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1. Copyright Subject Matter The Copyright, Designs and Patents Act 1988 (CDPA) - Provides an exhaustive list of the specific types of creation automatically protected by copyright law. Must bring creation within one or more of these categories to show they attract copyright protection.
Issue: The closed nature of the categories has meant that copyright has been 'stretched to give protection to creative talents and activities the protection of which was never in the contemplation of those who have been responsible for framing the statutes' (CBS v. Ames). In other cases, the fact that the list is exhaustive has led to the exclusion from UK copyright law of 'works' which would be protected in countries operating a non-exhaustive system:Creation Records v. News Group ; Noel Gallagher arranged for a series of objects to be placed around a swimming pool and then photographed by C to be used as an album cover. C's interim injunction claim against a newspaper photographer who had taken pictures of the arrangement failed because the scene did not fall within the meaning of a protectable work, primarily it was not an artistic or dramatic work.Lancome Parfums v. Kecofa ; Dutch Supreme Court protected perfumes by copyright. Clearly not possible under UK law.
Issue: Is it possible for a creation to fall within two categories of works simultaneously?
- Electronic Technique v. Critchley ; Facts: Laddie J had to consider whether a circuit diagram could simultaneously be a literary and an artistic work. Decision: Laddie J: Although it might be possible in theory that a single creative effort may 'give rise to two or more copyrights in respect of the same creative effort', nonetheless, 'there are compelling arguments that the author must be confined to one or other of the categories.' Thought was too substantial for protection purposes. It is not possible for two distinct copyrights to subsist in the result of a single creative effort. Yes:Anacon Corpn. ; Jacob J suggested that a circuit diagram is both a literary and an artistic work. Held literary, not artistic work, was infringed.Norowzian v. Arks (No.2) ; CA accepted that the maker of a film may simultaneously produce two copyright works: a film copyright in the fixation and a dramatic work in the 'cinematographic'.
Important because an artistic work that is 2d can be infringed by 3d copies. But that is not true for literary works. So a new 3d circuit could infringe the 2d artistic work.
(a) Is the work a protected work?
1. Literary Work - S.3 CDPA defines 'literary work':
Scope of 'literary works':
Literary works are mutually exclusive of dramatic/musical works - i.e. for a song the copyright works will be split in two: literary work (lyrics) and musical work (music).
Literary works includes works that are spoken so spontaneous conversations and interviews may be protected, but only if it is recorded.
Copyright not does pass judgment on the standard of the work:
- *University of London Press v University Tutorial Press ; Quality irrelevant. Facts: Were mathematics examination papers were 'original literary works' for copyright?
Decision: Peterson J: Yes - 'The words 'literary work' cover work which is expressed in print or writing, irrespective of the question whether the quality or style is high'. Principles: 1) Literary works are not limited to works of literature, but include all works expressed in print or writing (other than dramatic or musical works). 2) The definition of 'written' highlights that aesthetic or qualitative criteria are irrelevant when it comes to identifying a literary work'.
? Where are the boundaries of the category to be drawn?
- Hollinrake v. Truswell (1894); To qualify as a 'book' under Literary Copyright Act 1842, the creation must afford 'either information and instruction, or pleasure, in the form of literary enjoyment'. This is not a comprehensive or exhaustive definition.
Protection also includes symbols and numerals. Courts have been willing to accept a low threshold when considering whether a work 'conveys an intelligible meaning':Express Newspapers v. Liverpool Daily Post (1985);
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