IPL 4 - Nature of Copyright PDF

Takeaways Copyright grants exclusive rights to the owner, allowing them to control the reproduction, publication, public performance, communication, and adaptation of their work. The substantiality rule states that even a substantial reproduction of a work counts as copying and may infringe copyri...

Takeaways Copyright grants exclusive rights to the owner, allowing them to control the reproduction, publication, public performance, communication, and adaptation of their work. The substantiality rule states that even a substantial reproduction of a work counts as copying and may infringe copyright. Publication refers to supplying the work to the public, while communication to the public involves transmitting the work electronically, often through the internet. Adaptation rights are important for transforming works into different formats or languages, such as translating a book or creating a film adaptation. Infringement requires a causal link between the plaintiff\'s work and the allegedly infringing work, and there are different types of infringement, including primary infringement and infringement by commercial dealings. Exceptions to copyright infringement, known as permitted uses, include fair use and other specific acts allowed by the Copyright Act. Fair use is assessed based on four non-exhaustive factors, and there are also deemed fair uses that do not require a detailed analysis. The limitation period for bringing an action for copyright infringement is 6 years from the time the infringement took place, but ongoing infringements may reset the time limit. Andrew Yip (00:00.94) Having looked at how copyright protection comes about, and who may own copyright, we now turn to the exclusive rights conferred by copyright. We are going to be looking at what copyright allows owners to do. It\'s important to bear in mind that copyright is not a positive right for the holder to do the acts that are prescribed. It\'s just a negative right to exclude others from doing the act. This is quite similar to most other categories of IP rights. Refer to these provisions on the nature of copyright in these specific works. They show the specific rights relevant to each type of work. within the bundle of copyright. In this table, you will see a summary of the exclusive rights that are conferred by copyright, and those that are marked out in red are non -examinable. You will see the categories the authorial works, non -authorial works, and the things for which would be applicable to each of them. For example, if you have a literary, musical, or dramatic work, then you will have the rights of reproduction, publication, public performance, communication, and adaptation. Please study this in greater detail by yourself in your free time. We will move Andrew Yip (01:20.802) We begin with the right of reproduction, something which is common to all works, and the key information about the right of reproduction is on this screen. It can be said that the copying right is something that would be triggered in almost all cases, and it\'s usually of primary interest to copyright holders. So that\'s also the same right that would often be licensed or, if necessary, assigned. What\'s quite important for the purposes of reproduction is the substantiality rule. which essentially means that substantial reproduction still counts as copying, and you don\'t need to show that the thing has been copied wholesale. For the right of publication, which is a different right, what we\'re looking at, really, is the right to supply it to the public. Publication right is something that is different from the right to communicate it to the public. And really, publication is something that only happens in the whole timeline just once, So it\'s important not to be confused with communication, since you could communicate something repeatedly. Publication is something that will come up also elsewhere in the Copyright Act in the context of several things. For one, it could be a connecting factor to determine whether copyright subsists. It could also be relevant toward the duration of the protection. While the fact of publication is connected to these other situations, publication in and of itself is a right given to the owner of an unpublished work to publish it to the public. Communication to the public is different. It\'s the right to communicate the work. So it\'s authorial work, films, broadcasts, cable programs, and sound recordings to communicate it to the public. Communication can be via electronic means, and most popularly, you would say that it would involve communication via the internet. So for instance, if you perhaps subscribe to a streaming service like Spotify, Andrew Yip (03:25.516) That would involve communication of the underlying sound recordings to the Andrew Yip (03:33.784) Communication to the public is yet again different from the right to perform the work in public. These terms are quite straightforward. Public performance is what it sounds like, basically the right to have a performance in public. The analogous right in relation to films is the right to cause visual images to be seen or sounds to be heard in The right of adaptation is one that\'s quite interesting and is quite relevant to commerce. The definitions are there in the act and tabulated in the next slide. Note too that most exclusive rights in relation to literary, dramatic and musical works apply to their adaptations as well. A simple example where the adaptation write is involved is the translation of works, perhaps from English to Mandarin, Bassa Malayu or some other language, and vice versa. You could also have a situation where the write of adaptation comes into play when you have a book, a novel you want to convert it into film, screenplay, something on stage. So that\'s where adaptation comes in. Adaptation also comes in in the form of, musical works when you are arranging or transcribing the work. On this slide, you\'ll see the duration of protection for published authorial works. Usually it\'s 70 years after the author dies. You can also read for yourself how long copyright lasts in sound recordings and films. Andrew Yip (05:07.544) Having learned about the bundle of exclusive rights under copyright, we now consider infringement, defenses, and exceptions. A useful starting point is the global Yellow Pages case. In paragraph 14, the Court of Appeal observes that liability for infringement turns on the related issues of subsistence and infringement. The Orthodox method poses three questions. 1. Does copyright subsist? 2. Has it prima facie been infringed? and 3. Whether any defenses apply? Next, copyright protects not ideas, facts or data, but the expression thereof. This is something that we\'ve been through already. A compilation of facts, specifically a selection or arrangement of facts, is original and could as such be eligible for copyright protection. However, the protection conferred would be thin. Andrew Yip (06:08.896) As you will see, the case involved telephone directories and the data within those directories was obviously something which was basically just facts. So the question was, what kind of protection would be conferred by copyright because the compilation of this data could be protected as a literary work under the Copyright Act? You may look at the case of Global Yellow Pages for yourself. It is an important case in discussing concepts of originality, and other issues relating to infringement. But the main thing to note is that copyright protection, the extent of it or the strength of protection, really is on a sliding scale. The more original, the more skill and intellectual labour that is imbued in it, the more that copyright will protect. Also, although copyright may subsist in a work as a whole, There would be no infringement unless one copies the whole work or a substantial portion of the part of the work that attracts copyright protection in the first place. Okay, so next categorization. This is really an issue of what exactly has been infringed. You would need to take a look at the factual matrix, the story that your client comes to you with, and you have to ask yourself, okay, what exactly is being infringed? Is it a literary work? Is it a sound recording? Is it a film? And so on and so forth. And very, very often, it could be a bundle of these. After we have established that, then we ask ourselves, okay, so we have the types of work, but then what exactly, where exactly is the infringement? Infringement is in a nutshell doing something that is an act, comprised in the copyright. If you\'re not the owner and if you don\'t have permission to do so, doing that act equals to infringement. Now that\'s the type of infringement that practitioners sometimes call primary infringement. Andrew Yip (08:12.161) But there is yet another type, which is infringement by commercial dealings. That\'s when you commercially deal in infringing articles, or you import infringing articles for commercial purposes. We\'ve talked about the exclusive rights, we\'ve talked about substantiality, but one other thing that we have yet to talk about, which is very, very important, is causation. There must always be shown that there was some causal link between the work that is the plaintiffs and the allegedly infringing work that is the defendants. Now, the very, very classic example of this is that you have two people taking a photograph of the exact same scene. you may realize that perhaps the photographs that were taken by each of them were identical. This does not mean that one copied the other because they were just both taking a photo of the same scene. So there is no infringement because they didn\'t copy each other. Now, if however, the first individual sends it to a second individual, and that second individual does something else with it and reproduces that, sends it to 10 other people, then perhaps that would be infringement. The causative link in that case is that look, the second person had access to the first person\'s work. That causal connection issue is a key part of infringement. Some of the more interesting scenarios in this connection would be, for instance, when the defendant is an ex -employee, runs away with certain works, certain materials, certain drawings from their previous employer. They go to a new place and they might have misused that, right? So then the plaintiff will say, yeah, there was excess because when the defendant was working in my company, working with me, they were given excess to all these materials. So they must have run away with it. And that shows the causal connection between the works. Okay, so let\'s move Andrew Yip (10:16.926) It is also infringement if you are not the owner of the copyright and you authorize somebody else to do something which is comprised within copyright. Okay, so there are various issues linked to authorization, and they are discussed in this case. You can take a look at the Record TV case for Andrew Yip (10:39.126) Commercial dealing is quite wide. It covers sale, but not just sale, but exhibiting the thing, the article for purposes of sale, etc. This is quite important because this category of acts, you don\'t need to have done anything within the scope of the acts comprised within the copyright. All you are concerned about is commercial dealings with the infringing article that embodies the work. Something additional is that there is a knowledge element. The claimant must show that the defendant knew or ought reasonably to know that the things that they dealt with infringed copyright. Andrew Yip (11:18.986) We now talk about exceptions in the current copyright act. We no longer use the terms defenses and exceptions in the traditional sense. Instead, the term is permitted use. Where an act is a permitted use, it is not an infringement. Permitted uses are independent of each other. And then reliance on one permitted use does not affect the application of any other permitted use. Permitted uses may be excluded or restricted by reasonable contract terms. You may read the provisions here Andrew Yip (11:56.) The most important permitted use you need to know is fair use. There are four non -exhaustive factors that the court will take into account in assessing whether something is fair use or not. It\'s these four that are listed on the slide. There are also deemed fair uses where there is no need to apply the four factors in S191. You can read these for yourself if you\'re interested. There are many other permitted uses in Part 5 of the Copyright Act. Some of them are set out here to give a flavour. You should familiarise yourself with acts done for purposes of examination, for judicial proceedings, and for seeking or giving legal advice. Another important consideration when dealing with an infringement scenario is the limitation period. So you can\'t bring an action for infringement of a copyright after 6 years from the time that infringement took place. Therefore, if it is a one -off infringement which took place more than 6 years ago, no action can be brought. But if the infringement is ongoing, perhaps the reproduction, the communication to the public is still going on, then the six years time doesn\'t really begin to run. Time runs, but because it\'s an ongoing communication, it\'s being refreshed all of the B24 IPL - **[Copyright]** - Nature of the copyright - Exclusive Rights - s108 CA - Negate right to exclude others - s41 to s50 CA - Right of **[Reproduction]** and the \'Substantiality rule\' - s53 CA - published if made public - s55 CA - Publishing of a sound recording - s56 CA - what constitutes publication of a film - s58 CA - Matters to be considered or ignored for publication - s60 CA - Matters not constituting publication - Right of **[publication]** is not be confused with communication - s61 CA - Right to **[communicate]** to public by **[electronic means]** - s67 CA - Right to **[perform in public]** - Right of **[Adaptation]** - s17 CA - adaptation of literary work - s18 CA - Adaptation of a musical work - s19 CA - adaptation of literary, dramatic or musical work - s112(1)(f) CA - Exclusive rights to adaptation of work - s114 CA - **[Duration]** of copyright = lifetime +70 years - **[ Infringement and Exceptions]** - Global Yellow Pages v Promedia Directories Pte Ltd \[2017\] SGCA 28 - 1\. Does copyright subsist? - Breaking it down by category of works - 2\. Has copyright prima facie been infringed? - Identify the type of infringement: **[Is there a casual link between the plaintiff\'s work and the allegedly infringing work?]** - s146 CA - **[Infringement by doing act]** comprised in copyright (I.e. primary infringement) - RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd and Ors \[2011\] 1 SLR 830 (CA) at \[50\] - s 73 Infringement by **[\"commercial dealing]**\" - s147 CA - Infringement by **[importation]** for commercial dealing, etc. - s148 CA - Infringement by commercial dealing, etc. - 3\. Do any defences or exceptions apply? - Exceptions - s183 CA - Permitted use - ▪ Specific categories that cannot be excluded by contract: s 187 - ▪ Must fulfil conditions: s 186(2), (3) - s190 CA - **[Fair use]** - s191(a) to (d) CA - non-exhaustive factors - Acts done for purposes of examination: s 202 - Acts done for judicial proceedings: s 290 - Acts done for seeking or giving legal advice: s 291 - s154 CA - Limitation period after 6 years