Intellectual Property: Copyright

1 Introduction

Copyright is a form of intellectual property right which exists in certain works as set out in the Copyright, Designs and Patents Act 1988¹ (the 1988 Act). Copyright is not concerned with ideas, only the expression of ideas.

There are a number of conventions on copyright and related rights, including the Berne Convention,² which contain the minimum requirements to be given effect by domestic legislation in countries around the world. The Universal Copyright Convention³ (UCC) was developed as an alternative to the Berne Convention for states unwilling to become signatories, mainly developing countries who believed the Berne Convention favoured the West, but which still wanted to participate in multilateral copyright protection. The designation ‘© Artisan Food Law Limited 2013’, for example, is a formality required by the UCC and so is mandatory only in those countries which are signatories to the UCC alone. It does, however, serve as a reminder that a work is protected.

Most countries are now members of the World Trade Organization (WTO) and so bound by the agreement on Trade-Related Aspects of Intellectual Property Rights⁴ (TRIPS) and many have since become signatories to the Berne Convention. The UCC has lost much of its significance.

 

2 Copyright Works

It is only the particular expression of an idea which is protected, not the idea in itself. The person who expresses the idea must also invest a minimum amount of effort and skill in their work:

… a literary work which describes a system or invention does not entitle the author to claim protection for his system or invention as such. The same is true of an inventive concept expressed in an artistic work. However striking or original it may be, others are (in the absence of patent protection) free to express it in works of their own … The other proposition is that certain ideas expressed by a copyright work may not be protected because, although they are ideas of a literary, dramatic or artistic nature, they are not original, or so commonplace as not to form a substantial part of the work.⁵

There is no copyright in a name or words whether invented or otherwise.⁶ Copying an idea, in one notable case Popeye the Sailor, and not the form it took, is not a breach of copyright.⁷

The expression of an idea with a little skill and effort, which is what in practice makes that expression original, are prerequisites for copyright protection. The expression of an idea must also be fixed in a permanent form to attract copyright. The repeated use of face make-up, for example, has been held to be insufficiently permanent to attract copyright.⁸

Copyright is a property right which, if the requirements of the 1988 Act are met, subsists in the following works:⁹

1. Original literary, dramatic, musical or artistic works.

2. Sound recordings, films or broadcasts.

3. The typographical arrangement of published editions.

A work is classified as being within a single type and cannot fall under two or more classifications. A product may, however, comprise a number of works each in different classifications and separately protected.¹⁰ Although this may only apply to the categories in paragraph a) above following a decision of the Court of Appeal that a film “being a work of action capable of being performed before an audience” could also be a dramatic work.¹¹ Furthermore, a work which does not fall within one of the above descriptions cannot be protected by copyright.

One last hurdle remains, copyright does not subsist in a work unless the qualification requirements of the 1988 Act are satisfied. In general, if the author was, at the material time, a qualifying person or a work is first published in the UK. In most circumstances this would be satisfied where the author was, on first publication of a work, a British citizen, domiciled or resident in the UK or a body incorporate under UK law.¹²

How might all this be relevant to food producers? Literary work includes work expressed in print or writing without regard to artistic merit.¹³ There are a range of examples which include branding, promotional literature, artwork and drawings used to portraying particular values of a business, creative food packaging and promotional videos and films. All may attract copyright protection and so prevent a competitor or other person from copying or, alternatively infringe the copyright of others who may take action.

 

3 Rights in Copyright Works

In the ordinary course of events the author is the first owner of copyright, but he or she may assign copyright to third parties. In the absence of any agreement to the contrary, which may be written or oral, express or implied,¹⁴ the first owner of copyright in any work created by an employee in the course their employment is the employer.¹⁵ The owner of copyright in a work has the exclusive right to:¹⁶

1. Copy the work.

2. Issue copies of the work to the public.

3. Rent or lend the work to the public.

4. Perform, show or play the work in public.

5. Communicate the work to the public.

6. Make an adaptation of the work or do any of the above in relation to an adaptation.

The owner of copyright may authorise third parties to undertake any of the above activities.

 

4 The Duration of Copyright

The duration of copyright protection in literary, dramatic, musical or artistic works is 70 years from the end of the calendar year in which the author dies.¹⁷

 

5 Infringement of Copyright

In an action for primary infringement of copyright, the copyright owner must prove, on the balance of probabilities:

1. The defendant carried out an activity exclusively reserved to the copyright owner.

2. The activity carried out by the defendant was derived from the copyright work.

3. The activity was carried out in relation to the work or a substantial part of the work.¹⁸

There must be a causal connection between the activity and the copyright work.¹⁹ Copyright does not protect copying where a work has been created independently, but copying a copy is sufficient.²⁰ A striking similarity between the copyright work and the defendant’s work combined with evidence the defendant had the opportunity to make a copy may lead to the inference of copying in the absence of direct evidence. The onus then rests with the defendant to prove that the work was created independently.

Secondary infringement of copyright is committed by any person who deals with infringing copies, for example, selling or distributing such copies which they know or have reason to believe are infringing copies.²¹

What is or is not a substantial part is assessed on the basis of quality rather than quantity. The question is therefore whether the level of skill and effort invested in producing the relevant part of the work is substantial rather than whether the relevant part constitutes a substantial portion of the whole work.

 

6 Defences in an Action for Breach of Copyright

The 1988 Act makes provision for a range of permitted acts on which a defendant, in legal proceedings for infringement of copyright, may rely. These permitted acts only come into play when it has been established that there has been an infringement of copyright, at which point the onus rests on the defendant to show that it was a permitted act. The main ones are highlighted below.

2.1 Fair Dealing

A person will not be found liable for infringement of copyright where they can demonstrate fair dealing for the purposes of:

1. Research for a non-commercial purpose or private study.²²

2. Criticism or review.²³

3. Reporting current events.²⁴

In this context, ‘dealing’ means simply that use has been made of a copyright protected work. Fair dealing is permitted only for a purpose specified in the 1988 Act, although these have been liberally construed by the courts. Furthermore, the dealing must be fair and in making this assessment a number of factors are to be taken into account, the weight of each being entirely dependent on the circumstances of a particular case:

• Whether the work has been published.

• How the work was obtained.

• The amount of work taken and copied.

• The use made of the work.

• The motives behind the dealing.

• The consequences of the dealing.

• Whether the purpose of the dealing could have been achieved by other means.

In some situations (criticism, review or news reporting, for example) the dealing must provide ‘sufficient acknowledgement’ of both the work and its author, not the copyright owner where different.

2.2 Incidental Inclusion

Photographers, broadcasters, painters and others, particularly in an urban setting, would face difficulty portraying scenes in ordinary life which captured copyright protected works. Copyright in a work, however, is not infringed by its incidental inclusion in an artistic work, sound recording, film or broadcast.²⁵

2.3 Public Interest

In certain circumstances it may be argued that the use of copyright protected work was justified in the public interest. This defence arises under the common law and has been preserved, but the circumstances in which it has been upheld are rare.

2.4 Library Uses

The permitted acts under this heading concern the actions of prescribed non-profit libraries, in particular school, university and local authority libraries²⁶ in providing copy works at cost for the purposes of non-commercial research or private study by individuals. There are also other conditions which apply.

2.5 Educational Uses

There are complex arrangements covering the making of copies of works in an educational setting²⁷ which cover:

• Copying for the purposes of instruction and examination.

• Copying anthologies for educational use.

• Performing, playing or showing work.

• Recording broadcasts.

• Reprographic copying of passages from published works.

• Lending copies

 

7 Remedies for Breach of Copyright

It is one thing to have a right, another to be able to enforce that right. The cost of litigation in matters concerning intellectual property is such that the mere threat of action is sufficient to cause an alleged infringer to cease and desist from alleged infringements. This is particularly so where the actions of a large commercial organisation are directed small enterprises comprising only a few employees as not infrequently happens.

In the case of passing off and copyright there is no statutory protection against unjustified threats to sue. The only alternative avenues that may be considered include an action against the aggressor for abuse of process or seek a declaration of non-infringement from the court, but these are almost equally burdensome and expensive routes to pursue.

The remedies which may be obtained where the infringement of copyright has been established include:

• Interim injunctions.

• Stopping imports of goods which infringe copyright.

• A final or permanent injunction.

• The delivery-up of offending works for destruction.²⁸

• Damages and additional statutory damages in cases of flagrant infringement.²⁹

• An account of profits instead of damages which deprives a defendant of any profits made from the infringement of copyright.

Finally, criminal liability attaches to making or dealing in infringing articles.³⁰ A person found guilty of an offence is liable on summary conviction to imprisonment for a term not exceeding six months and a fine not exceeding £50,000; on indictment a fine and up to ten years imprisonment.³¹