[CR] Infringement Flashcards
General Principles
“© protect idea expression, not idea itself. Not procedurea or methods
more OG and creative = thicker protection
Less creative = (maps and stuff) OG of author smaller and more difficult to infringe”
What is primary infringement vs secondary infringement
“Primary: s16 offended
secondary: s22-26 When 3P deals w infringing copires or facilitate”
Requirements for primary infringement
CDPA
1) Exclusive Acts (s16)
2) Without consent
3) Causal connection (derived)
4) Whole/Substantial part
strict liability
Can a derivative work be copyrighted?
[MacMillan v Cooper] -> must have material change.
[Designers Guild] -> just giving off a different feel not sufficient.
no need direct, may have a causal chain.
What must D do to defend?
Other factors:
- If had access to it before: [Designers Guild]
- Publicly available? [Duke of Norfolk]
- Common Sources [Mitchell v BBC]
- Historical Fact [ Leigh v Random House]
- D state of mind irrelevant [LA Gear v Hi Tech Sports]
-D dont need to believe C assertion at face value, but cannot ignore. Must evaluate. [Noveau Fabrics]
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Mitchell v BBC (weird colourful action figures)
Show evidence thorugh documenetation on how they got to it without copying.
Found no infringment
Copied form licenced 3rd parties -> still causal link
King Features Syndicate v Kleeman
What is the UK vs EU substantial test
“UK: s16(3)(a): whole or substantial
EU: in whole or in part”
“UK courts applying EU test in harmonised rights (not wholesale) not harmonised;
when to apply UK and EU test”
“EU - reproduction, distribution, communication (harmonised)
UK - performance, adaption (not harmonised)
Apply UK test when there is unharmonised, EU test when harmonised. (Sherman)
but others more vague - UK in light of Infopaq? Davies: Apply both unless unharmonised
NLA v Meltwater: Infopaw not qualified in UK test. Use Uk test.”
UK test: what is substantial
“Whole not required. part or form changed.
Part must be original
Important in CLAIMANTS work not D. [Designers Guild v Williams] Irrelevant D gives different impression
Newspaper Licensing Agecy v Marks and Spencer (one column vs whole newspaper)
Hyperion Records v Warner Music (8 notes v whole chant. But notes distinct = 100% infringement OR is it in whole cannot be seperated)
Hawkes v Paramount: 28 bars taken & instantly recognisable
“
Substantial in poems
“Kipling v Genatosan (4 lines from 32 Lines) - significant
Chappell & Co Ltd v DC Thompson & Co - not siginifcant”
EU Test
“Must contrain OG of authors work only.
No need to consier parameters of work or sustantiality.
Impact: expanding scope of protection”
Other forms of infringement
Non-literal copying
What is required for secondary infringement?
Material contribution to infringement.
Must generally show D had actual/constructive knowledge
- eg: sufficient info & condsideration time [LA Gear v Hi-Tec Sports]
- info sufficiently detailed and specific [Metix v Maughan]”
