Copyright

Front 1

University of London Press v University Tutorial Press
(Literary Work)

Back 1

Are mathematics paper original literary works?

Literary work not defined but s35 states what it includes, with stuff like maps, charts, plans tables etc included. Clear to see that it's not just confined to books. Literary work covers anything expressed in print or writing irrespective of whether the quality or style is high, just like you use the term political literature. Exams are literary work in the meaning of the act.

Avoiding aesthetic or qualitative judgments when it comes to identifying a literary work probably for the best.

Front 2

Exxon v Exxon Insurance
(Literary Work)

Back 2

Exxon was invented as a word, defendants used Exxon in corporate name, injunction sought. Injunction to restrain passing off succeeded but injunction to restrain copyright infringement failed as Exxon wasn't an original literary work under S2 of Copyright Act 1956.
First instance: Exxon is a word which was invented and therefore original but has no meaning. Capable of trade mark registration and only takes on meaning when used with other words. Nothing to say a title can't become the subject of copyright but it would need to have certain qualities to justify recognition as a literary work. Could the simple use of the word Jabberwockey be copyright infringement? A word alone can't be considered a literary work, but becomes part of the literary work.

CoA: appeal dismissed. In Hollinrake v Truswell (can copyright subsist in cardboard pattern sleeve with scales, figures and descriptive words) said that a literary work intended to afford either info, instruction or pleasure in form of literary enjoyment and sleeve chart didn't do this. Stephenson seems to agree with this test and said that Exxon didn't do any of these things, and the counsel didn't convince him to do otherwise. Hard to say it's a work at all let alone a literary work. Oliver said that the word didn't have any of the qualities that common sense would demand, as it conveyed no info, provided no instruction and delivered no real pleasure.

Front 3

Hollinrake v Truswell
(Literary Work)

Back 3

Can copyright subsist in cardboard pattern sleeve with scales, figures and descriptive words? A literary work intended to afford either info, instruction or pleasure in form of literary enjoyment and sleeve chart didn't do this.

Front 4

Hyperion Records v Sawkins
(Musical Work)

Back 4

modern performing editions of Lalande's music. Tried to reproduce scores as faithfully as possible, drawing upon manuscript and transcribing notations, making corrections and notations, fixing basslines, recreating parts. Significant skill and effort put in. Defendants recorded performance of music from the new editions. Claimant said he had copyright in editions as original works and defendant's actions had infringed copyright. Musical info in form of conventional notation and direction, defendant said it wasn't original or musical. Defendant argued that it simply reproduced the music.
Mummery: defendant said that correcting errors, inserting missing material etc are irrelevant to whether he created an original music work as they weren't part of the music. Academically sound but insufficient for copyright. Music isn't the same as mere noise, and the fixation of music in written score or on record isn't where copyright subsists- no reason why humming shouldn't be viewed as music for copyright. No reason for the actual notes to be the only matter covered. Stage directions are as much part of dramatic work as plot etc. Wrong to single out notes as uniquely significant for copyright purposes and deny copyright for performing indications, tempo etc if they're a product of a relatively modest or more level of work. Sufficient significance to attract copyright protection.

Front 5

Green v Broadcasting Corporation of New Zealand (Dramatic Work)

Back 5

presenter/author of Opportunity Knocks, talent contest thing with clapometer. Defendant broadcasted a similar show with the same title. Claim for passing off and copyright infringement, saying copyright was in the scripts and dramatic format of the show. Dismissed by New Zealand High Court, Court of Appeal and Privy Council.

Lord Bridge said there was little evidence of scripts pointing to no more than a general idea for talent contest and as such couldn't take copyright. Focusing on copyright subsisting in dramatic format of the show was a bit of a stretch in his eyes if it was presented in a certain way with catchphrases and certain accessories. Issue was with separating allegedly distinctive features of TV series from changing material in each performance. No case. There must be certainty in the subject matter of such monopoly in order to avoid injustice to the rest of the world. Dramatic work needs to have sufficient unity to be capable of performance and features claimed weren't united.

Front 6

Norowzian v Arks Ltd (Dramatic Work)

Back 6

film created with casually dressed man dancing in quirky manner against plain backdrop with fixed camera, edited with the jump cutting technique. Guinness ad created using jump cutting technique as well. Original claim was under film copyright but that failed as protection for film is limited to copying images, not techniques. Rattee rejected that film itself could be a dramatic work but merely record a dramatic work. Jump cutting can't be performed. Even if it was a dramatic work it couldn't be infringed because of the differences between the two films. CoA disagreed that a film couldn't be a dramatic work but said that substantial part of work wasn't reproduced in defendant's film. Nourse defines dramatic work as a work of action which is capable of being performed before an audience, and if a film can be performed before an audience it can be protected.

Front 7

Merchandising Corporation of America v Harpbond (Artistic Work)

Back 7

Adam Ant makeup and Prince Charming look. Photos taken of the look by the claimants, defendants reproduced one of the photos, altered existing photos to get rid of old makeup and painting portrait of Ant in new style based on photo. Claim for copyright infringement. Yay for reproduced photo, not for altered photo or portrait. Lawton refutes argument that the facial make-up constitutes a painting. Painting must be on a surface of some kind and if there was a painting it was the make up plus Adam Ant's face. If the marks are taken off the face there's no painting. A painting is an object and paint without a surface is not a painting.

Front 8

Creation Records v News Group Newspapers (Artistic Work)

Back 8

the Oasis photoshoot. Lloyd doesn't see how it's a copyright work: can't really be a dramatic work as it is inherently static. Artistic work or artistic craftmanship? The craftmanship argument doesn't really go down well as no element had been carved, modelled, etc and it doesn't seem to be the subject or result of any form of craftmanship. Shelley Films (the Frankenstein case) had Michael Mann hold that it was possible for the set to be a piece of artistic craftsmanship but you can accept that a film set does indeed involve craftmanship: it's not just an assembly of easily found things. Is it a collage? Traditional understanding is that college involves some sort of adhesive. Difference between installation art is that it only existed for one day while installation art is thought to be permanent: the continued existence is in photography. The sticking together is an essential element.

Front 9

Wham-O Manufacturing Co/ Hi Tech Autoparts/ Breville Europe v Thorn EMI (Artistic Work)

Back 9

held wooden prototype of Frisbee is a sculpture and the moulds as engravings/said metal plates designed for rubber car mats were sculptures/held plaster casts of sandwich maker sculptures.

Front 10

Lucasfilm v Ainsworth (Artistic Work)

Back 10

are the Stormtrooper costumes copyright sculptures? No, because they lack artistic purpose: their primary function was utilitarian. Wham-O and Breville probably incorrect as there was no artistic visual appeal, and every intention that it's just functional. It's the essence that a sculpture should have a visual appeal in the sense that it might be enjoyed for that purpose alone. It HAS to have the intrinsic quality of being intended to be enjoyed as a visual thing.

Front 11

George Hensher Ltd v Restawile Upholstery
(Artistic Work)

Back 11

made prototype of a furniture suite, offered it for sale and then defendants made a suite that allegedly infringed upon their copyright. Held originally that it was a work of artistic craftsmanship, HoL said it was a work of craftsmanship but not of artistic craftsmanship.

Reid says that it's misleading to equate artistic craftsmanship with a work of art, as it's generally associated more with the fine arts. No evidence that anyone regarded the furniture as artistic but the appellants motivation was to produce something that would sell. Looking nice appears to fall short of artistic appeal. Morris said while it's a matter of individual opinion whether work is artistic, those with special capabilities and qualifications will command respect in court. Dilhorne said it's for the judge to determine whether something is art and it doesn't suffice to show that some section of the public considers the work to be artistic. Simon says no court will decide whether something is a work of artistic craftsmanship in itself but will take into account evidence. Kilbrandon says that it's necessary to concentrate upon the intention of the craftsman, but he says that there's no one solid test. It's for the judge to determine whether the object falls in the scope and asking experts won't get you far.

Front 12

Merlet v Mothercare
(Artistic Work)

Back 12

is a prototype of a rain cape one of artistic craftsmanship? Primarily the intention of the craftsman. But the craftsman can fail. Much easier to recognise a claim if the craftsman is a recognised artist. And the whole evidence point is neither here or there. Intentions in this case were purely utilitarian.

Front 13

Bonz Group v Cooke (NZ case)
(Artistic Work)

Back 13

judge held author must be a craftsman AND an artist. Artist is someone with creative ability creating something with aesthetic appeal and a craftsman is someone making something in a skilful way. If two or more people combine to design and make a product, can't see why the product should be regarded as a work of artistic craftsmanship.

Front 14

Walter v Lane (Artistic Work)

Back 14

Earl gave public speeches on five occasions, reporters took down the speeches and transcribed them, respondents published book including the speeches, action brought by newspaper. Are reporters of a speech authors? According to the HoL, yes they are. Davey says reporter is the author of his own report: his materials were his notes, importance of shorthand. Copyright has NOTHING TO DO WITH THE ORIGINALITY OR LITERARY MERITS OF THE AUTHOR. Can exist in info given by street directors, by list of deeds or list of ads. Open to any reporter to compose their report, but a man shouldn't avail himself of another's skill by copying the written product. James says a reporter's art represents more than just transcribing, and it's an art in itself. Brampton says that there was significant intellectual skill used.

Front 15

Express Newspapers v News UK (Artistic Work)

Back 15

tit for tat copying of exclusive interviews. Browne Wilkinson approaches it AFTER Copyright Act 1988, when there's now an express statutory requirement of originality. Despite what Cross seems to think in Roberton v Lewis, Walter v Lane still good law: it's enough that the work is the production of something in a new form as a result of skill, labour and judgement. S3(3) of the act seems to cover things anyway. If skill, labour and judgment were put into things, it'd be grand.

Front 16

Ladbroke v William Hill (Artistic Work)

Back 16

WH claims copyright in their football betting coupons and alleged L infringement. L argued the coupons weren't original literary works as while a serious amount of skill, judgment and labour goes into deciding bets to include in the coupons the actual expression of the bets lacked this. Reid said that expression doesn't need to be in an original or novel form but the work mustn't be copied directly. L says the skill only comes in the first half of the betting coupon so the second half shouldn't qualify as original. Analogy with trader's catalogue (disregard the decisions as to what to offer and only concentrate on the skill in putting it together) but that's ignored. Devlin says that the preparation of the document can be an object of the work done: if when the selection work is done that there's no intention of listing results then it could be different.

Can't draw a line like that in this case, so the production of the coupon is the whole object of the work. Pearce says the whole of the plaintiff's efforts were devoted to arranging coupon that would attract punters and be the basis of the plaintiff's business.

Front 17

Interlego v Tyco (Artistic Work)

Back 17

manufacturers of Lego. Drawings reproduced to get around patent expiry. Tyco produce compatible bricks. Oliver says the changes that take place involve no substantial alteration to the drawing and no matter how much labour and skill goes into the reproduction, it's not an original artistic work. Emphasis of original is that the work mustn't be copied from another work but should originate from the author. But you can make use of material obtained from pre-existing sources. It's the PRODUCT of the labour that shouldn't be appropriated, not the raw material. There needs to be labour and skill differentiating the product from the raw material.

Front 18

Antiquesportfolio.com (Artistic Work)

Back 18

with a 3D work the positioning of the object, the angle, the lighting and the focus could all be important matters, and some degree of skill will be involved.

Front 19

Hyperion Records v Sawkins (Artistic Work)

Back 19

upheld that the new editions were original musical works. Mummery said that the effort, skill and time which the judge found should be sufficient to satisfy the requirements even though the claimant worked on the scores of musical work composed by another, that Lalande's works were out of copyright and the claimant had no intention of adding new notes. Jacob seems to think that Walter v Lane is still good law but he seems to argue that a copyist shouldn't be regarded as just a copyist, as there's different levels of skill. Question to ask is whether new work is sufficiently original in terms of skill and labour used to produce it. This WASN'T servile copying but the creation of something really new.

Front 20

Bamgboye v Reed (Authorship)

Back 20

copyright claim over song. First claimant was the sound engineer who allegedly contributed drum and bass line parts etc. First defendant used equipment to work on and master. First claimant a joint author in the musical work, first defendant the producer. Williamson cites Century Communications (where film was produced by E on Chinese mainland but had to bring in another company, and while C was responsible for shooting it and getting permission, arrangements for making had been made by E and E had copyright.) Cases generally take into account money but as no money changed hands the question is to ask who instigated the activity necessary to make it?

First defendant arranged the activity to make the recording. If the first claimant didn't let it happen then the first defendant could go elsewhere, and without the first defendant there would be no recording.

Front 21

Robin Ray v Classic FM (Joint Authorship)

Back 21

Lightman says common ground that joint authors hold copyright in the subject of joint authorships as tenants in common with equal shares. Unnecessary to consider whether use made of copyright material did any damage as even if the defendant was joint ownership couldn't allow the copying of exploitation of copyright abroad without the consent of the plaintiff. The defendant as joint owner isn't free to do what he likes as its joint owner for a share of the profits.

Front 22

Fisher v Brooker (Joint Authorship)

Back 22

Whiter Shade of Pale. Failed to establish joint ownership, as CoA held that excessive delay of bringing the action action is unconscionable conduct giving rise to equitable action of acquiescence.

Front 23

Brighton v Jones (Joint Authorship/Contribution Argument)

Back 23

Stones in his Pockets: defendant wrote script of play in 1996, listed as sole author on publicity material, claimant directed first production of the play. Defendant rewrote script in 1999, made serious success, claimant alleged she was joint author due to her contributions including suggesting changes to plot and dialogue. Park outlines things quite nicely: if someone claims to be a join author they need to make a significant contribution but it doesn't need to be the same as the other authors. Contribution made must be towards the actual creation of the work, but a person can become a joint author if he hasn't himself put pen to paper but someone else did that effectively writing what first person created. Burden is on the claimant and changes did indeed take place from the experience of rehearsals and discussions in the rehearsals. But in terms of dialogue, 100% of the words spoken were written by the defendant. Claimant may have suggested to rewrite but Jones actually chose the words. Claimant had clearly taken part in the lead up to changes but hadn't established the contributions were actually to the creation of the dramatic work.

Front 24

Beckingham v Hodgens (Joint Authorship/Contribution Argument)

Back 24

professional violinist as session musician for recording of track. Claimed he wrote the violin part. First instance, claimant said to have contributed the part and was a joint author/owner of the work. Argued that joint authorship requires an intention to create a joint work but this isn't the case. Only requirements for a work of joint authorship is that authors should have collaborated together. Levy v Rutley says there needs to be joint labouring in furtherance of a common design, but that common design is one to produce the work.

Front 25

Beloff v Pressdram (Ownership)

Back 25

memo written and used in Private Eye. If the writer worked at the Observer then she created the memo in the course of her employment and employer thus owned the work. Stated that the greater the skill required for employee, the less significant control is in determining whether employee is under contract of service. She has a substantial salary, holidays, provides no equipment of her own and she pays into an Observer pension. Looks like there's a contract of service.

Front 26

Noah v Shuba (Ownership)

Back 26

consultant epidemiologist wrote guide at home in evenings and weekends, but used the library and got assistance from the secretary, and published it first with his employer. Article written by defendant, claimant sued for copyright infringement, defendant argued owner of copyright was not Noah but employer. Expected to report on research work but it was to be done in addition to official activities. But it couldn't be a private venture as it was clear it was a guide written for his employer, letters sent out were on company notepaper etc. Morris in Stevenson Jordan and Harrison Ltd v McDonald said that even though the employer paid the expenses of the lecturer incurred in delivery of lecture and was prepared to type the lecture as written and used material from the library, hadn't been shown that the lecturer had been ordered to write or deliver the lecture or that it was part of his duty to write or deliver them. But if there's an agreement to the contrary, ownership of copyright works created in the course of employment might remain with the employee. Mummery seemed to imply that there was an agreement to the contrary because of the conduct of the PHLS in previous years was for the PHLS to assign copyright to publishers.

Front 27

Stevenson Jordan and Harrison Ltd v McDonald (Ownership)

Back 27

Even though the employer paid the expenses of the lecturer incurred in delivery of lecture and was prepared to type the lecture as written and used material from the library, hadn't been shown that the lecturer had been ordered to write or deliver the lecture or that it was part of his duty to write or deliver them.

Front 28

Griggs Group v Evans & Raben (Exploitation)

Back 28

the "Doc Marens" case. Claimants commissioned advertising agency to produce logo for their footwear, advertising agency commissioned first defendant to produce logo and paid him at their standard rate. First defendant assigned copyright in logo to second defendant (Australian footwear company, claimants equitable owners of copyright? If officious bystander asked at time of contract whether they were going to retain rights in logo which could be used against client anywhere in the world then the obvious answer would be no. So the copyright is mixed in.

Front 29

Sweeney v Macmillan Publishers (Duration)

Back 29

James Joyce book: copyright expired in 1992, defendant wants to make a reader's edition of the book: starts work in 1992, completed work by end of 1993, published text agreement in 1996, publication in 1997. The limited contacts with publishers wasn't really arrangements for exploitation. Work pretty much completed after 1995, would infringe copyright then.

Front 30

Autospin v Beehive Spinning (Reproduction)

Back 30

claimant makes new type of oil seal with three dimensions of critical importance to manufacturing seal and claimant produced charts with instructions allowing dimensions to be calculated. Defendants (ex-employees) started manufacturing oil seals and infringed copyright in compilation of measurements in their charts. Laddie says copyright in two dimensional drawing can be infringed by reproducing it in a three dimensional article. Oliver in Interlego says that producing an article by following written instructions doesn't infringe author's copyright. Even if charts had the three critical dimensions of the parts it wouldn't be right to say that making a seal is to reproduce the charts. The charts in this case don't contain even the three critical dimensions but instructions for calculation of the dimensions. It can't be a reproduction of literary copyright in a recipe for a cake to make a cake to the recipe so it's not a reproduction to follow mathematical instructions.

Front 31

Harms Ltd and Chappell v Martans Club (Public Performance)

Back 31

performance of musical work at club. 1800 members of club but on night 50 guests in the club. Claim was that it wasn't in public. Hanworth says you should ask whether what took place interfered with proprietary rights, whether the public has been admitted (public are the class of persons likely to go to a performance) and then whether the performance is a domestic one (a matter of family and household concern etc).

Front 32

Jennings v Stephens (Public Performance)

Back 32

play performed without consent by dramatic society. No guests present but only half of the members. Wright says presence or absence of visitors isn't the decisive factor, nor does it matter whether performance is paid or gratuitous. Extending Duck v Bates would be a bit much to the whole quasi-domestic audience bit. Greene says whether or not there's been an infringement should be determined on whether the act if carried out by the copyright owner would be an exercise of his right.

Front 33

Designer Guild v Russell Williams (Primary Infringement/Causal Connection)

Back 33

claimant owned copyright in painting and created a design based upon it. Complained defendant infringement by copying their design in their own design (a case of indirect copying). Defendant objected as he wasn't aware of the design at time of creation but there's evidence that design had ben displayed at trade show. Collins says that there's no infringement if person arrives by independent work at a substantially similar result but the beginning of proof normally lies in establishing proof of access and establishment of similarity. If this exists, there's a shift to the defendant of the evidential burden to the defendant. In this case, there's a bucketload of similarities: there's too many and too many obvious similarities. So with this in mind and the opportunity to copy etc means that the burden has been discharged on the claimant's part.

Front 34

Francis Day Hunter v Bron (Primary Infringement/Unconscious Influence/Causal Connection)

Back 34

infringement of a musical work published in 1926 and well known. Claimants alleged defendant's work published in 1959 was an infringement as it copied the first eight bars of the claimant's chorus. Denied they copied the work and composer gave evidence that he hadn't consciously copied it or heard it and if he had heard it, he must have been very young. Judge found considerable degree of similarity but accepted that there had been no conscious or unconscious copying, but CoA said that the proof of similarity and proof of access creates a presumption of copying. For unconscious copying to happen there needs to be strong evidence to invoke unconscious copying inference.

Front 35

Designer Guild v Russell Williams (Primary Infringement/Substantial Part)

Back 35

Bingham said CoA were wrong to overturn the decision for two reasons. One, what they did (analysing individual features) wasn't actually the challenge put before it and two, the CoA made original findings of fact; wasn't for CoA to embark on the substantiality issue afresh. Hoffman says that substantiality depends on quality, not quantity. Copyright work may have certain ideas not protected because they have no connection with the literary/dramatic/musical/artistic work, no matter how striking or original they area. Also, certain ideas might not protected because even though they're part of this nature, they're too commonplace to become a substantial part of the work. The more abstract and simple an idea, the less likely it's going to be a substantial part. Originality tends to lie in the detail. Millett says substantiality depends on the importance to the copyright work, but it doesn't depend on the defendant's work. Scott refers to this case as an altered copying case. His test: has the infringer incorporated a substantial part of the independent skill/labour contributed by the author in creating the copyright work. But he doesn't agree on the lack of a link between the works. Drawing of the line is between what's permissible borrowing of an idea and what an impermissible piracy of the artistic, literary or musical creation.

Front 36

Newspaper Licensing Agency v Marks and Spencer (Primary Infringement/Substantial Part)

Back 36

got press cuttings from claimant, made further copies for circulation within the organisations, alleged infringement of copyright in arrangement of published editions of certain newspapers. First instance, judge held copyright in typographical arrangement related to whole newspaper and independent article, and even if the typographical arrangement copyright was just for the newspaper copying individual articles would be a substantial part. CoA disagreed on second ground. Hoffman says difference between LDMA works and typographical arrangements is that there needs to be a facsimile copy of the arrangement. Must ask whether there's been a copying of sufficient of the relevant skill to constitute a substantial part of the typographical arrangement. Hoffman seems to think that it depends on whether the copy can be said to copy the presentation and layout of at least a page, and a column doesn't seem to be enough. Nothing substantially reproduces the layout of the page to amount to a substantial part.

Front 37

Baigent v Random House (Primary Infringement/Substantial Part)

Back 37

the Da Vinci dispute. Alleged substantial part of historical work was reproduced, including copying of 15 central theme elements but very little examples of language similarity. Defendant argued they only copied ideas, so no infringement happened. Mummery says they aren't substantial in the copyright sense. The points in the historical work aren't sufficiently developed: they're too generalised. The use of info doesn't constitute in itself a substantial part just because of the effort to carry out the research. The cases cited (like Ravenscroft v Herbert) features serious amounts of deliberate language copying and copying historical characters, incidents and interpretations.

Front 38

CBS Songs v Amstrad (Primary Infringement/Authorisation)

Back 38

selling dual-tape players, allowing for copying. CBS sued alleging that making, advertising and selling the machine would be an authorisation of infringement. Templeman says every tape recorder allows for copying: no manufacturer confers authority to copy unlawfully: Amstrad may facilitate copying, but doesn't authorise it. In terms of advertising: it drew attention to the advantage of the model and that it could copy but said it didn't authorise unlawful copying and that some copying required permission. Nobody could reasonably say that Amstrad possessed or tried to possess authority to provide permission. An act isn't authorised by someone merely enabling or assisting someone to do an act but doesn't pretend to have the requisite authority.

Front 39

LA Gear v Hi-Tech Sports (Secondary Infringement)

Back 39

claimant sold shoes made in accordance with employee drawing. Claimant became aware of prototype originating from defendant which they alleged was an infringing copy, sent defendant copy of the drawing and letter alleging copyright infringement. Defendant imported shoes and advertised shoes at trade show. Another let sent, then a copy of the shoe was sent. Defendant suggested that it did have reason to believe that the shoe was an infringing copy. If the necessary belief was in place when writ was sent then it's clear plaintiff should win. But there needs to be a reasonable amount of time to allow the reasonable man to evaluate facts so as to convert them to a reasonable belief. Clear amount f time in this case.

Front 40

Clark v Associated Newspapers (False Attribution)

Back 40

Alan Clark Secret Diaries, with photo etc. Statement saying it was fictional and name of real author in capitals. To succeed under s84 of 1988, plaintiff must establish work in question contains a false attribution and there's a requirement for the reasonable reader. The headings contain a clear and unequivocal false statement, and the vice of the statement isn't cured by the counter messages relied on by the defendant. Any contradiction needs to be as bold, precise and compelling as the false statement. Bit harsh on parodies.

Front 41

Confetti Records v Warner Music (Integrity)

Back 41

third claimant composed piece of garage music sold to first claimant. Defendant had been in negotiations with first claimant to use it in compilation album but negotiations fell through. Defendant then sampled track. Words of the rap contained references to violence and drugs, but the fact the words are hard to decipher goes against the conclusion that it's derogatory. Meaning of the words unclear as well. No evidence of honour or reputation of the reputation, so there's no evidence of prejudice either. France has a better approach where merely objecting to what's been done being sufficient.

Front 42

BBC v BSkyB (Reporting Current Affairs)

Back 42

fair dealing isn't confined to reporting current events in general news programmes but extends to inclusion of material in sports programmes. Very short excerpts in sports news programmes held to fall in scope of the exception.

Front 43

Newspaper Licencing Agency v Marks & Spencer (Reporting Current Events)

Back 43

argument advanced that the further copies made was for the purpose of reporting current events in the CoA. Clear that s30(2) should be a composite phrase, and you could substitute in "in the context of" or "as part of an exercise in" without really altering the point of the statute, and reporting current events are of wide scope. Doesn't cover "current interest". Idea of promptly copying and circulating could be said to be reporting the current event of the appearance of the article. BUT it has to be newsworthy events: not natural to cover just articles featuring a piece of clothing. It's not about the public interest but the private interest, and there's no public interest reason for this to happen.

Front 44

Hyde Park Residence v Yelland (Reporting Current Events)

Back 44

defendants published newspapers stills from security video with Diana. Claimant brought copyright action. Defendant argued publication of the stills was for purpose of reporting current events as it refuted allegations made by Al Fayed as to the location of the coupe. Accepted that use of security video was for the purpose of reporting current events: but it wasn't a fair dealing?!

Front 45

Pro Sieben Media v Carlton UK (Criticism)

Back 45

claimants broadcast programme including octuplets woman interview, second defendants produced a current affairs programme with an extract from the claimant's programme (30s), copying whole of programme in order to select the right extract. Claimant alleged copyright infringement, defendants argued use of extract was fair dealing for review OR for reporting current events. Shouldn't take things from an subjective perspective as it would give journalists an incentive to give implausible evidence as to their intentions. Criticism should cover most things, even criticism of the thing itself and not its style. But the criticism wasn't of the programme but actually the criticism of chequebook journalism.
When it comes to assessing whether work or part of a work has been used for purposes of criticism or review, courts will adopt objective test.

Front 46

Fraser-Woodward Ltd v BBC (Criticism)

Back 46

Mann accepts photos of Beckham family used for purpose of criticism or review of works of tabloid journalism.

Front 47

Hubbard v Vosper (Fair Dealing)

Back 47

Denning set out a few criteria.
1) Consider first the number and extent of quotations: are they too significant to be fair?
2) How are they being used? For comment, criticism, review, etc, that's grand.
3) What's the proportion of quotations and extracts? Lots of short comments v few but long comments.
4) It's a matter of impression, really.

Front 48

Hyde Park Residence v Yelland (Fair Dealing)

Back 48

lends to things as well: Aldous doesn't think that fair minded and honest person would pay for dishonestly taken photos and publish them knowing they hadn't been published or circulated when the only relevance was supporting an already known fact that added nothing to the debate. There was no need for the photos as it could have been affirmed in a statement that the facts were correct. The Sun used the photo in a big way but didn't actually change or add any information at all. Could it be the perspective of fair minded and reasonable person?

Front 49

Ashdown v Telegraph Group (Fair Dealing)

Back 49

Ashdown-Blair discussion. Ashdown planning on releasing diaries including minutes of the meeting, shown confidentially to publishers, minutes leaked to Sunday Telegraph, substantial extracts copied verbatim. BOC and copyright infringement claim. Defendant's use not for purposes of criticism or review because it criticised the PM and claimant's actions, not the actual minute. Upheld that it could be reporting current events. Philips says that the most important factor in judging fair dealing is in fact commercial competing with the copyright owner's exploitation of his work. If it is, it's most likely to fail. If it's not, defence is likely to succeed. Second most important factor is whether the work has already been exposed to the public: if it's not, it's less likely to come across as fair dealing but leaked info can sometimes be necessary to use. Third most important factor is the amount and importance of the work taken.

Front 50

FAPL v Panini (Incidental Inclusion)

Back 50

football stickers. Unofficial stickers v official stickers. Proceedings brought for infringement of copyright in badges and emblems as artistic works, but the defence that it was an incidental inclusion was thrown out. Incidental wasn't defined deliberately as it would be impossible to provide a definition for all circumstances and it wasn't intended to mean unintentional. Incidental isn't confined to unintentional/non-deliberate inclusion. Objective was to produce something attractive to a collector, which requires an objective assessment of the circumstances: in order to achieve that objective there was a need for the player to appear in an appropriate club strip and that it be authentic, and for that to happen it needed to include the FAPL emblem and the club badge. Integral and incidental should be regarded together?

Front 51

Hyde Park Residence v Yelland (Public Interest Defence)

Back 51

said that S171(3) doesn't reflect a defence of public interest but the inherent jurisdiction to refuse to enforce copyright for one reason or another. Aldous says that the provisions in the CDPA for exceptions seem to cover the public interest overrides. 1988 Act doesn't give court general power to enable infringer to use another's property. But the court can REFUSE jurisdiction. Point brought up that courts have refused to grant injunction to restrain breach of confidence on public interest ground. But the breach of confidence is different as copyright is a property right given by statute, so it would be wrong for a court to reject a stated defence but uphold defence as it was in the public interest. Copyright is concerned with protection of forms of works, not with information protection. Also, Berne Convention requires uniform and effective protection of copyright. The jurisdiction to refuse to enforce copyright is where enforcement of the copyright would offend against the policy of the law, like Lion Laboratories. Needs to be immoral, scandalous or contrary to family life, injurious to public life/safety/admin of justice or incites others to do something injurious.

Front 52

Ashdown v Telegraph Group (Public Interest Defence)

Back 52

Philips argues that freedom of expression protects both the right to publish info and to receive it. Philips says there's rare circumstances where right of freedom of expression will come into conflict with protection given by 1988 Act. The court is bound in so far as it is able to accommodate the right of freedom of expression, but freedom of expression shouldn't normally carry with it the right to make free use of another's work. Where it's in the public interest that words which have copyright should be published without sanction, it's probably best to do it under S171(3). Aldous probably wasn't ok to confine the public interest defence to breach of copyright as tightly as he did. But it is very rare for the public interest to justify copying the work.

Rare circumstances that may arise where it's necessary to sue the precise form of the copyright work, but the CDPA can't be relied upon so the court will have to apply the CDPA in a way that accommodates the right to freedom of expression but refusing injunctions etc.
It might be appropriate to rely on public interest defence only where right to freedom of expression outweighs property rights of copyright owner.
This seems to be the best way of doing things.