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Law Notes Intellectual Property Law Notes

Copyright 2 (Subsistence) Cases

Updated Copyright 2 (Subsistence) Cases 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)

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:

  • 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:

  • 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:

  1. preliminary work

  • i.e. deciding what to sell

  • in this case, making a decision of which bets to include

  1. 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

  • “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

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

  • 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.

  • 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:

  • Ladbroke v William Hill referred to unfavourably.

  • Purely informative material reproduced by D is not sufficiently original to have copyright.

  • Court distinguished between:

  1. Provision of names and title information (which is unoriginal)

  2. Selection of what programmes to put on when, and manner of presentation of that information (which is original)

Exact Copies

Interlego v Tyco [1989]

Lego had expired patent and design rights on its bricks. In 1972, Lego redrew the design drawings for its bricks – with substantial features of the previous design kept, and the only main changes being to the written information on the drawing which were of technical importance for manufacturing purposes. D made and sold bricks in Hong Kong which were compatible with those of Lego, by copying principal features of Lego’s design. Issue was whether post-1972 drawings had copyright. Held:

Lord Oliver

  • Skill, labour or judgment merely in process of copying does not confer originality.

  • Thus an exact copy is not original, even if making it required skill or labour.

  • copy must contain some alteration or addition to the earlier work.

  • Whether addition is sufficient is question of degree having regard to quality of addition.

  • And not the quantity.

  • Thus even relatively small addition may suffice.

  • Is no universal test of originality.

  • i.e. test in William Hill cannot be applied to all copyright cases.

  • On facts, graphical drawings were not original.

Obiter

  • A photo of an existing painting (or painting of an existing photo) does not have copyright.

  • Despite skill required in making the copy of the original photo/painting, the copy painting or photo are unoriginal.

Antiquesportfolio.com v Rodney Fitch and Co [2001]

Issue was whether a photograph of a three-dimensional object, such as a vase, was original artistic work. Held:

  • Photos were taken with view of highlighting particular qualities of objects

  • e.g. colour, features, details.

  • Thus may be the case that degree of skill was involved in:

  • Positioning and angle of object

  • Lighting and focus.

Sawkins v Hyperion Records [2005]

See supervision 1 for facts. Another issue was whether musicologist’s work in creating performance editions was ‘original’ as per CDPA 1988 s.1(1)(a). Held:

Originality

  • See notes.

Discussion of Interlego

  • Lord Oliver’s remarks about copies that require skill not being original unless they make some addition/alteration are too general.

  • Only appropriate in cases like that before court in Interlego

  • i.e. in cases involving technical drawings

  • this because nature of technical drawings means any competent draftsmen...

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