ART AND COPYRIGHT LAW PART – 1

Copyright: classification of works

UK copyright law requires that copyright works fall into at least one of the eight categories of work listed in the Copyright, Designs and Patents Act 1988 (CPDA). In this respect it differs from those Continental systems which have adopted an “open list” of subject matter. The UK approach is under some pressure, following a number of decisions of the CJEU which, when determining whether a work is protected by copyright, focus on whether it is an author’s own intellectual creation.

Copyright subsists the following descriptions of work:

  • original literary, dramatic, musical or artistic works;
  • sound recordings, films or broadcasts, and
  • the typographical arrangement of published editions: s.1. Each of these types of work will be considered in turn. Rights in databases and the publication right will also be considered in this context.

The potential impact of recent CJEU case law will be considered as a preliminary matter.

The Court of Justice has held that a GUI (a graphical user interface, which is a way of interacting with an electronic device, which is graphic rather than text based) was not a computer program. However, it could be a work protected by the ordinary law of copyright “if it is its author’s own intellectual creation”: Bezpecnostni Softwarova Asociace – Svaz Softwarove Ochrany v Ministerstvo Kultury (C-393/09) [2011] E.C.D.R. 3. A GUI does not fit very naturally into any of the UK subject matter categories. It seems likely that the boundaries of the categories will have to be interpreted broadly and flexibly, in order to accommodate such subject matter.

The Court of Justice has held that a videogame is not only a computer program, but is complex matter with a unique creative value. In so far as the parts of a video game (such as the graphic and sound elements) are part of its originality, then they will be protected, “together with the entire work” by copyright within the scheme of the Information Society Directive: Nintendo Co Ltd v PC Box Srl (C-355/12) [2014] E.C.D.R. 6 at 21-23. Again, this analysis does not fit easily with the UK’s categorisation of copyright subject matter. In a UK case decided before the CJEU decision in Nintendo, an interactive video pool game was found to be a computer program: Nova Productions Ltd v Mazooma Games Ltd [2007] EWCA Civ 219; [2007] Bus. L.R. 1032.

Although the Court of Justice has held that sporting events such as football matches cannot be regarded as intellectual creations classifiable as copyright works within the meaning of the Information Society Directive, the focus is again on the author’s “intellectual creation”: Football Association Premier League Ltd v QC Leisure (C-403/08) [2012] Bus. L.R. 1321 at 96-99. It may therefore transpire that some “intellectual creations” will have to be protected, even if they cannot be fitted into one of the existing categories.

Nevertheless, the statutory categories of subject matter will remain the starting point for determining whether something is protected by copyright.

Literary Works: Section 3(1) defines “literary work” as meaning any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes:

  • a table or compilation other than a database;
  • a computer program,
  • preparatory design material for a computer program, and
  • a database.

The designation “literary work” implies nothing about the work’s literary or artistic merit. As Peterson J. observed, “[T]he words literary work cover work which is expressed in print or writing, irrespective of the question whether the quality or style is high.” University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch. 601 at 608. As a result, a wide range of extremely mundane items is included: for example, trade catalogues (Collis v Cater (1898) 78 L.T. 613; Purefoy Engineering Co v Sykes Boxall & Co (1955) 72 R.P.C. 89), street directories (Kelly v Morris (1865-66) L.R. 1 Eq. 697), football fixture lists (Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 W.L.R. 273), television program listings (Independent Television Publications Ltd v Time Out Ltd and Elliott [1984] F.S.R. 64).

Names, slogans and titles have not usually been protected as literary works. The sense that some “literary” productions are too slight to merit protection can be seen in some case law: see Rose v Information Services Ltd [1987] F.S.R. 254 where “The Lawyer’s Diary” was held to be “a simple and accurate description of the product” and not “a literary work of originality” Copyright has occasionally been conferred on advertising slogans, but in Sinanide v La Maison Kosmeo (1928) L.T. 365 the Court refused to protect the slogan “Beauty is a social necessity not a luxury” from the defendant’s use of “A youthful appearance is a social necessity”. The same is true of trademarks: copyright is not a means of preventing a trade mark for being used in a field other than the one for which it is registered.

There has also been a reluctance to find that copyright subsists in titles or invented words. The invented word “Exxon” was held not to be a literary work; Exxon Corp v Exxon Insurance Consultants International Ltd [1982] Ch. 119. In Francis Day & Hunter Ltd v Twentieth Century Fox Corp Ltd [1940] A.C. 112 a film was called “The Man Who Broke the Bank at Monte Carlo”, which was the exact title of a song, although the song was not used at all in the film. The Privy Council laid down a “broad principle” that in general a title is not by itself a proper subject-matter of copyright, because it was “not sufficiently substantial to justify a claim to protection”.

However, interpreting art.2 of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society (the Information Society Directive), the CJEU has now held that, for the purposes of the concept of “reproduction” of a work, parts of a work are not to be treated any differently from the work as a whole, and should be protected if they contain elements “which are the expression of the intellectual creation of the author of the work.”: Infopaq International A/S v Danske Dagblades Forening (C-5/08) [2012] Bus. L.R. 102 (16 July 2009).

In the UK, the CJEU’s decision in Infopaq was considered and applied in Newspaper Licensing Agency Ltd v Meltwater Holding BV [2010] EWHC 3099 (Ch); [2011] E.C.D.R. 10, a case concerned with the taking of short text extracts from newspaper articles. Mrs Justice Proudman noted that “There is no reference to “substantial part” in art.2; the ECJ makes it clear that originality rather than substantiality is the test to be applied to the part extracted. As a matter of principle this is now the only real test.” She held that newspaper headlines are capable of being literary works, whether independently or as part of the articles to which they relate. The same reasoning is capable of being applied to titles (and there is perhaps room for this within the Privy Council’s “broad principle” that in general a title is not a proper subject-matter of copyright: Francis Day & Hunter Ltd v Twentieth Century Fox Corp Ltd [1940] A.C. 112. The first instance decision in Meltwater was upheld by the Court of Appeal, where Sir Andrew Morritt considered it “plainly correct” that headlines were capable of being original literary works in their own right: Newspaper Licensing Agency Ltd v Meltwater Holding BV [2011] EWCA Civ 890; [2012] Bus. L.R. 53. The ramifications of the Meltwater approach as remain unclear as yet. It is potentially problematic, particularly since headlines are often written by editorial staff rather than the journalist who wrote the underlying article.

Originality: The statute emphasises that copyright subsists only in original literary, dramatic, musical or artistic works. The test in UK law has traditionally been a limited one. It does not require that the work should express original or inventive thought, but that the expression of the thought should originate from the author, in the sense that it should not be copied from another source. A classic formulation appears in the judgment of Peterson J. in University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch. 601 at 608-609 (approved by the House of Lords in Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 W.L.R. 273, 277-278, 285 and 291):