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Law Notes Intellectual Property Law Notes

Copyright Authorship Term Notes

Updated Copyright Authorship Term 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).

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Authorship

Important concept

  • Determines who holds the rights

  • Can affect whether a work qualifies for copyright protection

  • Affects the term of protection (70 years after death)

International

No definition in Berne Convention

  • But can infer that authors of literary and artistic works must be natural persons

    • Since the works must be intellectual creations of the author and the author must have a lifespan else the term could not be calculated

UK

CDPA s9(1): Author is the person who creates the work

  • i.e. contributes the originality

  • Walter v Lane (1900): Since the reporter expended skill and effort in transposing Lord Rosebery’s speech into writing, he was an author of a copyright work

CDPA s9(2)

  • Author of Sound recording is producer (s9(2)(aa))

  • Film: producer AND principal director (s9(2)(ab))

    • Principal director added in because of a EU Harmonising Directive

  • Broadcast: person making the broadcast (s9(2)(b))

  • Typographical arrangement: publisher (s9(2)(d))

  • Definition of producer: “person by whom the arrangements necessary for the making of the sound recording or film are undertaken” (s178)

    • Bamgboye v Reed (2004): Producer is determined by who provided the financial arrangements or instigated the process

S104-105: Evidential Presumptions

  • Any name listed as author on (or in) the work is presumed to be correct unless the contrary is proved

Joint Authorship

CDPA s10(1): Works of joint authorship are produced by collaboration where “the contribution of each is not distinct from that of the other author or authors”

  • Results in joint authorship and joint ownership (affects the rights of each owner)

Robin Ray v Classic FM [[1988] FSR 622

  • C was hired by D as consultant to advice on repertoire and catalogue its library

    • C’s catalogue (using his own factors, including a “tingle” factor) was later used in D’s automatic database which D licenced to foreign stations

  • D claimed that they could exploit the work, C disagreed

  • Lightman J: D didn’t have the right to licence the database

    • Even if D had been a joint author, it was a tenant in common and therefore could not do any restricted acts without consent of ALL the co-owners

Fisher v Brooker [2009] UKHL 41

  • C brought a claim of joint authorship of the musical work due to his organ part

  • UKHL: C’s organ part and the solo qualified as an “original contribution” to the work so C was given 40% copyright over the work

    • Not estopped from asserting copyright even though it was already 40 years after the work was created

  • NOTE: Unlike Godfrey v Lees (1995) where C was estopped from revoking the implied licence of a work created 14 years ago (because it was a harsher claim?)

Requirement of contribution

Brighton v Jones [2004] EWHC 1157

  • D had written the script of the play and C had directed the first production

  • C claimed joint authorship from contributions and suggestions made during rehearsals regarding changes to plot and dialogue

  • Park J: C was not a joint author, identified 3 requirements

    • Contribution of a joint author need not be equal but must be significant

    • The contribution must be “towards the creation of the work”

      • Any other contribution, even if significant, is insufficient

    • Joint author need not “put pen to paper” himself

    • In this case, burden of proof was on C since D was listed as sole author on the script itself (s104 presumption)

      • C contributed to the “interpretation and theatrical presentation” and not the creation of the dramatic work which D had already written beforehand

Requirement of collaboration

  • Beckingham v Hodgens [2003] EWCA Civ 143

    • C contributed the violin part of a song

    • CA: Joint authorship does not require “the existence of a common intention as to joint authorship”, as long as there is a “common design to produce the work”

Requirement of “not distinct”

  • Example of separate contributions: each author contributes a different chapter to a book

  • US requires that the contribution be “merged into inseparable or interdependent parts of a unitary whole”

S10A: Co-authorship

  • NEW introduction (Nov 2013, based on EU Directive)

  • Different from joint authorship

  • Covers a collaboration of musical and literary works that are “created in order to be used together”

Ownership

CDPA s11(1): General rule is that the first owner of copyright is the author

But 3 EXCEPTIONS:

  1. EXCEPTION: Works of Crown of Parliamentary copyright, which are owned by Her Majesty s163

  2. EXCEPTION: For works made by an employee in the course of employment, copyright is owned by the employer (s11(2))

    1. Applies to literary, dramatic, musical and artistic works and films

  3. EXCEPTION: Copyright vests in designated international organisation (s11(3)) NOT IMPT

Employees

  • In France, there is no general rule of automatic transfer of ownership to employers

    • Employers have to negotiate for a transfer of copyright

  • Employees can have a contract of service or apprenticeship

    • Beloff v Pressdram (1973): Control and skill required are factors in determining a contract of service, as well as regular salary and provision of resources

  • The work must have been created in the course of employment

Noah v Shuba [1991] FSR 14

  • C was a consultant epidemiologist at the Public Health Laboratory Service (PHLS) and wrote a guide in his own time using PHLS library and secretarial assistance, which was first published by PHLS

  • D wrote an article reproducing substantial extracts from C’s guide

  • Mummery J: C owned the copyright

    • He could not have been ordered to create the work nor was it part of his duty to do so

    • In any case there was an implied term of the contract (in line with long practice) for employees to retain copyright in articles they wrote in the course of their employment

Stephenson Jordan v McDonald & Evans

A management engineer wrote a book using information he gained while working for his firm, first as an employee, and then an executive officer. Some was from the text of lectures that he wrote and delivered, and some was material he...

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