1. C - subject matter Flashcards
Copyright does not protect IDEA
Norwezian v Arks (No.2) - similar films (more idea so C does not protect)
Baigent & Leigh v Random House - Dan Brown adopted central theme of Holy Blood in his own book (more of an idea taken so C does not protect)
Temple Island Collection v New English Teas - red bus w/ B&W background in landmark (this wasn’t just idea, technique was important, C protects because it is expression of idea)
Relevance of Categories: Infopaq
any work can be protected as long as author’s own intellectual creation
BSA - GUI protected (intl. creation)
FAPL - football match not (not intl. creation, too limited by rules)
LOWER COURTS STILL USE CATEGORIES but Infopaq might mean subject matter is more widely interpreted (e.g. Creation records)
SAS (Arnold J)
It is clear that C work must be literary or artistic within art.2(1) Berne Convention (and whilst definition is expansive, it is not unlimited)
This means CATEGORIES ARE NOT ENTIRELY DEAD
- even if Infopaq is accepted, and there is obligation to protect all all statutory creations, this will be done through existing statutory language
University of London v University Tutorial Press
LITERARY WORK PROTECTED IRRESPECTIVE OF QUALITY
- exam papers protected
Nova Productions v Mazooma
SCOPE OF “LITERARY WORK” = VERY BROAD
- incl. more than traditional literature
- game simulating playing pool
- design notes, source, object code = literary work
(NB. Nothing copied here so no infringement - only idea copied)
Exxon v Exxon
MUST BE SUBSTANTIAL ENOUGH TO BE LITERARY
- EXXON cannot be protected
- old case defining book (Hollinrake v Trusswell - either information and instruction or pleasure, in the form of literary enjoyment) is used as guidance
- WORD DOES NOT SATISFY THIS DEFINITION
- at very least, literary work must have content
policy reasons driving court:
INCONVENIENCE of C in word
DOUBLE protection
This case = better handled under originality (say one word isn’t original enough)
- In the Court, they said 1 word might be protected if it was exceptionally creative
- but Infopaq says word in isolation cannot be an intellectual creation
Apple Computer v Computer Edge
“meaningless gibberish would plainly be excluded”
- BUT L work is a pretty low threshold (ciphers, math tables, are fine - general public do not need to understand it)
Meltwater v NLA
newspaper headline = substantial enough to be L work
Francis Day and Hunger v 20th Century Fox [1940]
courts refuse protection to song title
PC said title is not “substantial enough” to warrant protection in its own right
Norowzian v Arks
D work if it is a “work of action” (that is CAPABLE OF BEING PERFORMED)
incl. performance by artificial means (displaying film infant of an audience)
DOES NOT include static objects/sets/scenery/costumes (Creation Records)
Green v Broadcasting Corp of NZ
(PC)
Talent Show w/ catchphrases, sponsors, clap-o-meter (beyond this, show varied each episode)
To be dramatic work = requires:
- SPECIFICITY OR DETAIL (as a whole, show lacked this, scripts only provided general idea/concept of talent quest)
- SUFFICIENT UNITY for it to be capable of being performed (here, features repeated in each show was not dramatic work because no sufficient unity, they were unrelated to each other, just accessories to presentation of performance)
Nova Productions v Mazooma Games
Kitchen J:
- interactive video game lacked SUFFICIENT UNTIY to be capable of being performed
- each time played, images were different so no unity
Lawson v Dundas
4 note jingle can be musical work - COURTS MAKE NO JUDGEMENT TO “QUALITY”
Sawkins v Hyperion Records
CA - tempo/performance practice indicators count as musical work (even though he didn’t alter notes or melody - his efforts counted as contributions to music)
Mummary LJ:
- COMBINING OF SOUNDS for listening to
- music NOT same as mere noise
- EFFECT on listener’s EMOTIONS AND INTELLECT
- Music is DISTINGUISHED from fact/form of its fixation of musical composition (the score)
- SPONTANEOUS SINGING, whistling, or humming with or without instruments can be “music” (as long as fixated)
TEMPO, performance indicators = equally music (contributes to sound as performed)
John Cage (newspaper report from Independent 2002)
dispute over “silence”
The Planets incl. a 60 second silence on its recording
- payment to John Cage’s publisher (who incl. 4:33 of silence in his record prior to this)
- settlement shows fear that silence would be protected
Creation Records v News Group Newspapers
ARTISTIC WORKS
- need to fall within category of s.4(1)
- and although no req. of fixation, there is a req. of permanence
“scene was not a collage since it was intrinsically ephemeral, existing only for a few hours”
not collage - not permanent enough also no sticking and gluing
not sculpture - no carving and moulding (this definition is out-dated now)
not dramatic work - it is static
Metix v Maughan
ice sculpture is still a sculpture
- requirement of permanence either doesn’t exist or is fairly low
- transient existence can still be a sculpture
Kenrick v Lawrence
hand drawing for “how to vote” card can be protected as drawing
British Northrop v Textream Blackburn
drawings for spare parts for looms (2 concentric circles, very basic) = protected
CAN BE PROTECTED EVEN IF SIMPLE AND COMMON PLACE
- only thing not protected = straight line with aid of ruler but anything else is probably protected
- but if very simple, scope of protection is narrow (need to copy exactly to be infringing)
Merchandising Corporation of America v Harpbond
PAINTINGS
- paintings require a surface and face is not a surface (face paint)
- unconvincing argument (esp. in light of EU development of ‘intellectual creation’ - no reason for tattoo/face paint not to be protected)
better explanations:
- permanance
- originality
- idea/expression dichotomy
- de minimis
Spelling Goldberg Productions v BPC Publishing [1981
Individual frames from a film are not treated as photograph
Abraham Moon & Sons v Thornber
the (then) Patents County Court (PCC) is now the Intellectual Property Enterprise Court (IPEC) held that the instructions for generating fabric designs were graphic work (because they had visual significance for experts)
Navitaire v EasyJet Airline [2006]
• subcategory ‘graphic work’ has been held to protect computer screen icons and graphic user interfaces
Lucasfilms v Ainsworth [2009]
(sculptures)
Mann J (confirmed by SC):
- no aesthetic judgement
- regard to normal use of word
- goes beyond what is found in art galleries but not too far beyond
- Sculptures must be a 3D representation of a concept (but not all 3D objects are sculptures)
- Mode of fabrication - if carved that can indicate but not determinative (and not all carved things are sculptures)
- PURPOSE (determinative) - must have intrinsic quality of being intended to be enjoyed as a physical thing (if purely functional it isn’t a sculpture, if partly functional its fine as long as mostly about aesthetic)
here - helmet had some aesthetics but is mostly functional (step in production of film/prop)
SC sceptical about whether helmet did convey artistic purpose but did not overturn (Mann J in better position) but this means in future, creative costumes might be protected)
