Copyright Slides

Question 1

How is copyright defined in section 1(1) CDPA 1988?

Answer 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.

Question 2

What is meant by a property right regarding copyright?

Answer 2

A property right:

(i) is transmissible as personal or moveable property (s 90(1) CDPA);
(ii) provides owner of copyright with exclusive right to do acts restricted by copyright in copyright works (s 2(1) and 16(1) CDPA);
(iii) essence = right to prevent others from doing the ‘exclusive acts’ without permission of copyright owner.

Question 3

What does Art 9(2) TRIPS state regarding ideas/expression dichotomy?

Answer 3

“Copyright protection shall extend to expressions and to ideas, procedures, methods of operation, or mathematical concepts as such.”

Question 4

What is meant by:
(i) national treatment;
(ii) independence of treatment;
under the Berne Convention?

Answer 4

National treatment: works originating in one contracting state must be given the same protection in each of the other contracting states as latter grants to the works of its own nationals.

Independence of protection: protection is independent of the existence of protection in the country of origin (but if state provides longer term protection than minimum, protection may be denied once protection in country of origin ceases).

Question 5

What is the minimum term of protection under the Berne Convention?

Answer 5

Life of author + 50 years

Question 6

What constitutes a literary work under section 3(1) CDPA?

Answer 6

(1) In this Part–
“literary work” means any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes—
(a) a table or compilation (other than a database);
(b) a computer program;
(c) preparatory design material for a computer program; and
(d) a database
“dramatic work” includes a work of dance or mime; and
“musical work” means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music.

Question 7

What is section 3(2) CDPA 1988 (re fixation)?

Answer 7

(2) Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise; and references in this Part to the time at which such a work is made are to the time at which it is so recorded.

Copyright does not subsist until fixations; at that point the works are deemed ‘made’.
Immaterial whether or not this is done wit author’s permission.

Question 8

Under which Directive is computer programs harmonised? What constitutes/does not constitute a computer program?

Answer 8

Harmonised under Software Directive;
No definition of computer programs, however includes:
(i) source code, assembly code, object code;
(ii) software and firmware.

Computer programs does not include:

(i) GUIs (mere elements of software allowing use of features);
(ii) elements relating to functionality, programming language, and file formats (see ‘SAS’ case).

Question 9

What rights does the Database Directive provide?

Answer 9

(1) Copyright in databases;

(2) sui generis (“of its own kind”) database right in databases.

Question 10

How are databases defined under section 3A CDPA 1988?

Answer 10

(1) In this Part “database” means a collection of independent works, data or other materials which—
(a) are arranged in a systematic or methodical way, and
(b) are individually accessible by electronic or other means.

Question 11

What constitutes a dramatic work under UK Copyright law?

Answer 11

No definition given. However, dramatic works include:

(1) a work of dance or mime;
(2) script for film or play;
(3) choreographed works;

Must be a ‘work in action’ that is ‘capable of being performed’ before an audience.

Question 12

What is meant by “music” under section 3(1) CDPA?

Answer 12

a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music

(protects the music, not the lyrics which are protected separately under literary works)

Question 13

What constitutes an artistic work under section 4(1)?

Answer 13

(1) In this Part “artistic work” means—
(a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality,
(b) a work of architecture being a building or a model for a building, or
(c) a work of artistic craftsmanship.

Question 14

What is meant be “films” under section 5B CDPA 1988?

Answer 14

Recording on any medium from which a moving image may be produced by any means.

Signal is being protected, not the content of the signal.

Soundtrack accompanying film is treated as part of the film.

Question 15

What is meant by “sound recordings” under section 5A(1) CDPA 1988?

Answer 15

(1) In this Part “sound recording” means—
(a) a recording of sounds, from which the sounds may be reproduced, or
(b) a recording of the whole or any part of a literary, dramatic or musical work, from which sounds reproducing the work or part may be produced,

regardless of the medium on which the recording is made or the method by which the sounds are reproduced or produced.

Question 16

What is meant by “broadcasts” under section 6(1) CDPA 1988?

Answer 16

(1) In this Part a “ broadcast ” means an electronic transmission of visual images, sounds or other information which—
(a) is transmitted for simultaneous reception by members of the public and is capable of being lawfully received by them, or
(b) is transmitted at a time determined solely by the person making the transmission for presentation to members of the public,

and which is not excepted by subsection (1A); and references to broadcasting shall be construed accordingly.

(1A) Excepted from the definition of “broadcast” is any internet transmission unless it is—

(a) a transmission taking place simultaneously on the internet and by other means,
(b) a concurrent transmission of a live event, or
(c) a transmission of recorded moving images or sounds forming part of a programme service offered by the person responsible for making the transmission, being a service in which programmes are transmitted at scheduled times determined by that person.

Excludes emails.

Question 17

What is meant by “typographical arrangement of published editions” under section 1(1)(c) CDPA?

Answer 17

Definition–a published edition of the whole or any part of one or more literary, dramatic or musical works.

Protection is given to the typographic arrangement–i.e. the overall layout of words or symbols on the printed page, how they appear.

Question 18

What is meant by “originality” in very general terms?

Answer 18

(1) Applies only to authorial works;
(2) Not the same as novelty or inventiveness. Concerned with the relationship between the author and the work,
and what they did to create the work;
(3) lies in expression of ideas, not the ideas themselves;

Question 19

What is the UK approach to originality?

Answer 19

(1) Originates with author and is not copied;
(2) no requirement of novelty, inventiveness, or aesthetics.
(1 and 2 from ‘‘University of London Press’ case)
(3) Author has exercised the requisite labour, skill or judgment in producing the work (‘Ladbroke’)

Labour, skill, or judgement must be substantial.

Question 20

What is the EU approach to originality?

Answer 20

(1) Must be the author’s own intellectual creation;

(2) subject-matter bears the author’s ‘personal mark’

Question 21

When does a work qualify for copyright protection under CDPA 1988?

Answer 21

A work qualifies for copyright protection if, at the ‘material time’, the author of the work was a ‘qualifying person’ (s.154(1) CDPA)
– Material time for unpublished LDMA works = date work made
– Material time for published LDMA works = author’s status at date of first publication

Question 22

Who constitutes a “qualifying person” re qualification?

Answer 22

1. A British citizen, national, or subject; a national of an EEA state; a person within certain categories of the British Nationality Act 1981; or a person domiciled or resident in, or a body incorporated in, part of the UK or EEA (s.154(1)(a))
2. An individual domiciled or resident in, or a body incorporated under the law of, a country to which the law has been ‘extended’ (s.154(1)(b))
3. Citizen or subject of, and an individual domiciled or resident in, or a body incorporated under a law of, a country to which the CDPA has been ‘applied’ (s.159(1))

Question 23

Who is the author of:

(1) LDMA works?
(2) Entrepreneurial works?

Answer 23

(1) person who creates the work (person who originates the protectable elements of the work).
(2) the person responsible for making the arrangements for the making of the work.

Question 24

Who is the author of:

(1) Computer-generated LDMA works?
(2) Works of unknown authorship?

Answer 24

(1) The person by whom the arrangements necessary for the creation of the work are undertaken.
(2) ??? In this case, duration of protection is limited to 70 years from the date on which the work is made available to the public, or from when made if not made available before the expiry of that period.

Question 25

Who is the author of:

(1) Sound recordings?
(2) Films?
(3) Broadcasts?
(4) Typographical arrangements?

Answer 25

(1) Producer. The producer is the ‘person by whom the arrangements necessary for the making of the sound recording are undertaken’ (s. 178).
(2) The producer and the principal director of the film.
(3) The person who makes the broadcast.
(4) The publisher.

Question 26

What is the definition of:

(1) Co-authorship?
(2) Joint authorship?

Answer 26

(1) ‘a work produced by collaboration of the author of a musical work and the author of
a literary work where the two works are created in order to be used together’ (s.10A)
(2) Produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author/s (s.10(1)) e.g. film producer and director

Question 27

What are the implications of joint authorship/ownership?

Answer 27

1. can sue an infringer independently;
2. Can bring an action against another joint owner as no other owner can reproduce the work, license it or do anything else with it, without the consent of the other owners;
3. Can pass on ownership rights, e.g., to heirs.

Question 28

Who is the first owner in an employee work?

Answer 28

Where [LDMA work or film] created in the course of employment, in the absence of an agreement to the contrary, employer is the first owner (s.11(2)).

Usually, author is first owner.

Question 29

How does one determine whether the work was made in the course of employment?

Answer 29

Depends on circumstances of case: does making the work fall within the activities employer could reasonably expect/demand from employee in the scope of their employment

Question 30

Who owns copyright in commissioned work?

Answer 30

Copyright in acommissioned work still belongs to the author BUT court may imply obligation to assign the copyright to the commissioner on the grounds that the commissioner is the beneficial owner of the copyright. (What would the officious bystander think?)

Question 31

What is the term of protection of copyright?

Answer 31

Period of protection depends on the work (and when it was created)
— Minimum term under Berne Convention is Life + 50 years, but many countries have adopted Life + 70 years
— Successive extensions to term of protection as a result of the EU Term Directive and other legislation, e.g., in relation to sound recordings in 2011
— Can lead to copyright works having ‘revived copyright’ (see recently re industrially produced works of artistic craftsmanship)
— Foreign works:
– period of protection of works of non EEA origin is same as that which the work would receive in the
country origin (principle of ‘comparison of terms’ rather than ‘national treatment’).
– So, Life + 70 years does not apply if that is not the term in the country of origin (s.12(6))

Question 32

What is the term of protection for joint authorship etc. specifically?

Answer 32

In general: 70 years from end of calendar year in which author dies
Joint authorship: 70 years from year last author dies
Co-authored songs: treated in same way as above
Computer-generated works: 50 years from end of year work was made
Industrially-produced works of artistic craftsmanship: life plus 70 after repeal of s 52 CDPA
Works of unknown authorship: 70 years from date of creation or, if during that period, he work is made available to the public, then from that date

Question 33

What is the term of protection for films?

Answer 33

— 70 years from the last to die of: the principal director; the author of the screenplay; the author of the dialogue; or the composer of music specially created for and used in the film (s. 13B(2))
– OR if during that period, the film is made available to the public, 70 years from the end of the year in which the film was first made available (s.13B(4)(b), (10)
— However, Term Directive requires recognition of copyright in the first fixation of a film (for 50 years from the making of the fixation) and ‘the cinematographic or audiovisual work’ (life + 70 years of the four categories above)

Question 34

What is the term of protection for sound recordings?

Answer 34

– 50 years from the end of the year in which the recording was made (s.13A(2)(a)) OR
– If during that period, the sound recording is published, 70 years from the year of publication (or communication to the public/played in public) (s.13A(2)(b),(c))

Question 35

What is term of protection for broadcasts, typographical arrangements, database rights?

Answer 35

— Broadcasts: 50 years from when the broadcast was first made (s.14(2))
— Typographical arrangements: 25 years from the year of first publication (s. 15)
— Database rights: 15 years from completion or making available; substantial changes resulting in new investment results in new database (Regulation 17, Copyright and Rights in Databases Regulations 1997)