Random notes Flashcards
What is infringement by communication to the public (s 20)?
and info soc dir equivalents
(1) The communication to the public of the work is an act restricted by the copyright in—
(a) a literary, dramatic, musical or artistic work,
(b) a sound recording or film, or
(c) a broadcast.
(2) References in this Part to communication to the public are to communication to the public by electronic transmission, and in relation to a work include—
(a) the broadcasting of the work;
(b) the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them.
Article 3(1) InfoSoc Directive: Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them
Article 3(2) InfoSoc Directive: Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, [of performances, sound recordings, films, broadcasts] in such a way that members of the public may access them from a place and at a time individually chosen by them ...
How to assert paternity right (right of attribution)?
The right does not arise until it has been asserted (s.78(1)).Any delay in asserting will be taken into account when enforcing (s. 78(5))
Section 78(2)
(2) The right may be asserted generally, or in relation to any specified act or description of acts—
(a) on an assignment of copyright in the work, by including in the instrument effecting the assignment a statement that the author or director asserts in relation to that work his right to be identified, or
(b) by instrument in writing signed by the author or director.
Name all moral rights
Moral Rights
- General overview
- Paternity right (right of attribution)
- Integrity right (right against derogatory treatment)
- Right against false attribution
- Right to privacy in certain photos and films
How is a work “fixated” and what effect does this have?
Copyright arises automatically, but copyright does not subsist in literary, dramatic or musical works ‘unless and until’ they are ‘recorded in writing or otherwise’ (s. 3 CDPA). At that point the works are deemed ‘made’ (s.3(2) CDPA)
— Immaterial whether the work is recorded by or with the author’s permission (s.3(3))
–Writing = includes any form of notation or code ‘regardless of the method by which, or medium in or on which, it is recorded’ (s. 178 CDPA).
What is the temporary or incidental copying defence under Article 5(1) Info Soc?
Article 5(1): Temporary acts of reproduction in Article 2 which are transient or incidental and an
integral and essential part of a technological process and whose sole purpose is to enable:
(a) a transmission in a network between third parties by an intermediary, or
(b) a lawful use
of a work or other subject matter to be made, and which have no independent economic significance
What is one of the general terms in the defences provisions?
Lawful user or acquirer:
Covers purchaser, subsequent recipient and licensee (UsedSoft v Oracle C-128/11 – covered transferee of software from original purchaser, even though licence prevented such transfer)
In general, what remedies are available?
Civil and criminal
Additional damages
Website blocking orders
What factors do you need to consider in an infringement problem?
(1) Does copyright subsist in the work?
(2) Does copyright still protect the work?
(3) Does the Claimant own the copyright or is it an exclusive/non-exclusive licensee?
(4) Has the Defendant done an infringing act in relation to the work without copyright owner’s consent?
(5) Is it in relation to a substantial part of the work?
(6) Is there a defence to infringement?
(7) What remedies are available?
(8) Have any moral rights been infringed? If so, what defences are available, and what remedies might be ordered?
What remedies are available for infringement?
CIVIL REMEDIES…..
s. 96(2): In an action for infringement of copyright all such relief by way of damages, injunctions, accounts or otherwise is available to the plaintiff as is available in respect of the infringement of any other intellectual property right.
S.99: Order for delivery up
s.100: Right to seize infringing copies and other articles
HOWEVER…..
No damages for innocent infringement (s.97(1)): Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.
Also website blocking orders (see other slides)
What is the legal basis for website blocking orders?
Section 97A(1): The High Court … shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright. Section 97A(2): Re actual knowledge
Article 8(3) InfoSoc Directive: Member States shall ensure that right holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.
Article 11 Enforcement Directive: Member States must provide for right holders to apply for an injunction against intermediaries whose services are used by third parties to infringe an IP right
What is the ‘safe harbour’ for ISPs under E-commerce directive?
Note also provisions of Articles 12-15 of E-Commerce Directive re ‘safe harbours’ for ISPs (mere conduit, caching, hosting) and Article 15 (no requirement of general monitoring).
Cartier International v BT
CLAIMANT: seller of luxury good e.g. watches
DEFENDENT: Various IPS
CONTEXT:
In 2014 the English High Court granted Cartier an injunction to prevent major UK ISPs, including BT, Sky, TalkTalk, EE and Virgin Media, from allowing access to websites selling counterfeit luxury goods such as jewellery and watches.Importantly, the Cartier case was the first to confirm the availability of website-blocking injunctions in the context of trade mark infringement; until then such orders had been granted only against copyright infringement. The High Court also ordered the ISPs to bear the costs that they incurred in implementing the website-blocking order. Two of the ISPs appealed arguing that they should not have to bear such costs. In 2016, the Court of Appeal dismissed the appeal and confirmed that the ISPs should bear the costs of implementing the blocking orders.The Supreme Court disagreed and has unanimously allowed the ISPs’ appeal, requiring the rightsowners to indemnify the ISPs for their costs of complying with the orders. Lord Sumption gave the lead judgment, with which the other judges agreed.
DECISION: The UK Supreme Court ruled that the costs of blocking access to websites selling counterfeit products do not have to be borne by internet service providers (ISPs). When a website-blocking injunction is obtained against an ISP, as an innocent intermediary, to prevent the use of its facilities by wrongdoers for unlawful purposes, the IP rights-holders whose commercial interests are being protected cannot look for a contribution to the costs of defending their rights from anyone but the infringers.
How would you set out an essay quest on the legal significance of a given case e.g. Infopaq?
Brief summary of the case and overview of its significance
Originality and infringement: explain what the Court decided in relation to Article 2 InfoSoc Directive
Significance: briefly mention ‘progeny’ of Infopaq (e.g., BSA, Painer, FAPL, v QC Leisure, FDC v Yahoo)
Impact on UK approach to originality and infringement (e.g., SAS, Meltwater, Temple Island)
More general significance on boundaries of protection of potential works e.g., closed list/open list
Briefly mention point on transient reproduction under Article 5(1) InfoSoc
