INTRODUCTION TO COPYRIGHT LAW (LAW338)

LECTURE NOTES FOR WEEK 4

Bently & Sherman Intellectual Property Law Chapter 6 and Chapter 10

Moral rights:
Copyrights, Designs and Patents Act 1998, as amended, Section 77-85
Clark v Associated Newspapers Ltd [1998] 1 WLR 1558
Confetti Records v. Warner Music UK Ltd [2003] ECDR 31
Harrison v. Harrison [2010] ECDR 12 (PCC)
Hyperion v. Sawkins [2005] RPC 32

Economic Rights (CTTP caselaw in next lecture handout)

Copyrights, Designs and Patents Act 1998, as amended, Section 16-21
Art & Allposters International v. Stichting Pictoright Case C-419/13 [2015] ECDR 8
(compare with Galerie d’Art du Petit Champlain v. Theberge [2002] 2 SCR 336)
Autospin (Oil Seals) Ltd v. Beehive Spinning [1995] RPC 683
Brigid Foley v Ellott [1982] RPC 433
C-128/11 UsedSoft v. Oracle International Case [2012] ECDR 19
C-302/10 Infopaq Int. v. Danske Dagblades Forening (Infopaq II)
C-406/10 SAS Institute v. World Programming Ltd [2012] 3 CMLR (4) 55
C-5/11 Titus Alexander Jochen Donner (2012) ECLI:EU:C:2012:370
Harms v Martans [1927] 1 Ch 526
Interlego v Tyco [1988] RPC 343
Jennings v Stephens [1936] 1 Ch 469
Norowzian v. Arks (No.1) [1998] FSR 394
Paramount Home Entertainment v BSB [2013] EWHC 3479 (Ch)
Peek & Cloppenburg v Cassina C-456/06 [2008] ECR I-2731
PRS v Hammond’s Bradford Brewery Co. [1934] 1 Ch 21
PRS v Harlequin [1979] 2 ALL ER 828
PRS v Kwik-Fit Ltd [2008] ECDR (2) 13
Sandman v. Panasonic [1998] FSR 651
Twentieth Century Fox Film Corporation, V Sky Uk [2015] EWHC 1082 (Ch)
Twentieth Century Fox Film Corporation v Newzbin Ltd [2010] EWHC 608 (Ch)

Some additional reading:

J Ginsburg ‘Moral Rights in the Common Law System’ (1990) 1 Ent L Rev 121
W Cornish ‘Moral Rights under the 1988 Act’ [1989] EIPR 449
Koo The Right of Communication to the Public in EU Copyright Law (Hart Publishing,
2019) (e-copy of the monograph is available in the library)
Quintais ‘Untangling the hyperlinking web: In search of the online right of
communication to the public’ (2018) 21 The Journal of World Intellectual Property 385
Hugenholtz and Sam van Velze ‘Communication to a New Public? Three Reasons Why
EU Copyright Law Can Do Without a “New Public"’ (2016) 47(7) IIC 797
Savola ‘EU Copyright Liability for Internet Linking’ (2017) 8 JIPITEC 139
Rosati ‘GS Media and its implications for the construction of the right of communication
to the public within EU copyright architecture’ (2017) 54(4) Common Market Law
Review 1221
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 CHAPTER II CDPA, 1988 - RIGHTS OF COPYRIGHT OWNER

Primary economic rights of copyright holder

◦ Reproduction Right (Copy the work)

◦ Distribution Right (Issue copies of the work to public)
◦ Rental/Lending Right (Rent or lend the work to public)
◦ Public performance Right (Perform, show or play the work in public) – note: not
harmonized.
◦ Communication to Public Right(Communicate the work to public)
◦ Adaptation Right (Make an adaptation of the work, or do any of above act in
relation to an adaptation)
◦ Licensing Right etc. (Authorise others to carry out above activities)

Moral Rights of copyright holder

◦ Attribution rights (or paternity; right to be identified as author or director)

Section 77
◦ Integrity rights (right to object to derogatory treatment of work) Section 80
◦ False Attribution rights (or right to object to false attribution) Section 84
◦ Privacy rights (right to privacy in certain photographs and films) Section 85
………………………………………………………………………………………………………………………………..

Section 16 CDPA The acts restricted by copyright in a work

(1) The owner of the copyright in a work has, in accordance with the following provisions
of this Chapter, the exclusive right to do the following acts in the United Kingdom—
(a) to copy the work (see section 17);
(b) to issue copies of the work to the public (see section 18);
[(ba) to rent or lend the work to the public (see section 18A);]
(c) to perform, show or play the work in public (see section 19);
[(d) to communicate the work to the public (see section 20);]
(e) to make an adaptation of the work or do any of the above in relation to an adaptation
(see section 21);
and those acts are referred to in this Part as the “acts restricted by the copyright”.

(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.

(3) References in this Part to the doing of an act restricted by the copyright in a work are
to the doing of it—

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(a) in relation to the work as a whole or any substantial part of it, and
(b) either directly or indirectly;
and it is immaterial whether any intervening acts themselves infringe copyright.

(4) This Chapter has effect subject to—

(a) the provisions of Chapter III (acts permitted in relation to copyright works), and
(b) the provisions of Chapter VII (provisions with respect to copyright licensing).

I. THE RIGHT OF REPRODUCTION

Section 17 CDPA Infringement of copyright by copying

(1) The copying of the work is an act restricted by the copyright in every description of
copyright work; and references in this Part to copying and copies shall be construed as
follows.

(2) Copying in relation to a literary, dramatic, musical or artistic work means reproducing
the work in any material form.
This includes storing the work in any medium by electronic means.

(3) In relation to an artistic work copying includes the making of a copy in three
dimensions of a two-dimensional work and the making of a copy in two dimensions of a
three-dimensional work.

(4) Copying in relation to a film [or broadcast] includes making a photograph of the whole
or any substantial part of any image forming part of the film [or broadcast].

(5) Copying in relation to the typographical arrangement of a published edition means

making a facsimile copy of the arrangement.

(6) Copying in relation to any description of work includes the making of copies which are
transient or are incidental to some other use of the work.

Section 28A CDPA : Making of temporary copies

Copyright in a literary work, other than a computer program or a database, or in a

dramatic, musical or artistic work, the typographical arrangement of a published edition,
a sound recording or a film, is not infringed by the making of a temporary copy which is
transient or incidental, which is an integral and essential part of a technological process
and the sole purpose of which is to enable –

A transmission of the work in a network between third parties by an intermediary; or

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A lawful use of the work;
And which has no independent economic significance
Information Society Directive
Article 2: Reproduction right
“Member States shall provide for the exclusive right to authorise or prohibit direct
or indirect, temporary or permanent reproduction by any means and in any
form, in whole or in part……..”

Article 5: Exceptions and limitations

1. Temporary acts of reproduction referred to in Article 2, which are transient or
incidental [and] an integral and essential part of a technological process and whose
sole purpose is to enable:
(a) a transmission in a network between third parties by an intermediary, or
(b) a lawful use of a work or other subject-matter to be made, and which have no
independent economic significance, shall be exempted from the reproduction right
provided for in Article 2………….”

Note: Copying in relation to any description of work includes the making of copies
not only in a permanent form, but also if they are transient, temporary or are
incidental to some other use of the work
Examples include:
-running a computer program or browsing an internet webpage as they involve
copying since transient copies are made in the Random-Access Memory (RAM) of a
computer.
-Activities associated with the internet, such a framing, unauthorized acts of up-
loading on sites, down-loading from peer-to-peer systems like Napster are
infringing.
-RAM copies of computer games generated when playing the games are in
principle infringing
See Article 2 vis-à-vis Article 5 of Information Society Directive and section 28A of
CDPA 1988.

CASE LAW: CAN 3D ARTICLES “REPRODUCE” LITERARY WORKS?

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AUTOSPIN (OIL SEALS) LTD V. BEEHIVE SPINNING
Autospin designed and developed new types of oil seals and produced charts
containing instructions that allowed the calculations of the three dimensions of
critical importance to the manufacturing of this seal. Autospin’s ex-employees
(Beehive Spinning) produced these oil seals. Did they infringe copyright in the
compilation of measurements in Autospin’s charts? (literary work in the form of
compilations)
Laddie J observed - it is well established that the copyright in a two dimensional
drawing (an ‘artistic work’) may be infringed by reproducing it in a three
dimensional article. Since copyright in a literary form may be infringed by
reproducing it in any material form, why should it not be an infringement to take a
compilation of dimensions and reproduce it in the form of a three dimensional article
which embodies those dimensions? After all, the alleged infringer has made use of the
author’s skill and effort in discovering and bringing together the relevant
dimensions…
But then, Laddie J points us towards two cases – 1. Interlego v Tyco [1988] RPC
343 at 373, Lord Oliver states – “it has always to be borne in mind that infringement
of copyright by three-dimensional copying is restricted to artistic copyright… To
produce an article by following written instructions may be a breach of confidence or
an infringement of patent, but it does not infringe the author’s copyright in this
instructions..
Laddie J also points us towards 2. Brigid Foley v Ellott [1982] RPC 433at 434… “it
seems to me quite plain that there is no reproduction of the words and numerals in
the kitting guides in the knitted garments produced by following the instructions.
The essence, I think, of a reproduction… is that the reproduction should be some copy
of or representation of the original. I do not see how anyone looking at the knitted
garment could then say.. “Well, that is a copy of, or a reproduction of, the words and
numerals to be found in the knitting guide.” By a process of counting up the number
of stitches, and so on, in the knitted garment one might be able to work back and
produce the knitting instructions; but that is a very different matter from saying that
the garment is a reproduction of those instructions”
Following from the above, Laddie J observes : “even if the plaintiff’s charts in this
case had included the three critical dimensions of some of the parts used for making
a seal, it would not be right to say that making a seal to those dimensions is to
reproduce the charts. Those dimensions say virtually nothing about the shape of the
seal, they merely indicate some crucial dimensions used in the manufacturing process
which results in the creation of the seal. .. The charts do not contain even the three
critical dimensions. They contain instructions for the calculation of those
dimensions… The charts say nothing more about how a seal is to be constructed. In
my view, just as it cannot be a reproduction of literary copyright in a recipe for a
cake to make a cake to the recipe, so it is not a reproduction to follow such
mathematical instructions.. For these reasons, I hold that the claim to infringement
of copyright in the charts also fails.”

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 II. RIGHT OF COMMUNICATION TO THE PUBLIC

Section 20 CDPA Infringement by communication to the public

(1) The communication to the public of the work is an act restricted by the copyright in—
(a) a literary, dramatic, musical or artistic work,
(b) a sound recording or film, or
(c) a broadcast.

(2) References in this Part to communication to the public are to communication to the
public by electronic transmission, and in relation to a work include—
(a) the broadcasting of the work;
(b) the making available to the public of the work 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.]

Art. 3 Directive 2001/29/EC Information Society Directive

1. Member States shall provide authors with the exclusive right to authorise or prohibit
any communication to the public of their works, by wire or wireless means, including the
making available to the public of their works in such a way that members of the
public may access them from a place and at a time individually chosen by them.

2. Member States shall provide for the exclusive right to authorise or prohibit the making
available to the public, by wire or wireless means, in such a way that members of the
public may access them from a place and at a time individually chosen by them:
(a) for performers, of fixations of their performances;
(b) for phonogram producers, of their phonograms;
(c) for the producers of the first fixations of films, of the original and copies of their films;
(d) for broadcasting organisations, of fixations of their broadcasts, whether these
broadcasts are transmitted by wire or over the air, including by cable or satellite