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Unit 4 – Copyright Notes

LPC Law Notes > International Intellectual Property Notes

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Unit 4 - Consolidation IP - COPYRIGHT TPs = third parties What is Creative output (expression of an idea NOT the idea itself) protected?
What benefit is Prevents copying there?
How is it Arises automatically (no registration) obtained?
How long does it 70 years from death of creator (in most cases) last?
OUTCOME 1 - Analyse a client's situation to decide whether copyright exists in its creations; What is (c)?

LDMA works

Literary works

Protects the results and expressions of creative ability. No formality is involved, right comes into existence as that tangible results of creativity appear
- Necessary if a work is to be made available to the public, recognising the effort and investment involved in such ventures "Works" = the tangible expression of ideas o Duration is usually 70 years, however, artistic items which are mass produced is 25 years (same as RDR) Two categories of (c)

1. Classic LDMA (literary, dramatic, musical, artistic) protect the creative efforts of the author

2. Entrepreneurial (film, sound recording, published editions of LDMA) protect investment
(c) categories are important: a) An item can fall into more than one b) If it doesn't fall into a category, then it doesn't fall within (c) law c) Rules relating to subsistence, duration, ownership and infringement vary d) Different rights in the same item can be owed by different people Pg 257 has relevant CDPA provisions s.1-4 Requirements for existence:

1. Original - s.1(1)(a) - authors own work, not copies from anything else. It is an originality of expression and form, not of idea or content that is required

2. Minimum Effort - no (c) unless a certain minimum amount of effort has gone into the work
- A joint author has to do more than merely contribute ideas and has to participate actively Ray v Classic FM 1998 Literary: Low threshold - almost any work expressed in print or writing (University of London Press v University Tutorial Press 1916), but not a word, jingle, title or short slogan (Exxon 1981)
? Compilations now have a high originality threshold and more likely to be protected by a database right Artistic: Very low threshold s.4(a)(a) but artistic merit is requires for architecture s.4(1)(b) Artistic craftsmanship: 3D item but not a sculpture (hand made musical instrument, furniture, wooden boat) - requires a significant degree of artistic merit o Most industrially manufactured articles will lack any craft skills o Key factor: did the author consciously intend to create a work of art?

3. Recorded: For LDM but not A the work must be recorded s.3(2) on any medium (tape/typing) "Any work, other than a dramatic or musical work which is written, spoken or sung" s.3(1)
- Need not have any artistic merit and covers business documents
- Computer programs are expressly included s.3(1)(b)
- Databases and compilations can qualify for this if they satisfy s.3A o Collection of independent works, data or other materials

o Arranged in systematic or methodical way o Individually accessible by electronic/other means o Original because selection/arrangement of database content is author's own intellectual creation

o Theoretically may be protected even though just an assemblage of existing material as long as way its put together is original.

o Most wont be original enough s.3A so the Database right will cover them Dramatic works

"Includes a work of dance or mime" s.3(1)
- Covers anything that is intended to be acted o Play or film script will have dramatic not literary (c)
- A ballet is a dramatic work but the accompanying music is a musical work
- Not footballers famous goals because of the crucial absence of a script Musical "Music, exclusive of any words or action intended to be sung, spoken or performed works with the music" s.3(1)
- A song will have musical (c) the words are not musical but literary and may be separately owned Artistic s.4 - includes graphic works, photos, sculptures, works of architecture, works of works aesthetic craftsmanship (3D works which are neither sculptures or works of architecture - unimportant in practice as likely to be protected by design rights s.4(1) Duration
- Normally 70 years from the end of authors death (even if assigned or (c)
vests in employer) o If author unknown, 70 years from creation or first publication (whichever is later) o Computer generated work, period is 50 years from creation
- If it is industrially exploited this is reduced to 25 years s.52 Ownership
- Initial (c) is held by owner or co-owners s.11(1)
- If author is an employee and work was done in course of employment, (c)
owned by employer s.11(2)
- If the work is commissioned then (c) resides with author s.11(1) (important to have assignment clause but license usually implied, person commissioning has the right to prevent publication s.85) Moral rights Where the creative author retains rights regarding his creation, even after he has sold the (c)
a) the right to be identified (where asserted by the author) s.77 b) the right to object to derogatory treatment s.80 o Morrison Leahy Music v Lightbond 1993 - C obtained injunction to restrain release of a recording consisting of C's music interspersed with other music, altering the character of their music c) the right against false attribution of a work s.84 d) the right to privacy in photographs and films s.85
- Moral rights are alienable s.94 cannot be assigned, but can be waived
- Apply to LDMA works and films (director owns them) - exception is computer programme where employees don't enjoy them
- Most moral rights last as long as (c) s.86(1) except paternity rights which last for 20 years after death of author s.86(2) Entrepreneu These are designed to give effect to the commercial, artistic and financial realities rial (c)
of creativity in the modern world - pg 263 for relevant CDPA s.5A-8
? Divided into LDMA an entrepreneurial for conceptual convenience not because of legal distinctions.5A - sound recordings s.5B - films s.6 - Broadcasts s.8 - published editions of LDMA

- No req of originality and minimum effort because everything protected under entrepreneurial rights are based on something else (e.g. published edition is based on literary work)
- No req of recording because by their nature entrepreneurial (c) works are all

- No (c) to the copies of other works s.5A and s.5B(4) a problem arising because there is no req of originality, creating a copy of (c) work could have created a new (c)
- Only films have moral rights?Ownership and duration

LDMA works normally 70 years from end of year of authors death BUT CDPA 1988 s.52 - 25 years for industrial exploitation SI 1989/1070 - exception for certain artistic articles

Entrepreneurial Right


Duration 50 years from making/being released 70 years from last to die of principle director, screenplay author, dialogue author, composer of specifically written music

Sound recording (s.5A)


Film (s.5B)

Producer and principal director

Broadcast (s.6)

Person making the broadcast

50 years from first broadcast

Typographical arrangement (s.8)


25 years from end of year published

EXAMPLES Idea for new sitcom no (c) as (c) can only exist in the tangible expression of ideas Doodle of Xmas Tree artistic (c) low threshold of artistic merit s.4 Report written for co by employee literary s.3 (doesn't have to have creative flare to it) First owner - author - s.11(1) Main exception = In course of employment then your employer owns it s.11(2) If you commission someone to do work for you (Agent not employee) then the author (s.11(1)) STILL owns the work NOT you! Therefore essential you have a contract clause assigning the (c)
from agent to you Telephone directory S.3(1)(d) - database as a literary work S.3A(1) "database definition" (telephone directory could fit within this definition) Higher threshold for database - if the selection of arrangement of the contents of the database the authors own intellectual creation?
S.1(1)(c) / s.8 - typographical arrangement (lesser 25 years duration protection) so if you copy a Shakespeare book - there is no copyright in the play as it has expired BUT the arrangement of the book you copied is covered by typographical arrangement OR Database regulations 1997: Reg 13(1) - property right in database right subsists if substantial investment in obtaining, verifying and presenting the contents of the database Duration of protection under database is only 15 years duration (Reg 17) BUT database will most likely be updated more frequently than that Film - "Casino Royal" Entrepreneurial S.5B(1) - "Film"- recording on any medium from which a moving image may by any means be

produced Includes the sound UNLESS it is released separately Ownership s.9(1) and 2(ab) FILM = Producer and principle director Duration - s.13B - 70 years from last of the people to die out of principle director, author of screenplay, author of dialogue or composer of specially written music Underlying LDMA rights: Script = dramatic Music = musical/literary Drawings = artistic ALL owned by individual authors unless assigned to film studio

OUTCOME 2 - Identify and advise on possible infringements of copyright; Infringement of s.16 - (c) owner has exclusive right to copy, publish, perform or show in public
and or adapt the work
- Any infringing copying need not be of the whole work only a "substantial part" (by virtue of quality not quantity
- Copying of any LDMA works means reproducing them in any form s.17
- Artistic (c) can be infringed by turning a 2D image into a 3D object and vice versa s.17(3)
- Adaptations infringe - s.21 infringing literary (c) through translation/musical (c)
by making different arrangement o Baigent v Random House Group 2006 - the copyright material comprised factual statements and hypotheses, which could only be protected if there was a discernible architecture o Newspaper Licensing Agency v Marks & Spencer 2003 - unless copying an entire newspaper page, not substantial copying
- (c) isn't infringed by simply using the work (unless you do so in public or broadcast s.19/20
- BUT special rule for computer programs, installing and using is copying and requires a license s.17(6) lawful licensee entitled to make one back up s.50A Primary s.16-21 infringement
- The act of copying, adapting and public performances ((c) is not a monopoly right, just the right not to be copied)
- Independently produced items cannot be objected to (no matter how similar)
? Copying on the internet, where the material is available to the UK public, will fall within s.20 - communication to the public (making available by electronic transmission)
? Cannot infringe copyright if D had no access to the original, but if they did and D's work is similar to C's, copying will be inferred. Onus on D to prove that he did not copy
? Sony Music Entertainment v Easyinternetcafe 2003 -injunction against D who recorded music from the internet onto CDs for a fee for customers
? There is no need to establish knowledge of primary infringement

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