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Copyright Infringement Notes

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4. Infringement The Economic Rights Restricted acts - violation of which is a primary infringement of copyright:

These economic rights comprise the copyright owner's monopoly and allow the owner to exploit the work in a variety of ways. 'Infringement' is defined as:

--------------------------------------------------------------------------------------------------------------------------------------------a) Reproduction

= Simply digitizing a work amounts to a copy and includes transient and incidental copying. So running a computer program or browsing an internet page involves copying because transient copies are made in the computer's RAM. S.17(3): Copying includes changes of dimension from 2D to 3D and so on. This can create tension between copyright and design laws. Issue: Is reproduction in a different dimension or material form prohibited for works other than artistic works? Does a set of instructions (such as a recipe or knitting pattern) and producing an article according to those instructions amount to infringement of the literary work represented by the instructions?
- Brigid Foley v. Ellot [1982]; Craft books and knitting patterns not covered.
--------------------------------------------------------------------------------------------------------------------------------------------b) Distribution S.18 CDPA: Contains the right to issue copies of a work to the public. S.18 has been amended twice in order to implement Art.4 of the Software Directive and Art.9 of the Rental Rights Directive. Issue: There is uncertainty regarding at what point issuing of copies to the public occurs.

+ Bently and Phillips: Important to find out because anyone who deals with the copies subsequent to the first issuing to the public will not liable for infringement due to s.18(3). 'Destination theory' (issuing only occurs when distribution reaches its final destination, the consumer; so retail sale point. Supported by phrase 'the act of putting into circulation'. Generates strict liability for the retailer) vs. 'disposition theory' (implies every act is sufficient).
--------------------------------------------------------------------------------------------------------------------------------------------c) Performance in Public S.19 CDPA: Grants the exclusive right to perform a literary, dramatic, or musical work in public, and the right to play or show a sound recording, film, or broadcast in public. Issue: Difficult to determine when the performance is in public. Different approaches have been adopted by the cts -Harms Ltd and Chappell v. Martans Club Ltd [1927]; + Hanworth MR: 1. Has there been admission of any portion of the public - 'the class of persons who would be likely to go to a performance if there was a performance at a public theatre for profit'. 2. Consider the performance is 'domestic', 'a matter of family and household concern only'. 3. Consider where the performance took place.Jenning v. Stephens [1936]; 'The true criterion seems to be the character of the audience'.

--------------------------------------------------------------------------------------------------------------------------------------------d) Communication to the Public S.20 CDPA: The exclusive right to communicate a work to the public applies to all works, except for typographical arrangements of published editions. Key difference between this right and that of performance in public is that, for the latter, the audience is in the same place at the same time, whereas, with the right of communication to the public, the audience may be geographically and chronologically dispersed. S.20(2): Makes clear that communication to the public covers both broadcasting and internet transmissions, the latter being covered by the language of 'making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them'. Issue: Where exactly does the communication take place?*Football Dataco v. Sportradar [2011]; Another case about data of football matches. Facts: Info on D's website about who got red cards etc. in matches. D's website based in Germany, Austria or Netherlands, but could be accessed from UK. Question arose - were they making available the data or copyright work in the UK, even though their server was in the Netherlands? Did they infringe UK copyright or database rights where act physically took place outside UK? Depended whether you adopt the 'emission theory' (work made available when emitted and sent out - D said done in Germany), C argued that work could be received in UK, so was made available. Decision: 1st instance held making available occurred where signals uploaded (emission theory) - no infringement. CA referred to CJEU in March this year.

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