1
Q
Fixation requirement
A
Copyright arises automatically, but does not subsist in LDMA works unless and until they are recorded in writing or otherwise.
2
Q
To what type of works does the criteria for originality apply?
A
LDMA works, not entrepreneurial works.
3
Q
Can a derivative work be original?
A
Yes, and even if it infringes.
4
Q
UK approach for originality
A
(1) Work is original if it originates with the author and is not copied;
(2) Author exercises the requisite labour, skill and judgement in producing the work (doesn’t require creativity).
5
Q
EU approach to originality
A
Must be the author’s own intellectual creation.
Infopaq:
- 11 word snippet could be original if it was the author’s own intellectual creation (Software Directive previously only applied this to literary works)
- applied this standard across all other subject matter (and became the de facto harmonisation across the EU).
6
Q
Important cases after Infopaq
A
BSA: GUI could be protected by InfoSoc Directive if it was the author’s own intellectual creation
FAPL v QC Leisure: Football matches not protected as they lack the necessary originality (choices must be free rather than dictated by rules)
Painer: Photographs require the author’s own personal touch - free and creative choices.
Football Dataco: creation of football fixtures was not an intellectual creation - need free and creative choices.
Meltwater: newspaper headlines capable of being original literary works.
7
Q
Three ways a work can qualify
A
(1) Authorship, irrespective of whether the work has been published or not
(2) Country of first first publication
(3) Place of transmission for broadcasts
8
Q
Co-authorship
A
Collaboration on a musical work: the writer of the music and of the lyrics are co-authors of the overall piece of work.
9
Q
Joint authorship
A
Contribution by each author is not distinct from the others
Joint owners can:
- sue infringers independently
- bring an action against another joint author
- pass on authorship works (e.g. to heirs)
10
Q
3 criteria for joint authorship
A
(1) Each of the authors contribute to the making of the work
(2) Work produced through process of collaboration
(3) Contributions not distinct
11
Q
Commissioned works
A
Copyright in a commissioned work belongs to the author (i.e. the commissionee) but the court may imply an obligation to assign the copyright to the commissioner (as the beneficial owner).
Important to obtain assignment as part of commission contract.
12
Q
Economic rights
A
- Reproduction right
- Distribution right
- Rental and lending right
- Public performance right
- Communication right
- Adaptation right
All of above in relation to whole or substantial part of work.
13
Q
Interdependent elements of infringing the communication to the public right
A
- An intervention to give access
- Goes beyond the mere provision of physical facilities
- To a public not present where communication originates
- Where the public wouldn’t otherwise have access
- With intention/knowledge
- In hyperlinking cases, must be knowledge that it leads to infringing content
- Relevance of profit making nature
14
Q
SGAE v Rafael Hotels
TV in hotel rooms
A
- Supplying rooms with a TV is not a communication to the public (it is a mere provision of physical facilities)
- Hotel intervened, with knowledge, to give access to protected work
- Was communicating to a new public as it was distinct from the public that the author had in mind when he licensed the broadcasts
15
Q
OSA
Spa
A
- Communicating films and sound recordings to residents of a health spa = communication to the public
- Public: spa is likely to accommodate an indeterminate number (but fairly large) of people, and the guests are a new public
16
Q
Del Corso
Dentists waiting room
A
- Playing radio in dental surgery = a communication,
- But not to the public because the number of patients was small, stable, determined group, and was not played for a profit making nature
- Patients caught by chance
17
Q
REHA Training
Rehab centre
A
- Retransmitting TV broadcasts and installing TVs
- Retransmitting was a communication
- Patients were a new public
- Targeted intervention
- Profit making nature
18
Q
TV Catchup
Live streaming TV
A
- Internet based live streaming service
- Roughly same time as original
- Difficult to say if a new public
- “New technical means” = new public
19
Q
Svensson
Hyperlinking
A
- Linking to freely available material is not a comm to the public as it is not a new technical means and is thus not a new public
- Would be a comm to the public if it bypassed some technical restriction like a paywall as it would be to a new public
20
Q
Bestwater
Embedding videos
A
- Applied Svensson
- Specific mode of linking irrelevant as to if to a new public
21
Q
GS Media
Hyperlinking to unauthorised content
A
- Hyperlinks to protected works that were freely available, but posted without the copyright holder’s consent
- New public as the author had not contemplated making available to “any” public
- Only a C2P where:
Hyperlinker knew/reasonably expected to know that work was posted without consent
Hyperlinking was for profit (raises rebuttable presumption of knowledge) - Notice and takedown regime for private linkers
- Onerous obligation on linkers posting for financial gain
22
Q
Filmspeler
Pre-loaded hyperlinks device
A
- Media players with pre-loaded hyperlinks to websites hosting unauthorised content is a C2P
- Pre-loading went beyond the mere provision of physical facilities
- The indespensible intervention
23
Q
The Pirate Bay
A
- Made access to unauthorised works easier
24
Q
Renchoff
Students photo on school website
A
- Student downloaded a photo from a website for an assignment, school posted it on their website
- Uploading without photographer’s consent was a C2P
- Consent only for publication on first website, so to a new public
25
Football Dataco v Sportradar
| Where does the communication take place?
- Sportradar uploaded sports data in Germany onto a server in the Netherlands accessible in the UK.
- Act of communication takes place in the Member state where the person performing the act intended to target members of the public, not any territory that the content could be accessed in.
- The act may also take place where the content was uploaded.
26
Moral rights
- Independent of entrepreneurial rights
- Right to claim authorship
- Right to object to derogatory uses
- No EU harmonisation
27
Paternity (attribution) right
- Applies only to:
• LDMA = author
• Films = director
- Doesn't apply to:
• computer programs/generated works
• Reporting current events
• Contributions to newspapers/magazines
- Must be asserted
28
Integrity right
- Applies only to:
• LDMA = author
• Films = director
- Doesn't apply to:
• computer programs/generated works
• Reporting current events
• Contributions to newspapers/magazines
- No parody defence (only applies to economic rights)
29
Right to object to false attribution
Wrongly named as the author of a work
30
Steps for assessing infringement
(1) Does copyright subsist in the work?
(2) Does copyright still protect the work?
(3) Does the claimant own the copyright or is it a licence?
(4) Has the defendant done an infringing act without the owner's consent?
(5) Is it in relation to a substantial part of the work?
(6) Is there a defence to the infringement?
(7) What remedies are available?
(8) Have any moral rights been infringed? If so, what defences/remedies are available?
31
Primary infringement
Strict liability
Alleged infringer's knowledge is irrelevant
There is an innocent defence which means no damages are available.
32
Requirements for primary infringement
(1) Derivation
| (2) Objective similarity
33
Derivation
Independent creation will not infringe (evidence important here).
Claimant must show derivation, but court may infer due to similarities + access to work.
Where there is an inference, defendant must show independent creation.
Use of errors/sleepers to show derivation.
34
Objective similarity
Easy where whole of work is taken
For partial copying, a substantial part must have been taken.
Infopaq: copying = infringement if it contains the expression of the author's own intellectual creation
35
Designer's Guild
| Flower fabric design
Two designs for a fabric
Defendant's design had 7 similarities with the claimant's. This was enough to prove derivation + similarities.
36
Mitchell v BBC
| Animated kids show
Enough evidence to place the onus on BBC to show independent creation (they did).
Rejected claim of subconscious copying.
37
UK Test for Derivation
| Designers Guild
Qualitative, not quantitative. Relevant importance of what is taken.
Whether substantial part determined by the quality.
Art rather than science.
Will depend on the work.
38
Ideas and expression (Designers Guild)
If ideas are copied and abstracted to a higher degree then it is the idea that has been copied and not the expression.
39
Software infringement
Copying "look and feel" of website not likely to infringe. (Navitaire v EasyJet)
Analogy = emulating a computer program without copying its source code and re-creating a pudding without copying the recipe (Nova v Mazooma)
40
Repeated takings
Regularly taking small insubstantial parts not the same thing as taking a substantial part (NLA v M&S)
41
Summary of UK approach to primary infringement (Designers Guild and Baigent)
(1) What are the similarities between alleged infringement and original work?
(2) What access did the author of the alleged infringing work have to the original?
(3) Did the alleged infringer make use of material derived from original?
(4) Any explanation for the similarities?
(5) Amount to substantial part of the work?
(6) What justifies it being a substantial part of the work?
42
Secondary infringement
Deal in or facilitate the production of infringing copies
Knowledge requirement, but put the secondary infringer on notice
Acts of secondary infringement:
(i) Dealing in (selling/renting etc.) infringing copies
(ii) Facilitating copying by providing equipment or means.
43
Three step test for applying defences
(1) Exemptions must be applied only in certain special cases
(2) Must not interfere with the normal exploitation of the work
(3) Must not unreasonably prejudice the legitimate interests of the rights holder.
44
Temporary copying defence
Mandatory defence by EU
Enables browsing and caching.
45
Fair dealing defences (closed list)
- Research or private study
- Criticism or review
- Quotation
- Reporting current events
- Parody, caricature, pastiche
- Illustration or instruction
(PRICQR)
46
Parody requirements
| Deckmyn
(1) To evoke an existing work whilst being noticeably different
(2) Constitute an expression of humour or mockery.
No acknowledgement requirement.
47
Remedies
- Damages, injunctions, account of profits
- Delivery up or destruction
- Seize infringing articles.
No damages for innocent infringement
Cannot claim both damages and account of profits.
Flagrancy damages available if defendant acted deliberately or couldn't care less.
48
Website blocking orders criteria
(1) defendant must be an ISP
(2) Users and or operators of website must infringe the claimant's copyright
(3) They must use the defendant's services to infringe
(4) Defendant must have actual knowledge of the unlawful activity (by putting on notice)
(5) Injunction must be proportionate (subject to courts discretion)
49
Brussels Recast Regulation
Basic rule = sue defendant in member state of domicile
Except:
- where the matter involves a tort, may sue where the harmful event occurred or may occur.
- if there are multiple defendants, may sue in any of the defendant's member states.
- can bring an action in another member state if both parties agree
50
Football Dataco (Blocking order)
Place where the event occurred was the place where the communication was targeted.
51
Pinckney (Blocking orders)
Rejected the targeted approach in Football Dataco.
Can sue in each member state that the work was accessible in.
52
Hejduk (Blocking orders)
Applied the same ruling as in Pinckney
53
Lucasfilm v Ainsworth (Foreign IP rights)
Lucasfilm could bring an action in the UK for infringement of their US copyright as Ainsworth was domiciled in the UK.
54
Safe harbours (E-Commerce Directive)
ISPs are mere conduits (caching and hosting)
Immune to liability for damages (but not an injunction)
Once notice is given, must be taken down.
General monitoring is prohibited
55
Norwich Pharmacal (disclosure) applications against ISPs
Court must balance rights of copyright owners with ISPs right to do business and the rights of users
56
Database right
Available regardless of originality
Directive doesn't apply to individual elements
15 years protection
Requires the necessary investment
- In the storage and processing of existing information, not in the creation of the information
57
Database copyright
Requires the arrangement of contents to constitute the author's own intellectual creation (Football Dataco v Yahoo!)
Life + 70 years
QM Copyright
flashcards
Decks in class (1)
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