Copyright Concepts Flashcards
Learn the basic concepts for copyright
Fixation requirement
Copyright arises automatically, but does not subsist in LDMA works unless and until they are recorded in writing or otherwise.
To what type of works does the criteria for originality apply?
LDMA works, not entrepreneurial works.
Can a derivative work be original?
Yes, and even if it infringes.
UK approach for originality
(1) Work is original if it originates with the author and is not copied;
(2) Author exercises the requisite labour, skill and judgement in producing the work (doesn’t require creativity).
EU approach to originality
Must be the author’s own intellectual creation.
Infopaq:
- 11 word snippet could be original if it was the author’s own intellectual creation (Software Directive previously only applied this to literary works)
- applied this standard across all other subject matter (and became the de facto harmonisation across the EU).
Important cases after Infopaq
BSA: GUI could be protected by InfoSoc Directive if it was the author’s own intellectual creation
FAPL v QC Leisure: Football matches not protected as they lack the necessary originality (choices must be free rather than dictated by rules)
Painer: Photographs require the author’s own personal touch - free and creative choices.
Football Dataco: creation of football fixtures was not an intellectual creation - need free and creative choices.
Meltwater: newspaper headlines capable of being original literary works.
Three ways a work can qualify
(1) Authorship, irrespective of whether the work has been published or not
(2) Country of first first publication
(3) Place of transmission for broadcasts
Co-authorship
Collaboration on a musical work: the writer of the music and of the lyrics are co-authors of the overall piece of work.
Joint authorship
Contribution by each author is not distinct from the others
Joint owners can:
- sue infringers independently
- bring an action against another joint author
- pass on authorship works (e.g. to heirs)
3 criteria for joint authorship
(1) Each of the authors contribute to the making of the work
(2) Work produced through process of collaboration
(3) Contributions not distinct
Commissioned works
Copyright in a commissioned work belongs to the author (i.e. the commissionee) but the court may imply an obligation to assign the copyright to the commissioner (as the beneficial owner).
Important to obtain assignment as part of commission contract.
Economic rights
- Reproduction right
- Distribution right
- Rental and lending right
- Public performance right
- Communication right
- Adaptation right
All of above in relation to whole or substantial part of work.
Interdependent elements of infringing the communication to the public right
- An intervention to give access
- Goes beyond the mere provision of physical facilities
- To a public not present where communication originates
- Where the public wouldn’t otherwise have access
- With intention/knowledge
- In hyperlinking cases, must be knowledge that it leads to infringing content
- Relevance of profit making nature
SGAE v Rafael Hotels
TV in hotel rooms
- Supplying rooms with a TV is not a communication to the public (it is a mere provision of physical facilities)
- Hotel intervened, with knowledge, to give access to protected work
- Was communicating to a new public as it was distinct from the public that the author had in mind when he licensed the broadcasts
OSA
Spa
- Communicating films and sound recordings to residents of a health spa = communication to the public
- Public: spa is likely to accommodate an indeterminate number (but fairly large) of people, and the guests are a new public
Del Corso
Dentists waiting room
- Playing radio in dental surgery = a communication,
- But not to the public because the number of patients was small, stable, determined group, and was not played for a profit making nature
- Patients caught by chance
REHA Training
Rehab centre
- Retransmitting TV broadcasts and installing TVs
- Retransmitting was a communication
- Patients were a new public
- Targeted intervention
- Profit making nature
TV Catchup
Live streaming TV
- Internet based live streaming service
- Roughly same time as original
- Difficult to say if a new public
- “New technical means” = new public
Svensson
Hyperlinking
- Linking to freely available material is not a comm to the public as it is not a new technical means and is thus not a new public
- Would be a comm to the public if it bypassed some technical restriction like a paywall as it would be to a new public
Bestwater
Embedding videos
- Applied Svensson
- Specific mode of linking irrelevant as to if to a new public
GS Media
Hyperlinking to unauthorised content
- Hyperlinks to protected works that were freely available, but posted without the copyright holder’s consent
- New public as the author had not contemplated making available to “any” public
- Only a C2P where:
Hyperlinker knew/reasonably expected to know that work was posted without consent
Hyperlinking was for profit (raises rebuttable presumption of knowledge) - Notice and takedown regime for private linkers
- Onerous obligation on linkers posting for financial gain
Filmspeler
Pre-loaded hyperlinks device
- Media players with pre-loaded hyperlinks to websites hosting unauthorised content is a C2P
- Pre-loading went beyond the mere provision of physical facilities
- The indespensible intervention