Copyright

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  • Created by: hr209
  • Created on: 16-04-18 18:39
What was the first Copyright statute? What year?
Statute of Anne, 1710
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When did copyright protection evolve mostly?
Between the 18th and 20th centuries
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What 3 rights combine to form copyright?
Limited property rights, economic rights and moral rights
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Where do you find the subject matter protected by CR?
s1 CDPA
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How many categories are there?
8
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What is particular about this list?
It is exhaustive
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Should it be exhaustive?
this is disputed by EU directives, benefits seem to have been abandoned
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Are video games protected? What case?
Yes, Nintendo v PC box
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Which section protects literary works?
s3(1)
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What is the scope of protection?
CR protects anything written, not just words- not a value judgement
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What is the test?
words must convey an intelligible meaning (not to everyone)
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Where does it come from? Where is it cited?
Hollinrake v Truswell, Exxon
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Are databases included? Authority?
No, s(3)(1)(a)
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What was the rule in Infopaq?
Isolated sentences may confer originality
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What was the principle in Ladbroke v William Hill
A coupon book counts as a compilation and is still protectable
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What is the case regarding computer programmes? Authority?
Not defined, but included as literary work. S(3)(1)(b)
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What is the scope of this protection? Authority?
All code, and all preparatory design material is included. Software Directive
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What is the case regarding databases? Authority?
Explanation found in Fixtures Marketing Ltd by the CJEU
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Where are dramatic works defined?
Not in the CDPA, but Norowzian v Arks and Nova productions v Mazooma games
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What was the principle in Norowzian
Dramatic work must be a work of action capable of being performed
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What was the principle in Nova Productions
Games are not dramatic works
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What is the scope of protection of musical works? Authority?
Combining sounds is not enough, must be some cohesion- Sawkins v Hyperion Records
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What is important to remember when applying CR to artistic works?
There is no value judgement to be made
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Is it hard to prove what constitutes art?
No, there is a very low threshold
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What was the name and principle of the case regarding makeup?
Merchandising Corp v Harpbond- must be permanence to be protected
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What is the case for protecting photographs? Authority?
Protected if they have originality - Eva Maria Painer v Standard Verlags GmbH
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Sculpture? Authority?
Look at intention/purpose- Lucasfilm v Ainsworth
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Architecture? What else is taken into account?
Building/model of a building is protectable. Artistic Merit is also taken into account
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Artistic Craftsmanship? Authority?
Conflicting opinions on what words mean. Hensher v Restawile
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What else do you need to prove artistic craftsmanship? Authority?
Mertlet v Mothercare - intention is important, Vermaat v Boncrest - evidence of creativity is necessary
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How has protection of films changed over time?
It used to be protected as a series of photos or a dramatic work- now its covered by the CDPA s(5)(b)(i)
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What is included in CR protection of sound recordings?
Vinyl, ytapes, CDs, mp3s
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What are the requirements for protection of a broadcast? Authority?
Must be electronic- s178
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What is included/excluded?
Private communication and internet transmissions are excluded, live events are included
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What is the scope of protection for typographical arrangements?
Overall appearance, no req that work be previously unpublished
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Authority?
Newspaper Licencing Agency v M&S
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What are the criteria for CR protection?
Work must be recorded in material form, must be original, sufficiently connected to the UK, no public policy grounds of exclusion
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What is the British standard of originality?
Labour, skill and judgement
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What is the EU standard?
Authors own intellectual creation
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What does CR protect?
Expression of ideas, not ideas themselves
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What should you remember about originality judgements
Judgements are usually made in a social context
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How hard is it to prove originality under the British conception?
Not very, there is quite a low threshold
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What case does the first originality threshold come from? What was it?
University of London Press. Work should have been 'not copied'
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What case does the current standard come from? What else does it say?
Ladbroke v William Hill- work must be substantial and not trivial
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What was the concept in Interlego v Tyco?
Only certain labour skill or judgement is sufficient to confer originality
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Where does the EU originality standard come from?
Infopaq v Danske Dagblades Forening
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What was the originality principle in Painer?
Originality- reflection of the personality of the author
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What was the principle in the EU case BSA?
Functional is not the same as original
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Which case merged the EU and British standards of originality?
Temple Island Teas
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Is routine labour protected under either standard?
Could be under UK, its not clear, but not under EU
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Data? Authority?
Not protected under either- Football Dataco v Yahoo
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Mere skill? Authorities?
Yes under UK, if exceptional- Walter v Lane, No under the EU- SAS Institute
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Pre-expressive contributions?
Unclear for both- UK doesn't like to split work into 2 stages, EU focuses on choices which directly affect the work
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Derivative works? Authority?
Yes for both, in the UK change must be visually significant- Interlego, EU there must be creative freedom
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Spontaneous Conversation? Authority?
Unclear in UK, protected in EU - Endstra Tapes
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Insubstantial creations?- Authority?
Not under the UK- Meltwater- policy reason which is now irrelevant, EU protects -Infopaq
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Snapshots? Authority?
UK is unclear, EU probably will following Painer
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Reports copyright?
Probably not protected by either
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Photos of works? Authorities?
protected in the UK- Grave's Case, in the EU it depends - Painer
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Computer generated works? Authority?
The UK [protects, the EU does not- AG opinion in Painer and Term Directive
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How does work become sufficiently connected to the UK?
At the material time, the author must be a qualifying person
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What is the case with joint authors?
Works for either author, at least one must qualify
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What is material time for authored works?
Creation date (for unpublished) and date of publication.
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What happens when author dies before publication?
The material time is the death date
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How about sound recordings?
Status of the author at time of creation
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Broadcasts?
Status of organisation at date of transmission
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Typography?
Status of publisher at time of publication
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Who is a qualifying person?
British citizen/national/subject domiciled/resident/incorporated in part of the UK
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Where else does this apply to?
Countries in which the law is extended or applied?
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What subject matter is excluded? Authority?
Obscene, blasphemous or immoral works- Glyn v Western Film feature, A-G v Guardian No 2
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What is wrong with this exclusion?
Its kind of paradoxical, CR encourages creativity, doesn't control dissemination
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What is the first requirement of authorship?
Personhood
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Whats the basic rule for authored works?
The author is the person who creates the work. The more specific the contribution, the more likely
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What is the rule on contributions?
Author must have contributed the relevant labour skill and judgement- contribution must be sufficient to confer originality
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Case authority?
Donoghue v Allied Newspapers Ltd
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Who is the author of a computer generated work?
The person who makes the necessary arrangements
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Who is the author in cases of unknown authorship?
There must be reasonable enquiry to find out- if not its unattributed
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Who is the author of sound recordings?
The producer
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Who is the author of a film? In what case was this disputed?
Producer and Principle Director- Slate v Wimmer- should be director because they have creative control
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How is CR usually allocated in films?
Usually by contract
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Who is the author of a broadcast?
Creator
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Who is the author of a published edition?
Creator of the arrangement
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Which works can be jointly authored?
Any
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What is joint authorship?
Collaboration of 2 or more authors in which their contribution is not distinct
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What requirements must be satisfied?
Each author must contribute, Work must be as a result of collaboration
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What are the requirements of collaboration?
Collaboration must be significant and original
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What is meant by significant?
Substantial, considerable and non-trivial
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What is not required?
Equal proportions of contributions
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What does 'result of a collaboration mean'
there must be some unity
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What is not required?
Intention to create
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What is the rule in Headley v Kemp?
There must be no distinction between contributions
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Who is the first owner of the work?
Author- but this can be assigned
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Who owns the work if created in course of employment or if you're hired to do a job?
The employer
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What is the general rule?
If its on your own time, and not related to work its not owned by employer
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Authority?
Stevenson, Jordan and Harrison Ltd v Macdonald Evans
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What about if you commission a work? Authority?
The commissioner has rights in equity- Ray v Classic Fm
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When would equity intervene? Authority?
In duty of good faith and confidence- Missing Line Software
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Where do economic rights come from?
Statute of Anne- right to print and reprint books
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What are the issues in economic rights?
There is overlap caused by slow and confusing development
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Where do the primary rights come from?
s16-21- CDPA
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What type of offences is breach of these?
Strict Liability
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Is permanence a requirement of infringement of right to copy?
No
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What is the requirement for infringement of right to copy of authored works? Authority?
Copy must be produced in any original form- Brigid Foley v Elliot
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What is required and not required for copies of art? Authority?
Requirement of visual similarity - doesn't matter if 2D or 3D- Rogers v Koons (US)
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What is the difference with a film or broadcast? Authority?
Requirement is narrower than the others. Tixdaq
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What is important about right to issue copies?
Once the work is in circulation, the right no longer subsists
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What was the principle in Peek & Cloppenburg KG?
Display/Advertising is not the same as distribution
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What constitutes dissemination? Authority?
Any agreement to sell, any sale or delivery- Donner
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What is this mitigation called?
Exhaustion
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How is exhaustion adapted for the EU?
Only applies within EEA if first sale was in EEA state
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What is the exception of computer software?
Exhaustion applies to copies, not rentals
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When can CR owners oppose importation into the EEA? Authority?
Where products have not previously been distributed there Blomquist v Rolex SA
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When is importation illegal?
When distribution would be illegal
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What is a rental?
Making work available for direct/indirect economic/commercial advantage
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What is lending?
Making a copy of work available for use on terms that it will or may be returned, otherwise than for direct/indirect economic/commercial advantage
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What is not covered by renting/lending?
Making a copy available for public performance, playing/showing in public or broadcast or exhibition in public
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Which works do not have a performance right?
Artistic works
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What was the definition of public in Duck v Bates?
Public = not domestic or small groups
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What was the definition of public in PRS v Harlequin Records?
The character of the audience should be taken into consideration
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What is the test to discern a public? Authority?
Who has access? Shared Characteristics? Infringement of CR owners monopoly? Jennings v Stephens
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Which test is used?
Relationship between tests is unclear
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How is the requirement interpreted in the courts?
Very broadly
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What was the rule set out in Rafael Hotels SA?
TV sets/ambient music is sufficient. Public = lots of people
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What was the rule in FAPL?
Concept should be construed broadly- any transmission- irrespective of means/process used?
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Do hyperlinks count as communication to the public? Authority?
They count as making a work available, although this is dubious. Svensson
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Is Svensson still adopted?
No, in C More Entertainment v Sandberg there was a deviation and hyperlinks are now considered communication
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Does embedding a video count? Authority?
No, not a communication as long as the video isn't altered. Best Water
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What acts count under making work available?
Uploading to the web or transmission to a place
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What acts count as adaptation?
Translations, dramatic works converted to non-dramatic and musical arrangements
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What is infringement?
Performing a right set out by the CR owner
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What is the difference between direct and indirect infringement?
Direct is the copying itself, and indirect is adapting the work
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What is necessary to show primary infringement?
Carrying out an act exclusive to the CR owner, causal connection, whole/substantial part of the work has been infringed
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What is the similarity requirement for causal connection?
Similarity is not enough- there must a strong connection
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Can infringement occur when D bases their work on a copy?
It may do
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What was the rule in Francis Day & Hunter v Bron
There must be an act of copying
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What is the case with subconscious copying? Authority?
Designer Guild v Russel Williams - still infringement but its hard to prove
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What was the ruling in Mitchell v BBC?
Same inspiration is not enough for infringement
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What is the court position on the 'whole or substantial part' requirement?
It has changed over times, courts are increasingly willing to consider small parts of a work as substantial
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What is the British approach to the requirement? Authority?
Quality not quantity- the importance of the fragment to the work as a whole- Designers Guild
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What is the EU approach to this requirement? Authority?
Their approach is unclear, a fragment of work will only be protected under Infopaq if it contains original elements
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Is there a case which merges the standards? What was the rule?
England and Wales cricket board v Tixdaq- Substantial reproduction by composition requires only the important parts
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What is the case with non-literal copying? Authority?
Non-literal copying can count as infringement- but only expression of ideas
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What is secondary infringement?
When D facilitates copying, but doesn't produce any copies themeselves
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What are the categories of secondary infringement?
People who distribute copies and dont make them, and those who enable copying
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Case authority? What happened?
University of South Wales v Moorhouse - providing photocopies + not talking steps to limit use
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What was the rule in Sony v Universal?
Tech that has substantial non-infringing uses are fine
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What should you consider when applying the fair dealing exceptions?
Market impact- if a work is unpublished, its more likely to be unfair
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What else is important? Authority?
Quantity of amount taken - Hubbard v Vosper
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How does Ds commercial benefit change a decision? Authority?
Ds commercial benefit will weigh heavily against them- Newspaper Licencing Agency v M&S
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What kind of temporary copies are often protected?
Transient copies necessary for telecommunication and have no commercial value
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What was the ruling in the EU case of PR consultants association v Newspaper Licencing Agency
Browsing websites make copies, but this is ok as it is necessary for technical operation
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What is special about the Private Use exception? Authority?
It was quashed by judicial review in 2015 in BASCA v Secretary of State
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What are the grounds for the private study exception? Example?
Non commercial use & sufficient acknowledgement- Sillitoe v McGraw Hill Book Co- study notes were too extensive to be fair
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What are the grounds for the criticism exception? Example + ruling?
Must be available to the public & Sufficient acknowledgement- Ashdown v Telegraph Group- take into account how much it interferes with author CR
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What are the requirements for reporting current events?
Sufficient acknowledgement & Balance of protection of CR and free speech
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what is the rule in incidental use? Authority?
Where work appears in the background, if it is necessary its not incidental - FAPL v Panini UK Ltd
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What are the common law defences
Crown privilege, equity and public interest
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What is included in parody?
Caricature, pastiche and parody
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What was the ruling in Deckmyn?
Parody must evoke original work while being different, constitute expression of humour/mockery and balance interest of CR with freedom of expression
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What are moral rights?
Non economic rights of creators
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What is the UK approach to moral rights?
Pragmatic, and there are very few cases
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Where do they come from?
Berne Convention and TRIPS- existed for ages in civil jurisdictions but have only recently come to common law
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What are the moral rights?
Right to paternity, integrity, objection to false attribution and privacy
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How is infringement of moral right dealt with in the UK?
As a breach of statutory duty with a reward of damages
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How long do moral rights last?
Same as CR, except for false attribution which lasts 20 AD of person wrongly assumed as author
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What is wrong with how the UK implemented moral rights?
Non-verbatim= a little half hearted
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What is the right of paternity? What is special about it?
Right to be attributed, can't be assigned but may be waived
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How do people normally assert the paternity right? Example?
(c) + name + date. Sawkins v Hyperion Records (with thanks to mr sawkins is not enough)
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What do you have to show for infringement of a paternity right?
Author has not been identified (clear and apparent), distribution is required and no defences/exceptions apply
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What is the right of integrity?
Right to have work not subject to derogatory treatment
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What counts as treatment?
Addition/deletion/adaptation/alteration
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What counts as derogatory?
distortion/mutilation of work or otherwise prejudicial to author reputation
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Is this hard to prove?
High threshold, close to defamation
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What do you need to show to prove integrity?
derogatory treatment, circumstances where author is protected, no exceptions and no consent
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What was the rule in Confetti Records v Warner Music Ltd?
Meaning of words were unclear so no derogatory treatment. No evidence of an author reputation to have been tarnished
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what was the rule in Snow v The Eaton Centre?
The test of integrity is subjective on the part of the author
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What is the right to object to false attribution? Example?
Right not to be named on work you haven't created. Clark v Associated Newspapers - could the public be deceived by the parody
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What is important to remember about the rule in Clark?
It is before the parody exception in 2014, so would now be covered under parody
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When is damages an appropriate remedy?
When D knew the work was CR protected
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What kind of injunctions are used?
seizure of material, order to take licence (common for software), prohibition of importation, against ISPs, prohibition of infringing acts
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What is the rule in 20th Century Fox?
it was the first successful case against ISPs
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Which other remedy is available?
Criminal Charges
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Card 2

Front

When did copyright protection evolve mostly?

Back

Between the 18th and 20th centuries

Card 3

Front

What 3 rights combine to form copyright?

Back

Preview of the front of card 3

Card 4

Front

Where do you find the subject matter protected by CR?

Back

Preview of the front of card 4

Card 5

Front

How many categories are there?

Back

Preview of the front of card 5
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