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Copyright 2 (Subsistence) Notes

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COPYRIGHT 2 (SUBSISTENCE)

1. Fixation

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2. 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

'De Minimis' Rule

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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

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3. 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)

Originality

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Work must have sufficient originality.

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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

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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

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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 o e.g. Walter v Lane [1900]

Relevant Factors i)

Preliminary Work

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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]

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