INTERNATIONAL INTELLECTUAL PROPERTY LAW
Contents
Overview............................................................................................................................................2
Copyright...............................................................................................................................................7
Copyright: Infringement..................................................................................................................10
Database Right.....................................................................................................................................16
Trademarks..........................................................................................................................................19
Registered Design Rights.....................................................................................................................32
Unregistered Design Right...................................................................................................................37
Competition.....................................................................................................................................50
1
,Overview
Basic concept of intellectual property is to protect the products, results and rewards of the exercise
of human intellectual and commercial endeavour. Legal right to stop others using the owner’s
property without permission, and to give a monopoly right to exploit that property commercially.
Have to be careful about what things you can protect as ideas etc in some respect belong to
humanity in common.
Different forms of protection:
Protection of business reputation – business exists to make profits and the surest way is to
become known and identified as a reliable and reputable supplier of goods. Have to protect
the identity of the mark of an organisation. TRADE MARKS AND PASSING OFF.
Creative expression – tangible results of creative talents and stopping others from making
free use of those results. COPYRIGHT AND DATABASE PROTECTION.
Designs for shapes and appearances of objects that are intended to be created to that
design, typically by way of manufacture. DESIGN RIGHTS AND UDR.
Inventive – allows someone who has invented something to exploit the commercial
possibilities of their invention for a limited time. PATENTS.
Types of IP
1. Trademarks – brand name or other mark of trade origin
- Highly commercial right
- Protected by registration
- Gives the owner statutory rights under Trade Marks Act 1994
- Registration can be renewed indefinitely, provided the TM does not run foul of
restrictions under the act
- Most countries have a similar system
- If a trademark is not registered it can only be protected by passing off, except in US
where statute expressly provides protection for unreg TMs.
2. Passing off – common law tort enabling a business to defend itself from someone who is
trying to take unfair advantage of the trading reputation of that business
- Less important than TM law, and has less certain outcomes, also diminished by the
increased scope of DR.
- Can often compliment TMs as the scope can reach further.
3. Copyright – right to prevent copying of creative expression, such as writing, art, music,
architecture, film and even computer software.
- Unregistered system, and for an infringement to occur there must have been ‘copying’
- It is the principle IP right in computer programmes and therefore very important today
- The right is not register able and comes into force when the work is first created
- All major jurisdictions are signatories to the Berne Convention which protects
copyrighted works internationally.
2
, 4. Database rights – Protects the use of compilations of information into a database.
5. Registered Design Rights – designs that relate to the appearance of an object can be
registered, but ones that relate solely to its technical function (how it works) cannot.
- Registration gives protection for up to 25 years
6. Unregistered Design Rights - design right protecting features of shape or configuration which
are intended to be made available commercially. This protection can extend for between 10
and 15 years.
7. Patents – commercial IP right
- Registered right, administered by the Patents Office, protecting inventions.
- Patent gives the holder a monopoly of 20 years over the technology revealed in the
patent
- Description of the invention is made public in return for a grant by the Crown of a period
of protection, then after the 20 year period it is public property
- Idea is that inventors get to exploit it for this time as it makes it worth their while
investing time and money into creation, and helps public
8. Confidential information – law of confidence no IP right as such
- Case law governs this
- US has case law and adoption in each state of a version of Model Law known as Uniform
Trade Secrets Act
Registration and Administration
Much IP is protected by registration in public registers.
UK - this is the work of what is now entitled the Intellectual Property Office.
EU - the Office for the Harmonisation of the Internal Market (OHIM)
International – Word Intellectual Property Organisation
Many attempts to harmonise internationally because vital for future growth etc:
Treaty Description
Agreement on Trade - Entered into force in 95
Related Aspects of IPRs - Significant as the first international agreement to :
(TRIPS) 1994 and World establish minimum standards of protection for several
Trade Organisation forms of IP,
mandate civil, criminal and border enforcement
provisions,
be subject to binding and enforceable dispute
settlement
- built on the primary agreements of Paris convention and Berne
convention
- Every member of WTO is subject to TRIPS
- Sets down min standards for availability of 7 forms of IP, with
permissible limitations and exceptions to balance with public
policy
3
, - ‘the floor not the ceiling’
Singapore Treaty of the - Replaced old Trade mark treaty which tried to harmonise TM
Law of Trade Marks 2009 procedures
- Quicker, less costly application procedures
- Introduced harmonised protection period – initially 10 years,
can be renewed indefinitely
- Streamlined renewal procedures and recording of changes
Nice Agreement 1957 International classification of goods and services:
- Class 1-34 = goods
- Class 35-45 = services
Vienna Agreement 1973 classification of logos/device marks
Madrid System for - In force 95
International Registration - 85 contracting parties
of TMs 1989 (Madrid - Filing treaty and not substantive harmonisation overseen by
Protocol) WIPO
- Allows applicant to file single application for international TM,
and provides centralised system for any subsequent change
- Application has same effect as national application in each of
designated countries
- If cancelled for any reason in first 5 years, applicant may turn it
into series of national applications retaining the priority
- Application in one country is used as the basis of the app for all
other countries
- EC is a member in itself so CTM can be used as the basis
Hague System for the - 59 contracting parties
International Deposit of - Single application system with WIPOs international bureau,
Industrial Designs centralised system for any subsequent changes
- Locarno classification System Agreement 1968 provides
standardised classification system for designs
Patent Law Treaty 200 - In force 2005
- Harmonised certain patent application procedures:
Simplified application requirements to obtain a filing
date
Limits steps that contracting parties may impose on an
applicant
- Did not harmonise substantive patent law (ie what is
patentable)
- IPC agreement (Strasbourg agreement) 1971: standardised
categories for patents
Patent Cooperation - No such thing as a worldwide patent
Treaty 1970 - Paris convention allows an applicant 1 year priority period to file
an application in the other 170 states
- PCT simplified the application filing to assist inventors:
File an ‘international application’
Applicant has 30 months before committing to expenses
of translation, national filing fees and prosecution in
every country in which they want protection, so they
can evaluate strength of marketing
Bundle of national patents
4
,In the US, the basis for IP protection is art 1 s8 US Cons, which allows congress to ‘promote the
progress of science and useful arts by securing for limited times to authors and inventors the
exclusive right to their respective writings and discoveries.’
5
,Identifying relevant IP rights – Audit-style exam question
Consider:
Can what the client produces be protected:
o Innovative production processes
o Innovative item
o Design drawings
o Brand name/logos
What IP rights may be available, always consider even if they primary way seems obvious
What benefits do the rights give?
Does the client need to make an application to obtain protection?
What right is obtained?
Who owns the right?
How long does it last?
Structure:
For each IPR:
In considering subsistence, only do steps 1-4, if infringement follows, do steps 5 and 6.
1. Identify the right
2. Subsistence – does it subsist? Requirements? Registration?
3. Rights obtained, including duration
4. Ownership
5. Infringement – defences/exceptions
6. Remedies
6
, Copyright
Protects the expression of ideas rather than the ideas themselves.
These rights subsist automatically for protected work and the length of protection depends upon
the nature of work (70 years in most cases).
Governed by Copyright, Designs and Patents Act 1988
Classic Copyright S.1(1) Copyright and copyright works
(a) Original literary, dramatic, musical and artistic works.
(b) Sound recordings, films, broadcast or cable programmes, and
(c) The typographical arrangement of publishes editions.
S.3(1) Literary, dramatic and musical works
(a) Table or compilation other than a database
(b) Computer program
(c) Preparatory design material for a computer program and (d) a database
Dramatic work – includes a work of dance or mime.
Musical work - Consisting of music, exclusive of any words or action intended to
be sung, spoken or performed with the music
S.3(2) Copyright subsists only if the work is recorded in writing or otherwise.
S.4(1) Artistic works
(a) A graphic work, photograph, sculpture or collage, irrespective of artistic
quality
(b) A work of architecture being a building or model of a building
(c) A work of artistic craftsmanship
S.4(2):
‘building’ includes fixed structure/part of
‘graphic work’ includes;
(a) any painting, drawing, diagram, map, chart or plan
(b) any engraving, etching, lithograph, woodcut of similar work
Requirements Originality
- Under s1(1)(a) work must be original and not copied from anything
else
- Originality of expression or form, rather than idea or content
- Fisher v Brooks; organ solo in ‘whiter shade of pale’ has copyright
although based on original theme dating back 3 centuries
Minimum Effort
- Cannot be trivial, there must be a certain minimum amount of effort
gone into the material.
7
, - The minimum effort required is generally low.
- Joint author has to do more than just contribute ideas and has to
participate actively in the creation, Ray v Classic FM plc
Literary works Generally, level of effort required is low.
Almost ‘any work which is expressed in print or writing, irrespective of the
question whether the quality or style is high’ may be protected, University of
London Press v University Tutorial Press [1916]
However, must be substantial to constitute a ‘work’.
- Courts refuse to copyright a single word like EXXON, Exxon Corpn v
Exxon Insurance [1981]
No test for quality of work but it should be intended to afford information,
instruction, or pleasure, Hollinrake v Truswell
Artistic works Divided into;
- Those that fall under s.4 CPDA protected ‘irrespective of artistic quality’
(s(4(1)(a)). Standard of effort required is low.
- Those for which a degree of artistic quality is required, architecture and
works of artistic craftsmanship (s 4(1)(b) and (c)).
Works of Artistic Craftmanship
- Three-dimensional item which is not a sculpture but results from a
combination of artistic and craft skills. E.g. hand-made musical
instruments, furniture or wooden boats.
- Must have an aesthetic appeal and be made by a craftsperson, Hensher
v Restawile Upholstery [1976]
- Key question to ask is did the author intend to create a work of art?
Guild v Eskandar Ltd [2001]
Duration of Life of author + 70 years. 70 years run from the death of the author.
Copyright
If CR vests in employer, it lasts for employee’s life plus 70 years.
For songs, 70-year period runs from the death of the last author of lyrics and
composer of music.
Work of unknown authorship lasts 70 years from year of creation, or
publication, whichever is latest.
Computer-generated work period if 50 years from creation.
Ownership of Initial copyright owned by authors or co-authors s.11(1). Author is the person
copyright in who created the work, s.9.
LDMA works
Commissioned work rests with the author, not the commissioner s.11(1)
- A license is inferred where there is no clause, Blair v Alan [1971]
- Where a photograph or film is commissioned for private and domestic
use, person commissioning the material can prevent publication s.85
8
, If author is employee, the copyright is owned by employer s.11(2)
Moral Rights Author can also be granted certain moral rights under the CDPA which
cannot be assigned (S.94) and are personal to the author. However, they can be
waived.
Apply to LDMA and films.
Right of Paternity (s.77 CDPA)
The right to be identified as author or director, lasting 20 years from death
(s.86(2)). The author must have asserted this right in order to enforce it (s.78).
Right of Integrity (s.89 CDPA)
The right to object to derogatory treatment of work, lasting 70 years from death
(s.86(1)). Can prevent others from mutilating the work or harming its
reputation.
Rights to object to false attribution of work (s.84 CDPA)
Clark v Associated Newspapers [1998] succeeded on the basis that some people
might believe that views expressed in the ‘spoof diary’ column were his own.
Lasts 70 years from death.
Right to privacy of certain photos and films (s.85 CDPA)
Lasts 70 years from death. Intended to be used for private and domestic
purposes.
Entrepreneurial Protects those who invest in creativity i.e. production companies,
Copyright broadcasters, publishers etc.
Differences between Classis vs Entrepreneurial
- No general requirement on originality or minimum effort.
- Only films have moral rights vested in the director.
S5A Sound recordings
(1)
(a) Recording of sounds, from which the sounds may be reproduced, or
(b) Recording of whole or any party of LDM, from which sounds
reproducing the work or part may be produced.
(2) Copyright does nor subsist in sound recordings which are taken from
previous recordings.
S5B Films
(1) Recording on any medium from which a moving image may by any means be
produced
(2) Soundtracks accompanying films are part of film
(4) CR does not exist in film which is a copy taken from a previous film.
S6 Broadcasts
(1) Broadcast means electronic transmission of visual images, sounds or other
information which;
(a) is transmitted for simultaneous reception by members of the public and is
capable of being lawfully received by them
(b) transmitted at a time determined solely by person making transmission for
9
, presentation to members of the public.
Ownership and First ownership goes to the creator of copyright work (s.9) (page 280)
Duration
Establishing creator can be difficult in commissioned work. In A&M Records v
Video Collection [1995] it was held the management company were creators as
they had thought of the idea and taken the financial risk.
Duration
Depends on the type of rights involved:
- Sound recording: 70 years from making or being released, if later
- Film: 70 years from end of life of last to die of principal director, author
of screenplay, author of dialogue, or composer of specially written
music.
- Broadcast: 50 years since first broadcast
- Typographical arrangement: 25 years from end of year of publication..
Copyright: Infringement
Section 16 – Gives copyright owner the exclusive right to copy, publish, perform or show in public
and/or adapt the work. Any acts done without owners’ consent is infringement (s.16(2)).
Section 17 – Copying of LDMA works means reproducing those works in any material form. Artistic
copyright therefore can be infringed by turning two-dimensional image into a three-dimensional
solid object (s.17(3))
Guidance on s.16(3) Infringing copyright does not need to be the whole of copyright and can
Substantial be a substantial part of it. A qualitative test, so copying a line of a poem could
Copyright infringe if that line was significant.
Designer’s Guild v Russell Williams (Textiles) Ltd [2001]
- Two stage test established. Found that copying had taken place in the
first instance. After this inquiry, then the question of whether the
copying was a qualitatively substantial part of the claimant’s created
output should be accessed.
Baigent v Random House Group Ltd [2006]
- Where purported copyright comprised of factual statements and
hypotheses this could be protected by CR only if there was a discernible
‘architecture’ in how they were used and arranged. Central theme of
Claimant’s work was too general a level of abstraction to be protected.
Nova Productions v Mazooma Games
- Assertion of sequence of graphic images showed similarity. However, a
sequence is not graphic work and not protected. There was some
evidence of copying and taking of ideas, however this did not mean a
substantial part of the defendant’s creative form and expression had
been copied. Mere creation of a computer code that gives similar effects
to another is more to do with protecting ideas than expressions.
10
Contents
Overview............................................................................................................................................2
Copyright...............................................................................................................................................7
Copyright: Infringement..................................................................................................................10
Database Right.....................................................................................................................................16
Trademarks..........................................................................................................................................19
Registered Design Rights.....................................................................................................................32
Unregistered Design Right...................................................................................................................37
Competition.....................................................................................................................................50
1
,Overview
Basic concept of intellectual property is to protect the products, results and rewards of the exercise
of human intellectual and commercial endeavour. Legal right to stop others using the owner’s
property without permission, and to give a monopoly right to exploit that property commercially.
Have to be careful about what things you can protect as ideas etc in some respect belong to
humanity in common.
Different forms of protection:
Protection of business reputation – business exists to make profits and the surest way is to
become known and identified as a reliable and reputable supplier of goods. Have to protect
the identity of the mark of an organisation. TRADE MARKS AND PASSING OFF.
Creative expression – tangible results of creative talents and stopping others from making
free use of those results. COPYRIGHT AND DATABASE PROTECTION.
Designs for shapes and appearances of objects that are intended to be created to that
design, typically by way of manufacture. DESIGN RIGHTS AND UDR.
Inventive – allows someone who has invented something to exploit the commercial
possibilities of their invention for a limited time. PATENTS.
Types of IP
1. Trademarks – brand name or other mark of trade origin
- Highly commercial right
- Protected by registration
- Gives the owner statutory rights under Trade Marks Act 1994
- Registration can be renewed indefinitely, provided the TM does not run foul of
restrictions under the act
- Most countries have a similar system
- If a trademark is not registered it can only be protected by passing off, except in US
where statute expressly provides protection for unreg TMs.
2. Passing off – common law tort enabling a business to defend itself from someone who is
trying to take unfair advantage of the trading reputation of that business
- Less important than TM law, and has less certain outcomes, also diminished by the
increased scope of DR.
- Can often compliment TMs as the scope can reach further.
3. Copyright – right to prevent copying of creative expression, such as writing, art, music,
architecture, film and even computer software.
- Unregistered system, and for an infringement to occur there must have been ‘copying’
- It is the principle IP right in computer programmes and therefore very important today
- The right is not register able and comes into force when the work is first created
- All major jurisdictions are signatories to the Berne Convention which protects
copyrighted works internationally.
2
, 4. Database rights – Protects the use of compilations of information into a database.
5. Registered Design Rights – designs that relate to the appearance of an object can be
registered, but ones that relate solely to its technical function (how it works) cannot.
- Registration gives protection for up to 25 years
6. Unregistered Design Rights - design right protecting features of shape or configuration which
are intended to be made available commercially. This protection can extend for between 10
and 15 years.
7. Patents – commercial IP right
- Registered right, administered by the Patents Office, protecting inventions.
- Patent gives the holder a monopoly of 20 years over the technology revealed in the
patent
- Description of the invention is made public in return for a grant by the Crown of a period
of protection, then after the 20 year period it is public property
- Idea is that inventors get to exploit it for this time as it makes it worth their while
investing time and money into creation, and helps public
8. Confidential information – law of confidence no IP right as such
- Case law governs this
- US has case law and adoption in each state of a version of Model Law known as Uniform
Trade Secrets Act
Registration and Administration
Much IP is protected by registration in public registers.
UK - this is the work of what is now entitled the Intellectual Property Office.
EU - the Office for the Harmonisation of the Internal Market (OHIM)
International – Word Intellectual Property Organisation
Many attempts to harmonise internationally because vital for future growth etc:
Treaty Description
Agreement on Trade - Entered into force in 95
Related Aspects of IPRs - Significant as the first international agreement to :
(TRIPS) 1994 and World establish minimum standards of protection for several
Trade Organisation forms of IP,
mandate civil, criminal and border enforcement
provisions,
be subject to binding and enforceable dispute
settlement
- built on the primary agreements of Paris convention and Berne
convention
- Every member of WTO is subject to TRIPS
- Sets down min standards for availability of 7 forms of IP, with
permissible limitations and exceptions to balance with public
policy
3
, - ‘the floor not the ceiling’
Singapore Treaty of the - Replaced old Trade mark treaty which tried to harmonise TM
Law of Trade Marks 2009 procedures
- Quicker, less costly application procedures
- Introduced harmonised protection period – initially 10 years,
can be renewed indefinitely
- Streamlined renewal procedures and recording of changes
Nice Agreement 1957 International classification of goods and services:
- Class 1-34 = goods
- Class 35-45 = services
Vienna Agreement 1973 classification of logos/device marks
Madrid System for - In force 95
International Registration - 85 contracting parties
of TMs 1989 (Madrid - Filing treaty and not substantive harmonisation overseen by
Protocol) WIPO
- Allows applicant to file single application for international TM,
and provides centralised system for any subsequent change
- Application has same effect as national application in each of
designated countries
- If cancelled for any reason in first 5 years, applicant may turn it
into series of national applications retaining the priority
- Application in one country is used as the basis of the app for all
other countries
- EC is a member in itself so CTM can be used as the basis
Hague System for the - 59 contracting parties
International Deposit of - Single application system with WIPOs international bureau,
Industrial Designs centralised system for any subsequent changes
- Locarno classification System Agreement 1968 provides
standardised classification system for designs
Patent Law Treaty 200 - In force 2005
- Harmonised certain patent application procedures:
Simplified application requirements to obtain a filing
date
Limits steps that contracting parties may impose on an
applicant
- Did not harmonise substantive patent law (ie what is
patentable)
- IPC agreement (Strasbourg agreement) 1971: standardised
categories for patents
Patent Cooperation - No such thing as a worldwide patent
Treaty 1970 - Paris convention allows an applicant 1 year priority period to file
an application in the other 170 states
- PCT simplified the application filing to assist inventors:
File an ‘international application’
Applicant has 30 months before committing to expenses
of translation, national filing fees and prosecution in
every country in which they want protection, so they
can evaluate strength of marketing
Bundle of national patents
4
,In the US, the basis for IP protection is art 1 s8 US Cons, which allows congress to ‘promote the
progress of science and useful arts by securing for limited times to authors and inventors the
exclusive right to their respective writings and discoveries.’
5
,Identifying relevant IP rights – Audit-style exam question
Consider:
Can what the client produces be protected:
o Innovative production processes
o Innovative item
o Design drawings
o Brand name/logos
What IP rights may be available, always consider even if they primary way seems obvious
What benefits do the rights give?
Does the client need to make an application to obtain protection?
What right is obtained?
Who owns the right?
How long does it last?
Structure:
For each IPR:
In considering subsistence, only do steps 1-4, if infringement follows, do steps 5 and 6.
1. Identify the right
2. Subsistence – does it subsist? Requirements? Registration?
3. Rights obtained, including duration
4. Ownership
5. Infringement – defences/exceptions
6. Remedies
6
, Copyright
Protects the expression of ideas rather than the ideas themselves.
These rights subsist automatically for protected work and the length of protection depends upon
the nature of work (70 years in most cases).
Governed by Copyright, Designs and Patents Act 1988
Classic Copyright S.1(1) Copyright and copyright works
(a) Original literary, dramatic, musical and artistic works.
(b) Sound recordings, films, broadcast or cable programmes, and
(c) The typographical arrangement of publishes editions.
S.3(1) Literary, dramatic and musical works
(a) Table or compilation other than a database
(b) Computer program
(c) Preparatory design material for a computer program and (d) a database
Dramatic work – includes a work of dance or mime.
Musical work - Consisting of music, exclusive of any words or action intended to
be sung, spoken or performed with the music
S.3(2) Copyright subsists only if the work is recorded in writing or otherwise.
S.4(1) Artistic works
(a) A graphic work, photograph, sculpture or collage, irrespective of artistic
quality
(b) A work of architecture being a building or model of a building
(c) A work of artistic craftsmanship
S.4(2):
‘building’ includes fixed structure/part of
‘graphic work’ includes;
(a) any painting, drawing, diagram, map, chart or plan
(b) any engraving, etching, lithograph, woodcut of similar work
Requirements Originality
- Under s1(1)(a) work must be original and not copied from anything
else
- Originality of expression or form, rather than idea or content
- Fisher v Brooks; organ solo in ‘whiter shade of pale’ has copyright
although based on original theme dating back 3 centuries
Minimum Effort
- Cannot be trivial, there must be a certain minimum amount of effort
gone into the material.
7
, - The minimum effort required is generally low.
- Joint author has to do more than just contribute ideas and has to
participate actively in the creation, Ray v Classic FM plc
Literary works Generally, level of effort required is low.
Almost ‘any work which is expressed in print or writing, irrespective of the
question whether the quality or style is high’ may be protected, University of
London Press v University Tutorial Press [1916]
However, must be substantial to constitute a ‘work’.
- Courts refuse to copyright a single word like EXXON, Exxon Corpn v
Exxon Insurance [1981]
No test for quality of work but it should be intended to afford information,
instruction, or pleasure, Hollinrake v Truswell
Artistic works Divided into;
- Those that fall under s.4 CPDA protected ‘irrespective of artistic quality’
(s(4(1)(a)). Standard of effort required is low.
- Those for which a degree of artistic quality is required, architecture and
works of artistic craftsmanship (s 4(1)(b) and (c)).
Works of Artistic Craftmanship
- Three-dimensional item which is not a sculpture but results from a
combination of artistic and craft skills. E.g. hand-made musical
instruments, furniture or wooden boats.
- Must have an aesthetic appeal and be made by a craftsperson, Hensher
v Restawile Upholstery [1976]
- Key question to ask is did the author intend to create a work of art?
Guild v Eskandar Ltd [2001]
Duration of Life of author + 70 years. 70 years run from the death of the author.
Copyright
If CR vests in employer, it lasts for employee’s life plus 70 years.
For songs, 70-year period runs from the death of the last author of lyrics and
composer of music.
Work of unknown authorship lasts 70 years from year of creation, or
publication, whichever is latest.
Computer-generated work period if 50 years from creation.
Ownership of Initial copyright owned by authors or co-authors s.11(1). Author is the person
copyright in who created the work, s.9.
LDMA works
Commissioned work rests with the author, not the commissioner s.11(1)
- A license is inferred where there is no clause, Blair v Alan [1971]
- Where a photograph or film is commissioned for private and domestic
use, person commissioning the material can prevent publication s.85
8
, If author is employee, the copyright is owned by employer s.11(2)
Moral Rights Author can also be granted certain moral rights under the CDPA which
cannot be assigned (S.94) and are personal to the author. However, they can be
waived.
Apply to LDMA and films.
Right of Paternity (s.77 CDPA)
The right to be identified as author or director, lasting 20 years from death
(s.86(2)). The author must have asserted this right in order to enforce it (s.78).
Right of Integrity (s.89 CDPA)
The right to object to derogatory treatment of work, lasting 70 years from death
(s.86(1)). Can prevent others from mutilating the work or harming its
reputation.
Rights to object to false attribution of work (s.84 CDPA)
Clark v Associated Newspapers [1998] succeeded on the basis that some people
might believe that views expressed in the ‘spoof diary’ column were his own.
Lasts 70 years from death.
Right to privacy of certain photos and films (s.85 CDPA)
Lasts 70 years from death. Intended to be used for private and domestic
purposes.
Entrepreneurial Protects those who invest in creativity i.e. production companies,
Copyright broadcasters, publishers etc.
Differences between Classis vs Entrepreneurial
- No general requirement on originality or minimum effort.
- Only films have moral rights vested in the director.
S5A Sound recordings
(1)
(a) Recording of sounds, from which the sounds may be reproduced, or
(b) Recording of whole or any party of LDM, from which sounds
reproducing the work or part may be produced.
(2) Copyright does nor subsist in sound recordings which are taken from
previous recordings.
S5B Films
(1) Recording on any medium from which a moving image may by any means be
produced
(2) Soundtracks accompanying films are part of film
(4) CR does not exist in film which is a copy taken from a previous film.
S6 Broadcasts
(1) Broadcast means electronic transmission of visual images, sounds or other
information which;
(a) is transmitted for simultaneous reception by members of the public and is
capable of being lawfully received by them
(b) transmitted at a time determined solely by person making transmission for
9
, presentation to members of the public.
Ownership and First ownership goes to the creator of copyright work (s.9) (page 280)
Duration
Establishing creator can be difficult in commissioned work. In A&M Records v
Video Collection [1995] it was held the management company were creators as
they had thought of the idea and taken the financial risk.
Duration
Depends on the type of rights involved:
- Sound recording: 70 years from making or being released, if later
- Film: 70 years from end of life of last to die of principal director, author
of screenplay, author of dialogue, or composer of specially written
music.
- Broadcast: 50 years since first broadcast
- Typographical arrangement: 25 years from end of year of publication..
Copyright: Infringement
Section 16 – Gives copyright owner the exclusive right to copy, publish, perform or show in public
and/or adapt the work. Any acts done without owners’ consent is infringement (s.16(2)).
Section 17 – Copying of LDMA works means reproducing those works in any material form. Artistic
copyright therefore can be infringed by turning two-dimensional image into a three-dimensional
solid object (s.17(3))
Guidance on s.16(3) Infringing copyright does not need to be the whole of copyright and can
Substantial be a substantial part of it. A qualitative test, so copying a line of a poem could
Copyright infringe if that line was significant.
Designer’s Guild v Russell Williams (Textiles) Ltd [2001]
- Two stage test established. Found that copying had taken place in the
first instance. After this inquiry, then the question of whether the
copying was a qualitatively substantial part of the claimant’s created
output should be accessed.
Baigent v Random House Group Ltd [2006]
- Where purported copyright comprised of factual statements and
hypotheses this could be protected by CR only if there was a discernible
‘architecture’ in how they were used and arranged. Central theme of
Claimant’s work was too general a level of abstraction to be protected.
Nova Productions v Mazooma Games
- Assertion of sequence of graphic images showed similarity. However, a
sequence is not graphic work and not protected. There was some
evidence of copying and taking of ideas, however this did not mean a
substantial part of the defendant’s creative form and expression had
been copied. Mere creation of a computer code that gives similar effects
to another is more to do with protecting ideas than expressions.
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