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The copyright owner's rights (1)

Contents

  1. 1 The Copyright Owner’s Rights
    1. 1.1 Introduction
      1. 1.1.1 The Restricted Acts
      2. 1.1.2 Objective similarity
      3. 1.1.3 Derivation
      4. 1.1.4 Independent creation
      5. 1.1.5 Indirect Copying
      6. 1.1.6 Substantial Part
      7. 1.1.7 The special case of published editions
      8. 1.1.8 Facts in books
      9. 1.1.9 Substantiality and originality
      10. 1.1.10 Vicarious liability
    2. 1.2 Limitations
    3. 1.3 Copying
      1. 1.3.1 The Restricted Act
      2. 1.3.2 Electronic copies
      3. 1.3.3 Parody
      4. 1.3.4 Artistic Works
      5. 1.3.5 Photographs
      6. 1.3.6 Typographical Arrangements
    4. 1.4 Issuing Copies to the Public (or Distribution Right)
      1. 1.4.1 First Publication
      2. 1.4.2 Exhaustion
      3. 1.4.3 When is a copy issued to the public?
      4. 1.4.4 Rental
    5. 1.5 Performing, Playing and Showing in Public
      1. 1.5.1 Public Performance
      2. 1.5.2 Playing and Showing in Public
      3. 1.5.3 In Public
    6. 1.6 Broadcasting and communicating to the public
    7. 1.7 Adaptations
    8. 1.8 Authorising others to do restricted acts
    9. 1.9 No Inference to be Made
    10. 1.10 Custom and practice
    11. 1.11 Human rights
    12. 1.12 Secondary Infringement
      1. 1.12.1 Importation
      2. 1.12.2 Possession or Dealing
      3. 1.12.3 Providing Means for Making Infringing Copies
      4. 1.12.4 Permitting Use of Premises
      5. 1.12.5 Provision of Apparatus
      6. 1.12.6 Infringing Copies
      7. 1.12.7 Anti-Spoiler Devices
      8. 1.12.8 Apparatus for Unauthorised Reception of Transmissions
      9. 1.12.9 Technological protection measures
      10. 1.12.10 Rights management information
    13. 1.13 Criminal offences
    14. 1.14 Presumptions
      1. 1.14.1 Literary, Dramatic and Musical Works
        1. 1.14.1.1 Purported Authorship
        2. 1.14.1.2 Joint Authorship
        3. 1.14.1.3 Purported Publishers
        4. 1.14.1.4 Deceased Author
      2. 1.14.2 Sound Recordings, Films and Computer Programs
        1. 1.14.2.1 Sound Recordings and Films
        2. 1.14.2.2 Computer Programs
        3. 1.14.2.3 Prior Infringements
        4. 1.14.2.4 Films: Further Presumptions
      3. 1.14.3 Crown Copyright

The Copyright Owner’s Rights

Introduction

The Act does not address the matter of infringements directly. Instead, it gives the owner of the copyright the exclusive right to do the ‘restricted acts’, and those acts if done by others without the authority of the rights owner will infringe copyright. Section 2 sets out the basic principle, and section 16 lists the different acts that might infringe. They are set out in detail in Chapter II of Part I of the Act.

Section 16 was amended extensively by the 2003 Regulations, giving the copyright owner the right not only to control not only including the work in a broadcast but also making the work available to the public, so internet dissemination is expressly covered.

Infringements fall into two broad categories, primary and secondary. Five acts restricted by copyright fall into the first category; the second category embraces what might broadly be termed dealing in infringing copies, and also facilitating the commission of a primary infringement.

The restricted acts apply only to the copyright in something, not the thing itself. Copyright is protected as an abstraction, and does not control what you may do with something that contains a copyright work, so you can read a book or burn it without the copyright owner being able to stop you. But with works in digital form this simple distinction becomes harder to draw – the ordinary enjoyment of a digital work will involve making incidental copies, and therefore require the copyright owner’s permission. This is the basis on which computer software is distributed.

Copyright infringement is a statutory tort, related to other torts concerning interference with property rights. Primary infringements do not require that the defendant knew she was committing an infringement (secondary infringements as we will see are different) but section 97 will excuse an innocent infringer from a claim for damages. Private, domestic use can infringe, which is not the case with other intellectual property rights, although because damages will usually be small such cases are unlikely to come to court. There is no requirement for copyright infringement to be in the course of a trade, though if it is, criminal sanctions may apply.

In Francis Day & Hunter v Bron [1963] Ch 587, Diplok LJ (yes, him again:) said that the claimant in a copyright infringement action had to show two essential elements: first, that there was an objective similarity between his work and the defendant’s ‘work’ (I put this in inverted commas because, of course, if the claimant is right what the defendant has produced is not a work in the true sense of the word – it is in fact the claimant’s work).

The Restricted Acts

The restricted acts are set out in section 16(1) and expanded upon in subsequent sections:

  • copying the work (section 17);

  • issuing copies to the public (section 18);

  • performing, showing or playing the work in public (section 19);

  • broadcasting the work or including it in a cable programme service (section 20); and

  • making an adaptation (section 21).

Copyright is infringed by anyone who does any of the restricted acts, or authorises another to do any of them, without the licence of the rights owner. The infringer’s knowledge is not material to the question of infringement, though innocence will go to reducing damages1. There must however be a causal nexus between the claimant’s copyright work and the defendant’s product: in Francis Day and Hunter Ltd v Bron2 subconscious copying was in issue.

A restricted act can be done directly or indirectly. The Act provides that it is immaterial whether any intervening acts themselves infringe copyright3.

Objective similarity

To determine whether copying might have taken place, the court will compare the source work with the alleged infringement (or, as American lawyers, who put things so much more graphically, would say, the accused copy). At this stage, the appropriate thing to do is to look at the matter on an overall basis, so in Corelli v Gray (1913) 30 TLR 116 the court considered the plot and characters in a play and in the novel from which it had allegedly been copied. But in in Francis Day and Hunter Ltd v Bron7  it considered the first eight bars of a popular song, which seems far removed from looking at it overall: however, the court justified this approach because the opening bars were the part that would make the biggest impression on the listener.

Objective similarity alone is not enough. The alleged copy might still be the original work of the second author, who was ignorant of the first author’s work. The necessary connection is established by asking whether the defendant’s ‘work’ is derived from the claimant’s. However, if there are similarities that tends to indicate that there has been an infringement, and if the defendant cannot explain the similarities the court will draw its own conclusions: Designers Guild, Red Bus.

Derivation

There must be a causal nexus between the claimant’s copyright work and the defendant’s product, which is another way of saying that the alleged infringement must be derived from the claimant's work.

Note that a distinction is often drawn between derivative ‘works’ and transformative works. If the defendant has transformed the claimant’s into something different, it is at least arguable that she has done something which copyright should not prohibit, and perhaps should even encourage: this distinction is not found in the Act, and does not of itself provide a defence to an infringement action, but it does underlie a great deal of discussion of copyright policy in for example the Hargreaves Review.

The necessary connection does not require the infringer to be aware of it: in Francis Day and Hunter Ltd v Bron subconscious copying was in issue. And something can be derived from something else, even if there be intermediate steps between the two. In Solar Thomson v Barton [1977] RPC 537 the defendant’s agent gave instructions for the manufacture of spare parts, which at that time (before the 1988 Act) infringed copyright in engineering drawings (now it would be a matter for unregistered design right).

Copyright protection for industrial designs before 1988 was entirely based on indirect copying of design drawings. In LB Plastics v Swish Products [1979] RPC 551 the defendant infringed copyright in the drawings by copying the interior of self-assembly furniture. In BL v Armstrong Patents Ltd the defendant replicated the plaintiff’s exhaust pipe. In neither case was there direct copying of the drawings, to which the defendants had no access, but that did not mean that no infringement was committed.

On the other hand, in Purefoy Engineering v Sykes Boxall (1955) 72 ROC 89 both parties had produced catalogues of  machine tools which looked similar, and in Warwick Films v Elsinger [1969] 1 Ch 508 the defendant’s film was based not on the plaintiff’s book but on the transcript of the trial of Oscar Wilde.

Independent creation

Copyright is not a monopoly right, as anyone who independently arrives at the same idea is entitled to express it in identical terms4. Only taking another’s work in some way is controlled - ‘the copyright work must be the source from which the infringing work was derived.’5

You will see that this brings us back to the idea/expression dichotomy which was discussed above, and also raises important questions about what is a substantial part of a copyright work and what is original (issues which have become elided as a result of the Infopaq case). These interrelated issues are explored by HHJ Birss QC in his judgment in Hodgson & Anor v Isaac & Anor [2010] EWPCC 37 (05 December 2011), which concerns tribalism among football supporters from Darlington (I believe there are a few) and my home town. See also http://ipso-jure.blogspot.co.uk/2011/12/hodgson-v-isaac-how-to-show-copyright.html.

It was put nicely by Erie J. in Jeffreys (C) v Boosey (T)6 in 1854;

The claim is not to ideas, but to the order of words, and this order has a marked identity and a permanent endurance ... The order of each man’s words is as enduring as his countenance, and although, if two authors composed originally with the same words, each would have a property therein, still the probability of such an occurrence is less than that there should be two countenances that could not be discriminated. The permanent endurance of words is obvious by comparing the works of ancient authors with other works of their day; the rigour of their words in unabated; the other works have mostly perished. It is true that property in the order of words is a mental abstraction, but so also are many other kinds of property, for instance, the property in a stream of water, which is not in any of the atoms of the water, but only in the flow of the stream. The right to the stream is nonetheless a right of property, either because it generally belongs to the riparian proprietor, or because the remedy for a violation of the riparian rights is by action on the case, instead of detinue or trover.

In the American case of Desney v Wilder7, it was suggested that there might nevertheless be limits to this time-honoured notion:

Generally speaking, ideas are as free as the air and as speech and the senses, and as potent or weak, interesting or drab, as the experiences, philosophies, vocabularies and other variables of the speaker and listener may combine to produce, to portray, or to comprehend. But there may be circumstances when neither air nor ideas can be acquired without cost. The diver who goes deep in the sea, even as the pilot who ascends high in the troposphere, knows full well that for life itself, he, or someone on his behalf, must arrange for air (or its respiration-essential ingredient, oxygen) to be specifically provided at the time and place of need. The theatrical producer likewise may be dependent for his business life on the procurement of ideas from other persons as well as the dressing up and portrayal of his self-conceptions; he may not find his own sufficient for survival.

And indeed in decisions concerning copyright in computer programs the American courts have stretched the notion of copyright in the direction of protecting ideas, by holding that to reproduce the look and feel of a computer program may be to infringe copyright in the original software8

Indirect Copying

Providing a further illustration of how so many strands of copyright theory come together, in particular expanding on the idea of the causal link, section 16(3)(b) deals with direct and indirect copying. It ensures that making a copy of a copy is restricted, regardless of how many stages of copying are involved. Nor does it matter whether the stages are themselves infringements; it is as much an infringement of an author’s copyright to photocopy a book, an authorised copy of a book or an unlawful copy of it. No matter how many generations of copies there are, the next one will always require the copyright owner’s licence. The work in which copyright subsists is an abstraction which exists independent of physical copies. So, in Bernstein v Sidney Murray, a drawing of a garment infringed copyright in design drawings for the garment: in Plix Products v Winstone9 oral instructions to make a tray for kiwi fruit, given over the telephone with an example of the claimants’ tray in front of the person giving the instructions, was an infringement: and in Gabrin v Universal Music Operations Ltd10 a CD cover based on an old poster infringed copyright in the photograph that was incorporated in the poster. And of course there are the old engineering drawing cases: Solar Thomson v Barton, L&B Plastics v Swish Products, and BL v Armstrong.

Copying may be unconscious: in EMI v Papathanasiou11 Vangelis was accused of having copied some of a piece called ‘The City of Violets’, but the judge held that even if the copying were unconscious the pieces were so different, and the similarities so limited, that there was no infringement.

There has to be an objective similarity between the claimant’s work and what the defendant claims to have created: and if there is a resemblance between them the defendant has to explain it. The explanation might be that it is a coincidence, or that they share a common source (in which case both might infringe someone else’s copyright), there are several examples of this in the cases: Robertson v Lewis12, Warwick Films v Elsinger13, Designer’s Guild.

As for independent creation, see Kleeneze Ltd v DRG Ltd14, Michael Mitchell v BBC.

This is another difference from the monopoly rights (patents and registered designs, principally). You can infringe copyright but still create something: ZYX Music15.

Substantial Part

Copyright is infringed by doing one of the restricted acts not only to the whole but also to a substantial part of the work16. Were it otherwise, copyright protection would be so easily avoided that it would be worthless.

The basic test in copyright law (laid down by Peterson J in University of London Press Ltd. v University Tutorial Press Ltd17) has long been that ‘what is worth copying is prima facie worth protecting’. Originally copyright was concerned with the reproduction of entire books, but it soon became established that copying part of a work should also be controlled. Protection of a ‘substantial part’ was introduced in the 1911 Act and continued in the 1956 Act, and is now in the 1988 one. What constitutes a substantial part is a matter for the courts to decide on each new set of facts. As Lord Denning said in the debate in the House of Lords on the 1988 Act:

It has always been said that it is not quantity but quality that is important. If a few key words in a poem are taken, that is a substantial part, even though the poem has 100 stanzas. If you take one key stanza that is a substantial part because of its quality. The courts have always said that they can interpret ‘substantial part’.

The authorities indicate that qualitative considerations are more important than mere quantitative ones; a few bars of music, if they constitute a recognisable piece of a melody, could be a substantial part (Hawkes & Son v Paramount18), and so too a still from a film made into a poster (Spelling Goldberg v BPC Publications Ltd19). Small but regular extracts can add up to an infringement as where a trade association abstracted four items each week from a weekly compilation of some 400 items. The first time it was probably insubstantial, but because of the regularity of it an infringement was committed.

In Designer Guild v Russell Williams (Textiles)20 the House of Lords held that after copying had been found it was almost bound to follow that enough had been taken to constitute infringement. That does depend on how far the distinction between the taking of ideas and the taking of expression is part of the first question (whether there has been copying) as well as the second (whether what has been copied is a substantial part).

Other cases mentioned above in connection with the requirement for originality and the idea-expression dichotomy are also relevant here, such as Norowzian v Arks and Green v New Zealand Broadcasting Corporation.

The requirement for the taking of a substantial part of the copyright work is closely related to two basic principles of copyright law that were described above. First, it is original expression rather than underlying idea that receives protection. Unlike the US Copyright Act, the Copyright Designs and Patent Act 1988 does not expressly say this, but it has long been viewed as inherent in the way copyright works. That is not, however, to say that copyright will protect only the finished item: that route would lead to unimportant changes avoiding an infringement action. The problem has been highlighted in copyright infringement cases concerning computer software. In the pioneering American case, Whelan v Jaslow21 the court took an over-simplistic view (understandably, at that early stage of the development of computer software) and excluded from protection only a single underlying idea. In Computer Associates v Altai22 the District Court formulated a more sophisticated, three-step approach to excluding unprotected or unprotectable matter from the equation which was picked up in this country by Ferris, J in John Richardson Computers v Flanders and Chemtec23. The judge sought to use the three-stage test but not at the initial stage of deciding what could be protected by copyright, since the Act did not direct him to identify unprotectable elements: instead, he attempted to apply the principle at the later stage of deciding whether a substantial part had been taken. Jacob, J rejected this approach in the Ibcos case24, holding that there was no requirement to search for a ‘core of protectable expression’ as there was in American law and rejecting the concept of the merger of expression and idea which has been particularly influential in the American cases. Copyright subsisted in the program as a whole, because looked at as a whole it was the original work of the first programmer (and Jacob J suggested that the existence of copyright might be due to the programmer’s having compiled it): that copyright was infringed because the defendants had overborrowed from it. The judge pointed out that, far from excluding ideas from copyright protection, English copyright law has always given protection to elaborated ideas.

In the Breville case25, where copyright was held to subsist in the moulds for making the inside of a sandwich toaster, the judge held that there was no infringement of copyright because only the ideas relating to the internal design, and not the skill, labour and effort of the author had been taken.

What is a substantial part often involves selection and commercial judgement. These activities often constitute a major part of the creative process, particularly for example in the case of a compilation. In such cases, protection is given to mere ideas and information in the course of protecting the compilation or table in which they appear. Thus, in Elanco v Mandops26 the plaintiff’s copyright in the instructions for the use of its weedkiller were infringed, notwithstanding that what was conveyed by the instructions was purely factual information. Contrast this case with Penguin v Geographia, which involved the colouring of maps, and Johnstone Safety Co v Peter Cook27 which involved a design for the base of a traffic cone, held to be idea not expression.

The idea/expression dichotomy can be seen clearly in the case of plots, whether of dramatic or literary works. If a plot is lifted wholesale from somebody else’s work, the courts will not have a very difficult job28, but it is more usual to find arguments about elements of the plot being taken. Common plot elements are not copyright, but if the common elements are assembled in an original way the taking of a work put together from common elements may infringe copyright in the fresh parts of the work29. If the treatment of plot incidents is also copied, it will be easier to find that a substantial part of the expression of the plot has been taken30.

In the case of an artistic work, taking the function, idea, principles of construction and so forth will not usually be regarded as taking a substantial part of the work31. These elements are not generally protected by copyright in the artistic work. Nevertheless, the use of information included on the drawing may well lead to a finding of copyright infringement as in BL v Armstrong32.

The special case of published editions

In NLA v Marks & Spencer plc, the defendant argued that it had not copied a substantial part of the copyright work (it had copied only individual articles, and the copyright work was the typographical arrangement of the whole newspaper): In the High Court, Lightman J held that each article constituted a published work, and its typographical arrangement was capable of being a copyright work.33 The defendant’s copies were therefore copies of a substantial part of the respective arrangements. On appeal, the majority in the Court of Appeal considered that a published edition had to be viewed as a whole, so there was no infringement unless a substantial part had been taken.34 The articles that had been copied did not in themselves amount to substantial parts of the whole newspaper. The House of Lords agreed.35

Facts in books

The facts contained in a book can constitute a substantial part, and a series of cases explore when taking ideas from a book might infringe copyright. Harman Pictures v Osborne [1967] 1 WLR 723 concerned John Osborne’s script for the film The Charge of the Light Brigade, which borrowed so heavily from an earlier historical work, Mrs Cecil Woodham-Smith’s The Reason Why (EP Dutton, 1960) that the plaintiffs applied for, and obtained, an interlocutory injunction to prevent the defendants producing their film. With expensive film crews, stars and (literally) armies of extras to pay for, the case was bound to be settled, so it never went to trial and whether John Osborne had worked independently and produced a script that had a great deal in common with the book, or had started with the book and selected material from it for inclusion in his screenplay remains unknown. Ravenscroft v Herbert (1980) RPC 193 involved James Herbert’s novel of Nazi occultism, The Spear, and Mr Ravenscroft’s 1973 historical work about the Holy Lance, Spear of Destiny, from which Mr Herbert had drawn many of his facts – too many, in fact, because the court held that he had infringed copyright. (Rather than pay damages, he removed the offending material.) Finally, in 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.

An appeal court should not take a different view from that of the trial judge as to what amounts to a "substantial part": see the clear direction from the House of Lords in Designer Guild v Russell Williams36. Lord Bingham (with whom the rest of the House agreed) said:

It was not for the Court of Appeal to embark on the issue of substantiality afresh, unless the judge had misdirected himself, which in my opinion he had not, [6]

See also Lord Hoffmann in section 7 of his speech.

Substantiality and originality

At this point, it is worth remarking once again on the way in which questions of originality are interconnected with the concept of a substantial part. The Court of Justice’s decision in Infopaq indicates that in considering whether a substantial part has been taken, one has to ascertain whether what has been taken is original to the purported author. See Error: Reference source not found above.

Vicarious liability

Ordinary principles of vicarious liability apply in copyright law: an employer will be liable for the acts of its employees (PRS v Mitchell & Booker37). Related to this topic is the infringing act of authorising another to do an infringing act, which is dealt with below at .

Limitations

The owner’s exclusive rights are subject to limitations, set out in Chapters III and VII of the Act which deal respectively with permitted acts and licensing schemes. These are dealt with below.

Copying

The Restricted Act

It almost goes without saying that copying a work should be an act restricted by copyright. Section 17 says that reproducing a work in any material form is a restricted act for all types of copyright works. The term covers much more than simply making slavish copies; but of course it does not cover the making of an identical work independently of the first.

A material form may include a display on a television screen, as in Bookmakers Afternoon Greyhound Services38 but taking a literary work and making an artistic work from it does not involve any meaningful reproduction of the literary elements.

The simpler the source work, the more slavish the copying must be to amount to an infringement. In Kenrick v Lawrence39 the drawing (a hand marking a ballot paper) was so basic that the court considered that only a very close copy would infringe (or, it could be said, the idea was so closely related to the expression that copyright could not protect it), and in Guild v Eskander Ltd40 designs for very simple knitwear were not infringed.

Electronic copies

The storage of a work in electronic form is expressly included in the definition of copying. Storage and copying are all-important in computer work; copying is an integral part of the operation of a computer program which has no parallel in the case of any other type of work as well as an essential step in the use of software. Acts which would normally be infringements do not necessarily prejudice the rights of copyright owners when done to programs, because they are inherent in the normal use of the program – like reading a book.

Viewing a work stored in a computer necessarily involves making a reproduction of it. The reproduction will be temporary and incidental but nevertheless a reproduction. The running of a program also involves the making of a transient copy within the machine. Subsection (6) ensures that copies which are transient or incidental to some other use of the work are still regarded as copies. See R v Gilham [2009] EWCA Crim 2223. However, mere viewing of a copyright work has never been a restricted act, so the use of electronic displays in place of printed copies raised difficulties. Transmitting computer programs would be a primary infringement; downloading or recording works included in broadcasts is also a restricted act, so computer programs have considerable protection even without the benefit of special provisions. Subsection (7) was designed, inter alia, to permit incidental use such as running a program or viewing data stored at a remote location.

Data in a computer may be used to create an article, using a CAD/CAM program or 3-D printing. The computer file would be a literary work, but the three-dimensional article might still infringe copyright in it might41.

Parody

Parodies and the like receive no special treatment under UK copyright law. The ordinary rules about infringement apply, and if the parody takes a substantial part of another copyright work it needs permission or it will be an infringement. The basic principles for dealing with parodies are found in Glyn v Weston Feature Film Company42 in which Younger J said ‘... no infringement of the plaintiff’s rights take place where a defendant has bestowed such mental labour upon what he has taken and has subjected it to such revision and alteration as to produce an original result.’ But that observation was obiter, because he decided that the novel which the defendant’s film allegedly reproduced was immoral and therefore received no copyright protection.

A clever parody often achieves its purpose without trespassing on whatever it is parodying – which could be a work, or could be the author of that work (in the broad copyright sense of the word – musical parodies often mimic the style of a composer without copying any music)43. New words that can be sung to the tune of a song will not infringe copyright in the music, of course, and as for whether copyright in the words of the song is infringed in Joy Music v Sunday Pictorial the question, according to McNair J, was that posed in the Glyn case44. Later cases have however applied the ordinary ‘substantial part’ test without Younger J’s gloss, so minor changes to the label used by claimants for their bottles of tonic water - ‘Schlurppes’ rather than ‘Schweppes’ - were insufficient45, as were minor alterations to words to the song ‘There is Nothin’ like a Dame’ from the Rodgers and Hammerstein show, South Pacific, which was then used in advertisements for an express coach service46.

The Gowers Review of Intellectual Property47 recommended that there should be an exception to copyright protection to allow parody48 and the Hargreaves Review of Intellectual Property & Growth supported this approach. Draft legislation to create a new exception was published for review in June 2013.

Artistic Works

Infringement of the copyright in an artistic work is a much narrower concept under the 1988 Act than under its predecessor. When a two dimensional artistic work is reproduced in three dimensions, or a three dimensional one is reproduced in two dimensions, copying occurs. A drawing of a statue, or a statue made from a drawing, is a copy, but an exhaust pipe made from a drawing (or design document, to use the terminology of the Act)49 does not infringe copyright. Section 51 provides that, unless the article made from the design is itself an artistic work, no infringement takes place when a three dimensional object is made. Designs for non-artistic articles are protected by Design Right under Part III of the Act.

Photographs

Copying a photograph is another difficult concept in copyright law. Is the copyright work the negative or the print? A picture can be recreated by another photographer without having recourse to the negative of the first person to photograph a particular scene.

In Bauman v Fussell50 the defendant made a painting, the idea for which he took from a reproduction photograph published in the Picture Post, showing two cocks fighting. His painting depicted the birds against a red, fiery background rather than the light coloured ground of the photograph. The general effect of the painting was said to be very different from the photograph.

The judge held that there was no infringement of the plaintiff’s copyright and the Court of Appeal agreed. The design of a photograph could be a substantial part of the artistic work but the photographer in this case had not made the design. He had merely photographed it as he had found it.

Case C-145/10, Painer v Standard Verlag establishes that copyright in a photograph can be infringed by the making of a ‘photofit’ image of the subject.

In Temple Island v New English Teas51, the Red Bus case, the similarities between the claimant’s work and the defendant’s photograph suggested that copying had taken place, and (following Designer Guild) the court held that there was an infringement when the defendant was unable to explain the similarities.

A still photograph taken from a film, television broadcast or cable programme is, by virtue of subsection (4), a copy, whether it reproduces the whole of an image forming part of the film, etc., or just a substantial part of one. Such a reproduction can, of course, be a valuable image, but without specific protection would not amount to an infringement because the single image is unlikely to be a substantial part of the work, let alone a work in its own right. The means by which the photograph is produced is immaterial.

Typographical Arrangements

Copyright in the typographical arrangement of a published edition is only infringed when a facsimile copy is made of it. If copying involves a change in the layout it is not covered. This is, of course, a much narrower definition than for other classes of works.

Issuing Copies to the Public (or Distribution Right)

Section 18 of the Act deals with the second restricted act, issuing copies to the public, or distribution right as it is often called.

First Publication

Only first putting copies into circulation is restricted; subsequent sale, hiring, loan and importation of copies of works other than sound recordings, films and computer programs is not included although they could be a secondary infringement. The 1988 Act made a big change, as previously the restricted act was publishing the work (that is, publishing the abstraction in which copyright subsists). Publication was binary, a one-off event: a work was either published or it was not52. Now the first issue of each and every copy of the work is a copyright event: see Nelson v Rye and Cocteau Records53.

The problem of distribution of immaterial copies is highlighted here: the Act only works where the copies take some physical form. This is a matter - the most important matter - dealt with in the new WIPO Treaties and the EC’s draft directive on copyright in the Information Society.

Exhaustion

Section 18 incorporates the doctrine of exhaustion of rights within the EU. The copyright owner cannot object to copies which have been placed in circulation in the EEA with its consent, but it can object if copies placed into circulation elsewhere are imported into the EEA: Microsoft Corp v Computer Future Distribution Ltd54, a trade mark case but still relevant.

When is a copy issued to the public?

The meaning of ‘issued to the public’ remains far from clear55. Does it mean supplying copies to a wholesaler, or does it mean supplying them to consumers? In Case C-16/03, Peak Holding AB v Axolin-Elinor AB56 (another trade mark case) the Court of Justice held that the display of goods did not exhaust the trade mark owner’s rights: the goods had to be bought by someone. Retailers, previously only at risk of being secondary infringers, now appear to be capable of committing primary infringements.57

Rental

The rental of copyright works is the primary means of distribution for videograms, and with the development of digital technologies it is becoming more and more pressing: it is extremely difficult to control what is done with a rented-out copy, and the need to be able to control rental is clear. In addition, divergent laws in the EC can cause difficulties, as in Case C-158/86, Warner Bros v Christiansen58. But the UK government has always set its face against a levy, whether on blank tape or on hardware, such as is found in other countries.

The doctrine of exhaustion suggests that once a copy has been placed in free circulation by or with the consent of the copyright owner their interest in the copy has ended. That is clearly not going to work when a copyright work is exploited by rental. There has to be a derogation from the principle of exhaustion: see Case C-61/97, Egmont Films and others v Laserdisken59.

Rental of computer programs, films and sound recordings was already one of the rights restricted by copyright under the 1988 Act. The regulations extend the restricted act to cover almost all other kinds of works. In particular, music and works of art are brought within the scope of the legislation. The rights originally contained in the Act were supplemented from 1 December 1996 by the Copyright and Related Rights Regulations 1996, which amend the Copyright, Designs and Patents Act 1988 to implement EC directive 92/100.

The directive also required that UK law gives the right to authorise rental of films and sound recordings not only to the producers of the work but also to contributing authors and performers. The amended legislation contains a presumption that these rights are transferred to the producer when a contract is made to make a film, though where authors and performers have transferred their rental right (voluntarily or by presumption) they do retain a right to equitable remuneration for the rental of films and sound recordings.

The UK legislation provides for this equitable remuneration to be payable by producers. Authors and performers have contractual arrangements with producers under which they will receive payments for rental.

The requirements of the directive on lending apply in practice mainly to public libraries. The directive offers Member States a choice between granting the exclusive right to authorise lending, or a right to receive equitable remuneration for lending. Authors in the UK are remunerated for public library lending of books under the Public Lending Right Act 1979, and this arrangement will continue.

As far as films, sound recordings and computer programs are concerned, the 1988 Act already gives the exclusive right to authorise library lending of these works. This principle is extended to other forms of works which lending rights will now apply. The Secretary of State retains the power to order that lending shall be licensed against a payment of royalties where permission has been unreasonably refused.

Performing, Playing and Showing in Public

Public Performance

The performance in public of a literary, dramatic or musical work is a restricted act60. A ‘performance’ includes, rather sweepingly, the delivery of a lecture, address, speech or sermon, and in general any mode of visual or acoustic presentation is covered. A work presented by means of a sound recording, film, broadcast or cable programme is therefore performed for the purposes of the Act.

Playing and Showing in Public

Copyright in sound recordings, films, broadcasts and cable programmes restricts the playing and showing in public of these works. Where an infringing performance, playing or showing of a work in public is carried out by means of apparatus for receiving visual images or sounds conveyed by electronic means (a radio, television set or video) the person who sends the electronic signals commits no infringement. The performers who give an unauthorised public performance are similarly exempted.

Playwrights, composers and musicians have better things to do than to travel the world trying to find people performing or playing their works. If they had to do so, little new material would be written or recorded. Instead, they assign their rights to organisations known as collecting societies which grant licences to users, including people who own shops, hotels and restaurants, and concert venues – to which one might now add a wide range of public buildings where piped music is heard, telephone answering systems, offices, aircraft, and many more.

The owner of premises who wishes to perform music in public, whether live or recorded, must pay for a licence from the Performing Rights Society, which has some 40 different tariffs for different premises. The licence may be a blanket one, covering everything in PRS’s repertoire, or one that requires a record to be kept of what music is actually performed. The collecting society’s inspectors ensure that licences are obtained where necessary, and the proceeds are shared between the society’s members.

Among professional musicians, there is concern about venues seeking to pass on the cost of these licences by deducting it from the musicians’ fees.

PRS, and other collecting societies, have sister organisations in other countries.

In Public

‘In public’ is not defined in the Act, and its meaning is still uncertain despite the case law. Nor was it defined in either the 1911 or 1956 Acts, so there is a substantial body of case law on what it means. Since the term is undefined in statute, it is a question of fact in each case for the court to decide what is ‘in public’, and as the Gregory Report noted: ‘... so far as we can see, the courts have generally interpreted the term ‘performance in public’ as a term in contradistinction to a performance which takes place within the domestic circle’61.

The Whitford Committee received evidence seeking a statutory definition of the expression, but felt that it was a matter best left to the courts, which is where the 1988 Act leaves it. However, section 34 provides that certain performances for educational purposes are not in public, thus ensuring that they do not infringe copyright.

In PRS v Harlequin Record Shops62 Brown Wilkinson J held that music played over speakers in a record shop was a ‘public performance’ for the purposes and followed the judgment of Lord Greene MR in Ernest Turner Electrical Instruments Ltd v PRS63 who held that playing music to workers in a factory was a public performance saying

It is a question of law whether these performances are performances ‘in public’ within the language of the statute, but, in answering that question of law, the chief guide to the court is the guide of common sense. Some cases on their facts fall on one side of the line, and some on the other. In the present case, having regard to the character of the audience and all the relevant facts which bear on the matter, I have no doubt that these performances were performances ‘in public’

Brown Wilkinson J also referred to Jennings v Stephens64 where Lord Wright MR said that when deciding what was ‘in public’ the criterion

was the character of the audience, and the passage in my Lord’s judgment to which I have referred supplies a good test of that character. Is the audience one which the owner of the copyright could fairly consider a part of his public?

There, because all adult women in the village where the offending performance of a play took place were eligible to join the Women’s Institute and could therefore attend the performance, it was ‘in public’.

In Turner v Performing Right Society65 the Court of Appeal held (applying Jennings) that where the proprietors of a factory relayed programmes of music broadcast by the BBC and also gramophone records played at the factory and relayed by means of loud speakers to their employees, it was a performance ‘in public’ even though all strangers were excluded from the factory.

In Performing Rights Society v Kwik-Fit Group Ltd66 the Court of Session (Lord Emslie) held that the defendant had a case to answer about the use by their staff of personal radios in the workplace. Kwik-Fit argued that no licence was needed as there was no ‘public performance’,. and company policy forbade radio use at work. Even if radios were used, the noise of everyday tyre- and exhaust-fitting work would mean that radios could not easily be heard from one area to another, and its customers mostly remain in the reception area. The case does not seem to have gone further, so presumably it has been settled. PRS were claiming over £200,000, equivalent to a rate of about £30,000 a year. More recently, two police forces (Wiltshire and Sussex) have issued instructions to their officers and civilian employees not to listen to music (including car radios) rather than pay annual licence fees of £20-£30,000 which the respective Chief Constables felt could better be spent on policing.

The Copyright, Designs and Patents Act 1988 (Amendment) Regulations 201067, implementing the rental directive, removed the protection clubs, churches and societies previously had for the playing of music, thereby substantially widening the concept of ‘public’.

Broadcasting and communicating to the public

Broadcasting a work (other than a typographical arrangement), or disseminating it on the Internet, is a restricted act68.

In implementing the Information Society Directive, the government adopted the neat approach of treating a range of different ‘communicating to the public’ acts as analogous. In legislation which was always intended to be technologically neutral, this has considerable appeal. Broadcasting involves making works available to the public, and so does providing a cable programme service - indeed, in Shetland Times v Wills69 the Court of Session accepted that a web page could be considered a cable programme service. Adding new ‘communicating’ activities is greatly simplified by this approach.

The significance of the extension of the right is shown in Alan Grisbrook v MGN Limited and others70, where the High Court held that MGN Limited’s use of the claimant's photographs on its websites containing back editions of the Daily Mirror newspaper infringed copyright and breached an earlier undertaking given in proceedings that were settled by a consent order.

The claimant had for a long time provided photographs to the Mirror, although without a written agreement. MGN archived the photographs on the basis that further use would mean that the photographer was entitled to an other fee. It was conceded in the proceedings that this amounted to a licence, though it was unclear how far it went.

There had been an earlier dispute over unpaid fees. A consent order terminated the licence and entitled the claimant to the return of materials in which he retained copyright, and MGN undertook not to infringe his copyright. There had been an agreed search through the MGN archive to find any rogue photographs, and afterwards the claimant looked from time to time at MGN websites to check that no unauthorised use was going on.

He discovered that a large number of his photographs was still being used, and MGN removed them – except for those in complete back copies of the newspapers which were in the online archive. It would have been difficult to take them out.

MGN argued that the consent order was not intended to extend to the reproduction of photos in already-published papers, so there was no breach of the undertaking. Alternatively, they said that the licence granted to them by the claimant had been wide enough to extend to subsequent reproduction or use of published material.

Patten LJ held that, as the alleged implied licence was a derogation from the copyright owner's rights, it would be for MGN to justify extending it to cover what would otherwise amount to separate acts of infringement. Exploitation of MGN's archives would not have been contemplated by the parties when the implied licence between them was created, so it would amount to infringement: and the infringement did not fall outside the scope of the undertaking not to infringe. However, this was a difficult question and MGN were entitled to take a different view.

The judge rejected the claimant's application for sequestration of MGN's assets, emphasising that the dispute should have been dealt with through ordinary proceedings, not through the medium of committal proceedings: a party who argues in good faith that their conduct did not amount to an infringement should not be penalised in this way. There were dangers inherent in broadly-worded undertakings not to infringe, which would often require further litigation to determine whether a further infringement had actually taken place. The claimant's rights could adequately be protected by a declaration.

The Court of Appeal upheld the judgment.71

The restricted act of communicating a copyright work to the public is a new departure, and probably the most important innovation in the 2003 Regulations. It applies to a literary, dramatic, musical or artistic work, a sound recording or film, or a broadcast – which leaves only typographical arrangements out in the cold, and they are not obviously susceptible to this sort of processing (though it is by no means impossible). Regulation 6 makes it clear that the owner of copyright can control any communication to the public by electronic means, including broadcasts: it also extends to making works available to the public in such a way that members of the public may access them at a time, and from a place, chosen by them. Including these ‘on demand’ services was a requirement of the Directive (Article 3).

There is no need for the purposes of this section to have a definition of an Internet transmission. The provision works without one. Users of the Internet choose the time and place at which they gain access to the work: it is an on-demand service, and of course there are other services of a similar nature. The list in the amended legislation is not exhaustive, so although cable transmissions are not specifically mentioned they remain within the scope of the restricted act. The important point, however, is that including copyright material on a web page is undoubtedly within the scope of the restricted act. Section 20 (2) defines “communication to the public” to include broadcasting of the work, and section 6 (1) helps us with the meaning of that word (the tailpiece to that section specifically providing that references to broadcasting are to be construed according to the definition of broadcast provided there).

Communication to the public’ also includes making the work available to the public by electronic transmission in such a way that members of the public may ‘access it’ from a place and at a time individually chosen by them. This form of words, which elides or perhaps assimilates the two formulations used in the Directive, certainly ensures that world wide web pages, and other technologies such as file transfer protocol and probably electronic mail, are caught.

In Polydor v Brown72 it was held that the ‘making available’ right was infringed where the defendant connected to the Internet a computer on which P2P was running where files containing copyright works were placed in a shared directory and therefore available to others running the same program. In Union Des Associations Européennes de Football v Briscomb73 summary judgment was awarded against the owners of the web site sportinglinks.com which without authorisation streamed and made available to subscribers live TV coverage of matches broadcast by BskyB and ITV. The acts complained of were, the court held, both reproduction and communication to the public.

Twentieth Century Fox Film Corporation and Another v Newzbin Ltd74 is a case in which the defendant did not deal in intangible online digital copies of copyright material, but provided an index to files on Usenet which subscribers could use to download infringing copies of films.

Adaptations

The unauthorised making of an adaptation of a literary, dramatic or musical (but, note, not an artistic) work is an infringement of copyright75. An adaptation in this context means a translation of a literary work, a conversion of a non-dramatic literary work into dramatic work (or vice versa) the making of ‘a version of [a literary] work in which the story or action is principally conveyed by means of pictures in a form suitable for use in a book, newspaper, magazine or periodical’ (the expression ‘strip cartoon’ obviously lacks the gravitas expected of a Parliamentary draftsman) and, in the case of a musical work, an arrangement or transcription.

The making of a pictorial form of a literary work might not amount to copying. This is why special provision is made for this activity. If a literary version of a literary work is made for inclusion in a newspaper, perhaps by abridgement, this will normally constitute straightforward copying.

Section 21(2) specifies that doing a restricted act to an adaptation is an act restricted by the copyright in the work adapted, whether or not the adaptation has been recorded at the time. So making an unauthorised copy of the English translation of a Russian novel will infringe the copyright in the Russian text, as well perhaps as the copyright in the translation.

A computer program, being a species of literary work, is translated when a version is made in a different language or code unless that conversion takes place incidentally in the course of running the program. No other forms of adaptation are considered relevant to programs, although the general provisions concerning adaptations of literary works still apply to them.

Authorising others to do restricted acts

It is an infringement of copyright not only to do one of the restricted acts without permission, but also to authorise others (or more accurately purport to authorise others, since the point is that the infringer has no right to give such authorisation) to do one of the restricted acts without having permission to give the authorisation. As Hoffmann LJ (as he then was) put it in AKCO Music and Records Inc v. Music Collection International Ltd76: ‘authorising is a tort only if the act authorised is an act restricted by the copyright.’

Authorising consists of sanctioning, countenancing or approving the other person’s activities. It does not take place unless the defendant controls the actual infringer, or purports to grant a licence. A licence may be inferred from the defendant’s indifference or from their acts or omissions where they have control over the infringer, but merely encouraging or facilitating infringement without control is not enough.

In Moorhouse v University of New South Wales77 it was held that the University was liable to the owner of copyright in a work photocopied on a self-service machine made available by the University. The notices which the University claimed dissuaded users from infringing copyright merely drew attention to the existence of the exemption for fair dealing for research or private study (and then failed to mention the overriding requirement that such copying be fair dealing): the fact that a copy of the relevant statute was also made available was of no assistance, since it would have been unintelligible to a layperson. Of key importance in this case was that the University provided both copyright material and copying means.

On the other hand, in CBS v Ames78 hiring out sound recordings and selling tapes onto which they might be copied did not infringe, because the means for making copies was not provided. In Amstrad v BPI79, no materials were provided to be copied (though the court thought that there was a possible incitement, which would now be caught by section 107 and a criminal offence) and in CBS Songs v Amstrad80 the House of Lords held that Amstrad did not ‘authorise’ the commission of an infringement merely by selling high-speed, twin-deck tape recorders: no material was provided. This restrictive view, one of a string of mid-1980s judgments of the House of Lords which resisted attempts to extend the scope of the statutory monopolies, indicates that the activities of file-sharing services such as Napster would be difficult to restrain under our copyright law. However, there might be a criminal offence involved but this did not make it possible to obtain an injunction to stop an infringement.

An interesting take on the problem of authorisation arose in AKCO Music v Music Collection International 81. The Internet has created significant problems about jurisdiction: where can an infringing act be said to have taken place? It is not a problem limited to copyright, either, because trade mark infringements and passing off cases may raise similar issues. In the AKCO case the court decided that liability for authorising an infringement, where the act that constituted authorising was committed outside the jurisdiction, would lie if the restricted act itself were performed within the jurisdiction.

In Twentieth Century Fox Film Corporation & Anor v Newzbin Ltd [2010] EWHC 608 (Ch) the defendant operated an online indexing facility, in which volunteer editors collected and collated information about media files available online - and who the defendants encouraged to concentrate on films, the most popular type of file among the users of the premium service (30p per week). Because it knew about the infringements that were taking place, and because of its editorial involvement which facilitated the infringements (including the way the site was structured to guide premium members to the infringing copies and providing the means to download them), the defendant was authorising the infringements. I wonder whether the members of the House of Lords who decided, back in the mid-80s when they seemed intent on keeping intellectual property law in its box, that Amstrad’s twin-deck, high-speed tape recorder did not involve an ‘authorisation’, would agree?

The difference is that reasonable members of the service (700,000 of them) would have believed that the defendants had the authority to grant permission to users to make copies. It had ‘sanctioned, approved and countenanced the copying of the films’, and moreover it had ‘procured and engaged in a common design with its premium members to infringe the copyrights’. It was not just a passive participant in the process, which distinguishes the case (if it were necessary to do so) from the AdWords cases, in which Google was found not liable for trade mark infringement arising from the use of others’ trade marks as keywords. The Newzbin site displayed plenty of notices warning users not to infringe copyright: the judge dismissed these as ‘window dressing’. ISPs will rest easier after this judgment, because it makes it clear that they have to go a long way before they do something that might be considered actionable.

No Inference to be Made

Section 21(5) provides that no inference is to be drawn from the section about what does not amount to copying a work. What this apparently means is that just because adaptation is a specific restricted act does not mean that making an adaptation cannot also amount to copying. A translation of a literary work can also be a reproduction of it in a material form.

Custom and practice

In USP Strategies plc and Unicorn Strategies plc v London General Holdings Ltd, AON Warranty Group Ltd and AON Warranty Services Ltd82 the court held that there was an infringement where lawyers reused a valuable commercial document for the benefit of another, competing, client. The fact that lawyers customarily use such documents as precedents is of no avail, there being no implied licence enabling this to be done. There was no custom in the commercial world whereby there might be an implied licence to use such documentation. Here, there were two documents, the one a later version of the other: the first defendant might have been a joint owner of copyright in the later document, but that substantially reproduced the earlier document in which the claimant owned the copyright so any unauthorised copying of the second document infringed the copyright in the first. Note that the court took careful account of commercial realities, refusing to believe that it could have been the intention of the claimants that a competitor could take advantage of the scheme they had devised. If the parties were not in competition, the outcome might be different.

Human rights

In Ashdown v Telegraph Group Ltd. (ChD Sir Andrew Morritt V-C) 11 Jan 2001) the claimant made a minute of a meeting he attended with the Prime Minister. A copy was disclosed to the defendant newspaper. The defendant published a series of articles based on material in the minute. The claimant sued for breach of confidence and infringement of copyright, and applied for summary judgment on the copyright issue. The defendant contended that IPRs constituted a restriction on the exercise of the right of freedom of expression. By Art 10(2) ECHR a restriction must be limited to that which is necessary in a democratic society. This limitation is not satisfied by the Copyright, Designs and Patents Act so in every copyright infringement case the court would have to consider the facts and determine whether the restriction on freedom of expression was necessary.

The court held that the restriction was satisfied in the CDPA. There was no reason why the court should go beyond Act and recognise further or other restrictions on the exercise of freedom of expression constituted by 1988 Act. The defendant could not make out a defence under either section 30 or 171(3) so the claim succeeded.

Secondary Infringement

A whole series of acts, which can broadly be called ‘dealing’, is restricted by the Act, and these are generally referred to as secondary infringements. They are often, but by no means always, committed by retailers83. Most of these are carried over into the 1988 Act from its predecessor.

Secondary infringement requires an element of guilty knowledge on the part of the infringer (while primary infringements carry strict liability). The 1956 Act required that the secondary infringer knew he was dealing with infringing copies or participating in an infringing public presentation; the 1988 Act recognises that this as too onerous for copyright owners, who now need only show that the alleged infringer knows or has reason to believe that infringement has taken, or would take, place. The test is objective, so the standards of people in the trade is imported into it: LA Gear, Inc. v Hi-Tec Sports PLC84. Simply putting the defendant on notice of facts that might be hotly disputed will not be enough85: the facts must be such about enable a reasonable person to arrive at the belief that the article was an infringing copy. When the claimant relies on a written notice, the court will assume that it has come to the defendant’s attention three weeks from the date of the letter.86

Sections 22 and 23 – probably the most important secondary infringement provisions – also require that the articles imported or dealt with are infringing copies: the concept is defined in section 27, but note that this appears to be in conflict with the extended interpretation of section 18. The meaning of ‘infringing copy’ is dealt with below, at .

Importation

Section 22 largely re-enacts sections 5(2) and 16(2) of the old Act. A person who imports an infringing copy into the UK infringes copyright if he knew or had reason to believe that it was an infringing copy, and he did not import it for private and domestic use (note that it must be both). This last is carried over from the 1956 Act, and serves as a de minimis saving; it ensures that a tourist who buys an infringing guide book while on holiday does not leave himself open to an action for infringement when he brings it back to the UK.

Possession or Dealing

The sale, letting for hire or exposing for sale of an article which the person involved knows or has reasonable cause to believe to be an infringing copy, is also an infringement. So is the exhibition in public or distribution of infringing copies in the course of a business provided that guilty knowledge is present.

Section 23 makes possession in the course of business a secondary infringement. ‘Business’ is defined to include any trade or profession. The pirate is now vulnerable when he has infringing items in his possession prior to selling them. It is not just the act of making the copy or of selling it which amounts to an infringement. Again, he must know or have reason to believe it to be an infringing copy.

Criminal sanctions are also available against persons possessing infringing copies in the course of business87. The criminal offence requires an intention to commit an infringing act, which is not however necessary to give rise to civil remedies under section 23. It is also an infringement to distribute copies otherwise than in the course of business if they were known to be, or the distributor had reason to believe they were, infringing copies, but this act only amounts to an infringement to the extent that it prejudicially affects the owner of copyright.

Providing Means for Making Infringing Copies

The importation, possession in the course of business, sale or letting for hire or exposing for sale or hire of an article specifically designed or adapted for making copies of a work, with the necessary guilty knowledge, is an infringement of copyright in the work which is to be copied88. There is also a criminal offence of making or possessing these articles89.

The article in question must be specifically designed for those purposes. However, the problem of recognising a piece of hardware caught by the provision remains difficult. For example, a video cassette recorder which could be used for legitimate recording (e.g., time shifting) could also be used to create infringing copies. It is still the same piece of equipment.

A further species of secondary infringement, importing a work by electronic means, is also added to this provision. Section 24(2) covers the transmission of the work by means of a telecommunications system without the licence of the rights owner by a person who knows or has reason to believe that infringing copies will be made by means of the reception of the transmission in the UK or elsewhere. Not included are transmissions by broadcasting or inclusion in a cable programme service; ‘telecommunications system’ is defined as ‘a system for conveying visual images, sounds or other information by electronic means’, so all that remains within the scope of the provision appears to be transmissions down telephone lines.

The purpose of the additional subsection is to cover the situation where a work is transmitted in digital form via a telecommunications system with a view to its being received and stored at the other end. If the transmission is a broadcast or cable programme, it is already within the Act’s scope; if the signal is received in the UK, the act of storing it is restricted. If, however, the transmission begins in the UK but ends outside the jurisdiction no infringement would have taken place in the UK. The wording of section 24(2) is designed to ensure that the rights owner has redress against the person making the transmission.

Permitting Use of Premises

Copyright in a literary, dramatic or musical work is infringed by any person who gives permission for a place of public entertainment to be used for an infringing performance of the work. No infringement is committed if the person giving the permission believed on reasonable grounds that the performance would not infringe.

Provision of Apparatus

Infringement by performance in public may involve two or more infringers, one who causes the performance to take place and another who ‘authorises’ it. Section 26 sets out who, in addition to the primary infringer, infringes copyright where a sound recording or film, or broadcast or cable programme, is played or shown in public without permission. The section applies where apparatus for playing a sound recording or showing a film or, in the case of a broadcast or cable programme, ‘for receiving visual images or sounds conveyed by electronic means’, is employed. ‘Electronic’ means ‘actuated by electric, magnetic, electro-magnetic, electro-chemical or electro-mechanical energy’, which seems fairly comprehensive. At the present stage of technical development, this embraces playing television sets and radios in public places, but it will also catch future developments.

The supplier of any piece of apparatus as described above, or of a substantial part of it, is liable for infringement of copyright if he knew or had reason to believe that it was likely to be used in an infringing manner. If the apparatus is of a type the normal use of which entails public performance (e.g., a jukebox) he is liable if he did not believe on reasonable grounds that it would be used in a way which would infringe copyright.

The occupier of the premises where any such apparatus is situated may also be liable. If he consented to the apparatus being brought into his premises and at the time knew or had reason to believe that the apparatus was likely to infringe copyright, he too infringes copyright. This provision90 is a succinct restatement of section 40(6) of the old Act.

Finally, where he knew or had reason to believe that a sound recording or film supplied by him was likely to be used, or a copy made from it was likely to be used, so about infringe copyright, the supplier of the sound recording or film is also liable.

Infringing Copies

The concept of an infringing copy is of central importance to the whole of Part I. Section 27(2) defines what the term means; an article is an infringing copy if its making constituted an infringement of copyright in the work in question. Nothing difficult there.

As we saw, section 16(1)(a) prescribes copying as one of the acts restricted by copyright; if copying is entailed in making an article, and the owner of copyright in the original has not given his consent, then the making of the article infringes copyright and it is an infringing article. So a counterfeit or pirate copy would be an infringing copy – but note that words like ‘counterfeit’ and ‘pirate’ do not appear in the statute.

Section 27(3) defines a second group of infringing copies. In the case of articles made abroad, they are infringing articles if they are imported (or proposed to be imported) into the UK and their making here would have infringed copyright or breached an exclusive licensing agreement91.

This raises the question, by whom must the making in the UK have constituted an infringement? In CBS v Charmdale92 Brown Wilkinson J held that an exclusive licensee could not prevent the importation of copies of a work if they had been made abroad by the copyright owner. If the copyright owner imported them, the exclusive licensee would have a remedy in contract, but he would have no remedy against a third party importer. This meant that an exclusive licence was worth little; and since the geographical divisibility of copyright enables owners to negotiate the best terms in each market and maximise the benefits of exploiting copyright, publishers and others were not amused.

Section 27(3)(b) attempts to safeguard the position of the exclusive licensee, but is subject to a saving in subsection (5) for ‘enforceable community rights’, an expression borrowed from section 2(1) of the European Communities Act 1972 which uses it to mean rights given by Community (or, now, EU) law – a wide range.

The Treaty of Rome made it impossible in the 1988 Act to reverse the Charmdale decision in its entirety. Rights owners, particularly publishers, argued that if this were so it is redundant to set it out in the statute, as the Treaty takes precedence. A statement of this type in UK law would make it difficult to convince the Commission of the need to extend special treatment to the British publishing industry, for which it was arguing on the grounds that within the EC only British publishers faced the threat of parallel imports from a large overseas market (the US) via other Member States.

A copy will be presumed to be an infringing copy in any proceedings where the question arises if it is shown that it is a copy and that copyright subsists or subsisted in the work. Until the contrary is proved, the presumption is that it was actually made at a time when copyright subsisted. Some articles made otherwise than in breach of copyright may nevertheless be considered infringing copies. This includes copies and recordings made for educational and other purposes, copies of an artistic work made for the purpose of advertising its sale, and copies made for the purpose of a broadcast or cable programme. Legitimate copies falling within these categories may not be sold or otherwise dealt with except with the consent of the copyright owner, so they are regarded as infringing for the purposes of dealing. This does not apply to the secondary act of importing an infringing copy, apparently to allow for the importation of examination papers printed abroad.

Anti-Spoiler Devices

Copyright owners who try to prevent or inhibit copying are given rights against those who help others get round copy-protection devices by section 296 which applies where copies of a copyright work are issued to the public, by or with the licence of the copyright owner, in an electronic form which is copy-protected. Copy-protection includes any device or means intended to prevent or restrict copying of a work, or to impair the quality of copies made. The section is closely related to that dealing with fraudulent reception of broadcasts93.

The restricted acts are making, importing, selling or letting for hire, offering or exposing for sale or hire, or advertising for sale or hire, any device or means specifically adapted to circumvent the form of copy-protection employed and publishing information intended to enable or assist persons to circumvent that form of copy-protection.

If one of these restricted acts is done by someone with the requisite knowledge, the person who issued the original copy-protected copies to the public has the same rights against the perpetrator as a copyright owner has against an infringer. He also has the same rights to delivery-up or seizure of a device or means as a copyright owner has in relation to an infringing copy94 where a person has the device or means in his possession, custody or control with the intention that it should be used to make infringing copies of copyright works.

The presumptions applicable in copyright actions apply also to action relating to anti-spoiler devices, and the withdrawal of the privilege against self-incrimination in certain intellectual property proceedings also applies. Without this it would be difficult to prove intent.

Apparatus for Unauthorised Reception of Transmissions

Rights and remedies are given to anyone who makes charges for the reception of programmes included in a broadcasting or cable programme service, or who sends encrypted transmissions of any other description. In either case, the transmission must come from a place in the UK. The rights and remedies are the same as a copyright owner has against an infringement of copyright, and lie against the provider of any apparatus or device designed or adapted to enable or assist persons to receive the programmes or other transmissions when they are not entitled to do so, or any information calculated to enable or assist persons to do so. In the case of apparatus and devices the restricted acts are making, importing and selling or letting for hire; in the case of information, publishing it gives rise to the remedies. Note that offering, exposing or advertising for sale or hire are not included, and the intention of the supplier is not the focus of this provision - it is the nature of the device which is the key.

Delivery up and seizure of offending apparatus and devices are available, as with anti-spoiler devices (see above); also, the privilege against self-incrimination is withdrawn. A person who infringes the rights given by this provision may do so innocently; if he neither knows nor has reason to believe that his acts infringed these rights he will be treated in the same way as an infringer of copyright who neither knew nor had reason to believe that copyright subsisted in the work concerned95.

These rights may be extended by Order in Council to apply to programmes included in services provided, and to encrypted transmissions sent, from outside the UK. Reciprocal protection will be required before such an Order will be made. The provisions apply equally to ‘feeder’ services supplied specifically to broadcasters or cable operators by means of a telecommunications system96.

Technological protection measures

The development of general purpose computers has dramatically changed what copyright owners need, or at least desire, from the law. The problem is clearly explained by Cory Doctorow in a keynote speech to the Chaos Computer Conference in Berlin in December 2011.

The Information Society Directive addressed the need for a legal framework within which copyright owners can confidently employ technical protection measures and rights management information. These are novel applications of the same digital technology that creates all the problems for copyright law – suing computer code to protect the copyright material – and will often hold the key to protecting material on the Internet and elsewhere in digital form, or at least provide a first line of defence for it. At the same time the existing law on circumvention of technical devices applied to computer programs must be limited in its scope so that the new provisions can be squeezed in beside it. This means that, in addition to a new section 296, the Act gets sections 296ZA, 296ZD and 296ZE to meet the requirements of regulation 24 of the Directive.

Where what the regulations refer to as ‘effective technological measures’ are applied to a copyright work (but not a computer program), and someone does something that circumvents those measures knowing or with reasonable grounds to know that he is pursuing that objective, section 296ZA allows others to take action against that person. There is an exception for activities carried out for the purpose of research into cryptography, provided that they do not prejudicially affect the copyright owner.

Technological measures’ are any technology, device or component that is designed, in the normal course of its operation, to protect a copyright work other than a computer program. Where computer programs are concerned, the legislation already deals with this technology. These measures are considered ‘effective’ for the purposes of the legislation if the use of the work is controlled by the copyright owner through an access control or protection process, such as encryption, scrambling or other transformation of the work, or a copy control mechanism.

The rights are given to people who issue copies of the work to which the measures are applied or communicate them to the public, together with the copyright owner and an exclusive licensee in the event that they are not the same people as the issuers or communicators, and give these people the same rights as a copyright owner has against an infringer. The rights given to these two categories of people are concurrent, and similar rights apply in the case of performances, publication right and database right.

The amendments provide that the presumptions raised by sections 104 to 106 of the Act will apply (along with those created by the Copyright and Rights in Databases Regulations 1997) and that the privilege against self-incrimination will not.

In addition to the right to sue as for copyright infringement, the Regulations also create offences consisting of doing certain acts with devices, products or components primarily designed, produced or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures. The offences will be committed generally if the acts are done in the course of a business, but also even if not in the course of a business if they are done to an extent that affects the copyright owner prejudicially.

Likewise, it will be an offence to provide, promote, advertise or market a service the purpose of which is to enable or facilitate the circumvention of effective technological measures.

Activities of law enforcement agencies and intelligence services (defined in section 81 of the Regulation of Investigatory Powers Act 2000) are excluded from the scope of the offences created by these provisions, provided that they are in the interests of national security or for the purpose of the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution.

The offences carry stiff sentences: three months and a fine up to the statutory maximum on summary conviction, and a fine and imprisonment for up to two years on indictment. A defence may be available if the defendant can show that he did not know and had no reasonable ground for believing that the device, product, component or service enabled or facilitated the circumvention of effective technological measures.

The Copyright, Designs and Patents Act 1988 already contains provisions about search warrants and forfeiture of unauthorised decoders, and these are extended to cover the new offences too, with slight modifications.

There is also a sort of secondary infringement, dealt with in new section 296ZD. This deals with the manufacture, importation, distribution, sale or letting for hire, offering or exposing for sale or hire, or possession for commercial purposes of any device, product or component. It also covers the provision of services. If the device, etc., or service is promoted, advertised or marketed for the purpose of circumventing effective technological measures applied to a copyright work (not a computer program) the same people as were mentioned above will have the same rights against the person dealing in those devices or supplying the services. Likewise if the device or service has only a limited commercially significant purpose or use other than to circumvent those measures, or is primarily designed, produced, adapted or performed for the purpose of enabling or facilitating their circumvention.

The rights are again concurrent, and so are the rights given by this section for delivery up or seizure. Again, presumptions apply and the privilege against self-incrimination is removed. Innocent infringement is provided for if the defendant does not know and has no reason to believe that his acts enabled or facilitated an infringement of copyright. These provisions also apply to rights in performances and to database right.

Effective technological protection measures cannot be allowed to prevent third parties carrying out acts that the copyright legislation permits, provided they have lawful access to the material in the first place. In the event that they do, the person whose permitted act is hindered, or a person representative of a class of such people, may issue a notice of complaint to the Secretary of State who may give such directions as appear to be requisite or expedient to deal with the problem. These directions may be to establish whether any voluntary measure or agreement relevant to the copyright work in question exist. If there is no such agreement, the directions may ensure that the owner of exclusive licensee of copyright enables the complainant to carry out the relevant permitted act.

The same principles apply to other rights – rights in performances, publication right and database right.

Rights management information

New section 296ZG deals with the final area where the Directive requires substantive changes – that of electronic rights management information. ‘Rights management information’ means any information provided by the owner of copyright or holder of any right under copyright which identifies the work, the author, the copyright owner or the holder of any intellectual property rights, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information. The legislation applies only where this information is electronic.

The activity controlled by this new section is where a person knowingly and without authority removes or alters electronic rights management information. It only covers the situation where this information is associated with a copy of the work, or appears in connection with the communication to the public of a copyright work. It covers the situation where that person knows or has reason to believe that, by doing so, he is inducing, enabling, facilitating or concealing an infringement of copyright.

It also covers the situation where someone, unknowingly and without authority, distributes, imports for distribution, or communicates to the public, copies of a copyright work from which electronic rights management information that is either associated with the copies or appears in connection with the communication the public of the work has been removed or altered without authority. The person doing this must know or have reason to believe that by doing so he is inducing, enabling, facilitating or concealing an infringement of copyright.

These two types of activity can be controlled by a person issuing copies of the work to the public or communicated to the public. Such a person is given the same rights against those who do these acts without authorisation as a copyright owner has where there is an infringement of copyright. If the copyright owner, or the owner’s exclusive licensee, is not the person who issues copies or communicates the work to the public, then they have the same rights concurrently. The presumptions mentioned above, and also the withdrawal of privilege against self-incrimination, apply here as they do in the provisions about technological protection measures.

These provisions apply not only to copyright but also to rights in performances, publication right and database right. In the latter case, additional presumptions apply.

Criminal offences

Certain acts that constitute infringements of copyright, if done in the course of a business, are also criminal offences. Criminal sanctions are also available against persons possessing infringing copies in the course of business.

Presumptions

Presumptions may be made in proceedings brought under the provisions of Chapter VI. These are set out in sections 104-106, which cover in turn literary, dramatic and musical works; sound recordings and films; and Crown copyright.

Originally the Bill contained general presumptions, not requiring the plaintiff to produce evidence until the defendant did. This was seen as an improvement over the position under the 1956 Act where the presumption in section 20(1) was thought to be too weak.

On Report in the Lords, the Government was persuaded that it was not right to require the defendant to produce evidence to contradict something when he did not know what he had to contradict. Having reached that conclusion, the Government also concluded that section 20(1) of the old Act need never have been there anyway as it merely reflected the basic rule that the plaintiff's allegations are treated as established without any evidence unless the defendant denies them.

Unsupported denials by the defendant could be dealt with by the plaintiff serving a notice to admit facts. If the defendant does not admit the plaintiff's allegations, the cost to the plaintiff of proving them is borne by the defendant whatever the outcome of the main proceedings. In Scotland, one party may always challenge the other to specify in pleadings the facts and evidence relied upon in any denials of fact.

Literary, Dramatic and Musical Works

Purported Authorship

As far as proceedings involving literary, dramatic, musical or artist works are concerned, section 104(2) provides that if a name purporting to be that of the author appeared either on published copies of the work or on the original then it will be presumed until the contrary is proved that the person whose name that is is the author of the work.

Furthermore, it will be presumed that the author is entitled to the copyright in the work and that it was not produced in the course of employment, or in circumstances where the provisions dealing with Crown copyright, Parliamentary copyright and copyright of certain international organisations (sections 163, 165, 168 of the Act) apply to it.

The onus of proving that copyright vests in someone other than the person named as author of the work is therefore placed upon the defendant in any proceedings. Section 104(2) basically restates section 20(2) of the 1956 Act and embodies article 15(1) of the Berne Convention.

Joint Authorship

Where it is alleged that a work is one of joint authorship, this provision will apply for each person who is alleged to be one of the authors.

Purported Publishers

If the author's name does not appear on the work, but a name purporting to be that of the publisher appeared on copies of the work as first published, it is presumed that the person identified as publisher was the owner of copyright in the work at the time of publication. This presumption will only be raised provided that the work qualifies for protection by reference to its country of first publication, i.e. it must have been first published in the UK or another country to which Part I of the Act extends or applies.

Deceased Author

Where the author is dead or cannot be identified by reasonable enquiry, section 104(5) raises a presumption that the work is an original work and that the plaintiff's assertions about the first publication of the work and the country in which that took place are correct.

Sound Recordings, Films and Computer Programs

Sound Recordings and Films

Where the work in question is a sound recording, section 105(1) provides that where copies are issued to the public bearing a label or other mark stating either:

(a) that a named person was the owner of copyright in the recording at the date of issue of the copies, or

(b) that the recording was first published in a specified year or in a specified country,

that will be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.

Similarly, a statement on copies of a film issued to the public to the effect that a named person was the author or director of the film, or that a named person was the owner of copyright of the film at the date of issue of the copies, or that the film was published in a specified year or in a specified country, would also be admissible as evidence and presumed to be correct. The same goes for statements to films when shown in public, broadcast or included in a cable programme service.

Computer Programs

A similar presumption will be raised in proceedings concerning computer programs where copies have been issued to the public in electronic form. In this case, a statement that a named person was the owner of copyright in the program at the date of issue of the copies, or that the program was first published in a specified country or that copies of it were first issued to the public in electronic form in a specified year, will be admissible as evidence of the facts stated. The facts will be presumed to be correct until the contrary is proved.

Computer programs are, of course, a species of literary work for the purposes of Part 1 of the Act; however, as the Minister explained on Report in the House of Commons, when this provision was added, the mode of exploitation of computer programs is very different from that of books.

The name of the author will normally appear on a book, but this is not normal practice in the case of a program. What is likely to appear is the name of the software house or company who own the copyright in the program and in this respect programs are more akin to sound recordings and films that they are to literary works.97

Prior Infringements

The presumptions applicable to sound recordings, films and computer programs apply to proceedings relating to infringements alleged to have occurred before the date on which the copies were issued to the public as well as infringements alleged to have occurred afterwards.98

Films: Further Presumptions

Sub-section (5), which appears to be very much in the nature of an afterthought, was in fact added by Government amendment during the course of the Third Reading in the House of Commons.99 It raises further presumptions in the case of films, in this case where a film as shown in public, broadcast or included in a cable programme service, bears a statement that a named person was the author or director of the film, or that a named person was the owner of copyright in the film immediately after it was made. The statement is admissible as evidence of the facts stated and presumed to be correct until the contrary is proved; it applies whether or not the alleged infringement occurred before the date on which the film was shown in public, broadcast or included in the cable programme service.

This tail piece is designed to ensure that the presumption will be raised in actions against pirates who acquire a copy of the film and release further copies onto the market before the legitimate article. The subsection (5) presumptions do not apply to prior infringements as described in paragraph (3) above.

Crown Copyright

Where Crown copyright exists in a literary, dramatic or musical work the subject of proceedings and printed copies of the work in question bear a statement of the year in which the work was first published commercially, the statement is admissible as evidence of the year of first commercial publication.100 It is presumed to be correct unless there is evidence of the contrary (not, as with other presumptions, until the contrary is proved).

This is a new provision designed to make it easier to establish the date from which the fifty year term of Crown copyright in commercially published literary, dramatic and musical works will run. There is no similar presumption for copyright in Acts and measures, Parliamentary copyright, or copyright in Parliamentary Bills.

Presumably, it will not be difficult to establish the date of first publication of a Bill or Act, but, while the majority of works qualifying for Parliamentary copyright will be clearly dated that does not appear under Part 1 of the Act to raise a presumption that the date is indeed correct.

1See section 97(1).

2Note 70, supra.

3Section 16(3).

4Though note Fred Fisher, Inc v Dillingham (298 Fed Rep 145 (1924); [1923 - 28] MacG CC 166) where it was held that the composer Jerome Kern had infringed copyright by taking the bass accompaniment from another song. He maintained that he had not consciously done so; but Judge Learned Hand found it sufficient that he was familiar with the plaintiff’s copyright work and that he had copied it unconsciously. And, while we are considering US cases, see ABKCO Music v. Harrisongs Music, 722 F.2d 988, 221 USPQ 490 (2d Cir. 1983) where George Harrison was found to have infringed the copyright in “He’s So Fine”, a song that he had heard years before, when he wrote “My Sweet Lord.”

5Per Diplock LJ in Francis Day and Hunter Ltd v Bron [1963] Ch 587.

6(1854) 4 HL Cas 815; (1855) 8 HLC 815.

746 Cal. 2d 715, 731, 299 P. 2d 257, 265 (1956).

8See, in particular, Whelan Associates Inc v Jaslow Dental Laboratory Inc [1987] FSR 1, discredited because of the narrow view the court took of the underlying idea: and Computer Associates v Altai [1992] 20 USPQ 2d 1641, 982 F.2d693 (1992).

9[1986] FSR 608 (NZCA).

10[2004] ECDR 14.

11[1993] EMLR 306.

12(1960) [1976] RPC 169.

13[1969] 1 Ch 508.

14[1984] FSR 399.

15[1995] 3 All ER 1.

16Section 16(3)(a).

17Note 25, supra.

18[1934] Ch 593. The case involved the copying of some 30 seconds of Lieut. FJ (“Joe”) Ricketts’s Colonel Bogey March (1914), published under the pseudonym Kenneth Alford because serving officers were not supposed to engage in commercial activities. As Major Ricketts, he later became director of music of the Royal Marines and was known as “the British March King”.

19[1981] RPC 280.

20[2000] UKHL 58.

21 797 F.2d 1222 (1986).

22982 F. 2d 693 (1992). See also Apple v Microsoft 35 F 3d 1435 and Lotus v Borland 49 F. 3d 497.

23[1993] FSR 497.

24[1994] FSR 275, supra, and see also the judgement of Pumphrey, J in Cantor Fitzgerald v Tradition [1999] The Times 19 May.

25Note 19, supra.

26[1980] RPC 213, [1979] FSR 46 (CA).

27[1990] FSR 161.

28Kelly v Cinema House [1928/35] MacCC 362.

29Holland v Van Damm [1936 - 1945] MacCC 69.

30Sutton-Vane v Famous Players [1928-35] MacCC 6, Dagnall v British Film [1928 - 35] MacCC 391.

31See, for example, the Interlego case, Johnstone Safety Limited v Cook [1990] FSR 161 and Bilhofer v Dixon [1990] 1 FSR 105, 118-123.

32[1986] AC 577, and see also Solar Thompson Engineering Company Ltd v Barton [1977] RPC 537.

33[1999] EWHC Patents 266.

34[2000] EWCA Civ 179.

35[2001] UKHL 38, [2002] RPC 4, [2003] 1 AC 551.

36[2001] FSR 113.

37[1924] 1 KB 762.

38Note 26, supra.

39(1890) 25 QBD 99.

40[2003] FSR 23 (CA).

41Per Laddie, J, (obiter) in Autospin (Oilseals) Ltd v Beehive Spinning [1995] RPC 683.

42(1916) 1 Ch. 261.

43See The Oxford Book of Parodies edited by John Gross (Oxford: OUP, 2010) and the author’s review of it (2010) 6 JIPLP 130.

44[1960] 2 QB 60, where the new words were sufficiently different (and the chorus of the claimant’s song was rather banal anyway).

45Schweppes v Wellingtons [1984] FSR 210.

46Williamson v Pearson [1987] FSR 97

47Published in December 2006.

48See the author’s article “Pistache?”(2008) 20 Ent LR 89.

49See section 51 which defines a design document as ‘any record of a design, whether in the form of a drawing, a written description, a photograph, data stored in a computer or otherwise’.

50[1978] RPC 485. For an interesting discussion of the problems of copyright in photographs see Lupton, [1988] EIPR 257.

52See Infabrix v Jaytex [1982] AC 1.

53[1996] 2 All ER 186, 208.

54[1998] ETMR 597.

55See Phillips and Bentley, ‘Copyright Issues: The Mysteries of Section 18’, [1999] EIPR 133.

56[2004] ECR-I 1313.

57Section 18 therefore conflicts with section 27, on which see .

58[1988] ECR 2606.

59[1998] ECR-I 5171.

60Section 19(1).

61Para. 125; quoted in Whitford, para. 371.

62[1979] 2 All ER 628.

63[1943] 1 Ch 167.

64[1936] 1 All ER 409.

65[1943] 167 (CA).

66[2008] ECDR 2.

68Section 20, significantly amended by the Information Society Directive.

69 [1997] F.S.R. 604.

70[2009] EWHC 2520 (Ch), 16 October 2009.

71MGN v Grisbrook [2010] EWCA Civ 1399.

72[2005] EWHC 3191 (Ch), Lawrence Collins J.

73[2006] EWHC 1268.

74[2010] EWHC 608 (Ch) (29 March 2010).

75Section 21.

76[1995] RPC 657, 660.

77[1976] RPC 151 (High Court, Australia).

78[1981] 2 All ER 812.

79[1988] AC 1013.

80[1988] AC 1013. See also Standen Engineering v Spalding [1984] FSR 554, Keays v Dempster [1994] FSR 554.

81[1995] RPC 657.

82 [2002] EWHC 2557. On appeal, [2005] EWCA Civ 931.

83Pensher Security Door Ltd v Sunderland City Council [2000] RPC 249, in which the local authority.

84[1992] FSR 121.

85Hutchison Telecomms v Hook [1995] FSR 365.

86Monsoon Ltd v India Imports of Rhode Island [1993] FSR 486.

87Section 107.

88Section 24(1).

89Section 107(2).

90Section 23(3).

91Section 27(3).

92[1981] Ch 91, [1980] 3 WLR 476, [1980] 2 All ER 807.

93Section 298.

94See Sections 99 and 100.

95See Section 97(1).

96Cf. Section 52(3)(c) of the Cable Act.

97HC Deb Vol 138 no 195 col 188.

98Section 105(4).

99HC Deb Vol 138 no 195 col 188.

100Section 106.

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