‘mere copyist’

  • i.e. at the extent to which making of copy required easy mechanical function

  • more this is case, less likely new creation is ‘original’

  • Sawkins v Hyperion Records [2005]

  • Relevant factors in question of originality include both:

  1. Additions/alterations made (i.e. as these are evidence of skill, labour and judgment)

  2. Energy and skill expended on making of work

  • Sawkins [2005]

Photos

  • A photo of an object can be original

    • i.e. provided that the composition of the image is product of skill and labour (or intellectual creation) of the photographer

    • Temple Island Collections [2012]

  • In this regard, is distinction between:

  1. a ‘mere photograph’

    • i.e. C happens to simply click the camera in the right place at the right time (no copyright)

  2. a ‘photographic work’

    • i.e. a product of deliberate choices and manipulations by the author (copyright)

    • Temple Island Creations [2012]

  • Thus fact that technique used is simple (i.e. camera) does not prevent image having copyright

    • i.e. is copyright wherever result has a deliberate aesthetic quality

    • Temple Island Collections [2012]

  • This echoes comments made in other cases

  1. UK: had been suggested that photo of a 3D object may be sufficiently original to have copyright

    • though not necessarily 2D objects

    • Antiquesportfolio.com v Rodney Fitch & Co [2001] (Ch.)

  2. Photo can be original if it is an “intellectual creation” which:

  1. reflects author’s personality

  2. ...

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