Subject matter

Introduction

Copyright is said by the Act (section 1(1)) to be a property right¹: from this principle flows the ability to retain copyright for one’s own use or to exploit it by selling or licensing it. Provided that the qualification requirements discussed below² are met, copyright subsists in what are referred to in the Act as ‘works’. The Act divides these into nine categories.

The owner of copyright enjoys certain exclusive rights³. She may divide them up however she wishes (subject to legal constraints such as those imposed by competition laws) and deal with them individually. An author, for example, may sell hardback rights to one publisher and paperback rights to another. The film rights may be sold to someone else altogether (though they are frequently taken by the first publisher). The territorial nature of copyright allows the author to strike different deals in different countries.

Copyright Works in general

Section 1(1) lists three broad categories of copyright works:

• original literary, dramatic, musical and artistic works;
• sound recordings, films and broadcasts⁴; and
• the typographical arrangement of published editions.

The term ‘copyright work’ is used in the Act to mean any work conforming to any of these descriptions, in which copyright subsists. Several such works may exist simultaneously in the same ‘thing’: the BBC’s adaptation of Mervyn Peake’s Gormenghast novels, for example, is a film and the BBC owns copyright in the transmission (broadcast) it made of the film, but there is a separate copyright in the books, another in the script made from the books, copyright in the accompanying music by Richard Rodney Bennett, copyright in the scenery as an artistic work, and so forth. Cable retransmissions of the BBC broadcasts would be protected in their own right. These layers of copyrights will be of different thicknesses; the rights in the broadcast are ‘thin’ in terms of the extent of the interest they protect compared with the rights in the book. None of these rights (other than the rights in the books themselves) will prevent another organisation making a film of the books, a project that has been the subject of much rumour over the years.

Something that falls outside the categories defined by the Act will not receive the protection of copyright. It might reasonably be regarded as someone’s intellectual property, but in law that counts for nothing – what matters is that it is protected by copyright or another of the rights called intellectual property. So in Green v Broadcasting Corporation of New Zealand [1989] RPC 700 the Privy Council held that the defendant had not infringed the plaintiff’s rights when it produced its own version of Opportunity Knocks. Programme formats have subsequently become much more sophisticated, as producers do everything they can to maximise the protection available from copyright and other (trade mark, passing-off, design) laws.⁵

Originality

To be protected, literary, dramatic, musical and artistic works must be original. There is no such requirement for sound recordings, films, broadcasts, cable programmes, or typographical arrangements, because the concept of originality simply does not work with them. For example, the fact that a broadcast is a repeat does not mean it should not be protected; to require originality would undermine the whole basis of broadcasters’ copyright. Although these matters are referred to in the Act as ‘works’, the work that goes into making them is qualitatively different from the work that goes into a literary, dramatic, musical or artistic work.

The concept of originality first appeared in the Copyright Act 1911 but, although it is one of the foundations of copyright law, it has never been generally defined in an English copyright statute, although as we shall see the software directive and the database directive have imposed special originality tests for those types of works and the copyright duration directive has set a minimum standard for originality of photographs (all three of these in the same terms).

In the absence of a general statutory definition the courts have done their best to give a meaning to the concept. We must still consider the authorities, but at the time of writing UK copyright law seems to be on a cusp, about to find itself having to apply an EU-wide test.

The statutory definition

First, let us consider the statutory definitions we do have. The software directive stipulates that:

A computer program shall be protected if it is original in the sense that it is the author’s own intellectual creation. No other criteria shall be applied to determine its eligibility for protection.

Databases are protected also only if the selection and arrangement of their contents they constitute the author’s own intellectual creation. This latter requirement has been included in the amendment to the 1988 Act that implements the database directive: the requirement in the software directive was omitted in the implementing legislation.

The standard of originality required of a database will seldom be met. In the nature of a compilation of information, there is little intellectual creativity: indeed, there is little selection involved, as the beauty of a database is often the fact that it is comprehensive. However, database operators will benefit from the new database right introduced by the amending legislation, dealt with below.

In the case of photographs, the duration directive says that photographs must be protected if they are their author’s own intellectual creation, but Member States may also protect other photographs. That appears to be what UK copyright law is doing.

The general definition

Historically, the case law says that ‘original’ does not mean novel or unique, but simply that the author created the work independently and that in so doing she exercised a sufficient degree of skill, knowledge, creative labour, taste or judgement to deserve protection. The degree required depends on the facts of the particular case; the famous principle (formulated in University of London Press Ltd v University Tutorial Press Ltd) that ‘what is worth copying is prima facie worth protecting’⁶ remains although the 1988 Act might be thought to have diluted this test, particularly with regard to design protection. In that most influential of cases Peterson J said:

The word ‘original’ does not in this connection mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of ‘literary work’, with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But 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 it should originate from the author.

However, while football pools coupons have been given protection, the courts have refrained from extending it to cards issued by the Greyhound Racing Association which simply comprised a list of six to twelve dogs with their trap numbers⁷. Drawing numbers from a hat and listing names of dogs against them was held to involve no skill or creative labour. Titles and slogans have similarly been refused protection, though in Exxon Corp v Exxon Insurance Consultants⁸ the Court of Appeal took the view that the three words “original literary work” had to be construed together, so there was no independent consideration of whether the invented word was original.

The Privy Council considered the question of originality in Interlego v Tyco⁹. The case involved designs for toy plastic building bricks formerly protected by patents but latterly the subject of competition from Tyco, an American toy company. The drawings in issue were mostly little more than updates of earlier designs. The Privy Council considered a number of different items from the Lego and Duplo ranges and found that the updated drawings were visually very similar to earlier drawings and differed largely in technical matters - a radius on a corner here, a different tolerance there, a minor change to accommodate new moulding techniques somewhere else.

The Court of Appeal had considered these small changes sufficient to allow the drawings to qualify as original artistic works. The Privy Council disagreed. The Court of Appeal had laid stress on the skill and labour of the designers but drew no distinction between the making of the copy and the application of engineering expertise in the creation of the technical information which was included in the designs but not in an artistic form.

Recycling

There clearly might be circumstances in which an original work makes use of existing material. As noted earlier, novelty is not a requirement and the originality of a copyright work must be assessed by looking at the work as a whole, a different approach from that taken in the United States – a point explored by Jacob J (as he then was) in Ibcos v Barclays Mercantile Finance¹⁰: see the discussion at paragraph Error: Reference source not found. Every copyright work is, after all, assembled from non-copyright components – words, letters, bits, brushstrokes, grains of silver, tones or whatever. Macmillan and Co. Ltd v Cooper¹¹ concerned university textbooks consisting of abridgements of or excerpts from existing works with notes for students. Lord Atkinson, delivering the judgement of the Privy Council in that case, said:

... it is only the product of the labour, skill and capital of one man which must not be appropriated by another, not the elements, the raw material, if one may use the expression, upon which the labour and skill and capital of the first have been expended. To secure copyright for this product it is necessary that labour, skill and capital should be expended sufficiently to impart to the product some quality or character which the raw material did not possess, and which differentiates the product from the raw material.

The degree of knowledge, skill, labour, and judgement exercised to create an original work depends on the facts of each case. In Black v Murray¹², a Scottish case, Lord Kinloch held that ‘... it will not create copyright in a new edition of a work, of which the copyright has expired, merely to make a few emendations of the text, or to add a few unimportant notes’. In British Northrop v Texteam¹³, Megarry J. summarised the principle for artistic copyright: the expression of ideas which constituted the work ‘need not be original or novel in form, but it must originate with the author and not be copied from another work ... A drawing which is simply traced from another drawing is not an original artistic work..’.

Skill, judgement and labour must not just be considered quantitatively, at least as far as artistic copyright is concerned. The amount of those factors exercised may be conclusive in determining whether there is copyright in a literary work, but if the same rule were applied to an artistic work it could result in a carefully executed copy of a painting being protected and the Privy Council (in the Macmillan case) did not think that would be right. Copying cannot create an original work, however much skill goes into it.

In the Lego case, the changes made to the old drawings were either barely discernible or were represented in figures that amounted to manufacturing instructions. Thus the later drawing could not be considered, as a drawing, to constitute an original artistic work. It was merely the earlier drawing reproduced to illustrate and explain new design information.

In the Court of Appeal’s decision in BL v Armstrong¹⁴ the ‘x, y and z’ co-ordinates written on the unscaled drawing of the Morris Marina exhaust pipe were the essential manufacturing information. There it was held that the ‘explanatory legend’ as Lord Oliver called it, forms part of the drawing, so the inclusion of new technical information would create a new drawing. But, the Privy Council stressed, that case was concerned with a very different question from that raised in Interlego v Tyco. The legend was important in considering whether copying had taken place, but not in determining whether the drawing constituted an original artistic work. In summary, as Lord Oliver said after considering a number of other Lego and Duplo designs:

The amendments no doubt embodied valuable technical concepts and improvements but the question was whether the skill and labour was directed to the production of an original artistic work rather than the insertion of manufacturing instructions into an existing artistic work.

In Cala Homes v Alfred McAlpine Homes East Ltd ¹⁵, which involved a long series of slightly different drawings., there was no new copyright in revised plans.

How the originality test works in connection with a musical work was considered by Patten J in the High Court in July 2004, in Lionel Sawkins v Hyperion Records.¹⁶ The judge took the view that Dr Sawkins owned copyright in the completed manuscripts, to the indignation of the classical recording industry. But it is clear that this is not a one off judgment: it follows a line of authority going back to the 19^th century. The problem of having to compensate scholars for their detective work, if problem it truly is, can be addressed by considering the value of their contribution. If without Dr Sawkin’s efforts there would have been no Lalande to perform, that’s not very different from the situation with a living (or up to 70 years dead) composer: without them, there would be none of their music to perform and if performers and recording companies wish to use it, they have to pay a price. The encouragement of this sort of work is, after all, exactly what copyright is all about.

Adapting

Making an adaptation of a copyright may result in the creation of a new original copyright work, and an infringement. See XYZ Music v King¹⁷.

Infopaq and the future

The Court of Justice's judgment in Infopaq put the cat among the pigeons. By the time of the judgment the legislative framework had been extended by the addition of Directive 2001/29/EC, the so-called information society directive, and although that instrument says nothing about the test for originality the court concluded that to be consistent with the big idea of harmonisation of those bits of copyright law which could cause problems for the single market the same level of originality was required of all manner of literary, dramatic, musical and artistic works, not only those subject to specific rules: and it found justification for this approach in the use of the word "work" in the directive. Copying part of a copyright work would be an infringement if that part contains elements which are the expression of the author's own intellectual creation. As far as the Court is concerned, substantiality has nothing to do with it (quite rightly, as that isn't something dealt with in EU law). Questions of infringement fall to be decided by reference to originality: subsistence and infringement are different sides of the same coin, perhaps.

The Court seems to recognise that the expression ‘original work’ was a tautology. If it's your work, it is original to you, and the adjective is redundant. A harmonised approach requires the stronger test, borrowed from German and Dutch law (§2(2) of the Gesetz über Urheberrecht und verwandte Schutzrechte: 'Werke im Sinne dieses Gesetzes sind nur persönliche geistige Schöpfungen', and according to Wikipedia on Dutch copyright law, 'the Dutch Supreme Court has ruled that to be considered a work, it should have its own, original character with the personal imprint of the author (HR 4 januari 1991, NJ 1991, 608 (Van Dale/Romme))', which indicates that the requirement is implied by the use of the word 'work'. The Russian Civil Code, Article 1259(7) uses the expression самостоятельным результатом творческого труда автора - 'independent result of the creative work of the author'.)

There is still a considerable distance between the position of the Court of Justice in Infopaq and what the English courts have been saying for years. Both approaches could dispense with the adjective, because the meaning of the word 'work' alone would do the job in both systems. It still depends on the nature and quality of the work. In the English courts, a bead of sweat on the author's brow would do, whereas the continental courts (including the one in Luxembourg) look beyond the sweat, at the inside the author's head. So we still have to go back to the meaning of 'work' and the principle of harmonisation to reach the conclusion that the requirement for intellectual creativity is implied. However, the Infopaq approach is gaining traction: in Public Relations Consultants Association Limited v The Newspaper Licensing Agency Limited and others [2013] UKSC 18 the Supreme Court referred questions about transient and incidental copying (permitted under the Directive) to Luxembourg, but didn't even mention originality, on which the last word remains that of Mrs Justice Proudman in that case at first instance (the Court of Appeal having agreed with her analysis).

Idea and expression

Copyright is designed to protect the expression used by an author, not the ideas described in the work. In a sense, this is inherent in the choice of the word ‘work’ – a writer’s work takes the form of the words used to convey the story or information, not the story or information itself. The first author to deal with a subject must not be allowed to prevent subsequent authors telling the same story or describing the same facts. So it is generally taken for granted that copyright protects ideas but not expression. What this all means, however, is not exactly certain: as the House of Lords (or, more precisely, Lord Hailsham of St Marylebone LC) put it, ‘It all depends on what one means by ideas.’¹⁸

The 1988 Act says nothing about the idea/expression dichotomy, or the exclusion of ideas from protection. Neither does the Berne Convention, though in Article 2(1) it states:

“literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression …

That cannot be said to touch upon the important distinction, though it is significant that it is technologically neutral. However, the TRIPS agreement (Article 9(2)) is more helpful:

Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.

The very fact that TRIPS finds it necessary to say this immediately after the provision that requires members to comply with the Berne Convention suggests that Berne’s statement does not deal with the matter.

Copyright law also demands that its subject-matter be fixed in permanent form before it will be protected¹⁹. This in itself might be said to exclude mere ideas from protection, although more to the point is the way in which this rule insists that there be something more than just an idea – it has to be expressed in something, and it is the something in which it is expressed that copyright will protect.

The ‘amorphous distinction’²⁰ between idea and expression arises in considering both subsistence and infringement (on which, see below, para Error: Reference source not found): can taking an idea ever amount to taking a substantial part of a copyright work, and therefore be an infringement? There is no statutory statement of the exclusion of ideas, as there is in the US law²¹ and which gives rise to the ‘idea-expression merger’ doctrine, highly developed in the US, which holds that when there is only one way (or there are a limited number of ways) to express a particular idea, the expression is dictated by the underlying idea, the idea and the expression merge, and the expression does not qualify for copyright protection. And the more banal the work, the more likely that idea and expression will merge – a proposition well illustrated by Kenrick v Lawrence²², where the work in question was a graphic representation of a human hand designed to assist illiterate voters in the polling station.

In Green v Broadcasting Corp of New Zealand [1989] 2 All ER 1056 the Privy Council accepted the defendant’s argument that they had taken nothing but idea. Similarly in Norowzian v Arks (no 2) [1999] FSR 71, [2000] FSR 363 (CA), the Court of Appeal found that nothing had been taken by the defendant apart from the claimant’s technique for editing film, using which the defendant had created a new film. But Elanco v Mandops²³ appears to tell us that there can after all be copyright in ideas (remember Lord Hailsham’s dictum: ‘it all depends on what one means by ideas’): there the work which had been copied was a safety leaflet to accompany a weedkiller, and even after the defendant rewrote it the Court of Appeal held that it contained the same information and still infringed.

The truth is – as Jacob J observed in In Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd [1994] FSR 275 – that, far from excluding ideas from copyright protection, English copyright law has always given protection to elaborated ideas. And in the Da Vinci Code case, Baigent & Anor v The Random House Group Ltd [2007] EWCA Civ 247 (28 March 2007) and [2006] EWHC 719 (Ch) the authors of Holy Blood and the Holy Grail failed in their claim that Dan Brown had infringed their copyright in writing The Da Vinci Code, but only because the evidence did not support them. Had they been able to show that the book had been created around the Central Theme, as they alleged, the outcome would have been different. They did not fail simply because they claimed copyright in an idea.²⁴ Before we move on, we should give the last word (until we return to the protection of ideas in connection with infringement, and what is a substantial part of a copyright work) to Lloyd LJ in the Da Vinci Code case. He said that

… no clear principle is or could be laid down … to tell whether what is sought to be protected is on the ideas side of the dividing line, or on the expression side.

Different thicknesses of copyright

Although the expressions do not appear in the statute, how thin (or deep) is the copyright is a relevant consideration. The question arises in a slightly different form when considering different types of copyright works – the copyright in a typographical arrangement is ‘thinner’, in the sense that it allows the owner to control a narrower range of activities, than copyright in the literary or artistic work that is laid out on the page. Or should that be referred to as shallow? The copyright in a broadcast is also thin, as the broadcaster’s rights are limited to the transmission, which is impermanent and dependent entirely on other material contained in it – usually (unless the broadcast is live) a film or sound recording, and underlying literary, dramatic and musical works. Generally, the owners of rights in creative works have more power than the owners of the entrepreneurial rights. The author of a novel can control more than can the owner of copyright in a film made from it, or of an audiobook version.

Qualification

The first question about copyright protection that must be answered in every case is whether the work qualifies for protection, by reference either to its author (the person who created it) or to where it was first published or from where it was first transmitted²⁵. Unless it qualifies for the Act’s protection, consideration of whether something is a copyright work, whether exclusive rights in it have been infringed, and so on, becomes redundant.

Usually the question is answered easily enough in the affirmative. Sometimes the answer is a little more obscure: for example, Lady Chatterley’s Lover is protected under English copyright law not (as one might expect) because it was written by an Englishman, but because it was first published in Italy²⁶. Be aware that if you go back only a few decades international copyright protection gets very complicated.

If the author has the necessary connection with the UK (usually by being a British subject) or with a territory (not a country – these places are not sovereign²⁷) to which the Act extends, or with a country which is a party to the Berne Convention, the Universal Copyright Convention, the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, or the TRIPS Agreement, the Copyright Designs and Patents Act 1988 will protect their work.²⁸ These Treaties embody the doctrine of ‘national treatment’ – a Convention country must treat nationals of other Convention countries, for copyright purposes, in the same way as it treats its own nationals. In addition, the EC Treaty prohibits discrimination between nationals of Member States on grounds of their nationality.

Whether the work has been published is important. If it has been, the question is whether the author was a qualifying person at the time it was published. If it has not been published, it is the author’s qualification at the time the work was made that matters.

In the increasingly rare situation where the author’s nationality does not qualify the work for protection – for example, the author’s country of origin is outside the convention system, as was until recently the case with the Hashemite Kingdom of Jordan, or the rules were different at the relevant time, as in the Lady Chatterley case – the first publication rule comes into operation. The Act specifically provides that any publication within thirty days of actual first publication is deemed to be first publication, and provided first publication was in a Convention country the work will be protected²⁹.

In the case of a broadcast, the important consideration is the place where the broadcast was made, and for printed matter one must ask whether the publisher qualifies for protection or whether the work was first published in a Convention country.

Literary, Dramatic and Musical Works

Fixation in permanent form

Literary, dramatic and musical works are defined in section 3(1). Copyright will only subsist in such works once they have been recorded, in writing or otherwise³⁰; the subsistence of copyright in a literary work does not depend on whether the author or someone else wrote the work out in longhand, typed it on a word processor, dictated it or recorded it without ever writing it down. There are no further formalities for protection, because the Berne Convention prohibits them. The Universal Copyright Convention and the Rome Convention, on the other hand, permit requirements for copyright notices to be attached to copies of protected works.

Whether the record is made by or with the permission of the author or not is immaterial whether copyright subsists in the work itself. Where the work is not recorded by the author the fact that the act of recording causes copyright to subsist in the work does not affect the copyright position of the recording itself, which may attract protection in its own right.

A reporter who takes down in writing³¹ the words of the author of an extempore work may however be left without copyright. In Walter v Lane³² the House of Lords held that the reporter from The Times who took down speeches made by Lord Roseberry³³ owned copyright in the reports (the case arose when a book containing the reports was published, so the journalist had been wronged and the court might well have sympathised), but that was three Copyright Acts ago and at that time there was no requirement that a copyright work be original. It is uncertain that the decision would now be followed, , although it was approved in Express Newspapers v News UK Ltd³⁴ where the interviewee had copyright in their words and the interviewer, by dint of the skill, labour and judgment used, had copyright in the report. There is clearly a difference between a secretary taking down shorthand and a reporter making notes at a political meeting. If there is a sound recording or film, there may be a separate copyright in the recording of the speech.

The same requirement for fixation applies to dramatic, musical and artistic works as well as literary ones. With dramatic works, it is usual to encounter them in written form. Musical works are often committed to paper, usually employing standard musical notation, though a composer does not lose copyright protection merely by using a different type of notation, or recording the music straight onto tape or some other medium: the United States Copyright Office is a rich source of recordings by famous artists, made for deposit purposes, that are unavailable elsewhere.³⁵ In Hadley v Kemp³⁶ the songs were composed in the defendant’s head and fixation occurred when they were recorded in the studio.

Artistic works are not limited to the sort of thing that can be hung on a wall. The words ‘or otherwise’ come into their own with non-traditional material. Performance art and mime may also be protected under this rubric. As for works of artistic craftsmanship (a category of artistic works), in the leading case, Hensher v Restawile³⁷, the prototype archair and settee were destroyed once production had started, and the claim for copyright infringement failed, among many reasons, for lack of permanent form.

The Act does not say in so many words that films and sound recordings must be in permanent form, but the use of the word ‘recording’ in the definitions of both terms implies that it is necessary. The same can be said of published editions: the very concept carries with it an implication of permanent form. The exception is broadcasts, which by their nature are transient and impermanent, although what they contain often has a permanent form: if broadcasts are fixed in some form the result is a film or sound recording.

Literary Works

Generally

A literary work is a work which is written, spoken or sung unless it is a dramatic or musical work. This ‘accordingly’³⁸ includes:

• tables and compilations (excluding databases)³⁹;
• computer programs⁴⁰;
• preparatory design material for computer programs⁴¹; and
• databases⁴².

Words intended to be sung or spoken with music do not form part of the musical work which they accompany but are protected as a literary work in their own right. The words of an impromptu song constitute a literary work, as does an extempore speech, although in each case the work must be recorded before it is protected.

The literary quality of the work is immaterial. As Peterson J said in University of London Press v University Tutorial Press⁴³ a work expressed in writing is a literary work 'irrespective of the question whether the quality or style is high.' The work should however be 'intended to afford either information and instruction, or pleasure in the form of literary enjoyment'⁴⁴. In London General Holdings Ltd v USP PLC⁴⁵ the subsistence of copyright in wording in a legal document was not disputed: it was just a matter of whether the copyright was infringed, and then what should be the appropriate amount of damages.

‘Writing’ is defined very widely in the Act.⁴⁶ The definition is intended to cover any form in which information can be stored⁴⁷.It includes “any form of notation or code, whether by hand or otherwise and regardless of the method by which, or medium in or on which, it is recorded, and ‘written’ shall be construed accordingly”. That is intended to cover any form in which information can be stored. It would be absurd, and discriminatory, if a work recorded in written form using Chinese ideograms or the Cyrillic alphabet were denied copyright protection, and by extension runes, hieroglyphics and encrypted texts should be considered “written”. From there it is a small step to include computer code – object code as well as source code⁴⁸ – within the definition⁴⁹

Literary merit is not taken into consideration, consistent with the fact that copyright is a very generous form of property right. When the 1709 Act became law, and even as late as the Berne Convention (1886), writing literature, plays, and music, and creating works of art, were the pursuits of a very small number of people and it can hardly have seemed important that protection would be extended even to bad works, but now that the community of creative people is so much wider there is much more protected by copyright than formerly. In addition, new forms of work, particularly of written matter, have come into existence and been given copyright protection. These are sometimes referred to as ‘small coin’ copyright works, to distinguish them from valuable and culturally significant copyright works.

Tables and compilations

Because of the generosity of the copyright system, it is well established that railway timetables, football pools coupons⁵⁰, and a list of components on a circuit board diagram⁵¹ are included, being in writing and therefore literary works but included as tables or compilations so there is no doubt that they are protected. A compilation of works may be a copyright work iin its own right (Ravenscroft v Herbert), although permission would be needed to publish copyright works in a compilation. This illustrates the difficulty with copyright compilations and tables: where is the originality?

The answer can only be, in the selection and arrangement of the material in the compilation. Nothing else in making the compilation can be regarded as the author’s work, at least not in an intellectual sense. If skill, labour and judgment be the touchstone, it can only manifest itself in the selection and arrangement of the material. In Macmillan & Co Ltd v R&J Cooper⁵² and Macmillan & Co Ltd v Suresh Chnuder Deb⁵³ it was held that while a random collection of poems would have no copyright protection, one that involved taste and judgment in the selection would.

In Ibcos Computers v Barclays Mercantile Finance⁵⁴ Jacob J suggested (obiter) that it might also be appropriate to consider a computer program as a compilation, but no subsequent case has taken up this interesting possibility.

Because all manner of literary works receive the same protection (save for databases and computer programs, which are required to surmount a higher originality threshold before they can enter the copyright arena) it makes no real difference whether something is one or the other. With a computer program, protection may be more readily available if it is treated as a compilation.

But what, despite being in writing, cannot be protected as a literary work? In Exxon ⁵⁵ an invented word was not protected, although in Meltwater⁵⁶ protection extended to headlines (as it had the earlier, Scottish, case Shetland Times v Willis⁵⁷ which for other reasons is no longer good law, if it ever was). Francis Day & Hunter v Twentieth Century Fox⁵⁸ established that there was no copyright in a song title, and Cramp v Smythson⁵⁹ that the information printed in the front of a diary was unprotected.

Databases

The Council of the European Community adopted the directive on the legal protection of databases (Directive 96/9) in 1996. It seeks to harmonise the laws of the member states relating to copyright in databases, and in particular the degree of originality required of them: it also introduces a new sui generis right for database operators. The directive was implemented in the UK from 1 January 1998 by the Copyright and Rights in Databases Regulations 1997.⁶⁰

The Regulations insert a new definition of database in the 1988 Act. The term means:

... A collection of independent works, data or other materials which –

(a) are arranged in a systematic or methodical way, and

(b) are individually accessible by electronic or other means.

Databases are no longer treated for copyright purposes as a type of compilation, but remain a type of literary work. (This raises the intriguing possibility that there are databases that are not compilations, and compilations that are not databases.)

Databases only receive copyright protection if they are their author’s own intellectual creation. This is a much higher standards (taken from Dutch and German law) than previously applied in the UK: non-database compilations are still subject to the lesser test, so should more easily obtain protection. A collection of data not arranged in a systematic or methodical way might fit through this loophole.

New section 50D of the Act permits certain acts that would otherwise be restricted by copyright in the database: “anything which is necessary for the purposes of access to and use of the contents of the database ...”. Section 296B makes void any contractual term that purports to prohibit or restrict a permitted act.

The effect of the increased standard of originality seemed to be that databases would be hard to protect by copyright, but in Case 604/10, Football Dataco, the Court of Justice indicated that copyright protection would remain available if the database, by reason of the selection or arrangement of the contents, was ‘the original expression of the creative freedom of the author’ - still a high standard for something as mundane as a database, but more attainable than ‘author’s own intellectual creation’ would at first appear.

Football Dataco shows that intellectual effort and skill are irrelevant to the question of whether copyright will give protection. The addition of extra matter to the database is also irrelevant. Labour and skill in setting up the database do not justify protection if they do not express any originality in the selection or arrangement of the contents.

The new database right (as the EC’s sui generis right has become in the UK legislation), on which see chapter Error: Reference source not found, does however give database operators valuable new rights.

Computer programs

Computer programs are treated for copyright purposes as a type of literary work.⁶¹ Since they begin life in written form, as a functional specification on a piece of paper, which is worked up into an algorithm which is finally translated into a series of commands for the computer, this has a certain logic.

A program’s source code is a series of commands converted into a computer language which can be translated into a set of binary digits and then into a stream of electrical impulses – 'bits' – which the computer’s electronic brain can understand. The source code, though incomprehensible to a human reader, is therefore apt also to be regarded as a literary work.⁶²

Computer Programs under the Copyright Act 1956

The earliest cases on computer programs assimilated them to literary works. In 1985 the Copyright (Computer Software) Act provided that they were to be treated as literary works: in the 1988 Act the approach was changed slightly, to provide that they are a type of literary work.

The Copyright, Designs and Patents Act 1988

The 1988 restatement of copyright law provided that the concept of a literary work includes a computer program, presumable on the basis that it is written. This is a more definite approach than that adopted formerly. This has now been amended by the Copyright (Computer Programs) Regulations 1992 (SI no. 3233), which implements the EC directive on the legal protection of computer programs⁶³.

Amendments to the UK law.

The regulations, made under the powers contained in Section 2(2) of the European Communities Act 1972, amend the Copyright, Designs and Patents Act 1988.

The definition of a literary work, contained in Section 3(1) of the 1988 Act, is amended expressly to include preparatory design material for a computer program (which may already have been included anyway). The software directive excludes underlying ideas, although this has not been expressly included in the UK legislation. The same is true of the originality requirement stipulated in the Directive. See the Report from Commission on the implementation and effects of Directive 91/250/EEC⁶⁴.

Dramatic Works

Dramatic works receive separate treatment because they are intended mainly to be performed rather than simply read. Works of dance or mime are expressly included by section 3(1), and the expression also covers plays and libretti. As the protection given to dramatic and literary works is effectively the same, it makes no effective difference into which category a work falls, and some will be on the border between.

There is some guidance in the cases on what constitutes a dramatic work. In Fuller v Blackpool Winter Gardens⁶⁵ the court considered that the defining quality of a dramatic work was that it was made for presentation or delivery (as opposed to reading). In Norowzian⁶⁶ it was a work of action capable of being performed before an audience, and in Mazooma⁶⁷ a video game was not a dramatic work.

Musical Works

I cannot say what music is,

Nor whether it is heard correctly,

Nor why the joy of its heavenly melodies makes the heart dance,

Nor can I explain the spell it casts:

Only that it needs the right listener.

Saadi of Shiraz, from Bustan (The Orchard) (1257)

A musical work is defined, in what must be the least helpful piece of language on the statute book, as a work consisting of music. It expressly does not include any words or action intended to be sung, spoken or performed with the music. These are left to fend for themselves as literary or dramatic works. Annotations or directions written on a score, as in Stimmung by Karlheinz Stockhausen, where the score includes instructions to the singers such as ‘Echo more or less the sounds that were made by the person who was speaking in front of you’, are nevertheless part of the musical work⁶⁸.

A musical work is something different from the notes on the stave. It is a work that is intended to appeal to the sense of hearing, not to be appreciated in its written form: it is more than just ‘the dots’, as my piano teacher called them. It needs, in short, a listener – the right listener, perhaps. In Sawkins v Hyperion Records Ltd⁶⁹ the High Court (upheld by the Court of Appeal⁷⁰, where Mummery LJ expounded in some detail, worth reading, on the nature of copyright in music) held that a musicologist who had recreated works by a long-dead composer was the owner of copyright in a musical work, a controversial decision that nevertheless seems consistent with the authorities⁷¹.

Perhaps the extreme case is John Cage’s famous work for prepared piano, 4’33” (1952), a three-movement work in which the pianist refrains from playing the instrument for the period that gives the work its title.

Cage demonstrates that there is no such thing as pure silence, at least not on earth: the work is in fact an absence of piano-playing rather than true silence, and the audience will hear the sounds that add up to an indeterminate composition – a species of modern music of which there are many examples, including Stimmung.⁷²

Cage’s work might have been minimalist, but even briefer works (though with more notes of music in them) have been held to be copyright works. In Lawson v Dundas⁷³ it was a four-chord ‘ident’ for a television show, and in Bamgboye⁷⁴ just adding drums sufficed to create a new work. On the other hand, in Coffey v Warner/Chappell Music⁷⁵ the singer’s contribution, notwithstanding its expression of pitch, contour and syncopation, was not enough to secure copyright protection.

Also note (although there was no litigation about the copyright) that the ‘bugle call’ advertising jingle used by Direct Line, the insurance company, was a copyright work. The owner of the copyright was able to invoke it in opposition proceedings when Direct Line applied to register it as a trade mark, providing a nice illustration of the possible interaction between copyright and trade mark law.

Artistic Works

Artistic works are defined in section 4. Subsection (1) specifies three groups of works which are included:

• 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.

The section goes on to define some of these expressions; others are left tantalisingly undefined.

An artistic work may be combined with a literary one, as in Abraham Moon & Sons Ltd v Thornber & Ors⁷⁶ which involved a pattern for a tartan fabric. In addition to the pattern itself, there were cards which controlled the weaving machine. The defendants were held to have infringed the claimant’s copyright.

Graphic Works

‘A graphic work’ means any painting, drawing, diagram, map, chart or plan, and any engraving, etching, lithograph or similar work.⁷⁷ Artistic quality is unnecessary, so judges do not have to act as art critics⁷⁸: but a simple artistic work (such as the drawing in Kenrick v Lawrence⁷⁹) will receive limited protection because the courts will take a narrow view of infringement. Among other types of drawing which have been protected are a promotional logo (Hutchison Personal Communications v Hook Advertising⁸⁰), architects’ plans (Jones v London Borough of Tower Hamlets⁸¹), cartoon characters (King Features Syndicate Inc. v O&M Kleeman Ltd⁸²), drawings for machine parts (British Northrop v Texteam (Blackburn) Ltd⁸³ and fashion sketches (Bernstein v Sidney Murray⁸⁴).

Formerly, engineering drawings were protected under section 3(1)(a) of the 1956 Act (British Northrop, supra), and any three-dimensional reproduction of the item depicted in that drawing (in the best-known example, an exhaust pipe⁸⁵) infringed copyright in the drawings. The reform of this particular area was one of the main imperatives for the 1988 Act, and it is now provided that these ‘design documents’ will usually no longer enjoy such extravagant protection⁸⁶. However, engineering drawings are still protected, as artistic quality is not, paradoxically, necessary for a work to be artistic. In any case, what is artistic is a subjective question, which is why it has never been thought one with which the courts should be faced.

The design of a typeface is an abstraction which will be recorded in a drawing, engraving or other artistic work. Note that sections 52 and 54 respectively provide that if the design of the typeface is commercially exploited the term of copyright protection is limited to 25 years, and copyright is not infringed anyway by the use of a typeface in the ordinary course of printing.⁸⁷

In Vermaat and another (trading as Cotton Productions) v Boncrest Ltd.⁸⁸ the High Court held that there was no copyright in patterns for patchwork bedspreads and cushion covers, although copyright could subsist in the drawings from which they were made. The court also considered that sketches that had been faxed were insufficiently precise and lacked the originality necessary to make them copyright works. However, the drawings which had been sent by courier at the same time were more detailed. They were graphic works which were protected by copyright, notwithstanding that they were not exclusively pictorial but did include figures and words.

In Ultraframe Marketing (UK) Ltd. v Universal Components Ltd.⁸⁹ the court held that copyright in a design drawing made in 1976 could be ‘carried forward’ into a more detailed drawing for the same article, made in 1987. It was determined as a preliminary issue that the second claimant, the designer, did not own the copyright in the later drawing, but he could rely on the earlier copyright.

In Merchandising Corporation of America v Harpbond⁹⁰ the claim failed because of the lack of permanence of the make-up of the popular musician Adam Ant.

Photographs

Photography is now so simple, and so ubiquitous, that it is hard to imagine that in Graves’ Case⁹¹ the court considered that the amount of effort involved in taking a photograph justified giving it copyright protection. Notwithstanding the ease with which photographs can now be take, they remain protected by copyright if they are original: and just because a scene has been photographed before does not make a photograph unoriginal for this purpose (although the value of such a hackneyed photograph is likely to be small).

The definition of a photograph in the Act is intended to be technologically neutral: ‘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’. The definition clearly embraces not only colour transparencies but also negatives (monochrome or colour) and prints made from those negatives, and extends to digital images. However, the Act protects only original artistic works (of which photographs are a subset). The question of separate copyright in a print therefore does not usually arise, although copying the print would indirectly infringe copyright in the negative or digital file from which the print was made.

Even where a photograph is copied from another (or, as in Baumann v Fussel⁹², from a painting) the photograph will still be considered original unless enough has been taken from the original to amount to infringement of copyright.

The summary of the law on photographic copyright in Antiquesportfolio.com v Fitch⁹³ is worth reading.

Sculptures

‘Sculpture’ includes a cast or model made for the purposes of sculpture, but the Act gives no more guidance than that. Laddie J accepted counsel’s proposed definition - ‘a three-dimensional work made by an artist’s hand’ - in Metlix (UK) Ltd v GH Maughan (Plastics) Ltd⁹⁴. A cast or mould made for dentures is not a sculpture⁹⁵, nor is a FRISBEE throwing disk⁹⁶. On the other hand, in Breville Europe PLC v Thorn EMI Domestic Appliances Ltd⁹⁷ Falconer, J considered that a functional plaster-cast of the inside of a sandwich toaster did amount to a sculpture, although he found on the facts that there was no infringement. In Creation Records v Newsgroup⁹⁸ the Court rejected the argument that assembling the items that were going to form a photograph (in that case for the cover of an Oasis album) amounted to creating a sculpture, because it lacked permanence, and in Lucasfilm Limited and others v Andrew Ainsworth and another [2009] EWCA Civ 1328 ⁹⁹ the Court of Appeal (after a lengthy review of the history of this area of copyright law, in paragraphs 21 to 39) held that neither the armour nor the helmets worn by the stormtroopers in the Star Wars films were sculptures, and neither were the toy stormtroopers which also featured in the case. The court approved the approach taken by the judge at first instance (Mann J), saying (paragraph 77):

The result of this analysis is that it is not possible or wise to attempt to devise a comprehensive or exclusive definition of “sculpture” sufficient to determine the issue in any given case. Although this may be close to adopting the elephant test of knowing one when you see one, it is almost inevitable in this field. We therefore consider that the judge was right to adopt the multi-factorial approach which he did.

That approach, which also has a role to play in other areas of artistic copyright law, is rather too detailed for inclusion here, but it can be studied in Mann J’s judgment as well as in paragraph 54 of the Court of Appeal’s judgment. That decision has now been upheld by the Supreme Court¹⁰⁰.

Collages

Collages are included specifically in the legislation. What is meant by the term is left unclear; the legislature had in mind artistic works which were made in several different media. It is likely that they were already protected, but the matter is now placed beyond doubt.

Engravings and etchings

As well as the obvious sorts of artistic works that might fall under this head, decorative grooves in the disc in Wham-O¹⁰¹ and the pattern cut into car mats in Hi-Tech Autoparts v Towergate Two¹⁰² were protected under as engravings or etchings.

Architecture

Works of architecture include buildings or models for buildings. Drawings from which buildings are made will continue to be protected as graphic works. They will not be denied protection by virtue of section 51 because, although architectural drawings are design documents, the design which is embodied in the drawings is an artistic work. The definition of ‘work of architecture’ does not include the words ‘irrespective of artistic quality’ as the definition of graphic work does, but it seems unlikely that the courts would attempt to assess the artistic quality of an architect’s work.

Quite mundane buildings may be protected: see Meikle v Mauf and Hay v Sloan¹⁰³.

The Act defines ‘building’ carefully, as ‘any fixed structure, and a part of a building or fixed structure’. There is some dispute about whether works of architecture are protected irrespective of artistic quality. The fact that such a broad definition of ‘building’ is employed adds weight to the argument that works of architecture are covered irrespective of artistic quality, as buildings which may have no obvious aesthetic appeal (except perhaps to the architect) are clearly within the definition.

Nevertheless, at a time when the scope of artistic copyright has been reduced so about exclude designs for non-artistic articles, it must be open to doubt that Parliament intended to include works of architecture without limitation. Moreover, the fact that of the three categories listed in section 4(1) only the first bears the qualification ‘irrespective of artistic quality’ implies that the following two categories (works of architecture and works of artistic craftsmanship) do require artistic quality to be protected.¹⁰⁴

Artistic Craftsmanship

The final category of artistic works is works of artistic craftsmanship. The meaning of this expression is a matter for considerable speculation: the construction of the provision in the 1956 Act proved to be a task beyond even the House of Lords.

In Hensher v Restawile¹⁰⁵ it was alleged that the defendants had copied the plaintiffs’ suite of furniture. However, the suite had not been manufactured from drawings but from a prototype comprising a light frame with upholstery tacked into place. The plaintiffs therefore found it necessary to claim protection on the basis that the prototype was a work of artistic craftsmanship; to establish that it was within the definition it had to be shown to possess ‘artistic quality’, a feature which at first instance Graham J. readily agreed was present. Whether one admired it or not the furniture had ‘distinctive characteristics of shape, form and finish’ and people bought it at least in part because of the way it looked.

However, the Court of Appeal held that nothing which was bought mainly for its functional utility rather than for any appeal to aesthetic taste could qualify as a work of artistic craftsmanship, even though the appearance might be a strong selling point. On appeal to the House of Lords, the Court of Appeal was upheld; again, considerable attention was paid to the character of the finished furniture. The meaning of ‘craftsmanship’ was not considered because the defendant had conceded that it was present. All their Lordships about what is a work of artistic craftsmanship are obiter, because the claim failed for want of permanence (the prototypes having been destroyed).

Their Lordships adopted a variety of reasons for rejecting the idea that the work was one of artistic craftsmanship. Viscount Dilhorne observed that these were ordinary English words which should be given their ordinary meaning, and that witnesses had employed adjectives such as ‘horrible,’ ‘flashy’ and ‘vulgar’ rather than ‘artistic’. Lord Kilbrandon noted that his colleagues had rejected or failed to adopt no fewer than nine definitions of ‘artistic’ put forward by witnesses. He therefore advanced the view that what mattered was the designer’s intention, a view since followed by Walton J. in Merlet v Mothercare plc¹⁰⁶ in which he held that a baby’s cape was not a work of artistic craftsmanship because the creator had only intended to produce something to keep her baby warm and dry and which was stylish and attractive. She had designed it without any artistic considerations in mind. In Burke v. Spicers Dress Designs¹⁰⁷ (referred to in Merlet) it was suggested that even ‘a beautiful frock’ might not be a work of artistic craftsmanship. Following Burke, some cases suggest that the same person must bring the artistry and the craftsmanship to the project, though later cases cast doubt on this (see in particular Vermaat v Boncrest [2001] FSR 43, where there was held to be no copyright because the work concerned lacked eye-appeal).

These discouraging precedents should not be thought to make the class of works of artistic craftsmanship completely empty. There have been cases in which claims to copyright have been upheld, for example Shelley Films v Rex Features¹⁰⁸ where sets, costumes and latex prostheses used in the film Mary Shelley’s Frankenstein were held to be works of artistic craftsmanship, though in Lucasfilm v Ainsworth [2008] EWHC 1878 (Ch) it was held (at first instance, subsequently upheld by the Court of Appeal and the Supreme Court) that various props made for the Star Wars films were not.

Can a work fall into more than one category?

Mackie Designs Inc v. Behringer Specialised studio equipment (UK) Ltd, Ulrich Bernhard Behringer & Behringer Spezielle Studiotechnik GmbH ¹⁰⁹ is an example of how a circuit diagram might be protected by literary and artistic copyright, which failed because section 51 removed copyright protection in favour of (UK) unregistered design right which the designer, as a US citizen, did not enjoy.

Copyright and Neighbouring Rights

Sound recordings, films, broadcasts and cable programmes are sometimes referred to as ‘neighbouring rights’ or ‘related rights’ (the rights given to performers under Part II of the 1988 Act are also included in these categories) and the UK’s obligation to protect them flows not from the Berne Convention (except that it does cover films) but from the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations and the Phonograms Convention, as well now as the TRIPS Agreement and the new WIPO Treaties referred to below.

The protection of typographical arrangements of published editions - the publisher’s investment in the layout of the printed page - is something of a special case seldom recognised in foreign laws.

Sound Recordings

There are two types of sound recording within the scope of section 5A¹¹⁰. The first is a recording of pre-existing sounds from which the sounds may subsequently be reproduced. Records (tape recordings and compact discs as well as what are now referred to as black vinyl discs) are within this first category.

The second category includes ‘the recording of the whole or any part of a literary, dramatic or musical work, from which sounds reproducing the work or a part may be produced.’ The Act is deliberately non-specific about recording media and methods of production and reproduction, the intention being to make the provisions flexible enough to cope with technological advance. This provision therefore continues (inter alia) the protection of piano rolls which existed under the 1956 Act. The difference between such sound recordings and what we know as records is that piano rolls record and reproduce the movement of the keys rather than the sound of the work; similarly, recordings may now be made of electronic music direct into the recording medium, with no sound actually being produced..

The fact that a computer program recorded on tape will produce certain sounds if played through a suitable tape recorder does not mean that the program is a sound recording. It is not the literary work recorded on the tape which is reproduced but a series of noises. However, a program designed to cause a machine to produce a particular sound would qualify as a sound recording in its own right.

Films

Section 5B(1) says that a film is a recording on any medium from which a moving image may by any means be reproduced. This wording covers videograms, zoetropes (or ‘What-the-Butler-saw machines’), laser discs and movie clips stored in digital form such as CD ROM and (now) DVD.

The Berne Convention regards the soundtrack as part of the film, but of course does not cover sound recordings as a distinct type of work. However, section 5B(2) provides that the soundtrack is part of the film, although no distinction is drawn between playing the soundtrack and showing the movie if they are done together, so showing a film without permission only constitutes one infringement. The soundtrack may still have an independent life as a sound recording, for example if released on CD.

Originality of sound recordings and films

Copyright only subsists (by virtue of section 5A(2) and 5B(4)) in the original sound recording or film. Making subsequent copies does not give rise to new copyright. However, the copies of a recording which are made for sale are not freely available for copying; making a copy would infringe copyright in the original recording.

Broadcasts

Broadcasts and a number of related terms are defined in broad terms in section 6. A separate category of cable progamme services was deleted in the 2003 reforms, and the subject matter merged into the definition of broadcasts. Section 6 is long and complicated. It tells us that copyright subsists in any electronic transmission of visual images, sounds or other information which is transmitted either for simultaneous reception by members of the public, and is capable of being lawfully received by them, or at a time determined solely by the person making the transmission for presentation to members of the public.

The first of these includes BBC and IBA national and local series, community radio, and certain satellite transmissions, encrypted or en clair. An encrypted satellite transmission is capable of being lawfully received by members of the public provided the necessary equipment is made available to the public at large, and then by or with the authority of the person making the transmission or providing its contents.

The second covers, for example, an encrypted transmission of a major boxing match or an opera or similar event which members of the public who feel so inclined can pay to see in a cinema or similar location.

Most internet transmissions are excluded from this definition. This calls for a definition of ‘internet transmission’, but the regulations do not oblige with one. The categories of internet transmissions that are within the definition of ‘broadcast’ are those that take place simultaneously on the Internet and by other means, concurrent transmissions of live events, and transmissions of recorded moving images forming part of a programme service offered by the person responsible for making the transmission, in which programmes are transmitted at scheduled times determined by that person.

Satellite services fall to be treated as broadcasts since they are broadcast for general reception by members of the public who pay for any necessary licence and get the right decoding equipment. The Copyright Act 1956 did not treat these as broadcasts with the result that satellite programme providers were not obliged to obtain consent from copyright owners whose works they included in transmissions.

The chapeau to subsection (1) includes not only visual images and sounds but also ‘other information’. This is intended to cover, for example, the broadcast by the BBC of a computer program in digital form for loading onto home computers.

Who is the broadcaster?

The question of who is the broadcaster for copyright purposes is dealt with in subsection (3). The identity of this person is important because by section 9(2)(b) the person making the broadcast is the author of the broadcast, and by section 11 the author is the first owner of copyright in a work. However, the authorship of other types of copyright works is dealt with elsewhere in the Act making this provision rather anomalous.

Two classes of person may be regarded as ‘making a broadcast, broadcasting a work, or including a work in a broadcast’, in the words of the subsection. These are the person who is responsible for the contents of the broadcast and who makes the arrangements necessary for the transmission, and the person who transmits the broadcast, if he has any responsibility for its content.

The upleg of a satellite transmission does not fall within the definition of a broadcast in subsection (1)(b) because the public cannot receive it, so subsection (4) ensures that a broadcast will be regarded as having been made from where the signals are ‘introduced into an uninterrupted chain of communication (including, in the case of a satellite transmission, the chain leading to the satellite and down towards the earth)’¹¹¹.

Subsection (6) provides an exception to the subsistence of copyright in broadcasts; to the extent that a broadcast infringes copyright in another broadcast or in a cable programme, it will not be protected. This provision is the equivalent for broadcasts (and the same applies to cable programmes) of the requirement for originality in literary, dramatic and musical works. The need for different treatment arises as a result of the ephemeral nature of broadcasts. If a copy of a Part I work, or of a sound recording or film, is used as the source or master for a further copy, the copyright in the original work is infringed. Repeats of broadcasts, on the other hand, generally need to enjoy their own copyright.

If only part of a broadcast repeats an earlier one, the whole of the new broadcast is not deprived of protection. The owner of the rights in the original has remedies under the Act, and depriving the infringer of copyright in his original work is not appropriate.

Section 6A was also introduced by the 1996 Regulations, and implements further provisions of the cable and satellite directive designed to avoid satellite transmissions being made from copyright-free broadcasters’ havens. It ensures that where the upleg of a satellite transmission starts from a non-EEA state in which the rights given to copyright owners and performers under the directive are not protected, the location of the uplink station (if in an EEA country) will determine where the transmission is made, and the person operating it will be considered the person making the broadcast: and failing that if a person in a EEA country has commissioned the making of the broadcast, that person is treated as making the broadcast and it is deemed to be made from where that person’s principal establishment is in the EEA.

Cable

‘Cable programme service’ was defined in section 7, repealed in 2003, which covered the sending of visual images, sounds and other information. Any services transmitted by wireless telegraphy were excluded, being properly dealt with as broadcasts: now, though, the 2003 amendments mean that cable programmes are also a species of broadcast.

Although the special provisions about cable have gone, it is worth pausing to note one significant application of the old law. In the Shetland Times case,¹¹² which was settled before a full trial of the issues,¹¹³ the (Scottish) court was prepared to grant an injunction on the basis that a page on the world wide web amounted to a cable programme service¹¹⁴. It therefore infringed copyright to include another person’s copyright material in a web page without permission. Although the site was interactive (which would on the face of it have disqualified it from protection as a cable programme service), and provided a facility to send messages by e-mail to the person providing the service, the court considered that this was not an essential part of the service and could effectively be severed from it. Note that under the 2003 regulations this case is no longer good law.

Published Editions

Copyright under the 1988 Act subsists in the typographical arrangement of a published edition of a literary, dramatic, musical or artistic work. It is a ‘thin’ copyright: the definition is a published edition of the whole or any part of one or more literary, dramatic or musical works¹¹⁵. To avoid the creation of new rights each time the same layout is republished it is provided in subsection (2) that copyright does not subsist if, or to the extent that, the typographical layout reproduces that of a previous edition.

Typographical arrangements, normally an extremely unexciting area of copyright protection, became important with the establishment of the Newspaper Licensing Agency to licence the reproduction of press cuttings. The scope of the protection given by this right is explored by the Court of Appeal in Marks & Spencer plc v Newspaper Licensing Agency ¹¹⁶. However, the Court of Appeal and the House of Lords put this right firmly in its place, as explained elsewhere, by placing a very narrow definition on the word ‘edition’

Exclusive Rights

Section 2(1) provides that the owner of copyright has the exclusive right to do certain acts specified in Chapter II of the Act. Section 2(2) provides that the authors of certain copyright works also have moral rights¹¹⁷. These have been introduced in response to the requirements of the Paris Text of the Berne Convention¹¹⁸, the desire to ratify which was one of the reasons for the restatement of copyright law in the 1988 Act. So, having dealt with the sort of thing that copyright law is apt to protect, we must look at what the owner of copyright is empowered to control. First, though, we must consider who is the owner of copyright and for how long it lasts.

1Bill Patry would say otherwise: to him, copyright as property is a metaphor, which is easier to say when looking at the US legislation which lacks anything like section 1(1). See Moral Panics and the Copyright Wars, Oxford University Press, 2009.

2 Paragraph .

3Section 16.

4 The Copyright and Related Rights Regulations 2003 (supra., note 8) removed the separate category of cable programme service.

5See Klement, [2007] EIPR 52. Note also the role of the law on breach of confidence in protecting ideas for programmes, as in Fraser v Thames Television, supra, page Error: Reference source not found.

6Per Peterson J. in University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601, approved by the House of Lords in Ladbroke, note 29, supra., but also heavily criticised, as for example in Sawkins v Hyperion (supra., note 34) recently.

7Greyhound Racing Association Ltd v Challis [1923-28] Macg CC 370 and see Bookmakers Afternoon Greyhound Services v Wilf Gilbert (Staffs) Ltd [1994] FSR 723, where there was copyright in race cards and programs but Aldous J held that computerised dividend forecasts did not qualify for protection. Once the formula for producing the forecasts had been created the rest was automatic. The operator entered factual information, exercising no discretion.

8[1982] Ch 119.

9Interlego AG v Tyco Industries Inc, The Times, 6 May 1988.

10[1994] FSR 275.

11[1924] 40 TLR 186.

12[1879] 9 Rettie 341.

13[1974] RPC 57.

14[1986] RPC 279.

15[1995] FSR 818, 828.

16 [2004] EWHC 1530 (Ch), [2004] EMLR 27, on appeal [2005] EWCA Civ 565 (19 May 2005).

17[1995] 3 All ER 1, [1997] 2 All ER 129.

18 LB (Plastics) Ltd. v. Swish Products Ltd. , [1979] RPC 551, [1979] FSR 145.

19Donohue v Allied Newspapers [1938] Ch 106, 109.

20Cornish and Llewellyn, Intellectual Property, sixth edition, para 1.06.

21Cf §102(b) 17 USC.

22(1890) LR 25 QBD 99, and see Cheng Lim Saw [2005] EIPR 467.

23[1980] RPC 213.

24For further discussion of the protection of ideas, specifically whether ideas can be considered a substantial part of a copyright work so that taking ideas can amount to an infringement, see below, Error: Reference source not found

25Sections 153-155.

26You need not concern yourself with why this should be the case, still less with why I should happen to know. In short, it results from the interaction of different pieces of copyright legislation and international treaties, and a similar situation is unlikely to arise very often.

27 Protection does not automatically extend to the Channel Islands or the Isle of Man, though it is extended to these territories by Order in Council. The same is true of other dependent territories. See in particular the Copyright (Gibraltar) Order 2005 (I No 853). The Copyright (Bermuda) Order 2003 (S.I. 2003/1517) was revoked in 2009 (SI no 2749) when Bermuda became a party to international copyright conventions in its own right.

28 However, the protection of the legislation must be applied to such works and authors by statutory instrument: it is not automatic. The Copyright and Performances (Application to Other Countries) Order 2008 (SI no 677) is the latest statement of where the Act applies. The Copyright (Taiwan) Order 1985, S.I. 1985/1777 made special provision for that territory (as it is referred to in the Order) but it is now dealt with in SI 2008 No 677..

29 The meaning of ‘publication’ in section 175 comes from the old case Francis Day and Hunter v Feldman [1914] 2 Ch 728.

30Section 3(1). The inclusion of the words ‘or otherwise’ is a change from the 1956 Act, which makes a range of audio and other recording techniques that have come along since that year relevant.

31 ‘Writing’ includes ‘any form of notation or code, whether by hand or otherwise and regardless of the method by which, or medium in or on which, it is recorded, and ‘written’ shall be construed accordingly’.

32[1900] AC 539. See also Express Newspapers plc v News (UK) Ltd [1991] FSR 36.

33Liberal Prime Minister in 1894-5.

34[1990] 3 All ER 376.

35 This accounts, for example, for the impromptu solo version of Forever Young included on Bob Dylan’s 1985 Biograph boxed set.

36[1999] EMLr 589.

37[1976] AC 64; [1974] 2 WLR 700; [1974] 2 All ER 420.

38Section 3(1)(b); this seems to stretch the meaning of the word ‘accordingly’, particularly in relation to computer programs.

39The treatment of databases is untidy. The EC Directive on the legal protection of databases (supra., note 6) sets out specific rules for databases, whether or not accessed by electronic means: so although they were probably types of compilation in the first place, they are now excluded from that part of the definition of literary works and tacked on to the end in their own right. They are dealt with in greater detail at paragraph .

40The spelling of program - an archaic English rather than a modern American form - became enshrined in statute as a result of the Copyright (Computer Software) Amendment Act 1985. The spelling was debated at greater length than the substance of the legislation during the passage of that Bill. Computer programs are discussed in more detail at paragraph .

41Directive 91/250/EC, implemented in the UK by the Copyright (Computer Programs) Regulations 1992, SI 1992 No 3233.

42 It is unusual for a list to be constructed with something specifically excluded from the first item, then added on to the end as an item in its own right. This eccentric approach is dictated by the fact that there is a very specific definition of a database in the directive, which may or may not be very different from that of a table or compilation.

43[1916] 2 Ch 601, 608.

44Exxon v Exxon Insurance Consultants[1982] Ch 119.

45[2002] EWHC 2557: on appeal relating to damages, [2005] EWCA Civ 931, http://www.bailii.org/ew/cases/EWCA/Civ/2005/931.html.

46 Note 27, supra.

47 The definition of writing also allowed computer programs to be accommodated in copyright law as literary works even before the legislation specifically mentioned them.

48Ladbroke, supra. Source code is the version of a computer program, written in a programming language, which is relatively accessible to a human user. Object code is that program "compiled" into machine-readable, binary, form. For the copyright significance of compilation,...

49 The ubiquitous application of digital technology transforms all manner of material into similar streams of binary digits, the product of which is only realised when they are processed by an appropriately-programmed computer. Arguably, all digital files, being "written" in a form of notation-code, should qualify as literary works.

50Ladbroke Football Ltd v William Hill (Football) Ltd [1964] 1 WLR 273.

51Anacon Corp. v Environmental Research Technology Ltd [1994] FSR 659.

52(1923) 93 LJPC 113.

53(1890) ILR 17 Calc 951.

54[1994] FSR 275.

55Supra., note 8.

56

57

58[1940] AC 112.

59[1944] AC 329.

60SI 1997 no 3032.

61By the Copyright, Designs and Patents Act 1988 section 3(1) so too are their preparatory materials.

62CDPA section 79 states that “writing” includes “any notation or code, whether by hand or otherwise and regardless of the method by which, or medium in or on which, it is recorded .....”.

63Directive 91/250/EEC.

64 COM (2000) 199 final, 10.04.2000.

65[1895] 2 QB 429.

66

67

68 In connection with which, see the discussion about the explanatory legend on engineering drawings in paragraph , infra.

69 [2004] EWHC 1530 (Ch), [2004] EMLR 27.

70[2005] EWCA Civ 565 (19 May 2005).

71 See Groves, [2005] 1 Ent LR 20.

72Cheng Lim Saw [2005] EIPR 467. In September 2002 the songwriter and producer Mike Batt settled out-of-court an action for infringement brought by Cage’s publishers over a piece entitled One Minute Silence, attributed to Batt/Cage. It would have been interesting to see whether a claim for false attribution of authorship (see para Error: Reference source not found) would have stood up.

73Unreported, 12 June 1985.

74

75[2005] FSR 747.

76[2012] EWPCC 37 (05 October 2012).

77See section 4(2) where the list is set out in full.

78In Lucasfilm Ltd & Ors v Ainsworth & Anor [2008] EWHC 1878 (Ch) (31 July 2008), a case involving claims to copyright in sculptures and works of artistic craftsmanship rather than graphic works, Mann J went to great lengths to avoid making any sort of artistic judgment on the material in front of him, which were costumes and related items from the Star Wars films. See para .

79(1890)25 QBD99. The work was a simple graphic designed to assist illiterate voters to make their mark on the ballot paper.

80[1995] FSR 365.

81[2001] RPC 407.

82[1941] AC 417.

83[1974] RPC 57.

84[1981] RPC 303.

85See BL v Armstrong, [1986] AC 577 (HL).

86Sections 51 and 52, supra., paragraph Error: Reference source not found.

87 See paragraph Error: Reference source not found, infra. Section 52 will be repealed in 2014, under the Enterprise and Regulatory Reform Act 2013.

88 [2001] FSR 43.

89 [2004] EWHC 468 (Ch).

90[1983] FSR 32.

91(1869) LR 4 QB 715.

92(1953) [1978] RPC 485.

93[2001] FSR 345.

94[1997] FSR 718.

95J & S Davies (Holdings) Ltd v Wright Health Group Ltd [1988] RPC 403, although that was mainly because of a lack of permanence.

96Wham-O Manufacturing v Lincoln [1985] RPC 127 (CA, New Zealand). FRISBEE is of course a trade mark.

97[1995] FSR 77.

98[1997] EMLR 444.

99[2009] EWCA Civ 1328.

100 Lucasfilm Ltd & Ors v Ainsworth & Anor [2011] UKSC 39 (27 July 2011).

101Note 96, supra.

102[2002] FSR 254.

103[1941] 3 All ER 144 and (1957) 12 DLR 2d 397 respectively.

104Section 4(1)(c).

105Supra, note 37

106[1986] RPC 115.

107[1936] Ch 400 at 408.

108[1994] EMLR 134.

109[1999] EWHC Ch 252 (22nd February, 1999).

110Sound recordings and films, previously both dealt with in section 5, have been split in the Act by the amendment made by the Duration of Copyright and Rights in Performances Regulations 1995, SI 1995 No 3297.

111Section 6(4) was amended by the Copyright and Related Rights Regulations 1996, SI No 1996/2697, which inter alia implemented the cable and satellite directive, 93/83/EEC.

112Shetland Times v Shetland News and Willis, Court of Session, 1995.

113The Internet connection in the trial court apparently could not be made to work.

114The Court had to engage in some convoluted reasoning to reach this result. Now, the case would probably be dealt with as an infringement of the new “making available” right, although it must still be doubtful that the defenders would be considered to have infringed.

115Section 8(1). There is no need for artistic works to be covered: a printed drawing is a reproduction of the drawing. The artist’s copyright therefore suffices.

116[2000] EWCA Civ 179, [2000] 4 All ER 239

117Moral rights are dealt with in Chapter IV (sections 77 to 95) of the Act.

118Article 6bis.