extends to original works (note, however, that ‘original’ has a partial definition for design rights under s 213(4), meaning ‘not commonplace’);
• are there any exceptions which apply to protection? Usually this amounts to deciding whether the work is substantial enough to qualify for protection;
• remember that more than one copyright may exist in a work;
• who is the author? This will be with reference to ss 9–11 of the CDPA 1988 and the circumstances in which the work is created;
• note that the copyright owner may not be the same person as the author. Remember that only the copyright owner or person with rights in the copyright may sue;
• is there infringement? Identify the rights which have been infringed as either primary infringements, referring to to ss 16 and 17 in particular, and ss 18–21, and secondary infringement under ss 22–27. It is also necessary to be alert to the far-reaching effects of s 17(2) which provides that reproduction may be in any material form;
• how many different reproductions have there been?;
• are there any defences or permitted acts which the defendant may raise?;
• remedies – is the grant of an injunction justified, on the balance of interests? Are the parties in competition?
Most questions set for students involve literary, artistic, dramatic and musical copyright under Pt I of the Act, so this chapter will concentrate on this area. Questions involving design rights are not often encountered but the approach is similar.
Checklist
Students should be familiar with the following areas:
• CDPA 1988:
❍ ss 1–15 – works which qualify for protection, authorship, duration of copyright;
❍ s 16 – exclusive rights of the author – primary infringement;
❍ ss 22–26 – secondary infringement;
❍ ss 28–72 – permitted acts;
❍ s 213 – new design right;
• parliamentary and Crown copyright;
• fair dealing;
• moral rights;
• Registered Designs Act 1949;
• case law.
Question 6
Summarise the rights which the author of a literary work published in the UK enjoys under the CDPA 1988.
Answer plan
A straightforward question where the student’s chief difficulty will be in dealing with the large volume of material which is involved in covering it.
The issues to be considered are:
• Pt I of the CDPA 1988;
• nature of copyright;
• definition of a literary work;
• definition of an author (s 9);
• rights of an author (ss 16–28);
• licences;
• limitations on rights;
• moral rights.
Answer
Copyright protection exists for all qualifying literary works produced on or after 1 August 1989. The CDPA 1988 restates and amends the existing statute law on copyright, expressly preserving copyright conferred by the Copyright Act 1956. The law is flexible
in its approach, however, if a work did not enjoy protection before 1988, the Act will not assist.
The copyright of a work which an author enjoys is essentially of a negative character, consisting of a right to prevent other persons, individual or legal, from reproducing the work without permission.
The law does not prohibit copying per se; there is no tort of copying.
The law seeks to allow authors to enjoy certain exclusive rights with regard to their works. However, there are a number of important exceptions and qualifications to these rights which restrict the extent of the author’s monopoly. It is not always possible to clearly delineate the extent of these restrictions.
An author will only enjoy rights in a literary work which is original (s 1(1)(a)). The term ‘original’ refers to the source of the work, in the sense of it emanating from a particular author. At its simplest, copyright only arises for an author in those works which he or she creates. It was stated in British Broadcasting Corporation v Wireless League Gazette Publishing Co (1926) that ‘The word
“original” does not in this connection mean that work must be the expression of original or inventive thought. The originality which is required relates to the expression of thought. However, the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work – that is, it should originate from an author’.
Under s 3(1), a literary work is defined as any work, other than a dramatic or musical work, which is written, spoken, sung and accordingly includes: (a) a table or compilation; and (b) a computer program. Section 3(1)(c) was subsequently added by reg 3 of the Copyright (Computer Programs) Regulations 1992 to include the phrase ‘preparatory design material for a computer program’. A wide range of works will be classified as literary works (one of the aims of the CDPA 1988 being to update copyright law) and a literary work may also enjoy copyright as a dramatic work or musical work. Anything appreciated simply with the eye is excluded from the scope of literary copyright (see Electronic Technique (Anglia) v Critchley Components(1997)).
An author cannot use copyright under the CDPA 1988 to stop the reproduction of the ideas behind a literary work, or prevent another person producing a work dealing with the same subject or
material or utilising the same plot (see Green v New Zealand Broadcasting Corporation (1989)).
It is a crucial requirement for the author of a literary work to ensure that it is recorded in a material form. Under s 3(2), copyright is held not to subsist in a literary work ‘unless and until it is recorded, in writing or otherwise’. If an author has not had his ideas committed into a tangible form, no copyright will arise; however, the recording need not be with the permission of the author.
In order to have the benefit of copyright protection, the author must have created a literary work which is no more than a single work or title (Exxon Corporation v Exxon Insurance (1982)) – no copyright subsists in titles. Literary works enjoy protection whether published or unpublished (s 153(1)(a)) and copyright will subsist in the work, even if the author never intended to make it available to a wider audience (for example, private diaries).
Under s 9, copyright will subsist with the person who creates the work (subject to ss 10 and 11). The CDPA 1988 further provides that the author must be a British citizen or subject, domiciled or resident in the UK (s 154(1)). As residence is not defined in the legislation, it will fall to be determined by the facts (see Shah v Barnet LBC(1983)). In the case of an unpublished work, the author must be a British citizen or resident at the time the work is made. In the case of a published work, the relevant time is the date of first publication. The effects of the CDPA 1988 is limited to the UK and UK territories (to which it may be extended by Orders in Council).
Alternatively, the work will qualify for copyright protection when published (s 155). Publication is defined by s 175 to mean: (a) the issue of copies to the public; and (b) including making it available to the public by means of an electronic retrieval system. As a consequence, no account is taken of periods when the work was being conceived or developed.
Section 10 provides for the author to be a joint author where the work is produced by more than one person in collaboration and where it is not possible to distinguish the work of each person.
There must have been a joint enterprise and conception for this to apply. An author will not be deprived of sole ownership simply where mere alterations, amendments or improvements have been suggested by another and incorporated (Levy v Rutley (1871);
Wiseman v George Weidenfeld & Nicolson(1985)). A joint work will not
arise where there are distinct contributions (such as a work compiled by an editor, including drawing individual pieces from different authors). Each individual author will retain copyrights personally in their own individual work, subject to contractual agreement.
Copyright in a joint work is a tenancy in common (Powell v Head (1879)). Providing that at least one of the joint authors satisfies the residency condition, then the work qualifies for protection.
However, an individual author may not reproduce and exploit the work or grant licences without the consent of the others, but one joint author may sue for infringement (Lauri v Renad (1892)).
Even unknown authors are recognised by the CDPA 1988;
copyright expiring 70 years after first publication, performance or broadcast. An unknown author is one whose identity cannot be ascertained by ‘reasonable inquiry’ (s 9(5)). Copyright lasts for the lifetime of the author, plus 70 years after the end of the calendar year in which the author dies (s 12) or 70 years following the death of the last surviving author (joint authors).
Under s 16, the author of a work enjoys exclusive rights to:
• copy the work;
• issue copies of the work to the public;
• perform, show or play the work in public;
• broadcast the work or include it in a cable program;
• make an adaptation of the work or do any of the above.
Section 16(2) provides that to do any of these acts without the authority of the author is an infringement of copyright. The infringing acts are further defined as the doing of the act in relation to the work either ‘as a whole’ or ‘any substantial part of it’, either directly or indirectly (s 16(3)(a) and (b)). Strict liability applies to the acts listed in s 16, even if the copier believes, albeit erroneously, that he or she was entitled to execute a copy. A person who innocently copies an intermediate version, indirectly copying an original, will commit an infringing act (see Hanfstaengl v Empire Palace; Hanfstaengl v Newnes(1894)).
Licences can be oral, in writing or implied. The restrictions set out in s 17 effectively allow an author to grant different rights to different parties. For example, novels may be sold in hardback and paperback, or as adaptations or translations. Any such agreement
by an author to transfer copyright in a work must be in writing (s 90(1)).
It must be stated that the law does not pinpoint precise boundaries, and the extent of the author’s copyright cannot be exactly determined. To an extent, each case will turn on its facts.
The permitted acts are a set of qualifications, but for which, and if not excepted, an exclusive monopoly for an author would otherwise result. The permitted acts may even be of assistance to the author because criticism or review are excepted acts.
Finally, the author enjoys a series of moral rights. For the first time in law, the CDPA 1988 provides rights to ‘paternity’ and
‘integrity’ and the right not to have works treated in a derogatory manner (ss 77–89). For the author of a literary work, the right of paternity allows the author to be recognised as author of the work in a number of situations where the work is exploited commercially. Under s 9, there is a general right of action for infringement which entitles by s 96, including entitling the copyright owner to remedies including injunctions, damages, an account of profits, and statutory remedies set out in the Act to control infringing copies.
Since 1 January 1998, copyright for databases as literary works is introduced by the Copyright and Rights in Databases Regulations 1997 implementing the harmonisation Database Directive on the Legal Protection of Databases (96/9/EC). A copyright database compromises a collection of independent works, data or other individually accessible material by electronic or other means. A new s 3A has been inserted into the CDPA 1988. Originality must be satisfied by reason of selection or arrangement with protection extending to entries in the database as a literary work. A further database right exists in a database where there has been substantial investment in obtaining, verifying or presenting the database as a literary work. A further database right also exists in a database where there has been substantial investment in obtaining, verifying or presenting the databases’s contents, it being an infringement to extract or re-utilise a substantial part of the database without consent.
Question 7
Valerie gives a lecture to a business seminar on ‘The future of risk analysis in the construction industry’. Her lecture is in two parts.
The first part is a detailed address based upon notes written by herself, expounding two theories propounded by Valerie and issued as materials to the delegates. The materials are marked with a copyright symbol. The first part also includes a short role-playing section to enliven the address by extracting a volunteer from the audience to illustrate some difficult concepts. The content of this is flexible. The second part of the talk consists of some personal reminiscences, and also includes some stories which are typical in risk analysis and certain commonly told stories in the industry.
Valerie is aware that the audience takes notes during both parts of her lecture. However, she is not aware until afterwards of the following.
Barry, a journalist, has taken detailed notes, adding some odd thoughts of his own on Valerie’s ideas. He then uses them to compose a critical article, repeating key parts of her speech in an article on risk assessment. He thinks the speech largely condemns itself and makes little input. He copies the materials distributed at the seminar.
Cuthbert has taken detailed notes in shorthand, translated them into Japanese and published the speech verbatim in a Japanese business paper.
Carver has made a video of Valerie’s talk.
Agnes has made a sound recording of the lecture and is now repeating it to paying audiences, appropriating many of Valerie’s ideas.
Answer plan
A relatively straightforward question requiring identification of subsistence of copyright in oral lectures and notes and the use that can be made of them.
The issues to be considered are:
• protected works;
• copyright protection;
• ownership and author’s rights under s 16;
• implied licences and infringement;
• permitted acts – ss 29, 30 and 58 of the CDPA 1988;
• remedies.
Answer
Position of Valerie’s lecture
Valerie enjoys rights under the CDPA 1988 to protect her lecture.
Some parts of it, however, may not enjoy such strong protection as others because of the varied nature of the contents. Section 1(1)(a) of the CDPA 1988 provides that copyright subsists in original literary, dramatic and musical works. Valerie’s lecture will qualify as a literary work by virtue of s 3(1), which defines a literary work as any work other than a musical or dramatic one which is
‘written, spoken or sung’. Thus, the actual words which Valerie speaks which form the lecture will be protected, as will the notes she distributes which she has marked with a copyright symbol.
Conceivably, the role-playing section of the address, depending on the involvement of a member of the audience, might qualify as a dramatic work under s 3(1). The lecture is original in the sense that it originates from Valerie who has composed it from her two theories and a collection of experiences and stock incidents which she has compiled.
Under s 9(3), the author of a literary, dramatic, musical or artistic work is taken to be the person by whom the arrangements necessary for the creation of the work have been undertaken. In the absence of any evidence as to the possibility of ownership vesting in another person, the author of the address and materials will be Valerie, with the possible exception of ad lib items during the role play.
Crucial for copyright protection is the proviso in s 3(2) that copyright does not subsist in a literary (or dramatic) work unless
or until it is recorded in material form ‘in writing or otherwise’.
This will cover the written records made by Barry and Cuthbert as well as the video recording made by Carver and sound recording made by Agnes. All references to the time at which a work is made under the CDPA 1988 are a reference to when the work is first recorded.
Copyright will exist in the written notes which Valerie has made and the materials which she has distributed. Copyright will also exist in the notes to the non-copyright material – which are referred to as the common situations and commonly told stories in the industry – providing that knowledge, skill and taste have been employed in producing them (Macmillan & Co v Cooper (1923)).
Since they include theories propounded by Valerie, it is certain they will be classed as qualifying original works. Although copyright will not attach simply to a theory or idea (Green v New Zealand Broadcasting Corporation (1989)), Valerie will enjoy protection in the form in which her work is expressed.
Assuming this is the first occasion that the lecture has been delivered, the words in the lecture as a whole will qualify as a protected work, because they have been recorded in various ways.
The question states that the work has been recorded in a number of ways: by Valerie herself in the form of the notes, and also by the records made by Barry, Cuthbert, Carver and Agnes in their particular forms. The recording of a lecture in any material form will attract protection under s 3(3) of the CDPA 1988, which states that it is immaterial whether work is recorded with the permission of the author. These provisions follow from the recommendation of the Whitford Committee, that copyright should vest in a person uttering original spoken words and should be subject to copyright protection when recorded by another (para 609(iii)). This alters the position which existed under the old law in Walters v Lane (1900) that a reporter who recorded the speech of Lord Roseberry gained a separate copyright protection in the record as opposed to the copyright of the speaker in his or her own words. Therefore, the mere fact that Valerie is unaware of the recordings will not deprive her of copyright in her own material.
The weakest part is the element of the role-play. This may qualify as a dramatic work but if it is essentially unscripted and ad lib it may not attract protection (Tate v Thomas (1908); Green v New Zealand Broadcasting Corporation (1989)). It is also possible that the
lines themselves may be too short to attract protection. Common jargon will not be protected (Sinanide v La Maison Kosmeo (1928)) and stock incidents will not qualify as original works.
Since Valerie is a qualifying author, she will enjoy the exclusive rights set out in s 16 of the CDPA 1988 to reproduce, issue, perform or broadcast or authorise any of these things. Substantial copying will amount to an actionable infringement. Her exclusive rights are, to some degree, reduced because she has allowed note taking. The inclusion of a copyright symbol on the notes would be an indication that there was an express assertion of copyright rights. Each defendant would be likely to plead that their recording of the lecture was justified, since note taking was permitted and no restrictions were imposed.
In Nicols v Pitman (1884), the plaintiff, an author and lecturer, gave an address from memory, although he had the same lecture in manuscript form. The defendant, the inventor of a system of shorthand notation, took notes verbatim of what was said and then published them in a magazine. The court held that where a lecture is delivered to an audience, whether the lecture has been recorded in writing or not, the audience are at liberty to take the fullest notes for their own personal purposes but they are not permitted to use them afterwards for gain. With this in mind, the position of the four defendants should be considered.
Barry
Although Valerie’s lecture is original, her copyright will not be infringed unless a substantial part of her speech is taken and used in the article. Barry has clearly taken a substantial amount. The parts of Valerie’s address which are commonplace or from non-copyright sources may be taken and used by Barry, provided he introduces sufficient independent skill and labour into the article he
Although Valerie’s lecture is original, her copyright will not be infringed unless a substantial part of her speech is taken and used in the article. Barry has clearly taken a substantial amount. The parts of Valerie’s address which are commonplace or from non-copyright sources may be taken and used by Barry, provided he introduces sufficient independent skill and labour into the article he