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Law Notes Intellectual Property Law Notes

Copyright Law Rights And Infringement Notes

Updated Copyright Law Rights And Infringement 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).

These were the best IP Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highes...

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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 [1963]

Davis Holdings v Wright Health Group [1988]

  • 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 [1998]

  • 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 [2009] 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 Højesteret, 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...

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