Categories Of Copyright Work 1 PDF

CATEGORIES OF COPYRIGHT WORK 1 S.7(1): Subject to this section, the following works shall be eligible for copyright: (a) Literary works; (b) Musical works; (c) Artistic works; (d) Films; (e) Sound recordings; and (f) Broadcast...

CATEGORIES OF COPYRIGHT WORK 1 S.7(1): Subject to this section, the following works shall be eligible for copyright: (a) Literary works; (b) Musical works; (c) Artistic works; (d) Films; (e) Sound recordings; and (f) Broadcast SAM 2020 1  LITERARY WORKS “literary work” includes: (a) novels, stories, books, pamphlets, manuscripts, poetical work and other writings; (b) Plays, dramas, stage directions, film scenario, broadcasting scripts, choreographic works and pantomimes; (c) Treaties, histories, biographies, essays and articles; (d) Encyclopedias, dictionaries and other works of reference; (e) Letters, reports and memoranda; (f) Lectures, addresses, sermons and other works of the same nature; (g) Tables or compilations, whether or not expressed in words, figures, or symbols and whether or not in a visible form; and (h) Computer programs. SAM 2020 2  …LITERARY WORKS Literary works encompasses a wide range of works, regardless of literary merit or quality. Peterson J in University of London Press v University of Tutorial Press 2 Ch 601. S.7(3)(b): a literary, musical or artistic work shall not be eligible for copyright unless the work has been written down, recorded or otherwise reduced to material form. SAM 2020 3  …LITERARY WORKS Dramatic works include plays, dramas, stage directions, film scenarios, broadcasting scripts, choreographic works and pantomimes. Mohd Ramly @ Dzulkifli b. Ismail v Sarimah Film Production Sdn. Bhd 1 CLJ 105, “whether the film was substantially based on the plaintiff’s stage play. However, the problem was that there was no detailed script of the stage play, and thus, there was difficulty in showing a substantial similarity in the plots, scenic effects and incidents when comparing the two.” SAM 2020 4  …LITERARY WORKS S.3: “computer program” means an expression, in any language, code or notation, of a set of instructions (whether with or without related information) intended to cause a device having an information processing capability to perform a particular function either directly or after either or both of the following :(a) conversion to another language, code or notation; (b) reproduction in a different material form. Creative Purpose Sdn. Bhd v. Integrated Trans Corp Sdn. Bhd 2 MLJ 429 Autodesk Inc v. Dyason (1991-1992) 22 IPR 163. Ibcos Computers Ltd v. Barclays Mercantile Highland Finance Ltd FSR 275 SAM 2020 5  Cont.. Originality It looks as if the same threshold of originality with regards to literary works will be applicable to computer programs. Based on Creative Purpose case, although the quality of a work is unimportant in S. 7(2) of the Copyright Act 1987, a literary work is eligible for copyright if the requirement of subsection (3) of the section is fulfilled. Computer program is eligible for copyright if “sufficient effort” has been expended on it to render the work “original” and the work is “reduced to material form”. SAM 2020 6 Cont.. S.3 of the Copyright Act 1987 defines a ‘computer program’ as ‘an expression, in any language, code or notation, of a set of instructions In Data Express Corporation v Powerflex Services Property Ltd (1999) 45 IPR 353, the expression of that set of instructions ,ust also be designed to achieve a particular purpose. Australian case of Autodesk Inc. v. Dyason. Issue: whether there was a computer program, either in the lock or the AutoCAD program itself? ‘Computer program’ had been define where the phrase ‘expression, in any language, code or notation of a set of instructions’ in the definition section. … should not be understood as referring only to an actual written expression or representation of a set of instructions with the result that copyright does not exist at the time of an alleged infringement unless such a written expression actually exists or has existed at that time. SAM 2020 7 Cont.. Computer program is part of what is commonly referred to as the ‘software’ while the electro-magnetic components of the computer are known as the ‘hardware’. ‘Computer program’ covers the initial program and the source code and the object code. Source code is a literary work and is protected as a copyright. However, in Computer Edge Pty Ltd v. Apple Computer Inc no such protection was given to the object code where one of the judges in the majority said ‘I have not found anything … that has persuaded me that [the object code] a sequence of electrical impulses in a silicon chip not capable itself of communicating anything directly to a human recipient, and designed only to operate a computer, is itself a literary work, or is the translation of a literary work within the Copyright Act.’ SAM 2020 8  Cont… Computer software programs are protected under copyright law as literary work. Software programs are written in computer codes that, if printed on paper are combinations of letters and numbers. Therefore, computer programs may include visual, audio, or the other qualities, the underlying software code is protected as a literary work. Though software is registered as a literary work, the audiovisual aspects of the program are still protectable. SAM 2020 9  Cont… The first case in Malaysia to deliberate on the position of computer software: Creative Purpose SB & Anor v. Integrated Trans Corp SB & Ors 2 MLJ 429. In this case, Kamalanathan Ratnam JC explored the nature of a computer program and examined the scope of copyright over a computer program. The person who does the improvement is only entitled to copyright protection for the improved version. SAM 2020 10  Cont… Electronic publishing for literary work.. Term `communication to the public' is defined as `the transmission of a work through a wire or wireless means to the public, including the making available of a work in such a way that members to the public may access the work from a place and at a time individually chosen by them'. Sec. 3 CA 1987 It will apply to works made available on the Internet and other online services, as well as works transmitted or broadcast to the public. It has broad application, applying to works, sound recording, cinematograph films and broadcasts. SAM 2020 11  Cont.. Copyright protection had been widened to cover an exclusive right of an author to control communication to the public through wire or wireless means. ▪ Circumvention of any effective technological measures used by authors in the exercise of their rights (s 36A CA) ▪ Removing or altering any electronic rights management information without authority (s 36B CA) SAM 2020 12  MUSICAL WORKS S. 3 : “musical work” means ay musical work and includes works composed for musical accompaniment. Music and accompanying works i.e lyrics/action Folklore? Boria, dikir barat etc… SAM 2020 13  ARTISTIC WORKS S.3: “artistic work” means (a) A graphic work, photograph, sculpture or collage, irrespective of artistic quality; (b) A work of architecture being a building or a model for a building; or (c) A work of artistic craftmanship, but does not include a layout-design within the meaning of the Layout-Designs of Integrated Circuits Act 2000. SAM 2020 14  …ARTISTIC WORKS Graphic S.3: “graphic work” includes (a) any painting, drawing, diagram, map, chart or plan; and (b) any engraving, etching, lithograph, woodcut or similar work. Irrespective of artistic quality SAM 2020 15  …ARTISTIC WORKS Photograph S.3: “photograph” means a recording of light or other radiation on any medium on which an image is produced or form which an image may by any means be produced and which is not part of a film. (Baumann v Fussel RPC 485). Sculpture Work of artistic craftmanship Peko Wallsend Operations Ltd v Linatex Process Rubber Bhd 1 MLJ 225 “ the defendant were alleged to have copied the plaintiff’s slurry pump by way of reverse engineering. H: Indirect copying of an engineering drawing is also a copyright infringement. Copyright subsists in engineering drawings. SAM 2020 16  FILMS S.3 “film” means any fixation of a sequence of visual images on material of any description, whether translucent or not, so as to be capable by use that material with or without any assistance of any contrivance (a) Of being shown as a moving picture; or (b) Of being recorded on other material, whether translucent or not by the use of which it can be so shown, and includes the sounds embodies in any sound-track associated with a film. SAM 2020 17  SOUND RECORDING S.3: “Sound recording” means any fixation of a sequence of sounds or of a representation of sounds capable of being perceived aurally and of being reproduced by any means but does not include a sound-track associated with a film. SAM 2020 18  BROADCASTS S.3: “broadcast” means the transmitting by wire or wireless means of visual images, sounds or other information which (a) Is capable of being lawfully received by members of the public; or (b) Is transmitted for presentation to member of the public. and includes the transmission of encrypted signals where the means for decrypting are provided to the public by the broadcasting service or with its consent; SAM 2020 19  TOPIC 6 CATEGORIES OF COPYRIGHT WORK II SAM 2020 1  DERIVATIVE WORKS S.8(1): The following derivative works are protected as original works: (a) translations, adaptations, arrangements and other transformations of work eligible for copyright; and (b) collections of works or collections of mere data, whether in machine readable or other form, eligible for copyright which by reason of the selection and arrangement of their contents, constitute intellectual creation. S.8(2): Protection of works referred to in subsection (1) shall be without prejudice to any protection of the existing works used. SAM 2020 2  DERIVATIVE WORKS Translation work In Bryne v Statist Co 1 KB 622, translation work from original speech that has been reported from foreign language to another language is copyrighted. In Longman Malaysia Sdn Bhd v Pustaka Delta Pelajaran Malaysia 2 MLJ 359, Gunn Chitt Tuan J, translation work is a literary work and can be protected in Malaysia. SAM 2020 3  DERIVATIVE WORKS Adaptation S. 3 CA: adaptation includes any of the following, that is to say— (a) in relation to a literary work, a version of the work (whether in its original language or a different language) in which it is converted into a dramatic work; (b) in relation to a dramatic work, a version of the work (whether in its original language or a different language) in which it is converted into a literary work; (c) in relation to a literary or dramatic work— (i) a translation of the work; (ii) a version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book or in a newspaper, magazine or similar periodical; (d) in relation to a literary work in the form of a computer program, a version of the work, whether or not in the language, code or notation in which the work was originally expressed not being a reproduction of the work; (f) in relation to a literary or artistic work, a version of the work (whether in its original language or a different language) in which it is converted into a film; SAM 2020 4  DERIVATIVE WORKS Collection of Works a) Collection of short stories has a copyright. Penerbit Fajar Bakti Sdn. Bhd v Cahaya Surya Buku dan Alatulis 1 MLJ 386. b) collections of works or collections of mere data, whether in machine readable or other form. Database?? In Europe, EU Directive 96/9/EC (the "Database Directive") was implemented by the Copyright and Rights in Databases Regulations 1997 (SI 1997/3032) (the “Database Regulations”), which came into effect on 1 January 1998. The Database Regulations amended the provisions of the CDPA on database copyright (literary work) and created a new “sui generis” database right. In Football Dataco Ltd and others v Britten Pools Ltd, Yahoo! UK Ltd and others EWHC 841 (Ch) - The lists qualified for database copyright protection because skill and judgement has been used in deciding which and when matches were to be played. SAM 2020 5  Subject Matter Other Than Original Works a) Sound Recording - S.3 CA: ―sound recording means any fixation of a sequence of sounds or of a representation of sounds capable of being perceived aurally and of being reproduced by any means, but does not include a soundtrack associated with a film; SAM 2020 6 Subject Matter Other Than Original Works - The definition of sound recording does not include a sound track associated with a film. - In Phonographic Performance Company of Australia Ltd v Federation of Australian Commercial Television Stations (1998) 40 IPR 225, the minority judgment: the incorporation of a sound track into a film would not result in its ceasing to be a sound recording, nor do the prior rights of the sound recording dissipate or merge in the rights of the copyright owner of the film. SAM 2020 7 Subject Matter Other Than Original Works b) Films Section 3 CA : film means any fixation of a sequence of visual images on material of any description, whether translucent or not, so as to be capable by use of that material with or without any assistance of any contrivance— (a) of being shown as a moving picture; or (b) of being recorded on other material, whether translucent or not by the use of which it can be so shown, and includes the sounds embodied in any soundtrack associated with a film. - In Polygram Records Ltd & 11 Ors v Asia Amusements (M) Sdn Bhd, “so long as sound and images are recorded together, on any media, whether the common film, videotape or disk, it is caught by this definition of film.” - A music/karaoke videogram was a film within the meaning of S. 3 CA. SAM 2020 8 Subject Matter Other Than Original Works c) Broadcast S. 3 CA: broadcastǁ means a transmission, by wire or wireless means, of visual images, sounds or other information which— (a) is capable of being lawfully received by members of the public; or (b) is transmitted for presentation to members of the public, and includes the transmission of encrypted signals where the means for decrypting are provided to the public by the broadcasting service or with its consent. It deals with a subject matter that is transient and incorporeal. Unlike other categories of copyright works, broadcast in particularly by transmission, there is no requirement of reduction to a material form or fixation. In Malaysia, s. 16(2) CA: where a broadcasting service broadcasts a film in which a literary, musical or artistic work is incorporated, the owner of the right to broadcast the literary, musical or artistic work shall be entitled to receive fair compensation from the broadcasting service. Streaming (via internet): In American Broadcasting Cos., Inc., et.al v. Aereo, Inc., FKA Bamboom Labs, Inc No. 13-461 (June 2014), The Court ruled that the service provided by Aereo, allowing subscribers to view live and time-shifted streams of over-the-air television on Internet connected devices, violated copyright laws. SAM 2020 9  Published Editions of Works S. 9 CA: (1) Copyright shall subsist, subject to the provisions of this Act, in every published edition of any one or more literary, artistic or musical work in the case of which either— (a) the first publication of the edition took place in Malaysia; or (b) the publisher of the edition was a qualified person at the date of the first publication thereof: Provided that this subsection does not apply to an edition which reproduces the typographical arrangement of a previous edition of the same work or works. (2) Subject to the provisions of this Act, the publisher of an edition shall be entitled to any copyright subsisting in the edition by virtue of this section. (3) Subject to the provisions of this Act, the act restricted by the copyright subsisting by virtue of this section in an edition is the making of a reproduction of the typographical arrangement of the edition. SAM 2020 10  Published Editions of Works (4) Reproduction of the typographical arrangement of a published edition for any purpose including research, private study, criticism, review or the reporting of news or current events does not infringe the copyright subsisting by virtue of this section if such reproduction is compatible with fair dealing: Provided that if such reproduction is made public it is accompanied by an acknowledgement of the title of the work and its authorship, except where the work is incidentally included in a broadcast. (5) The Government, the National Archives, or any State Archives, the National Library, or any State library, or any public libraries and educational, scientific or professional institutions as the Minister may by order prescribe, may reproduce the typographical arrangement of a published edition without infringing the copyright subsisting by virtue of this section if such reproduction is in the public interest and is compatible with fair dealing and the provisions of any regulations. SAM 2020 11  Published Editions of Works In Newspaper Licensing Agency Ltd v Marks & Spencer Plc RPC 536, Lightman J: In the case of a newspaper or magazine that was made up of a number of different articles or stories, each separate article or story constituted a literary work and the typographical arrangement of each separate articles was accordingly copyright work. SAM 2020 12  Immoral, Irreligious, Seditious and Obscene Works There is nothing in the CA restricts conferment of copyright on works which may be considered to be against public policy, immoral (Glyn v Weston Feature Film 1 Ch 261), irreligious (Lawrence v Smith (1822) 37 ER 928), seditious (Southey v Sherwood (1817) 35 ER 1006) or obscene works. In Venus Adult Shop Pty Ltd v Fraserside Holdings Ltd FCAFC 188, there was no statutory basis under Australian copyright law to deny copyright to works with content that offended against community values although it may affect the type of remedy available. SAM 2020 13  TOPIC 7 Ownership in Copyright SAM 2020 1  AUTHORSHIP Why important? For the purpose of the subsistence of copyright work – s.10(1):author is a qualified person. Entitlement of the moral rights under s.25. Who is the author? Nottage v Jackson (1988) 11 QBD 627. “Authorship involved ‘originating, making, producing, as the inventor… the thing which is to be protected, whether it be… or a photograph’. Brett MR stated that it was the person was most nearly the effective cause of the photograph.” Creative Purpose Sdn. Bhd v Integrated Trans Corp Sdn. Bhd 2 MLJ 429. SAM 2020 2  AUTHORSHIP S.3: “author” , in relation to- (a) Literary works, means the writer or the maker of the works; (b) Musical works, means the composer; (c) Artistic works other than photograph, means the artist; (d) Photographs, means the person by whom the arrangement for the taking of the photograph were undertaken; (e) Films of sound recording, means the person by whom the arrangement for the making of the film or recording were undertaken; (f) Broadcast transmitted from within any country, means (i) the person transmitting the programme, if he has responsibility for the selection of its contents; or (ii) Any person providing the programme who makes with the person transmitting it the arrangements necessary for its transmission; (g) Any other cases, means the person by whom the work was made. SAM 2020 3  Can a non-human be considered as an author? a) Photograph by animal (selfie) - According to s.3, author in relation to (d), Photographs, means the person by whom the arrangement for the taking of the photograph were undertaken. - In Naruto v. Slater, 15-cv-04324-WHO (January 28, 2016), a crested macaque named Naruto took photographs of himself (the “Selfies”) using photographer David John Slater's camera. PETA and Antje Engelhardt filed a complaint on behalf of Naruto in 2015, alleging that Slater, Blurb, Inc. (who published a book by Slater containing the Selfies), and Wildlife Personalities (a UK company that also claimed authorship of the Selfies) violated Naruto’s copyrights by reproducing and selling the photographs for profit. The court ruled that Naruto does not have standing to state a claim under the Copyright Act. To qualify as a work of ‘authorship’ a work must be created by a human being. SAM 2020 4  Can a non-human be considered as an author? b) Work by Computer - Writer Oscar Schwartz revealed how an algorithm can generate poetry capable of fooling people into thinking it was written by an actual human. He applied a test for intelligence (the Turing Test) that says, “if a computer can fool a human 30% of the time, then it was a human and passes the Turing test for intelligence.” Schwartz said he has computer-generated poems that fooled 65% of humans in a study he conducted online. - Direct authorship? - Derivative work? - Work made for hire doctrine? SAM 2020 5  Can a non-human be considered as an author? - If it is consider as computer-generated work, in UK, it may protect. Under section 9(3) Copyright, Design, and Patents Act 1988, the author of a literary, dramatic, musical or artistic work that is computer-generated, is deemed to be the person “by whom the arrangements necessary for the creation of the work are undertaken.” - Our CA 1987 – no such provision unlike in UK, NZ, Ireland, HK, India and South Africa. - Although computers are capable of producing creative, independent works (I.e. Artificial Intelligence), they cannot perform several tasks that a copyright holder must perform to be eligible for protection. SAM 2020 6  Can a non-human be considered as an author? c) Painting by an animal i.e elephant using its trunk - Whether can apply the principle under section s.3, author in relation to (d), Photographs, means the person by whom the arrangement for the taking of the photograph were undertaken. Hence, is it those person who do the arrangement? SAM 2020 7  AUTHORSHIP Joint authorship: S.3 Robin Ray v Classic (1998) 41 IPR 235 The plaintiff had contributed a design for a system of classifying and selecting tracks to be played on a radio station. He did so under a consultancy contract. Held: A Joint authorship claim required that the contributor had made some direct contribution to the words appearing in the eventual published item. A contribution of ideas was insufficient. What is essential is a direct responsibility for what actually appears on the paper. The defendant was to be licensed to use the copyright database, but only as was foreseen within the original arrangement. Presumptions of authorship; S.26(4)(a) Creative Purpose Sdn. Bhd. v Integrated Trans Corp Sdn. Bhd 2 MLJ 429 The author generally refers to the creator of the work while the owner is the person who is entitled to control the doing of the various restricted acts. The author and owner of a copyright may not necessarily be the same person. Anonymous/pseudonymous works:S.26(4)(b),(c) SAM 2020 8  OWNERSHIP S.26(1);…author as the first owner Single and co-ownership S.27(5): Persons shall be deemed to be co-owners if they share a joint interest in the whole or any part of a copyright. S.27(4): An assignment or license granted by one copyright owner shall have effect as if the assignment or licence is also granted by his co-owner or co-owners and subject to any agreement between the co-owners, fees received by any of the owners shall be divided equally between all the co-owners. S.26(2), 27(3), 27(6). Licence means a lawfully granted licence in writing, permitting the doing of an act controlled by copyright SAM 2020 9  Commissioned work OWNERSHIP Plix Products Ltd v Frank M Winstone (Merchants) & Ors FSR 63. S.26(2): where a work (a) Is commissioned by a person who is not the author’s employer under a contract of service or apprenticeship; or (b) Not having been so commissioned, is made in the course of the author’s employment, the CR shall be deemed to be transferred to the person who commissioned the work or the author’s employer, subject to any agreement between the parties excluding or limiting such transfer. Stephenson, Jordan and Harrison Ltd v MacDonald & Evans (1952) 69 RPC 10. Lord Evershed MR: “The respondent’s duties would include research and teaching, thus he could not be ordered to write books, the activity not forming an integral part of his job, but merely accessory to it.” Abernethy v.Hutchinson (1825) 47 E.R 1313 An application was made to restrain the Defendants from publishing, in ‘The Lancet,’ Mr Abernethy’s Lectures, which had been delivered extemporal. Lord Eldon, at first, refused the application; but afterward granted an injunction, in the ground that there was an implied contract between him and the parties who attended his Lectures, that they should not publish them. Berjasa Information System Sdn. Bhd. v Tan Gaik Leong (t/a Juruukur Berjasa) & Anor 1 MLJ 808 “copyright ownership on the plaintiffs, a corporate entity.” SAM 2020 10  OWNERSHIP Dealings with a work: s 27(1) S.27(1): Subject to this section, copyright shall be transferable by assignment, testamentary disposition, or by operation of law as movable property S.27(2)-(7) SAM 2020 11  DURATION OF PROTECTION Calculation based on 3 things; The life of the author The date of first publication The date of the making of the work S.17(1): literary, musical and artistic – author’s life + 50 years after the death; s. 17(3) – anonymous or pseudonym is 50 years after first published; s.17(4)- joint authorship – author who died last. S.18: published editions – 50 years after the year it was first published. S.19: sound recording – 50 years after the year of fixation S.20: broadcast – 50 years after the year it was first made S.22: film – 50 years after the year it was first made available to the public or made, whichever is the latest. SAM 2020 12  EXCLUSIVE RIGHTS:S.13(1) Copyright in a literary, musical or artistic work, a film, a sound recording or a derivative work shall be the exclusive right to control in Malaysia: (a) The reproduction in any material form; (aa) The communication to the public (b) The performance, showing or playing to the public; (e) The distribution of copies to the public by sale or other transfer of ownership; and (f) The commercial rental to the public of the whole work or a substantial part thereof, either in its original or derivative form provided that— (A) the exclusive right to control the distribution of copies refer only to the act of putting into circulation copies not previously put into circulation in Malaysia and not to any subsequent distribution of those copies or any subsequent importation of those copies into Malaysia; and (B) the exclusive right to control commercial rental in relation to films shall only apply when such commercial rental has led to widespread copying of such work materially impairing the exclusive right of reproduction. SAM 2020 13