Designers Guild v Russell Williams

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Transcript Designers Guild v Russell Williams

Subject-matter and protection
Turin October 2011
Dr E. Derclaye
• Short summary of the differences between copyright
systems (‘CS’) and author’s right systems (‘AS’)
• = rough sketch of the main differences. Be aware that there
are nuances in each country.
• Nature of right
• CS: founded on economic considerations >< AS: is a right of
personality, a human right – the author is at the centre of the
• Authorship
• CS: possible for a legal as well as a natural person to be the
author ab initio >< AS: only a human being can be an author
• Cinematographic works
• CS: initial owner may be a legal person (e.g. the film
producing company) >< AS: initial owners will be the authors
(with some exceptions)
(c) E. Derclaye 2000-2011
• Works of employees
• CS: initial owner will be employer >< AS: initial owners are the
• Originality
• UK: skill judgment and labour >< AS + USA: creativity (mark,
stamp of author's personality in the work)
• NB: Since EU harmonisation, criterion of the "author's own
intellectual creation" applies to software, databases and
• Moral rights
• CS: generally slow recognition of moral rights (through
international obligations, i.e. Berne) >< AS: longstanding
tradition, occupy a pre-eminent position in the author's right
(c) E. Derclaye 2000-2011
• Fixation
• CS: essential that work is fixed to enjoy protection >< AS: not
a requirement (with very few exceptions)
• Contracts
• CS: no extensive provisions on publishing contracts >< AS:
such provisions are common
• Related rights
• CS: copyright is granted both to original works and non
original subject matters >< AS: clear distinction between
author's right in creative works and related or neighbouring
rights of performers, phonograms producers, broadcasters
• Formalities
• Not required to enjoy protection but in the US for example,
important e.g. to be able to launch an action or obtain
(c) E. Derclaye 2000-2011
• S 1(1) Copyright is a property right which
subsists in accordance with this Part in the
following descriptions of work—
• (a) original literary, dramatic, musical or
artistic works,
• (b) sound recordings, films or broadcasts,
• (c) the typographical arrangement of
published editions.
(c) E. Derclaye 2000-2011
• History
• Purpose?
– Clarity => legal certainty
– What is and what is not protected
– Differential treatment
• Problems?
– A creation does not fit
– A creation call fall in more than one category
– Technological advances => categories outdated =>
new ones must be devised i.e. law must be modified
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Protection requirements
Idea/expression dichotomy
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Other countries
• Germany - Copyright Act
• Art 1: Authors of literary, scientific and
artistic works shall enjoy protection for
their works in accordance with this Law.
• Art 2(2): Personal intellectual creations
alone shall constitute works within the
meaning of this Act.
(c) E. Derclaye 2000-2011
Other countries
• France - Intellectual Property Code
• Art L. 112-1: The provisions of this Code protect
the rights of authors in all works of the mind,
whatever may be the type, form of expression,
quality or purpose of the work.
• Art. L. 112-2: Notably, the following are
considered works of the mind within the
meaning of this Code...
• USA, Berne convention
(c) E. Derclaye 2000-2011
Two important rules
• Independent creation – copy-right
• Difference between medium (tangible,
object) and creation (intangible, creation)
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Univ. London Press v Univ. Tutorial Press
Ladbroke v William Hill
NLA v Meltwater
(c) E. Derclaye 2000-2011
Fixation – s. 3(2) and 3(3)
• (2) Copyright does not subsist in a literary,
dramatic or musical work unless and until it is
recorded, in writing or otherwise; and references
in this Part to the time at which such a work is
made are to the time at which it is so recorded.
• (3) It is immaterial for the purposes of subsection
(2) whether the work is recorded by or with the
permission of the author; and where it is not
recorded by the author, nothing in that
subsection affects the question whether
copyright subsists in the record as distinct from
the work recorded.
(c) E. Derclaye 2000-2011
S 153 ff.
By author
By place of first publication
Connection must exist at material time
If published => first publication (always
publication for T.A.P.E.)
• If unpublished when made (sr, f, b)
• Meaning of publication s 175(1)(a) and (4)
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Designers Guild v Russell Williams
• “Every element in the expression of an
artistic work (…) is the expression of an
idea on the part of the author. It represents
her choice to paint stripes rather than
polka dots, flowers rather than tadpoles,
use one colour and brush technique rather
than another, and so on.”
(c) E. Derclaye 2000-2011
Designers Guild v Russell Williams
• A copyright work may express certain ideas
which are not protected because they have no
connection with the literary, dramatic, musical or
artistic nature of the work.”
• 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.”
(c) E. Derclaye 2000-2011
Designers Guild v Russell Williams
• “Generally speaking, in cases of artistic
copyright, the more abstract and simple
the copied idea, the less likely it is to
constitute a substantial part. Originality, in
the sense of the contribution of the
author's skill and labour, tends to lie in the
detail with which the basic idea is
presented. Copyright law protects foxes
better than hedgehogs.”
(c) E. Derclaye 2000-2011
Section 3: Literary, dramatic and
musical works
• S. 3.-(1) In this Part• "literary work" means any work, other than a dramatic or
musical work, which is written, spoken or sung, and
accordingly includes• (a) a table or compilation other than a database,
• (b) a computer program; and
• (c) preparatory design material for a computer program;
• (d) a database
• "dramatic work" includes a work of dance or mime; and
"musical work" means a work consisting of music,
exclusive of any words or action intended to be sung,
spoken or performed with the music.
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Sawkins v Hyperion
• “In the absence of a special statutory definition of
music, ordinary usage assists: as indicated in the
dictionaries, the essence of music is combining
sounds for listening to. Music is not the same as
mere noise. The sound of music is intended to
produce effects of some kind on the listener's
emotions and intellect. The sounds may be
produced by an organised performance on
instruments played from a musical score, though
that is not essential for the existence of the music or
of copyright in it. (…)
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Sawkins v Hyperion
• (…) Music must be distinguished from the fact and
form of its fixation as a record of a musical
composition. (…) There is no reason for regarding
the actual notes of music as the only matter covered
by musical copyright, any more than, in the case of
a dramatic work, only the words to be spoken by the
actors are covered by dramatic copyright. Added
stage directions may affect the performance of the
play on the stage or on the screen and have an
impact on the performance seen by the audience. ”
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Section 4: Artistic works
• 4.-(1) In this Part "artistic work" means• (a) a graphic work, photograph, sculpture
or collage, irrespective of artistic quality,
• (b) a work of architecture being a building
or a model for a building, or
• (c) a work of artistic craftsmanship.
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Section 4: Artistic works
• (2) In this Part• "building" includes any fixed structure, and a part of a
building or fixed structure;
• "graphic work" includes• (a) any painting, drawing, diagram, map, chart or plan, and
• (b) any engraving, etching, lithograph, woodcut or similar
• "photograph" means a recording of light or other radiation
on any medium on which an image is produced or from
which an image may by any means be produced, and
which is not part of a film;
• "sculpture" includes a cast or model made for purposes of
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Section 5A: Sound recordings
• 5A.(1) In this Part "sound recording" means• (a) a recording of sounds, from which the
sounds may be reproduced, or
• (b) a recording of the whole or any part of a
literary, dramatic or musical work, from which
sounds reproducing the work or part may be
produced, regardless of the medium on which
the recording is made or the method by which
the sounds are reproduced or produced.
• (2) Copyright does not subsist in a sound
recording which is, or to the extent that it is, a
copy taken from a previous sound recording.
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Section 5B: Films
• 5B(1) In this Part "film" means a recording
on any medium from which a moving
image may by any means be produced.
• (2) The sound track accompanying a film
shall be treated as part of the film for the
purposes of this Part.
• (4) Copyright does not subsist in a film
which is, or to the extent that it is, a copy
taken from a previous film.
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Section 6: Broadcasts
• 6.(1) In this Part a "broadcast" means an
electronic transmission of visual images, sounds
or other information which • (a) is transmitted for simultaneous reception by
members of the public and is capable of being
lawfully received by them, or
• (b) is transmitted at a time determined solely by
the person making the transmission for
presentation to members of the public,
• and which is not excepted by subsection (1A);
and references to broadcasting shall be
construed accordingly.
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Section 6: Broadcasts
• (1A) Excepted from the definition of "broadcast" is any
internet transmission unless it is • (a) a transmission taking place simultaneously on the
internet and by other means,
• (b) a concurrent transmission of a live event, or
• (c) a transmission of recorded moving images or sounds
forming part of a programme service offered by the
person responsible for making the transmission, being a
service in which programmes are transmitted at
scheduled times determined by that person.
• […]
(c) E. Derclaye 2000-2011
Section 8: Published editions
• 8.(1) In this Part "published edition", in the
context of copyright in the typographical
arrangement of a published edition, means a
published edition of the whole or any part of one
or more literary, dramatic or musical works.
• (2) Copyright does not subsist in the
typographical arrangement of a published
edition if, or to the extent that, it reproduces the
typographical arrangement of a previous edition.
(c) E. Derclaye 2000-2011