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Copyright 2 (Subsistence) Cases

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COPYRIGHT 2 (SUBSISTENCE) De Minimis Newspaper Licensing Authority v Meltwater [2011]
D was a media monitoring organisation. Its customers would give D a search term, and D would allow website users to access the headline, opening text and an extract from articles matching their search terms. C, a company managing intellectual property right of various newspapers, claimed this was breach of copyright. One issue was whether headlines could constitute independent literary works. Held:

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Infopaq test followed. Therefore in principle, originality is "the only real test" Headlines are capable of being an independent literary works in their own right.
? i.e. provided they are the expression of the intellectual creation of author

Originality English Law Test Walter v Lane [1900]
An Earl gave public speeches on 5 occasions. Reporter from newspaper took down speeches in shorthand and later transcribed them. D published book which included Earl's speeches taken mainly from the reports published in newspaper. Newspaper brought action for breach of copyright. Held:

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Copyright has nothing to do with or literary/artistic merits of the author.
? Copyright simply requires that A shall not avail himself of B's skill, labour and expense by copying the end product. To be 'author', written work in question must have necessitated more than mere skill of knowing how to write.
? i.e. must require intellectual skill. Production of report required more than mere act of writing; e.g.:
? ability to write shorthand
? subsequent transcribing, with punctuation and revisions added
? memory and judgment of reporter Thus on facts, reporters for paper were authors.

Ladbroke v William Hill [1964]
C, William Hill, claimed copyright in their football betting coupons; alleged D, Ladbroke, had infringed this. Question was whether coupons were an 'original literary work'. D argued there was no copyright in the coupons, on basis that there was distinction between: i) preliminary work
- i.e. deciding what to sell
- in this case, making a decision of which bets to include ii) recording this work
- i.e. deciding how to sell it
- in this case, putting those bets on paper. D claimed only second stage was relevant for purposes of copyright; and that so little skill was involved in recording result of the preliminary work onto paper that no copyright could subsist in it. Held: Originality

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"Originality" relates to the expression of a thought. To be original, no requirement for original or inventive form.
? Must simply be case that work has originated from the author. With regards compilations, originality is a matter of degree depending on amount of skill, judgment or labour involved in making compilation.

Constituent Parts

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Value of work as a whole is relevant when considering originality.

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Thus not possible to split constituent parts of work of making coupons.
? no need that preliminary work done should have as sole or even main object the preparation of a document.
? Suffices that it is an object.

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Case might be different if preliminary work was done with no intention of later writing this down. ICE TV Limited v Nine Network Australia [2009] (Australian Case) D, ICE TV, created a electronic schedule of programmes to be broadcast on Australian TV each week. C alleged that this was an infringement of the copyright subsisting in its weekly TV guide. Held:

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Ladbroke v William Hill referred to unfavourably. Purely informative material reproduced by D is not sufficiently original to have copyright.

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Court distinguished between: i) Provision of names and title information (which is unoriginal) ii) Selection of what programmes to put on when, and manner of presentation of that information (which is original)

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