Intellectual Property Legal Analysis - Essay Example

In order to advise Jones with regard to her rights in respect of the scenarios, it will be necessary to consider her position under copyright law. Firstly, it is necessary to highlight the nature of her rights under copyright law. The main legislative framework in the UK governing copyright law is the Copyright, Designs and Patents Act 1988 (CDPA). It is important to mention at the outset that “ideas” are not protected per se1 and the relevant consideration is whether the idea itself is embodied in the specified categories of “works” as defined by the CDPA2. Section 1(1) of the CDPA sets out the types of “works,” which attract copyright protection. This includes “original literary, dramatic, musical or artistic works3”. Moreover, once original work is created, copyright exists without any requirement for registration4. Copyright is also simultaneously created worldwide irrespective of the where the act of creation took place5. However, the content will not be protected per se as copyright law requires that the works must be original6. With regard to copyright law, the definition of originality does not have it ordinary dictionary definition and the “courts have interpreted the concept very loosely”7. For example, in the case of Ladbroke (Football) Ltd v William Hill (Football) Limited8 it was asserted that term “original” in context of copyright law “only required that the work should not be copied but originate from the author”9. Furthermore, the courts have looked to whether a substantial amount of work or effort was expended in creating the work in determining originality. This was propounded in the case of Macmillan & Co v K & J Cooper10 where it was stipulated that the basic foundation for attracting copyright protection was that a reasonable amount of work involving judgement and selection had been utilised in creating the work. In the current scenario, Professor Jones’ work is most likely going to be protected as a literary work for the purposes of the CDPA definition. Accordingly, in order for Professor Jones’ lecture notes and the diagrams on the flipchart content to attract copyright protection as a literary work, the “skill, labour or judgment” in creation test will be utilised to determine copyright protection11. Whilst differing approaches have been taken and it is ultimately a question of fact12; the general consensus is that there must be some measure of skill and effort expended in the production of the work before it can attract copyright protection13. Provided this is satisfied the notes and lecture handout will be copyright protected as a literary work. As such, Section 2(1) of the CDPA provides that “the owner of the copyright in a work of any description has the exclusive right to do the acts specified in Chapter II as the acts restricted by the copyright of a work of that description”. Furthermore, as stated above the copyright will exist automatically and there is no requirement for registration14. Accordingly, the copyright notice on the work will merely serve to put users on notice that the work is copyright protected15. Additionally, the flip chart and the production of diagrams, will potentially attract further copyright protection as a layout under section 1(1) (c) of the CDPA, which provides that copyright subsists in “the typographical arrangement of published” works provided the “originality” requirement is met. The duration of copyright is covered by the CDPA and there are distinctions depending on the category of works. Literary works are protected for the lifetime of the owner and for a further period of 70 years after death and the typographical arrangement of published works subsist for 25 years from the date of publication16. However, the lecture notes and the handwritten sheet summarising the lecture asserted Professor Jones as the copyright owner and the factual scenario clearly raises ownership issues, which is important in determining who can assert the copyright in the event that Mr Adams, Ms. Bailey and P. Nabakvo are found to have infringed the copyright in the works. Whilst Professor Jones is an employee of the University of Shaleford, she gives her lecture as a guest lecturer at the Organic Retailers Association Headquarters. If the lecture and handout for the lecture is prepared by her on an independent basis from her employment contract with the University, then Professor Jones will own the copyright as section 9(1) of the CDPA provides that the “author” of the work “is the person who creates it”. However, if Professor Jones’ lecture and the notes are considered to be part of her role as employee of the University, then Section 11(2) of the CDPA asserts that all works created by employees “in the course of employment” shall automatically vest in the employer and as such, the University will own the copyright in the works. If we consider whether the conduct of the three parties constitutes copyright infringement, it is evident that complete reproduction or use of another’s copyrighted material will infringe third party copyright if used without permission17. Chapter III of the CDPA sets out “acts permitted in relation to copyright works” alternatively referred to as the fair dealing exception to copyright infringement. However, fair dealing applies to use of copyrighted works for the purpose of research, criticism and review and incidental inclusion of copyright material.18 Moreover, section 17 of the CDPA addresses copyright infringement and provides that copyright protection prohibits copying the work, issuing copies of the work to the public, renting or lending the work to the public, perform the work, broadcast the work, adapt or amend the work. Additionally, these acts will constitute copyright infringement if there is copying of the “substantial part” of the copyright works19. Additionally, it is important to mention the Berne Convention to which the UK is a signatory, which grants reciprocal rights for nationals from different countries. Copyright work created in the UK, has automatic protection in all other countries that are signatories to the Convention. As Russia is a signatory to the Convention, the works will be protected under the Berne Convention. If we apply this to the current scenario, it would appear that all three parties are prima facie in breach of copyright. Nevertheless there are exceptions on grounds of fair dealing.20 The defence of fair dealing applies if the work is copied for the purposes of criticism or review21, reporting current events, or research or private study, however there is a presumption against fair dealing if copy a “substantial part.”22 Chapter III of the CDPA permits exceptions to infringement on the following grounds: 1) Research and private study (section 29); 2) Criticism, review and news reporting (section30); 3) Incidental inclusion of copyright material (section 31); and 4) Education (sections 32-36). The fair use doctrine is the most common copyright exception and is an important defence in the event of copyright infringement proceedings23. Section 29(1) of the CDPA provides that “fair dealing with a literary, dramatic, musical or artistic work for the purposes of research or private study does not infringe copyright in the work”. Section 29(2) of the CDPA further provides that “fair dealing with the typographical arrangement of a published edition for the purposes mentioned in subsection (1) does not infringe any copyright in the arrangement”. In the majority of cases, the party making direct use of copyrighted works, “the primary infringer” will be the party relying on the fair use defence24. Bently asserts that “it is important to note that all that is meant by dealing is that the defendant has made use of the work25”. Current case law, additionally defines the primary infringer as the main party that can rely on the fair use defence26. In considering the doctrine of fair use, the courts have particularly focused on the purpose for which the work is used27. For example, in the case of Newspaper Licensing Agency v Marks and Spencer28, Chadwick LG stated that “the purpose for which the copying is done…… can be brought within a liberal interpretation of the phrase “for the purpose of [the infringement29”. This suggested that the subjective motives of the infringer should be considered30. For example, in the case of Stillitoe v McGraw Hill Book Co31, it was indicated that the defendants “could not avail themselves of the exceptions of fair dealing…. Since they were not engaged in private study or research but were merely facilitating this for others32”. Furthermore, in the case of Hyde Park v Yelland33, it was asserted that courts “must judge the fairness by the objective standard of whether a fair minded and honest person would have dealt with the copyright work in the manner34”. Other relevant factors to primary infringer activities have included the manner of obtaining the works and commercial benefits derived from the works, which all weigh against the applicability of fair use as a defence to infringement as highlighted in the case of Basic Books Inc v Kinko’s Graphic Corporation35. Additionally, in the case of Hubbard v Vosper36 Lord Denning stated that “you must first consider the number and extent of the quotations…. Then you must consider the use made of them. If they are used as a basis of comment, criticism or review that may be fair dealing. If they are used to convey the same information as the author, for a rival purpose, they may be unfair. Next you must consider the proportions. To take long extracts and attach short comments may be unfair. But short extracts and long comments may be fair. Other considerations may come to mind also. But it must be a matter of impression”37. For example, in the case of Independent Television Publications Limited v Time Out Limited38the defendant had copied the entire contents of the TV Times and Radio Times in order to provide a paid for listing service. On this basis the defence of fair dealing failed. Additionally, section 32 of the CDPA provides an exception for education and asserts that “work is not infringed by its being copied in the course of instruction or preparation for instruction, provided the copying is- a) done by the person giving or receiving instruction, and b) is not by means of a reprographic process”. Nevertheless, Section 36 of the CDPA permits reprographic copying of passages for the purpose of instruction and typographical arrangement is not infringed however the amount copied must be small. Section 174 of the CDPA defines educational establishment as being any school and other establishment specified by order of the Secretary of State and the Copyright (Educational Establishments) Order includes Universities established by the Royal Charter or Act of Parliament. Accordingly, Professor Jones’ lecture will fall within the definition of Education under the CDPA. If we apply the possible defences to the current scenario, with regard to Mr Adams, as he solely intends to use the photographs taken of the diagram for personal use, this is likely to come within the exception under section 29 dealing with research and private study. Moreover, in light of the case law which highlights that motive of the primary infringer is vital, the fact that Mr Adams intends to use the photographs for personal use is likely to negate a copyright infringement claim on grounds of fair dealing. With regard to Ms Bailey, her detailed notes taken will most likely fall within the education exception under section 32. Additionally, her article, which is published in the magazine may constitute copyright infringement unless Ms. Bailey can establish a defence of fair dealing for the purpose of criticism, review and news reporting under section 30 of the CDPA. However, as highlighted in the Hubbard decision, the availability of the defence will depend on the extent of use of Professor Jones’ work and additionally, section 30 of the CDPA clearly requires any such criticism or review to be “accompanied by a sufficient acknowledgement”. With regard to Nabakvo, he has simply translated the lecture handout word for word and published it verbatim in a Russian academic journal. This is clearly copying of a substantial part and appears to be for commercial gain. There is no educational defence available due to the prohibition against reprographic process publication and as such, Nabakvo is clearly in breach of copyright. In this case, the issue of ownership is vital to determining the appropriate claimant to take action against copyright infringement. In summary, the works will be protected as a literary work under the CDPA and prima facie owned by the University unless Professor Jones can establish that the lecture was outside the course of employment for the University. The use of the flipchart and diagrams by Mr Adams will most likely not constitute copyright infringement on grounds of the exception for research and private study. Ms Bailey may have a defence to copyright infringement under the CDPA on grounds of criticism and review depending on the degree to which the article uses the Professor’s theories and if Professor Jones has been given a proper acknowledgement on the article. Conversely, Nabakvo’s translation and subsequent publication in an academic journal clearly constitutes copyright infringement. . BIBLIOGRAPHY Bainbridge (2007) Intellectual Property, Pearson Longman. Bently & Brad Sherman (2003). Intellectual Property Law. 4th Edition Oxford University Press. Blackstone’s Statutes on Intellectual Property Law (2007) 9th Edition Oxford University Press. Cornish and Llewellyn (2003). Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights 5th edition Oxford University Press. Jennifer Davis (2007). Intellectual Property Law. 3rd Edition 2007 Oxford University Press Hollyoak and Torremans (2005). Intellectual Property Law. 4th Edition Oxford University Press. Lillian Edwards & Charlotte Waelde (2008). Law and the Internet. 3rd Edition Hart Publishing. H Macqueen, C Waelde, & G Laurie (2007). Contemporary Intellectual Property. Oxford University Press. Merges, Menell & Lemley (2003). Intellectual Property in the New Technological Age. Aspen Vaver & Bentley (2004). Intellectual Property in the New Millennium. Cambridge University Press. The Copyright Designs and Patents Act 1988 The Copyright and Related Rights Regulations 2003 Read More