Subsistence of Copyright

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.

Дата добавления: 2015-11-14