Contemporary Intellectual Property Law and Policy PDF

2 Copyright 1: history, rationale and subject matter Introduction Scope and overview of chapter 2.1 This chapter considers the scope and subject matter of modern copyright law against a back- ground of its historical development in the UK and the international and Eu...

2 Copyright 1: history, rationale and subject matter Introduction Scope and overview of chapter 2.1 This chapter considers the scope and subject matter of modern copyright law against a back- ground of its historical development in the UK and the international and European contexts in which that historical development has been increasingly set since the 19th century. Having thus set the scene, the chapter examines the matter in which copyright subsists. This centres on the concept of the ‘protected work’, and makes use of a distinction between what are sometimes known as ‘author works’ (literary, dramatic, musical, artistic and film works) and ‘media works’ (typographical arrangements, sound recordings, broadcasts, cablecasts and adaptations). 2.2 Learning objectives By the end of this chapter you should be able to describe and explain: the development of copyright, and its rationale; the subject matter that copyright protects, and the different categories of work used by the law. 2.3 The chapter explores the history and rationales of copyright, before turning to consider the subject matter which the law protects. So the rest of the chapter looks like this: History (2.4–2.16) Rationale of copyright (2.17–2.21) Subject matter of protection (works, fi xation, originality) (2.22–2.48) Author works (literary, dramatic, musical, artistic, fi lm) (2.49–2.89) Media works (sound recordings, broadcasts, published editions) (2.90–2.96) 36 PART II COPYRIGHT History Early history 2.4 In most European countries the origins of copyright law lie in the efforts of government to regulate and control the output of printers once the technology of printing had been invented and become established in the 15th and 16th centuries. Whereas before printing a writing, once created, could only be physically multiplied by the highly laborious and error-prone process of manual copying out, printing made it possible to have as many exact copies of a work as there were persons who wanted and could afford to buy them. This meant much more rapid and widespread circulation of ideas and information. While the state and church thought this was to be encouraged in many aspects (eg dissemination of material such as Bibles and government information), it also meant that undesirable content—dissent and criticism of government and established religion, for example—could circulate too quickly for their comfort. So, all over Europe, government established controls over printing, by requiring printers to have official licences to be in business and produce books. These licences typically gave the printer the exclusive right to print particular works for a fi xed period of years, enabling him to prevent others doing so during that period. Although the official licences could only grant rights to print in the territory of the state that had granted them, and therefore could not prevent printing of the same works in other territories, they did usually prohibit the import of such foreign printings into the territory where the licence had been granted. In England, the printers (then termed ‘stationers’) formed a collective organisation, known as the Stationers’ Company, which in the 16th century was given the power to require the entry in its register of all lawfully printed books. Further, only members of the Company could enter books in the register. As a result the Company achieved a dominant position over publishing in 17th century England. But there was no equivalent in contemporary Scotland or Ireland. However, in 1694 the English Parliament deprived the Stationers’ Company of its powers of control, creating uncertainty about regulation of the printing industry at a critical juncture in British history.  Question How was the printing of books regulated in England before 1707? 2.5 In 1707 the Parliaments of England and Scotland were united in a single body as the result of the Anglo-Scottish Union finally agreed that year, after much debate. The new Parliament was enjoined to respect the separate identities of the English and Scottish legal systems, but was enabled to change the laws of both countries as part of an overall project that today might be described as the creation of a single market in the UK. An important early piece of legislation to  On the pre-history of copyright in Scotland see A J Mann ‘Scottish copyright before the Statute of 1710’ Juridical Review 11; also the same author’s The Scottish Book Trade 1500–1720 (2000), Ch 4 and App 1; and ‘Some property is theft’: copyright law and illegal activity in early modern Scotland’, in R Myers, M Harris and G Mandelbrote (eds), Against the Law: Crime, Sharp Practice and the Control of Print (2004).  See in general M Rose, Authors and Owners (1993); J Greene, The Trouble with Ownership: Literary Property and Authorial Liability in England, 1660–1730 (2005).  2 COPYRIGHT 1: HISTORY, RATIONALE AND SUBJECT MATTER 37 this end was the Copyright Act of 1709, which created a single regime for application in both England and Scotland. The Act marks an important shift of emphasis in the law, because it gave the ‘sole right and liberty of printing books’, not to printers, but to the authors of the books. This is the fi rst formal legal recognition that a reason for conferring exclusive or property rights in this area was the work of its creator or originator. It may reflect the theories of contemporary philosophers such as John Locke, who held that rights of property flowed fi rst from the labour of the person who created the thing to be owned. But the 1709 Act also enabled the author to transfer his rights to ‘assigns’, who would typically be the printer, without whom the author would be unable to disseminate and profit from his creation. Further, a pre-condition of the right was registration of the work at Stationers’ Hall; something of a disadvantage for Scottish and Irish printers, since the Hall was in London. The right lasted for 14 years from first publica- tion and if at the end of that time the author was still alive, it was renewed for another 14 years.  Question When was the fi rst copyright statute passed? What changes did it make to the previous regime described in para 2.4? 2.6 The next critical stage in the early history of British copyright came from the 1730s on, as the fi rst copyrights created under the 1709 Act began to expire. Did those who had held statutory rights to prevent unauthorised copies also have an underlying right at common law which now revived to enable them to continue to control printing and publication of their work? There was intense controversy and much litigation in both England and Scotland on this question. Matters were not resolved until the great cases of Hinton v Donaldson in Scotland in 1773 and Donaldson v Beckett in England in 1774. In these decisions, the Court of Session and the House of Lords respectively held that there was no copyright at common law in works which had been published and enjoyed copyright under the 1709 Act. While the common law of both England and Scotland went on to develop with regard to unpublished works (only the author or his licen- see could authorise publication), the development of copyright would henceforth be princi- pally through statute. The common law copyright in unpublished work remained significant until the beginning of the 20th century, however, because unlike the statutory copyrights, it  Often known to copyright lawyers as ‘the Statute or Act of Anne’, after Queen Anne, who reigned 1702–1714. The Act entered into force in 1710 and is sometimes given that date rather than 1709.  See further R Deazley, On the Origin of the Right to Copy – Charting the Movement of Copyright Law in Eighteenth Century Britain (1695–1775) (2004); JC Ginsburg, “ ‘Un chose publique?’ The author’s domain and the public domain in early British, French and US copyright law” (2006) 16 CLJ 636.  In addition to works already cited, see WR Cornish, ‘The author’s surrogate: the genesis of British copyright’ in K O’Donovan and GR Rubin (eds), Human Rights and Legal History: essays in honour of Brian Simpson (2000); W St Clair, The Reading Nation in the Romantic Period (2004); W McDougall, ‘Copyright litigation in the Court of Session, 1738–1749, and the rise of the Scottish book trade’ (1987) 5 Edinburgh Bibliographical Society Transactions 2–31; H MacQueen, ‘Intellectual property and the common law in Scotland c1700-c1850’ in L Bently, C Ng and G D’Agostino (eds), The Common Law of Intellectual Property: essays in honour of David Vaver (2010).  1773 Mor 8307. Full text of the judicial opinions in the case can be found in J Boswell, The Decisions of the Court of Session upon the Question of Literary Property in the Cause of John Hinton of London, Bookseller, against Alexander Donaldson and John Wood, Booksellers in Edinburgh, and James Meurose, Bookseller in Kilmarnock (1774). See further MacQueen, ‘Intellectual property and the common law’, 33–38.  (1774) 2 Bro PC 129. See further R Deazley, Rethinking Copyright: History, Theory, Language (2006). 38 PART II COPYRIGHT had no specific time limit, and lasted until lawful publication (ie it could go on for ever if publication never occurred). Question What was the effect of the decisions in Donaldson v Beckett and Hinton v Donaldson? 2.7 The primary development of copyright after Donaldson v Beckett was by statute. Engravings had been given copyright by statutes in 1734 and 1766, and further Acts for this subject matter were passed in 1777 and 1836;  sculptures joined books as copyright subject matter in 1798;  and paintings, drawings and photographs (the last a form of art recently made possible by technological development) were added by the Fine Arts Copyright Act 1862. Plays were pro- tected against unauthorised public performance as well as printing by the Dramatic Copyright Act 1833, and public lectures were given limited protection by the Lectures Copyright Act 1835. The length of the copyright term began to increase, moved by ideas that, if the basis of copyright was the recognition and encouragement of authorship, its duration should be extended for the benefit of family and descendants who might otherwise suffer for their rela- tive’s art. In 1814 the term for books became the longer of 28 years or the author’s lifetime, while in 1842 there was a further extension, inspired by the lawyer-playwright Thomas Talfourd, to the longer of 42 years or the author’s lifetime plus seven years. These extensions of copyright did not have an easy passage through Parliament: for example, the debates on the 1842 Act include TB Macaulay’s famous criticism that copyright was ‘a tax on readers for the purpose of giving a bounty to authors’. In general, however, it was accepted that if authorship in literature, drama, music and art was to be rewarded, then the protection of copyright was essential. Key points on the early history Modern copyright begins in the 18th century, mainly for printed books It is decided that copyright is primarily a statutory right, which endures only for the period laid down by the statute Unpublished works have a common law copyright which lasts for as long as the work is unpublished In the 19th century, copyright is extended to works of art and drama, and the period of protection gets longer  Engraving Copyright Acts 1734, 1766, 1777 and 1836.  Sculpture Copyright Act 1798; replaced by Sculpture Copyright Act 1814.  Particularly significant writers in this regard were William Wordsworth and Sir Walter Scott.  See for a very full account of the genesis of the 1842 Act, C Seville, Literary Copyright Reform in Early Victorian England (1999).  On the 19th-century ‘crystallisation’ of copyright in the UK, see B Sherman and L Bently, The Making of Modern Intellectual Property (1999), pp 111–28, 137–40.  2 COPYRIGHT 1: HISTORY, RATIONALE AND SUBJECT MATTER 39 International developments: Berne Convention 1886 2.8 The major problem which domestic legislation alone could not solve was unauthorised activity outside the UK. Copyright remained, like the old licensing systems from which it sprang, entirely limited to the territory in which it was granted, leaving authors and publishers unpro- tected beyond their home shores. As international markets for creative output began to take off in the course of the 19th century, so states began to enter into negotiations for the mutual rec- ognition and enforcement of foreigners’ copyrights. This culminated in 1886 in the multi- national arrangement known as the Berne Convention, although the treaty also underwent important revisions at Paris in 1896, Berlin in 1908, Rome in 1928, Brussels in 1948, Stockholm in 1967 and Paris in 1971. The Convention relates to literary and artistic works, amongst which are included fi lms, and requires its member states to provide protection for every produc- tion in the literary, scientific and artistic domain. Question When did the Berne Convention come into being, and how often has it been revised? What is the policy objective of the Convention? The other main features of the Berne Convention which have emerged from the international activ- ity of the last 120 years are: The principle of national treatment: each member state of the Convention would give citizens of other member states the same rights of copyright that it gave to its own citizens (Articles 3–5). Minimum standards for national copyright legislation – each member state agreed to cer- tain basic rules which their national laws must contain, although it could if it wished increase the amount of protection given to right holders. One of these minimum rules was that copyright should arise with the creation of a work and not depend upon any formality such as a system of public registration (Article 5(2)). This entailed the end of the British system of registration at Stationers’ Hall when the UK finally implemented the Berne Convention in the Copyright Act 1911. Another important Berne rule, also implemented in the 1911 Act, was that the term of copyright was to be a minimum of the author’s lifetime plus 50 years. A focus on the author as the key figure in copyright law: apart from the prohibition of regis- tration requirements and the extension of the copyright term, the Berne Convention empha- sised in other ways the centrality of authorship in copyright. Its purpose was ‘the protection of the rights of authors in their literary and artistic works’ (Article 1), not the protection of publishers and other actors in the process of disseminating works to their public. In the 1928 revision the concept of moral rights was introduced (Article 10bis), giving authors the right to be identified as such and to object to derogatory treatment of their works. These rights, unlike those which have become known as the economic rights to prevent  See in general S Ricketson and J Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond (2006); C Seville, The Internationalisation of Copyright Law: Books, Buccaneers and the Black Flag in the Nineteenth Century (2006). 40 PART II COPYRIGHT reproduction, public performance and, in due course, broadcasting, could not be transferred to others. The possibility of exceptions to copyright, enabling the reproduction of literary and artistic works without the right holder’s prior permission. The precise nature of these exceptions was for national legislation: the guiding principle stated in Article 9 of the Convention was that such exceptions were permitted ‘in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legiti- mate interests of the author’. Free use of works was expressly permitted in the cases of quota- tion from lawfully published works, illustration for teaching purposes, and news reporting (Article 10). 2.9 The importance of the Berne Convention cannot be overstated. It remains the basis for interna- tional copyright relations and domestic copyright law. Originally a mainly European instru- ment, it now extends to most of the world, including since 1989 the USA. Under the TRIPS Agreement of 1994 (see below, para 2.13), states wishing to participate in international trade must join and comply with the Berne Convention. Recent history: Copyright Acts 1911–1988; European and international law Copyright Acts 1911–1988 2.10 As already noted, the UK implemented the Berne Convention in the Copyright Act 1911, which came into force on 1 July 1912. The Act swept away all the particular copyrights which had grown up over the previous century (see above, para 2.7), and replaced them with a much more general approach. It also abolished the common law copyright in unpublished works, replacing that with a statutory scheme for such material. The Act also responded to techno- logical development by conferring a copyright on a new subject not mentioned in Berne, namely, sound recordings. Yet more new technology underlay the 1911 Act’s replacement with the Copyright Act 1956, which came into force on 1 June 1957, and extended protection to fi lms and broadcasts, and also to the typographical arrangements of published editions of works. Between them the two statutes brought under the umbrella of copyright works which, apart from fi lms, were seen in continental European systems as belonging to a distinct cate- gory of their own. They were not author works, but rather technological media works by which entrepreneurs brought such works to new audiences in a different form. While they deserved copyright-like protection, the substance of the protection did not need to be as great as with author works. The continental European systems thus developed systems for the pro- tection of what were termed ‘neighbouring rights’ quite distinct from those for author works. The approach was reinforced by the creation in 1961 of a Berne-like treaty for such neigh- bouring rights, the Rome Convention on the Protection of Performers, Producers of Phonograms and Broadcasting Organisations. But in the UK the 1956 Act followed the dis- tinction between author and media works only in a modified form: one part of the Act gave copyright to literary, dramatic, musical and artistic works, while a second part gave a some- what modified form of what was still called copyright to sound recordings, fi lms, broadcasts and published editions.  2 COPYRIGHT 1: HISTORY, RATIONALE AND SUBJECT MATTER 41 Question What are the differences in subject matter of the Berne and Rome Conventions? 2.11 The Copyright, Designs and Patents Act 1988 (CDPA 1988), which came into force on 1 August 1989, was also a response to technological development. Again new ways of creating and dis- seminating works – for example, computer programs, or software, and cable and satellite broad- casting – were recognised. But even more important in giving rise to the replacement of the 1956 Act were expansions in the ways by which copies might be made of works, notably photo- copying, re-recording sound recordings on audio cassettes, and videoing broadcasts. Advances in copying technology meant that not only could individuals make copies for their personal or business use, but so too could so-called ‘pirates’, that is, persons who made copies in great quan- tities for commercial resale at prices significantly lower than those of the copyright owner. The Act continued to apply the concept of copyright generally to both author and media works, but it also moved towards the continental European model by recognising moral rights for authors in literary, dramatic, musical and artistic works and fi lms. Question List and date the three UK copyright statutes of the 20th century, and give the dates when each of the Acts came into force. European developments 2.12 In the 1980s the European Community began to become more interested in copyright as an element in the creation of a single market. In 1991 there began a programme of Directives on copyright, designed to harmonise the national laws of the member states in certain key areas (computer programs, databases, the Internet) and to reduce the potential for differences to cause unjustified obstacles to the free movement of goods and services (rental rights, satellite broadcasting, copyright duration, resale rights in works of art). These Directives led to signifi- cant amendment of the CDPA 1988, generally by way of regulations. The process has made it clear that the initiative for copyright reform legislation taking effect in the UK now lies mainly in Brussels rather than Westminster. Question What topics have been dealt with in the EU’s copyright directives?  See further S Fitzpatrick, ‘Prospects of further copyright harmonisation’ EIPR 215; P Kamina, ‘Towards new forms of neighbouring rights within the EU’ in D Vaver and L Bently (eds), Intellectual Property in the New Millennium (2004). 42 PART II COPYRIGHT International developments 2.13 Looking even further afield than Europe, there were important developments in the interna- tional protection of copyright in the 1990s. The TRIPS Agreement 1994 contains a number of provisions on copyright, compliance with which is required of states wishing to be members of the World Trading Organisation (WTO). They have to: sign up to the Berne Convention, apart from its provisions on moral rights (Article 9(1)); protect computer programs and databases (Article 10); provide for rental rights in at least computer programs and films (Article 11); where the duration of copyright is calculated other than by reference to the life of a natural person, give a minimum term of 50 years calculated from, as the case may be, the date of authorised publication or of the work being made. Further, TRIPS makes explicit what had previously been an underlying principle of copyright law, namely, that it protects expression rather than ideas. The agreement also states that mem- ber states must ‘confi ne’ limitations or exceptions to copyright to ‘certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder’. The verb ‘confi ne’, not found in this context in the Berne Convention, is significant, hinting as it does at a hostile attitude towards copyright excep- tions and limitations. Finally, there is provision for the protection of performers, producers of sound recordings and broadcasting organisations. Question What does TRIPS add to the Berne and Rome Conventions? 2.14 In 1996 two further treaties supplementing the Berne Convention were agreed at the World Intellectual Property Organisation (WIPO). The WIPO Copyright Treaty (WCT) followed TRIPS in: providing that copyright protected only the form in which a work was expressed and not its underlying ideas (Article 2); requiring copyright protection for computer programs and databases (Articles 4 and 5); recognising rental right in relation to computer programs and films, and extending it to sound recordings (Article 7); adopting the language of ‘confining’ copyright exceptions and limitations (Article 10 WCT). 2.15 But where TRIPS was driven by concerns about international trade, the WCT was primarily concerned to respond to the problems created by the rise of the Internet, and hence it added rights to deal with distribution and public communication of works and to support the use of technological measures in the protection from unauthorised use of works recorded digitally. The other WIPO Treaty concluded in 1996 was for the further protection of performers and     TRIPS, Art 12. TRIPS, Art 9(2). TRIPS, Art 13. TRIPS, Art 14.  WCT, Arts 6, 8, 11, 12.  2 COPYRIGHT 1: HISTORY, RATIONALE AND SUBJECT MATTER 43 producers of sound recordings, significantly supplementing the provisions of the Rome Convention 1961 (see above, para 2.10) in this regard. Question What did WCT 1996 add to previous international agreements on copyright? What was its main policy goal? 2.16 All this international activity in the 1990s, in particular the WCT, had significant effects upon copyright law in the UK. While the 1988 Act had granted copyright to computer programs and databases, and had introduced rental rights, the EU’s need to respond to international develop- ments in these areas led to Directives which required significant amendments to the Act. The 1996 Treaty led to the introduction in 1997 of the fi rst draft of what eventually became, after much debate and controversy, the Copyright in the Information Society (InfoSoc) Directive 2001; and the implementation of this Directive in the UK made necessary major surgery on the 1988 Act by way of amending regulations which came into force on 31 October 2003. An appreciation of the international as well as the European background is therefore vital to full understanding of the present law in the UK. Key points on modern developments Copyright extended further, to photographs, fi lms, sound recordings, broadcasts and computer technology (software and databases) Copyright internationalised from the late 19th century on – today there is both a global and a European dimension to law-making, meaning that scope for purely national initiatives is limited There is a division apparent in most legal systems between the copyright treatment of ‘author works’ (covered by the Berne Convention) and ‘neighbouring’ or ‘media works’ (covered by the Rome Convention) – see further below, para 2.47 Rationale of copyright 2.17 Copyright fi rst developed in the early modern period as a response to the growth of the printing technology that facilitated the rapid multiplication and distribution of copies of written works. As shown by the history just described, change in the law has continued to be driven by tech- nological advance in the means by which works can be presented to the public at large, and protection has been extended and adapted to cover photography, cinematography, sound recording, broadcasting, cable transmissions, computer programs and, most recently, the Internet. The practical benefit of developing protections within the copyright mould is the applicability of the international regime under the Berne Convention and other treaties which ensure potentially worldwide protection for right holders.  Copyright and Related Rights Regulations 2003 (SI 2003/2498). 44 PART II COPYRIGHT 2.18 Despite the harmonising effects of the Berne Convention and other more recent international instruments, two distinct major conceptualisations of the functions of copyright can still be identified in the world’s legal systems. The Anglo-American or Common Law tradition empha- sises the economic role of copyright. Protection of copyright subject matter against unauthorised acts of exploitation enables right holders either to go to market themselves with a product based on the material, or to grant others, by outright transfer or, more typically, by licence, the right to do so for whatever seems an appropriate price. In the absence of copyright, which would enable free- riding by would-be users, it is unlikely that producers of the material would earn any return for their work, and without that incentive production would dry up or slacken significantly. Copyright is thus essentially a response to market failure, a means by which socially beneficial activities can be made financially worthwhile for those engaging in them. It rests ultimately upon the general or public interest in having works containing ideas, information, instruction and entertainment made available, and in rewarding those – publishers as well as the creators of the works – who perform this function in society in accordance with the public demand for their efforts. In contrast, the Continental European or Civil Law tradition sees copyright as springing from the personality rights of the individual creator of the subject matter. This perception is reflected in the name ‘author-law’ given to the topic by the various Continental systems – droit d’auteur, urheberrecht, and so on. Protection is given out of respect for the individual’s creative act of production, and extends beyond the merely economic to the so-called ‘moral rights’: the right to be identified as the creator of a work, the right to have the integrity of a work preserved, and others. Copyright is thus rooted in protection of the individual personality and interests of the author as expressed in his work. Companies and organisations as such cannot be creators. 2.19 The distinction between the two conceptualisations is sometimes summarised by saying that the Anglo-American tradition is centred on the entrepreneur, the Continental one on the author. It is reflected in various rules. For example: where the Anglo-American tradition gives copyright protection to media works such as sound recordings and broadcasts, the Continental tradition uses a separate group of ’neighbouring rights’ for these non-author works; where the Anglo-American tradition vests fi rst ownership of copyright in the employer of an author making a work in the course of employment, the Continental tradition gives it to the author; where the Anglo-American tradition operates a relatively low threshold of ‘originality’ for works to enjoy copyright, based mainly upon the author’s effort in not copying previous work, the Continental tradition tends to require a higher level of creativity before works will be protected. Question Explain with illustrative examples the differences between the Anglo-American and Continental European conceptions of what copyright is for.  For a comparative overview see G Davies, Copyright and the Public Interest (2nd edn, 2003), especially Chs 5–7. See also B Sherman and A Strowel (eds), Of Authors and Origins: Essays on Copyright Law (1994).  The economics of copyright are explored in eg W Landes and R Posner, The Economic Structure of Intellectual Property Law (2003), Chs 2–6, 8–10; R Towse (ed), Copyright and the Cultural Industries (2002); MA Einhorn, Media, Technology and Copyright: Integrating Law and Economics (2004). Many classic earlier studies are reprinted in R Towse and R Holzhauer (eds) The Economics of Intellectual Property (2002), vol 1 (Introduction and Copyright).  2 COPYRIGHT 1: HISTORY, RATIONALE AND SUBJECT MATTER 45 2.20 A further significant aspect of the distinctness of the two traditions is their stances in relation to the copyright limitations and exceptions allowed under the Berne Convention (see above, para 2.8); that is, those activities in which members of the public may engage with regard to copyright works without any authorisation from the right holders concerned. The Anglo-American tradition has traditionally allowed ‘fair dealing’ or ‘fair use’ for free in areas where it is thought that the public interest in the dissemination of information and ideas outweighs the interest of the right holder in earning reward from the exploitation of the work and the public interest in encouraging the author’s activities. In contrast, although the Continental traditions typically permit private copying, the author still receives remuneration by way of levies imposed upon the sale of the equipment that enables the copying to take place. There is generally a less expansive approach to excep- tions and limitations based upon wider interests than those of the author and the publisher. 2.21 The significance of such distinctions should not be over-emphasised. Continental copyright laws are also a basis for market operations with regard to ideas, information and entertain- ment, while, as we shall see (below, paras 3.4–3.30), the author plays a fundamental role in Anglo-American copyright laws, where moral rights are now also developing (see below, paras 3.31–3.46). Membership of the Berne Convention has embraced countries from both traditions for most of its history and since 1989 has included the USA. The convergence pro- moted by the Convention’s minimum standards has been further advanced by TRIPS and the WIPO Treaties of 1996, as well as the copyright Directives of the EU. Nonetheless the deep- seated differences in basic concepts have an effect upon international discussions, the out- comes of which occasionally reflect a somewhat uneasy compromise between the competing schools of thought. Key points on rationales Copyright has an economic function, enabling the production of information, ideas and entertainment to be rewarding for their authors and publishers Copyright also has a non-economic function, related in some legal systems to the idea of recognising creativity as an aspect of individual personality Copyright rewards individuals for their contributions; but this is offset by recognition of the interests – if not the rights – of the wider public in the free dissemination of material in certain circumstances Different legal systems give different emphases to these functions, making it sometimes difficult to achieve European or global harmonisation Subject matter 2.22 Under the Copyright Designs and Patents Act 1988, as now several times amended, the follow- ing subject matter is protected by copyright: original literary, dramatic, musical and artistic works (literary work including computer programs, databases and compilations other than databases); fi lms; sound recordings;  CDPA 1988, ss 1–8. 46 PART II COPYRIGHT broadcasts; the typographical arrangement of published editions of literary, dramatic or musical works. The Act thus meets the requirements of the Berne Convention (protection for literary and artis- tic works, to include every production in the literary, scientific and artistic domain, including fi lms – see above para 2.8), the Rome Convention as supplemented in 1996 (protection for sound recordings and broadcasts – see above, para 2.10) and the WCT (computer programs and databases – see above, para 2.14). A number of general points may be made covering all the categories listed, before turning to the detailed law of each one. Products may have more than one copyright 2.23 A very important point is that any product in the domain of the subject matter listed in the previous paragraph (above, para 2.22) is quite likely to have more than one copyright in it. Thus a book will have copyright as a literary work, but there will also be a copyright in its typographical arrangement, as would also be the case with printed dramatic scripts and musi- cal scores. A database has copyright in the selection and arrangement of its contents, but this does not affect any copyright those items of content may have in their own right. A sound recording of a piece of music will involve copyrights, not only in the sound recording as such, but also, separately, one in the music. And if the work recorded is a song, there will be a further copyright in the song lyrics. A broadcast of a fi lm or sound recording will have copyright as a broadcast, but this will leave unaffected the copyrights in the fi lm or sound recording. While the sound track accompanying a fi lm is treated as part of the fi lm for copyright purposes, a copyright may also subsist in the sound track as a sound recording. With the advent of digital technology, the multimedia product (eg a computer game, the Microsoft Encarta encyclopae- dia), which consists of digitised material combining audio, video, text and images still and moving played through a computer, and with which the user may interact, has become com- monplace, raising difficult questions about the mixture of copyrights which such a product may have. Question Explain what it means to say that a product may have more than one copyright, and give some examples. Need for a work 2.24 Copyright protects works. To paraphrase TRIPS and the WCT (see above, paras 2.14–2.15), the concern is, not with ideas as such, but with their expression. There can be difficult issues,  1988 Act, s 3A.  Note how CDPA 1988, s 3(1) defi nes ‘musical work’ as excluding any words intended to be spoken or sung with the  music. CDPA 1988, s 5B(2), (5).  See I Stamatoudi, Copyright and Multimedia Works: A Comparative Analysis (2002); T Aplin, Copyright Law in the Digital Society (2005).  The classic discussion of this distinction is the US case of Baker v Selden 101 US 99 (1879). See also University of London Press v University Tutorial Press 2 Ch 601 and J Pila, ‘An intentional view of the copyright work’ (2008) 71 MLR 535.  2 COPYRIGHT 1: HISTORY, RATIONALE AND SUBJECT MATTER 47 however, in knowing when an expression, in whatever medium, reaches the level of a work capable of copyright protection. In a case about the copyright in law reports, Canadian judges argued that a work is something which generally is whole, complete or able to stand on its own, and that ‘if a production is dependent upon surrounding materials such that it is rendered meaningless or its utility largely disappears when taken apart from the context in which it is disseminated, then that component will instead be merely a part of a work.’ With this approach, they were nonetheless able to conclude that component parts of a law report, such as its key words and headnote, were, like the full report itself, works that attracted copyright. The idea that, when an expression is ‘able to stand on its own’ there is a work, pre- sumably covers the many well-known examples of incomplete productions such as Schubert’s Unfi nished Symphony and Samuel Taylor Coleridge’s poem ‘Kubla Khan’, the composition of which was famously interrupted by a person on business from Porlock, with the consequence that the poet’s inspiration was lost and the work never completed. Sweeney v Macmillan Publishers Ltd RPC 35 This complex case concerned the copyright in James Joyce’s novel Ulysses, fi rst published in 1922, and the publication of a new edition of that work in 1997, edited by DR. The novel was written over a long period, and considerably revised and rewritten in the process. Joyce’s manu- scripts and other preparatory material, such as corrected and amended typescripts and proofs, continued to exist. As originally published, the book contained many typographical errors. Some of these were corrected in later editions, which, however, also introduced new ones. Facsimiles of the Joyce manuscripts and other materials were published from 1975 on. The 1997 edition was based on a collation of all this material with the published editions, and sought the publication of the text intended by Joyce. The Joyce estate, which owned the copy- right in Ulysses and the preparatory material, claimed infringement of copyright by the new edition. It was held that copyright subsisted in each chapter and perhaps each page or even sentence of Ulysses as it was written; but as each passage was incorporated into the larger work, copyright should be regarded as residing in that rather than in its constituent parts. Copyright thus subsisted in Joyce’s fair copy manuscript. Copyright also subsisted in earlier drafts of the work and in successive typescripts and proofs. DR had copied parts of this material, and its copyright had been infringed. 2.25 Nor is there a requirement of minimum length or substance to constitute a work: musical copy- right was found to exist in the four notes constituting the Channel 4 television theme, for example, although on the other hand single words, titles, the catch-phrases of a TV personal- ity, headings on computer menus, and individual command names in a computer program have been held to be too insubstantial to be literary works.  CCH Canadian Ltd v Law Society of Upper Canada 4 FC 213 (CA) at 260 (para 66) per Linden JA. See also ibid at 308 (paras 197–9) per Rothstein JA. The court’s conclusion was upheld by the Supreme Court of Canada, which did not fi nd it necessary, however, to dwell on the meaning of ‘work’ in this context: see Law Society of Upper Canada v CCH Canadian Ltd 1 SCR 339.  Contrast Robin Ray v Classic FM plc FSR 622, where a catalogue was subsumed into a database, but Lightman J rejected an argument that as a result the copyright of the fi rst work was also subsumed into that of the second.  Lawton v Lord David Dundas, The Times, 13 June 1985. Another example might be the Intel Inside theme.  Navitaire Inc v EasyJet Airline Co Ltd RPC 3. 48 PART II COPYRIGHT Case C 5/08 Infopaq International A/S v Danske Dagblades Forening ECDR 16 For the facts of this case, which related to an electronic news cuttings service, see below, para 4.15. The European Court of Justice stated that ‘words, considered in isolation, are not as such an intellectual creation of the author who employs them’ (para 45); but ‘ the possibility may not be ruled out that certain isolated sentences, or even certain parts of sentences... may be suitable for conveying to the reader the originality of a publication such as a newspaper article, by communicating to that reader an element which is, in itself, the expression of the intellectual creation of the author of that article’ (para 47). Discussion point For answer guidance visit www.oxfordtextbooks.co.uk/orc/macqueen2e/ Can ‘4 Minutes 33 Seconds’, by the composer John Cage, be held to be a work? In this composition, an orchestra is on stage at the outset, but does not start to play any of its instruments. Instead, the members of the orchestra silently sit on the platform for a period of just over four and a half minutes. If it is a work, does the fact that its author is generally regarded as a composer of music make the work musical? Are there any other possibilities? See further Cheng Lim Saw, ‘Protecting the sound of silence in 4’33’: a timely revisit of basic principles in copyright law’ 12 EIPR 467. 2.26 While the general principle, that copyright protects the expression of a work rather than its ideas, is central, it is also important not to be misled as to its scope. In considering the concept, bear in mind what constitutes infringement of copyright, for example (see further below para 4.10 ff). Analysis of this part of the law shows it to be misleading to say that copyright protects no more than the form of expression. Otherwise it would not be possible for the author of a book to be able to control the exploitation of his work in other media such as film and broadcasting. Such adaptations will almost certainly adopt a distinct mode of expression, yet must be authorised by the author to be legitimate. The author of a two-dimensional artistic work may challenge a three-dimensional reproduction, and vice-versa. Editors of anthologies and collections of material produced by others have a copyright, not so much in the words gathered together by them, as in the arrangement and ordering of the material. Of course this is a form of expression, but it shows that we should not take ‘form of expression’ in any narrow sense coloured by the idea that copyright prevents only slavish imitation. Thus a particular interpretation of historical events has been held capable of copyright protection. The best view seems to be that there is no copyright in ideas while they remain just that, but that once the ideas have been expressed in some form it would be wrong to assume that a different expres- sion of the same ideas must necessarily be a new work with its own copyright, or cannot be an infringement of the earlier work.   CDPA 1988, ss 16(1)(e) and 21. CDPA 1988, s 17(3). See further below, para 4.26.  Macmillan v Suresh Chunder Deb (1890) ILR 17 Calc 951; Macmillan v Cooper (1923) 93 LJPC 113. Note also Berne Convention, Art 2(5): ‘Collections of literary or artistic works such as encyclopaedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections.’  Harman Pictures NV v Osborne 1 WLR 723 (Charge of the Light Brigade); see further below, para 4.32.  2 COPYRIGHT 1: HISTORY, RATIONALE AND SUBJECT MATTER 49 Question Give some examples to illustrate the difference between protectable expression and unprotectable ideas. 2.27 Lord Hoffmann said the following on this topic in Designers Guild Ltd v Russell Williams (Textiles) Ltd: ‘Plainly there can be no copyright in an idea which is merely in the head, which has not been expressed in copyrightable form, as a literary, dramatic, musical or artistic work, but the distinction between ideas and expression cannot mean anything so trivial as that. On the other hand, every element in the expression of an artistic work (unless it got there by accident or compulsion) is the expression of an idea on the part of the author. It represents her choice to paint stripes rather than polka dots, flowers rather than tadpoles, use one colour and brush technique rather than another, and so on. The expression of these ideas is protected, both as a cumulative whole and also to the extent to which they form a ‘substantial part’ of the work. [para 24]... My Lords, if one examines the cases in which the distinction between ideas and the expression of ideas has been given effect, I think it will be found that they support two quite distinct propositions. The first is that a copyright work may express certain ideas which are not protected because they have no connection with the literary, dramatic, musical or artistic nature of the work. It is on this ground that, for example, a literary work which describes a system or invention does not entitle the author to claim protection for his system or invention as such. The same is true of an inventive concept expressed in an artistic work. However striking or original it may be, others are (in the absence of patent protection) free to express it in works of their own: see Kleeneze Ltd v DRG (UK) Ltd FSR 399. The other proposition is that certain ideas expressed by a copyright work may not be protected because, although they are ideas of a literary, dramatic or artistic nature they are not original, or so commonplace as not to form a substantial part of the work. Kenrick & Co v Lawrence & Co (1890) 25 QBD 99 is a well known exam- ple. It is on this ground that the mere notion of combining stripes and flowers would not have amounted to a substantial part of the plaintiff’s work. At that level of abstraction, the idea, though expressed in the design, would not have represented sufficient of the author’s skill and labour as to attract copyright protection [para 25]’. 2.28 Lord Hoffmann here connects the translation of unprotectable idea into copyright expression with the degree of originality, skill and labour shown by the author, and more will be said of that below (at para 2.39). Clearly each case will turn on its own facts in this area, although it can perhaps be said that the higher the level of generality, or abstraction, of the idea of a work, the less likely it is to be protected as such. Interlego AG v Tyco Industries Inc AC 217 (PC) Artistic copyright was claimed in engineering drawings modifying an earlier design by the same author (the Lego company). The visual impression from the two sets of drawings was much the same; the distinction lay mainly in the technical information as to dimensions and tolerances. It was held that the later drawings were not new works for the purposes of artistic copyright: the new ideas in the second drawings were not artistic, but literary. ‘Nobody draws a tolerance, nor can it be reproduced three-dimensionally’ (per Lord Oliver at p 258). This was  FSR 11, paras 24, 25.  See further M Spence and T Endicott, ‘Vagueness in the scope of copyright’ (2005) 121 LQR 657.  Plix Products v Winstone FSR 63 per Prichard J at 92–4 (aff ’d FSR 608); Nova Productions Ltd v Mazooma Games Ltd RPC 25 (CA), paras 31–55 (Jacob LJ). 50 PART II COPYRIGHT important because literary copyright knows no equivalent to artistic copyright’s concept of three-dimensional infringement (see main text above, para 2.26). 2.29 Another celebrated dictum in this area is as follows: ‘You do not infringe copyright in a recipe by making a cake.’ (J & S Davis (Holdings) Ltd v Wright Health Group RPC 403 per Whitford J at p 414). Key points so far on subject matter Copyright protects expressions rather than ideas and information as such Before copyright can arise, there must be a work of a relevant kind: literary, dramatic, musical, artistic, fi lm, sound recording, broadcast, published edition Fixation 2.30 One way of establishing whether or not there is a work is to find a recording, or fi xation, of the expression which constitutes the work. The Berne Convention says that copyright subsists in literary and artistic works ‘whatever may be the mode or form of its expression’ (Article 2(1)), but then allows national law ‘to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form’ (Article 2(2)). Note this means that member states have a choice as to whether to require fixation. In the UK, the CDPA 1988 provides that copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded in writing or otherwise (s 3(2)). ‘Writing’ includes any form of notation or code, whether by hand or otherwise, and regardless of the method by which, or medium in or on which, it is recorded (s 178). No definition of otherwise! 2.31 The UK thus opts for an explicit requirement of fi xation before any literary, dramatic or musical work may enjoy copyright protection. The main form of fi xation mentioned in the 1988 Act is writing; but the defi nition quoted above is very broad and obviously capable of covering, for example, the use of shorthand.  In any event, writing is not the only possible method of record- ing literary, dramatic and musical works, nor does the 1988 Act so limit its requirement. The electronic storage of work in digital form on discs and in computer memories is well known. Literary work means work which is spoken and sung as well as written, while music and drama can be created in improvised performances as well as based upon scores and scripts. So far as concerns speech, singing and music, the tape and cassette recorder have been familiar ways of making recordings for a long time, and film, video and digital recording, including voice recog- nition software, can now be added to the list of methods of fi xation sufficient to confer copy- right on the work recorded. A further possibility might arise through lip reading what a speaker is saying on a fi lm without a sound track, as for example with closed circuit TV cameras.   See Pitman v Hine (1884) 1 TLR 82. CDPA, s 3(1).  2 COPYRIGHT 1: HISTORY, RATIONALE AND SUBJECT MATTER 51 2.32 The requirement of fi xation still means, however, that there is no copyright in the unrecorded spoken word, ad lib stage performance, or aleatory musical composition. Since the copyright does not come into existence unless and until the recording is made, copyright confers no right on a speaker to stop people making recordings of what is said. If there is any right at all to pre- vent recording of one’s words, it must be sought in other branches of the law. However, the 1988 Act expressly provides that, for the purposes of conferring copyright on a work by record- ing it, it is immaterial whether the work is recorded by or with the permission of the author, ie the speaker.  Thus, while I may eavesdrop on and record other people’s telephone conversa- tions without infringing copyright in what they say, as soon as the recording is made, the words have copyright and the subsequent reproduction and publication of these words elsewhere may be controlled by the speaker.  Question What will constitute fi xation of a work so that it can enjoy copyright? Norowzian v Arks Ltd (No 2) FSR 79; aff’d FSR 363 N produced a fi lm called Joy. It showed a man dancing to music. Use of the editing technique known as ‘jump cutting’ made it appear that the man was making sudden changes of position not possible as successive movements in reality. An issue in the case was whether the film was a recording of a dramatic work. Rattee J held not, in the following passage later approved by the Court of Appeal: ‘Joy, unlike some films, is not a recording of a dramatic work, because, as a result of the drastic editing process adopted by Mr Norowzian, it is not a recording of anything that was, or could be, performed or danced by anyone... It may well be, in the case of Joy, that the original unedited film of the actor’s performance, what I believe are called “the rushes”, was a recording of a dramatic work, but Mr Norowzian’s claim is not in respect of copyright in them or their subject matter. His claim is in respect of the finished film.’ ( FSR at pp 87–88, approved FSR at p 367). Discussion point For answer guidance visit www.oxfordtextbooks.co.uk/orc/macqueen2e/ How exact or good must a recording be to confer copyright on unscripted speech (such as a lecture), drama or music? Do a student’s non-verbatim lecture notes make the lecturer’s extempore words protectable? Or a bootlegger’s poor-quality and unauthorised recording of a live ‘jamming’ session by a musician? 2.33 There is no explicit requirement of fi xation in the 1988 Act with regard to artistic works, but it seems clear from the definitions within the category (see further below paras 2.69–2.86) that copyright will not exist until the work is recorded in either tangible or visible form. Similarly  For example, the Regulation of Investigatory Powers Act 2000 or breach of confidence.  CDPA 1988, s 3(3).  See for further discussion HL MacQueen, ‘ “My tongue is mine ain”: copyright, the spoken word and privacy’ (2005) 68 MLR 349.  See further on the Norowzian case, A Barron, ‘The legal properties of fi lm’ (2004) 67 MLR 177. 52 PART II COPYRIGHT fi lms and sound recordings must both be ‘recordings’ on some medium from which sounds or moving images, as the case may be, can be reproduced.  Broadcasts, however, are electronic transmissions of visual images, sounds or other information which need only be visible and/or audible to their intended audience. Question 1 What is the significance of having an explicit fi xation requirement for literary, dramatic and musical works, but not for the other categories of copyright works? Question 2 Is it possible to have copyright works which have not been ‘fi xed’ in the sense just discussed? Originality 2.34 Another important test of whether or not a work protected by copyright has been created is the requirement of originality. The 1988 Act says that to have copyright, literary, dramatic, musical and artistic works must all be original.  There is no express requirement of originality as such in relation to fi lms, sound recordings, broadcasts, and typographical arrangements of pub- lished editions, but copyright does not subsist in a sound recording or fi lm or typographical arrangement of a published edition which is, or to the extent that it is, respectively, a copy taken from a previous sound recording or film, or reproduces the typographical arrangement of a previous edition.  This certainly also captures at least one aspect of ‘originality’ in the context of literary, dramatic, musical and artistic works, namely, that to have copyright they must not be copies of preceding works. The underlying idea is still best expressed in the classic words of Peterson J: ‘The word “original” does not in this connection mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought.... The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work – that it should originate from the author.’ Question Which kinds of work must be ‘original’ to enjoy copyright protection? 2.35 Originality, in other words, is not a high standard for entry into copyright protection. It imposes no requirement of aesthetic or intellectual quality: even the most mundane of works, rehears- ing old ideas and information, has copyright if expressed in the author’s own way. This is reinforced by other provisions of the copyright legislation: for example, that certain artistic works are protected ‘irrespective of artistic quality’, or that tables and compilations are to be    CDPA, ss 5A and 5B. CDPA 1988, s 1(1)(a). CDPA 1988, s 1(1)(b).  CDPA 1988, ss 5A(2), 5B(5), 8(2). For broadcasts, see below, para 2.46.  University of London Press v University Tutorial Press 2 Ch 601 at 608.  2 COPYRIGHT 1: HISTORY, RATIONALE AND SUBJECT MATTER 53 counted as literary works. Another theme found in discussions of originality is the test of the effort, skill and labour which the author has invested in the work. Where this test is satisfied, there is likely to be a copyright in the result. Finally, there is the point succinctly made by Peterson J himself: ‘What is worth copying is worth protecting’. This is not in itself a test of the originality of the work that has been copied, but if someone has copied another’s work, that tends to suggest the value of the latter and its possible need for copyright protection to ensure that the return goes to its author. Question What are the main elements of originality for copyright purposes? 2.36 All these themes require some qualification, however. While what is worth copying is worth protecting, it is not always clear that copyright is the appropriate form of protection. With regard to ideas, ‘as the late Professor Joad used to observe, it all depends on what you mean by ideas’. Although copyright may not specify intellectual or aesthetic qualities as essential for its protec- tion, nonetheless works must fall into the designated categories under the legislation, the iden- tification of which may involve assessment of just such qualities. Similarly, the mere expenditure of effort, skill and labour may not be sufficient to give rise to copyright if the end result is not a work within the statutory categories. The appropriate conclusion seems to be that originality is not definable in terms of a single, simple test but should rather be considered as a combination of factors, the relative importance of which may vary according to the nature of the case. Estate of Willem Endstra v New Amsterdam, May 30, 2008 (HR (NL))55 In this case the Netherlands Supreme Court considered whether recorded interviews between police officers and a witness were sufficiently original to qualify as copyright works. It was alleged that the asserted copyright was infringed when transcripts of the interview were pub- lished in a book after the witness was murdered. The case was brought by the heirs to the estate of the deceased witness. The Supreme Court held that originality required two separate things, namely (a) a work had to have its own character; and (b) bear the stamp of the author. The fi rst requirement meant that a work should not be derived from another work. The second meant that the work must have come from a creative human effort with creative choices, being a prod- uct of the human mind. This should be judged with reference to the work itself, rather than the intentions of the author. The court also noted that the work does not need to have the character of an intended coherent creation, thus covering accidental photographs or subconscious scrib- bles on a pad of paper.   CDPA 1988, ss 3(1)(a) and 4(1)(a). University of London Press, above n 49, at p 610.  Lord Hailsham in LB Plastics at p 629. Professor Cyril Joad (1891–1953) was a professor of philosophy at Birkbeck College London, who became famous through appearances on a BBC show, The Brains Trust, and the catch-phrase with which he prefaced the answer to any question, ‘Well, it depends what you mean by....’ This is also quite a useful phrase for a lawyer’s conversational armoury.  For a discussion of the standards of originality for copyright protection, and whether all protected works have elements in common or are different in nature, see A Waisman, ‘Revisiting originality’ EIPR 370.  See EIPR N73–74. 54 PART II COPYRIGHT Question How would a UK court have decided this case? No requirement of quality or merit 2.37 It is easy to misunderstand the absence of any requirement that a work possess intellectual or aesthetic merit. What is clear is that, in determining whether or not a work has copyright, the court is not called upon to judge the work on standards of good or bad in its field. This would be much too subjective to be acceptable. On the other hand, the court must decide whether a work falls into one or other of the categories found in the copyright legislation, and this is bound to involve some effort to judge what objective qualities constitute a work of this kind. George Hensher Ltd v Restawile Upholstery (Lancashire) Ltd AC 64 An example is the difficulty in which the House of Lords found itself in this case where it had to determine whether a rough prototype for a suite of furniture was a work of artistic craftsman- ship (see further below paras 2.83–2.85). This required an understanding of how such a work might be identified – how to distinguish it from a sculpture, for example – which called for some sort of aesthetic judgement. It was held that the prototype was not a work of artistic craftsmanship. Green v Broadcasting Corp of New Zealand 2 All ER 1056 (PC) Similarly in this case (see further para 2.66 below) the Privy Council had to grapple with the question of whether a few catch phrases used constantly by the host of a television talent show (‘Opportunity Knocks’) constituted a dramatic work. The phrases included: ‘For [competitor’s name], opportunity knocks!’; ‘This is your show, folks, and I do mean you’; and ‘Make up your mind time’. The show also used a device called the ‘clapometer’ to measure the levels of applause attracted by each act. It was held that this did not amount to a dramatic work. 2.38 In both these cases, the works in question were excluded from copyright, not on the grounds of lack of merit, but on the grounds that they lacked the intellectual qualities of the categories under which copyright was claimed. Similarly, the use of unimaginative titles –‘The Lawyer’s Diary’ for a diary for lawyers, for example – or of commonplace phrases in advertising will not give rise to copyright in those collections of words. Here there is some overlap with the require- ment that effort, skill and labour should be employed by the author to gain copyright: is the work one which needed such qualities to be brought into existence? Effort, skill and labour 2.39 The expenditure of independent effort, skill and labour by the author is often seen as the essence of originality in the field of copyright. It has been much stressed in justifying the copy- right which may be held in a compilation, particularly where it is of information or material which was available before the publication of the work. It is the skill and labour of the compiler  Rose v Information Services Ltd FSR 254; Kirk v J & R Fleming [1928–35] MCC 44; Sinanide v La Maison Kosmeo (1928) 139 LT 365.  2 COPYRIGHT 1: HISTORY, RATIONALE AND SUBJECT MATTER 55 in arranging the material which receives protection. If this has occurred, it is unlikely that the resulting work will be merely derivative. In Cramp v Smythson, on the other hand, it was held that tables and information printed on part of a pocket diary had no copyright because their selection and arrangement had not required the exercise of any judgement or taste by the com- piler. Behind all this lies the idea that simple copying does not involve the requisite degree of activity to justify the award of copyright. This is so even though copying may require at least effort and labour, and often skill as well, as Lord Oliver pointed out in Interlego AG v Tyco Industries Inc: ‘Take the simplest case of artistic copyright, a painting or a photograph. It takes great skill, judgment and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no one would reasonably contend that the copy painting or enlargement was an “original” artistic work in which the copier is entitled to claim copyright. Skill, labour or judgment merely in the process of copying cannot confer originality... A well-executed tracing is the result of much labour and skill but remains what it is, a tracing.’ Question Why are effort, skill and labour not necessarily enough for originality? 2.40 In the Interlego case the subject of the copyright claim was the design of Lego bricks which included modifications of some technical importance in relation to earlier designs but where the visual impression was much the same. Skill and labour had been expended on the technical changes but these did not change the artistic or visual character of the drawings. Accordingly the later drawings were not original. Another case in which it was accepted that much effort, skill, labour and investment of money had gone into the creation of the work in question, yet its author was not entitled to a copyright, is Exxon Corporation v Exxon Insurance. The claim was to literary copyright in the single word ‘Exxon’. Here the failure was to achieve a literary work, rather than originality as such, but the point to be stressed in the context of the present discus- sion is that effort, skill and labour by itself is not necessarily enough for the result to have copyright. It would seem that, while the presence of effort, skill and labour will often be very important, it should not be adopted as a universal test of originality, and that it is also necessary to consider exactly what type of skill and labour has been involved in relation to the nature of the copyright claimed. Derivative works 2.41 The concept of originality may be further qualified by considering the many examples of works (derivative works) drawing on, even copying from, other works, which nonetheless can have their own copyright. The obvious examples in the material already discussed in this section are compilations and anthologies. Other straightforward instances in the literary world would be books and articles quoting or summarising source material, as for example in a legal textbook.  Macmillan & Co Ltd v K & J Cooper (1923) 93 LJPC 113.  AC 329. Compare the decision of the US Supreme Court in Feist Publications Inc v Rural Telephone Service Co Inc 499 US 340 (1991), where it was held that there was no copyright in a telephone directory organised by alphabetical list-  ing of surnames. But see further below, paras 7.24–31. AC at 262–3.   Ch 119 (CA). See further below, para 2.51 ff.  Interlego AG v Tyco Industries Inc AC 217 at 262. 56 PART II COPYRIGHT Originality is not simply a matter of not copying, therefore. In all the examples given, it is clear that while the author is copying, he is also exercising independent skill and labour, both in the selection of sources and quotations, and in the choice of words in which to express the material, so that the work is not entirely derivative. Less straightforward may be the cases where a new edition of a text is published. If a new copyright is to be created, the alterations to the text must be extensive and substantial. If a text is printed unaltered from a previous edition and the edito- rial matter consists of annotations or appendices, then again, so long as these have independent value, there will be a new copyright, independent of that of the text, if any. Black v Murray (1870) 9 M 341 B had published an edition of the poetry of Sir Walter Scott which had gone out of copyright. B published a second edition of the texts together with amendments, alterations and editorial notes. M published what purported to be a reprint of B’s first edition, but which included mate- rial taken from the second edition as well. It was held that the changes made in B’s second edi- tion had their own copyright, but that M’s takings were substantial, and infringed copyright, only in relation to the editorial notes. 2.42 Translations, adaptations and dramatisations will attract their own copyright, even though man- ifestly derivative, as do arrangements, orchestrations and transcriptions of musical works. In the computer world, many programs are developed from existing ones, either by the creators them- selves or by competitors engaging in ‘reverse engineering’, but it seems to be accepted that even when the end result is very close to the original work a new copyright has come into existence. Walter v Lane AC 539 The House of Lords allowed The Times newspaper copyright in its reporter’s verbatim transcript of a speech by Lord Rosebery, a leading politician of the day. Clearly the reporter’s work was derivative, but its creation had involved the expenditure of individual skill and effort. Since the case was decided before originality became a statutory requirement, it has been questioned whether the copyright would be accepted now, as otherwise an audio typist would acquire rights in dictated material. However, the current judicial view appears to favour the reporter’s copyright established in Walter v Lane. Question Is there a relevant difference between a typist taking dictation or typing from material recorded on a dictaphone, on the one hand, and a transcriber such as the journalist in Walter v Lane?  Black v Murray (1870) 9 M 341 (editorial material in the works of Sir Walter Scott).  See also Berne Convention, Art 2(3): ‘Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work.’ And see the UNESCO Nairobi Recommendation: the Translator’s Charter (1994), accessible at http://www.fit-ift.org/down-  load/referencebil.pdf. Roberton v Lewis RPC 169 per Cross J at pp 174–5.  See Express Newspapers plc v News (UK) Ltd FSR 359 per Sir Nicolas Browne-Wilkinson V-C at pp 365–6, prefer- ring the views expressed in Sands McDougall Pty Ltd v Robinson (1917) 23 CLR 49 to those of Cross J. See further MacQueen, (2005) 68 MLR 349, at pp 369–73.  2 COPYRIGHT 1: HISTORY, RATIONALE AND SUBJECT MATTER 57 Eisenman v Qimron (2000) 54(3) PD 817; ECDR 6 (Supreme Court of Israel) Q deciphered and put together a text from 67 fragments of an ancient Dead Sea scroll known as 4QMMT. Publication was planned but not yet accomplished when S published in the archaeol- ogy journal he edited a copy of the text as edited by Q. S had been critical of the long delays in publishing the Dead Sea scrolls, and this publication formed part of his campaign. Q sued for infringement of his copyright. The defendant contended that Q’s editorial labours amounted to no more than an attempt to reproduce as faithfully as possible what had been originated by the scribe who wrote 4QMMT, and therefore lacked the originality required for copyright. It was held that Q’s work had copyright and that S had infringed. Q’s work was original in the sense that he ‘used his knowledge, expertise and imagination, exercised judgement and chose between different alternatives’. Sawkins v Hyperion Records Ltd RPC 32 (CA) S edited the work of a late 17th/early 18th-centuries composer, L. The editing involved the insertion of notes missing or inaccurately recorded in L’s original scores, the addition or cor- rection of flourishes and other performing indications, and the supply of figuring which, in relation to the bass line of baroque works, was the foundation of the work. The expert evi- dence was that without this last the works could not have been performed in a modern record- ing session using the original sources. HR produced CDs of the music using S’s editions but without a licence. It was held that HR had infringed S’s copyright in the work. S’s work was original, involving skill and labour over a considerable period of time, going beyond mere transcription. Discussion point For answer guidance visit www.oxfordtextbooks.co.uk/orc/macqueen2e/ Consider whether Walter v Lane, Interlego v Tyco and Sawkins v Hyperion Records are correctly decided on the originality point. See further J Pila, ‘An intentional view of the copyright work’ (2008) 71 MLR 535 and NP Gravells, ‘Authorship and originality: the persistent influ- ence of Walter v Lane’ IPQ 267. 2.43 In the Interlego case, Lord Oliver recognised that a derivative artistic work might be original where there was ‘some element of material alteration or embellishment’ in it by comparison with the previous work. Baumann v Fussell RPC 485 (CA) A photograph of two cocks fighting each other was used as the basis of a painting. The composi- tion of the subject matter was followed closely but the painter employed different colouring to heighten the dramatic effect of the representation. It was held that there was no infringement. It seems likely, therefore, that the painting would have been held to be original and so qualified for its own copyright.  For an English translation of the judgments in this case and discussion of its content, see TH Lim, HL MacQueen and CM Carmichael (eds), On Scrolls, Artefacts and Intellectual Property (2001). The extensive discussion of this case is critically reviewed in HL MacQueen, ‘The legal defi nition of authorship and the scrolls’, in JJ Collins and TH Lim (eds), Oxford  Handbook of the Dead Sea Scrolls (2010). AC 217 at p 263. 58 PART II COPYRIGHT Contrast the New York case of: Bridgeman Art Library Ltd v Corel Corp 25 Fed Supp 421 (1999) Kaplan J found that he was obliged to apply UK law in a case where the question was whether photographs of public domain works of art were the subject of copyright so that their unauthor- ised digitisation and inclusion in the defendants’ CD-ROMs was infringement. It was held that, since the photographs aspired to create as accurate as possible a copy of the subject of the pho- tograph, their work lacked originality under UK law and could not be protected. Discussion point For answer guidance visit www.oxfordtextbooks.co.uk/orc/macqueen2e/ Is this decision a correct application of the concept of originality? Compare with Eisenman v Qimron, described above (para 2.42). See further K Garnett ‘Copyright in photographs’ EIPR 229; R Deazley, ‘Photographing paintings in the public domain: a response to Garnett’ EIPR 229; S Stokes, ‘Photographing paintings in the public domain: a response to Garnett’ EIPR 354; and R Arnold, ‘Copyright in photographs: a case for reform’ EIPR 303. Consider further: Antiquesportfolio.com plc v Rodney Fitch & Co Ltd FSR 345 It was held that a photograph of a single static item was an original artistic work, because it could be said that the positioning of the object, the angle at which it was taken, the lighting and the focus were all matters of personal judgement, albeit in many cases at a very basic level. Discussion point For answer guidance visit www.oxfordtextbooks.co.uk/orc/macqueen2e/ Do the auto-focus, portrait, landscape and action shot functions in a digital camera mean that there is insufficient input from the user of the camera to make his or her photographs with the camera original for copyright purposes? Independent but similar works 2.44 As indicated by the dictum of Peterson J quoted at the outset of this section (above, para 2.34), ‘the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work’. Thus, if two works are similar, it does not fol- low that one cannot be original in the sense of copyright law. Unless there is derivation of one from another, a link between them beyond the similarity, the question cannot arise. The point is perhaps most significant in the field of artistic works, particularly paintings and pho- tographs, where certain subjects and themes (for example, representations of well-known  University of London Press v University Tutorial Press 2 Ch 601 at 608.  2 COPYRIGHT 1: HISTORY, RATIONALE AND SUBJECT MATTER 59 scenes, landmarks and buildings) are or become well-worn. Probably there is often some indirect derivation – influence may be a better word – in relation to earlier works in such cases, but it may well be difficult if not impossible to establish the absolute originality of a particular view, even in the limited copyright sense of the originator as the person who fi rst gave expression to it. Question List again all the elements to be considered in dealing with issues about originality. Which do you consider the most significant? Key points on originality Literary, dramatic, musical and artistic works must be ‘original’ to attract copyright Originality is not a high standard, or a requirement of quality/merit/creativity/ novelty Although individual facts and circumstances are always significant, the following factors are often cumulatively of use in assessing originality:– work not copied– work is product of author’s own effort, skill and labour But derivative works may nevertheless be original Originality in sound recordings, films, published editions 2.45 With regard to sound recordings, fi lms, and the typographical arrangements of published editions, there is no express requirement of originality; but no copyright arises in such a work to the extent that it reproduces another work in the same category. This is regardless of whether or not the earlier work had, or is still in, copyright. Thus a photographic reprint of an out-of-copyright book does not preclude others from making another edition of the same work using the same technique, although any additional editorial matter in the fi rst work would have its own copyright in accordance with Black v Murray. The matter is becoming ever more important in the fi lm and recording industries, where digital technology has made it possible to re-record old material with greatly enhanced quality of sound and visual repro- duction, with the possibility of embellishments such as colorisation of black-and-white fi lms, or the stripping out of production effects in the original which are no longer wanted. Although such re-recordings are derivative works, it may well be that the further technologi- cal input will be enough to mean that the new version is not merely a copy of the old but gains a new copyright.  (1870) 9 M 341 (discussed above, para 2.41).  See for examples the colorisation of John Huston’s fi lm, The Maltese Falcon and, more recently, the removal from a 2003 re-release of The Beatles’ fi nal album, Let It Be, of effects added in the original by the producer Phil Spector. 60 PART II COPYRIGHT Exercise Through use of a ‘sampler’, a digital recorder converts small samples of sound from other records into digits and stores them in microchips. These samples are then capable of electronic manipulation – for example, by slowing down or speeding up – and the results are then mixed to produce a new record. In effect, it is equivalent to a compilation of extracts from previous records. Quite apart from the question of the extent to which such activities infringe the copyrights in the original recordings, is the collection of samples itself a subject of copyright? (See further LC Bently, ‘Sampling and copyright: is the law on the right track?’ JBL 113 and 405.) Broadcasts 2.46 The position of broadcasts with regard to requirements of originality is different from that of sound recordings, fi lms and typographical arrangements. The 1988 Act provides that copyright does not subsist in a broadcast which infringes, or to the extent that it infringes, the copyright in another broadcast. The background to this is that merely broadcasting a programme which has already been put out has the effect of creating a new copyright. This is clear from the provi- sions of what is now s 14(5) of the 1988 Act, which states that ‘copyright in a repeat broadcast expires at the same time as the copyright in the original broadcast’. As the sub-section goes on to say, however, ‘accordingly no copyright arises in respect of a repeat broadcast which is broad- cast after the expiry of the copyright in the original broadcast’. It is also clear from this that only unauthorised repeats infringe the original copyright and are therefore unable to claim copy- right themselves. This seems obvious, but it makes an important contrast with the forms of work discussed in the previous paragraph (above para 2.45), where no copy, authorised or unauthorised, can bring a new copyright into existence. Author works and media works 2.47 For convenience, in the remainder of this chapter, literary, dramatic, musical and artistic works and fi lms will be collectively referred to as ‘author works’, and the other categories will be grouped as ‘media works’. The distinction has already been discussed in so far as it can be derived from the international structure of copyright (see above, para 2.16): the Berne Convention for liter- ary and artistic productions, broadly conceived (see above, para 2.8), and the Rome Convention for sound recordings and broadcasts (see above, para 2.10). The distinction rests on a number of points, of which the most important conceptually is the idea that the second group relies essentially on the operation of machinery and technology where the first depends upon one or more individuals as creator. The nature of authorship, as understood in the law of copyright, is dealt with further below (para 3.4–3.30). Another element may be that in author works content is protected, whereas with media works it is the medium itself, or the signal, that is protected rather than the material embodied within it. So a song or music have author copyright, while the sound recording and broadcast containing them are purely media ones. Note also that the distinction has some difficulties in dealing with photographs and fi lms, although in the law  CDPA 1988, s 6(6).  2 COPYRIGHT 1: HISTORY, RATIONALE AND SUBJECT MATTER 61 and in this book both are included in the author rather than the media work category. The point here is that anyone can get a result by wielding a camera, but does that make the person an author with protection for the content of the result? 2.48 The distinction between author and media works has practical consequences in differences in the rules applying to the two groups. The fi rst owner of the copyright in an author work is gener- ally the author, whereas in the media work it is the person by whose investment (to be con- ceived more widely than the kind of investment that is authorship or composition) the work was produced. Only author works need be original to be protected, meaning that they must be independent forms of expression achieved through their author’s judgement, skill and labour. Author works alone attract moral rights. Author work copyright lasts significantly longer than media work copyright: with the former, it normally lasts for the lifetime of the author plus 70 years, while for sound recordings and broadcasts it is 50 years from making, release or trans- mission, as the case may be. Key points on author and media works The distinction between author and media work, resting in principle on the degree of individual as opposed to technological creativity involved The difference in rules applying to each of the groups, explained in detail below The borderline nature of photographs and fi lms in this distinction Author works 2.49 The following are the categories of author work: literary dramatic musical artistic fi lms The distinctions between these groups of author works are not without importance, but in a number of recent cases the English courts have held that a work may belong to more than one of the categories. So for example circuit diagrams have been held to be both literary and artistic  See for interesting discussion of this point R Arnold, ‘Copyright in photographs: a case for reform’ EIPR 303.  In the case of fi lms in the UK, joint authorship is attributed to the principal director and the producer (CDPA1988, s 9(2)(ab)). Note also (1) the British concept of a computer-generated work where there