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Copyright Notes

LPC Law Notes > Intellectual Property Law Notes

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Arises AUTOMATICALLY - no need to register (pose against the disadv. of it being harder to enforce)
Duration: Author's life (distinguish from owner; so employee is author and employer is owner) +
70 years (CDPA, s12)
Broadcasts (TV, sound, cable) it is author's life + 50 years
Typographical arrangements (from date of publication) is author's life + 25 years
Everything covered under copyright are called 'works'
The type of work covered under copyright is included in the Copyright Designs & Patents Act 1988, Part 1, section 1 as well as the Berne Convention:
It is a property right which subsists in…
-original literary, dramatic, musical or artistic works (covered in Berne)
- Sound recordings, films or broadcasts (related right)
- The typographical arrangement of published editions (related right)
The author in the related right does not need to be one person - can be a publisher
Most EU jurisdictions have 'author rights' and then 'related rights'. Author rights include literary,
dramatic, musical or artistic work. Related rights are like sound recordings

LDMA Copyrights
Literary Works

Covered under CDPA section 3: any work, other than a dramatic or musical work, which is written, spoken or sung…including:

• A table or compilation other than a database

• A computer program

• Preparatory design material for a computer program

• A database (less so since database right)
Not included: play/ melody, protected under a different legislation
CDPA s 178 provides the definition: "any form of notation or code, whether by hand or otherwise and regardless of the method or medium it is recorded and 'written'"
UoL Press v United Tutorial Press - literary work: anything expressed in print or writing including online copies. Literary is to be distinguished from literature; does not matter about quality or style: so included report, notes, academic essays, business letter etc.
Exxon Corp v Exxon Insurance - Was the word Exxon literary work? Exxon, massive oil company versus Exxon in another sphere of business - insurance. Exxon has registered TM but difficult to bring when co. in different sector. Clever lawyers decided to try it out in copyright because it was "written, spoken or sung" and was original, it took time to work and come up with the name. Courts were hesitant about a single word being a literary work. Giving a monopoly over a word may raise fears or floodgates. CA decided there was NO copyright in a single word.
Reason: in order to be a literary work it must have a certain quality and give certain information
(affirming Holinrake). Contentious decision because a single word can do that. Test: information,
instructional pleasure •

There has been a shift in the approach to short literary works from where a short chain of words in a sentence would not be copyright (e.g. Francis Day: the title of a work, 'Monte Carlo' was not capable of copyright) to a situation where it can be (such as a newspaper headline in Meltwater)

Computer Programs (literary work)

• Graphic works are protected under artistic work (see later) in contrast to coded instructions,
computer programs are protected differently under literary works (Berne Convention)

• BSA v MoC - televising of people playing video games potentially a copyright

Database Copyright

An example of one could be Westlaw - does not have to be organised alphabetically
Defined in Directive 96/9 : "a collection of independent works, data or other material…arranged in a systematic or methodical way…individually accessible by electronic or other means"
Not devised for un-electronic things but can be used regardless
Fixtures List - in case there was an argument that fixtures were not independent (each fixture was linked to a league as a whole). COJ found that there was a sufficient degree of independent meaning and giving of information on when football fixtures are being played to constitute as a collection of independent works and thus a database.

Dramatic Works

CDPA section 3 a dramatic work includes a work of dance or mime [capable of performance that is recorded]. Remember, they are carved out of literary works so a script is dramatic copyright
Green v NZ - Court found a tv show was not a dramatic work because there was no sufficient unity - the programme varied from week to week.
Norowzian v Arks - jump-cutting advertising. CA found dramatic work because it was a work that involved action or movement and was capable of being shown in a film form (so does not only need to be through human performance). However, ultimately, film director still lost because the new work was a remake and similarities not sufficiently close enough

Musical Works

CDPA section 3 defines a musical work as a: "work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music"
Lyrics of a song protected instead under literary work
Sawkins v Hyperion Records - music is not mere noise, the sound of music is intended to produce effects of some kind on the listener's emotions and intellect. Broad approach to what can be musical forms but a written score is not in itself the music where copyright arises out of.
Queried about originality as well on music first composed in 17/18 th cent Lalanne music. The works that Sawkins has put in was sufficient to make it original. Wasn't just transcribing - huge labour, effort and time. However, now would be hard to find as intellectual creation.

Artistic Works

CDPA section 4(1) defines artistic work as:
a. Graphic work, photograph, sculpture or collage, irrespective of artistic quality [so judges should not make aesthetic judgements]
b. A work of architecture being a building or a model for a building •

c. A work of artistic craftsmanship (3D things, not mass-produced, not sculptures -
practically: never advise to seek copyright and instead go for design right)
{b and c require a degree of artistic qualities unlike a}
This is an exhaustive list. Go into section 4(2) CDPA for lists of buildings, graphic works,
photographs and sculptures. More legally certain.
Would an open list be better? Many international legal systems adopt open system approach.
Argue that it does not protect valuable forms of creativity (Creation Records v News Group
Newspaper) - an example of a collage that was not protected for an Oasis album. Also concluded that not every 3-D object is a sculpture. Open list can protect something like perfume. France has open list - has to be the work of the open mind of the author.
Bleistein - it would be bad for people trained only in law to judge the worth of a pictorial illustration. Old 1903 case concerning a circus poster with no apparent 'aesthetic quality' - so long as it falls under list in subsection a; threshold of artistry required is extremely low
Abraham Moon & Sons v Thornber - a set of instructions for the weaving of a woollen plaid fabric by a machine was constituted as artistic work even though the visual appearance of the instructions could only have been understood by an expert.
Harpbond - face-painting is not a painting because it is not an object and it is just paint without a surface. Painting intended to be permanent (not its main argument). Easily reproducible.
Hi Tech Autoparts v Towergate Two - judge considered that because he was not entitled to pay any regard to the 'artistic quality' of a work, he was obliged to find that a set of rubber car mats was protected as an engraving. Contrast this with following case:
Lucasfilm v Ainsworth - SC case concerned whether plastic versions of 'Stormtrooper' helmets were sculptures. Found it was not because one must stray within the limits of its original meaning. Look at: structural nature, mode of fabrication and purpose of object (most important)
…is it meant to be decorative? Has to have a visual appeal. Helmets had a functional purpose to be used a movie prop.
Merlet v Mothercare - a cape was not enough artistic quality to fall under subsection c.

Sound Recordings (related right)

Listed under CDPA section 5A and include:

• A recording of sounds, from which the sounds may be reproduced

• A recording of the whole or any part of a literary, dramatic or musical work, from which sounds reproducing the work or part may be produced regardless of the medium on which the recording is made or the method by which sounds are reproduced or produced
IMPORTANT: does not require originality.

Entrepreneurial Copyrights
Include: films (including DVDs/ Blu-Ray), broadcasts, sound recordings, published editions, typographical arrangements and cablecasts.
They have no general requirement of originality and minimum effort Films

Remember, Norowzian v Arks that says that a film can be protected as a "dramatic work". The difference is this idea of originality - if it has originality it will be protected under both dramatic works and film; if none, only under films.
It is covered under CDPA section 5B, as a "recording on any medium from which a moving image may by any means be produced"
Only one of the entrepreneurial rights that has moral rights as well.

Broadcasts (related right)

Covered under Copyright and Related Rights Regulations (1): a broadcast is an "electronic transmission of visual images, sounds or other information which is transmitted for simultaneous reception by members of public and capable of being lawfully received by them….transmitted at a time determined solely by the person making the transmission for presentation to members of the public"
Internet transmissions are widely excluded from this term of broadcast unless (CDPA s.6):

• A transmission taking place simultaneously on the internet

• A concurrent transmission of a live event

• A transmission of recorded moving images or sounds forming part of a programme service

Copyright Requirements

Must show first that a copyright falls under a specific subject-matter (above) Then show:d

Recording/ Fixed

In UK a work will generally only be protected when it is recorded. This can be found for literary,
dramatic and artistic works in CDPA s3(2).
An author's consent does not matter in producing a recording of a copyright (so even an illicit phone recording of a lecture has a copyright)
Musical works are protected regardless of fixation? Such as an impromptu jazz - is it because it can be so easily copied without knowing.
Komesaroff v Mickle - Sand sculptures can be protected even if they are not as permanent.
Now, consider artistic work no need to be recorded

Originality/ creativity

Remember, CDPA s 1(1)(a) demonstrates that literary, dramatic, musical and artistic works will only be protected if they are original.
UoL v University Tutorial Press - originality has a low threshold and does not mean that a work must be an expression of original or inventive thought. It is the idea that is not copied from preexisting work and done through the exercise of "labour, skill and judgement". Musical arrangements, translations have been considered original because new expression/form
Rose v Information Services - the 'authorial' contribution to a work has been held to be so limited that the claimed 'work' can't be regarded as original
Walter v Lane - there was a copyright in newspaper reports on speeches because of the skill involved in reducing what a person spoke so quickly. Was an art that required training

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