Examining the Legal Issue of Copyright

Introduction

This essay is on the topic of Intellectual property and will be split into four parts. It will explain the law regarding copyright in the UK by using the Copyright, Designs and Patent Act 1988 (CDPA 1988), it will begin by discussing the legal terminology ‘original work’ and why copyright exists and the regulations of copyright in detail with regards to fixation and originality, the definition of ‘fixed’ in line with the current law, the skill, labour and judgement test including cases to support the claims and economic rights that an owner has. Secondly by explaining the 3 main types of ‘original work’ that are granted protection by this act and in addition, it will shed light on what consists of copying of the work and alternatives to copyright including adaptation of the work and what the copyright infringes. The source used to gain this information is from Contemporary Intellectual Property: Law and Policy, By Hector L. MacQueen, Charlotte Waelde, Graeme Laurie and Abbe Brown. The third part of this essay will critically evaluate the impact of internationalism in terms of digital technologies. It will assess the new challenges this presents Intellectual Property (IP) in terms of new innovations that will affect the consumers and industry. furthermore, it will discuss the impact this has on Intellectual property by using the ‘Gowers Review of Intellectual Property’ to source the knowledge. Lastly the essay will examine the case on Liam and Aleesha in terms of copyright and explain what infringements of copyright have occurred using relevant cases to reinforce the arguments that are made.

Main body

Copyright in its early stages was implemented to control the output of printers once the technology was invented and recognised in the 15th century. Before the era of printing, writing could only be duplicated by the process of manually copying out the work [1]. The UK formed the Copyright, Designs and Patent act 1988 to give creators of literary, dramatical, musical and artistic work ranging from sound recordings, films and broadcasts [2] protection and the right to regulate the way their work is used.

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For copyright to exist in ‘work’ it must be original and fixed. The ‘fixation’ or ‘fixed’ term means that the work must be recorded in writing or otherwise [3] this includes and form or notion of code, either by hand or otherwise and regardless of the method by which or medium in which it is recorded [4]. Original or originality is not defined by the CDPA 1988, it is required that the work was originated from the author and not copied from another work. The work does not have to be different, it depends on the way the work was created. For example, a mobile phone application that embodies the same idea as another however has a different look and feel to the user is considered as original work.

For copyright to exist in terms of literary, musical, dramatical, or artistic work, it must qualify as ‘work’. Work is determined by the amount of skill, labour and judgement that has gone into creating it. This means that the author of the work is the individual who has put the most skill, labour and made the most judgements on the work. However there have been some discrepancies in this as there are differences in opinion on how much skill, labour and judgement is required. In terms of case law for ‘work’ one must look at the case of Hyperion records v Sawkins. Sawkins (S) had created new performing editions of four of his works. In total this work took 300 hours and that involved S making 3000 editorial interventions to the works. In October 2002, Hyperion Records (H) produced a CD featuring performances of the four performing editions that Sawkins created. H said that S was not entitled to copyright in these editions as editor should not obtain copyright in non-copyright work. It was held that the skill and time that S invested in making the works was enough to make them “original”, H had infringed S as he did not identify him as author.

There are 8 types of original work recognised by the CDPA 1988. Literary works, dramatic works, musical and artistic works, sound recordings, films, broadcasts and typographical arrangements of published editions but for this essay we will only be explaining the main 3.

Literary work is any work other than a dramatic or musical work, which is written, spoken or sung [5]. Literary works can consist of technological work such as software, databases and computer programs. In Anacon Corp Ltd v Environmental Research Technology it was found that circuit diagrams from which circuit boards are made into literary work as well as artistic work as the writing on the diagram is meant to be read and not just to be appreciated by eye.

Dramatical work includes a dance or a mime [6]. However, there is debate on whether this includes television and films for example in Norowzian v Arks Ltd (N0 2) where N had created a film called joy which includes a man dancing with a plain backdrop, which was edited heavily. The defendants produced an advert for Guinness called ‘anticipation’ that used a man dancing in a similar fashion and was edited similarly. It was held that the work couldn’t be dramatic work as it cannot be performed in front of a live audience.

Musical work consists of music, exclusive to any words or action intended to be sung spoken or preformed with the music [7]. A small number of notes and chords are enough for copyright protection as seen in Lawson v Dundas the four-note theme is enough to be protected by The CDPA 1988.

Once original work is present, one must then determine authorship and ownership of the work. Authorship is the person who creates the work.[8] In the case of Walter v lane (1900) it was said that the author is the individual who has extended the necessary effort, skill and labour in creating the work. There is also a possibility of joint authorship where two or more authors have collaborated and the contribution of the authors cannot be distinguished.[9] Ownership of the work generally falls to the author who is in most cases the first owner of a copyright work. A clear example of this can be seen in Griggs group v Evans (2005) where Griggs who are the manufacturers of the footwear Doc Martens they hired an ad agency to create a logo which would combine two of their existing trademarks ‘Airwair’ and ‘Dr Martens’, Evans was hired by the agency to create the logo. Evans assigned copyright to a Australian company who used it on their own products. It was held that the right to use the logo and to exclude others from using it belonged to the belonged to the client and not the designer.

The CDPA 1988 states that the copyright owner has the only right to copy the work, issue copies of said work, rent out or lend the work to the public, preform, show or play the work in public, communicate the work in public and to make an adaptation of the work.[10]

Copying the work comprises of the reproduction of the work in any material form and storing of the work in any medium by electronical means for instance taking a picture or scanning a document or recording live music to a digital format equates to copying. On the other hand, similar works do not infringe copyright as there must be a connection that the work is derived from the claimants. In Francis Day & Hunter v Bron the defendant had produced a song called ‘Why’ the claimant argued that the first 8 bars in the song were reproduced from their son called ‘in a little Spanish town’. The courts held that there must be a causal connection between the works and that the similarity must be sufficient and objective.

Adaptation in terms of copyright differs from copying as it only applies to the literary, dramatical and musical works. This includes dramatisations and translations. Although there is a connection with copying, it is not as specific as adaptation. In Harman pictures v Osborne the claimants argued that the film created by Osborne copied a historical book, though there were parts that were different it was held that the similarities of incidents and situations suggested that they were both based on the same historical event.

Impact of internationalism of digital technologies

As we know the laws on copyright are outdated and are not up to par with this time as technology grows and we approach the age of online information, where ideas are spread internationally and very quickly. It is important that the IP laws are adequate to deal with the ever-growing digital technology as there are more ways to share goods and services. For example, the effect on the film and music industry due to growing technologies is having a great impact as films and music are pirated online and are accessed very easily and shared. This is causing a great loss for the industry as much as 20% of their annual turnover[11]. This creates challenges as it will affect jobs in addition it will have a detrimental effect on the industry in the UK as it is cheaper to reproduce this work using the internet which does not require cost. An argument made by Andrew Gowers in ‘Gowers Review of Intellectual Property’ is that the infringement on IP in the digital world need to be more stern as the penalties are softer for digital cases then civil cases[12]. This will prevent IP infringement digitally where it is most common also we can give the power to enforce IP infringements to trading standards.

Since the creation of the CDPA 1988 there have been numerous technological advancements, the problems this creates for IP are that it is easier now to copy or reproduce work and share it then it has ever been making it easier for the circulation of reproduced or counterfeit goods like songs in the form of MP3 files without the owner’s permission. In addition, new technologies do not fit into the scope of original work that is stated by the CDPA 1988 this causes confusion as it is not alike standard definitions of work, for example genetics or medicine.

Copyright for Liam & Aleesha

Firstly, originality and fixation must be established in the work for copyright to exist, it can be determined that Liam’s work is fixed as he records the music and has it uploaded to the bands website to share to his fans, it can also be determined that the work is original as Liam writes his own music and lyrics.

Secondly, the work is determined by the Skill, labour and judgement test. In terms of Liam he has put his skills of writing the music and lyrics for the band and has shown that he put is the labour as well as he writes all the bands songs, only a small portion is provided by the other members which includes Aleesha. From this information, it is determined that Liam is the author of the work as he is putting in the most effort, skill, labour and judgement into it. As seen in the case of Walter v Lane (1900) where it was said that the author of a work is one who extends the necessary effort, skill, labour and judgement in the work. Aleesha would not be a joint owner as her contribution is distinguished as a small portion. From this It can easily be decided that Liam is the owner of the music and lyrics.

Thirdly it must establish whether there has been a copying of the work. In this case Robbie, has copied Liam’s work as he has digitally sampled his music without the right of the owner (Liam) it states in the CDPA 1988 that copying of the work includes the reproduction of the work in any material form. It can be said that there is a casual connection as the music is sampled directly from Musik Dynamites work. In addition, the case of Lawson v Dundas further reinforces the argument as it was established that as little as 4 chords or notes are sufficient for copyright.

Also from the information gathered it can establish that the owner (Liam) has not given consent to Robbie or Aleesha for them to use or sample his music as it doesn’t state otherwise. From this information, a strong argument is made that an infringement of copyright has occurred.

Conclusion

In conclusion, this essay has thoroughly clarified on what copyright is in terms of the CDPA 1988 and given relevant cases to illustrate points made demonstrating legal knowledge. It has explained legal terminologies and defined them in junction with the CDPA 1988 and has clearly described what copyright infringes. Furthermore, it has discussed the growing impact of internationalism in digital technologies. In summary from the research conducted the law regarding IP needs updating in terms of new technological advancements to keep up with the protection of work as It would affect sectors such as the film and music industry negatively. Finally, the essay has examined the case of Liam v Aleesha and Robbie and has concluded that Aleesha and Robbie have infringed copyright by sampling music by Musik Dynamite without the right of Liam who is the author and owner of the music.

Bibliography

Books

Gowers A, Gowers Review of Intellectual Property, HM Treasury 2006

MacQueen H, Contemporary Intellectual Property: 2^nd edition Law and Policy 2010

Patterson, L. R., Copyright in Historic Perspective, Vanderbilt University Press, 1968

Cases

Anacon Corp Ltd v Environmental Research Technology [1994] FSR 659

Francis Day & Hunter v Bron [1963] Ch. 587

Griggs group v Evans [2003] EWHC 2914 (Ch)

Harman pictures v Osborne [1967] 1 WLR 723

Hyperion records v Sawkins [2005] EWCA Civ 565

Lawson v Dundas [1985] The Times 13

Norowzian v Arks Ltd & Anor (No. 2) [1999] EWCA Civ 3014

Walter v Lane [1900] AC 539

Legislation

The Copyright, Designs and Patent act 1988

[1] Copyright in Historical Perspective, p. 136-137, Patterson, 1968.

[2] The Copyright, Designs and Patent act 1988 s.1(1)(a)

[3] The Copyright, Designs and Patent act 1988 s.3 (2)

[4] The Copyright, Designs and Patent act 1988 s.178

[5] The Copyright, Designs and Patent act 1988 s. 3

[6] The Copyright, Designs and Patent act 1988 s. 3(1)

[7] The Copyright, Designs and Patent act 1988 s. 3

[8] The Copyright, Designs and Patent act 1988 s.9 (1)

[9] The Copyright, Designs and Patent act 1988 s.10 (1)

[10] The Copyright, Designs and Patent act 1988 s.16

[11] Andrew Gowers, Gowers Review of Intellectual Property p.3

[12] Andrew Gowers, Gowers Review of Intellectual Property p.4