Preface
How to use the User’s Guide
Glossary of terms commonly used in the User’s Guide
Table of statutes
Table of statutory instruments
Table of cases
Part 1 Copyright law
1 What is copyright?
Introduction
The basic principles of copyright
The nature of copyright
Copyright and intellectual property generally
The CDPA
Statutory instruments
Orders in Council
EU law
International conventions
Case law
Passing off, breach of confidence and privacy
The history of copyright in the UK
The structure of the CDPA
Copyright and Freedom of Expression: the Human Rights Act 1998
2 Copyright Works
Introduction
Literary works
Dramatic works
Musical works
Literary, dramatic and musical works – fixation
Artistic works
Sound recordings
Films
Broadcasts
Cable programmes
Published editions of works
Only ‘works’ protected
Real life events
Format rights
Image personality rights and copyright distinguished
Public policy and the denial of protection
3 Originality
Generally
Titles and names
Photographs
Abridgements and arrangements
Independent creation
Identical subject matter
4 Qualification for protection and international copyright
Qualification
General
Author: ‘material time’
Author: ‘qualifying person’
Qualification in country of first publication
The meaning of ‘publication’
Acts not constituting publication
Broadcasts – qualification for copyright protection by reference to the place of transmission
Extension of the CDPA overseas
Application of the CDPA overseas to foreign works
Denial of copyright protection
Territorial waters, continental shelf, ships, aircraft and hovercraft
International copyright: the Berne Convention and the Universal Copyright Convention
The ‘national treatment’ principle
The principles of ‘minimum standards’ and ‘reciprocity’
Differences between the Berne Convention and the UCC
Copyright symbol
Other international copyright Conventions and agreements
(a) The Rome Convention
(b) The Phonograms Convention
(c) The WTO, TRIPS and GATS
(d) The WIPO Treaties
Summary
5 Term of copyright and publication right
Introduction
Literary, dramatic, musical and artistic works
Unpublished literary, dramatic, musical and artistic works
Computer-generated works
Sound recordings
Copyright in sound recordings made before 1 August 1989
Films made before 1 June 1957
Films made between 1 June 1957 and 1 August 1989
Films made after 31 December 1995
Broadcasts
Published editions
Anonymous and pseudonymous, literary, dramatic and artistic works (except photographs)
Unpublished works – publication right
The qualification for publication right
Period of publication right
Application of copyright provisions to publication right
Works of joint authorship and co-authorship
Crown copyright
Parliamentary copyright
Copyright vesting in certain international organisations
Peter Pan and the Hospital for Sick Children
Universities’ and colleges’ perpetual copyright
Performances
6 Restricted acts and acts of secondary infringement
Introduction
The restricted acts summarised
Authorisation
Copying
The issue of copies to the public
Rental and lending
Performance, playing or showing of a work in public
Communication to the public
Adaptations or acts done in relation to adaptations
Secondary infringement: importing, possessing, dealing with or providing means for making infringing copies
Infringing copies
Secondary infringement: use of premises for infringing performances
Secondary infringement: provision of apparatus for infringing performances
Secondary infringement: knowledge and belief
7 Infringement of copyright and remedies
Primary and secondary infringement: a summary
Proving infringement
Intention: strict liability
Use of ideas and characters
Parodies
‘Substantial part’
Quotations
Proof of damage unnecessary
Factual sources
Liability for infringement
Remedies for infringement
Damages
Damages for flagrancy
Account of profits
Delivery up and forfeiture
Injunctions and interim injunctions
Who may sue?
Technical provisions concerning claimants and defendants in civil actions
Criminal proceedings
Penalties in criminal proceedings
Notice to HM Revenue & Customs
Company directors and officers liable for infringement
‘Knowing or having reason to believe’
The Enforcement of Intellectual Property Rights Directive
8 Exceptions and defences to copyright actions
Acts permitted in relation to a copyright work
Mandatory exception: making of temporary copies
Fair dealing
Research and private study
Criticism, review and news reporting
Substantial use in relation to fair dealing
Use must be fair: motive and substantial part
Sufficient acknowledgement
Incidental inclusion
Disabled persons
Education, libraries and archives
Libraries and archives
Public administration
Computer programs: lawful users
Databases
Designs
Typefaces
Works in electronic form
Miscellaneous permitted acts
General
Anonymous or pseudonymous literary, dramatic, musical and artistic works
Use of notes or recordings of spoken words
Public reading or recitation
Abstracts of scientific or technical articles
Recordings of folksongs
Representations of artworks on public display
Advertisements for sale of artistic works
Subsequent works by the same artist
Reconstruction of buildings
Lending to the public
Miscellaneous permitted acts: films
Sound recordings
‘Ephemeral recordings’ for broadcasts
Supervision of broadcasts and other services
Time shifting
Photographs of broadcasts
Transmissions to public and non-paying audiences
Recording of broadcasts for archival purposes
Adaptations
Revived copyright: action taken before copyright revived
9 Ownership, transmission and licensing of copyright
Distinction between copyright and objects
Basic rules of authorship and ownership
Literary, dramatic, musical and artistic works and computer-generated works
Sound recordings
Films made after 30 June 1994
Broadcasts
Typographical arrangements of published editions
Works of joint authorship and co-authorship
First ownership of Crown and Parliamentary copyright
Ownership of publication right
Works created in the course of employment
Assignment by terms of employment and engagement
Ownership in works created before 1 August 1989
Films made before 1 July 1994
Commissioned works: pre-CDPA
Photographs: pre-CDPA
Sound recordings: pre-CDPA
Ownership of extended copyright
Ownership of revived copyright
Registration
Assignments and exclusive copyright licences: what do ‘sole’ and ‘exclusive’ mean?
Assignments limited to part of copyright
Assignments and exclusive licences must be in writing
Assignment of future copyright
Assignments of extended or revived copyright made before 1 January 1996
Presumption of transfer of rental right to film producers by authors
Right to equitable remuneration where rental right is transferred
Distinction between assignments and licences
Exclusive, non-exclusive and implied licences
Licences of uncontemplated technologies
Licences of extended or revived copyright
Other forms of transmission – insolvency and death
Reversion of works assigned before 1 June 1957
Dealings with copyright within the European Union
Moral rights
Performers’ property rights
Partners
10 Moral rights
Introduction
Paternity right
Paternity right: who is protected?
Paternity right: literary and dramatic works
Paternity rights: musical works and lyrics
Paternity right: artistic works
Paternity rights: commercial publication
Paternity right: the need for assertion
Paternity right: the persons bound by an assertion
Paternity right: exceptions
Duration of right of paternity
Right to object to derogatory treatment (the ‘integrity right’)
Integrity right: who is protected?
Integrity right: literary, dramatic and musical works
Integrity right: artistic works
Integrity right: films
Integrity right: no need for assertion
Integrity right: exceptions
Integrity right: secondary infringement
Duration of right of integrity
False attribution of work
Infringement of the right to prevent false attribution
Duration of the right of false attribution
Right to privacy of photographs and films
Exceptions to right to privacy
Duration of the right to privacy of photographs and films
Extended and revived copyright – exercise of moral rights
Assignment and transmission of moral rights
Consents and waivers of moral rights
Joint works
Application of moral right to parts of works
Works made before 1 August 1989
Moral rights in performances
The identification right
The integrity right (ie right to object to derogatory treatment)
Other provisions in relation to performers moral rights
11 Rights in Performances
Introduction
Relevant performances
Persons entitled to rights in performances
Recordings of performances
Qualifying performances
Non-property rights
Recording and broadcasting of performances
Use of recordings made without consent
Importing, possessing or dealing with illicit recordings
Persons having recording rights
Infringement of recording rights
Property rights
The reproduction right
The distribution right
Rental or lending of copies to the public
The making available right
Equitable remuneration
Exceptions to rights in performances
Duration of rights in performances taking place after 1 January 1996
Duration of rights in performances given before 1 January 1996
Assignability of performers’ non-property rights
Assignability of recording rights
Assignability of performers’ property rights
Entitlement to extended and revived performers’ rights
Consents
Civil remedies for infringement of performers’ non-property rights
Civil remedies for infringement of performers’ property rights
Infringement of revived performers’ rights
Criminal liability
Performers’ moral rights
12 Collective management and licensing of copyright: Collecting societies, copyright licensing schemes and the Copyright Tribunal
Collecting societies (collective management bodies)
Extended Collective Licensing
Compulsory licences for the inclusion of sound recordings in broadcasts
Collective administration of cable retransmission right
Control and regulation of collecting societies
UK Regulation under the CDPA
Licensing schemes
Licensing bodies
Referral of licensing schemes to the Copyright Tribunal
Referral of individual licences offered by licensing bodies to the Copyright Tribunal
Factors to be taken into account by the Copyright Tribunal
Implied indemnity in licences for reprographic copying
UK regulation under the CMO Regulations
EU regulation of CMOs
Competition law
13 EU law, competition and copyright
Introduction
EU legislation and strategies
Freedom of movement of copyright material
Exhaustion of rights
Freedom of movement of services
EU competition law and copyright: Arts 101 and 102 of the TFEU
Parallel provisions in UK law
Article 101(1) – agreements restricting competition
Appreciable effect
Effect of infringing Art 101(1)
The possibility of exemption
Exclusive copyright licences and Art 101
Co-operative joint ventures and Art 101
Article 102 – abuse of a dominant position
Meaning of ‘dominance’
Meaning of ‘abuse’
Examples of ‘abuse’
Refusal to license
Tying
14 The protection of databases
Introduction
Definition of a ‘database’
Databases as literary works
Database right
Database right: ownership
Database right: qualification
Database right: duration
Database right: restricted acts and infringement
Database right: avoiding contractual limitations
Database right: exceptions to infringement and permitted acts
Database right: assumptions and presumptions
Database right: remedies
Database right: licensing
Database right: transitional provisions
Part 2 Copyright in use
15 Publishers and printers
Introduction
Definitions
Ownership
Quotations and acknowledgements
Foreign authors
Assignments and licences
Ownership of manuscripts
Reversionary copyright
Publishing agreements not considered
National libraries: obligation to deposit
Importation of books
International copyright protection
Published editions of works
Typefaces: exception for use of typefaces in printing
Moral rights
General
16 Newspapers, magazines and periodicals
Introduction
Definition
Contributor’s copyright
Freelance and unsolicited contributions
The news
Quotations
Fair dealing: reporting current events
Fair dealing: criticism and review
Use of notes or recordings of spoken words
Pseudonyms
Digital issues and newspapers, magazines and periodicals
17 Schools, universities and other educational establishments
Introduction
Definitions
Copying of literary, dramatic, musical and artistic works and published editions
General exceptions
Research and private study
Criticism, review, quotation and news reporting
Education-specific exceptions
Illustration for teaching
Copying and use of extracts by educational establishments
Making works available through dedicated terminals
Use of sound recordings, films and broadcasts
Recording of broadcasts
Performing, playing or showing of works in the course of educational activities
Performers’ rights
Ownership of copyright by teachers
Lending by educational establishments
Copyright licensing
18 Libraries, archives and museums
Introduction
Definitions
Copying by libraries – generally
Single copies of published works
Copying by librarians or archivists of certain unpublished works
Supply of single copies for other libraries
Replacement copies of works for libraries, archives and museums
Copies of work required to be made as a condition of export
Making works available through dedicated terminals
Copying for archival purposes of sound recordings and broadcasts
Legal deposit
Orphan works
The EU Orphan Works Directive
The UK orphan works licensing scheme
Lending of books by libraries
The statutory lending right
The public lending right
19 Businesses and the professions
Introduction and definitions
Infringement of copyright by copying
Liability
Copyright ownership distinct from material ownership
Exceptions to copyright
Research and private study
Criticism, review, quotation and news reporting
Judicial proceedings
Text and data mining
Abstracts of scientific or technical articles
Damages for making unauthorised copies
Avoidance of liability
Licences
Copyright Licensing Agency Ltd
NLA Media Access Ltd
Other licences
20 The music industry: publishers and composers, artists and record companies
Introduction
Part I: Publishers and composers
The copyright owner’s rights: restricted acts in musical works
Quality and originality
Material form
Ownership
Performing rights: the Performing Right Society (PRS)
Mechanical rights: the Mechanical Copyright Protection Society (MCPS)
Sheet music
Publication of music overseas
Term of copyright
Infringement – the substantial part rule
Exceptions to the copyright owner’s exclusive rights
Incidental inclusion of musical works in other works
Moral rights in musical works
Part II: Artists, records and the recording business
Copyright in recordings distinguished from copyright in underlying material
The copyright owner’s rights: restricted acts in sound recordings
Ownership
Term of copyright
Originality
Mechanical royalties
Phonographic Performance Limited (PPL)
Video Performance Limited (VPL)
Rental and lending of sound recordings
Agreements with recording artists
Performers’ equitable remuneration – public performance and broadcasting of sound recordings
Performers’ equitable remuneration – rental of sound recordings
Exceptions to the copyright owner’s exclusive rights
Labelling
Infringement of copyright in sound recordings
Parallel importation of sound recordings
Use of recordings by other media
Moral rights for performers in sound recordings
Private copying
21 Drama, ballet and opera production
Introduction
Definitions
Set designs, costumes, properties and the like
Use of existing artistic works in the theatre
Rights of the director
Lighting designs
Expressions, not ideas, have copyright
Plays, sketches and other live theatrical entertainments (except ballet and opera)
Mimes, choreography and choreology
Ownership of dramatic works
Adaptations of dramatic works
Plots
Use of real life incidents in the theatre
Exceptions
Moral rights
Improvisations
Deposit requirements – Theatres Act 1968
Opera, ballet and original musicals – grand rights
Filming or broadcasting opera, ballet and live theatre
Music incorporated in live theatre productions (except ballet, opera and original musicals)
Contracts with theatre owners
Dealing with dramatic works
Points to be covered in licences of dramatic works
22 Film and television production
Introduction
Definitions
The elements of production
Issues when acquiring rights – ancillary rights
Issues when acquiring rights – moral rights
Issues when acquiring rights – performers’ rights
Issues when acquiring rights – rental rights and equitable remuneration
Issues when acquiring rights – films as dramatic works
Issues when acquiring rights – works of joint authorship
Issues when acquiring rights – musical compositions
Issues when acquiring rights – sound recordings
Sequels, prequels and remakes
Co-productions
Infringement
Permitted acts
Duration
International issues – local formalities and foreign registrations
23 Public performance: discotheques, concert halls, cinemas, theatres, clubs, hotels, etc
Introduction
Definitions
The public performance of music and sound recordings
Musical compositions – PRS public performance licences
Exceptional cases where no PRS licence is required
Opera, ballet and other ‘grand rights’
Division of PRS fees and royalties
Recorded music – PPL public performance licences
Jukeboxes
Public performances of broadcasts
Meaning of paying audience
Plays and dramatico-musical works
Cinemas
Owners’ and occupiers’ liability
Copyright Tribunal
Performers’ rights
24 Networked communications: broadcasting, cable, internet and mobile transmissions
Introduction
Definitions
Broadcasts and digital products – ownership of copyright
Broadcasts
Digital products
Broadcasts and digital products – moral rights
Broadcasts and digital rights – term of copyright and licensing
Duration of rights
Acquiring and licensing rights
Shrink wrap licences
Click wrap licences
Browse wrap licences
Implied licences
Broadcasts
Wireless broadcasts – overspill and the ‘country of origin’ principle
Infringements
Broadcasts – acts permitted in relation to broadcasts
Broadcasting live events
Broadcasts, public performance and communication to the public
Broadcasts
Satellite broadcasts in the EEA
Cable retransmissions of local/national wireless broadcasts
Cable retransmissions of broadcasts from other EEA states – the ‘cable retransmission right’
Satellite broadcasting of films and international co-productions
Encrypted transmissions
Satellite broadcasting and cable agreements
Fraudulent reception of transmissions
Fraudulently receiving programmes
Unauthorised decoders
Search warrants and forfeiture
Broadcasting copyright works, communication to the public and fair dealing
Spoken words
Published editions in interactive services
Computer programs
Musical compositions
Sound recordings of musical compositions and music videos
Fair dealing
Digital products – infringements
Incidental inclusion
Digital content – linking and framing
Linking
Framing
Digital rights management systems
Circumvention of protection measures
The 2001 Directive
The CDPA and protection against circumvention
Circumvention of technical devices applied to computer programs
Circumvention of technical measures in relation to works other than computer programs (civil remedies)
Criminal sanctions regarding devices and services designed to circumvent technical measures
Fair dealing and circumvention
Case law relevant to ss 296ZA to 296ZE
Rights management information
Online piracy and enforcement
Peer-to-peer (P2P)
BitTorrent
The piracy landscape
Direct action against infringers
Online intermediaries
Intermediary injunctions
Search engines and metatags
The ‘safe harbour’ defences
Acting as a mere conduit
Caching
Hosting
Applicable law and jurisdiction
Practical protection measure: ‘geoblocking’ etc
The EU Enforcement Directive
Domain names – definition
Domain names – registration
Domain names – cyber squatting
Domain names – ICANN and dispute resolution procedures
ICANN
The World Intellectual Property Organisation (WIPO)
The Nominet UK dispute resolution service
25 Artists, photographers, art galleries, art dealers and museums
Introduction
Definitions
Ownership and infringement
Restricted acts – general
Restricted acts – copying (two- and three-dimensional)
Restricted acts – issuing copies to the public
Restricted acts – rental and lending of artistic works
Restricted acts – communication to the public
Exceptions and defences to copyright infringement
Museums and galleries
Incidental inclusion of artistic works in other copyright works
Artists’ reserved right of reproduction
Duration of copyright
Ownership of copyright
Dealing with copyright in artistic works
Collective licensing
International protection
Photographs
Caricatures, parodies and pastiches
Use in exhibitions of film, music and other works
Moral rights and artistic works
Artists’ resale rights
Publication right and museums and public galleries
26 Architects and architecture
Introduction
Definitions
Restricted acts
Originality and artistic content
Duration of copyright
Qualification
Publication in relation to artistic works, such as architecture
Ownership of architectural works
Employees and sub-contractors
Ownership of drawings
Exceptions from infringement of architects’ copyright: photographs and graphic works
Reconstruction
Fair dealing
Special exceptions
Infringement
Licences: express licence
Licences: implied licence
Alterations to architect’s drawing and works of architecture
Remedies for infringement: injunction
Remedies for infringement: damages
Moral rights
27 Advertising agencies
Introduction
Copyright in advertisements
Ownership
The client and copyright in advertising material
Unsolicited copyright material
28 Software
Introduction
Definitions
Types of work – literary and artistic works
Copyright protection and originality
Ownership of copyright in computer programs
Copyright in commissioned programs
Ownership of computer output
Duration of copyright
Restricted acts applicable to computer software
Infringement by copying
‘Substantial part’
Issuing copies of software to the public
Rental and lending of computer software
Infringement of software copyright by adaptation
Fair dealing with computer programs
Transfer of copies of works in electronic form
Back-up copies
Decompilation
Observing, studying and testing computer programs
Other acts permitted to lawful users of software programs
Moral rights not applicable
‘Seeded entries’
International protection
Anti-spoiler devices
Part 3 Appendices
Appendix 1 Relevant organisations
Appendix 2 Table of Incidence of Copyright
Index