Subject-matter and protection requirements

Turin October 2011

Dr E. Derclaye

Introduction • Short summary of the differences between copyright

systems (‘CS’) and author’s right systems (‘AS’)• = rough sketch of the main differences. Be aware that there

are nuances in each country.• Nature of right• CS: founded on economic considerations >< AS: is a right of

personality, a human right – the author is at the centre of the law

• Authorship• CS: possible for a legal as well as a natural person to be the

author ab initio >< AS: only a human being can be an author• Cinematographic works• CS: initial owner may be a legal person (e.g. the film

producing company) >< AS: initial owners will be the authors (with some exceptions)

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Introduction• Works of employees• CS: initial owner will be employer >< AS: initial owners are the

authors• Originality• UK: skill judgment and labour >< AS + USA: creativity (mark,

stamp of author's personality in the work) • NB: Since EU harmonisation, criterion of the "author's own

intellectual creation" applies to software, databases and photographs

• Moral rights• CS: generally slow recognition of moral rights (through

international obligations, i.e. Berne) >< AS: longstanding tradition, occupy a pre-eminent position in the author's right laws

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Introduction• Fixation• CS: essential that work is fixed to enjoy protection >< AS: not a

requirement (with very few exceptions)• Contracts• CS: no extensive provisions on publishing contracts >< AS: such

provisions are common• Related rights• CS: copyright is granted both to original works and non original

subject matters >< AS: clear distinction between author's right in creative works and related or neighbouring rights of performers, phonograms producers, broadcasters etc.

• Formalities• Not required to enjoy protection but in the US for example,

important e.g. to be able to launch an action or obtain damages.

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Categorisation

• S 1(1) Copyright is a property right which subsists in accordance with this Part in the following descriptions of work—

• (a) original literary, dramatic, musical or artistic works,

• (b) sound recordings, films or broadcasts, and

• (c) the typographical arrangement of published editions.

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Categorisation • History • Purpose?

– Clarity => legal certainty – What is and what is not protected– Differential treatment

• Problems?– A creation does not fit– A creation call fall in more than one category– Technological advances => categories outdated => new

ones must be devised i.e. law must be modified often

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Protection requirements

• Originality

• Fixation

• Idea/expression dichotomy

• Qualification

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Other countries

• Germany - Copyright Act

• Art 1: Authors of literary, scientific and artistic works shall enjoy protection for their works in accordance with this Law.

• Art 2(2): Personal intellectual creations alone shall constitute works within the meaning of this Act.

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Other countries

• France - Intellectual Property Code • Art L. 112-1: The provisions of this Code protect

the rights of authors in all works of the mind, whatever may be the type, form of expression, quality or purpose of the work.

• Art. L. 112-2: Notably, the following are considered works of the mind within the meaning of this Code...

• USA, Berne convention

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Two important rules

• Independent creation – copy-right

• Difference between medium (tangible, object) and creation (intangible, creation)

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Originality

• Univ. London Press v Univ. Tutorial Press

• Ladbroke v William Hill

• Infopaq

• NLA v Meltwater

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Fixation – s. 3(2) and 3(3)

• (2) Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise; and references in this Part to the time at which such a work is made are to the time at which it is so recorded.

• (3) It is immaterial for the purposes of subsection (2) whether the work is recorded by or with the permission of the author; and where it is not recorded by the author, nothing in that subsection affects the question whether copyright subsists in the record as distinct from the work recorded.

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Qualification

• S 153 ff.

• By author

• By place of first publication

• Connection must exist at material time

• If published => first publication (always publication for T.A.P.E.)

• If unpublished when made (sr, f, b)

• Meaning of publication s 175(1)(a) and (4)13(c) E. Derclaye 2000-2011

Designers Guild v Russell Williams

• “Every element in the expression of an artistic work (…) is the expression of an idea on the part of the author. It represents her choice to paint stripes rather than polka dots, flowers rather than tadpoles, use one colour and brush technique rather than another, and so on.”

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Designers Guild v Russell Williams

• A copyright work may express certain ideas which are not protected because they have no connection with the literary, dramatic, musical or artistic nature of the work.”

• Certain ideas expressed by a copyright work may not be protected because, although they are ideas of a literary, dramatic or artistic nature, they are not original, or so commonplace as not to form a substantial part of the work.”

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Designers Guild v Russell Williams

• “Generally speaking, in cases of artistic copyright, the more abstract and simple the copied idea, the less likely it is to constitute a substantial part. Originality, in the sense of the contribution of the author's skill and labour, tends to lie in the detail with which the basic idea is presented. Copyright law protects foxes better than hedgehogs.”

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Section 3: Literary, dramatic and musical works

• S. 3.-(1) In this Part- • "literary work" means any work, other than a dramatic or

musical work, which is written, spoken or sung, and accordingly includes-

• (a) a table or compilation other than a database, • (b) a computer program; and • (c) preparatory design material for a computer program;

and • (d) a database • "dramatic work" includes a work of dance or mime; and

"musical work" means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music.

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Sawkins v Hyperion

• “In the absence of a special statutory definition of music, ordinary usage assists: as indicated in the dictionaries, the essence of music is combining sounds for listening to. Music is not the same as mere noise. The sound of music is intended to produce effects of some kind on the listener's emotions and intellect. The sounds may be produced by an organised performance on instruments played from a musical score, though that is not essential for the existence of the music or of copyright in it. (…)

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Sawkins v Hyperion

• (…) Music must be distinguished from the fact and form of its fixation as a record of a musical composition. (…) There is no reason for regarding the actual notes of music as the only matter covered by musical copyright, any more than, in the case of a dramatic work, only the words to be spoken by the actors are covered by dramatic copyright. Added stage directions may affect the performance of the play on the stage or on the screen and have an impact on the performance seen by the audience. ”

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Section 4: Artistic works

• 4.-(1) In this Part "artistic work" means-

• (a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality,

• (b) a work of architecture being a building or a model for a building, or

• (c) a work of artistic craftsmanship.

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Section 4: Artistic works

• (2) In this Part- • "building" includes any fixed structure, and a part of a

building or fixed structure; • "graphic work" includes- • (a) any painting, drawing, diagram, map, chart or plan, and • (b) any engraving, etching, lithograph, woodcut or similar

work; • "photograph" means a recording of light or other radiation

on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film;

• "sculpture" includes a cast or model made for purposes of sculpture.

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Section 5A: Sound recordings

• 5A.(1) In this Part "sound recording" means- • (a) a recording of sounds, from which the

sounds may be reproduced, or • (b) a recording of the whole or any part of a

literary, dramatic or musical work, from which sounds reproducing the work or part may be produced, regardless of the medium on which the recording is made or the method by which the sounds are reproduced or produced.

• (2) Copyright does not subsist in a sound recording which is, or to the extent that it is, a copy taken from a previous sound recording.

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Section 5B: Films

• 5B(1) In this Part "film" means a recording on any medium from which a moving image may by any means be produced.

• (2) The sound track accompanying a film shall be treated as part of the film for the purposes of this Part.

• (4) Copyright does not subsist in a film which is, or to the extent that it is, a copy taken from a previous film.

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Section 6: Broadcasts

• 6.(1) In this Part a "broadcast" means an 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, or

• (b) is transmitted at a time determined solely by the person making the transmission for presentation to members of the public,

• and which is not excepted by subsection (1A); and references to broadcasting shall be construed accordingly.

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Section 6: Broadcasts

• (1A) Excepted from the definition of "broadcast" is any internet transmission unless it is -

• (a) a transmission taking place simultaneously on the internet and by other means,

• (b) a concurrent transmission of a live event, or • (c) a transmission of recorded moving images or sounds

forming part of a programme service offered by the person responsible for making the transmission, being a service in which programmes are transmitted at scheduled times determined by that person.

• […]

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Section 8: Published editions

• 8.(1) In this Part "published edition", in the context of copyright in the typographical arrangement of a published edition, means a published edition of the whole or any part of one or more literary, dramatic or musical works.

• (2) Copyright does not subsist in the typographical arrangement of a published edition if, or to the extent that, it reproduces the typographical arrangement of a previous edition.

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