This chapter discusses the qualification requirement for copyright protection in the UK. The UK copyright system is based on the principle of national treatment contained in the Berne Convention for the Protection of Literary and Artistic Works 1886, in the Universal Copyright Convention, and in the TRIPS Agreement. This requires that authors connected with another member state are to be treated in the same way as a member state’s own authors and should receive the same copyright protection. That connection with a member state might be provided in two ways: the author may have a personal relationship with the member state, or the work may be first published in that member state.
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Chapter
11. Qualification
Chapter
13. Authorship and ownership of copyright
This chapter explains the law on authorship and copyright ownership. The creator of a work is, in principle, its author. There can be more than one creator for a work and therefore also more than one author. Joint authorship arises when more than one creator is involved in the creation of the work and the contribution of each creator can no longer be separated out in the final result. Copyright is a property right and, as such, needs an owner. The general principle is that the author will be the first owner of the copyright in his or her work.
Chapter
15. Copyright infringement
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
17. Rights in performances
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
19. Copyright—an overview
This chapter provides a brief summary of the discussions on copyright. It covers the roots of copyright; the various types of work that attract copyright protection; and the duration of copyright protection.
Chapter
1. Introduction to copyright
This introductory chapter provides an overview of copyright protection. It discusses how United Kingdom copyright law has developed from the mid-16th century onward. The purpose of giving this account is to highlight two recurring themes: firstly, the law's struggle to keep up with changing technology; and, secondly, the effect of external influences on domestic law. The chapter then looks at the theoretical justifications for copyright and the extent to which they accord with the current law, and the principal characteristics of copyright, including the crucial difference between protecting an idea and protecting the expression of that idea. There are a number of aspects of copyright that do not apply to other intellectual property rights like patents and trade marks. Understanding these differences will help one in distinguishing between the different types of intellectual property right.
Chapter
2. Copyright I: History, Justifications, Sources of Law, and Subsistence
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. Copyright refers to a set of exclusive rights in relation to cultural works such as literature, newspapers, photographs, drawings, artworks, films, music, and plays, and also extends to less obviously aesthetic creations, such as computer programs and databases. This chapter discusses the history, justifications, and sources of UK copyright law as well as the requirements for copyright protection. The requirements for protection that are explored are subject matter, originality,and fixation. The impact of EU copyright law on these UK requirements is examined.
Chapter
10. Introduction to the European Law of Copyright and Related Rights
Justine Pila and Paul L.C. Torremans
This chapter introduces the European law of copyright and related rights with an overview of its basic principles. It then considers the European (EU) statutory framework governing copyright and related rights and the policy agenda of the European Commission on which it is based, including the Commission’s digital single market initiatives. The chapter then concludes with a wider discussion of the EU’s response to the challenges posed by globalization and digital technology. The picture to emerge is one of ever-growing legislative fragmentation off-set by ever-growing substantive harmonisation as a result of thirty years of active EU law- and policy-making, including a large number of policy communications and harmonizing directives, the ratification of several international agreements, and almost daily decisions from the Court of Justice.
Chapter
11. The Subsistence and Ownership of Copyright and Related Rights
Justine Pila and Paul L.C. Torremans
This chapter considers the three requirements for copyright and related rights to subsist—the existence of a subject matter of protectable type that is sufficiently connected to the territory of the protecting state and that satisfies any applicable formalities—the combination of international and EU legal sources by which they have been harmonized for EU Member States, and the beneficiaries of the resulting copyright and related rights protection.
Chapter
21. Database Rights
Justine Pila and Paul L.C. Torremans
This chapter discusses database protection and database right under European Parliament and Council Directive on the protection of databases [1996] OJ L 77/20.1, better known as the Database Directive. Long before the advent of digital technology various forms of databases were around in analogue format, such as telephone directories. Digital technology opened up opportunities of scale in this area and made data easy to search. But at the same time it impeded the mere consultation or reading of the data, that are now hidden in a digital format. The real value of a database lies in the comprehensive nature of the information it contains, rather than in the originality of the information itself. Thus, granting an exclusive right in a collection of data or information, without any requirement of originality in relation to the data or information, not only risks interfering with the right of access to information, but also risks interfering with the freedom of competition, since the only workable access to information and data that are themselves in the public domain and freely available will now pass via the rights holder and its database. The database right has the difficult task of striking the right balance between the various interests involved, and the Directive has been accused of putting in place the least balanced and most anti-competitive exclusive right in the EU.
Chapter
2. Copyright 1: history, rationale, and policy context
This chapter considers the evolution of modern copyright law against the background of its historical development in the UK and the international and European legal frameworks within which UK copyright law has been set since the nineteenth century. It examines the rationale and justifications for copyright and identifies the general policy context within which law and policy has developed in the UK and the EU. It also highlights the rapid development of new technologies which has brought copyright reform to the forefront in recent times, the difficulties which this new environment presents for the copyright framework, and how the framework has developed to meet such challenges.
Chapter
5. Copyright 4: exceptions and limitations
This chapter discusses exceptions and limitations to the rights of the copyright owner. Copyright law establishes many such exceptions and limitations, listed in the Copyright, Designs and Patents Act 1988 (CDPA 1988) as the ‘permitted acts’. These acts can be carried out in relation to the copyright work without the owner’s permission or, in some cases, can be performed subject to terms and conditions specified by the statute rather than by the copyright owner. The chapter discusses the influence of the international framework and EU directives on exceptions and limitations. It analyses the ‘permitted acts’ and discusses the freedoms afforded through them to users of protected works in the UK, and also briefly considers how far they may be set aside by contractual provision.
Chapter
12. The term of copyright
This chapter discusses the duration of copyright protection in the UK. The basic rule is that the term of copyright has been harmonized at life of the author plus 70 years in the EU. The basic rule applies to the original category of works (literary, dramatic, musical, and artistic works) and to films. Entrepreneurial works, such as sound recordings and broadcasts, receive 50 years of copyright protection. Performances fixated in a phonogram will in future be protected for 70 years. The term of protection for typographical arrangements is 25 years.
Chapter
14. Moral rights
This chapter explains the moral rights of the author in a copyright context. Moral rights emphasize the strong link between the work and its author. That link prevails regardless of the how the commercial exploitation of the work takes place. There are two core moral rights. First, there is the right to be identified, or the paternity right. This applies traditionally to literary, dramatic, musical, or artistic works, but it has been expanded to include films and performances. Second, there is the right of integrity, or the right to object to derogatory treatment of the work. This protects the reputation of the author, which again also has its value for users of the work. The discussion also includes the right against false attribution of the work; the right to privacy in relation to commissioned photographs; and consent and waiver.
Chapter
16. Defences to copyright infringement
This chapter discusses defences to copyright infringement. It covers authorization or consent of the owner; public interest; the Copyright and Rights in Performances (Disability) Regulations 2014; the making of temporary copies; fair dealing; incidental inclusion; educational use; exception for libraries, archives, and public administration; the Information Society Directive; and orphan works.
Chapter
2. Subsistence of copyright
This chapter examines the subsistence of copyright. Subsistence is a central requirement for copyright protection — unless it is established that copyright subsists in one's work, one cannot make a viable claim that someone else has used one's work without permission. Section 1 of the Copyright, Designs and Patents Act 1988 (CDPA) declares that copyright is a property right which subsists in an exhaustive, or closed, list of eight different categories of ‘work’: original literary, dramatic, musical, or artistic works; sound recordings, films, or broadcasts; and the typographical arrangement of published editions. Originality is the paramount criterion of copyright protection. For this reason, there are a great many cases that consider how to define the level of originality required for a piece of literature, drama, music, or art to be protected.
Chapter
17. Enforcement issues
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
12. The Rights Conferred by Copyright and Related Rights
Justine Pila and Paul L.C. Torremans
This chapter considers the nature and scope of the rights conferred by copyright and related rights under European law. The starting point for this discussion are domestic conceptions of copyright and related rights as conferring a range of economic and moral rights on authors and related rights holders to authorize or prohibit certain acts in relation to the protected work or subject matter within the territory of the protecting state, subject to the availability of a limitation or exception. With this as background, the chapter considers the precise nature and scope of the rights conferred by copyright and related rights as a matter of European law, and such aspects of those rights as remain untouched by European law.
Chapter
13. Copyright and Related Rights Exceptions and Limitations
Justine Pila and Paul L.C. Torremans
This chapter concludes the discussion of European copyright and related rights law by considering the exceptions and limitations permitted (and potentially, required) by Article 5(2) to (4) of the Information Society Directive. A central theme is the increasing challenge being presented to domestic law- and decision-making by the EU law of fundamental rights, including the growing body of EU case law regarding the implications of the Charter of Fundamental Rights and Freedoms of the European Union for the scope and enforcement of copyright and related rights and the coherence and consistency of the emerging jurisprudence in this area.
Chapter
3. Theoretical Accounts of European Intellectual Property
Justine Pila and Paul L.C. Torremans
This chapter offers a full and critical account of the arguments for and against the existence of IP systems in general, and of European IP systems in particular. It begins by considering two general theories in support of the recognition of IP rights as natural rights: the first casting IP as supporting the personal development and autonomy of individual creators (the argument from personhood), and the second casting IP as securing for creators such rights as they deserve by virtue of their acts of intellectual creation (the argument from desert). From natural law accounts of the existence of IP the chapter goes on to examine three other theories grounded in considerations of justice, utility, and pluralism respectively. According to the first, IP is defensible as a means of preventing people either from being enriched unjustly or from harming others by unfairly ‘reaping where they have not sown’. According to the second, IP rights are privileges conferred by the state on specific individuals in the pursuit of certain instrumentalist ends, such as encouraging socially desirable behaviour on the part of their beneficiaries or discouraging socially undesirable behaviour on the part of those whose freedoms they restrict. And according to the third, IP is a regulatory mechanism by which different understandings and traditions of protecting creative and informational subject matter are reconciled in support of legal and social pluralism. The chapter concludes with a discussion of the implications of the theoretical accounts for the duration of copyright and related rights protection and the patentability of biotechnology.
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