Intellectual Property Law - Copyright - Case Study Example

Copyright is a sta y protection granted to of literary, musical and artistic works. Copyright empowers with distinct rights such as the right to print, reprint and copy the work, the right to sell and distribute copies and the right to do the work. The copyright will be in force until the expiry of the author and seventy years after the death of the author (COPYRIGHT, 2003). Copyright proprietors can obtain protection against mechanisms that have been developed to evade technological protection devices. This will enhance communication by permitting the use of instruments by the copyright owners to prevent unauthorised access to their copyrighted works. In the case of databases it hinders an intruder from gaining access. The restrictions on the making and sale of such circumvention devices control the capability of persons to access any work which is safeguarded by technological strategies (Davinson, 2003. P. 32). A copyright is a sole privilege that permits its holder to remake, publish or trade a genuine work of authorship. It prohibits the duplication, without permission, of work that is available in the form of some material medium. Copyrights are inapplicable to concepts, procedures or systems. They are generally observed in the fields of artistic works, written works, recordings and images (Masons, 2005). The Copyright, Design and Patents Act 1988 (CDPA) was enacted in the UK in order to protect copyrights. The requirement under this act is that the work should be original in order to be protected against infringement. The Act does not make it mandatory that the work should be creative; however, there must be some endeavour by the copyright seeker to make it unique and not an imitation of an already existing work. This Act states that the first person to obtain a copyright is deemed to be the creator of that work (Masons, 2005). Nevertheless, this provision does not apply to an employee who creates a work during the course of employment. In such cases, the employer automatically becomes the initial owner of a copyright. Under circumstances that render a contractor the initial copyright owner of some work, there could exist such contractual terms that would bring about the transfer of ownership to the principal. Copyright law protects literary works for a period of seventy years subsequent to the demise of its author (Masons, 2005). Copyright owners can initiate legal action if their work had been copied without their consent, performed on the stage, exhibited in public, distributed to the public or if the contents of the work had been altered. The copyright owner can also seek legal protection under the CDPA, which provides protection for indirect actions, if a person deals with a copyrighted work without taking the consent of the copyright owner (Masons, 2005). Amongst the common violations of copyright law, unauthorised replicating of work is known to be prevalent. Copying or duplicating transpires if the work is duplicated in a tangible form. In order to prove that unauthorised duplication had occurred, it is sufficient if it can be shown that the copied work was accessible for such unauthorized reproduction. Infringement of copyright arises if a considerable part of a work is reproduced. Such considerable part can be estimated by the quality of the work reproduced and not its quantity. For instance, a vital portion of a book can be construed to be a considerable part (Masons, 2005). Some fair dealing provisions laid down in the CDPA permit an individual to make a single copy of digital media and various other formats of subject material for the purpose of research or studies. There are some exceptions available to the students of film making and media courses which allow them to reproduce clippings of audio, video recordings, films or broadcasts (Masons, 2005). However, these defences of fair dealing have been amended by the Copyright and Related Rights Regulations 2003. These regulations stipulate that reproduction under the provisions of the CDPA will only be acceptable, if the copyright is acknowledged and the material is utilized for non–commercial purposes. There are many specific educational exceptions to copyright violation under ss.32-36 of the CDPA. These exceptions include creating reprographic copies that are limited to one percent per quarter from any work. Further, the work should be solely for educational purposes and the audience must be the staff and students, who use brief paragraphs from the published literary or dramatic works of a collection (Masons, 2005). The copyrighted material can be transferred to a third party in a number of ways. A total transfer of all rights to a third party is possible under assignment. Agreements containing ad hoc licences can be entered into by the owner of copyrighted material and an educational institute that requires such material. In a collective licensing system there exists an administration of licensing schemes. Such administration is conducted by organisations that possess the copyright material. In blanket licensing an organisation is empowered to deal with the entire collection of an author, to license the use of copyrights either partially or in totality. Reproduction and copying of a work is indispensable in the field of education, because of the necessity to prepare lecture notes for the students (Masons, 2005). The public interest defence is superior to any other defence available under the CDPA. If a person discloses information and proves that the disclosure was in the interest of the public, then the court will protect him. The public interest defence has been distinguished from breach of confidence. Copyright is a statutory device whereas breach of confidence is an assumption by the courts. While the latter relates to keeping information private, the former deals with the manner of disclosure of the information (Ashdown v Telegraph Group Ltd, 2001). Copyright infringement goes in tandem with breach of confidence. Thus it is clear that copyright only protects the work and not the expressions or facts behind an idea. The record of actions and proceedings such as still photographs taken from the streaming media of a video cameras, memorandums or minutes of meetings are now treated as information of copyright and protected accordingly (Ashdown v Telegraph Group Ltd, 2001). Previously, the courts did not allow copyright protection, by using the device of public interest, in cases that were regarded as immoral, fraudulent or mischievous. Lord Jauncey remarked in Attorney-General v Guardian Newspapers Ltd (No. 2), that the courts of the United Kingdom would not enforce copyright claims in relation to every original literary work (Attorney-General v Guardian Newspapers Ltd (No. 2), 1990). Hence, the courts play an important role in the copyright function and they will reject protection if public interest is placed in jeopardy. The public interest defence never demands a rejection of copyright protection it just prevents the plaintiff from using copyright protection against the defendant. In Service Corporation International plc v Channel Four Television, the defendant Channel Four had made all the necessary preparations to air a documentary focusing on the funeral industry. The film depicted a number of dishonourable activities that had taken place in the plaintiff’s rest house. The documentary demanded that the industry be monitored. The court considered the material to be evidence of the fact that the public interest was being endangered. Consequently, the court passed such orders as would bring about a regulation of this industry (Service Corporation International plc v Channel Four Television, 1999). The courts are insistent on the fact that the defendants must be in a position to reveal the information, solely for the benefit of the public, at their own cost. This requirement clearly segregates the media with its commercial interests. The principal objective of the media is to publish information with a view to amass wealth by pandering to the tastes of a sensation loving public. Therefore, it is very rare for the interest of the public to be secured by such publications (Campbell v MGN Ltd , 2004). The requirement to maintain harmony between the right of freedom of expression and the right to respect for private life under Articles 8 and 10 of the European Convention of Human Rights is always uppermost in the mind of judges with regard to the disclosures made in the interest of the public. Revelations made to the public at large, in the media, cannot be considered to have been made in the interest of the public. Therefore it becomes imperative to establish that the information disclosed was in the public interest and not for a commercial purpose. The court has an altogether different perspective in respect of the public interest defence (Hyde Park Residence Ltd v Yelland , 1999). The courts could reject an invocation of copyright if it contradicts the principles of law. The courts could refuse to force copyrights if the material was found to be immoral, disreputable or conflicting with family life, injurious to the health and life of public, imperilled public safety or opposed the law (Hyde Park Residence Ltd v Yelland , 1999). The fair use or fair dealing principles contain the defences to copyright. These exceptions play a crucial role in the correct adoption of copyright law and in the proper implementation of the economic benefits to ensure the invention or discovery of new works. The Copyright, Designs and Patents Act provides certain exceptions in the area of educational use of copyright material. However, these exemptions are limited in their application. A nation’s economic and creative prosperity depends on the successful management of proprietorship of ideas. It guarantees the creativity of works and supports innovation (RSA, 2006). Reforming intellectual property defence on databases ensures creative and economic actions. The Databases Directive (1996) passed by the European Union had imposed the sui generis intellectual property right that, while protecting the anthology of facts, hinders economic and creative functionality. The European Union had carried out an analysis with regard to the databases and the outcome reveals that the creation of databases had drastically dropped below than prior to the Directive levels (RSA, 2006). In contrast to this, the database industry of the US, which was not controlled by such a Directive, was more successful than the industry of the EU. The aim of the sui generis right was to safeguard the database industry in the EU. However, no such growth was observed. The result was a plummeting growth rate of the database industry of the EU. The proportion of EU to US databases was 1: 2 in 1996 and this ratio was 1:3 in 2004 (RSA, 2006). It is imperative for the government of the UK to set out a detailed empirical survey of the economic influences of the implementation of sui generis database rights. The law relating to Intellectual Property should be liberalised and tools denoting the principles of law should be developed (RSA, 2006). Intellectual property can be stated as the property that emerges from a person’s intelligence. Previously the copyright law used to support the economic interests of the publishers of books but not the intellectual rights of writers and authors. Modern copyright law extends its support to the form of an idea but not the idea itself. A patent can be obtained for an invention that was not known earlier (Intellectual Property, 2003). Members of the World Trade Organisation have to ensure that the copyright, patent and trademark laws have been enforced in their territories. The World Intellectual Property Organization, which was established in 1970, endorses the worldwide support of industrial property. This includes inventions, trademarks and designs, and copyright materials including literary works, audio, photographs and artistic works (Intellectual Property, 2003). Many nations provide exceptions to copyright. These exceptions vary in their nature and applicability. The continental countries impose very high measures of exclusivity in their jurisdictions. These measures ensure the survival of copyright in some works. In countries like the UK where copyright exists in many works, the exceptions are greater. For instance, in the UK, the fair dealing device allows the free use of a considerable part of a work for educational purposes such as research, private study, criticism, review or citing current events. However, in France, the legislation allows duplication or copying for private use only. Thus copying for commercial research has been excluded. The rights in the work would deprive the protection of the information included in it and would only increase the consequences of such a weak exception. The other countries of Europe have the same exceptions that France does (Davinson, 2003. P. 32). The copyright laws of England and the US had bestowed preclusive publication rights to the authors or their heirs till such time as the copyright was in force. Gradually these rights were made available to artists, sculptors, composers, etc. The effect of these rights was that in the absence of the copyright holder’s permission, it was illegal to make available to the public what had been copyrighted. Since, the objective of the copyright law was to further the welfare of society by furthering the cause of knowledge and science, the courts ruled that some persons, like scholars and critics, were to be permitted to make fair use of copyrighted material. Further, such persons were permitted to indulge in duplicating and citing from such copyrighted material. In order to determine whether usage had been legal or whether it had infringed the copyright law, several determining criteria were employed. The principal criteria employed were in respect of the utility of the work, its characteristics and the quantity and significance of the portion used (Benedict, October, 1986). In the Unites States copyright law was initially applicable only to published works. The only protection offered to unpublished works was that provided by common law, which secured to authors the right of first publication. This was the so-called common-law copyright. Therefore, the use of copyrighted material by scholars and critics was subject to the provisions of the common-law copyright and did not fall under the purview of the copyright law (Benedict, October, 1986). Due to the complexity and distinctive interests at stake, copyright law was not reformed until 1976, when Congress passed the Copyright Revision Act. This act enhanced the rights of scholars and critics in respect of utilizing copyrighted material. The problem of according protection to unpublished material was addressed by section 104(a) of this act (Benedict, October, 1986). The Harper and Row decision dealt with the extent to which the principle of fair use could be applied to matter that had not yet been published. In this case, President Gerald Ford had contracted with Harper and Row to publish his memoirs, Time Magazine contracted with the latter to publish an excerpt of this article in which the particulars of the free pardon accorded to President Nixon in the wake of Watergate and his consequent resignation, were to be disclosed. The Nation Enterprises obtained and published an excerpt of this article just before Time Magazine could do so. This resulted in the cancellation of the contract by Time Magazine. Harper and Row filed a case against Nation Enterprises for the loss caused. The Federal District Court allowed the claim for damages. However, the Court of Appeals decided that according to section 107 of the Copyright Act, it was permissible to publish copyrighted material for the purpose of news reporting. The US Supreme Court set aside this decision and opined that the Nation’s use of the unpublished tract was not a fair use as large portions of the work had been quoted verbatim and moreover the use of this extract by Nation was purely commercial in nature (HARPER & ROW, PUBLISHERS, INC., ET AL. v. NATION ENTERPRISES ET AL, 1985). The Copyright Office contended that libraries and archives were required by section 108 of the Copyright Act to make photocopies only if the work was not available at a fair price. Therefore, the Copyright Office stated that the right to photocopy unpublished materials was to be restricted to unpublished material. However, the wording of this section does not lend itself to such an interpretation. In reality, this section directs that materials for researchers are to be photocopied only if they are unavailable at a fair price. The interpretation that such material has to be unpublished is purely the opinion of the Copyright Office (Benedict, October, 1986). The objective of the copyright law was to prevent the misuse of the photocopying right by libraries, so as to ensure that the market for a published work was not demolished. It had never been the intention of Congress to prevent the photocopying of unpublished material (Benedict, October, 1986). Proprietors of copyrights are bestowed with the right to reproduce, retrieve derivative works from the original, the right to disburse copies of the work and the right to publicise the original work of authorship. Copyright does not have universal applicability, however, an important exception is provided by the legislation. This anomaly relates to the fair use defence which enables researchers, teaching staff and educational libraries to utilise the copyrighted material for furthering the cause of education (Hettinger, 1989). The traditional values of freedom of thought and expression are at variance to the legal principles of intellectual property. A person’s personal property improves his freedom, whereas private intellectual property rights control the possession of ideas such as business secrets. Further, these rights control the proper use of ideas and expressions as in the case of patents. Moreover, there is also a control on the expression of ideas as transpires in the case of copyrights (Hettinger, 1989). It cannot be refuted that restrictions are undesirable due to a variety of reasons. The main components of industrial prosperity and development have always been freedom of thought and speech. Restrictions on the freedom of thought hinder the free flow of ideas and their use. Due to this the development of technology, discoveries, inventions and the enhancement of knowledge will be affected significantly. To that extent copyrights, patents and business secrets create undesired effects and are unjustified (Hettinger, 1989). In return for utilizing the inventions and works of inventors and writers respectively, society bestows upon them the right to compel others to refrain from making certain uses of such intellectual property. It is mandatory to disclose inventions and other types of intellectual property as this helps people to learn from their works and make further advancements on their basis. If inventions and ideas are not made public then they would remain secret forever. Thus patents and copyrights help enrich the free flow of ideas and expressions rather than control the same (Hettinger, 1989). Prior to 1911 the defense of fair dealing in cases of copyright infringement had been accepted by the courts. Accordingly, in Bradbury v. Hotten, the court decided that the defense of public interest and fair dealing did not coincide (Bradbury v. Hotten, 1872). Section 171(3) of the Copyrights, Designs and Patents Act 1988 does not affect any law that restricts the enforcement of copyright law, where public interest is involved. Subsequent to this legislation the courts are free to permit a general public interest defence that opposes statutory limits. In the Hyde Park v. Yelland & Others the court upheld the statutory exceptions to public interest defence. The court rejected the contention that there was a general defence of public interest to and action for infringement of copyright. This was not recognised until 2001. What transpired was The Sun had published some photographs, which revealed that Dodi Al Fayed and the Princess of Wales Diana had spent time together at a villa in Paris. The Court of Appeal had held that the publication of these photographs could not be justified on the basis of public interest or fair dealing. Accordingly, the defendant’s argument that the photographs were published in public interest was not accepted by the court (Hyde Park Residence Ltd v Yelland , 1999). In the 2002 case of Ashdown v. Telegraph Group Ltd, since a portion of the work was copied in a report on current events, the court held that the consideration of public interest was of the greatest importance. Accordingly, the defence of fair dealing was not entertained by the court in this instance. The Ashdown case compelled the courts to review the public interest defence. In that case, the plaintiff, Paddy Ashdown, was about to publish his diaries. In the mean time, the Sunday Telegraph had published excerpts of the minutes of a delicate political meeting. A substantial part of the minute was either copied verbatim or was a proximate paraphrasing of his diaries. It had become very difficult to balance the case between the Court’s dependence on the Human Rights Act 1998 and the right to freedom of expression. The Court insisted that the copyright protected the expression but not the underlying facts or ideas. As such copyright prima facie could not override the freedom of expression (Ashdown v Telegraph Group Ltd, 2001). These two cases present opposing views regarding the defence of public interest and statutory exceptions to copyright in the United Kingdom. The InfoSoc Directive of the European Union was made law by the Copyrights and Related Rights Regulations. The effect of this legislation is that the public interest defence will not be entertained (The Copyright and Related Rights Regulations, 2003). Under the CDPA 1988, there are a number of circumstances under which freedom of expression prevails over copyright protection. If fair dealing and public interest clamour equally for justice, then the courts are more likely to adopt the ratio decidendi of the Ashdown case to arrive at a decision on an individual basis. If the sanctity of contract, national security and territorial integrity are jeopardized then the courts will accord greater importance to public interest and decide accordingly. However, the copyright law of the United States did not clearly mention the exact circumstances under which a breach of copyright was permitted. The law had a flexible exception termed as fair use which enables the courts to evaluate different factors of a case to determine whether the use of copyright work or material has been fair or not. These anomalies in exceptions create difficulties while harmonising standard measures of copyright uniqueness and exceptions (Davinson, 2003. P. 32). A vast difference exists between the fair use practices of the US and UK. There is no specific definition of the term ‘fair use’ under the US practice instead it requires the courts to consider a wide range of non–binding factors in each case. In the case of the UK’s practice of the Intellectual Property rights, fair dealing makes it compulsory to follow a set of pre–defined defences against activities that contravene copyright (RSA, 2006). In conclusion it can be surmised that the decisions of the UK courts are dependent on the circumstances of the individual cases and equal importance is being accorded to fair dealing and public interest defence. References Ashdown v Telegraph Group Ltd, 4 All ER 666 (2001). Attorney-General v Guardian Newspapers Ltd (No. 2), 1 A.C. 109, 294 (1990). Benedict, M. L. (October, 1986). Historians and the Continuing Controversy over Fair Use of Unpublished. The American Historical Review , 859 – 881. Bradbury v. Hotten, L.R. 8 Ex.1 (1872). Campbell v MGN Ltd , 2 W.L.R. 1232 (2004). COPYRIGHT. (2003). Retrieved April 02, 2007, from In Dictionary of Finance and Investment Terms, Barrons: from http://www.xreferplus.com/entry/5120130 Davinson, M. J. (2003). The Legal Protection of Databases. Cambridge University Press. HARPER & ROW, PUBLISHERS, INC., ET AL. v. NATION ENTERPRISES ET AL, 471 U.S. 539 (U.S. Supreme Court May 20, 1985). Hettinger, E. C. (1989). Justifying Intellectual Property. Philosophy and Public Affairs , 18 (1), 31 - 52. Hyde Park Residence Ltd v Yelland , R.P.C. 655, 665 (H.C.). (1999). Intellectual Property. (2003). Retrieved April 02, 2007, from In Britannica Concise Encyclopedia: http://www.xreferplus.com/entry/5846709 Masons, P. (2005, May). Copyright Law for e-Learning Authors. Retrieved March 31, 2007, from http://www.jisclegal.ac.uk/pdfs/copyrightlawelearn.pdf RSA. (2006, April). Submission to the Gowers Review on Intellectual Property. Retrieved April 02, 2007, from RSA Adelphi Charter project: http://www.hm-treasury.gov.uk/media/51C/A9/royal_society_of_arts_262_240kb.pdf Service Corporation International plc v Channel Four Television, EM.L.R. 83 (1999). The Copyright and Related Rights Regulations. (2003, October 31). UK Statutory Instrument 2003 No. 2498 . Read More