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Copyright Law
Introduction
In this question I will be addressing the possible rights infringed
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Potentially all of them have been infringed
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• Duration: Copyright lasts in many cases for 70 years after the death of the author of the work
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The work must fall within one of the categories of work:

Authorial work (Content works): Original literary, dramatic, musical or artistic work
Entrepreneurial work (Signal works): Sound recordings, films, broadcasts, or typographical
arrangement of published editions

Individual tangible objects may embody a number of different copyright work
...
g
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LITERARY WORKS

s 3 CDPA 1988
University of London v University Tutorial: It includes all works expressed in print or writing
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Instruction of information:
• Apple Computer v Computer Edge: For a work to provide information or instruction, it must
be capable of conveying an intelligible meaning
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Names:
• Exxon Corp v Exxon Insurance: An invented name so will not be a work that provides
information
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MUSICAL WORKS
Sawkins v Hyperion Records: Mummery LJ stated music is not the same as mere noise
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If there is sufficient effort, skill and labour the work is original
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Includes: The scenario or script for films; Plays (written for the theatre, cinema, television or radio)
Choreographic works

ARTISTIC WORKS
Includes:
A
...
A work of architecture being a building or a model for a building
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A work of artistic craftsmanship

A graphic work, photograph, sculpture or collage
Paintings:
• Merchandising v Harpbond: Facial painting is not protected by copyright
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The Supreme court held that a plug and mould used for
swimming pools is protected by copyright
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A work of artistic craftsmanship
What is ‘artistic’?
• Hensher v Restawile: Concerned a mass-market upholstered chair
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All their Lordships agreed that the chair was not artistic but different in their explanations:

Lord Reid: Test: Whether the public can get ‘pleasure or satisfaction from looking at it
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Lord Kilbrandon: Whether something is artistic depends on why the artefact was created
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A work could be artistic
even if it were functional
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The crucial question was ‘the intent of the creator and the result’ which could be
evidenced by expert evidence
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Cf

• Vermaat: The court rejected the decision in Merlet and adopted a new test: This required that
for a work to be artistic, there had to be evidence of creativity
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What is ‘Craftsmanship’?
Does the work have to be handmade?
• Lord Simon said that ‘craftsmanship’ could not be limited to handicrafts
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SOUND RECORDINGS
A ‘sound recording’ means a recording of the whole or any part of a literary, dramatic or musical
work, from which sound reproducing the work or part may be produced
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Gramophone v Cawardine: A soundtrack of a film is sound recording
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This means
the public showing of a film and its soundtrack requires the consent of only the owner of copyright
in the film
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FILMS
“Film” means a recording on any medium form which a moving image may be produced
The soundtrack accompanying a film shall be treated as part of the film in terms of protection
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Published editions of the whole or any
part of one or more literary, dramatic or musical works
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Must be recorded in a material form (for authorial works)
2
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Must be sufficiently connected to the UK
4
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Recorded in material form:
• s 3(2) of the CDPA 1988 provides: The work must be recorded in a material form
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Must be original:
Derivative work:
• It is clear that ‘derivative works’ can be original
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• The derivative work must be original IN ITSELF: Copyright may subsist in a derivative work
even though it might infringe copyright in the existing work (Redwood Music v Chappell)
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- Very low level threshold:
- Christoffer v Poseidon: A work may be original work even though the characters and the
story are neither new or original
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- English courts have accepted such things as railway timetables and exam papers which
were drawn from the stock of knowledge common to mathematicians
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3
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s 154(1): Qualifying person:

•
•
•
•

A British citizen
A person within certain categories of the British Nationality Act
A person whose domicile or residence is in the UK
In cases of joint authorship, if at least one author qualifies as British, the work is
granted protection
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• The publication must be authorised by the author
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- OR Place of Transmission: For Broadcasts:
• Made or sent from the UK

4
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• Glyn v Weston
The scope of the exclusion is however unclear as public policy changes as social customs and
morals change
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This has been explained on the basis that if protection
were to be denied to such works, it would lead to a substantial injustice
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This is presumption made unless the facts
state otherwise
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Authorial work:
s 104: The name that appears on an authorial work or on the work when it is made, shall be
presumed to be the author
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However,
these two figures are often the same person
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THREE requirements:
1
...

Hayes v Phonogram: A contribution of the words of a song will normally give rise to joint
authorship of the literary work, but not of the music
2
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• Cala Homes v Alfred: There is no need for them to be in close proximity to collaborate it is possible for the collaboration to take place over long distances

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Where one person writes a poem and another person translates it into another language =
No collab
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3
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• Where one person adds an introduction to the music in the song they will not be a joint author
- it is not distinct because it is ‘heavily dependent’ on the rest of the tune and by itself would
‘sound odd and lose meaning’

FIRST OWNERSHIP
s 11(1): The author of a work is the first owner of any copyright in it
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NB: An employee will retain moral rights in the works that they create
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The work was made by an employee
2
...
There is no agreement to the contrary

Was the work made in the course of employment?
If the making of the work does not fall within the type of activity than an employer could reasonably
expect or demand form an employee, the ownership belongs to the employee
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The employee was still the first
owner
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You must look at the contract of employment
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D carried out prohibited acts only available to the owner of the copyright
2
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The restricted act was carried out in relation to the work or a substantial part of it

Burden of proof: Francis, Day v Bron: Lord Denning stated the burden of proof is on the claimant
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D carried out prohibited acts only available to the owner of the copyright

•
•
•
•
•
•
•

Reproduction
Distribution
Rental or lending
Adaption
Communication to the public
Public Performance
Authorisation to others to carry on any of the acts

Reproduction
s 17(2)
Reaffirmed in Article 2 of the Information Society Directive
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The reproduction must be made in material form
Sound recordings is not the content but the recording itself
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• A sound-alike does not infringe the copyright work provided credit is paid to the
original writers
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NB in Norowzian it was stated that: While an entrepreneurial copyright will not be infringed where
a new recording of identical or similar sounds or images is made, this might infringe copyright in an
underlying work such as the music, lyrics or screenplay
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- However writing a description of the film, or stages a play replicating events in the film does not
infringe the copyright work
Norowzian v Arks: There is no reproduction where a person records contents of a similar nature
or style to those embodied on the claimant’s (film or sound) recording
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Distribution
s 18 only the owner of a copyright work has the right to issue copies of the work to the public
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What counts as issuing to the public?
Distribution of work which is not already circulated in the EEA
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If a sale transaction occurred in one member state in hit work is unprotected, but delivery occurs in
a second member state in which the work is protected, there may be infringing distribution on the
latter member state (even if there is none in the former)
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The trader must have been aware of the
action of that third party
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The Principle of Exhaustion

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The distribution right applies to the first distribution of a copy; thereafter, the copy can be resold
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There may be a possibility that an owner of copyright can oppose further commercialisation:
Allposters v Stitching: The Court of Justice have been asked to consider the limits to the
exhaustion principle
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The case is pending
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g
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However see Moral Rights
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Public defined by the ‘character of the audience’: Public or private?
• Duck v Bates: Copyright in a play was not infringed when an amateur dramatic club
performed it at a hospital for entrainment of the nurses
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• Under this test, performance in a shop or hotel would be performance to ‘a part of the
general public’ - so long as anyone could enter the shop or hotel
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Public if for financial reasons:
• If the performance is run for profit, it is likely to be ‘in public’
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There was a membership
subscription fee and entry fee
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Public defined as an audience outside the copyright owners public:
• Jennings v Stephens: The performance of a play by the members of a women
institution without charge and without guests was held to be a performance in public
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The overall approach taken from the courts: A performance in places that are open to the public
are performances in public
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Communication to the public
s 20: ‘Making available right’
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Violation of copyright occurs when one broadcasts the work, meaning

• Making it available to the public…
• By electronic transmission…
• In such a way that members of the public may access it from a place and at a time individually
chosen by them
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It will be the proprietor of the “hotel” that infringes the work
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Subsequent cases indicate the Court favours a ‘multi-factor’ approach
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This was fist deployed in SGAE
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THE TEST: Must exam the expectations of the author when the initial communication was made
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Adaption
Owners of films do not own the right to adaption
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g
...
g
...
g
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- Covers, in theory a different arrangement would infringe copyright; in practice, claims have
been served only in those cases in which a cover can damage the original artist
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E
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an amateur dramatic group whose public performance is based on a novel will almost certainly
infringe the adaption right
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Authorisation to others to carry on any of the activities above
s 16(2): “Copyright in a work is infringed by a person who without the licence of the copyright
owner does, or authorises another to do, any of the acts restricted by the copyright”
CBS Inc v Ames Records: A person who supplies films to a cinemas, who sells blank tapes to the
public when renting out records is deemed to have authorised the resulting infringements
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The advertisement stated the model enabled one to
duplicate recordings
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Held: Lord Templeman said that an authorisation means a grant or purported grant of the right to
do the act complained of
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2
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• Austospin v Beehive: This is a matter of fact
Direct evidence: The claimant has direct evidence that the defendant used the copyright work in
order to produce its own
...
g
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The courts can infer derivation:
IPC Media v Highbury Leisure
In order to persuade the court to infer copying, a claimant will need to:
1
...
Evidence that the defendant had access and opportunity to copy the copyright work
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Waterlow v Rose: The claimant may also prove that the infringing work contains the same
arrangement of materials
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Similarities do not necessarily indicate copying:
• In Mitchell v BBC, it was held although there were sufficient similarities between the
characters, namely the characters attire, the colour schemed used and characters ethnic
mixture, evidence from the defendant showed that they had begun work before the Copyright

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work was available and similarities in some of the characters attire was explained as having
been inspired by shared sources
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In order to find this, there must be an assessment of
the whole work
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Kelly v Morris: No one has the right to take the results of the labour and expense incurred by
another for the purposes of rival publication

Once an inference of derivation has been established by the claimant, the onus is on the defendant
to prove that they created the work independently:

3
...


• This is a matter of impression
• Must be determined by its quality rather than quality
• The pirated part is considered on its own and its importance to the copyright work must be
assessed
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Copyright is only concerned with the
parts that are original
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Depth of protection:

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• Entrepreneurial works: The copyright is limited to the form in which the work is fixed
• Authorial works: Literary and dramatic work: Not only are the words protected but also the
plot, the story line, incidents, themes and characters

• Musical works: Melody, phrasing or rhythm, the tempo, a particular orchestration
• Artistic works:
- Krisaris v Briarfine: ‘In a painting of a well-known subject the copyright generally consists
in the choice of viewpoint, the balance of foreground, features in middle ground, and figures
introduced’
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‘A substantial part’ = Whether an important part in the copyright work has been taken
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Newspaper Agency v Marks and Spencers: It is based on quality over quantity: A 3 second
sample could be irrelevant in terms of the musical work but relevant to the sound recording
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There is
clearly originality and creativity in the work
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(i) Distribute or deal with
s 22 - 23: Copyright in a work is infringed by a person who, without the licence of the copyright
owner:

•
•
•
•
•

Imports an infringing copy into the UK otherwise than for their private and domestic use
Possesses an infringing copy in the courts of business
Sells or lets for hire, or offers or exposes for sale or hire, an infringing copy
In the course of business, exhibits in public or distributes an infringing copy; or
Distributes an infringing copy to such an extent as to affect the copyright owner prejudicially

(ii) Facilitating an infringing performance

• Supplying the apparatus which enables the act of primary infringement of playing sound
recordings or show films or

• Occupying premises and giving permission for an apparatus to be brought on to the premises
or

• Supplies a copy of a sound recording or a film
(iii) Providing the means for making infringing copies or performances
s 24(1): A person is liable where they supply an article that is specifically designed or adapted for
making copies of a copyright work
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Rather for the section to operate, the article must be specifically designed for
the copying of a particular work
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NB: The person must know or reasonably believe that his act was facilitating a primary
infringement:
Vermaat v Boncrest (No 2): It is an objective assessment:

- They must have been able to evaluate the information given to them
- AND the information must have been sufficiently detailed - Summary information is not enough
All that matters are the conclusions that a reasonable person who have reached in the
circumstances
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If Y just suspects it from the facts but does not know
and cannot reasonably believe there will be an infringement, Y is not liable
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Fair dealing

2
...


Public interest

4
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Other permitted acts

6
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Fair Dealing
A person will not be liable if they can show: For the purposes of

• Research or private study
• Criticism, parody or review
• Reporting current events
What is fair?
Fairness seems to be an objective standard of whether a fair minded and honest person would
have dealt with the copyright work in the manner in question

Prince of Wales v Associated Newspapers: If the original work is unpublished, the dealing is
unfair
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The more extracts
taken, the less likely is it that the dealing was fair
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Whether there’s been sufficient acknowledgement: i
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the defendant gave credit for the work
to the author of the original author, such copying would seem fair
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A) Fair Dealing for the purpose of Research and Study
s 29(1)
NB: Only applies to authorial works and typographical published works
Contracts that attempt to exclude the operation of the defence are unenforceable
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Must be non commercial research
2
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Dealing must be fair:
• Assess amount taken (Hubbard v Vosper);
• Whether the work was unpublished or readily available (Prince of Wales v Associated
Newspaper);
• The effect that the use of material has on the original work in the market (Hubbard v
Vosper)

B) Fair dealing for the purpose of Criticism, Parody or Review
s 30(1), Parody: s 30A

REQUIREMENTS:
Hubbard v Vosper
1
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Must have been made available to the public
3
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• Q: Is the copying fair to illustrate or support the criticism?
4
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Must be based on a contemporary issue
2
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The fact that something is of interest or in the press does not make it an event, unless the
media coverage is so wide to make an event out of a trivial matter (Newspaper Licensing
Agency v Marks & Spencers)
4
...

5
...

This defence applies to subsequent dealings with the representation

Artists that sell the copyright on their work are still able to copy their earlier works provided that
they do not repeat or imitated a work’s main design
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Public Interest
s 171 (3) acknowledges the common law defence of refusal of copyright protection on public
grounds
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Hyde Park v Yelland: Claimed public interest to the disclosure of the information and the violation
of copyright
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Ashdown v Telegraph Group: The Telegraph published minutes of a meeting with the Prime
Minister
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Telegraphs publication of parts of the minutes could not be
justified by public interest considerations (irrespective of the right to freedom of expression)
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But remember freedom of expression is a public interest it just did not apply in Ashdown
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Broadcasts only! I
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not sound recording or films
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Moral right include:

- Right to attribution - ss 77 et seq
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- The right against false attribution of a work - s 84
- The right to privacy in private photographs and films - s 85
Duration:

• The moral rights of integrity and attribution last for the same time as the copyright in the
relevant work
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Remedies
Infringement of a moral right in the UK is actionable as a breach of a statutory duty and will result
in the award of damages
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Symbolic, economic and cultural consequences: It facilitates the management of intellectual works;
the channeling of royalties; the interpretation of the work; the celebration, reward and sustenance
of authorial taken to genius
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The work is a literary work, musical dramatic, artistic work or film
2
...

Asserting the right:
1
...

2
...


Waiving the right
s 87: The right can be waived if in writing and signed
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The author has not been properly identified

• The name of the author must appear in or on each copy of the work in a clear and
reasonably prominent manner (s 77(7))
2
...
Artistic work: where the work
is exhibited in public or published commercially
3
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• No infringement where the act amounts to fair dealing for the purpose of reporting current
events by means of a sound recording, film etc
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The right to object to derogatory treatment of the work
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The gallery reduced the size and added colour to the background
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Without
further evidence, the judge said that he could not see how he could draw such a conclusion of
violation of the integrity right
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Exceptions or defences
In the case of works created by employees, the right of integrity does not apply to anything done by
or with the authority of the copyright owner/ employer
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e
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Other protections where derogatory treatment has occurred
If an argument based upon the moral right of integrity fails or is dubious, an author may fall back on
protection under common law or contract
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Contract law: May be a provision that prohibits the defendant from making structural alterations
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Right against False Attribution of a Work
s 84
Provides authors or directors the right not to be named on works that they have not created
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Clark v Associated Newspapers: The title of the articles described the diaries as being those of
Clark but also said the events described were in fact in fact as the real author imagined Clarke
might have recorded them
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The claimant produced significant evidence that rational person had been deceived
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Exploiting the Copyright
Who can exploit the copyright?
This can only be done by the owner (Beloff v Pressdram)
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Multiple assignments or license are possible i
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they can be used by different people at the same
time
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s 90(2): Not all the copyright need be assigned: Most copyright work can be split into separate
parts - each of them is capable, if significant enough, to be the object of copyright itself
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In writing (invoice or receipt is sufficient)

2
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Indicate clearly the work - although courts have admitted oral evidence to assist in the process
of identification (Batjac v Simitar Entertainment)

A prospective copyright owner can make assignments of future copyright, e
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an author signs a
contract for a work still to be created and transfers its copyright to the other party
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• The owner gives certain individuals licenses to carry out specified activities
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1
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Signed by the licensor or on its behalf

Exclusive licenses grant special rights, such as standing to sue for IP rights infringement
without relying on the IP rights owner
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• If prior contracts grant such rights the licensor will be in BREACH OF CONTRACT with the
previous licensee AND the person to whom that intend to grant exclusivity
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If yes, there is
joint ownership if not, the licensee will become the first owner
...
e
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Such licences may be implied into a contract
Implied licenses
Where all the circumstances suggest that the copyright owner expected the alleged-licensee to use
their copyright material, even though this was never discussed o written down anywhere
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The license is inherent in the nature of the contract
• The contract must fall into a particular class
2
...

• Ray v Classic FM
Philips v BSB: The courts are quite reluctant to admit their existence

Collecting Societies:
Where the rights cannot be enforced via-a-vis individual members of the public or where individual
management would not be appropriate, given the number and type of uses involved, right holders
are granted a remuneration right instead
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