Cases Flashcards
Infopaq
11-word extract protectable by (c), reproduction in part under Art. 2(1) InfoSoc Directive
CJEU - first implementation of InfoSoc Directive, harmonised approach across all types of (C) works. “Author’s own intellectual creation”.
Defence - transient reproduction? Ruled not transient as printed.
Infopaq progeny cases
BSA Painer FAPL v QC Leisure Funke Medien Levola Cofemel Football Dataco v Yahoo
Sawkins v Hyperion
Originality in modification, assessed under “old” UK law (CDPA 1988) with skill, labour and judgement criteria. Likely that outcome would be different following Infopaq.
Moral rights - attribution
Modernised notation inc. figured bass on old composition.
BSA
Interface of computer program could be artistic work if AOIC, but not if dictated by technical function
TuneIn
C2P - summarises the case law
2 key criteria: communication (inc. means) and public (new public)
Connection, not transmission, is still communication, authorising infringement by users
Cartier
TM case - website blocking orders, obligations of ISPs
Summary by Arnold J on all types of remedies.
Proportionality - submissions made by user organisations (inc. Open Rights Group)
Rights-holders responsible for extra costs incurred in actioning a WBO (ISPs caught up in someone else’s infringement)
Nova v Mazooma
Snooker game - not a dramatic work, re: infringement, sequence of images differ based on user’s input, no unity
No access to/copying of source code, generalised high-level ideas not substantial part - no infringement
Creation Records
No (c) in “scene”/objet trouvée, costumes, assessed under UK law (CDPA 1988) with closed list of subject-matters - not a sculpture or dramatic work (not a work of action).
Temple Island v New English Teas
Red bus case - held infringing, assessed under both SLJ and AOIC criteria. Criticised - Expression of idea/concept?
Possible to infringe (c) by recreating a scene, there would have been ways which would not have been inappropriately based on C’s work
SAS v World Programming
CA - Infopaq may have changed UK legal test for originality. Programming language could be (c) work, literary?
InfoSoc Directive seems to have raised the hurdle to obtaining (c) protection (Arnold J)
Substantial part now to be assessed by AOIC
William Hill
originality
infringement - value, “what is worth copying is worth protecting” (not to be used as test)
Designer’s Guild
Infringement (SC) - Judge inferred derivation, access to (c) work - opportunity to copy from trade fair exhibition.
Substantial part - similarity beyond expectation from mere common ideas
Qualitative, not quantitative, relative importance of what D has taken
Considering increasing generality eventually reaches a point where it no longer meets (c) criteria, likely to be an idea
Tidy v Natural History Museum
Picture of dinosaur - reduced size of cartoons of dinosaurs, added colour background, not derogatory treatment
Author’s opinion is irrelevant
Mitchell v BBC
Mitchell sent idea for TV show characters to BBC, objective similarity so BBC had to prove independent creation and was successful (creation began before idea sent, similar sources of inspiration)
John Kaldor v Leone Fashions
Copying - sample of fabric provided by JK but not used by LF, importance of evidence as to creation of design
Svensson
Hyperlinking to freely-available articles, no new public or new means, no C2P
NB: if bypassing a paywall, would be C2P
GS Media
Hyperlinking to unauthorised publication - new public (not contemplated by original rights-holder), knowledge/expectation that linking to works without consent.
Notice and take down for hyperlinks
Presumption of knowledge if for profit, rebuttable
NLA v Meltwater
Newspaper headlines capable of being original literary works, no de minimis requirement or need for substantial time spent.
Temporary copying - browsing, viewing on screen falls within transient reproduction defence under InfoSoc Art. 5(1), downloading (inc. emails) does not.
HC - Infopaq has “restated but not significantly changed” approach, upheld by CA
Levola
Originality in the taste of cheese - not expressing AOIC
Cofemel
No need for aesthetic value, only AOIC, to be allowable subject-matter
Funke Medien
Afghan papers - restricted by format of report, drafted in neutral and standard terms.
Can only be protected if reflects author’s own personality, expressed by free and creative choices - no originality so no (c)
NB: misuse of CI is a separate issue
Painer
Free and creative choices in portrait photography - no, restricted by format
Missing child’s school photo published
FAPL v QC leisure
Greek decoder cards (cheaper) used in UK, cf. SGAE
CJEU - Football match not a dramatic work, not original as no room for creative freedom (constrained by the rules of the game)
NB: broadcast may be protected separately
C2P - communication in transmission through TV and speakers, new public not contemplated by rights holder
Levola
Originality in the taste of cheese - not expressing AOIC
Test:
1. original (AOIC)
2. expression of AOIC
3. clear, precise and objective (taste of cheese fails here)
Macmillan
derivative works
Renckhoff
Photo used by student in presentation, put on website by school - new public not taken into account, C2P
cf. Svensson, reproduction here vs linking (no option to remove linked site)
Green v NZ Broadcasting Corp
Opportunity Knocks - question of unity in dramatic work, must be reproducible, TV programme format features did not have sufficient specificity/detail or have bearing on other features.
Norowzian v Arks
Guinness advert - HC said not a dramatic work as could not be performed before an audience (jump cutting made impossible)
CA - liberal view, films could be “performance” under s.3(1) CDPA - “performance by artificial means”
Interlego
derivative works - tracing is not original despite SLJ
Noah v Shuba
Clauses in employment contracts re. (c)
Islestarr v Aldi (Charlotte Tilbury)
Pattern in foundation - not permanent through use but successful in arguing (c) of graphic work
Merchandising Corp v Harpbond (Adam Ant)
Makeup not artistic work, not intended to be permanent, face was not “canvas”
Lucasfilm
SC - Stormtrooper helmet not a “sculpture” under UK closed list, primary function was utilitarian, lacked artistic purpose
NLA v M and S
“work” is the layout of the newspaper as a whole, not each individual literary work appearing in the paper (typographical arrangement)
Repeated copying of different works, when each copying was not a substantial part, was still not overall a substantial part
FreshTrading v Deepend (Innocent)
Beneficial interest - ownership with commissioner despite no consideration - dissolution of commissionee before consideration given
R Griggs v Evans (Doc Martens)
commissioned works - officious bystander assessing at time of contract who was going to have (c) ownership
Meridian v Richardson
GSK forecasting software - Meridian was commissionee, Richardson helped Meridian but refused to assign (c).
Richardson successful - payment not enough
Homes v McAlpine
Joint authorship - must consider more than just “who pushed the pen”
Slater v Wimmer
Joint authorship in entrepreneurial works:
Producer - makes arrangements necessary for making of film (funding, equipment etc.)
Director - exercises creative control over making of film (e.g. cameraman)
Hadley v Kemp
Spandau Ballet - song (music and lyrics) was complete when presented to band, no joint ownership as a result of “interpretation” by the band as no significant and original contribution
(no discussion of rights within band at the time)
Fisher v Brooker
Whiter Shade of Pale - organ solo made a distinctive and significant contribution to the overall composition (joint author)
Martin v Kogan
HC, joint authorship (Floyd LJ): collaboration jointly with common design not derivative not just "who did the writing" both must contribute significant amount of skill judged by Infopaq criteria contributions not distinct intention not required final say is not conclusive shares not required to be equal
Stevenson v Macdonald
(c) ownership in lectures, company resources used but not ordered to do so in course of employment - (c) with employee (decided under old law, 1952)
Brigid Folely v Ellott
Knitting pattern - no infringement by following instructions, but (c) in instructions as literary work
NB: reproduction right would be infringed by 2D/3D in artistic works.
Pelham
Kraftwerk - sound/broadcasts, (c) in signal not content
infringement of reproduction right, 2s sample
FD by quotation would require intention to enter into dialogue, recognisable to the ear
Filmspeler
Device with hyperlinks to unlawfully stream content:
Marketing of device is C2P
Indispensible intervention, makes easier to find (facilitating, authorising)
pre-installing links beyond “mere” provision of physical facility
new public (not particularly skilled in using internet)
Pirate Bay (Ziggo)
Platform for uploading © content, with means for indexing, is C2P – easier access, not mere provision of facilities, no requirement that otherwise impossible, could not be unaware, profit-making
indexing feature was key in CJEU decision ruling C2P
House of Harlot
Cropping photo infringed as distortion, even though not prejudicial to honour/reputation of author
Successful
Football Dataco v Yahoo
C2P, intention to target members of public, not simply where accessible
Assessed by e.g. language, top-level domain name
Act might also take place in territory where uploaded.
Not “sweat of the brow” for database (c) to subsist, here the arrangement was constrained by rules
Newzbin
P2P file sharing, WBO. Website provided means for infringement, entirely within control, did nothing to prevent
Bestwater
Applies Svensson in context of framing/embedding videos on websites
Mode of linking irrelevant if new public
Peek Cloppenburg v Cassina Spa
CJEU ruled distribution act limited to transfer of ownership of object (not displaying artistic works in shop window)
Knoll
CJEU - infringement of distribution right if invited by targeted advertising to acquire ownership of original/copy of that work.
UsedSoft v Oracle
Under Software Directive re. computer programs.
Exhaustion of rights where made available by transferring the copy to the user for indefinite period.
Further transfer requires reseller to destroy their copy.
Ranks
no exhaustion of rights in lawfully made back up copies of computer programs
Tom Kabinet
current CJEU referral about digital exhaustion of © under Art 4(2) InfoSoc. Second-hand eBooks
Jennings v Stephens
character of audience, not presence/absence or payment, for deciding whether a performance is “in public”
CBS v Amstrad
Twin tape recorders, facilitating infringement wasn’t enough, up to user whether to infringe or not (restrictive interpretation of authorisation)
Supplier was not a joint tortfeasor
SGAE v Rafael Hotels
CJEU - C2P in distribution of signal by means of TV to hotel guests (intervention) public (indeterminate number of hotel guests) new public (distinct from public author had in mind)
OSA
Films/sound recordings to health spa residents is C2P
Del Corso
Dentists’ waiting room, radio broadcast, communication but not to public (small, stable, not profit-making)
Reha Training
Rehab centre, C2P by retransmission, new public, targeted intervention, profit-making nature (benefit and impact on attractiveness)
ITV v TV Catchup
streaming live broadcasts C2P, difficulty on whether “new public” but new technical means is per se transmission to new public
Pasterfield v Denham
not derogatory to produce smaller version of drawing w/omissions and colour variations
Confetti Records v Warner Music
Garage track superimposed with rap, not derogatory treatment
Random House (Da Vinci Code)
Copying of ideas, not of the expression of those ideas, no infringement (expressed as fact vs as fiction)
Summarised UK approach set out in Designer’s Guild
Jules Rimet v FA
Lion in football kit, idea and not expression (not infringing)
Was successful on Passing Off case (goodwill)
Navitaire v EasyJet
Claimed infringement by copying of “look and feel”, but no access or copying of source code so no infringement
(analogy - recreating pudding without copying recipe)
ECB v Tixdaq
Website where users upload clips of cricket match with 170 word commentary
Test for degree of reproduction qualitatively and quantitatively, extent of exploitation of investment by broadcaster/producer
Clips were substantial part - key parts of game (6, wicket)
cf. Pelham (short clips)
Spiegel Online
Freedom of information and of the press not capable of justifying further derogation from exclusive rights of reproduction/C2P
Quotation - hyperlinking sufficient
Infopaq II
Considered Art. 5(5) - transient reproduction
Integral and essential part of technological process, must be entirely internal but ok to start with human (e.g. scanning newspapers)
Lawful use: making a summary is (fairly broad construction)
No independent economic significance, separable from that obtained by lawful use
Ashdown v Telegraph
Publication of minutes of private meeting with Tony Blair
3 factors relevant to fairness:
1. Commercial competition (e.g. author’s own publication, inc. potential future)
2. Prior publication
3. Amount taken, importance thereof
No FD as no criticism/review of work, but contents thereof
Hyde Park v Yelland
Stills from security footage published by The Sun
Fairness judged by objective standard of fair minded and honest person, for the purposes of reporting CE
Stills were not necessary to make the point in the story
HRH Prince of Wales v Associated Newspapers
Prince Charles’s diaries about HK/China
Copies had been provided to a small circle of c.75 people, this did not render the work publicly available
TimeWarner v Channel 4
Clockwork Orange - FD covers criticism/review, C/R of decision to withdraw inseparable from C/R of film itself
Hubbard v Vosper
Criticism of scientology book.
Number and extent of quotations relevant
Criticising scientology but also the work, inseparable so covered by FD
Pro Sieben
FD to use extracts from another TV programme, intention to criticise journalistic standards of plaintiff
Deckmyn v Vandersteen
Parody - no need for original character or acknowledgement
Balance between rights/interests of (c) holder and freedom of expression of users - discriminatory message, legitimate interests of author inseparable from parody.
FAPL v Panini UK
Football cards
Incidental use of lion emblem on stickers - NO, essential to the object of creation
Lyon
Public interest defence agreed by court in relation to faulty breathalysers for personal use
Pinckney v Mediatech
Owner can sue in each MS where content placed online is protected/accessible, but Court’s jurisdiction only in that MS
Hejduk
Applied Pinckney - Causal event of harm in DE but also caused damage in AT
No requirement for targeting, only accessibility
MCA Records v Charly Records
Director of company liable where joined together in concerted action to secure that infringing acts were done
Grenade v Grenade Energy
Evidential presumption that acts done by co were done by sole director/shareholder, director had to show why not initiated/controlled by him
Gator Sports
Burden of proof not on single director to disprove allegations of personal liability (cf. Grenade)
Scarlet Extended
Order requiring ISP, whose service had been used for infringing P2P copying, to screen all content uploaded - in breach of Art. 15 (no requirement for general monitoring)
WBO cases
20th Century Fox v BT, v Sky Paramount v BSkyB (x2) Dramatico Entertainment v BSkyB UPC Telekabel Cartier FAPL v BT
UPC Telekabel
Endorsed ability of courts to grant WBOs (CJEU)
Norwich Pharmacal
Order to reveal relevant information such as names/addresses of infringers
Magill
Refusal to licence (c) in TV listings was abuse of dominant position by broadcasting organisation
Nintendo v PC Box
re. TPMs, use of a device enabling pirated/lawful but unauthorised games to be played on Nintendo console was a circumvention of TPMs.
Nintendo also recently got a WBO against website selling TPM circumvention items
Panayiotou v Sony Music Entertainment (George Michael)
Agreement with Sony not set aside
Obiter: although agreement restrictive of trade, was reasonable to recoup investment (Sony’s interests)
Microsoft v Commission
CJEU - Microsoft was ordered to make information about server systems available to interested parties (re. operability)
IMS Health
CJEU - refusal to licence a company wishing to compete in the same market was abusive, if competitor wants to and is prevented from introducing a new product to market
British Horseracing Board v William Hill
No database protection in “runners and riders” database because investment was of the “wrong sort” - distinction between creation vs arrangement of information
WH acts of extraction and reutilisation, but not qualitatively/quantitatively significant
Fixtures Marketing Ltd (FML)
Football fixture lists not protected by database right as investment was of the “wrong sort” - distinction between creation vs arrangement of information
BSkyB v Digital Satellite Warranty
Customer databases protected by sui generis database right
Directmedia Publishing
List of 1000 German poems protected by sui generis database right
Transfer of materials from one database to another could still amount to extraction (even following on-screen consultation and individual assessment)
Football Dataco v Sportradar
“live data” on football matches protected by sui generis database right.
Significant costs in obtaining and verifying data (ex-footballers at matches)
Not creating new information by recording e.g. goals scored
Customers extracted a substantial part when they clicked on links to SR’s website, evidence established data flow from FDC’s database
Accessibility in UK not sufficient, must be targeted at persons in UK
Ryanair v PRAviation
Flight data obtained by screen scraping Ryanair’s website
Lawful use provisions did not apply, but database right did not subsist in Ryanair’s database
