Law of Intellectual Property - Essay Example

?Copyright Law Introduction Copyright is a property right that is created without any formality such as registration in works and other matter. Main conditions for its subsistence are that the work needs to be original, fixed and meets the points of attachments such as nationality and place of residence. Copyright can subsist only if it is a legally permitted work as Younger J had observed that a copy right cannot exist in a work that “is grossly immoral” in Glyn v Weston Feature Film Company (1916). It is important to understand that ownership of work by purchase or other transfers does not by itself give copyright of that work to the owner. Legal issues that arise out of the case under consideration is whether there has been any infringement on the part of Julian who has used the photographs and paintings which Techno Ltd has compiled in a DVD under licence from Howard who is the owner of the original photographs and paintings. Whether Julian has committed the act of secondary infringement? Whether Julian is liable to Techno ltd which makes the DCD under licence or to Howard, the original owner or to both. Artistic work Section 4(1) (a) defines an “artistic work” to include photograph among other items regardless of artistic quality. S 4(2) (a) & (b) define “graphic work” to include “any painting, drawing, diagram, map, chart, or plan and any engraving, etching, lithograph, woodcut or similar work. Section 12 prescribes duration of a copyright in artistic work among other items as 70 years expiring at the end of the 70th year from the calendar year in which the author dies. If the work is computer generated, duration ends at the 50th year from the end calendar year in which the work was made. This means that copyrights subsists during the life time of the author of a literary work and continues for 70 or 50 years after his death as the case may be. In the present case copy right on the photographs of Howard’s grandfather can be argued to have expired in 2008 i.e 70 years from the year of death of Howard’s grandfather. Most of the artistic works however are Howard’s own and he is entitled to copyrights over his own photographs during his lifetime plus 70 years (N.A., 2007). Under the Copyrights, Designs, Patents Act 1988, (CDPA) it is an offence to carry out the following restricted acts without the owner’s consent. The acts are copying the work, renting, lending or issuing copies of the works in public, perform, broadcast or show the work in public. And adapt the work (UKCCS, 2000). Howard’s engagement of Techno Ltd to compile a digital data base includes all that he possesses and it may amount to secondary works since the data base would include his late grandfather’s artistic works. Secondary works are also original works since compilation involves ‘skill labour and judgement’. In Warwick Films v Elsinger (1969), the defendant’s claim that the books copied from were not original works was countered by the court as both books as original as they had undergone considerable selection from the manuscripts to constitute originality (Colston & Galloway, 2010, p. 293). The data base has been licensed to Techno ltd by Howard and both decide to include data base of their DVD the shipping directory published by Ship Ltd. This DVD has now been acquired by Julian exploits the information contained in the DD for his own book meant for children using the photographs and paintings of Howard. In the absence of terms and conditions of license, it is assumed that they both have become co-owners of the copy rights for the contents of the DVD. By publishing Howard’s grandfather photographs that remained unpublished even after 70 years of his death now in the DVD, they both acquire what is called “publication right” that is equivalent to “copy right” which however enjoys protection only for 25 years from the year of publication In this connection, an exclusive license should be in writing and signed by the owner. This authorizes the licensee to the exclusion of all other persons including the person giving the license to exercise rights otherwise exercisable by the copy rights owner (Davies, 2011, pp. 92-93). Copy right owner’s rights are: Under 16 (1) of CDPA, the owner can copy the work; he can issue copies of the work to the public; he can rent or lend work to the public; to perform, show or play the work to the public; to broadcast the work or include it in a cable programme service; make an adaptation of the work or to do any of these in relation to an adaptation (Davies, 2011, pp. 54-55). Now the issue arises whether Julian’s is an act of infringement of copyrights of either Howard or Julian or both. If any person does any of the above acts without a license or without consent of the owner, he commits an act of infringement. Julian has performed one of the above functions without consent of the owner or license holder. He has therefore committed an act of primary infringement under section 16 (1) of the CDPA. He is said to commit an act of secondary infringement as set out in sections 22-26 of CDPA as Julian is aware of the subsisting copyright but assumes that he can copy them as they are already available in a lending library (Davies, 2011, p. 55). Infringement of secondary works There can be more than one copy right involved in a secondary work. The secondary work itself might be case of infringement but it cannot be a defense to the party that now infringes the secondary work as in the case of Julian above. In British Leyland v Armstrong patents (1986) such a defense was denied. In ZYX Music GmbH v Chris King (1995), court rejected this principle. It was said by the court that secondary work’s copyright owner should account the copy right owners of the sources used for any damages received. The third party has literally infringed the both the secondary work as well as the copyright source directly and indirectly respectively (Colston & Galloway, 2010, p. 385). Secondary infringement The above being cases of primary infringement, the present defendant Julian can also be considered to have committed acts of secondary infringement through different commercial dealing with infringing copies. These acts may not be performed by the primary infringer. In the case of primary infringement liability is strict because of direct knowledge on the part of the primary infringer. Julian uses the painting for the cover page and photographs of Howard inside the book. He does all these without the license of the copy owner (Colston & Galloway, 2010, p. 386). S 16 (3) (a) CDPA 1988 calls it an infringement if it involves copying of a work as a whole or substantial part of it. “Substantial” has been defined in the Concise Oxford Dictionary as “of real importance of value” qualitatively and “considerable amount” quantitatively. Courts have adopted both quantitative as well as qualitative tests to determine substantiality which will differ from one case to another. Because of this, it is not practicable to lay down hard and fast rules as mentioned by Jervis CJ in Sweet v Benning (1855) Lord Arwick has defined “substantial part” if the copying has encapsulated the essence of work that renders purchase of the work not essential. Some other Lords have said that turning the question of facts into question of law through a definition is erroneous. Four factors courts have adopted in the past to determine substantiality are (1) the quality of the work copied, (2) the quantity of work copied, (3) whether copying compete with the original work and (4) defendant’s intent as held in Ravenscroft v Herbert (1980). Applying the above to Julian results as follows. Substantial in quality is proved by Julian’s use of one of Howard’s paintings as his book’s cover page which is significant. . Quantitatively, Julian has used his photographs to be adopted in his book for children about the old and famous ships. This is also substantial part since he uses it for the main purpose of his book. Whether it is in competition with the original work of Techno or Howard, it must be said in the affirmative. Fourthly, as regards the intent, his intention was to copy for his purpose though he thought it was free. Applying these criteria, Julian has not complied with the rules of infringement. But it should be examined whether copied portions is substantial portion of the claimant’s work or defendant’s work. If latter is the case alone should the defendant be deemed to committed infringement (Okpaluba, n.d. ). In Ladbroke (Football) Ltd v William Hall (Football) Ltd (1964), a leading authority for substantial part has been discussed. It is the case of the respondents that they had copied 15 out 16 lists of football matches. Lords felt that question was one of fact and degree and found for the defendants by applying “rough practical test” adapted in University of London Press v. University Tutorial Press Ltd. (1916) wherein it was observed “what is worth copying is prima facie worth protecting. This test touches the importance of the portion copied in the defendant’s wok. (Okpaluba, n.d. ). In view of the above case law, Julian has committed offense under the act copying the work of Howard and Techno Ltd’s DVD. Thus, copy right affords the creator exclusive rights which he can choose to allow or prevent. These are called economic rights which can be treated as a property that can be sold or licensed. If use of a copy right has expired, there is no infringement. The copy right owners also have moral rights which protect on-economic rights. They have right to be identified as author of director. The right to object to derogatory treatment of their works includes photographs. The right to object to false attribution. A copyright owner may transfer his rights in full or part. The transferee becomes assignee. The copy right owner may assign for a fixed sum. Thus, a writer can transfer all his economic rights over a book to a publishing house so that they can market the books on their own, A license is meant to give person to do all acts which the copyright owner is authorized to allow or prohibit. The license may be to a particular person which he can use for a particular purpose or time. Copy right protection over artistic right can be for the life time of the author plus 70 years from the date of his death, There is no special procedure for registration applicable in the U.K. To ensure protection, it is better to record a mark ©, the name of the copyright owner and the year of creation. It serves as a notice to others. Enforcement Only the copy right owner or the person licensed may bring action for civil copyright infringement. If court is approached, court can restrain the infringing person from making further use through injunction. Grant award to the copy right owner (IntellectaulPropertyOffive, n.d. ). . Remedies A claimant can choose for an account of profits. This is a discretionary remedy which enables claimant to make claim against defendant’s unjust enrichment. However, the defendant’s actual profits must be proved. Under English law a claimant cannot claim damages as well as profits. Damages can be awarded as a common law remedy (Colston & Galloway, 2010, p. 790). Conclusion Thus, Howard and Techno ltd depending on the terms of license can claim account of profits from Julian for the infringement of the copy rights which is a strict liability and hence Julian cannot claim ignorance. References 1.British Leyland Motor Corp Ltd v Armstrong Patents Co Ltd, R.P.C. 279, UKHL 7 (1986). 2.Colston, ,. C., & Galloway, J. (2010). Modern Intellectual Property Law 3/e. Oxon: Routledge 3.Davies, C. R. (2011). Intellectual Property Law in the United Kingdom. Kluwer Law International . 4.Glyn v Weston Feature Film Company , 1 Ch 261 (1916). 5.IntellectaulPropertyOffive. (n.d. ). Copy right essentail reading. 6.Ladbroke (Football) Ltd v William Hall (Football ) Ltd, 1 All E.R. 465 (1964). 7.London Press v. University Tutorial Press Ltd., 2 Ch 601,610 (1916). 8.N.A. (2007). Copyright Righs in Performaces . 9.Okpaluba, J. (n.d. ). LLM - LEGAL REGULATION OF THE MUSIC INDUSTRY Lecture Note 10.Ravenscroft v. Herbert, R.P.C. 193,203. (1980). 11.Sweet v. Benning, 139 ER 838,847 (1855). 12.UKCCS. (2000). Factsheet P-01: UK Copyright Law. The UK Copyright Service. 13.Warwick Film Producers Ltd -v- Eisinger, Ch 509; [1967] 3 All ER 367 . (1969). 14. ZYX Music GmbH v King , FSR 566 (1995). Read More