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A Problem Question in Intellectual Property Law

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It is 1st essentially to know who should own the copyright’s title of the manifesto with 4 persons Al (A), Bill (B), Cal (C) and Dina (D). But before discussing about the owner, we must first established the category of such manifesto by s 1(1) of Copyright, Designs and Patents Act (CDPA) 1988[1] as a literary work since it was in written form. It is also note to know that the originality requirement has to be assessed that the work must not be copied and originates from the authors with minimum investment by the author of skill, judgment and labour. The issue hence relies how substantial the effort the authors made to attract their copyright protection and each group members will be discussed individually.[2] AL (A) A came with the notion and the title. However, the notion could not being protected by copyright since it was being an idea not an expression. This means A cannot own the idea’s copyright since it is not original nor form a substantial part of the work.[3] Hence, A can only go after the copyright for the title but not the notion itself. For the title, one will have to look at originality issue whether A has invest a sufficient skill, labour and judgment or not. However a title could be hardly seen as copyright protection since it does not contain substantial enough of works which could be a “hackneyed expression”.[4] It was suggested that a title would be too short and does not involve literary composition.[5] But, in the case of Newspaper Licensing Agency Ltd v Meltwater Holding BV (or Meltwater)[6], A would be suggested to rely the exception test laid out by European Union (EU) case of Infopaq International A/S v Danske Dagblades Forening (Infopaq case)[7] to focus more on originality than substantiality of effort that the 12 words on the facts (OTF) (which is more than 11 words in Infopaq case) title contain expression of the intellectual creation of the author himself through choice, sequence and combination of words.[8] It does not matter that the title and the rules written is a different person (being A for title with B and C for the rules) which could amount to independent literary work[9] but it must reflects the ‘attitude, position or meaning taken by the writer of the article’ in his own way.[10] OTF, the 15 core rules has not been shown so it is hard to determine the issue whether has the headline relate to the manifesto’s content or not. However it is submitted A’s title could be protected by copyright in the light of Infopaq[11] test as long as the title ‘Manifesto of the Desperate: Finding the good life in a Ruthless World’ could introduce the tone of the manifesto that attract readers with his own intellectual creation without extracting texts from the rules.[12] Although the manifesto is unpublished, it could be still capable of attracting copyright.[13] .The fact that it is well-known, court must also assessed that there is also policy consideration that such title would be easy to infringe the right of freedom to refer the title if offered copyright protection.[14] Bill(B) & Cal(C) Since B and C are involved with the same corresponding matter, it is possible then they are joint author of the work itself according CDPA 1988 s 10(1). However, each of them need to establish the requirement of significant contribution which is not distinct from the other authors.[15] For B and C, it is up to whether the contribution is significant enough for cover up the rules as the sole author or both could be joint author. 1st, the 9 rules were written by B & some of B’s rules majorly amended by C. Generally, B could be deemed as the author of the rules since B is the creator[16]. In terms of labour, the de minimis principle applies. Nonetheless, there can be no joint authorship here with B and C for the 9 rules since a ‘subsequent independent alteration of a finished work will not give rise to work of joint authorship’[17] and must contribute within the production of the work. The question then lies whether C could attract a new copyright to the amended rules or it is infringe B’s copyright by copying. With the amendment by C, applying case of Interlego v Tyco it could be said C could not attract copyright if it is only a minor alterations .[18] In order to attract copyright, C must show that there must be addition of some quality or material alteration to make totality of the work an original work [19] or to say element which distinguish raw material (B’s rules) which do not possess[20]. Although the case concerned on artistic work, it referred from case of Black v Murray[21] (a case of literary copyright) where it was held there must be an extensive and substantial alterations rather than a few emendations and addition of few unimportant notes.[22] D would try to argue even so with major investment, C could be just copy of an existing work & no matter how much skill or labour devoted cannot give rise to original work of copyright since there might be no originality conferred of the expression.[23] In the case of Hyperion Records Limited v Dr. Lionel Sawkins (or Hyperion case),[24] Lord Justice Jacob also held that “copyist” is a mere copyist only when they are merely performing an easy mechanical function and it is less likely to be original.[25] This is consistent with the current approach of new test of originality laid down in case of Infopaq that author must stamping the work with his ‘personal touch’[26] regardless of the substantiality of effort. OTF give, it is suggested there should be no limit on how major must amendment be as long as it does not preserve D’s original rule. Hence OTF using this case, it is likely that C’s works of the major amended rules that can attract a new copyright and no infringing issue occurred if intellectual creation is found within the amendment. On the other hand, for the 6 rules created by C, this work would deem C as the author[27] & enable to attract copyright as an original literary work as long as standard skill & labour applied. Hence, the issue lies within with the help of drafting rule from B, will B be able to obtain authorship as a joint author for C’s work. B will then have to satisfy the requirement of joint authorship which there must be a significant contribution[28], collaboration[29], and the inablility to identify distinct contributions[30]. This fact could be draw the analogy with case of Brown v Mcasso Music[31] that joint authorship was held where a person is in charge of draft and then amended by 2nd person[32] & it is not possible to separate their contribution in the final work[33] such as that it will lose meaning if were to separate[34]. Applying to the facts, it is unknown whether B’s contribution is significant provided there is absence of fact but it does not have to be equal but an act of drafting in an ordinary meaning could be say that inevitably consist of own intellectual creation hence satisfied. On the other hands, the contribution of B has lead to the creation of C’s work[35]. There is a collaboration between C & D as It is not of mere addition to the complete piece since there has been sharing the labour of working in a ‘common design’ (the 6 rule)[36] with B’s help of drafting and C’s skill and labour that is practically impossible to separate. In summary, it is likely that B will be able to obtain joint authorship right and share the copyright with C for the 6 rules. Dina (D) For D, since the major role of her is to edit the final text, corrected spelling & grammatical errors, D could rely on the principle on the case of Walter v Lane[37] that a correction of spelling and revision of a report could attract copyright. However, it is submitted that this case could not be apply since it was decided before the introduction of originality requirement. The current approach test of originality require a person to have intellectual creation of ‘free and creative choices’, with author stamping the work with personal touch. In other words, an element of creativity is required from the author. Following the current test, D could not be an author since the volume of her work since it is lack of originality or intellectual creation. Therefore, D will have no rights over it & can only be acting as an agent of the work.[38] ED (E)&Fran (F) Here, there are 2 artistic work that can attracting copyright, namely the plan created by E under graphic work category[39] & it is no doubt that E will be the plan’s author since E is the creator[40]. On the other hand, model created by E & F could be categorize under work of sculpture[41] or artistic craftsmanship[42] or both. It could not be a model for building where it include a fixed structure[43] which is contrast from E’s model that has interlocking parts for easy assembly & disassembly, therefore not fixed. The main difference between a sculpture & artistic craftsmanship is that sculpture were created primary aim for aesthetic feature (to attract attention using their visual aspect) rather than utilitarian function although both feature could be co-exist together.[44] Applying to the fact, this suggest the model can be fall under sculpture’s definition where the tree has shown visual aspect via psychedelic fruits hanging from its branches, intended to be focus of attention as an evidence of artistic merit. As for artistic craftsmanship, the work requires both aesthetic & functional feature.[45] The approach is unclear clear in defining artistic craftsmanship because there are no consistency as to determining the standard of artistic quality required or any proper & comprehensive test is available[46]. This could be seen from several opinion regarding issue about artistic craftsmanship where there is no decisive factors in deciding whether a work is artistic, only certain consideration.[47] However, there are 2 common factors discussed by majority of Lords can be derived from case of George Hensher Ltd v Restawile Upholstery (Lancs) Ltd (George case) : one should look at the intention of the creator or reply on expert witnesses (person who specialize themselves in the field of artist-craftsmen). [48] According to the facts, E & F’s intention could be comprehend as creating work of art since the main purpose of centrepiece is for displaying aesthetic appeal. On the other hand, Lord Simon stated that it is work of artistic craftsmanship rather than artistic work of craftsmanship that will be protected.[49] This means it is not required that every individual work produced in artistic craftsmanship must be artistic work but activities of artistic craftsmanship produced is assessed as whole as long as the activity considered is within the range of relevant circles.[50] This could be even further elaborated that there can be 2 authors that the role of craftsman & the artist can separate to 2 different persons with one ‘makes something in a skilful way’ while the other ‘produces something which has aesthetic appeal’.[51] Although craftsman has not been defined widely, it is suggested work of "craftsmanship" should be a durable, useful, handmade object.[52] However, It is submitted that F’s effort may be considered in artistic craftsmanship by adapting the role of a craftsman while E as an artist.[53] In spite the plan does not contain aesthetic appeal, it is the model that build according to the plan where aesthetic appeal could be derived from via E’s creative ability. In addition, it is justifiable that there is utilitarian function of the tree model in the sense that it has interlocking parts easy for assembly & disassembly. Still in determining whether a craftsmanship could be identified as ‘artistic’, it has to rely on expert evidence. Whether F’s craftsmanship of building the tree could be recognized as ‘artistic’, it will be up for expertise to decide. In summary, it is likely that the model created can be fall under 2 different category under artistic work of CDPA 1988 s.4 (1)(a) & (c) provided F’s work of craftsmanship is considered as ‘artistic’. Nonetheless, if the work fall under sculpture category under CDPA 1988 then both E & F will have to establish themselves as author for the work. There are 2 ways of possible explanation since both E & F could be author in their own reason. In Stuart v Barrett and Others it is stated that ‘a person with an original idea was not the author of any work unless the person with the idea contributed to the form of the work’[54]. One must take note the plan created by E is not only idea but an expression of the idea. So for E, he can be an author since he has contributed of expression of idea (the originality) by drawing up plans for the tree model intellectual creation came from. In addition, it could be also said that F is author of the work since F is the one who creates it.[55] Hence, the next issue is to consider whether are the artistic work’s copyright of the tree model enjoyed by sole author or joint authorship & hence it is required to assess the requirement below. For E & F to satisfy as joint authorship, there must be work produced by the collaboration of authors where the contribution of each author is not distinct from that of the other author.[56] This principle could be derived from the following relevant case. In Brighton v Jones[57] where Park J has extracted 3 propositions, the propositions as stated was not itself decisive.[58] Firstly, although the contribution must significant led to creation of the work, it does not have to be equal in magnitude compare with other author[59]. Secondly, the contribution of person alleged joint author must be led towards creation of work. It must be a ‘right kind of skill and labour’.[60] Thirdly, a person can be joint author where he have a direct responsibility even though other person has effectively adopting what the person has created.[61] Applying first propositions, it could be say E’s contribution is significant in the sense that it is E’s plan who F was following accordingly. F do have contribution too of spent months to build the model. Regarding to 2nd point, Although F is the one who build it, it does not lead to the creation of the work. The current originality test require an author to have his own intellectual creation. It is also arguable that the skill and labour is not of right kind[62]. Referring from Cala Homes (South) Ltd v Alfred McAlpine Homes East Ltd[63] where Lightman J in Robin Ray v Classic FM Plc[64] (or Robin case) review the decision where there can be no author or co-author of a work if there’s no any creative contribution when someone acting as mere scribe, producing the copyright expression in accordance with instructions. Applying it, hence when F build the tree following according to the plan under E’s supervision, it is unlikely that the contribution is to the ‘authoring’ of the work. It is suggested that there must be some creative input. On the contrary for E, there is an intellectual creation from E’s plan, which originality suffice for creation of the work. In third proposition, F could not rely on it because it was E who prepared the plan instead of F and F adopted the plan. This proposition further reinforce E’s position as the author of the model. The 2nd requirement of joint authorship require collaboration between 2 or more persons. The statute does not define collaboration, instead Jonathan Parker LJ stated it does not mean intention of joint authorship but rather ‘joint labouring in furtherance of a common design’[65].Although the statement was not elaborated, it is submitted that mere suggestions or ideas may not be enough in terms of contribution[66]. In Robin case, it was held that a suggestion however significantly, reflecting a person’s input may insufficient to become a joint author[67], suggesting creative input is required. This statement accord with the principle that copyright protects expression not idea or suggestion. Thus, F could not rely on the ground that the contribution of making suggestion of suitable materials and colour schemes for collaboration requirement. Finally, the contribution must not be distinct from one author to another which mean the contribution of the co-authors are inseparable & heavily dependent to each other such as a book of different chapters wrote by different authors is not joint authorship, neither do a song where one person written a song and another one written the words.[68] Apply to the facts, it is shown that E & F’s contribution is separable. With the contribution to the finished product, it consist of 2 distinct work, with E’s plan & F’s labour. Nonetheless, the model was build according to E’s plan, it is suggested that E’s plan is not dependant on F’s labour but not in a vice versa form. In short, although F has built the model, it is submitted F is not an author in terms of joint authorship and E may become a sole author of. This is of course if court held the artistic work as a sculpture rather than artistic craftsmanship. Gil (G) G’s song are reinterpretation of Tudor English folk songs, but played faster and on acoustic guitar instead of the traditional lute. The issue is whether G’s act of changing instrument and music pace is capable to be attracting copyright and protected under CDPA 1988 s 3(1) as a musical work. This issue has been considered in the case of Hyperion[69] and the case will be discussed in depth in terms of musical issue. Mummery LJ held that in determining copyright, it involves a whole assessment of work in whether copyright subsists following the approach of long standing case of Ladbroke.[70] Furthermore, the fixation of a musical score is not the only way copyright could subsists. It involves ‘listening to and comparing the sounds of the copyright work’ and whether does it sound the same. Example such as improvisations of sounds by a group of people with or without musical instruments could be protected as musical work for copyright purpose too.[71] Conclusively, following the principle G is likely to attract copyright of his musical work even though there are no modification of notes in music’s score as long a minimum standard of originality requirement satisfied. Since Tudor English folk songs could be regarded as no owner, there will be no infringement issue even if G’s work does not attract copyright and would not amount to copying. CONCLUSION In summary for literary work of manifesto, A will be likely to gain a copyright of the title if intellectual creation is shown within the title. B will become owner for copyright of the original 9 rules while C will then attract a new copyright for the amended rules provided C could prove intellectual creation within the amendment. As for the 6 written rules created by C, B will most likely to become a joint authorship and share copyright with B. On the other hand, D will not have any copyright of his own since there is a lack of intellectual creation of his own. For the manifesto, since A, B and C own each copyright individually within the work, they could assign it individually. The publisher will have to obtain consent of A, B and C if to publish manifesto’s special edition. For artistic work, E will gain copyright over his plan while E and F will gain joint authorship for the tree model if the court decide the model is categorize under ‘artistic craftsmanship’ or E may become sole author for the model if it is a ‘sculpture’. For musical work, it is likely G could create a new copyright of his own for the improvisation. The terms for protection for every copyright work of literary, artistic and musical here will be calculated according to 70 years after the death of the author.[72]
[1] Copyright, Designs and Patents Act 1988 s 1(1)(b) [2] Ladbroke (Football) Ltd v William Hill (Football) Ltd (Ladbroke case) [1964] 1 All ER 465, [1964] 1 WLR 273, [291] (Lord Pearce) [3] Designer Guild Limited v Russell Williams (Textiles) Limited (Trading as Washington DC) [2000] 1 WLR 2416 [4] Francis Day & Hunter Ltd v Twentieth Century Fox Corp Ltd [1940] AC 112, p [5] Ibid [123]-[124] (Lord Wright) [6] [2010] EWHC 3099 (Ch) [7] [2009] ECDR 16 [8] Ibid 261 [9] Meltwater (n 6) [71] [10] ibid [78] (Justice Proudman) [11] ibid [12] Ibid [85] [13] Meltwater (n 5) [71] [14] Ibid [62] [15] CDPA 1988 s 10(1) [16] CDPA 1988 s 9(1) [17] Beckingham v Hodgens [2002] EWHC 2143 (Ch) at 44 [18] [1989] AC 217 [19] Interlego (n 14) 263 [20] Macmillan & Co. Ltd. v. Cooper (1924) 40 TLR 186 [188] (Lord Atkinson) [21] Blacks v. Murray (1870) 8 SLR 261 [22] Hyperion Records Limited v Dr. Lionel Sawkins [2005] EWCA Civ 565 [23] Interlego (n 14) 371 [24] [2005] EWCA Civ 565 [25] Ibid [82] [26] Painer v Standard Verlags GmbH c-145/10 [2012] ECDR 6 (Painer case) [27] CDPA 1988 s 9(1) [28] Brighton v Jones [2004] EMLR 26 [29] Beckingham v Hodgens [2003] EMLR 18 (CA) [30] Beckingham v Hodgens [2003] ECDR 6 [31] [2005] FSR 40 [32] Paul Torremans, Holyoak & Torremans Intellectual Property Law (7th edn, OUP 2013) 248 [33] Brown (n 31) [34] Beckingham v Hodgens [2003] ECDR 6 59 [35] Brighton v Jones [2004] EMLR 26 522 [36] Beckingham (n 29) 51 [37] [1900] AC 539 [38] Paul Torremans, Holyoak & Torremans Intellectual Property Law (7th edn, OUP 2013) 249 [39] CDPA 1988 s 4 (1)(a) & 4(2) [40] CDPA 1988 s 9 (1) [41] CDPA 1988 s 4 (1)(b) [42] CDPA 1988 s 4 (1)(c) [43] CDPA 1988 s 4 (1)(b) [44] Lucasfilm Limited and others v Ainsworth and another [2011] UKSC 39 [45] Paul Torremans, Holyoak & Torremans Intellectual Property Law (7th edn, OUP 2013) 226 [46] Ibid 224 [47] George Hensher Ltd v Restawile Upholstery (Lancs) Ltd [1976] AC 64 [48] Ibid [94] Lord Simon [49] Ibid. [94] (Lord Simon) [50] Paul Torremans, Holyoak & Torremans Intellectual Property Law (7th edn, OUP 2013) 235 [51] Bonz Group (pty) Ltd v Cooke [1994] 3 NZLR 216. (Bonz) This approach was adopted by Mann J in Lucasfilm Limited and others v Ainsworth and another [2011] UKSC 39 [52] ‘Work of Artistic Craftsmanship’ http://www.dacs.org.uk/knowledge-base/factsheets/works-of-artistic-craftsmanship#craftsmanship accessed 4 January 2015 [53] Bonz (n 18) [54] [1994] EWHC 448 (Ch) 450 [55] CDPA 1988 s 9 (1) [56] CDPA 1988 s 10 (1) [57] [2004] EMLR 26 [58] Ibid 529 [59] Ibid [34] Park J [60] Flyde Microsystems Ltd v Key Radio Systems Ltd (Flyde) [1998] FSR 449 [61] Cala Homes (South) Ltd v Alfred McAlpine Homes East Ltd (Cala) [1995] FSR 818 [62] Brighton (n 57) 522 [63] Cala (n 61) [64] [1989] FSR 622 [65] Beckingham v Hodgens [2002] EWHC 6 (CH) [66] Hadley v Kemp [1999] EMLR 589 [67] Robin (n 61) 637 [68] David Bainbridge, Intellectual property (9th edn, Pitman Publishing 2012) [69] Hyperion (n 22) [70] Ibid [49] (Lord Mummery) [71] Ibid 53 [72] CDPA 1988 s 12(2)
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