Professional Documents
Culture Documents
Copyright
Introduction Is the right to prevent copying and is not a registered IP right. Main legislation is Copyright,
Designs and Patents Act 1988 – CDPA 1988.
1. LDMA Copyright – Literary, Dramatic, Musical and Artistic works contained in section
1(1)(a) CDPA 1988. (CLASSIC)
2. Entrepreneurial Copyrights, which protect those that invest in the creativity of the author
7. If none, remedies?
In exam the question will be subsistence OR infringement?? Use the P(rincipal) E(xplain) R(elate) C(onclude) approach
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THE STRUCTURE
Copyright is a property right which subsists in accordance with this Part in the following
descriptions of work:
(a) original literary, dramatic, musical or artistic works, Classic Copyright
(b) sound recordings, films or broadcasts, and Entrepreneurial Copyright
2.
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Step Details
For s.5A (sound recording) , s.5B (films) , s.6 (broadcasts) – see Entrepreneurial
Rights below
2 It must be ORIGINAL:
S1(1)(a) original
• It must be the author’s own independent creation, that is, not copied
• Has to originate from the author
• Originality of expression and form is important, not of idea or content
• Has it been copied from somewhere else?
‘A work’ as required by 1(1)(a) and 3(1) OR 4(1), thus there is a level of minimum effort required.
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Moral It is the idea that the creative author or artist should retain certain rights in relation to his creation, even after he
rights has sold the copyright to somebody else.
(a) The right to be identified (‘right of paternity’) (s 77). This applies only if the right has been asserted by the
author. This is usually done in the copyright assignment or licence.
(b) The right to object to derogatory treatment (s 80). For example, a novelist might object if his novel were
abridged in a way that compromised its artistic integrity. OK if there was nothing prejudicial to the honour
and reputation of the author of the original work. Confetti Records and Others v Warner Music UK Ltd
Entrepreneurial Copyrights, which protect those that invest in the creativity of the author.
N.B. Protects works already satisfying the CLASSIC copyright questions therefore the general requirements for originality
and minimum effort are not required, cannot copy though.
N.B. Of the entrepreneurial rights, only films have moral right which vest in the director..
P195 An attempt has been made to make the definitions of ‘film’, ‘sound recording’, etc
technology neutral so that they will cover future technological developments. So, for
example, ‘film’ includes, videos, DVDs and many ‘multi-media’ recordings where you have
moving images. These can be ‘films’ even though they may be interactive.
‘film’ includes any recording on any medium from which a moving image can be produced.
It therefore includes, videos, DVDs and multi-media recordings.
includes terrestrial broadcasts, satellite and cable and some internet transmissions
A ‘broadcast’ has been redefined to make the definition generic, so as to include not only
terrestrial broadcasts (BBC and ITV, etc), but also satellite (Sky) and cable broadcasts
(NTL) and some Internet transmissions.
Differences between (a) There is no general requirement of originality and minimum effort. Because everything
classic and protected by the entrepreneurial rights is based on something else.
entrepreneurial
copyrights (b) no requirement for recording as by their nature E Rights are all recorded.
(c) Of the entrepreneurial copyrights, only films have moral rights. These vest in the director.
The thinking behind this is, of course, that it is the director who has given the artistic input.
He is the person who might want to defend his artistic integrity.
(d) The rules about ownership of the entrepreneurial rights vary (see 14.3.3).
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(e) The duration of the entrepreneurial rights varies
Problem:
• What happens if you copy music on to PC? In theory, because there is no requirement of
originality you could be said to create another copyright sound recording.
• The Act provides that there is no copyright if they are simply copies of other work.
Ownership of Ownership goes to the ‘creator,’ yet who the creator is varies.
entrepreneurial
copyright? Sound recording - producer
INFRINGEMENT
1. Section 16, the owner has exclusive rights to do ‘acts restricted by copyright’:
2. Copyright of the owner is infringed by someone who does an ‘act restricted by copyright’
or allows someone else to do such an act [section 16(2)].
3. Section 16(3) says that to infringe copyright one can do it in relation to the whole of the
work or a substantial part of it and it can be done directly or indirectly.
Need to identify which category of right it is in order to apply infringement rules in relation to
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restricted acts.
The presumption is rebutted with evidence that the product has not been copied and is
original. Simple comparison of two products is required.
17(2) Copying re an LDMA work means ‘reproducing the work in any material form.’
One does not need to copy the whole work, copyright is infringed by copying ‘a
substantial part of the work’ Question of fact.
• Not quantity but quality, so copying famous line from a play is enough.
• Need not be an exact copy, so copying the plot is enough.
If defendant’s work and claimant’s work are similar and defendant had access to
claimant’s work then there is a presumption of copying
3. Secondary infringement, in which one is only liable if one knew or had reason to
believe he was dealing with an infringing copy.
NB – From practical point of view you would inform client to write to the secondary party
involved so they would then be considered to have knowledge.
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Example of secondary infringement:
• Defendants seldom leave any trace of how they did the copying.
• Law helps Claimant by presuming that the D copies the C’s work if the two works are
similar, and the D had access to the C’s work.
• If the presumption applies it is for the D to disprove copying.
Computer software
Remedies: Section 96 says that infringement of copyright is actionable by the copyright owner.
Section 100 – right of copyright owner to seize offending articles (if in public domain)
Sanctions: Section 107 provides for criminal liability for making or dealing with infringing copies.
(a) the purpose for which the quote is used – The quote must be commented on
rather than just copied to use it to tell people something; and
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• applies to all works, apart from photographs
• may need to give an acknowledgement, if in paper or magazine
• question of what is fair depends on purpose and how much is taken
• must be for genuinely reporting current events
4. Argue that the item does not deserve protection, that the right in question is not valid
and/or the claimant does not have the right to sue for infringement. Common with IP
rights.
1. The database right prevents unauthorised use of the database or a substantial part of it and arises
automatically.
Does work
constitute a Requirements;
database?
i. It must be a database as defined by section 3A(1) CDPA 1988. ‘Database’ means ‘a collection of
independent works, data or other materials which –
ii. It must be original; that is not copied. S.3A(2) ‘constitute the author’s own intellectual creation’. This is a
higher threshold test
iii. The way the database is put together must constitute the author’s intellectual creation; taking into
account two criteria: s.3A(2) there is only originality if arrangement or selection of material is
creative in some way.
As such, it is unlikely that literary copyright will subsist in a database. This is a tough test to satisfy.
2. Regulation 13 of CRDR 1997 says that the database right will subsist in a database ‘if there has been a
substantial investment in:
Does the • obtaining,
right subsist • verifying or
in the • presenting
database? the contents of the database.
Need a substantial investment (human, financial or technical) in either the quality or quantity of the
database or in obtaining, verifying or presenting the data.
3. The maker of a database is the first owner of database right in it per reg 15.
Exceptions:
s.14
(2) Where a database is made by an employee in the course of his employment, his
employer shall be regarded as the maker of the database, subject to any agreement
to the contrary.
Duration of The database right, per reg 17, lasts the longer of 15 years from the end of the calendar year of
the completion of the database or the year in which the database was first made available to the public.
database
right: 17(3) says that any ‘substantial new investment’ in the database recommences the period of protection.
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Thus, an annual publication has a rolling 15-year period.
INFRINGEMENT
Requirements Regulation 16 says that ‘a person infringes database right in a database if, without the consent
of the owner of the right, he extracts or re-utilises all or a substantial part of the contents of the
database.’
Extraction – per reg 12(1) – ‘the permanent or temporary transfer of those contents to another
medium by any means or in any form.’
Re-utilisation – per reg 12(1) – ‘making those contents available to the public by any means.’
N.B. Reg 16(2) provides that ‘the repeated and systematic extraction or re-utilisation of
insubstantial parts of the contents of a database may amount to the extraction or re-utilisation
of a substantial part of those contents.’
ii. by dealing with the database available for public inspection as a statutory record with
the permission of the database keeper.
N.B. Can assign/licence the database right and copyright in the database.
The main aims of the Act are to protect the right of individual privacy and to harmonise UK
law with that of other Member States. The scheme of the Act is to require a ‘data controller’
to be registered before he can lawfully ‘process’ any ‘personal data’ about a ‘data subject’.
The enforcement of the Act is in the hands of the Information Commissioner (formerly known
as the Data Protection Commissioner), who, along with his department, regulates, enforces
and prosecutes on behalf of the public.
The big difference between the DPA 1998 and the FOIA 2000 is that the former deals with
the private protection of personal data, whereas the latter is concerned with public access to
government information.
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Overview and scope of The DPA 1998 improved upon the DPA 1984 in a number of ways:
DPA 1998
(a) manual files are now included as well as automated data;
(b) new conditions for legal processing of data were laid down;
(c) a new category of personal data was created – ‘sensitive data’;
(d) transfer of personal data to countries outside the European Economic Area was
prohibited, unless certain conditions were met;
(e) minimum security requirements for data were introduced; and
(f) more rights for individuals were introduced, including the right to compensation for
damage or distress caused by unlawful processing.
1. to allow individuals access to information held about them, for example the
information held about people by credit reference agencies.
5. at least one precondition for processing within Sch 2 is met, and if sensitive personal
data are involved, at least one from Sch 3 is met too;
6. the data are processed in accordance with all the relevant data protection principles in
Sch 1.
The definitions of S1(1) of the DPA 1998, by reference to each other, so that each and every definition and
‘data controller’, element must be satisfied in order to apply the law to the particular fact situation:
‘personal data’,
‘processing’ , • ‘data controller’ means . . . a person who (either alone or jointly or in common with other
‘data subject’ persons) determines the purposes for which and the manner in which personal data are, or
are to be, processed;
• ‘personal data’ means data which relate to a living individual who can be identified—
and includes any expression of opinion about the individual and any indication
of the intentions of the data controller or any other person in respect of the
individual;
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or data;
So, it is fairly easy to see the data controller becomes responsible to the data subject from the
first moment of dealing with any personal information that could identify the data subject as a
living individual.
‘Personal data’, The definition of ‘personal data’ in s 1(1) is itself defined by reference to ‘data’.
‘data’,
‘relevant filing The problem with that is that the s 1(1) definition of ‘data’ includes five, alternative classes of
systems’ information, of which the most significant involves a ‘relevant filing system’, which term is then
further defined in s 1(1).
(b) is recorded with the intention that it should be processed by means of such
equipment;
(c) is recorded as part of a relevant filing system or with the intention that it should form
part of a relevant filing system; (include paper-based systems)
(d) does not fall within paragraph (a), (b) or (c) but forms part of an accessible record as
defined by section 68; (includes health and education records) or
(e) is recorded information held by a public authority and does not fall within any of
paragraphs (a) to (d)
• ‘relevant filing system’ means any set of information relating to individuals to the extent that,
although the information is not processed by means of equipment operating automatically in
such a way that specific information relating to a particular individual is readily accessible.
A mere collection of documents would not suffice (Durant v Financial Services Authority)
• ‘personal data’, only if the data concerned a person’s privacy. Two tests were suggested:
(b) Does the information have the individual as its focus, rather than other persons or
matters?
The individual’s name will be ‘personal data’ only where the name appears together with
other information about the named individual such as address, telephone number or
information regarding his hobbies. (Information Commissioner)
Provided the information in question can be linked to an identifiable individual the following
counts:
(a) information about the medical history of an individual;
(b) an individual’s salary details;
(c) information concerning an individual’s tax liabilities;
(d) information comprising an individual’s bank statements; and
(e) information about an individual’s spending preferences.
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has been sent or copied to that particular individual, the content of that document or
e-mail does not amount to personal data about the individual unless there is other
information about the individual within it.
If an individual cannot be identified from the data in question then it is not ‘personal data’, and
therefore not subject to the DPA 1998.
The eight principles of Anyone processing personal information must comply with eight enforceable principles of good
good practice information handling practice (DPA 1998, s 4(4)). These principles, contained in Sch 1, state
that data must be:
The six conditions for At least one of the following conditions, seen in Sch 2 to the DPA 1998, must be met for
data processing personal information to be considered as having been processed fairly:
Sensitive personal data must be processed in accordance with the requirements of Sch 3;
• Sch 3.1. The data subject has given his explicit consent to the processing of the personal
data.
• Sch 3.2(1) The processing is necessary for the purposes of exercising or performing any
right or obligation which is conferred or imposed by law on the data controller in connection
with employment.
The rights of the data These matters are dealt with in Pt II of the Act. The seven rights are:
subject and other
persons under DPA The right to subject access (s 7)
1998
Entitles a data subject to be informed by a data controller, upon request in writing;
• whether any personal data are being processed,
• what they comprise,
• the purposes for which they are being processed, and
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• to whom the data are or may be disclosed.
Any data subject is entitled to require, by written notice, that a data controller cease or not
commence processing, or restrict processing, of his personal data, where the processing
would otherwise be likely to cause unwarranted damage or distress to anyone at all.
Any data subject to require, in writing, a data holder to cease, or not begin, any processing
carried out for the purposes of allowing any person to direct advertising or marketing
material towards particular individuals.
The section provides that a data subject can require a data controller to ensure that such a
decision is not to be made based solely on the automatic processing, or, if one has
already been made, the data subject is to be notified that it was made on that basis, as
soon as reasonably practicable.
The data subject then has 21 days to require the data controller to reconsider the decision,
or to take a fresh decision on a different basis.
Any individual, whether data subject or otherwise, can sue one or more data controllers as
primarily or vicariously liable for breaches of the Act that lead to damage and/or distress.
There is a defence against compensation claims if the data controller has taken
reasonable care to comply with the Act (s 13(3)).
This gives the court the power to order the data controller to rectify, block, erase or destroy
any personal data, about the data subject or anyone else, which are inaccurate and
personal data which contain expressions of opinion which appear to be based upon the
inaccurate data.
The right to ask the Commissioner to assess whether the Act has been contravened
(s 42)
This gives a discretion to the Commissioner as to the form and manner of making such an
assessment, at the instance of any person who is, or who believes himself to be, directly
affected by any processing.
This is backed up by criminal sanctions under s 47 if there is failure in compliance with the
notice. A data controller has a right of appeal to the Tribunal against service of such
notices.
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The obligations of the The two principles of most concern in regard to disclosure of personal data:
data controller and
disclosure restrictions 1st principle: fair and lawful processing
As ‘processing’ is defined widely, the first principle has wide application to all use
of personal data. It can be divided into four obligations:
(a) the purposes for which the data are being processed are valid;
(b) such purposes can be achieved only by the processing of personal data; and
(c) the processing is proportionate to the end pursued.
The concept of processing for limited purposes means that the data should be processed
only for the purposes to which the data subject has consented. The legal guidance from
the Information Commissioner is in f act slightly wider and refers to different purposes
which are not being ‘envisaged’ by the data subject at the time of the collection of the
information.
The reasons for most of the exempt situations are based on public policy. Matters such as
national security, crime, taxation, social work, examination marks, legal professional privilege,
etc
Under s 29(3), personal data are exempt from the non-disclosure provisions and the right of
subject access where the disclosure is for the purposes of preventing or
detecting crime, apprehending or prosecuting offenders, or assessing or
collecting tax.
Under s 35(2): Personal data are exempt from the non-disclosure provisions where the
disclosure is necessary—
(a) for the purpose of, or in connection with, any legal proceedings (including
prospective legal proceedings), or
(b) for the purpose of obtaining legal advice,
Enforcement, offences The Act creates a wide range of criminal offences; Most are ‘either way’ offences, punishable
and civil damages by fine.
• notification offences,
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those matters arising out of Pt III of the Act, which deals with the obligations of the
data controller to notify the Commissioner of ‘registrable particulars
• enforcement offences,
found in Pt V of the Act and arise where there is a failure by the data controller to
comply with the enforcement mechanisms employed by the Commissioner.
• disclosure offences.
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