Determining Copyright Infringement - Case Study Example

Copyright Infringement Introduction: Copyright protection for original work is currently provided within the U.K. under the Copyrights, Designs and Patents Act of 1988.1 An amendment to the CDPA in 1996 extended the duration of copyright protection on a work from 50 to 70 years, while recent legislation in reference to copyright also includes the Copyright and related Rights regulations 20032. The CDPA protects copyright for original work that utilizes a high level of human skill and labor with the objective of ensuring that the creator is rewarded for his innovative efforts and hard labor by acquiring the exclusive right to economic exploitation of his work.3 The CDPA has also introduced the concept of moral rights to allow a creator to protect the artistic integrity of their works.4 An infringement of copyright can occur through the doing of a restricted act in relation to the work “as a whole or any substantial part of it.”5 However, in arriving at a determination of whether or not copyright infringement has actually taken place, the tendency of the Courts has been to arrive at decisions based on the merits of individual cases. However, a general trend that emerges is that even in instances where copying of original works have been found, remedy will lie only when infringement is substantial and this has been conditional on the criterion of quality rather than quantity in determining the value of material so infringed. However, legal boundaries have been more clearly established in other countries such as the United States, while in the UK, judgments appear to be on an ad hoc basis providing no legal certainty or consistency, hence the level and delineation of copyright appears indeterminate. Moreover, another aspect that arises in this context is whether such protection as afforded under the Act is adequate in a digital environment where copying is facilitated since the online environment is so structured that a page can be copied without leaving a trace and footprints of the pirate are difficult to track.6 Determining copyright infringement: Although criticisms have been leveled against the recommendations offered by Gowers after an IP review to restrict extensions of copyright on sound recordings,7 nevertheless this review has highlighted the need for greater flexibility and balance in the IP system,8 thereby underlining the fact that the current laws may not offer adequate scope to precisely define limits determining infringement. It may be noted that no precise formula can be pinpointed in the Courts’ decisions on what constitutes infringement. Petersen J set out a rough test for remedy to be provided for infringement of copyright as follows: “What is worth copying is prima facie worth protecting.”9 In order to determine whether or not an infringement of copyright in a work has actually taken place, courts first of all try to define copying by determining whether the alleged items or incidents infringed are ideas or expressions.10 Copyright protection does not extend to mere ideas on which there can be no copyright11, but to “sufficient substance of literary protection.”12 In the case of Ravenscroft v Herbert13, the fact at issue was whether the use of spear that pierced the side of Jesus was an idea in the public domain or whether Herbert’s use of it in his fictional work amounted to infringement of Ravenscroft’s non fictional work. But an infringement was deemed to have occurred because the defendant Herbert had used the specific language and historical material as presented by Ravenscroft, hence he was deemed to have appropriated the skill and labor of the Plaintiff by copying the specific mode and manner of expression as used by Ravenscroft. Colorable imitations of another’s work have also been deemed to be an infringement of copyright when the skill and labor of the creator has been appropriated and damages by way of injunction granted in such cases.14 In the case of Express Newspapers15, the publication of grids and sequences and its specific expression was deemed to involve skill and labor. In some cases, unconscious copying may also take place, however in the case of EMI Music Publishing Limited16 the action brought by the Plaintiffs that four notes in the “Chariots of Fire” theme had been copied unconsciously, was dismissed since the defendant denied his awareness of the prior existing work and the underlying tone of the two musical pieces was so different that subconscious copying was dismissed since the expressions of the two works were so different. In cases involving infringement of copyright, it has been held by the Courts that it is the similarity of expression of an idea rather than the idea itself that will be entitled to copyright protection17. In the recent case of infringement that was alleged in respect of a book written titled “How Opal Mehta got kissed, got a life, …etc” the discovery of infringement of IPR centered upon the similarity of expression of certain passages of the book, although the novel was not substantively the same18. On the other hand, Oasis19 was unsuccessful in its case since the expression and arrangement of copyrightable elements was deemed ephemeral and therefore not protectable. Substantial infringement: Another aspect the Courts have examined in determining remedies when copying has in fact occurred, is in arriving at a determination of whether the material copied is substantial. In the case of Ladbroke, it was stated, that where a defendant has indeed copied, “the question whether he has copied a substantial part depends much more on the quality than on the quantity of what he has taken.”20 In making a determination of whether infringement is substantial, the application of this criterion indicates that even if a small portion of the work is copied, it could be infringement is it is important to the integrity of the entire work. However, as spelt out by Lord Slesser in the case of Hawkes21, infringement occurs only when “a substantial, a vital and an essential part” of a work is copied. In the case of King Features Syndicate, a two dimensional representation of Popeye the sailor was reproduced in a three dimensional form and this was deemed to be substantial infringement, with Simonds J stating that it is “immaterial whether the infringing article is derived directly or indirectly from the original work. The standard is objective.”22 However, it was also clarified in this case that “mere similarity [between two works] is not infringement for there may well be similarity without copying” in which case no infringement exists23. But as pointed out by Vitoria24, in the recent case of Baigent and Leigh v Random House25, Justice Peter Smith found that Dan Brown had made considerable use of material from the work titled “Holy blood and holy grail”, however despite copying being established, this did not lead to a finding of infringement. The Baigent case therefore has arrived at the opposite result to what was achieved in Ravenscroft, since copyright infringement could be established. In this case, the central theme was alleged to have been copied, but a clear, cohesive theme could not be demonstrated and the expressions of such theme were found to be in the form of facts and ideas at a general level. The appropriation of the architecture of arrangement of events which is the fruit of the skill and labor of Plaintiff and therefore copyrightable, could not be substantiated as it was in Ravenscroft. Dan Brown was not deemed to be liable for copyright infringement of central themes, since even if copying had taken place, the nature of the transfer was “too general or of too low a level of abstraction” to constitute infringement.26 In the court’s view, although non literal copying can also constitute infringement, this does not include works “at an extreme level of abstraction” where literary development would be prevented to protect the copyright of the original author.27 In essence, the appropriation of the skill and labor of the original author could not be established in Baigent as it was in Ravenscroft. Therefore the end result was that despite the fact that copying had taken place, the requirement of substantial copying required to prove infringement could not be established. In the case of Ravenscroft, where assessment of damages was concerned the Court held that although the “infringing part represented only 4% of the defendant’s work, the value of that 4% was 15% of the whole.”28 However, in the case of Elanco, while an infringement was deemed to have occurred, it was held that damages did not provide adequate remedy for either party and the status quo was favored from the perspective of the balance of convenience.29 Similarly, in the case of Spelling Goldberg Productions30 no infringement was found because a substantial portion had not been taken. Fair use: Where copyright infringement is alleged, the defense of fair use may be relevant in some cases, since members of the public make use copyrighted material for private use or for research purposes. The defense of fair dealing or fair use was not held to be applicable in the case of Sillitoe31 since the material used was in the nature of an exposition rather than for research. But in the case of Hubbard and another v Vosper and Another32 although considerable portions of Hubbard’s work were substantially used in Vosper’s work, the purpose was to provide literary criticism which was deemed to be a fair use of the material. Similarly, in the case of University of London, the defense of fair dealing resulted in a verdict of no infringement, since a man may take part of or even the whole of a copyrighted work if he adds considerable matter to it that is derived from his own labor and skill.33 On the basis of the above, it may be noted that the decisions of the Courts do not lend themselves to any legal certainty or consistency in the determination of copyright infringement, rather they seem ad hoc and dependent upon circumstances of individual cases. Comparison to precedents set in U.S. Courts: In contrast to the lack of legal certainty in establishing copyright infringement and damages in the UK, extrinsic and intrinsic tests34 are applied in the United States in arriving at a clear determination of whether substantial copying has taken place. In the case of Funky Films Inc v Time Entertainment Co35, the finding of the Court was that there was no substantial infringement, since the peripheral material that had been copied was not integral to the original work, while in Stromback v New Line Cinema, the action alleging infringement of copyright was dismissed since the two works in question differed in their overall form, look and the expressive elements used within them.36 An extrinsic test is an objective test of similarity between two works which depends on “specific criteria which can be listed and analyzed.”37 The intrinsic test is a subjective one, wherein the impressions of an ordinary person who views both works are noted and examined by the jury in arriving at their conclusions on whether infringement has taken place, but the important factor is that “a jury may not find substantial similarity without evidence on both the extrinsic and intrinsic tests.”38 There is a greater weight accorded to the extrinsic tests since in this case, the Court does not just compare the basic plot or the general impressions gleaned by a subjective viewer, but also “the actual concrete elements that make up the total sequence of events and the relationships between the major characters.”39 In the case of Murray Hill Publications40 the Plaintiff won its suit at the jury trial in the lower Court, however the Court of Appeals applied a different standard to adjudge substantial similarity. It held that the elements of a copyright defendant’s work that had been created independently prior to the time of access of the Plaintiff’s material could not be included within the analysis of substantial similarity between the two works. Rather, they had to be filtered out, since they had been created before the alleged access and only those elements that remained could be compared. In this context, it must also be stated that even if a Plaintiff’s work is the main source of inspiration for a defendant’s work, this will not of itself constitute infringement41 unless the tests are satisfied after necessary filtration. Conclusion: On the basis of the above, it may be noted that clear legal parameters have been set up to establish infringement of copyright in the United States. However, with the UK, the Courts try to determine what is equitable depending upon the facts of the case and there is a lack of consistency in the decisions. Clear boundaries need to be set up, especially in the context of the new electronic environment which facilitates copying. Danay has discussed peer-to-peer file sharing of music in the context of the freedom of expression that is guaranteed under Article 10 of the European Convention of Human Rights and incorporated into UK law through the Human Rights Act of 198842. He argues that the traditional idea/expression dichotomy cannot be relied upon to prima facie deny breaches of copyright under this Article, since such breaches may be justified to some extent in a democratic society. The conflict between the rights of the copyright holder in the context of extended copyright periods and the right of the public to access copyrighted material for information and public use has been exacerbated in recent times due to the facility for copying that is afforded by the digital environment.43 Under the TRIPS international agreement, software is protected on par with literary texts, under copyright law.44 Since software development has been a relatively new area of creative product development, it has been accessible to a large number of users fairly easily, but this has raised legal issues of protection of the rights of the owners of the intellectual property and their right to economic benefit from the fruits of their creativity vis a vis the right of the public to fair use of the material, when the charge of infringement will be limited. There have also been amendments made to the Copyright designs and Patents Act of 1988. For example some exceptions for fair dealing have been introduced to the general rules on copying for the benefit of educational use, such as students who wish to use extracts from copyrighted books in their assignments or for some other public uses. The use of TPMs which cannot be circumvented help in protection of copyright in software by preventing interoperability, while protection offered to TPMs are not considered a bar when materials are used for research purposes.45 However, what is more important is that clear boundaries must be set by the courts in establishing the criteria for how much copying exactly will constitute copyright infringement, and such criteria must be implemented on a consistent basis in order to avoid the current state of legal uncertainty. More amendments may also be necessary in the law to incorporate more European Directives and the need to address issues arising out of an electronic environment. Bibliography Books/Articles/Legislation: * Article 10 (1) of the Trips agreement. Also see Article 10, clause 2 of the TRIPS agreement which provides that Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971)”). * Byrne, Matt, 2006. “Gowers IP reviews faces backlash for thwarting copyright extension” Lawyer, 20(48): 4 * CDPA, available online at: http://www.jenkins-ip.com/patlaw/cdpa1.htm * Copinger’s Law of Copyright, 5th edn, p 156. * Cornish, W.R., 1996. Intellectual Property 3rd edition. Sweet and Maxwell * Danay, Robert Jacob, 2005. “Copyright vs Free Expression: The case of peer to peer file sharing of music in the United Kingdom.” International Journal of Communications Law and Policy, Volume 10 * GUARDIAN (Article), 2006. Harvard Student’s novel withdrawn from sale Associated Press, April 28, 2006. [Online] available at: http://books.guardian.co.uk/news/articles/0,,1763700,00.html * Gowers, Andrew, 2006. “Andrew Gowers Speech to CIPA Congress, 3rd November 2006” Chartered Institute of patents Agents Journal, 35(11): 706-709. * Holyoak and Torremans (2005) “Intellectual property law” at pp 172 * Lessig, Lawrence (1999) “Code and other laws of Cyberspace” Basic Books * Skone and Copinger on Copyright, 13th edn at paras 8 to 54 * TASI “Copyright and digital images” [online] available at: http://www.tasi.ac.uk/advice/managing/copyright.html * Times online report dated April 7, 2006. [online] available at: www.timesonline.co.uk/article/0,,200-2123600,00.html * Vitoria, Mary, 2006. “Another mystery thriller – the Da Vinci Code Judgment” European Intellectual property review. Cases: * Amini Innovation Corp v Anthony California Inc, (05-1159) U.S. Court of Appeals for the federal Circuit.(2006) * Baumann v Fussell (1978) RPC 485 * Baigent and Leigh v Random House [2006] EWHC 719 (Ch) * Berkic v Crichton, 761 F.2d 1289 at 1293 (1985) 9th Circuit court * Creation Records Ltd & Others v News Group Newspapers Ltd (1997) EMLR 444 * D.P. Anderson & Co Ltd v The Lieber Code Company (1917) 2 KB 469 * Elanco products Ltd and Another v Mandops and Another (1979) FSR 46 * EMI Music Publishing Limited v. Papathanasiou and Others [1993] E.M.L.R. 306 Ch D * Express Newspapers Plc v Liverpool Daily Post & Echo Plc [1985] 1 W.L.R. 1089 [1985] 3 All E.R. 680 [1986] E.C.C. 204 [1985] F.S.R. 306 (1985) 129 S.J. 606 1985 WL 311610 * Funky Films Inc v Time Entertainment Co (04-55578) U.S. 9th circuit of Appeals (2006) [online] available at: http://caselaw.lp.findlaw.com/data2/circs/9th/0455578p.pdf * Hawkes and Son (London) Ltd v Paramount Film Service Ltd (1934) 1 Ch 593 * Hollinrake v Trusswell (1894) 3 Ch 420 * Hubbard and Another v. Vosper and Another [1971 C. No. 7360]; [1972] 2 W.L.R. 389 * King Features Syndicate Inc v O and M Kleemann Ltd (1940) 2 All ER 355 (Ch. Div) at 359 * Kouf v Walt Disney Pictures and television , 16 F.3d 1042 at 1045 (1994) 9th circuit court * Ladbroke (Football) Ltd v William Hill (Football) Ltd (1964) 1 WLR 273 at 276 * Ravenscroft v Herbert [1980] RPC 193 * Stromback v New Line Cinema (02-2387, 02-2388) U.S. 6th Circuit Court of Appeals (2004) * Sid and Marty Krofft Television productions, Inc. v Macdonalds Corp , 562 F 2d 1157 at 1164 * Murray Hill Publications Inc v twentieth century Fox Film Corporation, (01-2668; 01-2721) (2004) U.S. 6th circuit court of appeals. * Spelling Goldberg Productions Inc. v. B.P.C. Publishing Ltd. [1981] R.P.C. 283 CA * Sillitoe v McGraw Hill Book Co Uk Ltd (1983) FSR 545 * University of London Press Ltd v University Tutorial Press Ltd (1916) 2 Ch 601 at 606 Read More