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Copyright Issues With Technology And P2 P Notes

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INFRINGEMENT/ECONOMIC RIGHTS-DRIVEN BY TECHNOLOGY EXHAUSTIVE LIST IN CDPA S16?Expanded from the original copyright under the Statute of Anne (1710) which only prohibited copying If a new mode of exploitation arises, it must either fit within the existing rights or a new right must be added to the legislation COMPARE: French approach o 2 broad rights of reproduction and performance o No need for regular amendments since these have been interpreted to include new forms of exploitation

REPRODUCTION RIGHT (S17)?For literary, dramatic, musical and artistic works, this means "reproducing the work in any material form" o Includes "storing the work in any medium by electronic means": so digitising the work (e.g. scanning) is copying For any type of work, includes transient or incidental copying o Considerable disagreement over the status of transient copying as a prohibited act
? Some argued that this creates a right of access and is too farreaching
? Litman: "centrality of copying to use of digital technology is precisely why reproduction is no longer an appropriate way to measure infringement"
? Makeen: There might be undue overlap with right of communication o NOTE: EU Information Society Directive creates a mandatory exception for transient or incidental copying as part of network transmission or legal use
? Implemented in CDPA s28A
? Infopaq: This exception only covers copies which are deleted automatically without human intervention
? PRCA v NLA [2013] UKSC 18: UKSC held that normal browsing benefits from the temporary copies exception (for copies on the screen and cache)
? Confirmed by the CJEU For artistic works, includes changes of dimension (2D to 3D or vice versa) o Unlikely for change of dimension or material to apply to other types of work
? Making a dish based on a recipe is not copying o Autospin (Oil Seals) Ltd v Beehive Spinning [1995] RPC 683
? C designed new type of oil seal, produced instruction charts for the calculation of necessary dimensions
? D (ex-employees of C) manufactured oil seals which C claimed infringed copyright in their measurement charts
? Laddie J: Not reproduction to create an oil seal based on instructions for calculation of measurements in a chart
? "just as it cannot be a reproduction of literary copyright in a recipe for a cake to make a cake to the recipe, so it is not a reproduction to follow such mathematical instructions"


ALTHOUGH he left open the possibility that "making a three dimensional article from a data file in a computer (a literary work) which precisely defines the shape of the article is to reproduce it"


Narrowly defined o Applies to literary/dramatic/musical works but NOT artistic works o Includes translation of a literary/dramatic work into another form o Includes arrangement or altered version or translation of a computer program An adaptation can qualify for its own copyright if it is sufficiently original o Even if it was carried out without permission (ZYX v King, 1995)


Originally only a right of divulgation (right to publish for the first time) Phillips and Bently: 2 possible interpretations for when "issuing to the public" occurs o Point of disposition (when work is first put into circulation)
? S18(2) defines issuing copies to the public as "the act of putting into circulation"
? This interpretation supports the distinction between primary infringement (strict liability) and secondary infringement (liability for dealing in infringing copies with knowledge)
? CJEU has held that the distribution right is exhausted once the goods are placed on the market in any EU country o Point of destination (when work is actually sold)
? Art 4 of the Software Directive refers to "any form of distribution to the public by sale or otherwise" which may not include distributors/wholesalers
? This interpretation gives more protection to copyright owners since those further down the distribution chain can be held liable
? Avoids an overlap with the reproduction right
? English first instance decisions (KK Sony Computer [2006] and Independiente Ltd [2007]) have implicitly accepted this approach Distribution right for computer programs o Art 4 of Software Directive: includes rental rights o UsedSoft v Oracle (2012): CJEU held that the right is exhausted through authorised downloading from the internet with right to unlimited use in return for a fee Distribution right for works other than computer programs o Not exhausted unless there is a first sale or ownership transfer with rightholder's consent (doesn't include online dissemination)

RENTAL RIGHT (18A)Applies to literary, dramatic, musical and artistic works (besides architecture and applied art), as well as films as sound recordings o Implantation of Rental and Lending Rights Directive

??Rental: "making a copy of the work available for use, on terms that it will or may be returned, for direct or indirect economic or commercial advantage" Lending: Similar but not for economic/commercial advantage, through an establishment accessible to the public o Doesn't include lending between public establishments (e.g. inter-library loans) S18A(3): Exclusions o Public performance, exhibition or on-the-spot reference use Unlike distribution right, not exhausted by distribution of copies or prior rental/lending o Foreningen v Laserdisken (1999): CJEU held that rental right can "be exploited by repeated an potentially unlimited transactions"

PERFORMANCE RIGHT (S19)When is the performance "in public"?
o Harms Ltd and Chappell v Martans Club Ltd [1927] 1 Ch 526
? Performance of a musical work at exclusive London club
? CA (Lord Hanworth): The performance was in public
? Should consider injury to the author, of which profits is a "very important element"
? Should consider if there is "admission of any portion of the public", which refers to the "class of persons who would be likely to go to a performance" at a public theatre for profit
? Should consider if the performance is "private and domestic, a matter of family household concern only"
? The location need not be one "kept habitually for the exhibition of dramatic entertainments" o Jennings v Stephens [1936] Ch 469
? Play performed without consent at Duston Women's Institute (62 members present, no guests)
? CA: The performance was in public
? Lord Wright: Presence of visitors, payment or number of audience are not decisive factors
? "The true criterion seems to be the character of the audience"
? Membership of the institute was open to all adult female residents of the village, so they were considered the public o Residence in the same village lacks the "quality of domesticity or quasi-domesticity"
? If this sort of performance was not in public and could be repeated, then the "performing right would not be of much value"
? Greene LJ: The "expression 'in public' must be considered in relation to the owner of the copyright"
? If the audience was the "owner's 'public' or part of his 'public'"

**RIGHT OF COMMUNICATION TO THE PUBLIC (S20) Originally broadcast, aimed at bbc

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