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Chapter

This chapter focuses on the two types of copyright infringement within the CDPA 1988: primary infringement and secondary infringement. In primary infringement, the defendants are directly involved in copying, performing, and issuing to the public the copyright work, whereas secondary infringement involves people who deal with infringing copies, or facilitate such copying or other activities that are restricted by copyright. Besides this difference that has to do with the scope of rights, there is also difference on the mental element. Unlike primary infringement that does not require knowledge or intention to infringe on the part of the alleged infringer and is hence subject to strict liability, secondary infringement occurs where the defendant knew or had reason to believe that activities in question are wrongful. This is assessed on the basis of an objective test, namely what matters is what a reasonable person would have thought in the relevant circumstances.

Chapter

L. Bently, B. Sherman, D. Gangjee, and P. Johnson

This chapter considers the question of what amounts to copyright infringement, first by discussing ‘primary’ infringement and ‘secondary’ infringement. It then explains the three criteria used to determine whether copyright in a work has been infringed: whether the defendant carried out one of the activities that falls within the copyright owner’s rights; whether there is a causal link between the work used (that is, reproduced, issued, rented, performed, communicated, or adapted) by the defendant and the copyright work; and whether the restricted act has been committed in relation to the work or a substantial part thereof. It also looks at the European approach to finding infringement in relation to authorial works and compares it with the British approach before concluding with a description of non-literal copying of such works.

Chapter

This chapter focuses on rights in performances, which covers all aspects of the making of a recording of a performance and its subsequent exploitation. The discussion includes subsistence of rights; term of protection; the qualification requirement; content and infringement; the nature of the performer’s rights and their transfer; and moral rights.

Chapter

This chapter discusses the various acts that can infringe copyright. A distinction is made between primary infringement and secondary infringement. All forms of primary infringement involve copying, whether through reproduction or through performance of the work. Under s. 16(1) of the Copyright, Designs and Patents Act 1988, the rights of the copyright owner are infringed if: the work is copied; copies of the work are issued to the public; the work is lent or rented to the public; the work is performed, shown, or played in public; the work is communicated to the public; or an adaptation is made of the work or any of the above is done in relation to an adaptation. Secondary infringement involves the commercial exploitation of works that attract copyright.

Chapter

This chapter considers the ‘economic rights’ the copyright owner enjoys while copyright protection endures. These are the rights that the Copyright, Designs, and Patents Act 1988 (CDPA 1988) calls ‘acts restricted by copyright’, which may be exploited by transferring them to others or licensing others to use them for a price. The chapter discusses the rights flowing from ownership of copyright and the international framework that underpins them, noting the influence upon UK law of a number of EU Directives. It identifies the general principles pertaining to infringement of economic rights, before turning to the detailed rules on each economic right: to make copies, issue copies to the public; rent or lend commercially to the public; perform, show, or play in public; communication to the public; and make adaptations. It discusses authorisation of infringement (accessory liability) in relation to these economic rights, and finally considers secondary infringement of copyright.

Chapter

This chapter discusses protection under the law of copyright. Topics covered include copyright basics; obtaining copyright; forms of protected work; the requirement of originality; copyright ownership; copyright infringement; the nature of copying; other rights belonging to the copyright owner; the development of software copyright; and literal and non-literal copying. The law of copyright is perhaps the major branch of intellectual property law relevant to computer software. Virtually every piece of software will be protected by copyright. The main issue concerns the extent of the protection that is offered. Computer programs are generally protected as literary works. This was appropriate in the early days where computers performed essentially functional tasks – often associated with mathematical calculations. It is arguable that modern software, which often makes extensive use of graphical images, is more akin to an artistic work than a literary one. Regardless of categorization, the courts in the United Kingdom have applied a narrow interpretation of the scope of copyright. Reproduction of the underlying code will be unlawful but replication through independent work of the effects produced by the code (often referred to a non-literal copying) will not.

Chapter

This chapter looks at the relevant statutory and non-statutory defences to copyright infringement. Defences against copyright infringement usually take the form of the so-called exceptions and limitations to copyright, which are meant to enhance and maintain a balance of interests between copyright holders and users. Exceptions allow individuals to carry out an exclusive act in relation to a copyright work, without asking authorisation from the copyright holder and without having to pay remuneration. Limitations, on the other hand, allow individuals to carry out an exclusive act in relation to a copyright work in return for paying remuneration to the copyright holder. The chapter then sets out the principal general copyright defences — which are discussed under the umbrella term of ‘fair dealing’ — and indicates which categories of work are covered by which defence and the requirements attached to each.

Chapter

This chapter considers two main topics. It first examines the provisions of the EU’s Copyright in the Information Society Directive, which sets out to amend some provisions of copyright law better to fit the realities of an online world. It then looks at some of the issues associated with enforcement of copyright, considering the extent to which intermediaries such as Internet Service Providers (ISPs) might be held liable for infringing acts committed by their users. Attention is increasingly paid to the possibility that rights owners might proceed against users whose actions infringe their rights. In many cases this will require the cooperation of ISPs and a major component of the Digital Economy Act 2010 is concerned with the manner in which this process might be managed.

Chapter

This chapter examines whether software should be protected by patent law or by the law of copyright, or through a sui generis form of protection. It first provides a historical background on software and copyright protection, before discussing the scope of software copyright protection and copyright infringement. The chapter then looks at several forms of copyright infringement such as offline, online, and employee piracy, and also explains the look and feel infringement by citing three cases: Navitaire v easyJet, Nova Productions v Mazooma Games, and SAS Institute v World Programming Ltd. In addition, it considers permissible acts under the UK’s Copyright, Designs and Patents Act 1988 without infringing the rights of the copyright holder, including software licences, end-user licence agreements (EULAs),. Finally, the chapter analyses cases relating to patent protection for computer software, including software patents under the European Patent Convention and the decision in Aerotel v Telco and Macrossan.

Chapter

4. Copyright III  

Infringement, Exceptions, and Database Right

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses the circumstances in which an owner’s economic rights may be infringed; the exceptions and limitations to copyright infringement; changes to the exceptions regime recently introduced into UK copyright law and how technological protection measures interrelate with copyright exceptions; and database right.

Chapter

The final chapter in the book examines matters relating to the intellectual property created and/or owned by a business and their responsibilities for the data they access and/or produce. Given the value of the outputs from the intellectual creativity of persons (software programs, books, music recordings etc.), this chapter outlines the rights available to protect them and the consequences for infringement. It first identifies the law surrounding creative ideas and work (copyright) before a product’s appearance (design rights) is considered. The chapter continues by assessing the protection of a brand name and image (trademarks) and finishes the substantive issues through examination of inventive ideas and works (patents). Confusion of the public through the unlawful use of an existing business’ name or product can result in the tortious liability of ‘passing-off’. Intellectual property is produced by employees and the consequences of employment status for the rights to exploit the property must be effectively managed. The chapter concludes with an assessment of developments in data protection—the GDPR, Data Protection Act, and the tactics available to businesses to avoid transgression of the law.

Chapter

This chapter discusses the law on unregistered designs. The Copyright, Designs and Patents Act 1988 defines unregistered designs as the design of any aspect of the shape or configuration (whether internal or external) of the whole, or part, of an item. In order to secure protection, such a design must be original, in the sense that it should not be commonplace in the design field in question at the time of its creation. Unregistered design rights roughly offer 15 years of protection, during which the right holder has the exclusive right to reproduce the design for commercial purposes. Infringement consists in anyone making an item to the design without authorization and in the making of a design document that records the design for the purposes of enabling someone else to make items to it, again without authorization.

Chapter

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses the circumstances in which an owner’s economic rights may be infringed and the exceptions and limitations to copyright infringement, including fair dealing for research and private study, reporting current events, criticism or review, and quotation. The chapter explores recent cases relevant to these exceptions and how the UK’s departure from the EU may affect judicial interpretation and how technological protection measures interrelate with copyright exceptions. It also examines the sui generis database right.

Book

Stavroula Karapapa and Luke McDonagh

Intellectual Property Law aims to provide a comprehensive text on all aspects of this field. The first part looks at the complexities of copyright law, from authorship and first ownership to infringements and defences. It also covers moral and related rights. The second part looks exclusively at passing off. Then the text turns to trade marks. It examines the absolute grounds for refusal and the relative grounds for refusal of registration. It looks in detail at infringement and loss of registration of trade marks, and this part of the book ends with an examination of defences to trade mark infringement. The next part is about patents. After an introduction to patents the text analyses ownership and infringement of patents. The text then moves on to confidential information, in other words, trade secrets. Designs are examined after this. The final few chapters are about the exploitation and enforcement of intellectual property. The text concludes.

Chapter

L. Bently, B. Sherman, D. Gangjee, and P. Johnson

This chapter deals with the exceptions that a person may invoke in defence when sued for copyright infringement. Most of these exceptions are referred to as ‘permitted acts’ in Chapter III of Part 1 of the Copyright, Designs and Patents Act 1988 (CDPA 1988). The chapter begins by introducing six concepts that feature in many of the exceptions set out in the CDPA 1988: fair dealing, non-commercial use and not-for-profit users, lawful use, sufficient acknowledgment, relationship with contract, and dealings with copies made under exceptions. It then cites exceptions relating to personal copying for private use; non-commercial research or private study; text and data analysis; criticism or review; disclosure in the public interest; uses of works for people with disabilities; public administration; databases, computer programs, and electronic programs; and artistic works and broadcasts. A section on miscellaneous defences concludes the chapter.

Chapter

This chapter defines copyright as arising whenever a work is created under qualifying conditions. The Copyright, Designs, and Patents Act 1988 (CDPA) defines eight types of work that fall under two categories: works that must be original or ‘authorial works’, including literary works, dramatic works, musical works, and artistic works; and works that need not be original or ‘entrepreneurial works’: films, sound recordings, broadcasts, and the typographical arrangement of published editions. Copyright is infringed by copying or communicating the whole or a substantial part of a work—referred to as primary infringement—or by dealing in infringing copies of a work—referred to as secondary infringement. There are some major and many minor defences to copyright infringement including the ‘fair dealing’ defences and the public interest. Many aspects of copyright law have been harmonized by the European Union.