4. C - infringement Flashcards
British Leyland v Armstrong (derivation)
doesn’t matter if intermediate copy is legitimate or pirated, if a person photographs a 3D object, it can infringe (c) in the drawings
Francis Day v Hunter
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)
TO SHOW DERIVATION
- Objective similarity (of parts alleged)
- opportunity to copy (access)
- BOP shifts to D to show independent creation
Designer’s Guild v Russell
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
3 ways of showing independent creation
- derived from common source (Mitchell v BBC)
- genuine co-incidence
- constraints means it had to be similar (kleeneze)
Mitchell v BBC
- objective sim = yes
- access = yes (C sent design to D)
- independent creation? = yes!
- started design before access to C’s work
- common source inspiration (anime)
Kleeneze v DRG
functional constraints
- so INDEPNEDENT CREATION shown (similar because of functions)
Autospin v Beehive
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
Designers Guild v Russell Williams (traditional substantiality test)
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
NLA v M&S
OLD substantiality test
- quality by reference to why work given (c)
- in literary work: literary originality
- in artistic work: visual significance of what taken
Infopaq v Danske
NEW SUBSTANTIAL PART TEST
- it is a substantial part if parts reproduced contain elements which are the expression of “intellectual creation” of author
UK follows infopaq
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
English & Welsh Cricket Board v Tixdaq
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)
Ludlow v Williams
D inspired by C’s song
LYRICS TAKEN = SUBSTANTIAL PART BECAUSE IT WAS AUTHOR’S OWN INTELLECTUAL CREATION
- virtually identical words
- substantial enough
IDEAS NOT PROTECTED
so if D just takes ideas it isn’t enough to infringe
Norwezian v Arks
jump cuts in film = idea
not protected
Havenscroft v Herbert
no monopoly on historical facts
BUT D copied word for word
protected (infringement)
- not just taking ideas but expression too
Bagient & Leigh v Random hOUSE
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
Kenrick v Lawrence
hand illustration
- must copy exactly to infringe because work is simple
temple island v New English teas
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
Folley v Elliot
garment made following instructions (L work)
- NO s.17(3)
Nelson v Rye
issuing copies to public
- right applies regardless of whether international copies are legitimate or pirated
FAPL v QC Leisure
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)
OSA v Lecenbre
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
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