Basics and subsistence

Basics and subsistence

1. I. The basics of copyright

   • (i) UK law
     • Basic protection is prevention from another person exploiting your work in certain ways
     • If you valuable work does not fit into these categories then it cannot be protected by copyright law
     • more commercially bent but slow shift towards EU law
     • Copyright, Designs and Patents Act 1988
       • copyright subject-matter is contained in an exhaustive list
         • CDPA 1988 s 1(1)
           •    Copyright is a property right which subsists … in the following descriptions of work – (a) original literary, dramatic, musical or artistic works, (b) sound recordings, films or broadcasts   (c) the typographical arrangement of published editions   
           • (a) [WHAT MIGHT BE TERMED CLASSIC COPYRIGHT OR IN CONTINENTAL SYSTEMS “AUTHOR’S RIGHTS”] (b) [WHAT MIGHT BE CALLED MEDIA WORKS OR IN EUROPEAN SYSTEMS ARE CALLED NEIGHBOURING RIGHTS] 
           • classical copyright ("author's rights")
           • media works (neighbouring rights)
           • (a) original literart, dramtic, musical or artistic works
             • This is very different from the EU approach
             • Original
               • if you seperated it into original and work the traditional approach of the courts is to take apragmatic view. As we'll see the otion of original has been taken as to 'originate from'
               • The notion of work can be justified on the basis of 'effort'
               • University of London Press Ltd v. University Tutorial Press [1916] 2 Ch 601
                 • it originates from the author - a very low level requirement, so not a difficult barrier fo the claimant to overcome
             • Works
               • There is no need to show creativity
               • INPUT
                 • The author must have expressed enough work, labour, skill or taste to attract copyright protection
                 • the valuable must satisfy a certain minimum standard of effort
                   • Preliminary labour
                     • Greyhound Racing Association v. Shallis [1923-1928] MCC 370
                     • Demerara Turf Club v. Phana (1962) GWIR 177
                   • relatively mundane works can be protected
                     • Elanco Products Ltd v Mandops (Agrochemical Specialists) Ltd [1979] FSR 46
               • OUTPUT
                 • what is produced must be substantive enough to merit the name "work"
                   • Exxon Corporation v. Exxon Insurance Consultants Ltd [1982] Ch.119; [1981] 3 All ER 241
                   • slogan or title of book not substantive enough?
                     • Infopaq
                       • European courts said that a newspaper headline could attract copryright proection, and an extract from the article 10 or 11 words
                       • Newspaper Licensing Agency Ltd v Meltwater Holding BV [2011] EWCA Civ 890
                         • UK law has changed
                         • a single word would not attract copyright - the CJEU notes that the choice or combination or words is necessary for intellectual creation
                   • Derivative works
                     • you must seek permission from the copyright owner, (you will have to probably pay the owner some royalties) the act of transaltion is copying as well
                     • derivative works are capable of attracting their own copyright
                     • artistic derivative works
   • (ii) The Nature and Mechanics of Copyright
   • (iii) The Rationale of Copyright
   • (iv) idea/expression dichotomy
   • (v) Berne Convention
   • (vi) EU harmonisation
     • natural rights/reward

2. II. Copyright Subsistence: Identification of Protectable Works

   • (i) Copyright - Protectable works in UK law
     • (a) How do the courts define "original work"? What is the approach to establishing originality?

3. definitions

   • s 3 CDPA 1988
     • s 3(1)
       • literary work means any work, other than a dramatic or musical work, which is written spoken or sung
       • Peterson J in University of Longon Press Ltd v University Tutorial press Ltd [1916] 'irrespective of the question whether the quality or style is high'
       • literary work
       • dramatic works
         • for a tv drama you will have both literary work and dramatical works - can you copyright the format/concept?
         • Norowzian v. Arks Ltd & Guinness [2000] F.S.R 363
           • a work of action ... capable of being performed before an audience
         • format being a dramatic work
           • Green v. Broadcasting Corpn of New Zealand [1989] 2 All ER 1056
             • there was a copycat that had a clap-o-meter and they had catch phrases too
             • the way that he describes his format, there is no certainty of what will happen and because there is not unity there is no way that it can be called a dramatic work
             • must have sufficient "unity"
           • game or talent format
             • you will have to show the courts a clear framework from beginning to end, what the component parts are and what the detailed production are - the more details you have the more likely you are to have your work copyrighted
           • structured reality show
             • if you haven't got a script you have to have something that is capable of being performed
             • . In order to say show that a show ike this attracts copyright, there has to be a detailed analysis about the kinf of interaction that will be showed in the show. The more details there are the likely there will be a scriptwe are assuming there is no script - the key features are the characters (personalities) and there interactions
             • TOWIE
               • http://clients.squareeye.net/uploads/essex/documents/2014_EntLR_Issue_2_Print_Brown.pdf
       • musical works
         • s 3(1) "musical work" means a work consisting of music, exclusive of any words or action intended to be sung, spoken performed with the music.
         • Can silence be music?
           • could be seen as a dramatic work if we focus on the act of the performer
           • There is no action for Unfair Competition in the UK so claimants look elsewhere (shoehorning their works into s 3 CDPA 1988 because the lack of definitions opens it up for interpretation)
   • s 4(1)
     • it doesn't require he need for fixation. what if you created an ice sculpture? it doesn't matter if it is a transient product
     • artistic works
       • we are not looking at s 4(1)(b) we are looking at the pigeon holes that appear for s 4(1)(a) and (c)
       • s 4(1)(a) a graphic work, photograph, sculpture or collage
         • s 4(2) 'graphic work' includes:
       • s 4(1)(c) a work of artistic craftmanship
         • it does not have the proviso seen in s 4(a) which means that you have to concentrate on quality also
         • (i) no attempt to conceptualise the concept of artistic work - the state simply lists things taken to be artistic (ii) the Act specificies that copying of an artistic work incldues making of a 3D copy from a 2D work and vice versa (iii) there is no statutory requirement of fixation for artistic works. There is conflicting case law on this point
       • Creation Records v News Group [1997] EMLR 444
         • http://nipclaw.blogspot.co.uk/2012/01/copyright-in-photographs-temple-island.html
     • main pigeon holes
       • Graphic work: painting
         • Merchandising Corp v Harpbond [1983] FSR 32, CA
       • Collage
         • first case after the 1988 Act in collage
         • either a collection of unrelated things
         • a collection using adhesive
       • Sculpture