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Law Notes Intellectual Property Law Notes

Copyright Infringement Moral Rights Defences Notes

Updated Copyright Infringement Moral Rights Defences 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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Difference between primary and secondary infringement

There are two important differences between primary and secondary infringement.

  • The first relates to the scope of protection:

    • primary infringement is concerned with people who are directly involved in the reproduction, performance, etc. of the copyright work;

    • in contrast, secondary infringement is concerned with people in a commercial context who either deal with infringing copies, facilitate such copying, or facilitate public performance.

  • The second difference between the two forms of infringement relates to the mental element that the defendant must exhibit in order to infringe.

    • As we explain below, the state of mind of the defendant is not formally taken into account when deciding whether an act of primary infringement has occurred. In the case of secondary infringement, however, liability is dependent on the defendant knowing, or having reason to believe, that the activities in question are wrongful

Primary Infringement

Where a person does or authorizes another to do one of the exclusive acts (CDPA s16)

  • Without (express or implied) licence of the copyright owner

  • The infringing act must occur in the UK

    • Although authorisation can occur outside the UK

1) Substantial Part

Where only a part of the work has been copied, it must be shown to amount to a substantial part

PCR v Dow Jones Telerate [1998] FSR 170

  • C produced reports about cocoa crops

  • Journalist from D obtained information about these reports and published an article based on it, also publishing quotes from the report

  • Lloyd J: There had been substantial copying of C’s reports

    • quality is at least as important, if not more so, as quantity in determining the question of substantiality”

    • Since the “most important and interesting parts were taken” and extensive direct quotes were used, there was substantial copying

*Designer Guild v Russell Williams [2000] 1 WLR 2416

  • UKHL: Restored the 1st instance decision that there had been substantial copying

    • Lord Bingham: CA hadn’t paid enough attention to the 1st instance findings that the similarities were so marked that there must have been copying

      • Although copying “did not in theory conclude the issue of substantiality”, here there was clearly a substantial taking

    • Lord Millett: Substantiality “must be determined by its quality rather than its quantity

      • Depends on the “importance to the copyright work”, not the defendant’s work

      • “the issues of copying and substantiality are treated as separate”

      • BUT “if the similarities are sufficiently numerous or extensive to justify an inference of copying they are likely to be sufficiently substantial to satisfy this requirement also”

  • Lord Scott: Suggested a different test for cases involving altered copying, which was not adopted by the majority

    • Where “an identifiable part of the whole, but not the whole, has been copied”, the question is about quality of the part taken

    • In a case of “altered copying”, the test should be if “the infringer incorporated a substantial part of the independent skill, labour etc contributed by the original author in creating the copyright work”

      • Even if there is copying, there may be sufficient differences to make it “permissible borrowing of an idea” instead of piracy

Test affirmed by UKHL in NLA v Marks & Spencer [2003] 1 AC 551

  • D had made copies of press cuttings for circulation to its employees

  • UKHL (Lord Hoffmann): The test is mainly qualitative

    • Substantiality must be determined “by reference to the reason why the work is given copyright protection”

    • There is a quantitative aspect in relation to typographical arrangements which can only be copied via facsimile, so must be determined if enough of the original has been copied

The CJEU has placed greater emphasis on originality

Infopaq [2009] C-5/08

  • CJEU: Copying of 11 words from an extract can be substantial enough to infringe

    • Copying of short extracts can be infringement if it “contains an element of the work which, as such, expresses the author’s own intellectual creation; it is for the national court to make this determination”

  • IMPLICATION: Originality is used to determine substantiality

NLA v Meltwater [2010] EWHC 3099

  • D’s online news monitoring service sent reports of news articles to customers based on search terms

    • Included headline, opening words and short extract

  • Proudman J: There was infringement

    • originality rather than substantiality is the test to be applied to the part extracted. As a matter of principle this is now the only real test.”

    • Although it is a test of quality, a single word “is too short a term to convey sufficient quality of originality”

    • Effect of Infopaq is that “even a very small part of the original may be protected by copyright if it demonstrates the stamp of individuality reflective of the creation of the author”

  • CA: Affirmed the 1st instance decision

    • Infopaq was compatible with English law

  • Originality test also applied in SAS Institute v World Programming [2011] RPC 1

    • Determining substantiality is based on whether the reproduced part “expresses the author’s own intellectual creation

      • Can look at the “cumulative effect of what has been reproduced”

  • IMPLICATION: The current substantiality test appears to be based on originality

Relationship to the idea/expression distinction

Baigent v Random House [2007] EWCA Civ 247

  • C claimed that Dan Brown’s ‘Da Vinci Code’ infringed the copyright in their book

    • Alleged copying of 15 elements of the “central theme” of their book

  • Smith J: Cs had worked backwards from D’s book to determine the elements of their “central theme”, the claim failed

  • CA (Mummery LJ): Dismissed the appeal

    • The elements “are not of a sufficiently developed character to constitute a substantial part”, they are too generalised

    • Original expression doesn’t include pure “information, facts, ideas, theories and themes”

    • The substantial part must be in relation to the “original composition and expression...

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