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Law Notes Intellectual Property Law Notes

Copyright Qualifying Person Notes

Updated Copyright Qualifying Person 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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2. Qualifying Person

A work will qualify for copyright protection if, at the material time, the author was a qualifying person. A qualifying person is either:

  1. A British citizen;

  2. An individual domiciled or resident in the UK or another country to which the relevant provisions of this Part extend;

  3. A body incorporated under the law of a part of the UK or of another country to which the relevant provisions of this Part extend or are applied.

S.154(4): ‘Material time’ for literary, dramatic, or artistic works is, for unpublished works, when the work was made and, for published works, when the work was first published.

S.154(5): In the case of sound recordings, films and broadcasts the ‘material time’ is when the work was made. For typological arrangements it is when the edition was first published.

Authorship

‘Author’: S.9(1) CDPA stipulates that it is ‘the person who creates the work’. Clear link between authorship and originality – person who contributes relevant skill and labour will be the person who creates the work, thus its author.

S.9(2) CDPA: ‘Author’ means the producer for sound recordings, the person making the broadcast in broadcasts, the publisher in the case of typological arrangements, and the principal director and producer in the case of films.

The significance of authorship:

  • A ‘qualifying person’ is linked to authorship in the case of literary, dramatic, musical and artistic works.

  • For literary, dramatic, musical and artistic works, the term of protection is calculated post mortem auctoris; i.e. 70 years after the death of the author.

  • The author of a work will be its first owner according to s.11(1) CDPA.

Elaboration upon who can be a ‘producer’:

  • Bamgboye v. Reed [2004] EMLR 5;

Facts: Disputed ownership of copyright in musical work and sound recording of a song called ‘Bouncing Flow’. C worked as a trainee tape operator and sound engineer at the recording studio and had contributed drum and cymbal effects. After track was recorded D used equipment at Mr B’s home to further work on and master the recording.

Decision: Williamson QC held that Mr B was a joint author of the musical work, but in relation to the sound recording she found that Mr R was the producer. She decided that ‘the real question is who instigated the relevant recording and organised the activity necessary for its making?’ Mr R arranged to get Mr B to make his house and equipment available so Mr R was the producer in ‘substance’ – this was not a joint operation.

Presumptions:

S.104(2)(a) CDPA: In the case of literary, dramatic, musical or artistic works, where a name purporting to be that of the author appears on copies of the work, the person named shall be presumed, until the contrary is proved, to be the author of the work’.

S.104(3) CDPA: Same applies in cases of joint authorship.

  • Tate v. Thomas [1921]; A man who thought up some characters, developments and catch phrases was held not to have contributed enough to be a joint author.

  • Cummins v. Bond [1927]; A spiritualist made automatic writing from dictation beyond the grave. The spiritualist here was the author because of the skill exercised in her speed. (Also difficult to attribute authorship to one who is dead?)

  • Walter v. Lane; Reporter took shorthand report of a speech given; in doing so he exercised sufficient skill for CR to exist in the resulting report. This was a skill as it wasn’t within the knowledge of an ordinary person.

  • Cala Homes; A person who orally/with sketches conveys ideas to technical artist will have joint authorship.

  • Heptulla; A politician who dictated memoirs and edited a transcript had joint authorship.

  • Brighton v. Thomas; Suggestions made by a director to a playwright were insufficient to attract authorship. His contributions were to the theatrical presentation and interpretation.

S.105(1)(a) CDPA: If copies of a sound recording as issued to the public bear a label or other mark stating that a named person is the owner of the copyright in the recording, this shall be presumed to be correct until proved otherwise. NB. In case of photos the author is the person who publishes, not when developed.

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Joint Authorship

S.10(1) CDPA defines ‘works of joint authorship’ as: ‘A work produced by the collaboration of two or more authors in which the contribution of each is not distinct from that of the other author or authors’.

S.10(1A) CDPA: Films are deemed to be works of joint authorship between the producer and principal director unless these two persons are the same.

Significance of joint authorship:

  • S.12(8): The term of protection will be calculated according to 70 years after the death of the last remaining author.

  • S.11(1): Joint authorship will lead to joint ownership so this will constrain the behaviour of all co-owners.

  • *Robin Ray v. Classic FM [1998];

Facts: He was famous and entered into a consultancy agreement with Classic FM and agreed to advise them on playlists. Informal agreement. Lightman J said there was no agreement. Classic FM wanted to use an automated music selection system – so you could just find relevant songs. To do this all tracks have to be categorised so the computer knows what to look for – Ray submitted detailed categorisation proposals, including one based on popularity. Used skill and judgment. A construction was agreed and categorised 50,000 tracks supplying info required. That info was incorporated by Classic FM into a database and used it. So successful there was a proposal to licence this to foreign radio stations. Ray objected but classic FM went ahead. Ray argued...

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