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Intellectual Property > [CR] Criteria for Protection > Flashcards

[CR] Criteria for Protection Flashcards

1
Q

What are the main criteria (4) for protection? + Authority

A

CDPA 1988

  1. Must be recorded
  2. Must be original (LDMA) or just not copied (Ent)
  3. Must be sufficiently connected to the UK
  4. Must not be barred from public policy
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2
Q

What are some common characteristics of OG?

A
  • Rs between author/creator + work.
  • Author must exercise preq intellectual qualities in producing the work (focus: input)
  • EU: manner worked expressed. Originality of expression.
  • Derivative works: can be original.
  • Threshold: very low
  • Context: need to account of socio-political-cultural context.
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3
Q

Natural rights POV on OG?

A

protect personality of authors. No protection to works necessary for others to exercise natural right

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4
Q

Rewards POV on OG?

A

incentive is making protection readily available

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5
Q

Utiliatrian POV on OG?

A

protects only those produced for the incentive provided by CR. No trivial or insubstantial work.

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6
Q

Realistic POV on OG

A

takes into acc other things like certainty & economy. Tends to lead courts to diluting OG standard to protect works that have not been copied.

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7
Q

Where did the British conception of originality originate from?

A

University of London Press

1) OG from author and not copied
2) Author exercised: Labour, skill, judgement

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8
Q

What took the UK OG concept to highest level?

A

Ladbroke v William Hill

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9
Q

Does the UK OG test require substantial SLJ? What have the courts said regarding how to measure substantial

A

Merchandising Corp v Harpbond

Facepaint ≠ Painting = ≠ OG

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10
Q

Do you require a certain type of SLJ to confer OG? If so, what are some exceptions?

A

Interlego v Tyco: tracing/copying will never make OG

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11
Q

Where did the EU concept of OG come from?

How did the UK implement this?

A

Software and Database Directive

  • Computer program/database protected so long as authors own intellectual creation*
  • CoJ: extended to all works.

UK implementation: Database Regulations 1977

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12
Q

What is the key case regarding EU OG conception

A

“Infopaq (own intellectual creation)

  • creative choices [football dataco]
  • arranging words [Infopaq]
  • personal touch [Panier]
  • none when dictated by function [BSA]
  • even if highly constrained [SAS]
  • pre-expressive choices irrelevant (except in photos) [Panier]”
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13
Q

Are sports original in the EU OG concept?

A

No. Football Associations premier league

Sports ≠ OG

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14
Q

What are 3 criticisms of the EU concept?

A

1) Is this constitutionally sound?
2) Possibility of judicial activism
3) One size fits all?

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15
Q

What is “own intellectual creation”? How does the court determine factors to measure this?

3 cases.

A

It must reflect the authors personality = exercising creative choices.

Infopaq: Words in combination but not isolation
Panier: Personal touch (portrait)
Football Dataco: arrangement of data and creative choices.

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16
Q

What is considered “non-functional” with EU standards? Why?

A

If dictated by function ≠ OG

BSA: GUI is limited w tech functions. Other alternative methods limited.

Football Ass PL: sporting event ≠ OG bc rules

Inst Inc v World Prog: ^ rules and functions = v OG

Why? BC no choice.

17
Q

What is “creative” and how is a choice creative?

A

Gervais: concious human choice, even if irrational

Bently:

1) Actual Choice
2) Resulting work individualised

Accumulated decisions -> intellectual creations

18
Q

What are 6 possible differences between EU and UK standards?

A
  1. Mere labour
  2. Creation of data/ideas/functions
  3. Mere Skill
  4. Pre-expressive contributions
  5. Wrong kind of contributions
  6. Trivial contributions
19
Q

How does the UK deal with the concept of mere labour?

A

“BBC v Wireless League: time for list of TV prog = OG (substantial)

Cramp v Smythson: Dairy tables ≠ OG (insubstantial)

Train timetable ≠ OG (Leslie v Young)”

20
Q

How does EU deal with the concept of mere labour?

A

Mere labour ≠ OG.

Why? Anyone can produce the same result

21
Q

How does the UK deal with the concept of Creation of data

A

Creation of data = OG

22
Q

How does the EU deal with the concept of Creation of data

A

Football Dataco: any creativity. Data irrelevant to OG.

SAS: user manual, contains pre-existing concepts and words ≠ creation.
However, combo might = creation/

Thus: combo of data = OG, not data.

23
Q

How does the UK deal with the concept of mere skill?

A

Walter v Lane

Transcribing speech = OG bc skill

24
Q

How does the EU deal with the concept of mere skill?

A

SAS: Skill not incl/considered. Just OG

Football Dataco: Skill ≠ OG

Why? Don’t need skill for OG. So considered separately.

25
Q

What are pre-expressive contributions?

A

Steps before producing work.

Diff from preparatory work.

26
Q

How does the UK deal with the concept of pre-expressive contributions?

A

Ladbroke v William Hill

Football pool coupons
Commercial offer decisions + Form and arrangement should be considered tgt.
thus: pre-express + during = not dissected.

27
Q

How does the EU deal with the concept of pre-expressive contributions?

A

SAS: PE only relevant for prep stage.

EU: only directly relevant to structuring work.

28
Q

How does the UK deal with the concept of wrong kind of creativity?

A

Interlego v Tyco Ind

Insufficient creativity bc not visually significant. Must be visually significant.

29
Q

How does the EU deal with the concept of wrong kind of creativity?

A

Would probably same outcome as UK/
However diff reasoning:
1. Does it involve creativity? (not WHAT creativity)

interlego (w EU apply): no creative freedom in tracing.

30
Q

Can the UK protect non-original works?

A

Some room for protection, but Software data info soc directives don’t consider ‘unfair comp law’

Football Dataco: no other CRP to DB

Software Dir: MS no CRP to non-original prog

Photos: Art 6 Term dir -> Art 1 Berne.
Temple Island v New English Tea
- CDPA -> EURO I.C

Arguably: UK OG -> Unfair comp law.

31
Q

can a derivative work be OG?

A

“art 2(3) Berne Convention

  • must have material contribution [MacMillion v Cooper]
  • CR may subsit even if it might infringe [Redwood Music v Chappell). CR will be distinct and subordinate to OG. “

Intellectual Property (12 decks)

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