Subsistence and protection requirements Flashcards
Copyright law protects broadly literary and artistic works.
Berne Convention
The 6 steps
- Is it a work? Does the work fall within one of the categories of the Act?
- Is the work protected? Is it fixed, not copied, expressed and original?
- Is it still protected? Duration
- Who owns the work? Has it been assigned/licensed?
- Has the copyright in the work been infringed? Economic + moral rights
- Are there any defences?
s 1(1) of CDPA 1988
Copyright is a property right which protects a) original literary, dramatic , musical or artistic works b) sound recordings, films or broadcasts c) the typographical arrangement of published editions
Protection requirements
- Originality
- Fixation (Idea/expression dichotomy)
- Qualification
The work must not be copied and must originate from the author
Ladbroke v WIlliam Hill (1964)
The originality requirement involves the author creating the work by expanding ‘skill, judgement and labour, selection, judgement and experience, or labour,skill and judgement’ in creating the work
Peterson J in University of London Press Ltd v University Tutorial Press (1916)
Lord Pierce in Ladbroke v William Hill (1964)
2 cumulative requirements
‘The work must originate from the author and there must be a minimum investment of skill, judgement and labour in the process,’ - Lord Oliver in Interlego v Tyco
A compilation of existing elements
The skill, judgement and labour must be invested in such a way that the elements are organised and expressed - Cramp v Smythson (1944)
Civil Law Countries - higher threshold as it must express the personality of the author and it must be his/her own intellectual creation
Bettina Rheims v M Jakpb Gautel (2009)
The sufficient amount of skill, labour and judgement needs to be assessed based on each case facts.
Biotrading v Biohit (1998)
The author’s own intellectual creation
s 3A of CDPA (1988) - applied in SAS Institute v World Programming (2013)
The higher the skill, judgement and labour, the better the chances of obtaining copyright.
Hyperion Records v Lionel Sawkins
Reports of speeches could obtain copyright as long as the author spent sufficient ‘time, effort and skill in writing them.
Walter v Lane - This not applicable now due to the originality requirement
The Concept of originality is applicable to all cathegories of works
Infopaq v Danske
Newspaper titles can obtain copyright if they meet the requirements.
NLA v Meltwater (COA)
The CJEU stated that the author must show his personal touch. This criterion is not satisfied where it is dictated by technical considerations.
Footbal Dataco
Fixation
S 3(2) of CDPA 1988: Copyright does not subsist in a work unless and until it is recorded.
The author’s permission is not required for fixation
S 3(3)
Ideas will not be protected where they don’t have any connection with ‘literary, musical, dramatic or artistic nature of the work.’
Kleeneze v DRG (1984)
Originality tends to lie in the detail with which the basic idea is presented.
Designer Guild v Russell Williams
Qualification
S 153-155
Idea is not protected.
Springfield v Thame (1903)
Literary work
defined under S3(1) of CDPA as ‘any work, other than a dramatic or musical work, which is written, spoken or sung.’
Literary works cathegory is not restricted only to literature.
Peterson J in University of London Press v University Tutorial Press
Literary works includes any work not neccessarily expressed in words, expressed in any computer programming language.
H Laddie, P Prescott and M Vitoria
Dramatic works
S 3(1) A dramatic work includes ‘a work of a dance or mime’
A dramatic work must be possible to be fixated.
Tate v Fullbrook (1908)
Names of characters and how they behave will not be protected (Dramatic work)
Kelly v Cinema Houses
Dramatic work definition
P Kamina in ‘Authorship of Films and Implementation of the Term Directive’ a work created to e communicated in motion, through a sequence of actions, movements, irrespective of the technique bu which this movement is retrieved or expressed. Definition confirmed in Norowzian v Arks Ltd (2000)
Norowzian v Arks Ltd (2000)
a dramatic work is a work of action with or without words or music, capable of being performed in front of a public and which has unity.
A dramatic work involves not only a dialogue, but also a series of incidents-dramatic situations.
Wiseman v George Weidenfeld (1985)
Scenic effects not capable of copyright
Tate v Thames (1921)
A dramatic work must be capable f performance and it must have sufficient coherence.
Lord Bridge in Green v Broadcasting Group of NZ (1989)
Musical work definition
by Laddie, Prescott and Vitoria in ‘The Modern Law of Copyright and Designs’ as a work ‘intended to be performed by the production of a combination of sounds to be appreciated by the ear.’
A couple of notes and chords can attract copyright.
Lawson v Dundas (1985)
Music is not only mere noise. It can include sounds and rhythm. One must look at the work as a whole.
Hyperion v Sawkings
Musical arrangements or transcriptions can obtain their own copyright.
Wood v Boosey (1867) - a piano arrangement of an opera can be original.
Artistic works
s 4(1): artistic work means a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality; b) a work of architecture being a building or a model for a building; c) a work of artistic craftmanship.
Definition of artistic
Difficult to define as seen from Hensher v Resaville (1979) Lord Oliver held in Interlego that artistic should mean anything visually significant.
The person creating an artistic work must have the conscious purpose of creating a work of art.
Walton J in Merlet v Mothercare
Painting made of a photography is original.
Bauman v Fussell
an arrangement of a group of people is not enough to be considered artistic work.
Creation Records v Newsgroup Newspapers
Works of architecture
Art 4(1)(b) Artistic quality is not required
Works of artistic craftmanship
Art 4(1)(c) +Merlet v Mothercare - artistic quality required.
Entrepreneurial rights
-s1 of CDPA - protection to sound recordings, films, broadcasts and typographical arrangements.
