Types of copyright work:
Literary, Dramatic, Artistic, Musical, broadcasts, typographical edition arrangement.
Reproduction right:
Distribution (first sale) right, rental and lending rights, adaptation right, authorisation right, performance right, communication of the work.
3 main requirements for infringement of reproduction right:
1. Act act carried within the “field” of copyright owners control. – s 17
2. That the “infringing” work was derived from a copyrighted work (there was a casual connection).
3. That the restricted act was carried out in relation to the work or a substantial part.
Causal Connection
Independent creation is always a defence.
8 bars of music.
Francis Day & Hunter v Bron 1963.
CHECK RECORDING.
....Needs to prove that derivation has occurred.
Ladbroke v William Hill [1964]
284: [per Lord Evershed]
Lloyd Jacob J said, “a number of features of correspondence which are to my mind to indicative of copyright to be overlooked”.
Claimant needs to prove that derivation has occurred by proving that there are similarities.
Telephone directories have fake names in them.... writers insert discreet lines in their work....
Billhoefer Machinenfabrik GmbH v TH Dixon [1990] FSR 105 (Hoffman J at 123)
Copying of errors case.
Designers Guild v Williams
First hearing most important one of all of them.
2 types of wallpaper. One produced by latter, one former.
The lord said that there were 7 similarities in the images.
From this, you could infer derivation.
“far beyond the similarities which would be expected simply from both being based on impressionistic style or from both being based on a combination of stripes and scattered flowers and leaves”.
COA looked at facts and decided that the facts were different from what the trial court judge said they were.
All the judges looked at the original copyright work in a diferent way.
Splt original copyright work into smaller parts to identify similarities. You are however, supposed to be looking at it overral.
This development affected the facs of he case. You can’t refer to derivation.
HOL told off the COA. They had ooked at the issue of facts rather than the point of law.
If you divide works into smaller parts, you tend to be less likely to find infringements occurring. You will be taking in less significant elements.
Baigent v Random House [2007] EWCA Civ 247
Holy Blood and the Holy Grail. Da VinCi Code case.
First judgement just foramusement.
Second one shows how the derivation has occurred.
Shown more in proceedings than judgement.
Shown in Dan Brown’s wife. Dan Brown’s wife makes notes for im from other books.
He takes the notes from her, and adapts them into his books.
Dan Brown’s wife is technically the guilty party here.
Elements from holy blood and holy grail taken to a higher level of extracton by dan brown.
However, thi wouldn’t satisfy thecopyright infringement...
Derivation: You’re looking for similarities between the 2 works.
Another case regarding the habsburg spear. Same set of facts, but looks at a completely different set of law.
Paul Allen (tustee of Adrian Jacob, DECEASED) V Bloomsbury Publising and JK Rowling [2010]
Borught a case trying to claim for some royalties from JK Rowling, saying that certain ideas were copied.
Similarities and not derivation because JK rwling said she had no seen those wors when she was writing Harry Potter.
CHECK RECORDINGS DESPERATELY.
Francis Day & Hunter v Bron
Unconscious copying. ß- not used in subsequrnt cases.
Leaves slightly open the qn on whether you can have that.
If you can demonstrate that somebody is familiar with the work already, it increases the likelihood that there is derivation, thatcopying has occurred.
I you can ssya that JK Rowlig has read the wizard book for e.g., you could say that she unconsciously copied the wizard book.
LJ Wilmer was familiar with the work alleged to have been copied. (His judgement has the most force and tends to be the most cited in the academic literature,)
LJ Upjohn ...... WHAT?
LJ Diplock said that it’s not a possible defence to say that you are not familiar with a particular work.
Ultra Marketing (UK) v Universal Componentts Ltd [2004]
Somebody came up with aluminium extrusions for picture frames.
Bits of metal that connect together.
Concept that this isn’t really an idea.
Issue of trying to establish derivation.
The rule shouldn’t be treated rigidly. You have to be more flexible with that.
The idea of a substantial part.
That the resteicted act was carried out in relation to the work or a substantial part
The USA.
Bridgeport II” (Bridfeport Music Inc v Dimension Films 383 F.
Deals with sound recording copyright.
Any sampling will be infringing.
Birdgeport I said the complete opposite.
In the US you’ve got different circuits that offer different leniencies in judgement.
Sid & Marty Krofft Television Productions v Mc Donald’s Copr 562 F. 2d 1157 (9th Circuit, 1977)
Looked at character infringements through eyes of child.
\III (i) Was the original work covered by copyright?
Hypeion Records v Warner Music.
The beloved Sun rises.
Issue was whether you have to cut up the work or if you have to look at it as a whole.
The principle in designers guild considered.
Baigent and Leigh v Bandm House Publishing [2007] EWCA Civ 247
“you can reach a wrong result in a copyright case by dividing up the original copyright work into separate parts and then asking whether the separate parts stand on their own”.
A SLIDE HERE.
To assess whether a work is covered by copyright, it is necessary to consider which parts of a copyright work are not covered by copyright protection, namely,
1. Irrelevant elements
Cantor Fitzgerald International v Traadition (UK) [2000]
Looking at the infringement of 1 piceve of sharetrading software by another one.
Unsure what parts were covered by opyright. Mathematical formulae non essential part?
2. Non – original elements
Ladbroke v William Hill [1964] 1 WLR 273
Establishes that non original elements canbe established without establishing an infrignemen. However, you’ve got to think about the original element that’s taken from the original work.
Kenrick & Co v Lawrence & Co.
Concerned drawing of a handon the oting slip. Said that the drawing itself was not sufficiently original. There re only so many way of drawing a hand onto a box.
3. Ideas (Porbably thr broadest of 3)
In Designers Guild v Williams [2000] 1 WLE 2416
a) Ideas themselves may not gain protection.
Ideas are not protected “because they have no connection with the literary, dramatic, musical or artistic nature of the work, OR
b) they could be the above, but they are not original, or so commonplace as not to form a substantial part of the work.
You don’t get good discussion of this in anything subsequently.
Issue of substantial parts?
What do we actually mean. Whendo we known when a subsaintial part had been taken out.
LJ mummery in th Da Vinci Code cae says that it’s not there. Substantial part should be within courts discretion. It’s not defined in he act.
1. Was there copying of the work or a substantial part of the work?
Not “insignificant” or “deminimis”.
Sillitow v Mc Graw Hill Booiok
Book used in the UK as part of the national curriciulum. Mc raw hill produced a revision guide hat contained large amts of elements in it.
Everyone can just buy the revision guide and not original vook. As a result, not deminimis.
2. “Hasthe infringer incorporated a substantial part of the independent skill, labour, etc.
Contributed by the original author by ceeatig the copyright work.” Lord Scott, Desingers Guild Case.
Lord Scott took the way in which the presecott book explained infringement and elaborated futher in Williams.
Lord Hoffman suggests that the qn is whether the alleged copy contains :
CHECK SLIDE HERE.
Walter v Lane [1900] AC 539 sets this out.
Another case which seta rhis out really well is the Elanco v Mandops case.
Someone elsehad come along to reproduce sets of chemist instructions.
Defendent had taken the instructions without going though tht e labour, skill and effort of the claimants.
One shouldn’t tale a shortcut. Elanco v Mandops [1980] RPC 213 Gff LJ at 227
Vice Chalncellor stated the principle at end of his judgement..:”” SLIDES.
Moffatt & Paige Ltdv George Gill & Sons Ltd.
Ravenscroft v Herbert [1980]
Claimant had
Altohugh Herbets book only had prologues infringing, that was enough.
Only 5% of the infringing work, but damages around 15% of the royalties given because of the qualitative importance of the work.
The test for infringement is qualitiative.
Kipling v Genatosan Ltd (1917 – 23)
4 lines of Kipling’s work had been copied. That was deemed to be infringing, as the 4 lines wee significant.
Fernald v Jay Lewis Production Ltd [1975] Book had been used. Qualittatively significant enough.
Hawkes and Son v Paramount [1934] 60 seconds had been reproduced.
HeNorowzian v Arks (No2) [2000]
Newspaper Licensing Agency v Marks & Spencer [2000]
Deemend not to be an infrgement. For graphical works, you’ve got to reproduce whole page for it to be a substantial one.
[ Antiques portfolio.com v Roney Fitch & Co [2001] FSR 345.
Copyright Duration
Differing periods for different types of Work. Why? That’d the way it is.
The last change came from an EC directive.
1993/98/EC Duration Directive.
C- 360/00 Lord Hesen v G Ricordi & Co [2002] ECR 1-5089
Thw law is worded i such a way that works that have left copyright protection can come back to copyright protection.
Works may be in the public domain,
If an action for infringement was brought today over a work produced in 1930, would an earlier or later copyright act be used?
It’s the time you are bringing the action that counts. In the 1988 act, there are transition provisions in place.
S 12 CDPA 1988
A literary dramatic musical and artistic works:
Mostly these are the life of the author plus 70 years. Why life of the author?
Exceptions: Computer generated works (s.12(7))
Crown copyright s.163(3)(a))
Parliamentary Copyright and International Organisations (s.165(3))
Films
s.13 B
An entrepreneurial right.
Not called an entrepreneurial right, as under EU law, it’s not supposed to be labelled as one.
Films in s30 have the issue of duration addressed.
You start out wth a period of protection. 50 years from the calendar year the film was made. The period of protection increased to 70 if there is a principle director......
It’s still 70 years, even if you can’t identify any of the 4 people, as opposed to the 50 year period referenced from at the very start.
Sound recordings are still 50 years from the end of the calendar year that the work was first released.