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IP > 4. C - infringement > Flashcards

4. C - infringement Flashcards

1
Q

British Leyland v Armstrong (derivation)

A

doesn’t matter if intermediate copy is legitimate or pirated, if a person photographs a 3D object, it can infringe (c) in the drawings

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2
Q

Francis Day v Hunter

A

SUBCONSCIOUS COPYING IS POSSIBLE BUT HARD TO PROVE

  • burden of proof is very high
  • here, insufficient factual evidence to prove D was familiar
  • it doesn’t shift BOP either
  • to rebute, D doesn’t need to show it was impossible to have come across it (i.e. in Mitchell v BBC, it was fine that it is unmemorable)
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3
Q

TO SHOW DERIVATION

A
  1. Objective similarity (of parts alleged)
  2. opportunity to copy (access)
  3. BOP shifts to D to show independent creation
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4
Q

Designer’s Guild v Russell

A

OBJECTIVE SIMILARITY

  • Millett: do not focus on whether works are identical (focus on what is alleged to be copied)
  • not about overall similarity
  • disregard commonplace similarities and unoriginal parts, and just look at features of C’s work C alleged D took

Q: are similarities numerous, substantive, and close enough to suggest copying rather than coincidence?

HERE: YES (7 SIMILARITIES - far beyond what is expected from work based on impressionistic style or based on flowers/leaves)

ACCESS:
- yes D was at trade fair

INDEPNEDENT CREATION?
- D couldn’t show this

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5
Q

3 ways of showing independent creation

A
  1. derived from common source (Mitchell v BBC)
  2. genuine co-incidence
  3. constraints means it had to be similar (kleeneze)
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6
Q

Mitchell v BBC

A
  1. objective sim = yes
  2. access = yes (C sent design to D)
  3. independent creation? = yes!
  • started design before access to C’s work
  • common source inspiration (anime)
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7
Q

Kleeneze v DRG

A

functional constraints

- so INDEPNEDENT CREATION shown (similar because of functions)

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8
Q

Autospin v Beehive

A

derivation can be presumed though objective similarity and access but it still has to be established

here. .
1. copied design drawings - NO, drawings not made till after 3D made
2. copied charts - NO, charts don’t show shape
3. copied simple drawing made before 3D object - NO, drawing too simple

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9
Q

Designers Guild v Russell Williams (traditional substantiality test)

A

MATTER OF IMPRESSION

  • quality-dependent
  • importance of part taken
  • look at C’s work (not what D did)
  • influenced by social value (parodies take a lot but not substantial)
  • trend of increasing protection so what is “substantial” has shrunk over time
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10
Q

NLA v M&S

A

OLD substantiality test

  • quality by reference to why work given (c)
  • in literary work: literary originality
  • in artistic work: visual significance of what taken
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11
Q

Infopaq v Danske

A

NEW SUBSTANTIAL PART TEST

  • it is a substantial part if parts reproduced contain elements which are the expression of “intellectual creation” of author
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12
Q

UK follows infopaq

A

SAS v WPL - Lewison LJ: “this is now the test” (unlike originality where its unclear if UK adapted the test)

NLA v Meltwater - used infopaq test

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13
Q

English & Welsh Cricket Board v Tixdaq

A

infopaq applied to entrepreneurial works?
8 second clip of the game

  • Arnold LJ took a similar approach to Infopaq for these “signal” copyright works (E works)
  • F&B protected for their investment
  • so see if investment is taken
  • here yes, quantitatively seems like no (only 8 seconds) but qualitatively yes (highlights of the game)
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14
Q

Ludlow v Williams

A

D inspired by C’s song

LYRICS TAKEN = SUBSTANTIAL PART BECAUSE IT WAS AUTHOR’S OWN INTELLECTUAL CREATION

  • virtually identical words
  • substantial enough
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15
Q

IDEAS NOT PROTECTED

A

so if D just takes ideas it isn’t enough to infringe

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16
Q

Norwezian v Arks

A

jump cuts in film = idea

not protected

17
Q

Havenscroft v Herbert

A

no monopoly on historical facts
BUT D copied word for word
protected (infringement)
- not just taking ideas but expression too

18
Q

Bagient & Leigh v Random hOUSE

A

C took ideas from D’s book (overall theme)

  • not infringe (just took ideas)
  • no literal copying
  • nb. there can be (c) infringement without taking a single word but this is not what happened here
19
Q

Kenrick v Lawrence

A

hand illustration

- must copy exactly to infringe because work is simple

20
Q

temple island v New English teas

A

D argued he just took idea (like Kendrick, simple photo so need exact copy to infringe)
- gave evidence of loads of other people doing similar things (e.g. red phone box)

INFRINGEMENT

  • evidence showed that loads of other ways to take the same pic
  • took expression not just idea
21
Q

Folley v Elliot

A

garment made following instructions (L work)

- NO s.17(3)

22
Q

Nelson v Rye

A

issuing copies to public

- right applies regardless of whether international copies are legitimate or pirated

23
Q

FAPL v QC Leisure

A

satellite recorder boxes (legitimate) used illegitimately to get games

uk = no communication (performance right covers this)
eu = communication to public (AND has to be new public)
24
Q

OSA v Lecenbre

A

GENERAL PRINICPLES FOR COMMUNICATIO TO PUBLIC:
- need new public (not contemplated by author)
- here spa treatment gave access to people who would otherwise not have access
-

25
Q

Svensen v Retriever

A

provision of link –> communication to public?

  1. communication (access) –> here yes
  2. new public –> NO this was freely available
26
Q

BestWater

A

if link circumvents paywall, it is communication to new public

27
Q

GS Media v Sanoma

A

if

  1. freely accessible and
  2. published without consent of author on another website

NOT communication to public as long as:

  1. Poster does not seek financial gain
  2. Poster acts without knowledge that these works were published illegally
28
Q

CBS v Amstrad

A

AUTHORISATION

  • DEFINED restrictively
  • means grant, express or implied, of the right complained of

providing machine is NOT authorise (esp. because advert said if you use this to copy this is copyright infringement)
- providing machine without control over what machinery would be used for is not authorising

29
Q

Twentieth Century Fox v Newzbin

A

D enabled users to download files

  • INFRINGEMENT (authorisation - granting people to copy)
  • preventative steps were windowdressing
  • made it easy to find and download files

IP (18 decks)

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