[CR] Subject Matter

Question 1

What are the requirements for a literary work + authority:

Answer 1

“Hollinrake v Truswell

TEST: ‘information and instruction, or pleasure, in the form of literary enjoyment’

• “…conveys an intelligible meaning…” [Apple computers] v [Exxon]
• low threshold, irrespective of quality
• Sufficient if understood by a limited group

includes all works expressed in writing or pint [UoL]”

Question 2

Authority: A literary work must be capable of conveying intelligible meaning to at least a limited group
Instruction/information works: capable of conveying intelligible meaning to at least a limited group

Answer 2

Apple Computer v Computer Edge

Question 3

Literary cases on names:

Names do not afford any info/instruction or pleasure

Answer 3

Exxon Corp v Exxon Insurance

Question 4

Are computer programs a literary work?

Answer 4

“Computer prog: [Software Directive] ““Instructions permanently wired into integrated circuit””

[Bezpecnostni Case C-393] Characteristics of a protected computer program

1) Permits reproduction in diff computer languages. (source code)
2) Does not include GUI bc GUI does not enable production of computer prog, only enables communication. It’s just an element of the program.”

Question 5

To be considered a dramatic work, matter must be capable of being performed.

Answer 5

Green v Broadcasting Corp of New Zealand

• Unable to show program = dramatic work.
• Lacked Spacifity or detail to be performed
• Scripts could not be acted or performed.

Question 6

Do games have sufficient unity to be a dramatic work?

Answer 6

Nova Productions Ltd v Mazooma Games

• Interactive video games ≠ dramatic works bs scenes not the same.
• Billard game could be literary and artistic work but not dramatic.

Question 7

The matter is capable of performance even by artificial means (aka film).

A film can be played = matter can be performed.

Answer 7

Norowizian v Ark

Question 8

“What is the concept of music?

What is considered to be music?”

Answer 8

“Sawkins v Hyperion Records
- C altered music of old composer. Musical record co claimed infringement bc did not create original musical work.

Concept of music
[Mummery LJ] Music: intends to produce some effects on listeners emotions and intellect.

Music includes other elements that effect sounds such as notes, tempo, and performance practice.”

Question 9

“(graphic) Does an artisitc work have to be permanent?

“

Answer 9

“Merchandising Corp v Harpbond

A very traditional view of painting.
Painting required a surface, the face is not a surface.
Thus makeup is not a painting.

Could also hint that paintings must intend to be permanent.”

Question 10

Really mundane things can be protected by CR

Answer 10

“[Engraving]
Frisbee: Whom-O Manufacturing v Lincon Industries
Car mat: Hi-Tech Autoparts v Towergate Two Ltd

• Copyright could not be used to prevent the manufacture or sale of spares for industrial items. [Leyland v Armstrong]”

Question 11

Is the graphic works list exhaustive?

Answer 11

Abraham Moon & Sons Ltd v Thornber

Instructions for generating fabric designs were graphic.
Visual significance for experts

Question 12

What is considered to be the legal meaning of a sculpture?

Answer 12

“Lucasfilm Ltd v Ainsworth

Stormtrooper helmet was not a sculpture.

• primary function utilitarian (prop)
• lacks artistic purpose

Subjective considerations:
- legal meaning should not stray too far from common [Metix]
- visual appeal and enjoyed for that purpose alone.
INTENDED TO BE ENJOYED AS VISUAL THING (along with strucuture and fabrication)”

Question 13

What is considered a building?

Australian case

Answer 13

Darwin Fibreglass v Kruhse Enterprises

1. proposed use
2. fixed or portable
3. degree of permanence

Question 14

What is artistic quality?

Answer 14

Henser v Restawile Upholstery [Lord judgements]

Reid: pleasure or satisfaction from contemplating it. Authors intention doesn’t matter

Morris: general consensus among respected views. However, courts ultimately decide.

Killbrandon: author had desire to produce thing of beauty which would have artistic justification for own existence.

Visount Dilhorne: intuition. could be artistic even if functional + originality of design.

Simon: best evidence from expert evidence.

Question 15

Could a work set out with utilitarian considerations be a work of art?

There are 3 key cases regarding this

Answer 15

Merlet v Mothercare

• set out as not work of art but utilitarian consideration.
= not artistic craftsmanship. (baby cape)

Vermat v Boncrest (bedspread)
• there has to be evidence of creativity

Guild v Eskandaar (cardigan)
• an odd case, consideration ‘can it be fairly regarded as satisfying aesthetic emotions of substantial section of the public’

Question 16

What is artistic craftsmanship?

Answer 16

“No clear definition. [Hensher v Restawille]
- possibly: Special training, skill and knowledge.

Unclear if need handmade: no need, can be machine [Coogi]

From same person? [Burke - yes] vs [Bonz - no]”

Question 17

What is the Australian Esc route for Artistic requirement of craftsmanship in the UK?

Answer 17

Burge v Swarbrick

1. The significance of functional constraints
2. Freedom of design choice
3. Real or substantial artistic effort

Question 18

What is the Euro Esc Route for Artistic requirement of craftsmanship in the UK?

Answer 18

Recital 8 of the software directive
• OG is the only qualitative criteria.
• no tests to the qualitative/aesthetic merits.
• logic expressed these directives applies to all works

Question 19

What is counted as an edition?

Answer 19

Newspaper Licensing Agency v Marks and Spencer

An edition is what’s in between the covers.

Question 20

“Titles:

Are titles substantial enough to provide protection?”

Answer 20

“No. Rose v Information services

• eg: game show (Green v Broadcasting)
• eg: song titles (Francis Day)”

Question 21

“Tables and compilations:
- are tables and compilations enough to satisfy ‘work’
Football coupons
TV schedules”

Answer 21

“Football [Ladbroke]

TV schedules [TimeOut]”

Question 22

are databases work?

Answer 22

“Art 1(2) Database Directive -> s3(1)(d) CDPA

Football fixtures = database [Fixtures Marketing]
Poems in poem book by same poet = possible
computer program to make database = no. (art 1(3))”

Question 23

(graphic) Can a drawing be artistic?

Answer 23

”- not if too common place (checkbox) [Kenrick v Lawrence]

• dress designs can be protected [Berstein v Murray]
• Copyright could not be used to prevent the manufacture or sale of spares for industrial items. [Leyland v Armstrong]”

Question 24

What kind of photos are protected?

Answer 24

“old photograph case [Graves] can
[Can] photographs of still objects [bridgeman Art library]
[No] Scenes of scenes of birds [Barman v Fussell]
[no] individual frames from films [Goldberg v BPC]”

Question 25

What will courts consider when deciding a graphic work?

Answer 25

“Abraham Moon & Sons Ltd v Thornber

• Instructions for generating fabric designs were graphic.
• Held: records of instructions for creating a fabric design can be protected by both artistic copyright+ literary copyright
• Courts will take a pragmatic approach when deciding whether something is a graphic work which may be protected by copyright – the key being to look at the content of the work and not the medium in which it is recorded.
• It is also a reminder that infringement of a graphic work can occur indirectly by copying a fabric made in the work.”

Question 26

What films are protected? Is the soundtrack part of the film?

Answer 26

”- produce moving images (Kamina)

- soundtrack treated as part of film”

Question 27

Can a single sound be a sound recording

Answer 27

No.

Question 28

What is considered a vaild broadcast?

Answer 28

“Definition:

• electronic, information transmitted
• limits: s6(CDPA)”