Intellectual Property Law 1

Text 1: Copyright

1. Pre-reading tasks

1. Copyright is the exclusive right of the owner to reproduce literary, dramatic, artistic or musical works. In which category would you place the following: a computer program, a compilation of photographs, a map?

2. A single item may be protected by a number of copyrights, which can be owned by different people. What copyrights, do you think, may protect a musical compact disc if you consider everything that can be found under the plastic cover? Read the first section of the text and find out more about it.

3. Read the rest of the text and write in the margin the topic of each paragraph.

Subsistence of Copyright

In the past 15 years or so, intellectual property law has been one of the fastest growing areas of law and it still continues to move at a pace. Intellectual property (IP) is a form of intangible personal property (i.e. property that has no physical existence) that the law recognises as having a value and therefore provides protection. It includes copyright, performers’ rights, database and design rights; patents, trademarks and confidential information. The law in this area is mainly codified, and the majority of recent legislation was passed in order to bring the UK law into conformity with the European Union law.

Copyright is the exclusive right of the owner to reproduce (or authorise others to reproduce) literary, dramatic, artistic or musical works. It is conferred by the Copyright, Designs and Patents Act 1988, which also protects the efforts of those who have invested in these works by producing sound recordings, films, broadcasts and typographical arrangements of published editions. So it is common for one work to attract more than one copyright: for example, a story recorded on a CD will be protected as a literary work and as a sound recording.

To attract copyright, a work must be original, in the sense that it originates from the author and has not been copied from someone else’s work, but the idea itself need not be original. The copyright owner cannot stop others from borrowing his idea and creating their own work on the subject. If someone uses an existing work as a reference point but applies considerable skill and labour in creating a work, this will be treated by the courts as a new work that merits copyright protection. Nor can the owner take to law someone who independently hit on the same idea and produced a very similar work. As it is often said, copyright protects the expression of an idea, but not the idea itself. There is no copyright in ideas, historical events, and items of news or information. Further, an idea communicated to someone else in speech is not a copyright work; only when it is recorded in some fixed form does it become a work in which copyright can subsist. And then copyright arises automatically and requires no registration to prove ownership. Published works usually carry the international copyright symbol ©, the year of first publication and the owner’s name. Besides, the courts have clearly indicated that a work must impart some instruction, information or pleasure; for this reason, they are not prepared to grant copyright in book or film titles or in single words.

Literary works include books, magazines, articles, poems – ‘any work, other than a dramatic or musical work, which is written, spoken or sung’, according to the 1988 Act. Less obviously, they include a computer program, preparatory design material for it and a database (the contention is that a literary work should possess some literary merit). Still less obviously, they include tables (are tables written or drawn?) and compilations: since there is no corresponding category within the definition of artistic works, compilations of drawings or photographs have been treated by the courts as literary work.

A dramatic work is defined in the statute as ‘a work of dance or mime’. The courts have expanded on this very general definition by deciding that a dramatic work is ‘a work of action with or without words or music which is capable of being performed before an audience’ (Norowzian v. Arks Ltd (No.2) (2000)). A mere recital of a poem or the singing of a song before an audience will not be dramatic works because there is no ‘action’ (although they may be protected by performance rights). Thus, dramatic works include theatre and ballet performances, etc. but only when they are recorded.

A music work is defined as ‘a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music’. In other words, it is music only, without lyrics or action. Either the musical notes or the music must be recorded, and even as short a work as four bars can merit protection.

An artistic work is defined as ‘a graphic work, photograph, sculpture or collage irrespective of artistic quality, a work of architecture being a building or a model for a building or a work of artistic craftsmanship’. Graphic works in their turn include not only paintings and drawings and all manner of engravings, but also charts, diagrams, maps or plans. ‘Sculpture’ includes a cast or model made for the purposes of sculpture. Artistic quality is not a criterion for copyright protection of an artistic work unless the object of a claim is a work of artistic craftsmanship. Whether or not a particular item is a work of artistic craftsmanship is determined by the court on a case-by-case basis, therefore claiming copyright for such works is often difficult.

A sound recording is a recording of sounds or of any part of a literary, dramatic or musical work. It is sound, and not just music or spoken words, which is the subject matter of a sound recording. The medium or method by which the sounds are recorded or reproduced is unimportant. Sound recordings include music recordings, audio CDs (such as language courses and audio books) and soundtracks of films when played separately from the film (otherwise they are protected as part of the film but there is no double copyright).

A film will cover video, television, movies and ‘stills’ from a film (the latter are specifically excluded from protection as artistic works). If an artistic work is digitised on computer in such a way that moving images are produced, it will constitute a film.

A broadcast is any non-interactive ‘electronic transmission of visual images, sounds or other information’ which is transmitted for simultaneous reception at a time determined solely by the broadcaster. This covers television and radio, satellite broadcasts, cable programmes but does not include Internet transmissions and other ‘on-demand’ services because the works transmitted in such a service, for example, films or music, are adequately protected as copyright works. However, live webcasts and similar transmissions are protected.

The typographical arrangement of published editions is also protected by copyright. It is made up of the layout of the page and the lettering. Copyright will subsist only if the typographical arrangement is new and is not a mere reproduction of a previous edition.

Ownership and Duration of Copyright

All these works are automatically protected by copyright in the UK. Unlike other IP rights, protection is also automatically given to works from EU member states or from countries that are parties to international conventions (the Berne Copyright Convention 1886 or the Universal Copyright Convention 1952, which cover most nations in the world) or to the World Trade Organisation (WTO). All these are qualifying countries. Protection is given to qualifying persons, i.e. citizens of or residents in the qualifying countries or bodies incorporated under the law of a qualifying country. One of the important international agreements is the TRIPs Agreement (the Agreement on Trade Related Aspects of Intellectual Property Rights) signed in 1994 on establishing the WTO. The Agreement is used by sovereign states wishing to complain to the WTO about the lack of intellectual property protection, while individual owners must enforce their rights through national courts. In England and Wales, such disputes are resolved in the Chancery Division of the High Court or in the Copyright Tribunal.

The author is usually the creator of the work but, in the case of films, sound recordings, etc. he may be the person who made the arrangements necessary for the creation of the work, such as the producer, the publisher, etc. In most cases the author is the first owner of the copyright. However, there is one important statutory exception to this general rule: if a work is created by an employee in the course of his employment, then his employer will be the first owner of copyright in the work. In deciding disputes between employers and employees, the courts will consider the questions: a) was that type of work an integral part of what the person was employed to do (to what extent was it part of his contractual duties)? b) was it done in his own time? It may be noted in passing that in many countries employees own copyright in their works. In most countries government documents do not enjoy copyright protection, but in Britain the opposite is the case: there are specific provisions in the 1988 Act on ownership of Crown and parliamentary copyright and copyright of international organisations.

Besides the rights of ownership of copyright, the 1988 Act gives recognition to the moral rights of the creator, which is especially relevant when the creator does not own copyright. These rights are: 1) the right to be identified as the author (paternity right); 2) the right to object to derogatory treatment of the work (integrity right); and 3) the right not to have a work falsely attributed. Moral rights apply to all copyright works except computer programs, typefaces and computer-generated works. For the paternity right to exist, it must be asserted by the author in writing, for example on the reverse of the title page of the book or in some other written document.

Under the same Act, commissioners of a photograph, sound recording, engraving or portrait are no longer the first owners of the copyright in the resulting work, but case law has developed to give commissioners certain rights of use. Commissioners of photographs or films of private events (weddings, christenings) are given a moral right to prevent the photographs or films being issued or exhibited in public. Since February 2006 a new right, known as droit de suite, entitles an artist to a royalty on every subsequent resale of his works. The resale right applies so long as copyright subsists in the work and only to resales of €1,000 and over; and it is subject to various other conditions.

For most works copyright lasts for 70 years from the end of the year in which the author dies.

For films the term is 70 years from the end of the calendar year in which the last of the following persons dies: principal director, authors of the screenplay and dialogues, or composer. For computer-generated works, sound recordings and broadcasts the period runs to 50 years from the end of the year of making or release; and for typographical arrangements - to 25 years from the end of the year of first publication. Protection for artistic works which have been industrially exploited is reduced to 25 years from the end of the year of first marketing. Most moral rights last for as long as the copyright in the work lasts.