Commercial Law and
IP
BPP Exam notes 2022
1
, Exam structure:
• Exam papers based off learning outcomes
• Both papers mixed IP and commercial law.
2
, SGS 1: COPYRIGHT
EXAM FOCUS SGS 1: see page 20 LA
Exam structure
• Identify relevant facts
• State the law
• Apply the law
• Conclude
• suggest practical steps to avoid infringing copyright of third parties.
•
COPYRIGHT:
Overview:
• Copyright protects the expression of ideas, rather than the ideas themselves.
• Rights subsist automatically for protected works.
• The length of protection depends upon the nature of the work.
• Copyright is governed by the Copyright, Designs and Patents Act 1988 ("DPA"). All references
in this chapter are to the CDPA.
EXAM QUESTION STRUCTURE:
SUBSISTENCE OF COPYRIGHT
STEP 1: Identify the category of the work.
Copyright arises when a person creates a work covered by the Copyright, Designs and Patents
Act 1988. It subsists automatically, so there is no need to register copyright. The following are
all protected by copyright under s. 1(1):
• Literary, dramatic, musical and artistic works;
• Sound recordings, films and broadcasts; and
• Typographical arrangements of published editions.
Further guidance and definitions of these terms are provided in ss. 3 - 8.
a) Literary works:
"Literary work" means any work, other than a dramatic or musical work, which is written,
spoken or sung - s. 3(1). This does not include single words (Exxon). However, it can
include newspaper headlines (Meltwater Holdings). There is no test as to the quality of the work, but
it should be intended to afford information, instruction, or pleasure (Hollinrake v Truswell).
Lyrics would be literary work
b) Dramatic works:
"Dramatic work" includes a work of dance or mime - s. 3(1).
C) Musical works:
"Musical work" means a work consisting of music (e.g. the tune of a song), but exclusive of any
words or action intended to be sung, spoken or performed with the music (e.g. the lyrics to a song,
which would be separately protected as a literary work) -s.3(1).
3
, d) Artistic works:
"Artistic work" means:
I. Graphic works, photographs, sculptures, or collages (s. 4(1)(a)) - this is interpreted flexibly -
no artistic merit is needed;
II. Works of architecture (s. 4(1)(b)) - this includes models of buildings; or
III. Works of artistic craftsmanship (s.4(1)(c). No statutory definition, but it is a high threshold. It
must have aesthetic appeal and be made by a craftsperson.
a. The requirement will usually be met if there is some element of craftsmanship or special
skill if the work is handmade and the creator takes pride in the work.
b. Items which are mass produced on production line unlikely to be WOAC.
c. It is a question of fact.
d. Includes: furniture, jewellery, etc.
Step 2: FIXATION
• A work must be fixed to gain protection. This means it must have been recorded in writing or
otherwise - s.3(2)
Step 3: ORIGINALITY
• In order to gain copyright protection, works falling within s.1(1)(a) must be original.
• This is a low threshold which has nothing to do with creative spark or inventiveness. It simply
means that the works originated from the author, and it was not copied from somewhere else.
• However, there does need to be some element of effort on the part of the creator
Special requirements:
Typographical arrangements:
• see s.8
Databases:
• require a higher level of originality than other literary works. The way that the content of the database
has been selected or the arrangement of its fields of data It must be the author’s intellectual creation
in order to be regarded as original – s. 3A(2)
Separate copyrights in same thing
• It’s possible for two or more copyrights to subsist independently in very similar or even identical
works, provided that one is not copied from the other. I.e. photographs of same subject.
Derivative works
• A work of any category can be based on, or include elements taken from, a pre-existing work
De minimis
• some works may be just too small to qualify for protection i.e. ‘pull ring tab to open’, the names
‘Kojak’ and ‘Hitachi’ and the song title ‘The Man who Broke the Bank at Monte Carlo’.
• But NB; a newspaper headline is in principle capable of being an original literary work protected by
copyright in its own right
Ideas v Expression
• Ideas are not usually protected
o Baigent case They did not claim that Dan Brown had copied the actual text of their book
but argued that he had taken key ideas expressed in their book and this was held not to be
copyright infringement
4
IP
BPP Exam notes 2022
1
, Exam structure:
• Exam papers based off learning outcomes
• Both papers mixed IP and commercial law.
2
, SGS 1: COPYRIGHT
EXAM FOCUS SGS 1: see page 20 LA
Exam structure
• Identify relevant facts
• State the law
• Apply the law
• Conclude
• suggest practical steps to avoid infringing copyright of third parties.
•
COPYRIGHT:
Overview:
• Copyright protects the expression of ideas, rather than the ideas themselves.
• Rights subsist automatically for protected works.
• The length of protection depends upon the nature of the work.
• Copyright is governed by the Copyright, Designs and Patents Act 1988 ("DPA"). All references
in this chapter are to the CDPA.
EXAM QUESTION STRUCTURE:
SUBSISTENCE OF COPYRIGHT
STEP 1: Identify the category of the work.
Copyright arises when a person creates a work covered by the Copyright, Designs and Patents
Act 1988. It subsists automatically, so there is no need to register copyright. The following are
all protected by copyright under s. 1(1):
• Literary, dramatic, musical and artistic works;
• Sound recordings, films and broadcasts; and
• Typographical arrangements of published editions.
Further guidance and definitions of these terms are provided in ss. 3 - 8.
a) Literary works:
"Literary work" means any work, other than a dramatic or musical work, which is written,
spoken or sung - s. 3(1). This does not include single words (Exxon). However, it can
include newspaper headlines (Meltwater Holdings). There is no test as to the quality of the work, but
it should be intended to afford information, instruction, or pleasure (Hollinrake v Truswell).
Lyrics would be literary work
b) Dramatic works:
"Dramatic work" includes a work of dance or mime - s. 3(1).
C) Musical works:
"Musical work" means a work consisting of music (e.g. the tune of a song), but exclusive of any
words or action intended to be sung, spoken or performed with the music (e.g. the lyrics to a song,
which would be separately protected as a literary work) -s.3(1).
3
, d) Artistic works:
"Artistic work" means:
I. Graphic works, photographs, sculptures, or collages (s. 4(1)(a)) - this is interpreted flexibly -
no artistic merit is needed;
II. Works of architecture (s. 4(1)(b)) - this includes models of buildings; or
III. Works of artistic craftsmanship (s.4(1)(c). No statutory definition, but it is a high threshold. It
must have aesthetic appeal and be made by a craftsperson.
a. The requirement will usually be met if there is some element of craftsmanship or special
skill if the work is handmade and the creator takes pride in the work.
b. Items which are mass produced on production line unlikely to be WOAC.
c. It is a question of fact.
d. Includes: furniture, jewellery, etc.
Step 2: FIXATION
• A work must be fixed to gain protection. This means it must have been recorded in writing or
otherwise - s.3(2)
Step 3: ORIGINALITY
• In order to gain copyright protection, works falling within s.1(1)(a) must be original.
• This is a low threshold which has nothing to do with creative spark or inventiveness. It simply
means that the works originated from the author, and it was not copied from somewhere else.
• However, there does need to be some element of effort on the part of the creator
Special requirements:
Typographical arrangements:
• see s.8
Databases:
• require a higher level of originality than other literary works. The way that the content of the database
has been selected or the arrangement of its fields of data It must be the author’s intellectual creation
in order to be regarded as original – s. 3A(2)
Separate copyrights in same thing
• It’s possible for two or more copyrights to subsist independently in very similar or even identical
works, provided that one is not copied from the other. I.e. photographs of same subject.
Derivative works
• A work of any category can be based on, or include elements taken from, a pre-existing work
De minimis
• some works may be just too small to qualify for protection i.e. ‘pull ring tab to open’, the names
‘Kojak’ and ‘Hitachi’ and the song title ‘The Man who Broke the Bank at Monte Carlo’.
• But NB; a newspaper headline is in principle capable of being an original literary work protected by
copyright in its own right
Ideas v Expression
• Ideas are not usually protected
o Baigent case They did not claim that Dan Brown had copied the actual text of their book
but argued that he had taken key ideas expressed in their book and this was held not to be
copyright infringement
4
