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Summary Copyright Law - Commercial Law and Intellectual Property
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1. COPYRIGHT NOTESCopyright protects ‘works’ i.e. the form of an expression of ideas
- Cannot be registered – to pursue infringement claim, C must prove copyright subsists + is
the owner + there has been infringement
- C therefore bears heavy burden to prove these elements from scratch
- Exclusive right – cannot be used by anyone without owner’s permission
Key statute = Copyright Designs and Patents Act 1988 (CDPA 1988)
- Gives owner right to prevent others from copying work
SUBSISTENCE
Categories protected (s.1(1) CDPA): Closed list (if not within these, not protected by ©)
Original literary works (a)
Original dramatic works (a)
Original musical works (a) primary works
Original artistic works (a)
Sound recordings / films / broadcasts (b)
Typographical arrangement of published editions (c)
1. IDENTIFY WORKS
Does copyright protect this thing?
Literary works (s.1(1)(a) + s.3 CDPA)
s.3(1) ‘any work, other than dramatic or musical work, which is written, spoken or sung’
o Includes – exam papers, application forms, calendars, catalogues, lists of football
fixtures, tables, computer program, databases,
o Must be recorded in writing or otherwise (s.3(2))
Nothing to do with literature, literary merit or style
Exxon Corp v Exxon Insurance Consultants (1982)
- Original literary work = a composite term signifying work which affords info, instruction or
pleasure
- Found that Exxon should have registered name as a trademark instead
Newspaper Licensing Agency v Meltwater Holding (2010)
- Newspaper headlines may be protected as literary works and therefore titles could arguably
protected as well
Dramatic works (s.1(1)(a) + s.3 CDPA)
Not defined but includes dance and mime
Case law suggests it is ‘a work of action, with or without words or music which is
capable of performance’ before audience and needs to be performed for full realisation
Musical works (s.1(1)(a) + s.3 CDPA)
Tune and arrangement of a song
Lyrics not included – these are literary works
Artistic works (s.1(1)(a) + s.4 CDPA)
, Graphic work (s.4(1)(a))
o Includes paintings, drawings, engravings, etchings, diagrams, maps, charts,
plans, woodcuts, lithographs
o ‘irrespective of artistic quality’ – regardless of author’s intentions and lack of
artistic value
Photograph (s.4(1)(a))
Sculpture (s.4(1)(a))
o If item is a sculpture it can be protected as an artistic work regardless of whether
it is ‘good’
o Should have, as part of maker’s purpose, some visual appeal and have been
made to be enjoyed for that reason alone
o A 3D work made by an artists hand
o Question of fact whether sculpture or not, determined on case-by-case basis
Collage (s.4(1)a))
Works of architecture (s.4(1)(b))
o Fixed structures or parts of these, models made before being built
o NOT irrespective of artistic merit so not all buildings are architecture
o Architectural drawings protected separately as graphics
Works of artistic craftsmanship (s.4(1)(c))
o ‘Craftsmanship’ = skill, expertise and pride in sound workmanship
E.g. thatched roof, horseshoes, dental prostheses, watch movements etc
o ‘Artistic’ = some aesthetic dimension – maker must have intended to give
pleasure or satisfaction by people simply looking at it (Response Clothing v
Edinburgh Woollen Mill (2020))
E.g. hand painted tiles, stained glass windows, embroidery, ceramics etc
o Question of fact – decide whether work of craftmanship first (George Hensher v
Restawile Upholstery (1976))
o NOT items reproduced on production line – element of ‘handmade’
DOES NOT INCLUDE – Distinctive make-up design (Adam Ant), arrangement of 3D
objects for album cover (Oasis), or costumes (Star Wars Stormtroopers)
Sound recordings, films and broadcasts (ss.5A, 5B + 6)
‘secondary works’ because ther will be at least one underlying primary work (literary,
artistic, musical or dramatic
Typographical arrangement of published editions (s.1(1)(c) + s.8)
Layout, font, typesetting of books, journals, newspapers etc which qualifies as a published
edition – reprinting does not = new edition
Work in its own right, independent of underlying literary work
Allows publisher to prevent unauthorised photocopying off the page
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