Subsistence Flashcards
Basic EU Law
Open list
Marleasing: UK courts are required to interpret UK law in line with EU law ‘as far as possible’.
Infopaq- anything that is AOIC must be protected by CR
BSA- following Infopaq, if the GUI is an AOIC it can be protected.
FAPL- Sporting events could be CR if they were AOIC but there was ‘no room for creative freedom’ in football matches
s1(1) CDPA 1988
CR can only subsist in:
(a) original literary, dramatic, musical or artistic works
(b) sound recordings, films or broadcasts
(c) the typographical arrangement of published editions
Literary Works (Statute)
CDPA s3(1): any work, other than a dramatic or musical work, which is written, spoken or sung, and according includes:
(a) a table or compilation other than a database
(b) a computer program
(c) preparatory design material for a computer program
(d) a database
s178 CDPA: writing includes any form of notation or code, by hand or otherwise and regardless of the method/medium in or on it is recorded.
Literary Works (Case law)
Qualitative criteria irrelevant: University of London Press 1916
Words: Exxon
Short Phrases: Francis, Day & Hunter 1940 PC; NLA v Meltwater & PRCA
Telegraphic codes (Anderson v Lieber Code)
Electrical circuit diagrams (Anacon v Environmental Research)
Compilations of data, where not databases as defined (Football League v Littlewoods)
Literary Works: Computer Programs
US CA 1967 s101: a set of statements or instruction to be used directly or indirectly in a computer in order to bring about a certain result. (No definition in CDPA/SD)
Art 1(1) SD: Includes preparatory design material (cf CDPA where these are separate works! - Marleasing?)
SAS 2012- SD Art 1(2) includes source and object code (not: functionality, programming language, GUI and format of data files)
BSA- Some elements nevertheless protected if AOIC
Originality Test: AOIC under SD Art 1(2) – CDPA does not mirror exactly but courts apply it following EU law.
Literary Works: Databases
Database Directive Art 1 and CDPA s3A(1): a collection of independent works, data or other materials which
(a) are arranged in a systematic or methodical way
(b) are individually accessible by electronic or other means
Art 3(2) DD: CR protection of databases shall not extend to contents.
Originality Test: AOIC under CDPA s3A(2) - original if, and only if, by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation.
Football Dataco v Yahoo-
> Creation of data should be excluded from ‘selection and arrangement’
> irrelevant whether or not this selection and arrangement includes ‘adding important significance’ to that data
> AOIC requires more than significant skill and labour
> AOIC is “not satisfied when the setting up of the database is dictated by technical considerations, rules or constraints which leave no room for creative freedom”.
> The DD precludes other national rights.
Dramatic Works
No definition but s3(1) CDPA: ‘includes a work of dance or mime’.
Green v Broadcasting Corp 1989 (PC)- A dramatic work must have sufficient unity to be capable of performance.
Dramatic Works: Films
Norowzian (No 1) 1998- CDPA s5B: Film is ‘a recording on any medium which a moving image may be any means be produced’ (CR protection limited to mechanical copying)
Norowzian (No 2) 2000- Film was a dramatic work, given its natural and ordinary meaning - it involved movement and could be displayed to an audience (needed to comply with BC - ‘works of cinematography’)
Musical Works
CDPA s3(1): a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music.
Sawkins 2005- Music is combining sounds for listening to (not mere noise). In principle, there is no reason to regard only the actual notes of the music as the only matter covered by musical copyright (cf. dramatic works: stage directions have as much of an impact).
Artistic Works
Exhaustively defined in CDPA s4: a graphic work, photograph, sculpture or collage, irrespective of artistic quality; a work of architecture being a building or model for a building; or a work of artistic craftsmanship.
“graphic work” includes– (a) any painting, drawing, diagram, map, chart or plan, and (b) any engraving, etching, lithograph, woodcut or similar work.
“sculpture” includes a cast or model made for purposes of sculpture.
Artistic Works: A graphic work, photograph or collage
Harpbond 1983- no statutory definition of a painting, a painting must be put on a surface of some kind.
Creation Records 1997-
> Scene is inherently static – not a dramatic work.
> Assembling disparate objects together cannot be regarded as having anything in common with sculpture or with artistic craftsmanship. (Shelley Films: a film set seriously arguable)
> As for collage, it is seriously arguable that the composition comes within the definition, although it did not use any adhesive.
> The composition was intrinsically temporary or indeed less than temporary
Artistic Works: Sculpture
Metix v Maughan 1997- ‘a 3D work by an artist’s hand’
Lucasfilm v Ainsworth 2011-
> Not every 3D representation of a concept can be regarded as a sculpture. The essence of sculpture is a visual appeal that may be enjoyed for that purpose alone
(However, I would no more attempt a definition than any other judge.)
> Held that they were not sculptures because they lacked artistic purpose and this would overstretch the definition of sculpture – multifactorial approach.
Artistic Works: Works of artistic craftsmanship
Hensher v Restawile 1976-
> Lord Reid: It is of importance that the maker should have intended that it should have artistic appeal but I would not regard that as necessary or conclusive. I find no evidence at all that anyone regarded the appellant’s furniture as artistic. Looking nice falls considerably short of having artistic appeal.
> Lord Morris: Though it is a matter of individual opinion as to what makes aesthetic appeal, there are experts whose evidence the courts will not have difficulty weighing. I would dismiss the present case.
> Lord Kilbrandon: What is ‘artistic’ is a matter of law, since it involves a decision of what Parliament meant by the word used.
