Copyright III Flashcards
Rights conferred by copyright
- The right of reproduction
- The distribution right
- Rental and Lending rights
- The right to perform, show or play the work in public (performing right)
- The right to broadcast, communicate and make the work available to the public
- The right to make adaptation
- The right to ‘authorize’
Section 37(a) – The Right of Reproduction
(1) Subject to the exceptions specified in Chapter 6 Copyright and Related Rights Act 2000 and to any provisions relating to licensing in this Part, the owner of the copyright in a work has the exclusive right to undertake or authorise others to undertake all or any of the following acts, namely:
- (a) to copy the work;
- (b) to make available to the public the work;
- (c) to make an adaptation of the work or to undertake either of the acts referred to in paragraph (a) or (b) in relation to an adaptation, and those acts shall be known and in this Act referred to as “acts restricted by copyright”.
Copyright infringement
There are 4 parts to the infringement test:
1. The act must be an act controlled by copyright
2. There must be a causal link between the work and the alleged copy of the work (one must be derived from the other)
3. The alleged copy must reproduce or use the whole or a substantial part of the work (substantiality test)
4. No defence or copyright exceptions applies
Act controlled by copyright
The types of acts done to the work must fall within the activities by the copyright owner.
Reproduction (copyright) is one of many ways you can use a work.
As you know, copyright covers many other activities. Copyright applies to most uses of the work, so this step is often easily satisfied.
Causal link
The defendant’s work involved or was derived from the claimant’s work (causal connection)
This step is about proving that the defendant accessed and/or used the claimant’s work.
The burden of the proof is on the claimant.
How can you bring evidence of access or link?
Direct evidence
Or
Indirect evidence (by inferring access)
Defences exist to prevent the claimant from inferring access to their work, when no direct evidence can be provided. The main defence is the ‘independent creation defence’. Another useful strategy is to claim that the claimant’s work was not original and mundane, or challenge that it is protected by copyright in the first place.
Whole or Substantial Part
The whole or a substantial part of the claimant’s work was used (substantiality test)
Identical copyright
- The whole of the work is copied verbatim
Literal copyright
- A part of the work is copied verbatim
Non-literal copying
- Elements of the work are copied but the form or the expression of the work has changed
Substantiality
Designers Guild v Russell Williams (2000)
Substantiality is ‘qualitative’ not quantitative.
Reproduction is deemed substantial, if the part reproduced captures the ‘originality’ of the first work.
What substantial means may also depend on:
- The impression on the audience
- The functional important of the part copied
- Whether the part copied is itself protected by copyright
Non-Literal Copying
Non-literal reproductions are reproductions of a work which ‘similar’ because they borrow ‘elements’ or the ‘look and feel’ of a work.
Idea / Expression Dichotomy
The idea-expression dichotomy provides the following rule:
- Ideas, facts and information can never be protected by copyright.
- Only the expression of ideas can be protected by copyright.
The aim of the idea/expression dichotomy is to preserve freedom of expression and creativity.
Fair Dealing
Section 50(4):
In this Part, “fair dealing” means the making use of a literary, dramatic, musical or artistic work, film, sound recording, broadcast, cable programme, non- electronic original database or typographical arrangement of a published edition which has already been lawfully made available to the public, for a purpose and to an extent which will not unreasonably prejudice the interests of the owner of the copyright.
Fair Dealing Factors
Three main conditions for ‘fair dealing’ to apply:
- Fairness
Courts rely on a number of factors to determine fairness:
- The quantity of the material used
- The impact of the infringer on the market for the right holder
- Whether the work has been published? - Sufficient Acknowledgement
- Identification of the work (by its title) and of the author (when known) - Recognised type of Fair Dealing
Types of Fair Dealing
- Research or Private Study
- Criticism or Review
- Reporting Current Events
- Caricature, Parody or Pastiche
- Libraries and Archives
Fair Dealing: Research or private study
Section 50(1):
Fair dealing with a literary, dramatic, musical or artistic work, sound recording, film, broadcast, cable programme, or non-electronic original database, for the purposes of research or private study, shall not infringe any copyright in the work.
Section 50(3):
The copying by a person, other than the researcher or private student, is not fair dealing where
(a) in the case of a librarian or archivist, he or she does anything which is not permitted under section 63, or
(b) in any other case, the person copying knows or has reason to believe that the copying will result in copies of substantially the same material being provided to more than one person at approximately the same time and for substantially the same purpose.
Fair Dealing: Criticism or Review
Section 51(1):
Fair dealing with a work for the purposes of criticism or review of that or another work or of a performance of a work shall not infringe any copyright in the work where the criticism or review is accompanied by a sufficient acknowledgement.
Fair Dealing: Reporting Current Events
Section 52(2):
It is not an infringement of the rights conferred by this Part if a copy of a work (other than a photograph) on current economic, political or religious matters or similar matters is made by a media business (within the meaning of section 28A(1) of the Competition Act 2002) and communicated by the media business to the public if such use is not expressly reserved, and the copy and communication are accompanied by a sufficient acknowledgement.
