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Rights and infringement
Nature of the rights-
The scope of rights is important - it determines the types of activity which, unless done with the copyright owner's consent, amount to an infringement of the owner's copyright Theme - the types of activity that have fallen within the copyright owner's control have expanded
? Statute of Anne 1710 - conferred on author's the limited right to 'print and reprint' those books One of the key features of the restricted activities in s16-21 - based on a notion of strict liability - the state of mind of the defendant is irrelevant when determining if infringement has occurred
? The defendant's innocence may only be relevant when determining damages - s97(1)
2 issues when determining infringement:
- Has D committed an act reserved to the copyright owner (without his permission) - s16(1) CDPA
- Has D committed such an act in relation to the work directly or indirectly, in relation to a whole of a substantial part of it? - s16(3) CDPA
The right to copy/the right of reproduction--
Section 16(a) - copying the work is an act reserved to the copyright owner Section 17 CDPA - the act of copying is defined as such:
? S17(2) - LDMA works - "reproducing the work in any material form. This includes storing the work in any medium by electronic means"
? S17(3) - artistic works - includes "making a copy in 3D of a 2D work and the making of a copy in 2D of a 3D work"
? S17(4) - films/broadcasts - copying includes "making a photograph of the whole or any substantial part of any image forming part of the film or broadcast"
? S17(5) - typographical arrangement - copying means "making a facsimile copy of the arrangement"
? S17(6) - all works - copying includes "the making of copies which are transient or incidental to some other use of the work" Info Soc Direction - Art 2
? "MSs shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part: (a) for authors, of their works" Right applies to all works but the scope of the right varies depending on the type of work in Q A common factor to all works - infringement takes place whether the copy is permanent, transient, temporary, or incidental to some other use of the work
? The problems posed by the internet for copyright holders are ones of detection rather than absence of liability Beyond the specific examples listed in the 1988 Act - q of how different a copied work can be from the "original" work is a Q decided by the courts
The courts have stated that in order to infringe, the derived form must be "objectively similar" to the copyright work - Francis Day Hunter v Bron 
Davis Holdings v Wright Health Group 
- Where the copyright work consists of instructions how to make or do something, the literary copyright in the instructions will be infringed if the instructions are copied or repeated in different words
- BUT (as in this case) the copyright will not be infringed where someone follows the instructions of a recipe and bakes a cake to the recipe
- This is because what is protected is the literary effort in creating the recipe as a work of information and not the cake per se Sandman v Panasonic 
- Hmm but note this case
- A copyright infringement action was brought in respect of two circuit diagrams that were included in an article
- C argued that the copyright that existed in the two-dimensional descriptive literary work was infringed when the design was made into a 3D circuit and incorporated into amplifiers, CD players etc
- Pumfrey J - noted that Lord Oliver's comment in Interlego indicated that protection for change of form from 2D to 3D was limited to artistic works
- BUT Pumfrey went on to say that "I suspect that the proper answer is that the circuit itself is reproduction because it still contains all the literary content of the literary work"
- Accepted that in certain circumstances, a 2D literary work that described something could be reproduced in 3D form Analysis
- Possibly a distinction between non-factual and factual descriptions - a description written by an engineer would more likely be protected than a description written by a novelist/poet
- It also seems that the work would have to be precisely defined - this reduces the risk of inhibiting creation Infopaq  CJEU
- Is the following an act of reproduction? - storing temporarily and printing an extract of a literary work eg a newspaper article. Yes
- Remember - Infopaq establishes that phrases can be protected by copyright as literary works in themselves (but not words - need some "arrangement")
- The case was brought before the Hojesteret, which referred questions to the Court of Justice concerning the interpretation of Directive 2001/29/EC (Info Soc Directive) on the harmonisation of certain aspects of copyright and related rights in the information society, and in particular on the concept of reproduction in part and on whether the procedure in question can be used without the consent of the rightholders
- ECJ - preamble of Info Soc Directive:
? States that a harmonised legal framework on copyright, through increased legal certainty and through providing a high level of protection of intellectual property, will foster substantial investment in creativity and innovation
? Without harmonisation at Community level... "restriction on the free movement of services and products... leading to a refragmentation of the internal market"
? "Any harmonisation of copyright and related rights must take as a basis a high level of protection" so that authors receive an appropriate reward for their work
The Directive should define the scope of the acts covered by the reproduction right and "a broad definition of these acts is needed to ensure legal certainty within the internal market" Art 2(a) Info Soc Directive - "MSs shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part: for authors, of their works" The parties did not dispute that the procedure entailed the reproduction of parts of the scanned printed articles BUT the dispute - whether there is reproduction as contemplated by Art 2 Q: does Art 2 reproduction encompass the storing and subsequent printing out of a text extract consisting of 11 words?
ECJ - the Directive does not define "reproduction" or "reproduction in part" SO the concepts must be defined having regard to the overall objectives of the directive
? Recital 21 in the preamble - acts covered by the right to reproduction must be construed broadly
? Art 2 itself seems to signal that the acts should be broadly defined - uses expressions such as "by any means" and "in any form" ECJ - authors have an exclusive right to prohibit reproduction only OF THEIR WORKS protected by copyright
? The protection of subject matter as literary works presupposes that they are intellectual creations
? Works are protected by copyright if they are original in the sense that they are the author's own intellectual creation
? There is nothing in the Directive to suggest that parts are to be treated any differently from the work as a whole
? "they are protected by copyright since, as such, they share the originality of the whole work"
? As regards newspaper articles, the author's own intellectual creation is evidenced from the manner in which the subject is presented and the linguistic expression
? NOTE - words in isolation are not an intellectual creation of an author who employs them - "it is only through choice, sequence and combination of those words that the author may express his creativity in an original manner"
? BUT given the requirement of a broad interpretation of the scope of protection, isolated sentences or "even certain parts of sentences" may be suitable for conveying the originality
? IN THIS CASE the extract comprising of 11 consecutive words "is such as to constitute reproduction in part... if that extract contains an element of the work which... expresses the author's own intellectual creation; it is for the national court to make this determination"
SAS Institute v World Programming (2012)
- Claimant - SAS Institute is a developer of analytical software known as SAS
- SAS System is a set of programs that enables users to carry out data processing tasks/statistical analysis
- There were many other suppliers of analytical software that compete with SAS Institute
- A customer who wanted to change over to another supplier's software would be faced with re-writing its existing application programs in a different language
- Defendant, World Programming (WPL) thought there would be a market demand for alterative software which would be able to execute application programs written in the SAS Language
--It created WPS - World Programming system, where it sought to emulate much of the functionality of the SAS Components No suggestion that WPL copied SAS's source code STILL SAS Institute contended that WPL had committed a series of copyright infringements in creating WPS Claimed:
? WPL copied the SAS manuals (infringing copyright in these)
? By copying the SAS manuals, WPL indirectly copied the SAS Components (infringing copyright in these)
? Infringed the copyright in the Learning Edition
? Infringed the copyright in the SAS manuals by creating its own WPS Manual FIRST ISSUE - WHAT AMOUNTS TO AN ORIGINAL LITERARY WORK?
Software Directive - Art 1 (Object of protection)
? (1) MSs shall protect computer programs as literary works. The term 'computer programs' shall include their preparatory design material
? (2) protection shall apply to "the expression in any form of a computer program" - "ideas and principles which underlie any element of a computer program... are not protected by copyright"
? (3) A computer program shall be protected if it is original in the sense that it is the author's own intellectual creation Q: Is Art 1(2) taken to mean that there can be no infringement without access to the source code where another program is created replicating the functions of the first?
Question is basically whether, under Art 1(2) the functionality of a program constitutes a form of expression of that program which may, as such, be protected by copyright in computer programs
? Answer of CJEU - "neither the functionality of a computer program nor the programming language... constitute a form of expression of that program for the purposes of Art 1(2)"
? This contrasts the source code and object code which are forms of expression and so are protected by copyright SECOND ISSUE - is Art 2(a) Info Soc to be interpreted as meaning that the reproduction, in a user manual, of certain elements described in the user manual of another program protected by copyright as a literary work, constitutes an infringement in the latter manual
? The user manual is a protected literary work for the purposes of the Info Soc directive
? Infopaq - court has held that various parts of a work enjoy protection under Art 2(a) Info Soc provided they contain elements which are the expression of the intellectual creation of the author
? Infopaq - "there will only be reproduction of a substantial part of a literary work...
where what has been reproduced represents the expression of the intellectual creation of the author"
? In the present case the keywords, syntax, commands etc consist of words or mathematical concepts which, considered in isolation, are not an intellectual creation of the author
? "It is only through choice, sequence and combination of those words, figures or mathematical concepts that the author may express his creativity in an original manner"
? SO the reproduction of certain elements described in the user manual is capable of constituting infringement if (and this is for the national court to decide) that reproduction constitutes the expression of the intellectual creation of the author
? Justice Arnold stuck to his initial judgment
?WPL has infringed the copyrights in the SAS Manuals by substantially reproducing them in the WPL Manual WPL had not infringed the copyrights in the SAS Manuals by producing the WPS Guides
FAPL  CJEU
- The High Court of England and Wales referred questions to the CJEU in a preliminary reference
- Questions it referred:
? Is the Q of whether those works have been reproduced in whole or in part to be determined by the rules of national copyright law relating to what constitutes an infringing reproduction of a copyright work, or is it a matter of interpretation of Art 2 Info Soc Directive? (it seemed to ignore this question and just take it for granted that Art 2 Info Soc was the test)
? If it is a matter for Art 2, should the national court consider all of the fragments or each work as a whole, or only the limited number of fragments which exist at any point in time?
- Q - whether the reception of the broadcasts is subject to the restriction in Info Soc Art 2 by reason of the fact that it results in reproductions of those works within the memory of a satellite decoder and on a television screen
- "whether Art 2(a)... must be interpreted as meaning that the reproduction right extends to the creation of transient sequential fragments of the works within the memory of a satellite decoder and on a television screen which are immediately effaced and replaced by the next fragments"?
- Held - Infopaq established that various parts of a work could enjoy protection provided that they contain elements which are the expression of the intellectual creation of the author
- Answer to Q = reproduction rights extends to transient fragments of the works within the memory of a satellite decoder and on a TV screen "provided that those fragments contain elements which are the expression of the author's own intellectual creation"
- If it does contain such elements, then it is a partial reproduction under Art 2(a)
- "It is not relevant whether a work is reproduced by means of linear fragments which may have an ephemeral existence because they are immediately effaced in the course of a technical process" Sound recordings and films
- The definition of "reproduction" is narrower than in relation to LDMA works
- Generally, entrepreneurial works are given "thinner" protection than is given to authorial works
? This is because the scope of the reproduction right is inextricably linked to the way the particular work is defined
? Sound recordings are defined as the "recordings of sounds from which the sounds may be reproduced" - what is protected is not the content per se but the recording of the sounds!
? Similarly, a film is defined as a recording on a medium from which a moving image may be produced - the film copyright protects the recording of the image rather than the image itself
- A consequence of reproduction being narrowly defined = copyright in a sound recording of a speech is not infringed where a person transcribes the speech
- Norowzian v Arks (No 1)  - the reshooting of a film sequence was not held to copy even if the second film closely resembles and imitates C's copyright film and reproduces the essential features
SO the reproduction right in relation to films/sound recs is confined to the reproduction of the recording
- Facsimile copy = facsimile includes enlargements and reductions
- BUT essentially reproduction is confined to photocopies, digital scanning, faxing and little more
The distribution right - issuing copies of the work to the public-s18 CDPA - infringement by issue of copies to the public
? (1) "The issue to the public of copies of the work is an act restricted by the copyright in every description of copyright work"
? (2) References in this Part to the issue to the public of copies of a work are to -
? (a) the act of putting into circulation in the EEA copies not previously put into circulation in the EEA by or with the consent of the copyright owner
? (b) the act of putting into circulation outside the EEA copies not previously put into circulation in the EEA or elsewhere Info Soc Directive Art 4 - the right of distribution
? 1. "MSs shall provide for authors, in respect of the original of their works or of copies thereof, the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise" It is a right to put each tangible copy that has not previously been circulated into commercial circulation (applies in respect of the issuing of each and every copy inc the original) The right does not include any subsequent distribution - copyright owners cannot control re-sale - s18(3) Recital 28 Info Soc Directive - "The first sale in the Community of the original of a work or copies thereof by the rightholder or with his consent exhausts the right to control resale of that object in the Community"
Peek v Cloppenburg  CJEU
- A German court referred to the ECJ
- Case concerned copies of designer furniture that was not protected by copyright in Italy but was in Germany
- It was suggested by a German court, in a ref to the ECJ, that distribution "by sale or otherwise" (art 4(1) Info Soc) could be interpreted to encompass display in a shop of an article for use by customers as well as display in a shop window
- Question was whether the distribution right covered making copies available to the public to see without transferring ownership in them
- ECJ - Art 4(1) right must be interpreted consistently with the corresponding provisions of the WIPO Copyright Treaties which apply only to acts entailing a transfer of ownership in the relevant copy
- This does not undermine the Info Soc objective of ensuring a high level of protection for authors - such an objective "can be achieved only within the framework put in place by the Community legislature" - it is not for the court to create new rights and widen the scope of the concept of distribution envisaged by the Community
- Also, such a broad interpretation of distribution presents the possibility that the distribution right duplicates the rental and lending rights, but is not subject to their exception and limitations
German interpretation rejected - ECJ said distribution right requires a transfer of ownership SO distribution includes import, sale and gratuitous transfer
Donner (2012) CJEU
- Is the following an act of distribution?: Advertising for sale from MS A copies of a work protected by copyright in MS B to the public in MS B and enabling the copies to be shipped to purchasers in MS B - YES
- Must break this down into 2 issues
- FIRSTLY - is delivering goods to Germany under a contract of sale concluded in Italy a distribution in Germany?
? YES - a distribution entails 2 acts - conclusion of a contract of sale and performance by delivery
? A person will bear responsibility for such a distribution on national territory A if she is deemed by the national court in A to bear responsibility for these 2 acts
- SECONDLY - does enforcing a prohibition against distributing goods in Germany under a contract of sale concluded in Italy (where distribution is lawful) infringe TFEU Art 34?
? NO - white prohibiting the distribution of goods restricts their free movement, the restriction is justified to protect industrial and commercial property - Art 36 TFEU applies
The right to communicate the work to the public-s20 CDPA
? (1) The communication to the public of the work is an act restricted by the copyright in -
? (a) an LDMA work
? (b) a sound rec or film
? (a) a broadcast
? (2) References in this section are to communication to the public by electronic transmission which includes
? (a) broadcasting the work
? (b) making available to the public by electronic transmission in such a way that members can access it from a place and at a time individually chosen by them Art 3 Info Soc Directive
? (1) MSs shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them This right was introduced to implement Art 3 Info Soc It is distinguished from the public performance right, or playing or showing in public by the fact that the public is not present at the place where the communication originates Recital 23 Info Soc - "This right should be understood in a broad sense covering all communications to the public not present at the place where the communication originates" SO eg converting sound recs into electronic signals and broadcasting them so they can be heard on a radio is a communication to the public
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