CLIP
Copyright & Copyright Infringement Consolidation
Copyright subsistence and ownership
1. Identify work
• See s.1 CDPA and chapter
• S.4(1)(a): graphic works, photographs, sculptures and collages
o Qualify as a work irrespective of artistic merit
o Sculpture not really defined in s.4(2) – limits of what counts as a sculpture isn’t clear.
o S.4(1)(c): works of artistic craftsmanship
▪ Craftsmanship denotes skill, expertise and pride in sound workmanship
▪ Artistic craftsmanship suggests craftsmanship with some aesthetic dimension. Its maker
must have intended that simply looking at it should give us some pleaser or satisfaction.
▪ This is a question of fact. In helping to determine a work of artistic craftsmanship, first
decide whether or not it is a work of craftsmanship in the first place – e.g. being
handmade suggests craftsmanship.
• A product designed to be mass produced on a production line is very unlikely to
qualify as a work of artistic craftsmanship.
2. Fixed s.3(2)?
• Whether recorded in writing or otherwise.
• Artistic works and typographical are fixed by their nature.
3. Original s.1(1)(a)?
• Refer to the facts and say based on the facts it appears to be original (or would require further checking,
but seems original).
4. Expired?
• The author is the person who creates the work (s.9(1))
• Joint ownership test found in s.10(1)
• Duration
o The term of copyright for primary works is the end of the year in which the author died plus 70
years(s.12(2)).
o Typographical layout of a published edition – 25 years from the end of the calendar year in which
the edition was first published (s.15)
5. Conclusion on whether copyright subsists/doesn’t subsist.
6. Ownership
• The author of a work is generally the first owner of copyright in it (s.11(1))
• Exception: where a work is made by an employee in the course of employment. The employer is the first
owner of copyright, subject to any agreement to the contrary (e.g. a term in the contract) – s.11(2))
o This has to be in the normal course of their employment – if entirely different, provision won’t
apply.
7. Conclude
NB: ensure you conclude at each stage
• Commissioned works
o As a general rule the author, not the commissioner, will own the copyright in the first instance. If the
commissioner wishes to own copyright in the work once it has been created, it will need to address
the point directly (ideally through an assignment or license).
o If no agreement has been made, the courts are likely to imply a right for the commissioner to use the
work, strictly limited to such use as was envisaged by the parties at the time of the commission.
▪ Normally, any use of the work by the commissioner beyond that point will be a breach of
implied licence and therefore infringement of copyright.
Copyright Infringement
• Is there an infringing act?
o Copying: s.16(1)(a) and s.17
▪ Copying means reproducing in any material form.
▪ For artistic works only, infringement can occur by ‘dimensional shift’ copying – e.g. copying a
drawing (which is two-dimensional) to make a sculpture (which is three-dimensional) (s.17(3))
o Issuing copies of work to the public s.16(1)(b) and s.18
▪ Example = printing physical copies of a book that hasn’t been published yet and selling them
▪ Public interpreted widely
o Performing, showing or playing the work in public s.16(1)(c) and s.19
▪ Examples = performing a play or playing music in public without permission
▪ To determine if the performance was in public, the court wouldn’t base its decision on the
number of people present but instead would look at the nature of audience – ie if it wasn’t a
purely domestic occasion.
o Communicating a work to the public s.16(1)(d) and s.20
▪ This is restricted to an act of communication by electronic means and includes broadcasting
and transmission on TV. This includes the internet (s.20(2)(b)
Copyright & Copyright Infringement Consolidation
Copyright subsistence and ownership
1. Identify work
• See s.1 CDPA and chapter
• S.4(1)(a): graphic works, photographs, sculptures and collages
o Qualify as a work irrespective of artistic merit
o Sculpture not really defined in s.4(2) – limits of what counts as a sculpture isn’t clear.
o S.4(1)(c): works of artistic craftsmanship
▪ Craftsmanship denotes skill, expertise and pride in sound workmanship
▪ Artistic craftsmanship suggests craftsmanship with some aesthetic dimension. Its maker
must have intended that simply looking at it should give us some pleaser or satisfaction.
▪ This is a question of fact. In helping to determine a work of artistic craftsmanship, first
decide whether or not it is a work of craftsmanship in the first place – e.g. being
handmade suggests craftsmanship.
• A product designed to be mass produced on a production line is very unlikely to
qualify as a work of artistic craftsmanship.
2. Fixed s.3(2)?
• Whether recorded in writing or otherwise.
• Artistic works and typographical are fixed by their nature.
3. Original s.1(1)(a)?
• Refer to the facts and say based on the facts it appears to be original (or would require further checking,
but seems original).
4. Expired?
• The author is the person who creates the work (s.9(1))
• Joint ownership test found in s.10(1)
• Duration
o The term of copyright for primary works is the end of the year in which the author died plus 70
years(s.12(2)).
o Typographical layout of a published edition – 25 years from the end of the calendar year in which
the edition was first published (s.15)
5. Conclusion on whether copyright subsists/doesn’t subsist.
6. Ownership
• The author of a work is generally the first owner of copyright in it (s.11(1))
• Exception: where a work is made by an employee in the course of employment. The employer is the first
owner of copyright, subject to any agreement to the contrary (e.g. a term in the contract) – s.11(2))
o This has to be in the normal course of their employment – if entirely different, provision won’t
apply.
7. Conclude
NB: ensure you conclude at each stage
• Commissioned works
o As a general rule the author, not the commissioner, will own the copyright in the first instance. If the
commissioner wishes to own copyright in the work once it has been created, it will need to address
the point directly (ideally through an assignment or license).
o If no agreement has been made, the courts are likely to imply a right for the commissioner to use the
work, strictly limited to such use as was envisaged by the parties at the time of the commission.
▪ Normally, any use of the work by the commissioner beyond that point will be a breach of
implied licence and therefore infringement of copyright.
Copyright Infringement
• Is there an infringing act?
o Copying: s.16(1)(a) and s.17
▪ Copying means reproducing in any material form.
▪ For artistic works only, infringement can occur by ‘dimensional shift’ copying – e.g. copying a
drawing (which is two-dimensional) to make a sculpture (which is three-dimensional) (s.17(3))
o Issuing copies of work to the public s.16(1)(b) and s.18
▪ Example = printing physical copies of a book that hasn’t been published yet and selling them
▪ Public interpreted widely
o Performing, showing or playing the work in public s.16(1)(c) and s.19
▪ Examples = performing a play or playing music in public without permission
▪ To determine if the performance was in public, the court wouldn’t base its decision on the
number of people present but instead would look at the nature of audience – ie if it wasn’t a
purely domestic occasion.
o Communicating a work to the public s.16(1)(d) and s.20
▪ This is restricted to an act of communication by electronic means and includes broadcasting
and transmission on TV. This includes the internet (s.20(2)(b)
