Week 7
The first copyright statute was the British Statute of Anne of 1709. The full title of this was "an act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned".
Copyright can be extended to photographs, films, sound recordings, broadcasts and computer technology (including software and databases).
It has been internalised from the late 19th century onwards and today adds both a global and European dimension to the law.
Currently copyright law is governed by the Copyright, Design and Patents Act 1988 which simplifies the different categories of works that are protected by copyright. This eliminates the treatment of engravings and photographs:
- literary, dramatic and musical works (s. 3): they must be recorded in writing or otherwise to be granted copyright, and copyright begins from when recording takes place
- artistic works (s. 4): includes buildings, photographs, engravings and works of artistic craftsmanship.
- sound recordings and films (s. 5)
- broadcasts (s. 6): a transmission by wireless telegraphy which is intended and capable of reception by members of the public.
- cable programmes (s. 7). A cable programme is a part of a service transmitting images, sound or other information to two or more different places or to members of the public by means other than wireless telegraphy. There are several exceptions however, including general Internet use.
- published editions (s. 8) refers to the published edition of the whole or part of one or more literary, dramatic or musical works.
Copyright has economic functioning which enables the production emanating originally from information, ideas and entertainment to be rewarding for those authors and publishers who have produced them. Copyright also has the non-economic function of providing a legal system the ability to recognise creativity as an aspect of individual personality.
In Sweeney v Macmillan Publishers Ltd, Joyce estate, which owned copyright in Ulysses and preparatory material , claimed that a new edition of the material produced was an infringement of the author's copyright. It was held that copyright subsisted in each chapter and perhaps every page or even sentence of Ulysses, as it was an original piece. However, as each passage was to be incorporated into a larger work, copyright should be regarded as existing in the whole piece, rather than constituent parts.
In Robin Ray v Classic FM, the high court ruled that a contractor providing services owns the intellectual property in the materials created for their client.
In Coffrey v Warner/Chappell Music Ltd, Chappell wrote the music and lyrics to a song called 'Forever after'. Chappell claimed that the copyright for this song had been infringed by another song. The issue was whether these parts, that were contained in a larger piece of work could by themselves constitute another work. It was held that, when taken in isolation, three features were not, when taken in isolation, sufficiently separable from the remainder of the song to be considered a musical work in its own right and it did not amount to a substantial part of 'forever after' as a whole.
The general principle is that copyright protects the expression of a work rather than ideas.
Lord Hoffman in Designers Guild Ltd v Russell Williams Ltd stated that the connection between an unpredictable idea into a copyright expression was the degree of originality, skill, labour and time depicted by the author.
Pixx Products v Winstone held that although each case should be judged on their own independent facts, it can be inferred that a higher level of generality or abstraction in terms of the idea of the work, the less likely it is to be protected as such.
In the case of Interlego AG v Tyco Industries Inc, concerned the artistic copyright claimed in engineering drawings modifying an earlier design by the same author, the Lego company. 'Nobody draws a tolerance, nor can it be reproduced three dimensionally' - Lord Oliver. This is important as literary copyright knows no equivalent to the artistic copyright's concept of 3D infringement.
Fixation refers to the concept set out in the Berne convention which says that copyright subsists in literary and artistic works in terms of 'whatever may be made of formed of its expression' (Art 2(1)). However, this does allow for the law 'to prescribe that works in general or any specified category of works shall not be protected unless they have been fixed in some permanent form' (Art 2(2)). So, copyright does not subsist in a literary, dramatic or musical work unless and until recorded in writing or otherwise (s.3(2)).
In Norowzian v Arks Ltd (No.2), Norowzian produced a film called 'Joy'. It showed a man dancing to music. The use of an editing technique known as 'jump cutting' made it appear that a man was making sudden changes in positions, that were not possible as successive movements in reality. Rattee J said that 'Joy, unlike some films, it is not a recording of a dramatic work , because, as a result of a drastic editing process adopted by Norowzian , it is not a recording of anything that was or could be danced or performed by anyone...'.
'Originality does not in this sense mean that the work must be an expression of originality or inventive thought. Copyright acts not with the originality of ideas, but with the expression of thought...originality which is required relates to the expression of the thought' - Peterson J.
'What is worth copying is worth protecting' - Peterson J.
In George Hensher Ltd v Restawire Upholstery (Lanchashire Ltd), it was up to the judge to determine whether a rough prototype for a suite of furniture was a work of artistic craftsmanship. It was held that the prototype was not a work of artistic craftsmanship.
In Green v Broadcasting Corporation of New Zealand, the Privy Council had to grapple with the question of whether a few catchphrases used constantly by the host of a television show ('opportunity knocks') constituted a dramatic work. It was held that it did not amount to a dramatic work.
Effort, skill and labour
In Cramp v Smythson it was held that tables and information printed on part of a pocket diary had no copyright because selection and appointment had not required the exercise of any judgement or taste by the complier.
In Exxon Corporation v Exxon Insurance, the claim was for a literary copyright in the single word 'exxon'. The failure concerned not being able to achieve the production of a literary work, rather than originality, but the point to be stressed is that effort, skill and labour by itself is not necessarily enough to get copyright.
Derivative works:
A new copyright is to be created concerning alterations to text which must be extensive and substantial.
In Black v Murray, it was held that the changes made in Black's second edition of material had their own copyright, but that Murray's takings were substantial and infringed copyright, but only in relation to the editorial notes.
In Walter v Lane, the House of Lords allowed the Times newspaper copyright in reporter's verbatim transcript of a speech by Lord Roseberry, a leading politician. The reporters work was derivative, but the creation had involved expenditure of individual skill and effort.
Robertson v Lewis depicted the current judicial view, which tends to favour a reporter's copyright.
On the 14th December 2009, the European commission welcomed the ratification of the World Intellectual Property Organisation (WIPO) copyright treaties. So-called 'internet treaties' have now been introduced which are intended to make the world's copyright laws 'fit for the internet.'
"Today is an important day for the European Union and its Member States and WIPO. We, as a group have shown our attachment to the international system of protection of copyright and related rights. These two treaties brought protection up to speed with modern technologies. As the technological evolution accelerates, protecting creators and creative industries is more urgent than ever" - Charlie McCreevy, Internal Market Commissioner.
excellent work - very useful up to date examples
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