The right to reproduce the work Flashcards
What’s the meaning of copying and of reproduction according to the US legislation (the Arnstein test)?
- Not all copying is copyright infringement (Feist)
- US approach: actionable copying is based on two separate elements (c.d. Arnstein test):
1) “Copying in fact”: the defendant factually copied the work. Proof of causal connection
between the plaintiff’s and the defendant’s work. Defence of independent creation.
2) “Wrongful copying”: there is a substantial similarity between the two works. Defences:
copying of non-original elements & idea/expression dichotomy.
Explain the US approach to causal connection - probation similarity (Copying in fact)
It’s the fisrt part of the Arnstein Test. The plaintiff in an action for copyright infringement must show that B was actually copied from A in the sense that there is a causal connection running from A to B. This copying can be deliberate, unintended, or even subconscious.
* Evidence that the defendant had access to the plaintiff’s work.
* “Reasonable opportunity to view (or hear)”. Bare possibility of access will not suffice.
* Copying can be inferred by “striking similarity”
Other plausible causes of similarity include:
* Both works drawing from the same source
* Both works addressing the same subject / belonging to same genre
* Both works using the same commonplace elements
* Mere coincidence
Explain the US approach to substancial similarity (wrongful copying)
It’s the second part of the Arnstein Test. Determining the similarities at the correct level of abstraction. Dissecting protectable expressions and unprotectable ideas. US courts have applied various tests to determine substantial similarity:
* Ordinary observer
* Total concept and feel
* Extrinsic/intrinsic
* Abstraction, filtration and comparison
What is the Ordinary observer test?
A copy is that which ordinary observation would cause to be recognized as having been taken from or the reproduction of another. The ordinary observer test is applied by conducting a side-by-side comparison of the two works, but that does not always make sense. Also, expert testimony may be necessary in the analysis of complicated subject matter
What’s the “Total concept and feel” test?
First established in Roth Greeting Cards v. United Card Co. 429 F.2d 1106, 1110 (9th Cir. 1970)
Not a conclusive test, but part of the infringement analysis.
“total concept and feel” functions as a reminder that courts should not take dissection too far
Explain the Extrinsic/Intrinsic test.
The extrinsic test assesses the objective similarities of the two works, focusing only on the protectable elements of the plaintiff’s expression. The court must filetr out the unprotectable elements (ideas and concepts), and the protectable elements that remain are compared to the defendant’s work.
The intrinsic test requires a more holistic, subjective comparison of the works to determine whether they are substantially similar in “total concept and feel.”
For example, what was decided in the case Rentmeester v Nike: What is protected by copyright is the photographer’s selection and arrangement of the photo’s otherwise unprotected elements. If sufficiently original, the combination of subject matter, pose, camera angle, etc., receives protection, not any of the individual elements standing alone. In that respect (although not in others), photographs can be likened to factual compilations.
We conclude that the works at issue here are as a matter of law not substantially similar. Just as Rentmeester made a series of creative choices in the selection and arrangement of the elements in his photograph, so too Nike’s photographer made his own distinct choices in that regard. Those choices produced an image that differs from Rentmeester’s photo in more than just minor details.
Explain the Abstraction, filtration and comparison test.
The AFC test is widely used in computer software cases and occasionally in other contexts. As the name suggests, there are three steps:
* Breaking down the defendant’s program into its constituent parts
* Examining each part and filtering out non-protectable elements (public domain, merger, scénes à faire, …)
* Comparing the protectable elements
