Copyright Cases Flashcards
Infopaq International A/S v Danske Dagblades Forening Case C-5/08 (CJEU)
What were the facts of this case?
- -Claimant: media monitoring and analysis business
- -Defendant: a professional association of Danish daily newspapers which assists its members with copyright issues
CONTEXT:
- -The claimant scanned newspaper articles from Danish newspapers and drew up summaries of those articles to send to their customers as part of a data-capture process. These summaries featured 11-work extracts of these articles.
- -After the data capture process in which the 11-word extracts were created, cover pages would be printed out featuring those extracts.
Defendant said that such activity requires the consent of the newspapers. Claimant disagreed and brought legal action against the defendant, claiming that the defendant should be ordered to acknowledge that the claimant did not require consent.
RESULT:
Copyright subsisted in 11-work extract;
Printing out of extract was not transient (defence invalid) therefore act of infringement/consent needed
What was the legal significance of
Infopaq International A/S v Danske Dagblades Forening Case C-5/08 (CJEU)?
–harmonised concept of originality across the EU
–Court ruled that original if it is the author’s own intellectual creation. Such an intellectual creation is achieved through the choice, sequence, and combination or words (words per se are not original) (this relates to literary works)
–Case established that there is no minimum word requirement for a literary work in which copyright subsists (The Court ruled that an extract of 11 words would constitute reproduction in part if it “contains an element which, as such, expresses the author’s own intellectual creation”);
–The Court also ruled that in order for a temporary act of reproduction to be transient, the duration of the act must be limited to that necessary for completion of the process and the copy must be deleted automatically without human intervention.
What was the legacy/effect of
Infopaq International A/S v Danske Dagblades Forening Case C-5/08 (CJEU)?
–In ‘SAS v World Programming’ (heard in UK Court), Judge rued that Infopaq has redefined test of what constitutes a substantial part: substantial part if the part contains elements which are the expression of the intellectual creation of the author of the work;
–Infopaq originality test applied to test for subsistence (whether copyright subsists): In ‘Bezpečnostní softwarová asociace’ (‘BSA’), the Court indicated that a graphic user interface would be protected under the Information Society Directive were it ‘its own author’s intellectual creation’.
-Infopaq originality test applied and developed in ‘Painer v Standard Verlags GmbH’, where the Court considered that a portrait photograph of a young girl could be considered an intellectual creation if the photographer had been able to stamp the work with their ‘personal touch’.
What is the UK test for originality?
Work must originate with the author and must not be copied (no requirement of novelty, aesthetic merits, nor inventiveness) (from ‘University of London Press’);
Author has exercised the requisite labour, skill, or judgement (‘Ladbroke v William Hill’).
How has the Infopaq (EU) test been received in UK?
In ‘Newspaper Licensing Agency Ltd v Meltwater Holding BV’ the UK test was applied as the judge considered the UK test for originality to be “not significantly altered by Infopaq …the full implications of the decision have not yet been worked out”.
In ‘Temple Island Collections Ltd v New English Teas Ltd’, the originality test from Infopaq was applied but the UK test was treated as interchangeable with the EU test.
By contrast, the Court in ‘SAS v World Programming’ considered the EU test to be of a higher standard than the UK test.
What are the facts of the case
Bezpečnostní softwarová asociace –Svaz softwarové ochrany v Ministerstvo kultury (BSA) Case C-393/09?
CLIAMANT: A Czech organisation called Security Software Association (BSA).
DEFENDANT: The Czech Ministry of Culture.
CONTEXT:
The claimant wished to set up a collective licencing scheme for computer software which included the rights to transmit works by cable television. The defendants refused to grant such a right. Essentially, the point at issue was whether the broadcast of a GUI of a computer program would infringe copyright (and would therefore require licencing).
What is the legal significance of
Bezpečnostní softwarová asociace –Svaz softwarové ochrany v Ministerstvo kultury (BSA) Case C-393/09
regarding what can fall within Article 1(2) Software Directive?
–Court ruled that GUI is not a computer program (so could not be protected as a form of expression of that program within the meaning of Article 1(2) Software Directive)
- -The Court ruled that the object of protection in relation to computer programs is the expression in any form of a computer program which permits reproduction in different computer languages.
- —-In contrast, a GUI merely enables communication between the computer program and the user, and so does not enable the reproduction of the computer program.
What is the legal significance of
Bezpečnostní softwarová asociace –Svaz softwarové ochrany v Ministerstvo kultury (BSA) Case C-393/09
regarding the circumstances in which GUI could have copyright protection?
–a Graphic User Interface could be protected under the Information Society Directive were it ‘its own author’s intellectual creation’ (could be a graphic work and copyright could subsist in graphic work if original) (using Infopaq test)
- -where the expression of the GUI is dictated by function, the GUI is not original
- —in such a circumstance, the idea and expression of the idea would become indissociable (and ideas are not protected under copyright)
Is there a communication to the public of a GUI through broadcasting?
In ‘BSA’, the Court ruled that there is no communication to the public of a GUI through broadcasting
This is because the GUI is therefore not communicated to the public in a way that allows individuals to have access to the “essential element” characterising the interface.
What are the facts of the case
Football Association Premier League Ltd v QC Leisure Case C-403/08 (CJEU)?
CLAIMANT: The FA Premier League (FAPL), which runs Premier League football in England.
DEFENDANT: QC Leisure, importers of equipment and cards for broadcasts in UK
CONTEXT:
FAPL licenced broadcasting rights for live transmission of football matches on a territorial basis for a term of 3 years. It awarded the rights on an exclusive basis. To maintain the territorial exclusivity, each licensee broadcaster undertook to prevent the public from receiving its broadcasts outside the territory. This was done by means of an encryption of the broadcast and making access of those broadcasts conditional on being in the territory. FAPL brought an action against the importers of equipment and cards that enabled people in the UK to watch Greek broadcasts.
What was the legal significance of
Football Association Premier League Ltd v QC Leisure Case C-403/08 (CJEU)
PART 1
–Case developed the test for originality established in Infopaq: The Court ruled that where creative choice is highly constrained by rules or functional considerations, the resulting work is unlikely to be original.
–Following this, the Court ruled that football matches are not protected under the Information Society Directive as they lack the relevant originality (matches must comply with rules of game, so there is no room for creative freedom).
–Court provided guidance on what constitutes transient or incidental coping (see other slide)
What is the transient or incidental copying defence for infringement?
According to Article 5(1) of the Information Society Directive (implemented in the UK by s. 28A CDPA 1988), a person making a copy will escape liability if:
I. The copy is transient or incidental;
II. The making of the copy is ‘an essential and integral part of the technological process’;
III. The copying either occurs to enable either transmission of the work in a network between third parties and an intermediary, or to enable a lawful use of the work; and
IV. The temporary copy has ‘no independent economic significance’.
Infopaq I and II considered points (i) and (ii) respectively. Both ‘Football Association’ and Infopaq II considered (iii) and (iv).
What was the legal significance of
Football Association Premier League Ltd v QC Leisure Case C-403/08 (CJEU)
PART 2
This case involved a buffer system of a decoder that generated a temporary technical copy of the broadcast.
This fells within the transient or incidental copying exclusion because:
- -receipt of a broadcast was lawful and thus the creation of the buffer copies did not give rise to liability.
- -there was no economic benefit that was either separate or distinct from the economic advantage derived from the lawful use of the work concerned. the buffer copies had no such economic value
What are the facts of the case
Eva-Maria Painer v Standard Verlags GmbH Case C-145/10 (CJEU)?
CLAIMANT: Painer, a photographer, specialised in taking photos of children in nurseries and day homes.
DEFEENDANT: A number of Austrian and German newspapers.
CONTEXT:
Painer, a photographer, specialised in taking photos of children in nurseries and day homes. She designed the background, determined the position and facial expression, and produced and developed the photos.
A number of Austrian and German newspapers (the defendants) published a portrait photograph taken by Painer years ago. The subject of the portrait photograph was a girl who had recently been found after having escaped her abductor of 8 years. The defendant also published a photo-fit (a digitally modified version of Painer’s photograph to demonstrate what the victim may have looked like at the time of printing).
Painer sued for copyright infringement
What is the legal significance of
Eva-Maria Painer v Standard Verlags GmbH Case C-145/10 (CJEU)?
PART 1
the court applied the Infopaq test in order to determine whether a photograph (specifically a portrait photograph) was original
The Court ruled that a photograph is original if is an intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that photograph
the Court ruled that the photographer had sufficient creative freedom because the photographer was able to:
In the prep stage: choose background, subject’s pose, lighting;
Whilst takig photo: choose framing, angle of view, and atmosphere; and
When selecting snapshot: choose developing technique and computer software.
This case also applied the Infopaq test to the case of non-literal copying (see other slide)
What is the legal significance of
Eva-Maria Painer v Standard Verlags GmbH Case C-145/10 (CJEU)?
PART 1
The Infopaq test has been developed with copying of discrete parts or fragments of a work in mind. This case extends the Infopaq test to where there is non-literal copying.
The Court ruled that there might be reproduction if the personal intellectual creation which justifies the copyright protection of the photographic template is still embodied in the photofit
What are the facts of
SAS Institute Inc v World Programming Ltd Case C-406/10 (CJEU), [2013] EWCA Civ 1482 (Court of Appeal)?
This section refers to two cases: One is a Court of Appeal, England and Wales, ruling. The ruling followed the ruling of the CJEU (the other case), in which the CJEU responded to questions posed by the Court of Appeal.
In this case, the defendants had developed a computer program that emulated the functioning of the claimant’s integrated set of computer programs that was used in statistical analysis. There was no suggestion that the defendant had had access to the source code for the claimant’s programs and the question arose of whether, in creating the competing software, it had infringed copyright whether in the computer program (protected under the Software Directive) or in the manuals for the SAS system, the latter being authorial works protected under the InfoSoc Directive.
What is the legal significance of
SAS Institute Inc v World Programming Ltd Case C-406/10 (CJEU), [2013] EWCA Civ 1482 (Court of Appeal)?
PART 1
–the CJEU ruled that neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program. In other words, the Court ruled that copyright protection does not extend to the software functionality, the programming language used and the format of the data files used by the program. However, the selection and combination of elements could contribute to the originality of the work.
Thus, copying functional elements of the computer program was not a copying of the form of expression of the intellectual creation.
–other slide deals with computer manual
What is the legal significance of
SAS Institute Inc v World Programming Ltd Case C-406/10 (CJEU), [2013] EWCA Civ 1482 (Court of Appeal)?
PART 2
Use of a computer manual, a literary work, as the basis for constructing a program, might be a reproduction of part of the manual if the part that was reproduced were to constitute a part that was its own intellectual creation.
(but note that ‘keywords, syntax, commands and combinations of commands, options, defaults, and iterations’ used in creating software are unprotected because they consist of ‘words, figures, or mathematical concepts’, which are not the intellectual creations of the author of the computer program)
What are he facts of case
Newspaper Licensing Agency Ltd v Meltwater Holding BV & ors [2011] EWCA Civ 890 (Court of Appeal)?
CLAIMANTS: NLA, newspapers
DEFENDANTS: Meltwater, media monitoring service
CONTEXT:
The defendant’s news-alert system forwarded links to web pages containing news stories relating to particular, pre-selected search terms, and a 256-character except (which included the title) from the story.
The defendant companies provided media monitoring services, automatically searching web-sites for terms of interest. The claimant newspapers operated a licensing system through the first claimant permitting the re-use of the content on its members web-sites. The defendant denied that it required such a licence, saying that the arrangement required, in effect, double licensing.
RESULT: CA upheld HC ruling that copyright is capable of subsisting in newspaper headlines.
What is the legal significance of
Newspaper Licensing Agency Ltd v Meltwater Holding BV & ors [2011] EWCA Civ 890 (Court of Appeal)?
In this case, the judge considered that the EU test for originality was just a re-statement of the UK test and that thus EU test did not qualify the UK test (EU test not authoritative);
Therefore applying the UK test:
The Court found that newspaper headlines are capable of being original literary works. Applying the UK test (Author has exercised the requisite labour, skill, or judgement (‘Ladbroke v William Hill’)): “considerable skill in devising [headlines] and they are specially designed to entice by informing the reader of the content of the article in an entertaining manner”
What are the facts of the case
Public Relations Consultants Associations v Newspaper Licensing Agency Ltd (Meltwater) [2013] UKSC 18 (Supreme Court) and Case C-360/13 (CJEU)
CLAIMANT: PRCA, media monitoring service
DEFENDANT: NLA, newspapers
CONTEXT:
The case examines whether Meltwater News, an electronic media monitoring service, was implicating its subscribers in copyright infringement by distributing reports that included the headline, opening text and extracts from claimant Newspaper Licensing Agency (NLA)’s articles.
The subscribers were browsing the internet and temporarily viewing copies on a screen.
what is the legal significance of
Public Relations Consultants Associations v Newspaper Licensing Agency Ltd (Meltwater) [2013] UKSC 18 (Supreme Court) and Case C-360/13 (CJEU)?
This case is related to one of the defences for infringement (making a temporary copy).
The CJEU ruled that browsing internet and temporarily viewing copies on a screen was excluded under Article 5(1): Temporary screen copies were transient and incidental to process of viewing the material placed on the internet with right owners’ consent; cache copies were not transient but were incidental to that process (manually deleted or overwritten without human intervention). Both were an essential part of the technological process of viewing websites. This conclusion was consistent with the three-step test in Art. 5(5)
so this case provided clarification on when article 5(1) applied and also an example of three-step test being applied to exclusions
what is the “three-step” test in relation to exceptions?
The defences listed in the directive are subject to the so-called “three-step test”. This test requires that:
• The exceptions must be applied only to certain special cases;
• Must not interfere with the normal exploitation of the work/subject-matter;
• Must not prejudice the legitimate interests of authors/right holders.
What are the facts of this case
Creation Records Ltd v News Group Newspapers [1997] EMLR 444 (High Court)
CLAIMANTS: Music record company
DEFENDANTS: Newspapers
CONTEXT:
An unauthorised person took a picture of a scene that was to be photographed, with the photograph being the album artwork for a popular music group. The scene consisted of various objects assembled in and around a drained swimming pool at a countryside hotel. The unauthorised photographer sold his photo of the scene to newspapers. The claimants sued for copyright infringement and breach of confidence.
what is the legal significance of this case
Creation Records Ltd v News Group Newspapers [1997] EMLR 444 (High Court)
This case relates to what is considered subject-matter eligible for copyright protection under s 1(1) CDPA 1988.
The Court ruled that a static scene was not a dramatic work, nor an artistic work:
For a creation to qualify as a dramatic work, it must be a work of action that is capable of being performed; thus the Court ruled that a static scene such as in this case was not a dramatic work.
Furthermore, the Court ruled that the creation was not a sculpture (“no elemenst have been carved, modelled, or made in any other ways in which sculpture is made”).
what are the facts of this case
Sawkins v Hyperion Records Ltd [2005] EWCA Civ 565
Sawkins produced what are termed ‘performing editions’ of four of the works of 17th C composer Lalande. This involved Sawkins making many editorial interventions, including ‘figuring of the bass’, adding ‘ornamentation’, and performance directions. Hyperion made recordings of performances of the work of Lalande by musicians using Hawkins’s scores (‘performing editions’). Sawkins brought an action for infringement of copyright and of his moral rights.
Question considered in case: Does copyright subsist in performing editions of works that are clearly outside copyright?)
ULTIMATE RESULT: The judge held that there had been infringement in 3 of the 4 claimed instances, and that Hyperion had infringed Sawkins’s moral rights by not identifying him as the author of the 3 editions in accordance with s.77 CDPA 1988. Hyperion appealed and the appeal was dismissed.
what is the legal significance of this case
Sawkins v Hyperion Records Ltd [2005] EWCA Civ 565
PART 1
The UK test for originality was applied: The Court ruled that the effort, skill and time that Sawkins spent in making the performing editions was sufficient to make them “original”, even though they were based on the scores of musical works composed by Lalande. They were also “musical” within the meaning of the CDPA 1988.
Sound is more important than the notes…..
The labour, skill and judgement relevant to this assessment was that which affected the totality of sounds produced by the musicians (not that which related to the discovery/retreival of the original scores, nor the work in laying out the scores on the page).
also relevant in relation to moral rights (see other slide`)
what is the legal significance of this case
Sawkins v Hyperion Records Ltd [2005] EWCA Civ 565
PART 2
The ruling is also relevant in relation to moral rights. In particular, the attribution right.
The attribution right provides that, when the work is dealt with in certain ways, authors and directors have the right to be identified as author of the work.
In this case, the Court ruled that merely thanking a person for ‘preparing materials’ was held not to have identified the person’s authorship.
what must be shown in order to prove that a right of attribution has been infringed?
The attribution right provides that, when the work is dealt with in certain ways, authors and directors have the right to be identified as author of the work. In order for the right of attribution to be infringed, it is necessary to show that:
I. The author has not been properly identified;
II. The work has been dealt with in circumstances under which attribution is required; and
III. None of the defences or exceptions apply.
what matter is capable of copyright protection under s 1(1) CDPA 1988?
Under s 1(1):
(1) Copyright is a property right which subsists in accordance with this Part in the following descriptions of work—
(a) original literary, dramatic, musical or artistic works,
(b) sound recordings, films or broadcasts, and
(c) the typographical arrangement of published editions.
