Prepare an Answer to the Following Question, Which Comes from the 2004 Ippaper (Subject

Law 3081
Law 3028

Copyright Law: Workshop 1

Weeks 5 & 6

Prepare an answer to the following question, which comes from the 2004 IPpaper (subject to a few minor changes):

Aaron is a record producer and a Disc Jockey (DJ). A film production company, Lion Films,signed a contract with Aaron to produce the soundtrack for one of its films. Lion Films told Aaron that the soundtrack should be mystical, incorporating exotic rhythms and stimulating the public to dance. Aaron interviewed and hired the musicians (a group called Bald Lies), while his assistant Cassandra,recorded the music. Cassandra also worked with Aaron in manipulating the sounds in the recording and adding sound effects. In particular, she offered practical suggestions as to how this could be better done by preparing many different samples. From these samples Aaron and Cassandra chose the ones that they liked the most. Aaron has begun playing the soundtrack in clubs. Lion Films warned Aaron that they intend to sue him for infringement.

At the same time, Aaron found out that another band, called ‘DOCTOR MYSTIC’, have just released a CD that imitates the musical style and rhythm of the soundtrack.

Moreover, the owner of the Music Club “ E-CLUB’ hired DOCTOR MYSTIC to give a live performance in ‘E-CLUB’ and Aaron has just discovered that DOCTOR MYSTIC have been performing in the Club the CD they have just released (which imitates the musical style and rhythm of his soundtrack).

DOCTOR MYSTIC also performed in E-Club a song that is very much like one of the songs that BALD LIES recorded with Aaron for the film soundtrack prepared for Lion Films. In particular, DOCTOR MYSTIC is using 50 seconds from a song written by BALD LIES, which is 4 minutes long.

ADVISE Aaron and Bald Lies.

1. Author/ Owner.Who is the creator of the rights? Who actually owns the copyright?

a.Joint authorship s10 (1) CPA 1988

2. Subsistence of copyright.

3. Types of Rights, i.e. performance, distribution rights.

4. Infringement.

5. Defences.

6. Remedies.

What sort of topics do you consider?

In problem question, there are two topics that come up.

Joint authorship: You can claim past royalties. You probably can’t claim more than that. You can also try arguing for an injunction.

b. Employment s 11(2)

In the normal course of your employment.

If you want to look at IP cases as opposed to contract ones, look at PA 1977, S.39.

If you are a cleaner at a university, you wouldn’t want to be writing academic articles as part of your job.

AARON – LION FILMS:

Copyright, Designs and Patents Act 1988

Works of joint authorship 10.

(1)In this Part a “work of joint authorship” means a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors.

Cassandra also worked with Aaron in manipulating the sounds in the recording and adding sound effects

In particular, she offered practical suggestions as to how this could be better done by preparing many different samples. She can benefit from joint authorship if she’s not under Aaton’s employ. See 11(2).

Bald Lies – As they were commissioned. Beckingham v Hodgins.

Merely editing, contributing suggestions, ideas and information will not give rise to a finding of joint ownership.

Robin Ray v Classic FM plc [1998]

To be a joint author there must be a significant creative contribution which was incorporated into the finished work.

A work of joint authorship is where the contribution of each author cannot be separated whereas the contribution of each author in a work of co-authorship is distinct, discrete and separately distinguishable.

Copyright, Designs and Patents Act 1988

First ownership of copyright 11 (1) (2).

(1)The author of a work is the first owner of any copyright in it, subject to the following provisions.

(2)Where a literary, dramatic, musical or artistic work[or a film,]is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary.

A film production company, Lion Films,signed a contract with Aaron to produce the soundtrack for one of its films.

Aaron was not under their employ. He was merely commissioned to produce the soundtrack.

Initiator of production is the owner? Aaron initiated it. Griggs.

If we apply century, Lion Films will not be regarded the owners.

Lion Films – Beggar (PDA S 205(1a)

Read contract. The law could possibly bring to light something that could give rise to more certainty?

Copyright, Designs and Patents Act 1988

Right to be identified as author or director 77.

(1)The author of a copyright literary, dramatic, musical or artistic work, and the director of a copyright film, has the right to be identified as the author or director of the work. The rig arises when the work or an adaption of the work is published commercially, performed in public, or copies of a film, sound recording or graphic work representing a work of architecture are issued to or communicated to the public.

Copyright, Designs and Patents Act 1988

Right to privacy of certain photographs and films 85.

(1)A person who for private and domestic purposes commissions the taking of a photograph or the making of a film has, where copyright subsists in the resulting work, the right not to have—

(a)copies of the work issued to the public,

(b)the work exhibited or shown in public.

There is no general right to privacy in English law. When someone commissions a photograph it is the photographer who is the first owner of the copyright in the photograph. The photographer has control over the negatives and can use them for their own purposes even against the wishes of the commissioner unless the photograph is taken or the film is made for private and domestic purposes.

Copyright, Designs and Patents Act 1988

Films Section 5B.

Film means ‘a recording on any medium from which a moving image may be produced’. The soundtrack accompanying a film is part of the film.

The soundtrack of a film is regarded as part of a film.There is however, copyright only in the master copy of the film or sound recording. This prevents everlasting copyright which would otherwise result if a new copyright arose every time a CD or videotape is reproduced.

Soundtrack 5 B(2) CDPA

If substantial  Music, Literary (Lyrics), Sound recording.

5 tests.

1. Is it in one of the categories? S(1)

2. Is it in material form?

3. Originality (Main works.)

4. Qualifying person.

5. Not excluded on public policy grounds.

Infopaq.

Reproduction rights:

S. 17 CDPA.

Independent creation : Francis Day and Hunter v Bron

Derivation

The whole CD must be looked at to determine if there’s an infringement.

Designers Guild

Hyperion records v Sawkins

Substantial part

Down to court’s discretion.

Substantial part is not actually defined in statute.

Baigent v Random House

50 sec part.

Qualittative nature of 50 sec clip needs to be examined.

Is it identifiable. Does it contain lyrics that make it a substantive part...

S16 – 21?

A – distribution, to club

Performance

Communication to public

(Online, Youtube.)

Right to make adaptation of work?

Adaptation BL

Authorisation E Club

Moral rights, separate from economic rights.

AARON – DOCTOR MYSTIC (CD that imitates the musical style and rhythm of the soundtrack):

For copyright purposes, music and lyrics are separate.

Copyright, Designs and Patents Act 1988

Musical worksSection 3(1).

‘A musical work is one consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music’.

Hyperion Records Ltd v Sawkins [2005]

Hyperion re-recorded music created by Sawkins.

Other elements contribute to the sound of the music when performed and they can be protected if they are the product of an author’s effort, skill and time.

Copyright, Designs and Patents Act 1988

The acts restricted by copyright in a work16.

(1)The owner of the copyright in a work has, in accordance with the following provisions of this Chapter, the exclusive right to do the following acts in the United Kingdom—

(a)to copy the work (see section 17);

(b)to issue copies of the work to the public (see section 18);

[F(ba)to rent or lend the work to the public (see section 18A);]

(c)to perform, show or play the work in public (see section 19);

[F(d)to communicate the work to the public (see section 20);]

(e)to make an adaptation of the work or do any of the above in relation to an adaptation (see section 21);

and those acts are referred to in this Part as the “acts restricted by the copyright”.

(2)Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.

Copyright, Designs and Patents Act 1988
The acts restricted by copyright in a work 16.

(3)References in this Part to the doing of an act restricted by the copyright in a work are to the doing of it—

(a)in relation to the work as a whole or any substantial part of it, and

(b)either directly or indirectly;

and it is immaterial whether any intervening acts themselves infringe copyright.

Adaptation in relation to a literary or dramatic work means translation, conversion of a dramatic work into a non-dramatic work or vice versa, or a version of a work in which the story or action is converted wholly or mainly by means of pictures into a form suitable to be reproduced in a book or periodical. In relation to a musical work it is an arrangement or transcription of the work. For a computer program or database adaptation means an arrangement or altered version of it or a translation of it.

Consequently, unauthorized recording of any works of copyright by any method, even if transient or incidental, will infringe.

Infringement by issue of copies to the public 18.(1)The issue to the public of copies of the work is an act restricted by the copyright in every description of copyright work.

AARON – DOCTOR MYSTIC have been performing in the Club the CD they have just released (which imitates the musical style and rhythm of his soundtrack):

Musical works Section 3(1)

‘A musical work is one consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music’.

The acts restricted by copyright in a work 16.

(1)The owner of the copyright in a work has, in accordance with the following provisions of this Chapter, the exclusive right to do the following acts in the United Kingdom—

(a)to copy the work (see section 17);

(b)to issue copies of the work to the public (see section 18);

[F(ba)to rent or lend the work to the public (see section 18A);]

(c)to perform, show or play the work in public (see section 19);

[F(d)to communicate the work to the public (see section 20);]

(e)to make an adaptation of the work or do any of the above in relation to an adaptation (see section 21);

and those acts are referred to in this Part as the “acts restricted by the copyright”.

(2)Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.

Infringement by performance, showing or playing of work in public 19.

(1)The performance of the work in public is an act restricted by the copyright in a literary, dramatic or musical work.

(2)In this Part “performance”, in relation to a work—

(a)includes delivery in the case of lectures, addresses, speeches and sermons, and

(b)in general, includes any mode of visual or acoustic presentation, including presentation by means of a sound recording, film[F1or broadcast]of the work.

(3)The playing or showing of the work in public is an act restricted by the copyright in a sound recording, film[F1or broadcast].

(3)References in this Part to the doing of an act restricted by the copyright in a work are to the doing of it—

(a)in relation to the work as a whole or any substantial part of it, and

(b)either directly or indirectly;

and it is immaterial whether any intervening acts themselves infringe copyright.

Consequently, unauthorized recording of any works of copyright by any method, even if transient or incidental, will infringe.

Authorisation (E-Club?)

It is an infringement to grant or purport to grant to a third person the right to do the act complained of.

Turning a blind eye to infringement.

Secondary infringement: permitting use of premises for infringing performance 25.(E-Club?)

(1)Where the copyright in a literary, dramatic or musical work is infringed by a performance at a place of public entertainment, any person who gave permission for that place to be used for the performance is also liable for the infringement unless when he gave permission he believed on reasonable grounds that the performance would not infringe copyright.

BALD LIES – DOCTOR MYSTIC also performed in E-Club a song that is very much like one of the songs that BALD LIES recorded with Aaron for the film soundtrack prepared for Lion Films:

10 Works of joint authorship.

Robin Ray v Classic FM plc [1998]

To be a joint author there must be a significant creative contribution which was incorporated into the finished work.

First ownership of copyright 11 (1) (2).

(1)The author of a work is the first owner of any copyright in it, subject to the following provisions.

Aaron interviewed and hired the musicians (a group called Bald Lies).

Bald Lies are thus under Aaron’s employ.(2) applies.

Musical works Section 3(1),

‘A musical work is one consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music’.

The acts restricted by copyright in a work16.

(1)The owner of the copyright in a work has, in accordance with the following provisions of this Chapter, the exclusive right to do the following acts in the United Kingdom—

(a)to copy the work (see section 17);

(b)to issue copies of the work to the public (see section 18);

[F(ba)to rent or lend the work to the public (see section 18A);]

(c)to perform, show or play the work in public (see section 19);

[F(d)to communicate the work to the public (see section 20);]

(e)to make an adaptation of the work or do any of the above in relation to an adaptation (see section 21);

and those acts are referred to in this Part as the “acts restricted by the copyright”.

(2)Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.

Altered copying.

Defendant’s work incorporates a substantial part of the skill and labour involved in the creation of the defendant’s work.

Designers Guild Litd v Russell Williams Ltd

Testis whether the infringer had incorporated a substantial amount of the independent skill and labour of the author.

Infringement by performance, showing or playing of work in public 19.

(1)The performance of the work in public is an act restricted by the copyright in a literary, dramatic or musical work.

(2)In this Part “performance”, in relation to a work—

(a)includes delivery in the case of lectures, addresses, speeches and sermons, and

(b)in general, includes any mode of visual or acoustic presentation, including presentation by means of a sound recording, film[F1or broadcast]of the work.

(3)The playing or showing of the work in public is an act restricted by the copyright in a sound recording, film[F1or broadcast].

Authorisation (E-Club?).

It is an infringement to grant or purport to grant to a third person the right to do the act complained of.

Turning a blind eye to infringement.

Secondary infringement: permitting use of premises for infringing performance 25(E-Club?).

(2)In this section “place of public entertainment” includes premises which are occupied mainly for other purposes but are from time to time made available for hire for the purposes of public entertainment.
BALD LIES – DOCTOR MYSTIC is using 50 seconds from a songwritten by BALD LIES, which is 4 minutes long:

Literary Works Section 3(1).

“literary work” means any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes—

(a)a table or compilation[other than a database],

(b)a computer program;

[(c) preparatory design material for a computer program][and

(d)a database]

Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form.

This includes storing the work in any medium by electronic means.