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Law Notes Intellectual Property Law Notes

Copyright 3 (Infringement) Cases

Updated Copyright 3 (Infringement) 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).

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COPYRIGHT 3 (INFRINGEMENT)

Primary Infringement

Substantial Part

Newspaper Licensing Authority v Marks and Spencer [2003]

D, Marks and Spencer, obtained press cuttings of articles in which they were mentioned from an agency licensed by C. D then made further copies of those cuttings for circulation to its Executives; in this process, changes were made so that articles fitted on an A4 sheet. C alleged that the copying of those articles was an infringement of typographical arrangement copyright (section 8) subsisting in newspapers. Relevant question was whether typographical arrangement copyright subsisted in the individual articles, or just in the newspaper as a whole. Held:

Test for Substantiality

  • See notes.

Typographical Arrangement

  • ‘Presentation and layout’ in a newspaper is a combination of: choice of typeface, number and width of columns, relationship between headlines and text, number of articles per page etc.

  • The relation between size of copied part and size of work as a whole is irrelevant to this test

  • Therefore it is irrelevant whether copyright subsists in the individual articles or newspaper as a whole

Facts

  • On facts, changes made to make sure articles fit on A4 sheet mean there is no breach.

Designer Guild v Russell Williams [1998]

C owned copyright in a painting from which it produced a fabric design – design was stripes with flowers on top of it. C complained that D had infringed copyright in its painting through copying the fabric design in D’s own fabric design.

D claimed he was not aware of C’s design, though there was evidence D had attended trade show at which C’s design was displayed. Held:

  • There was infringement.

  • Whether substantial part of artistic work has been taken depends upon cumulative effect of copied features.

  • And NOT upon whether each feature has in isolation been substantially copied.

  • If similarities between two works are sufficient to raise inference of copying, those similarities will normally satisfy requirement of substantiality.

  • See notes.

Baigent v Random House Group [2007]

C published a non-fiction book, “The Holy Blood and the Holy Grail” based on proposition that Jesus’ bloodline had survived. D wrote the fictional thriller “The Da Vinci Code” based on same main idea. D had access to C’s book when writing Da Vinci Code, and C claimed for breach on grounds C had copied 15 Central Theme elements. Held:

  • Parts allegedly copied by D were not protected by the literary work copyright subsisting in HBHG

  • parts allegedly copied were merely general propositions at too high a level of abstraction to attract copyright

  • thus fell on wrong side of ideas/expression divide

  • In addition, what D had taken from C’s work was not sufficiently substantial to qualify for copyright protection

  • the Central Theme was not a substantial part of HBHG

  • was simply a selection of similar features compiled in order to give impression of copying

Impact of EU Law

Newspaper Licensing Authority v Meltwater [2011]

For facts see supervision 2. One issue was whether the 256-character extracts copied from the articles were ‘substantial’ enough for there to be an infringement of copyright in those articles. Held:

Facts

  • On facts, 256-character extracts sufficiently substantial to give rise to infringement.

Causal Connection

Hunter v Bron [1963]

D published a song in 1959. C alleged that this infringed copyright of his song published in 1926. D denied that he had copied C’s work, and accepted that if he had heard it, it was when he was young. Held:

  • See notes.

  • Possibility that D heard work when he was young insufficient to give rise to inference of subconscious copying.

Designers Guild v Russell Williams [1998]

D claimed that it was not aware of design it had allegedly copied from C. However was evidence that D’s design had been displayed at a trade show which D had attended. Held:

First Instance

  • Where C can show that:

  1. D had access to C’s work; and

  2. that the two works have a sufficient similarity;

D has evidential burden to show copying did not take place.

  • If D cannot then show he arrived at similar result by independent work, will be infringement.

Authorisation

CBS Songs v Amstrad [1988]

D, Amstrad, manufactured and sold a dual-tape cassette machine, which enabled recordings to be made from one cassette tape to another. C sued on behalf of the record industry, alleging that D had authorised members of public to C’s copyright by virtue of making, advertising and selling the machine. Held:

  • See notes. On facts, Amstrad’s adverts heavily implied that machine could be used to make illegal copies

  • however this is not authorisation of the making of copies.

Twentieth Century Fox v Newzbin Ltd [2010]

D, Newzbin, was a members-only site with a movies section. Website provided an extensive indexing and search facility, as well as a ‘NZB’ facility which enabled premium members to download the contents of files, including films. C alleged that D had authorised infringement of copyright in its films through provision of these facilities. Held:

  • See notes.

  • On facts,

  • once a film was entered into the indexing facility, use of NZB facility would inevitably result in an infringement;

  • NZB facility was created by D and was under D’s control

  • Thus a reasonable person would have supposed from D’s activities that D purported to have authority to grant permission to copy films.

Infringement

Primary Infringement

Schweppes v Wellingtons [1984]

C produced the drink ‘Schweppes’. D produced a bubble bath almost identical in appearance to a bottle of Schweppes, but called ‘Schlurppes’. C sued for breach of copyright. Held:

  • Parody is irrelevant to issue of infringement.

  • Thus as a substantial part had been copied, there was infringement.

Secondary Infringement

LA Gear v Hi-Tech Sport [1992]

C made a shoe. D began to sell a prototype shoe which C alleged was an infringing copy of C’s shoe. C sent letter to D enclosing a picture of C’s shoe, asking D to refrain from selling...

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