[CR] Criteria for Protection Flashcards
What are the main criteria (4) for protection? + Authority
CDPA 1988
- Must be recorded
- Must be original (LDMA) or just not copied (Ent)
- Must be sufficiently connected to the UK
- Must not be barred from public policy
What are some common characteristics of OG?
- 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.
Natural rights POV on OG?
protect personality of authors. No protection to works necessary for others to exercise natural right
Rewards POV on OG?
incentive is making protection readily available
Utiliatrian POV on OG?
protects only those produced for the incentive provided by CR. No trivial or insubstantial work.
Realistic POV on OG
takes into acc other things like certainty & economy. Tends to lead courts to diluting OG standard to protect works that have not been copied.
Where did the British conception of originality originate from?
University of London Press
1) OG from author and not copied
2) Author exercised: Labour, skill, judgement
What took the UK OG concept to highest level?
Ladbroke v William Hill
Does the UK OG test require substantial SLJ? What have the courts said regarding how to measure substantial
Merchandising Corp v Harpbond
Facepaint ≠ Painting = ≠ OG
Do you require a certain type of SLJ to confer OG? If so, what are some exceptions?
Interlego v Tyco: tracing/copying will never make OG
Where did the EU concept of OG come from?
How did the UK implement this?
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
What is the key case regarding EU OG conception
“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]”
Are sports original in the EU OG concept?
No. Football Associations premier league
Sports ≠ OG
What are 3 criticisms of the EU concept?
1) Is this constitutionally sound?
2) Possibility of judicial activism
3) One size fits all?
What is “own intellectual creation”? How does the court determine factors to measure this?
3 cases.
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.
What is considered “non-functional” with EU standards? Why?
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.
What is “creative” and how is a choice creative?
Gervais: concious human choice, even if irrational
Bently:
1) Actual Choice
2) Resulting work individualised
Accumulated decisions -> intellectual creations
What are 6 possible differences between EU and UK standards?
- Mere labour
- Creation of data/ideas/functions
- Mere Skill
- Pre-expressive contributions
- Wrong kind of contributions
- Trivial contributions
How does the UK deal with the concept of mere labour?
“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)”
How does EU deal with the concept of mere labour?
Mere labour ≠ OG.
Why? Anyone can produce the same result
How does the UK deal with the concept of Creation of data
Creation of data = OG
How does the EU deal with the concept of Creation of data
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.
How does the UK deal with the concept of mere skill?
Walter v Lane
Transcribing speech = OG bc skill
How does the EU deal with the concept of mere skill?
SAS: Skill not incl/considered. Just OG
Football Dataco: Skill ≠ OG
Why? Don’t need skill for OG. So considered separately.
What are pre-expressive contributions?
Steps before producing work.
Diff from preparatory work.
How does the UK deal with the concept of pre-expressive contributions?
Ladbroke v William Hill
Football pool coupons
Commercial offer decisions + Form and arrangement should be considered tgt.
thus: pre-express + during = not dissected.
How does the EU deal with the concept of pre-expressive contributions?
SAS: PE only relevant for prep stage.
EU: only directly relevant to structuring work.
How does the UK deal with the concept of wrong kind of creativity?
Interlego v Tyco Ind
Insufficient creativity bc not visually significant. Must be visually significant.
How does the EU deal with the concept of wrong kind of creativity?
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.
Can the UK protect non-original works?
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.
can a derivative work be OG?
“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. “
