Copyright Worksheet

Copyright in Jamaica

1. Definition of Copyright

Copyright so defined by Groves is a personal property right created by statute, allowing authors to safeguard and control the use of their creations. The rights granted by copyright are often referred to as exclusive rights, enabling authors to perform specific actions, such as reproducing, distributing, and publicly displaying their works. Importantly, copyright protection extends to secondary works, which include adaptations such as films and sound recordings that incorporate original literary or artistic works. The scope of copyright can vary significantly between jurisdictions; while some regions may cover databases under copyright law, such protections are not applicable in Jamaica.

Note there is no definition of copyright in the Copyright Act of Jamaica.

In Walter v. Lane the House of Lords addressed the issue of originality in UK copyright law. The case involved reporters from The Times who transcribed speeches given by the Prime Minister, adding punctuation, corrections, and revisions. The newspaper published a book based on these reports, and the respondent claimed copyright infringement. The key issue was whether the reporters could be considered authors under the Copyright Act 1842.

The House of Lords ruled that the reporters were indeed authors, emphasizing that originality in copyright does not require artistic creativity but the use of skill, labor, and judgment. The reporters’ efforts in transcribing, revising, and adding their judgment made their work original, qualifying them as authors. This case established that copyright protects the effort and skill involved in creating a work, not necessarily its artistic merit.

2. Requirements for Copyright Protection in Jamaica

Eligibility Requirements:

To qualify for copyright protection under Jamaican law, certain foundational conditions must be met:

  • The work must fall within the eligible categories defined in Section 6 of the Copyright Act of Jamaica (CAJ).

  • The author of the work must either be a citizen or a resident of Jamaica, or belong to a member state as per Section 7 of the CAJ.

  • The work must be published in Jamaica or in specific countries recognized by the CAJ, as outlined in Section 8.

3. Subject Matter

a) Copyright vs. Physical Property

It is crucial to understand the distinction between copyright in a work and property rights related to the physical object itself. For instance, Charles Dickens' will (In Re Dickens, 1935 - Dickens bequeathed his private papers, including an unpublished manuscript, to his sister-in-law Georgina, with the rest of his estate going to his children. The manuscript was sold and published in 1934. The court held that Georgina inherited only the physical manuscript, not its copyright, which passed to the residual estate. However, since publication required the manuscript, sale proceeds were split between Georgina and the estate.)

b) Idea/Expression Dichotomy

Donoghue v. Allied Newspaper Ltd (1938), the court ruled that the person who writes or expresses an idea, not just the one who provides it, owns the copyright. Although the plaintiff gave information for the articles, the reporter who wrote them was considered the author since they gave the ideas form. The court emphasized that copyright applies only to expressed ideas, not just ideas themselves.

Copyright law protects the expression of ideas rather than the ideas themselves. Article 9(2) of the TRIPS Agreement, along with Jamaica’s Copyright Act (CAJ, Section 6(8), reinforces this principle. While ideas are not copyrightable, they may still be protected through legal avenues such as breach of confidence. (e.g., Fraser v. Thames Television Ltd: Creator shared TV show idea with scriptwriter/producer who later made similar show without her. Held, Ideas can’t be copyrighted, but if shared in confidence, they are protected if they are original, clear, valuable, and developed enough to be usable.) (e.g., Designers Guild Ltd v. Russell Williams - Ideas are unprotected by copyright - expression is protected: The court emphasized that copyright protects the expression of ideas, not the ideas themselves. The plaintiffs sued for copyright infringement of a fabric design, claiming substantial copying of their work. The trial judge agreed, but the appellate court overturned the decision, stating that only the idea, not a substantial part of the expression, had been copied. On further appeal, the House of Lords reinstated the original judgment, ruling that substantiality is assessed both qualitatively and quantitatively + Lord Hoffman clarified that copyright protects the expression of ideas, not the ideas themselves. Ideas that are unexpressed or lack originality, literary, artistic, or dramatic qualities are not protected. Copyright lies in the detailed and original presentation of an idea. Simple or abstract concepts are less likely to constitute a substantial part of a work, but in this case, the copied elements exceeded the trivial and formed a significant part of the work's originality) (e.g., Bauman v. Fussell - taking an idea does not infringe copyright: The photographer claimed copyright infringement after an artist painted a scene similar to his photo of two roosters fighting. The court ruled there was no breach, as the painting was a new, original work inspired by the photo)

In Designers Guild Ltd v Russell Williams (Textiles) Ltd, Lord Hoffman explained that copyright infringement depends on whether the defendant copied a substantial part of the expression of the original work, rather than just the idea behind it.

Lord Hoffman made two important points:

  1. Ideas are not protected: Copyright only protects how an idea is expressed, not the idea itself. For example, anyone can create a design with a floral pattern (the idea), but it’s the specific way the flowers are arranged (the expression) that can be protected.

  2. Expression must be original: Even if the idea itself isn’t unique, the way it's expressed in the work must be original enough to be protected. In this case, Hoffman argued that the Ixia design was more than just the idea of a flower-stripe combination; it was original enough to show the designer's skill and effort. This made it eligible for copyright protection, and Russell Williams had infringed by copying it.

So, Hoffman concluded that the expression of the Ixia design, not just the idea, was the part that mattered for copyright infringement.

c) Originality

Originality is a prerequisite for copyright protection in Jamaica as stipulated in CAJ Section 6(1)(a). The legal threshold for originality is relatively low—emphasis is placed on the uniqueness of the expression of the work rather than the novelty of its content. This aligns with practices observed in the United Kingdom (the “skill, labour judgment” test/ the “sweat of the brow” test)(e.g., In University of London Press v. University Tutorial Press (1916), Peterson J clarified that "original" in the context of copyright does not require inventive thought. Instead, copyright protects the expression of ideas, not the ideas themselves. He emphasized that the work must not be copied from another but should "originate from the author." This aligns with the skill and labor doctrine, which protects works based on the author's effort and contribution, as it acknowledges that originality stems from the author's expression, not from novel or inventive concepts. Thus, the court recognized that the examination papers, as original expressions of the examiners' efforts, were entitled to copyright protection.) (e.g., In Ladbroke (Football) Ltd v. William Hill (Football) Ltd (1964), Lord Pearce explained that the test for originality involves considering the skill, judgment, and labor put into the work. The respondents, established bookmakers, had been using a fixed odds football coupon since 1951. The appellants copied 15 of the 16 lists from the respondents' coupon, including similar headings, wagers, and explanatory notes, but did not copy the odds or match selections. The court ruled that the respondents' coupon was an original literary work entitled to copyright protection, and the appellants had reproduced a substantial part of it. The House of Lords dismissed the appeal, emphasizing that the work as a whole, not in fragments, was considered for copyright protection)

Note the current EU test of originality expressed in Infopaq International A/S v Danske Dagblades Forening - it is "both necessary and sufficient" that the subject matter at hand is original, in the sense that it is its author's own intellectual creation that results from their free and creative choices and reflects their personality.”

Note US difference - Interlego v. Tyco, the courts ruled that reproductions of existing works, even if created with skill or effort, cannot be copyrighted if they lack originality. Held that redrawn LEGO drawings with minimal changes weren’t original enough to qualify for copyright.

eu and us = modicum of creativity

d) Categories of Protected Works

The following categories of works are recognized and eligible for copyright protection under section 6:

  • Original literary, dramatic, musical, or artistic works.

  • Sound recordings, films, broadcasts, and cable programmes.

  • Typographical arrangements of published editions.

Importantly, copyright protection arises automatically upon the creation of the work, eliminating the need for a formal registration process.

Nb. Only works fixed in some material form will be protected; Copyright protection arises automatically on creation of the work, and does not depend upon registration; Copyright may subsist in a work irrespective of its quality or the purpose for which it was created.

literary work

In Francis Day & Hunter Ltd v. Twentieth Century Fox Corp. Ltd, the court found that titles or names cannot be copyrighted unless they are original and distinctive. In all these cases, simple phrases, titles, or names were not eligible for copyright - SINCE INFOPAQ HEADLINES MAY BE COPYRIGHTABLE SO LONG AS THEY MEET THE INFOPAQ STANDARD.

Express Newspaper - works is created with the aid of computers can be protected under copyright. The computer is just a tool that the author used to produce the work

Exxon Corp - single word, or are not protected if the word do not convey information or give pleasure, while standing alone will not be protected despite research spent to invent the word.

dramatic work

A "spectacle standing alone" refers to a performance, event, or visual display that is not based on a fixed or structured work, such as a scripted play, dance, or choreography. It typically involves actions or events that are spontaneous, unpredictable, or not predetermined. In copyright law, such spectacles are generally not protected because they lack the necessary originality and fixed form required for copyright eligibility. In FWS Joint Sports Claimants v. Copyright Board, the court decided that unpredictable sporting events aren’t copyrightable, but scripted elements like game plans can be protected.

musical work

In Lawson v. Dundas (UK High Court 1985), the plaintiff claimed to be a joint author of a four-note call sign used by a radio/TV station to identify broadcasts during breaks. The call sign was intended to be a musical work. However, the court ruled that the defendant was the sole author. The plaintiff's contribution was seen as merely providing ideas, not a substantial creative input. The court emphasized that for a work to be considered a musical composition, it must include elements such as melody, tune, beat, and tempo. Since these were not present, the call sign was not deemed a musical work.

artistic work

Creation Records v. Newsgroup Newspapers, the court decided that the photoshoot scene wasn’t artisitc work because it was just a still image with no action or story. It also wasn’t a sculpture or artistic work - must have some form of artistic quality.

Merlot v. Mothercare, the plaintiff made a baby raincoat for her child. Mothercare copied her design exactly and sold it. The court decided that the raincoat wasn’t an artistic creation but just a practical item made to keep the child dry. Even though the creator wasn’t trying to make art, it still mattered. Because the raincoat wasn’t art, it didn’t get copyright protection.

sculpture is to be construed narrowly

derivative work

In Redwood Music Ltd v. Chappell & Co. Ltd, the court ruled that derivative works, like song adaptations, can have their own copyright if they’re sufficiently different from the original. The court confirmed that such works can be protected even if the adaptation is done without permission, as long as it has originality - The case involved a song whose copyright reverted to the songwriter's heirs - satisfied the requirement of originality need not be novel.

Make Note:

  • Literary Works: These encompass any compositions, stories, poems, etc.

  • Dramatic Works: Includes any work involving dance or mime.

  • Musical Works: Defined exclusively as music, excluding lyrics or performance components.

  • Artistic Works: Encompasses graphic designs, photographs, sculptures, and models.

  • Derivative Works: Works that are based on pre-existing creations; even though they draw from original works, they maintain their own distinct copyright protection.

  • Sound recordings, films, broadcasts, and cable programs: These are also classified under copyright protection, contributing to the holistic safeguarding of creative outputs in various media.

Copyright Ownership and Moral Rights

1. Economic Rights

Economic rights grant creators exclusive rights for financial benefit as outlined in the Copyright Act of Jamaica (CAJ section 9). These rights include:

  • Copying the Work: The copyright owner has the authority to authorize reproduction.

  • Issuing Copies of the Work to the Public: This includes selling or distributing physical or digital copies of the work.

  • Performing, Playing, or Showing the Work in Public: The owner controls public performances and presentations of their works, such as theater productions, concerts, and exhibitions.

  • Broadcasting or Including in Cable Program Services: Rights extend to broadcasting works through television, radio, or other transmission methods.

  • Making Adaptations of the Work: The copyright owner can create derivative works or adaptations, such as sequels, translations, or reimaginings.

These economic rights are outlined in the Copyright Act of Jamaica (CAJ) Section 9(1), aligning with international standards set by the Berne Conventions and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). This includes:

S.3 Copyright Amendment Act 2015

Two distinct rights are created in this provision

  • Right of Communication to the Public (CAJ S.9(1)(f)): This right allows the owner to control how and when their work is made available to the public - held that ‘communication’ must be a deliberate or intentional act that involves some mode of transmission covering all communication to the public not present at the place where the communication originates.

Rafael Hotels: A hotel broadcasting TV programs to its guests via in-room TVs was deemed an act of communication to the public, even though the hotel claimed it was just a private communication. The court ruled that this was a new public, which the original broadcasters had not authorized.

The criteria for communication to the public are intention to provide access, a large public size, a new public not contemplated by the author, and a profit motive.

  • Making Available Right: Recognized in the World Intellectual Property Organization (WIPO) Internet Treaties, specifically WCT Article 8 and WPPT Article 10, this right emphasizes the importance of digital access - covers inter-active and on-demand transmissions, internet transmissions other than broadcasts, such that a work is placed on a website and can be accessed by members of the public at a place and at a time chosen by them.

    The "Making Available Right" gives creators control over their work when it's shared online, allowing them to decide if and how it can be accessed by the public at any time or place. It protects creators' rights in digital spaces, such as websites, where users can access content on-demand rather than through traditional broadcasts.

In Dramatico v. British Telecommunications (2014), a music company, sued BT for linking to copyrighted music without permission. the court ruled that linking to copyrighted music, even if it was already online, did count as a new "communication to the public." The difference here is that the link enabled users to access the content directly from the link, which was considered more than just a simple reference. This made the link a potential infringement because it facilitated access to copyrighted works without permission.

In short, Svensson dealt with linking to publicly available content without new access being created, while Dramatico involved a link that directly facilitated access to copyrighted content, triggering infringement.

Communication = "I decide when to show it"

Making Available = "You decide when to see it"

2. Moral Rights

Moral rights, as defined under CAJ sections 14 and 15, protect the personal and reputational interests of the author:

  • Paternity (Right to Attribution): The author has the right to be acknowledged as the creator. Any reasonable form of identification may be used. This right is infringed if his name is omitted. This right is contingent on a two-prong test:

    • Identification must bring the author’s identity to public notice in a manner that is recognizable.

    • Identification should be clear and prominent in all reproductions of the work.

Exceptions include:

  • Computer programs and computer-generated works.

  • Works made for reporting public events.

  • Publications of literary or artistic works in newspapers, magazines, or reference materials, with the author's consent.

  • Works with copyright held by international organizations, unless the author is identified in published copies.

The case Festival of Spain and Latin America Inc (1997) ties into paternity rights by emphasizing the importance of crediting the original author. The court found that the defendant copied the plaintiff's photograph without proper attribution, infringing the photographer's right to be recognized as the author. This connects to the requirement in copyright law that authors must be properly identified, ensuring their paternity rights are respected.

  • Right of Integrity: This right protects the author’s work from alterations or derogatory actions that could harm the creator's honor or reputation, as defined in CAJ S.15 (4)(a).

    TWO-PART TEST: prejudicial to the honor or reputation of the author or director

    1. Was Work Changed?

    1. Did It Hurt Their Reputation?

    • Author thinks it's harmful - sub

    • Others would agree it's harmful - obj

    • The subjective element in a right of integrity case means that the creator’s feelings about how their work is treated are considered, but they need to be reasonable.

    (e.g., Snow v. The Eaton Centre, an artist created a goose sculpture for a shopping mall. The mall added Christmas decorations to the sculpture without the artist's permission. The artist felt this harmed the integrity of their work and sued to have the decorations removed. The court agreed and ordered the decorations to be taken down, recognizing the artist’s right to protect their work from changes that could harm their reputation. The court noted that an artist’s claim of harm to their reputation must be reasonable.) (e.g., Frisby v. BBC - addresses the issue of agreement rights concerning alterations - license : The BBC altered a script without the author's consent, removing a key line. The court ruled in favor of the plaintiff, as the BBC was not authorized to make such alterations under the agreement, and an injunction was granted to preserve the integrity of the work.)

  • Right Against False Attribution section 40: Authors have the right to prevent others from incorrectly attributing their work to someone else. (e.g., In Clark v. Associated Newspapers, Alan Clark sued for false attribution after parody articles were published that appeared to be written by him. The court ruled in his favor, saying the false impression could not be corrected by a small disclaimer, and this could damage his reputation.)

  • Right to Privacy in Photographs: This right safeguards commissioned photographic works from being publicly distributed without the author's consent. section 17 Express Newspaper - engaged couple commissioned pictures published

3. Author vs. Owner

The distinction between the author and copyright owner is crucial (CAJ sections 22 ):

In Donoghue v. Allied Newspaper Ltd (1938), the court ruled that the person who writes or expresses an idea, not just the one who provides it, owns the copyright. Although the plaintiff gave information for the articles, the reporter who wrote them was considered the author since they gave the ideas form. The court emphasized that copyright applies only to expressed ideas, not just ideas themselves.

  • Author as the First Owner: Typically, the author of a work is considered its first owner of the copyright unless specifically modified by agreement. However, while economic rights can be licensed or assigned to others, moral rights remain inalienable (CAJ section 19). Authors maintain their moral rights even if they assign their economic rights to others, unless they have waived these rights explicitly.

  • Rights of Joint Authors: In collaborative works, these rights are co-owned by the contributing authors - both authors must have worked together in a way that their creative inputs are intertwined and not easily separable. (CAJ section 22(3)). This underscores the importance of acknowledging all contributors fairly. (In Ray v. Classic FM, the plaintiff made a music database for the radio station, but the station wanted to use it for more than what they agreed. The court decided that the plaintiff was the only author of the work. Even though the station helped, it wasn’t enough to make them co-authors.)

  • Exceptions to Ownership:

    • Employee Works: In the CAJ, section 22 declares that the first owner of a

      copyright is the author unless there is an agreement to the contrary (assignment or licence). This creates an implication that the author is the first owner of the copyright regardless of whether the work done was within the course of employment. Section 9A of the Copyright (Amendment) Act provides further clarification that the ownership of the copyright is only passed on automatically to the employer if there is an agreement between the employer and employee expressing this.(e.g., In Noah v. Shuba , Dr. Noah wrote a guide outside of work hours, using his own time and resources. The guide was later published by his employer, PHLS. The court ruled in favor of Dr. Noah, saying the guide was his personal work, not created during his job. It ordered the defendant to pay damages for both copyright infringement and defamation.)

    • Commissioned Works: Copyright will only belong to the commissioner if they do not create the work themselves, highlighting the importance of authorship in determining copyright ownership. (e.g., In Ray v. Classic FM, the consultant created a music database for the radio station, and they agreed the station could use it in the UK. However, the station wanted to use it abroad, and the consultant disagreed. The court ruled that the consultant owned the copyright and the station only had permission (a licence) to use it in the UK. If a contract doesn’t say who owns the copyright, the court will usually give the client a licence to use the work, not full ownership. However, in some cases, if the client needs to control the work more (like stopping others from using it), the court might assign the copyright to the client instead.) (e.g., In Paymaster v Grace Kennedy & Lowe , Paymaster paid Paul Lowe to create software but Lowe used his own program as a base. Paymaster claimed ownership of the software, but Lowe said he still owned it. The court sided with Lowe, saying that paying for the work doesn’t automatically give Paymaster the copyright, as Lowe always intended to keep it)

4. AI and Copyright

Works generated by artificial intelligence are recognized under the Copyright Act of Jamaica, but they do not receive the same protections as those authored by humans due to the absence of human authorship. The owner of the service arrangements related to AI-generated works holds rights similar to those of traditional copyright owners but may face limitations. Section 2 of CAJ, protects works created by AI as “computer generated works”. There is an inescapable presumption under CAJ that works created by AI are being given protection.

The Express Newspapers v. Liverpool Daily Post case indicates that works created with the help of a tool like a computer can still be copyrighted, as long as there is human involvement in the creation. In the context of AI, this means that AI-generated works may be copyrightable if there is a human guiding or programming the AI, as AI alone cannot be considered the author.

5. Duration of Copyright

The duration of copyright protection varies by jurisdiction for primary and secondary works:

  • Jamaica: Life of the author plus 95 years. CAJ section 10

  • Trinidad & Tobago: Life of the author plus 50 years.

  • UK: Life of the author plus 70 years.

  • Berne: the life of the author plus 50 years, Art 7(1)

  • TRIPS: the life of the author plus 50 years, Art 12

  • Moral rights: In Jamaica, these last as long as the copyright, with the right against false attribution extending for 20 years post the author's death. CAJ section 18.

  • Joint Authorship: The term shall be calculated from the death of the last joint author. CAJ section 10(5).

  • Films and Sound Recordings (Sec): 95 years from the end of the calendar year in which it was made. Section 11-12 CAJ

  • Typographical Arrangements (Sec): 50 years from the end of the calendar year in which the edition was first published. Section 13 CAJ

6. Recent Changes by Copyright (Amendment) Act 2023

Recent amendments introduced significant changes, specifically aiming to enhance accessibility for individuals who are blind or visually impaired. This includes provisions for making works available in formats such as Braille, thereby promoting inclusivity and broadening access to creative content.

Infringement, Defenses and Remedies

1. INFRINGEMENT

In accordance with CAJ section 31 (1), copyright is deemed infringed when unauthorized actions are carried out. Infringement transpires under the following conditions:

  • The absence of a license from the copyright owner.

  • Actions are taken that contravene the exclusive rights outlined under CAJ section 9. (e.g., In A v. B, B copied pages from A's private diary during divorce proceedings. A claimed copyright and confidentiality violations. The court ruled that copying for judicial purposes was allowed under copyright law)

There are two main categories of exclusive rights:

  • Economic Rights (CAJ section 9): These rights pertain to the ability to reproduce, distribute, publicly perform, and display works, among other things.

  • Moral Rights (CAJ sections 14-17): These rights protect the personal and reputational interests of the author, including the right to attribution and the right to object to derogatory treatment of the work.

Infringement can be categorized into two types:

  • Primary Infringement: This involves direct, unauthorized acts related to reproduction, distribution, and other economic rights without permission from the copyright owner. (e.g., Turner v Performing Rights Society: companies played copyrighted music to employees during work hours without a license from PRS, claiming these weren't "public" performances. Held, a performance is "public" if it extends beyond private/domestic use, especially when used for commercial benefit, regardless of audience restrictions.)(e.g., Sillitoe v. McGraw-Hill Defendants infringed copyright by distributing study notes based on original works for profit, not private study, and failed to properly acknowledge the authors, leading to a ruling in favor of the plaintiffs)

  • Secondary Infringement: This type involves unauthorized dealing with copies that infringe on the copyright; critical to establishing secondary infringement is the proof of guilty knowledge, as governed under CAJ section 31 (2)-(8). Where a person is liable for having authorized an infringement he will also often be liable

    as a joint tortfeasor or for having procured the infringing act. Also, of course, he may be vicariously liable for the acts of his servants or agents done with his authority. “Authorisation” is a separate act of infringement from the act which is itself unauthorized.” (e.g., In LA Gear v. Hi-Tech Sports, C (LA Gear) made a shoe, and D (Hi-Tech Sports) began selling a shoe that C claimed was a copy of theirs. C sent a letter to D with a picture of their shoe, asking D to stop selling it, but D ignored the request and continued to advertise and sell the shoe. C sued for secondary infringement, arguing that D was helping to sell an infringing product. The court ruled in favor of C, finding that D knew the shoe was a copy because they had received design drawings from C. This made D liable for selling the infringing shoe, even if they weren't the ones who originally made it.)

  • Authorization: Authorization in copyright law means a person can be liable for both allowing infringement (by enabling or encouraging it) and for jointly participating in the infringement if there is a common plan or design. Authorization means you gave permission or enabled; Joint tortfeasor means you cooperated. In CBS Songs Ltd v. Amstrad plc, Amstrad sold cassette machines that could copy music. CBS sued, claiming Amstrad facilitated copyright infringement. The court ruled in Amstrad’s favor, stating that selling machines capable of both lawful and unlawful use did not constitute authorizing infringement. Amstrad’s ads made it clear that permission was needed to copy, and they had no control over how customers used the machines. Simply selling the machines did not make Amstrad liable for infringement.

(b) Proof of Infringement

The onus of proof lies with the plaintiff to demonstrate:

  1. Ownership of the copyright.

  2. The defendant engaged in acts infringing upon those exclusive rights without permission. (e.g., In Gold Rock Limited , Employee took photos of company's tank designs (900/950-gallon), then made very similar drawings for brother's competing business after leaving. The court found that the defendant copied Gold Rock’s drawing, which was protected by copyright, and this was considered copyright infringement because he used the design without permission.)

Considerations for Substantiality

When determining whether infringement has occurred, the substantiality is assessed on both qualitative and quantitative grounds, with greater emphasis on the quality of the usage rather than simply its quantity.

(a) Unauthorized Act in Relation to the Whole Work

In Fitch & Co Ltd, the court discussed how originality in photographs can arise from elements like angle, lighting, and focus, which require skill and judgment. This is relevant to unauthorized acts concerning the whole work or a substantial part, as copying even a significant portion of such a photograph without permission may infringe copyright if the creative choices involved are deemed original and protected.

(b) Unauthorized Act in Relation to a "Substantial" Part of the Work

  • Under CAJ section 9(2)(a), it does not matter if the infringement is related to the whole work or just a substantial part.

  • Substantiality Test:

    • Quantitative: Measures the amount taken.

    • Qualitative: Considers the importance or significance of what has been taken.

  • Courts evaluate both aspects in each case, considering all relevant circumstances.

(c) Ignorance of Infringement Ignorance regarding copyright law is not an acceptable defense in cases of infringement; whether insertion occurs through direct or indirect copying, liability is incurred. This principle is articulated in the writings of legal scholars including Copinger and Skone James - Indirect Copying - In Francis Day & Hunter Ltd v. Bron [1963], the plaintiffs claimed the defendant's song copied their work. The defendant denied consciously copying, though he may have heard the original song. The court ruled that subconscious copying could be infringement if the defendant was familiar with the work. However, the plaintiffs failed to prove the required similarity and causal connection between the songs, so the appeal was dismissed. The court emphasized that even unconscious copying could be infringement if there is sufficient similarity and causal link, regardless of the defendant's awareness.

(d) Copying and the Internet Unauthorized copying remains a violation of copyright even within electronic communications. Notably, temporary copies can also constitute infringement, as outlined in CDPA section 17(6). TIn the UK and USA, the "notice and takedown" system allows copyright owners to notify ISPs of unauthorized content. If the ISP fails to remove the infringing material, it may be liable. The person who uploads the copyrighted work without permission is strictly liable for the infringement, while the ISP may face secondary liability for transmitting the content. However, a purely passive ISP is generally not liable for the act of copying. Note that persons who download files containing copyrighted works also violate the copyright owner’s reproduction right. (e.g., In A&M Records v. Napster (2001), the court ruled that Napster was liable for copyright infringement. The service allowed users to share copyrighted music without permission, and Napster was aware of these violations. The court found that Napster’s system encouraged illegal file sharing, harming the music industry. Napster’s claim of fair use was rejected, and the court held that it had a duty to stop the infringements. Since Napster had the ability to control the infringement and financially benefited from the system, it was found guilty of contributory and vicarious infringement.)

(e) Public Performance Rights Public performances encompass any performances that take place in front of multiple individuals not part of a private gathering, thereby infringing public performance rights. The definition of a private performance is dictated by the characteristics of the audience involved.

Performers must seek appropriate permissions when their work is performed in public settings, as unauthorized public performances constitute infringement of the copyright holder's rights. (e.g., Jennings v. Stephens: A play was performed at a Duston Women's Institute meeting without the copyright owner's consent. The performance was attended by 62 members of the Institute, with no outside guests allowed. The Court of Appeal ruled that the performance was a "public performance" despite the audience being limited to members of the Institute)

(f) Performers’ Rights Performers maintain legal rights against unauthorized recording, reproduction, or distribution of their performances. These rights are pivotal in ensuring that performers are compensated for their work and that their artistic expression is protected. Certain limitations exist, such as exceptions for archival purposes or educational usages of performances, which allow recordings to be used without infringement under specific conditions.

2. DEFENCES UNDER CONTRACT

No Infringement: Acts pursued under a valid contract do not constitute infringements.

In practice the term “Assignment” is used to denote an agreement which has the effect of changing copyright ownership; whereas, the term “Licence” is used to denote an agreement that has the effect of granting consent, permission or clearance, to use the copyright work on the terms specified by the copyright owner.

Important types of contracts include:

  • Assignment: Rights must be formalized in writing to ensure a transfer ownership.

  • Exclusive License: Requires a written agreement for validity and can jointly sue if infringement occurs.

  • Non-Exclusive License: Can be oral but does not provide grounds for suing over infringement, as it does not prohibit the owner from allowing others to use the work.

(b) Assignment of Moral Rights , section 27 & 28:While moral rights are inherently non-transferable, copyright owners retain the ability to waive these rights partially or entirely in certain situations, allowing for flexibility in how their works can be used commercially or distributed.

3. DEFENCES UNDER STATUTE

(a) Fair Dealing Fair dealing stands as an essential legal defense in copyright disputes, reflecting a two-part test that includes:

  1. The action must fall within clearly recognized exception categories (e.g., research, criticism, news reporting, or teaching).

  2. The dealing is considered "fair" (CAJ sections 52 & 53) based on the factors surrounding its purpose, nature, amount used, and the effect on the market for the original work

Three fair dealing exceptions are outlined in sections 52 & 53 of CAJ:

  • Research or private study; Criticism or review (accompanied by sufficient acknowledgement); Reporting current events

research or private study

Universities UK v. Copyright Licensing Agency Ltd (2002): Case addressed university copying practices, particularly whether photocopying for educational purposes constitutes fair dealing. Held, fair dealing requires reasonable amount, legitimate individual purpose, and no systematic reproduction that could harm the copyright owner's market.

criticism or review

Carlton , Pro Sieben Media sued Carlton for using a 30-second clip from an exclusive interview in its documentary Selling Babies. Carlton argued it was fair dealing for criticism and current events. The High Court ruled in favor of Pro Sieben, but Carlton appealed. The appeal was allowed, with the court deciding that the fair dealing exception for criticism and review should be interpreted broadly, allowing Carlton's use of the clip.

public interet

In Ashdown , Ashdown’s private meeting notes were published by the Telegraph. He sued for copyright infringement. The court sided with Ashdown, saying the public’s right to know about the contents of the notes was more important than protecting copyright in this case.

Reporting current events

In Associated Newspapers v. News Group Newspapers [1986] RPC 515, the plaintiffs, owners of the Daily Mail, had exclusive rights to publish letters between the Duke and Duchess of Windsor. The defendants, publishers of The Sun, printed one of these letters. The plaintiffs sought an injunction, claiming copyright infringement. The court ruled in favor of the plaintiffs, granting an injunction. The court reasoned that the defendants' motive was to attract readers, not to report current events. It was not fair dealing for a trade rival to use copyrighted material for commercial benefit. The defense of fair dealing for current events did not apply, as the publication of the letters was not necessary to report on the Duchess’s death.

Section 54 of CAJ states that: “For the purposes of determining whether an act done in relation to a work constitutes fair dealing, the court determining the question shall take account of all the factors which appear to it to be relevant, including –

The nature of the work in question;

(Hyde Park Residence v. Yelland [2000] RPC 604)
Stolen photos of Diana and Dodi were published by The Sun, claiming fair dealing to address false claims. The court rejected the defense, stating the use was excessive and unnecessary for reporting events.

The extent and substantiality of that part of the work affected by the act in relation to the whole of the work;

(Hubbard v. Vosper [1972] 2 QB 84)
Vosper heavily copied Hubbard’s works to criticize Scientology. While fair dealing allows criticism, the extensive use of copyrighted material made it unfair.

The purpose and character of the use;

(Newspaper Licensing Agency v. Marks & Spencer plc [1999] EMLR 369)
Marks & Spencer copied press cuttings for commercial use. The court ruled it wasn’t fair dealing, as it didn’t serve the public interest.

The effect of the act upon the potential market for, or the commercial value of, the work.

(IPC Media Ltd v. News Group Newspapers [2005] FSR 752)
News Group used IPC Media’s TV listings in an ad to promote its competing magazine. The court ruled this unfair, as it diminished the original work's commercial value for IPC.

Other Statutory Defenses

There are additional statutory provisions that address: Sections 55-86

  1. Incidental Inclusion (CAJ section 55): Allows the use of copyrighted material if it appears incidentally in a work, such as background music or scenery, without being the primary focus.

  2. Educational Purposes (CAJ sections 56-60): Permits the use of copyrighted works for teaching, research, or educational purposes in schools, universities, or other educational institutions, within certain limits.

  3. Libraries (CAJ sections 61-65): Allows libraries to make copies of works for preservation or to provide access to users, subject to specific conditions.

  4. Public Administration (CAJ sections 66-67): Grants public authorities the right to use copyrighted materials for government functions, like record-keeping or public communication.

  5. Designs (CAJ sections 68-69): Provides exceptions for using design works, such as for technical or industrial purposes, without infringing copyright.

  6. Works in Electronic Form (CAJ section 70): Allows exceptions for certain works in digital or electronic formats, facilitating their access and use for the public.

  7. Public Domain Works (CAJ section 71): Works that have passed into the public domain can be freely used by anyone, as the copyright has expired.

  8. Recitation (CAJ sections 72-73): Allows the public performance or recitation of literary or musical works, especially in educational or cultural contexts.

  9. Buildings (CAJ sections 74-75): Addresses the use of architectural works, allowing exceptions for buildings and their architectural features in certain situations.

  10. Subsequent Work by Same Artist (CAJ section 76): Allows an artist to create derivative works based on their previous creations, within the limits of copyright law.

  11. Miscellaneous (CAJ sections 77-78): Covers various other exceptions to copyright, typically in cases not explicitly addressed by other sections.

  12. Non-Profit Organizations (CAJ section 79): Provides exceptions for non-profit organizations to use copyrighted works for charitable or educational purposes without infringing copyright.

  13. Miscellaneous (CAJ sections 80-83): Additional exceptions for specific cases not covered by earlier sections of the law.

  14. Recording for Purposes of Time Shifting (CAJ section 84): Allows individuals to record copyrighted content (e.g., TV shows or movies) for personal use and later viewing or listening at a more convenient time.

  15. Adaptations (CAJ section 85): Allows the creation of derivative works or adaptations based on original copyrighted works, subject to the rights of the original author.

  16. Prescribed Exceptions (CAJ section 86): Specifies further exceptions as set by regulations or statutory provisions for particular uses of copyrighted materials.

  17. Parody: Allows the use of copyrighted material for creating parody, satire, or humorous imitation, as long as it does not compete with the original work in the market.

  18. Persons Who Are Disabled (CAA s.15 / CAJ s.65A and 65B): Provides exceptions for the use of copyrighted materials by individuals with disabilities, to improve access to works.

  19. Incidental Copying by ISPs (CAAs.19 / CAJ s.83A): Protects Internet Service Providers (ISPs) from liability for incidental copying of copyrighted material during the transmission of data, as long as the ISP is not directly involved in the infringement.

4. REMEDIES

(a) Criminal Action

Criminal offenses for infringement can result in substantial penalties, including fines of up to $100,000 and imprisonment for up to two years at the magistrate level and unlimited fine and up to a maximum of 5 years before the circuit court. Criminal action typically requires intentional infringement for commercial gain.

Remedies: entry and search; restricting importation of infringing goods

(b) Civil Action

Civil remedies available for copyright infringement may include:

  • Damages: Compensation for losses suffered by the copyright holder, which can be statutory or based on the actual damages - compensatory or exemplary.

  • Injunction: A court order to stop the infringing activity, often sought by plaintiffs to prevent further unauthorized use.

  • Account of profits: A legal requirement for the infringer to account for and return profits made from the infringement to the copyright owner. The precedent set in Redrow Homes v. Betts [1999] 1 AC 197 indicates that the plaintiff would typically not be entitled to both damages and an account of profits; these remedies are often awarded in the alternative.

  • Discovery requests: Court-ordered investigations that compel the defendant to provide evidence related to the infringement allegation.

  • Delivery Up and Disposal: This remedy allows for the confiscation of infringing materials.

  • Order for Publication of a Correction: Mandates the publication of a correction regarding the infringement.

  • Search Orders: Established in Anton Pillar v. Manufacturing Processes Ltd (1976) Ch 55, these allow for the seizure of evidence from the defendant's premises.

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