IPL 3 - Subject Matter Copyright PDF

Takeaways Copyright protects authorial works and non-authorial works. Ideas and procedures are not protected by copyright. Fixation is a requirement for copyright protection. Copyright rights subsist independently of each other. Copyright ownership can be transferred through assignments and lic...

Takeaways Copyright protects authorial works and non-authorial works. Ideas and procedures are not protected by copyright. Fixation is a requirement for copyright protection. Copyright rights subsist independently of each other. Copyright ownership can be transferred through assignments and licenses. Andrew Yip (00:00.674) Welcome to our IP topic on copyright. In this series of slides, we\'ll be looking at what copyright does and does not protect. The starting point is that copyright protects works. There are two broad categories. Number one, authorial works, also known as author\'s original works. And two, non -authorial works, also known as entrepreneurial works. In the old act, which defined works as author\'s works only, This category was known as subject matter other than works. The table on this slide is going to be especially important. Please pause it and review at your own pace. It summarizes the established categories of works. On the left you will see the authorial works and on the right the non -authorial works. As you can see from the table, the list of authorial works is provided for you. They are literary, dramatic, musical and artistic works. On the right hand side, you will see sound recordings, films, broadcasts, cable programs and published editions of works. These categories are exhaustive in the sense that if you don\'t fit within one of these categories, it doesn\'t count as subject matter which will be protected by copyright. Andrew Yip (01:21.12) On this slide, we have some examples of what\'s not protected by copyright. You will see on this slide ideas, concepts, discoveries, procedures, and methods. For example, if you have a recipe for cooking chicken rice, the steps involved are not something that you could protect with copyright. Even if you add in novel methods of cooking or unusual ingredients, that\'s not enough. However, if you write down the recipe in your own words, express it in your own way, perhaps even accompanied by a story about your family recipe and history, publish it on your blog, the entire written passage could be protected as a literary work. If you publish it and you affix photographs which you took, these could also be protected as artistic works. The earlier example used a blog. Perhaps nowadays you would think more of other forms of social media, perhaps TikTok, Instagram, and so So if you have a video that accompanies it, that video could be protected by copyright, but not the main idea behind the recipe. Andrew Yip (02:30.444) We come now to the requirement of fixation, which we will also talk about a little bit more in later slides. This is one of the essential requirements for copyright protection to be triggered. The idea is that it needs to be recorded somewhere, whether physical or digital. Now, fixation doesn\'t mean that the medium on which you record it must be immutable or permanent. It\'s possible to even destroy the record, but that doesn\'t mean that the copyright rights are lost. This is because copyright is not in the medium, it\'s not in the disc, it\'s not in the flash drive, it\'s not in the vinyl recording, it\'s not on the piece of paper, it\'s separate and discreet from that. The only problem that you would have if you don\'t have the medium anymore is that you will have problems proving that you own the copyright. But conceptually, this is different from saying that you have no copyright at all. Andrew Yip (03:31.328) One of the other important principles that we need to bear in mind is that copyright rights subsist independently of each other. One common example is a movie on a streaming service. You may have various rights that are in there or associated with the streaming service. So you may have a film, you may have a sound recording that are connected there with, you may have artistic works in the form of perhaps a poster, screenshots, various things. that are distributed by the streaming service to say, hey, this is what we have on offer. There may also be literary works connected therewith, like the script for the movie. There may be other things that are used to publicize the film, and so on and so forth. These are just some examples of how copyright rights subsist independently of each other. There will be, of course, another way in which this concept manifests And we\'ll come to this when we can talk about the concept of what these rights Andrew Yip (04:40.45) We now look at the criteria for copyright protection. We start with the important principle that copyright is a creature of statute. It exists only because of the Copyright Act. There is no such thing as copyright under common law. The protection that is conferred by the Act is automatic. There are countries where you can register copyright and in those places, registration often serves an evidential function. or as a prerequisite to commencing litigation, but not so in Singapore. So what are the key requirements for protection? Think of it in two parts. The first is that for copyright to subsist, you need to show that the subject matter is capable of being protected by copyright in the first place. For example, you can show that it\'s a literary work, it\'s a dramatic work, and so on and so forth. Next, for authorial works, The work needs to be original. The next broad requirement is that you need to establish a valid connecting factor between the subject matter, meaning the type of copyright work, and Singapore. Andrew Yip (05:54.444) Although copyright protects unpublished works in certain cases, we\'re not going to look at that category for the purposes of this course. Instead, we\'ll be looking at published authorial works. Here, the requirements are pretty straightforward. First, it has to be an original work. Next, any one of the following must be shown to apply. First, you can have a situation where the author is a qualified individual as a Singapore resident or citizen. when the work was first published. Alternatively, can have a situation where the work was first published in Singapore. Yet again, you can show that the work was first published in a reciprocating country. So just to recap, you just need to show that the work is original and that any of these conditions apply. Andrew Yip (06:44.642) Nonetheless, although connecting factors are important, it is rare to see disputes relating to this specific element. This may be because most countries or territories would fall within the scope of one or both of the main international conventions. Subsistence issues may also still arise in connection with originality. But this pure connecting factor issue alone, as mentioned earlier, it would rarely be an issue. Next up, we will discuss three issues that are specific to authorial books. The first and perhaps the most difficult issue is originality. The Copyright Act has never exhaustively defined what it means, and in a nutshell, case law says that it means that the work originated from a human author or authors and wasn\'t copied from somewhere else. But it\'s not enough that it just came from a human. Inherent in originality is the concept that there was some sort of intellectual effort employed in its creation. It\'s not something purely mechanical. One of the important and interesting questions, of course, is how much is enough? The answer, as always, is that it depends. If you wrote a novel, applied your own skill and labor to it, and did not copy it from somewhere else, clearly there\'s going to be something original about it. If you are taking a photograph and you\'re a good photographer, you might care about things like composition, lighting. subject and things like that. But if you take a picture just for seeing how you\'re going to split the bill for a meal at the restaurant, and you\'re going to just throw that receipt or bill away after you\'re done with it, then it might be said that originality here is really, really minimal. But in both of these situations, there would be no question that the person who took the photograph would be the author. Andrew Yip (08:47.936) It is still possible for an original work to be derived from another earlier work. Originality doesn\'t mean that you must come up with the work absolutely from scratch. The general rule is that where the work is derived from some other work, there must be a material alteration or embellishment in such a way that confers originality on the resulting work. What counts as material for this purpose is necessarily a question of fact and degree. Andrew Yip (09:21.77) On authorship in Singapore, we have the case of Asia -Pacific publishing and pioneers and leaders, which makes clear that an author for the purposes of copyright law must mean a human author. It does not extend to a company, and so a company cannot be an author. If you are unable to identify one or more human authors from whom the work originates, then there is no original work to speak Andrew Yip (09:50.998) So now we\'re going to move to something that we\'ve already talked about, and that\'s the concept of reduction to material form, otherwise known as fixation. This is just some more detail for your reference. Under the Copyright Act, is an express requirement for literary, dramatic, and musical works to be reduced to writing or some other material form, while it is only an implicit requirement for artistic works. What about non -authorial works? Non -authorial works would be embodied in another medium. For example, a song would be embodied in a record. Let us now consider copyright ownership. As will be seen shortly, ownership is incredibly important to copyright, because only the owner of the relevant rights has the power to do the things provided for under the Act. Anyone else needs the owner\'s authorization or consent. We begin with the standard rule about first ownership. The general rule as the author or maker is the one that is entitled to copyright subsisting in the Now there are of course various exceptions to this, for this course we\'ll not be looking at all of them, but the most basic ones that you will know, you should know, we will cover in this course. So the first thing that is important to bear in mind is that everything is really subject to contractual agreement. The default position can be varied and overridden by Andrew Yip (11:28.512) Another one of the more common exceptions relates to employment. The rule is that if the work was created by an employee in the course of employment, the employer will own the copyright. Of course, whether somebody is or is not an employee in certain cases can be difficult to discern. This is a fact -specific inquiry. This position can also be varied by Andrew Yip (11:55.136) Under the old Act, there was a special exception for commissioned works, where a party who commissions another to create certain types of work will generally be the default owner subject to conditions, even though they were not the author of the work. The new Act removes this exception, and the author, the commissioned party, would be the first owner by default. The formalities for transfer of ownership or assignments are pretty simple. They need to be in writing, signed by, or on behalf of the assigner. You don\'t have to assign the whole of the copyright. It is possible to assign only part of the copyright rights. For example, you can retain the right of adaptation for yourself and only assign to somebody the reproduction right. There are different commercial reasons why you might want to do various types of transactions, but the point is that the Copyright Act allows you to do so. You could also assign part of a type of right, or by reference to the duration or term of the copyright. So basically, the Copyright Act is very contract -friendly, and you can do quite a number of things. Because the same copyright in a work is valid across many jurisdictions across the world, A real -life assignment may also assign rights according to jurisdiction. Andrew Yip (13:23.118) And finally, we\'re just going to briefly touch on licenses. In practice, licensing is a huge part of copyright law when it intersects with commerce. Very commonly, you would have a licensee pay a certain amount of money for certain rights to certain types of works for a certain duration of time. You will learn more later under IP in business. For now, know that exclusive licenses must be in writing and signed by or for the licensor. One would add that it is good practice to do this even in non -exclusive licenses. You may also read S143B on how a license may or may not bind successes in title. B24 IPL - **[Copyright]** - s8 CA - Subject matter protected by Copyright - excluded subject matter - **[Criteria for protection]** - Fixation Requirements: (1) fixation, (2) original; and (3) human author, (4) connecting factor - 1\. Originality - 2\. Authorship - 3\. Reduction to Material Form (Fixation) - s16 and s20 CA - **[Ownership of Copyright]** - bundle of rights - s133(1)(a) CA - First ownership rule - s133(3) CA - First ownership rule can be varied by contract - s140 CA - Assignment of future copyright - s134(3) CA - **[Employer owns]** copyright, if employed (as opposed to contracted) - s135 CA - Author (the commissioned party) is the first owner by default for works commissioned on or after 21 Nov 2021 - s138, 139 CA - Assignment - s142 CA - License - Successors in title