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Copyright 3 (Infringement) Notes

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COPYRIGHT 3 (INFRINGEMENT) Restricted Acts

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Restricted acts are those which only the owner of copyright is allowed to perform.

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Section 16: owner of copyright has exclusive right to: 1) Copy the work 2) Issue copies of work to public 3) Perform or show the work in public 4) Communicate work to public 5) Make an adaptation of work, or do any of (i)-(iv) in relation to an adaptation

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C does not necessarily have a positive right to do any of these
? i.e. as it is possible he may infringe someone else's copyright when doing so (e.g. joint author)
? Robin Ray [2001]

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Section 16(2): however C may prevent others from either: i) Carrying out any of the acts; ii) Or authorising others to carry out any of the acts

INFRINGEMENT

1. For direct infringement: 1) D must carry out (or authorise someone to carry out) a restricted act directly or indirectly 2) in relation to substantial part of the work; 3) must be some causal connection 1) Directly or Indirectly

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A restricted act may be done directly or indirectly. "Indirect": can be infringement even if author did not know of existence of original work
? e.g. where D was following instructions given to him designed to reproduce substantial features of the original
? Solar Thomson Engineering v Barton [1977]

2) Substantial Part

2. Section 16(3): D infringes copyright if he copies at least a substantial part of C's work.

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To be substantial, part copied must contain "elements that are the expression of the intellectual creation of the author of a work"
? i.e. parts of a work are treated same as the whole
? Infopaq Internationl [2009] (ECJ)

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Test for substantiality has been "restated, but for present purposes not significantly altered" by Infopaq.
? i.e. question is whether what is taken demonstrates stamp of individuality reflective of author's creation
? NLA v Meltwater [2010] (UK)

1. E.g. 11-word sample of text may constitute 'substantial part' depending on circumstances

1. NLA v Meltwater [2010]
Quality v Quantity

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Whether D has copied substantial part based on quality not quantity of what he has taken
? Designers Guild v Russell Williams [2001]
Part is substantial if it represents a sufficient amount of original author's skill and labour.
? Newspaper Licensing Authority v Marks and Spencer [2003]
Relevant factor is importance of copied material to original work
? And NOT its importance to D's copied work
? Designers Guild v Russell Williams [2001]

Nature of Test

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Relevant quality which D must appropriate to 'copy a substantial part' depends on purpose of type of copyright protection subsisting in C's work
? E.g. 'literary work', film', 'typographical arrangement'
? NLA v Marks and Spencer [2003]

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Thus e.g.: i) typographical arrangement copyright: relevant quality is the overall presentation and layout of edition
- in newspaper, this is a combination of: choice of typeface, number and width of columns, relationship between headlines and text, number of articles per page etc. ii) literary copyright: relevant quality is literary originality of what has been written
- NLA v Marks and Spencer [2003]
Ideas/Expressions Divide

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Can be infringement for taking of an idea expressed in C's work where originality of work resides in manner in which ideas are combined/developed.
? even if there is no literal copying by D.
? Designer Guild v Russell Williams [2000]
For this to be case, what D copies must represent substantial part of author's skill and labour.
? Designers Guild v Russell Williams [2000]
? Baigent v Random House Group [2006]
Whether substantial part of artistic work has been taken depends upon cumulative effect of copied features
? i.e. and not whether copying of each feature individually is substantial.
? e.g. if D copies plot of book, is infringement even if D does not reproduce a single sentence from original book
? Designers Guild v Russell Williams [2001] (Lord Hoffmann)

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