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Copyright Law Copyright Subsistence Notes

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Subsistence of copyright-

Central questions?If so, for what duration?

Previous copyright act distinguished between Part 1 - copyright of creators in literary, dramatic, musical and artistic works (authors rights) and Part 2 - copyright, given in other subject-matter to entrepreneurs who produced sound recordings, films, broadcasts and published editions (neighbouring rights)-

Is the material of the kind that attracts copyright?

This distinction is also reflected in International Conventions - the 1886 Berne

Convention protects 'author's rights' and the 1961 Rome Convention protects 'neighbouring rights' Copyright, Designs and Patents Act 1988 obliterated the division - the two types are listed indiscriminately The copyright is in a "work" and is usually initially granted to an "author" who "creates" it The old strain of common law - did not see a difference between true creators and investors in the creations of others - it inclined to prefer the latter

Whether a right attracts copyright - CHECKLISTThe work must fall within one of the 8 categories of work listed in the Act For copyright to subsist, the work must be recorded in a material form - this only applies to literary, dramatic and musical works The work must be 'original' - this only applies to literary, dramatic, musical and artistic works. For sound recordings, films, broadcasts and typographical arrangements, copyright subsists to the extent that such works are not copied from previous works

The type and quality of subject matter

1(1)(a) Original literary, dramatic, musical and artistic worksThese works are accorded copyright by the CDPA 1988 Root requirement - sufficient "skill, judgment and labour" OR "selection, judgment and experience" OR "labour, skill and capital" (last formulation - Lord Atkinson Macmillan v Cooper (1923) - useful when facts have been amassed by "sweat of the brow" - must be expended by the author in creating the work?The input must satisfy a certain minimal standard of effort Otherwise, there is nothing that can be treated as a "work" or the work will not be

regarded as original Another basic axiom - copyright protects the expression of an idea rather than the idea itselfIn the case of literary, dramatic and musical works this leads to difficult questions about the need to record the expression in some permanent form


UK copyright law requires that the creation fit within at least one of the 8 categories of work - less flexible than Continental systems which favour an "open list" approach to subject matter Since the Act provides an exhaustive list of the protected subject-matter, there is little opportunity for the courts to recognise new forms of subject-matter, although they can through the creative interpretation of the existing categories Since there is no law of unfair competition in UK law, copyright has sometimes been 'stretched to give protection to creative talents and activities the protection of which was never in the contemplation' of those who made the statutes (CBS v Ames Records [1981]) UK law treats separate elements in a creation as having distinct copyrights - the words and music of a song are respectively literary and musical works, each with their own author and term??Now that much material can be held in digital form this distinction may disappear The rights attaching to each type of work differ - should the law adopt an exclusive or a cumulative approach? Should copyright law hold that work be placed in only one category, by reference to its main attributes?
OR should it always be separated into its constituents, each enjoying their own relevant type of copyright?
The issue needs to be settled

Literary worksCDPA ss1(1)(a) recognises that copyright subsists in literary works S3(1) - literary work is work which is written, spoken or sung, and accordingly includes - (a) a table of compilation other than a database (b) a computer program (c) preparatory design material for a computer program (d) a database

University of London Press v University Tutorial Press [1916]Peterson J - "work which is expressed in print or writing, irrespective of the questionwhether the quality or style is high" Copyright has been allowed in mundane compilations of information In this case, copyright was allowed for an examination paper The principle of sufficient "skill, judgment and labour" operates to exclude only those cases where the degree of literary composition is slight - de minimis principle

NAMES AND TITLES Exxon v Exxon Insurance [1982]It seems that a literary work must convey information or instruction and must therefore convey an intelligible meaning - Hollinrake v Truswell (1894) - but intelligible meaningshould be given a low threshold SO this case could be said to have been decided on the basis that a work fails to provideinformation where it is an invented name In this case it was held that the word EXXON which had been created to act as a companyname, conveyed no information and hence was not protected as a literary work In most cases, the name/title of books and films are treated as insufficiently substantial to attract copyright themselves


The same is true of a trade mark or name - copyright is not a means of preventing a wellknown mark from being applied to an entirely different product or service (that was theissue in this case) Two reasons are used to account for the exclusion of names or titles from copyright:That these matters are not 'literary works' at all - although names and titles are in writing, they do not afford 'information, instruction or pleasure of a literary kind' - this indeed seemed to be the basis for the decision in EXXON - perhaps seems to suggest a qualitative test that would run counter to the widelyaccepted principle that the quality of the work is not to be taken into account We could instead focus on the fact that names and titles are not 'original' - that is to say that a title is not the result of a substantial amount of labour, skill and judgment - this approach leaves room for the possibility that creative titles might?

still qualify for protection POLICY REASONS - general inconvenience would arise if someone was able to control the way certain works and phrases were used ALSO - unnecessary to protect titles and names - they are adequately protected under trade mark law and artistic copyright

TABLES AND COMPILATIONSThe reason why databases were placed in a separate category was to enable the 1988 Act to impose a different requirement of originality on databases from that applied to tablesand compilations A database is defined in very wide terms - 1988 s3A(1) - a collection of independent works, data or other materials which are (a) arranged in a systematic or methodical way and (b) are individually accessible by electronic or other means-

3A(2) - original only if 'author's own intellectual creation'

Prior to the amendments, a wide range of subject matter had been protected as compilations eg Ladbroke v William Hill [1964] - case of football pools coupons - Lord Evershed said that the coupon is 'a compilation in the sense that it is made up by puttingtogether in writing a number of individual items or components' Now, the subject matter previously protected as compilations would probably be protectedas databases If this is the case, it will leave little or no room for 'tables and compilations' in the future It is unclear whether multimedia works can be protected as compilations - is protectionafforded to compilations of information or to compilations of literary works?
Databases are wider - defined without restriction to the type of materialIt therefore seems that a compilation of artistic works or sound recordings could be protected as a literary work

Secondary workLiterary work also covers secondary work on existing sources, provided that itinvolves literary "skill, labour and judgment" - the same de minimis principle applies A piece of historical writing, a news report, a selection of poetry all attract copyright oncethe choice and arrangement of source material is more than minimal Ashmore v Douglas-Home [1987] - it makes no difference to the position whether the material taken from elsewhere is in or out of copyright


BUT if the source(s) are still in copyright and they are reproduced to a substantial extent in the final work, the permission of all will be needed for reproducing it - this applies where the work evolves through a series of drafts/formulations

Walter v Lane [1900]Literary, dramatic and musical works cannot generate copyright unless they are recorded If the record was the taking down of an oral version writing, for instance, by shorthand,then this case still applies This treated the reporter as entitled to literary copyright in the report of the speech byvirtue of his skill and labour in reducing it to permanent form However, this decision was reached before the statutory requirement of "originality" wasincluded in the law Is this case still applicable? - Roberton v Lewis (1960) suggested a distinction between one who uses an aesthetic skill to make a record and one who uses a standard technique, such as tape recording

The test of sufficient skill Ladbroke v William Hill [1964]In deciding whether there has been sufficient skill, the courts take account not just ofskill in literary expression but also of commercial judgment A fixed-odds football pool form attracted copyright even though it only consisted of acompilation of 16 known forms of bet Account was taken of the skill deployed in selecting these particular forms of wager, asdistinct from the simple labour of compiling them on the pool form The process was treated as analogous to the compiler of a selection of poetry Lord Devlin - "An anthology of saleable poems is an much entitled to protection as an anthology of beautiful poems"

Dramatic worksCDPA s3(1) - dramatic work includes "a work of dance or mime" They must have movement, story or action - they cannot be static - Creation Records vNews Group [1997]
The coherence needed in their content excludes computer games from this category 'Dramatic work' includes the scenario or script for a film - the copyright in the film itself isseparate Scenic effects and costumes are only the subject of copyright if they are artistic works The general principles concerning literary works apply to this category too - they have to be 'original' in the sense described above

Green v BC New Zealand [1989]The requirement that to be a dramatic work the subject matter must be 'capable of beingperformed' operates in a restrictive manner Green was the originator and producer of a talent show called Opportunity Knocks In the programme certain catchphrases were used, sponsors introduced contestants and a 'clapometer' was used to measure audience reaction


The Broadcasting Corporation of New Zealand broadcast a television talent show quest that was similar to Opportunity Knocks in that the title and catchphrases were the same. It alsoused a clapometer as well as the idea of using sponsors to introduce contestants Green's action for copyright infringement failed, primarily because he was unable to showthat the programme was a dramatic work This was because, when looked at as a whole, the show lacked the specificity or detail for itto be performed The Privy Council also said that the scripts only provided a general idea or concept of atalent quest, which was not capable of being protected The Privy Council also held that the style of the show and the features that were repeated could not be regarded as a dramatic work - the reason is because a dramatic work musthave sufficient unity for it to be capable of being performed The requirement of unity means that video games are not dramatic works since thesequence of images will not be the same from one play to another Criticisms of the case - those who support format rights argue that the failure to protect formats is not only unjust but fails to provide sufficient incentives to television producers

Norowzian v Arks (No2) [2000]Held that for something to be a dramatic work it needs to be capable of being physicallyperformed Arguably after this case the need for special format protection decreased This is because the Court of Appeal liberally interpreted the requirement that a dramatic work must be 'capable of being performed' to include performances byartificial means, such as the playing of a film Consequently, a cartoon may be a dramatic work In this case, the C of A had to decide whether a Guinness advert had infringed copyright inan earlier film 'Joy' To answer this it was necessary to determine whether Joy was a dramatic work NOTE that the argument on appeal was not that there was copyright in the dance as a dramatic work (recorded on film) but that the film was not merely a 'record'of a dramatic work but was itself a dramatic work One of the notable features of Joy - it utilised a particular editing technique known as jump-cutting The consequence of this was that the finished film contained a series of movements thatcould not be performed by an actor The film owed as much to the editing technique as to the dance that was filmed At first instance it was held that as the dance shown on the edited film could not beperformed, the film did not embody a dramatic work On appeal it was held that the film itself was a dramatic work - the Court said that, asit was possible for the film to be played, it was therefore 'capable of being performed' This means that all films can be dramatic works? - dramatic works have a higher level ofprotection (films have to be copied exactly for infringement) Yes - films which would be 'cinematographic works' under Berne Convention are also"dramatic works" under UK copyright law While it is still unclear whether the same creative effort can simultaneously give rise to both a literary work and an artistic work, the Court of Appeal accepted here that the maker of a film may simultaneously produce two copyright works - a film copyright and a dramatic work in the 'cinematographic work'

Copyright entitlement of those who provide 'secondary' contributions Tate v Thomas [1921]
- A person who supplied a number of ideas, including key lines secured no part in the eventual copyright Musical worksCDPA s3(1) - musical work is defined only as work "consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music" Where words are set to music, the two remain distinct works for copyright purposes
? If there is copyright in each, and the lyric writer and composer are different people then the copyrights will usually expire on different dates The techniques involved in the process of composition vary greatly - they include electronic keyboards/mixers There will be questions about contributions to a collective composition - the contributions have to be significant rather than trivial (Hadley v Kemp [1999])

Sawkins [2005]
- Mummery LJ elaborated on the statutory definition of 'musical work' indicating that music was different from "mere noise" and is "intended to produce effects of some kind on the listener's emotions and intellect"
- Some 'secondary' activities can attract their own musical copyright - arranging music (by adding accompaniments, new harmonies etc) and transcribing it for different musical forces
- In this case, a skilled musicologist who prepared works by the French composer Lalande for modern performance by adding a missing string part figured bass and corrections had copyright in his editions
- The fact that the end result sounded much like earlier versions was not allowed to deprive him of his claim
- Thus, the new work produced was original and met the sufficient skill requirements
- AND remember: there may be very little "skill and judgment" in an arrangement and this will mean that the requirement of originality is not met

Artistic worksCDPA s4(1) artistic work means (a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality (b) a work of architecture being a building or a model for a building or (c) a work of artistic craftsmanship s4(2) - graphic work includes any painting, drawing, diagram, map, chart, plan, engraving, etching, woodcut s4(2) - sculpture includes a cast or model made for purposes of sculpture It is the manner in which the different categories of artistic work are listed in the Act that brings about the differences of approach Only category (a) secures copyright "irrespective of artistic quality" There is an evident tension between different conceptions of copyright
? Some types of work are treated as artistic only if they bear a distinctive element of aesthetic creativity
? Others gain protection because labour and capital ought not to be freely appropriable


The works must be original - like literary/dramatic/musical works - contemplates only that they will not be copied

Interlego v Tyco [1988]
- In every case the threshold measure of labour, skill and judgment must be present
- Where the subject-matter was designs for "Lego" toy bricks and the designs simply repeated earlier designs with indications of minor variations in words and figures (which are themselves not artistic works), the drawings did not have distinct copyright CATEGORY A - GENERAL
- Most decisions for this category set the minimal level of effort low
? In Walker v British Picker [1961] - held that the arrangement of a few decorative lines on a parcel label was enough to attract copyright
- There was a tendency to give a very broad scope to the types of artistic work in this category in order to eliminate any consideration of "artistic quality"
? A frisbee made from plastic was held to be an engraving because of the concentric rings on its body - Wham-O v Lincoln [1985]
- More recently, interpretation has been shifting towards the everyday understanding of the terms
? Metix v Maughan [1997]
? Laddie J - 'sculpture' should be construed narrowly
? This case held that sculpture must have its ordinary, imprecise meaning of "a three-dimensional work made by an artist's hand"
? So in this case, industrial results for making cartridges could not be included as a sculpture
? This approach seems justified on the basis that the ordinary notion of sculpture requires that the maker be concerned with shape and appearance rather than just with achieving a precise functional effect
? Creation Records v News Group [1997]
? A sculpture requires carving, modelling or similar activity, not merely the assemblage of things which are to be the subject of a photograph
? Lloyd J - noted that no 'element in the composition has been carved, modelled or made in any of the other ways in which sculpture is made' Merchandising v Harpbond [1983]
- Graphic works as defined in s4(1)(a) are defined to include 'paintings'
- Usually there are few difficulties in deciding whether something is a painting
- This was not the case in this case
- It was argued that the facial make-up of the pop star Adam Ant was a painting and thus protected by copyright
- The Court of Appeal rejected this submission
- Lawton LJ - it was fantastic to suggest that make-up on any face could possibly be a painting
- He held that a painting required a surface and that Adam Ant's face did not qualify as such
- The surface argument is a bit weak but the decision could also be justified on the basis that a painting must be intended to be permanent
- Equally, the decision could be justified on the basis that the makeup (two broad red lines round a light-blue line running from nose to jaw) was not original
- It seems that this case reinforces the traditional image of a painting as a framed canvas to be hung on a wall

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