Intellectual Property Law Scenario

Based on the assessment of the whole situation, the issue is related on copyright to the different works done by the group members and the task would involve solving the doubt on who has the copyright to the works as the group members are disbanding. Copyright is property right as defined by the legislative source for copyright law, the Copyright, Designs and Patents Act 1988 and is a form of intellectual property to confirm individuals to possess the items that was inspired by their own creativeness. It helps give the individuals like writers exclusive control of their own work and also for monetary exchange when the work is used by others with permission, in the form of royalty. Once an individual has a copyright protection over something, they then have the control on whether they would allow to work to be copied, published or made an adaption for the public.[1] This legislation has been much amended and is the principal act to be referred to when dealing with copyright concerns.

Another important element to be considered would be that of moral rights, as it protects the personal interests of an author of a copyrighted work. Copyright exists in three main type of works with the first being as original literary, dramatic, musical or artistic works and then followed by the category of sound recordings, films or broadcasts and lastly, the typographical arrangement of published editions.[2] Which means, the three scenarios involved in the argument between Communart will definitely be within this categories and it will be best to first connect them to their relevant categories. Relying on the categories, the issue on the written manifesto will fall under the original literary works category, whereas, the tree that is the centrepiece of the Communart group’s festival will specifically be under the artistic works category. And finally, the matter involving the music of the group will no doubt be in the musical grouping and also with further focus on sound recordings. This category of work must be original and to determine so we must use the relevant originality test to decide if it is in fact an original creation. Originality here would not mean the ordinary dictionary meaning that seems common but as per Lord Peace, he suggests that the work is not copied and that it should originate from the author.[3] Basically the idea need not be fresh since it will not be covered by copyright but rather the expression of that particular idea constitutes the originality.

Revisiting on the rule that copyright does not protect the idea but only the expression of the idea, it becomes important that the expression be in writing or in other form, like fixation methods. The expression of an idea will be covered by copyright.

And from the result of Ladbroke (Football) milestone case, one will need to use the skill, labour and judgement test to demonstrate the originality. So in reality, the expression of idea must be from the author and also, there must be at least, some minimum form of appropriate skill, labour and judgment involved. With much criticisms on this test due to the ease at how one can obtain originality of the idea, we should also consider another form of originality test following the landmark decision in Infopaq[4] by the Court of Justice. From this case, it was held that the national courts of EU countries should resolve whether the work is from the author’s expression of intellectual creation. It was apprehended that before looking at infringement and limitations, we should determine what the actual work is and if it had attracted copyright because generally, there will be no way one can infringe on something that was never protected in the first place. This resulted in presenting that one needs to obtain the reason to why a work is given copyright protection[5] and that for each category of the works, a certain original contribution is required. The older system did not offer a strong protection but with Infopaq, it had expanded the range of copyright when the standard was use to resolve the issue that certain headlines printed on a newspaper could be protected under copyright law[6] Following that, it is defined that the person who creates the work will be deemed the author of the work[7] but for some circumstances, it is not always clear the identity of the author. If someone cannot identify the identity of the author by reasonable inquiry[8] than the work is of unknown authorship.[9] The person who desires to have a certain contract with the author will bear the duty to achieve the reasonable inquiry and seek for the author to understand in depth of the origin of the work, before he or she may use the said work. In Fisher v Brooker[10] the focus on author who has not claim authorship was viewed, and here it hinted that the author will always retain the opportunity to make that claim. In the case, such a claim was only made after 38 long years. Over the years, we have seen collaboration between two or more authors and this sort of joint authorship has its perks, since the creativity of more than one person will results in often a way more valuable masterpiece.

Such as in an office environment, where team members are required to produces a joint report and may involve everyone having a different but yet significant task that would lead to the goal of having that ultimate finish work. Everyone’s contribution will need to be identified and distinguished from one another and they will be preserved as the creator and author for their respective parts. In the case of Fisher, the facts discusses on the collaboration between two people, who are both co-authors of the songs, since each had their part of the song that they had created. In a critical result from Hodgens v Beckingham[11], it was held that there is no such constitutional obligation that authors must show they intend to create a work of joint authorship. They merely need to collaborate and the contributions to the work created are not separate, so that together it forms a fully functional work. However, even with significant contribution to a certain process or stage of work, one may still fail to be a joint author. It involves the matter of understanding the process of creation of the work and also the type of contribution that has taken place, and that important factor is that it needs to be the life of the copyright rather than the formation of the subject matter of the copyright. As seen in the case of Fylde Microsystems Ltd v Key Radio Systems Ltd[12] where the outcome was that the defendant was not seen as a joint owner of the copyright subsisting in the software because the contribution was not enough to amount to an act of authorship. Now we will move on to discuss each scenario in detail to determine which member has the respective works copyright, starting with the Communart’s manifesto, entitled ‘Manifesto of the Desperate: Finding the Good Life in a Ruthless World’. The members involved in the project of the manifesto are Al, Bill, Cal and Dina. Seeing as their written manifesto is in the process of a possible publishing deal, they each would like to have claim of copyright over the manifesto.

The manifesto will be a literary work due to the nature of it being recorded in writing[13] and the 15 core rules has been clearly written out for reading. This sort of work need not to have great quality but as long as it has been expressed in writing, copyright should be attained. Each member would argue that they have made momentous contribution to have copyright but that will need to be assessed separately for a better insight. Firstly, Al had suggested the idea and the title for the manifesto but as previously discussed, it’s unfortunate because the idea will not be copyrighted.

And for the title suggested, providing copyright for such a trivial work would seem unreasonable and the courts will rely on the de minimis non curat lex[14] to ascertain that the work is not enough to gain copyright. This de minimis principle helps in distinguishing the relevant work that should be allowed and here, the title could not amount to original literary work. Moving on, it may be doubtful for Dina, who did the final editing to have a claim of copyright. She barely had a significant contribution plus her act of editing grammar and spelling errors would show the she may had put in some skill, judgement and labour but while copying another person’s work and this would not be fitting to originality[15]. Dina will fail to have any authorship in the manifesto, much like Al. This leaves us to unquestionably the two most influential members of the creation of the manifesto, Bill and Cal, who both wrote the 15 rules. The points of having a different number of rules written may be argued, however, proving which of them, as the author of the work, had a better contribution would be almost impossible because they both had made major involvements in the rules and either helped write some of it or made major changes to the written rules.

Original work will easily be applicable here since both of them had put more than enough amount of skill, labour and judgement in creating the rules. Even using the own intellectual creation test will prove to be fruitful in this instance, as they can demonstrate their expression in rules without any doubts. It is likely to be a situation of joint copyright owners, where two or more authors have created a work and their contributions are not distinct.[16] From the case of Cala Homes (South) Ltd v Alfred McAlpine Homes East Ltd[17], we can appreciate further that when two or more person had a significant contribution in such a work, then they will be deemed to be joint copyright owners.

And here, again, it is safe to say that both are authors as we will not be able to reduce the importance of either ones contribution, as in the case of Robin Ray v Classic FM[18]. Thus with this arguments, we will see evidently that for the manifesto, Bill and Cal will be joint copyright owners and upon the publishing of the manifesto, their approval will be needed for any sort of reproduction with royalties agreement. As joint owners, their duration in copyright expires at the end of the period of 70 years from the end of the calendar year in which the author dies[19], as in when the last joint author dies[20]. The next issue is in regards to the large model of a magic tree will need to be reviewed as an artistic work due to it being acknowledged as a sculpture.[21] The theory of sculpture was defined in the case of Lucasfilm v Ainsworth[22] and that sculptures are artistic works designed for their viewing feature. Meaning that the sculpture is created to attract attention for the viewing, similar to that of statues in a museum or any exhibition area. The size and the design with the fruits make this a sculpture to appeal someone to view it as its main intention. Here the sculpture is also a three-dimensional work made by an artist’s hand, and fits spot on with the description held in Metix (UK) Ltd V GH Maughan (Plastics) Ltd[23] and for this work, the originality stipulation is similar. Ed expressed the idea of the tree and drew up the plans and shows that it is not copied and had originated from him.

Moreover, he had supervised and advised Fran during the building period, proving that he had been involved with the sufficient need for skill and labour too. Unfortunate for Fran, it will not be possible to have a joint ownership in an artistic work, so she would want to argue that she had worked three months on it tirelessly, and also had suggested the materials and colour schemes based on her own skill, labour and judgment. It may quickly seem that Fran should be the copyright owner for the tree. However, we added emphasis that it was Ed who had express his idea and Fran had generally worked under his supervision, which we will acknowledge as giving her instruction throughout the building process. Even when using the own intellectual creation test, it will be easier to prove that Ed has the rightful authorship in this artistic work and not Fran. Ed should also be informed that his copyright duration expires at the end of the period of 70 years from the end of the calendar year in which, he as the author dies. The final scenario with Gill looks at the copyright within musical works and his involvement by playing an acoustic guitar and adding a faster tune to Tudor English folk songs. Moreover, the main issue will be that off the selling of CD’s of his music and who should benefit from that.

First off, musical work consists of music, exclusive of any words or action intended to be sung, spoken or performed with the music. This will lead to a split of copyrights obtainable, one in the music and another for the words of a song, as in the lyrics, which would be the literary works. Till date there have always been musicians and lyricist and they both attain different copyright in their works, as long as it has been written. Music here excludes any actions and words, and focuses on the musical chords.

Relatively, the quantity of the music does not matter, even if it was just a few short notes and chords, it will still be subject to copyright.[24] The idea is that the copyright of the arrangement of notes in a particular format that creates that tune, and often in the music world, there would be disputes over creative ideas. Such an example can be highlighted in the case of Wood v Boosey[25] where a musician makes an adaption of an existing music, he would own the copyright of the adaption but this would mean he may be liable to copyright infringement from the original source, if he had done so without permission[26]. Recreating an old song with an added contemporary touch may be able to get copyright protection and the case of Hyperion Records Ltd v Dr Lionel Sawkins[27] discusses in depth of the issue. Comparable to what Gill had done, the case involves Sawkins writing new edition to musical compositions by Lalande with some major changes, and mostly based to his contentment. Hyperion’s argument was rejected that Sawkins had not written any new work. It was explained that to deny Sawkins copyright protection for the changes made would be wrong, as he had to include his own elements into the music, such as tempo and performing indicators, hence changing the whole outcome of it. Without his interpretation of the old music, there would not be a performing edition. Gill too would like to argue based on the facts of the Hyperion case that he had made a different type of performing edition of the Tudor English folk songs and that he had to wisely match it to be suitable for the acoustic guitar.

The new rendition made will be suffice to showcase his labour and skill that went into the creation of that original musical work, and it will only be logic for him to claim for the copyright of the music. The inclusion of moral rights can be brought up, where the paternity right will aid in confirming Gill to the copyright of the musical work. This right to be acknowledged as the author must be stressed by the author for it to be operational.

Gill may use the support of this right to be identified as the author of the musical works[28] However, there is no clarity in the act whether the author can make this right apply to things done prior to the declaration. And with reference to the Hyperion case, where the use of copyright notice with the authors name was to be use, could apply similarly to Gill, who would want his name to appear with a copyright notice on the musical works he had recreated. And furthermore, we now look at the copyright for sound recordings as that will determine the copyright for the CD’s sold. It focuses on the recording of the sound and the ability to then reproduce it on a particular medium and method the sounds is produced or reproduced.[29] This would mean that the copyright will exist in the creation of the master copy of that sound recording, and it would be from here copies of additional CD’s for sale are created. In this situation with Gill, clearly he would have the master copy of the sound recordings, which would give him the right as the copyright owner for the music in the CD. With no one else part of the musical works, Gill will rightfully gain copyright protection for the musical works. The durations of his copyright will be for two different areas, one for the musical works and the other for the sound recordings. For the musical works, again, his copyright duration expires at the end of the period of 70 years from the end of the calendar year in which, he as the author dies.

Whilst for the sound recording, since it is published ever since the group started selling the CD’s, it would mean he has 50 years from the end of the calendar year in which it is first published.[30] In conclusion, following a comprehensive analysis of the copyright laws and relating them with the scenarios of the Communart members, it seems apparent that copyright plays an important role in our day-to-day life and that we should be protected for the work that we have put a good effort in and be credited for that work be it literary, musical, dramatic or even artistic. To summarise the copyright owners of Communart will be Bill and Cal who are joint authors for their collaboration in the manifesto, Ed as the owner of the large model of magic tree sculpture and finally, Gil would be the sole owner for the musical works and also the CD’s, as part of the sound recordings. If any other ex-members would want to utilise either items then they would need to obtain permission from the rightful owners, or else they would risk infringing copyright. [3102 words] BIBLIOGRAPHY CASES Biotrading & Financing v Biohit Ltd [1998] FSR 109 Cala Homes (South) Ltd v Alfred McAlpine Homes East Ltd [1995] FSR 818 Exxon Corporation v Exxon Insurance Consultants International Ltd [1981] 3 All ER 2411 Fisher v Brooker [2009] FSR 25 (HL) Fylde Microsystems Ltd v Key Radio Systems Ltd [1998] FSR 449 Hodgens v Beckingham [2003] EMLR 18 Hyperion Records Ltd v Dr Lionel Sawkins [2005] RPC 32 Infopaq International A/S v Danske Dagblades Forening [2009] ECDR 16 Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 Lawson v Dundas, The Times Lucasfilm v Ainsworth [2012] 1 AC 208 Metix (UK) Ltd V GH Maughan (Plastics) Ltd [1997] FSR 718 Newspaper Licensing Agency Ltd v Marks & Spencer plc [2001] 3 WLR 290 Newspaper Licensing Agency Ltd v Meltwater Holding BV [2011] EWCA Civ 890, [2012] RPC 1 Robin Ray v Classic FM [1998] FSR 622 Wood v Boosey [1868] LR 3 QB 223 LEGISLATION Copyright, Designs and Patents Act 1988 s1(1), s3(2), s4(1)(a), s5A(1), s9(1), s9(4), s9(5), s10, s12(2), s12(8), s12(9), s16(1), s21, s77(1) BOOKS Bainbridge D, Intellectual Property (9th edition, Pearson 2012) Torremans P, Holyoak & Torremans Intellectual Property Law (7th edition, OUP 2013) Aplin T & Davis J, Intellectual Property Law Text, Cases and Materials (2nd edition, OUP 2013)

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[1] Copyright Designs and Patents Act 1988, s.16(1) [2] Copyright Designs and Patents Act 1988, s.1(1) [3] Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 at 291 [4] Infopaq International A/S v Danske Dagblades Forening [2009] ECDR 16 [5] Newspaper Licensing Agency Ltd v Marks & Spencer plc [2001] 3 WLR 290 [6] Newspaper Licensing Agency Ltd v Meltwater Holding BV [2011] EWCA Civ 890, [2012] RPC 1. [7] Copyright Designs and Patents Act 1988, s.9(1) [8] Copyright Designs and Patents Act 1988, s.9(4) [9] Copyright Designs and Patents Act 1988, s.9(5) [10] [2009] FSR 25 (HL). [11] [2003] EMLR 18. [12] [1998] FSR 449 [13] Copyright Designs and Patents Act 1988, s.3(2) [14] Exxon Corporation v Exxon Insurance Consultants International Ltd [1981] 3 All ER 2411 [15] Biotrading & Financing v Biohit Ltd [1998] FSR 109 at 116 [16] Copyright Designs and Patents Act 1988, s.10 [17] [1995] FSR 818. [18] [1998] FSR 622 [19] Copyright Designs and Patents Act 1988, s.12(2) [20] Copyright Designs and Patents Act 1988, s.12(8)(a) [21] Copyright Designs and Patents Act 1988, s.4(1)(a) [22] [2012] 1 AC 208. [23] [1997] FSR 718 [24] Lawson v Dundas, The Times, 13 June 1985 [25] [1868) LR 3 QB 223. [26] Copyright Designs and Patents Act 1988, s.21 [27] [2005] RPC 32 [28] Copyright Designs and Patents Act 1988, s.77(1) [29] Copyright Designs and Patents Act 1988, s.5A(1) [30] Copyright Designs and Patents Act 1988, s.13A(2)(b)

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