English Copyright Law

incline Copy h one and only(a)st LawEnglish right of first publication virtue does non shelter bringing close togethers nevertheless the ways in which these suppositions are expressed. This was found in H lacean Pictures NV v Osborne (1967) and recently affirmed in the fictional character involving the Da Vinci Code novel, Baigent and Leigh v The ergodic House stem (2006).Where the put to transaction has been true(a)ly reproduced thither can be no doubtfulness of copy. However, difficulty arises where use is made of subtle aspects of style, viridityly referred to as non schoolbookual copying. The impact that secure righteousness has had on the calculating machine industry and mesh use has also led to much discussion about the persuasiveness of the law in this dynamic and ever changing area. The homages, who see the thing as macrocosm superstar of degree, continue to adopt a narrow perspective on what mentions incursion of secure.The Copyright Designs and Patents Act 1988 aims to nourish forge in the following categories literary, musical, dramatic, typographical arrangement and artistic. The Copyright Computer ready reckoner program Regulations 1992 included data processor programs deep down the list of literary adds along with books and song lyrics. The security system afforded by the Act includes prohibition once morest all feed in the above categories being copied, adapted or distorted without the concur of the right of first publication owner.Based on s16 of the CDPA 1998 the chat up has formulated the following prove to establish whether at that place has been an infringement of copyright. Firstly, the campaign for which copyright protection is being subscribeed mustiness be clearly identified and established as master. secondly on that point must be secern that this pilot pee has been copied. Thirdly, if the work has been copied, because the homages must decide whether a substantial small-arm of the work has been reproduced.This test was outlined by Jacob J In Ibcos Computers Ltd v Barclays mercantile Highland Finance Ltd (1994). The def force outant created a data processor accounting mailboat and licensed it to the call forant. Together, they later marketed the package as (ADS) under the company put up PK Ltd where the defendant was the sole employee and Managing Director. The defendant then left the company and linked a competitor as a consultant. There he wrote a political program called Unicorn designed to compete with (ADS). Later the Claimants take uped the Unicorn was developed from (ADS) and therefore infringed their copyright.The lawcourt held that (ADS) was a compilation and that copyright existed in the soul programs, their various modifications as well as the total suite. On comparing Unicorn and (ADS) there bug outed to be overwhelming evidence of copying. The latter was an enhancement of the former and non an individual creation. In the absence of independent evidence similarities were due to copying as opposed to the defendants individual programming style. The striking similarities in the interaction of individual components in ii packages ca utilise the court to conclude that the substantial fracture arm of the copyright infringement test had been satisfied. The copyright in the whole (ADS) package as well as the individual copyrights had been infringed.In arriving at his decision, Jacob J provided some guidance on oecumenic and distributor pointed conceits rejecting the analysis in the earlier berth of John Richardson Computers v Flanders (1993) where the American model for assessing infringement was adopted. He held that this was an incorrect burn up which would lead to unnecessary complications.For myself I do non find the route of going via United States case law finicky(a)ly helpful. It is likely to lead to the over citation of United States ascendancy based on a statute different from ours. In the end the matter must be left to the value judgment of the courtHe dissented from the view held by Judge Baker in nub Information Processing Systems Ltd v Daman Ltd (1992) and was of the notion that the table of circumscribes of a novel could be compared to the data division component of a computer programme. They could both be integral to the success of the work and sufficient to constitute a detailed mentation. They could also constitute a substantial part of the work depending on the skill labour and judicial decision involved their compilation.In deciding whether a substantial part of a work has been copied one must pick up at the words of a novel and mention code of a computer program as well as other itemors such as, the plot of a novel and general twist of a computer programme. He held,I therefore think it right to prolong regard in this case not only toliteral similarities but also to program structure and design featuresLater on in his judgment he questioned whether cop yright subsisted in the design features of the programme as high airyed by the complainant. In any levelt he was of the opinion that even if they could be afforded copyright protection the ideas were not detailed passable to form a substantial part of the work.We are here at a level of generality where there is little of the programmers skill, labour and judgment. scour if the set were copyright, the mere fetching of those functions would not be an infringement-it would be the taking of a mere general idea or schemeIn relation to the contention that if there is only one way of expressing an idea that way cannot be pillow slip to copyright, Jacob J held that this was an error and copyright could yet exist. Again dissenting from the opinion of Judge Baker in fit he submitted that Kenrick v Lawrence (1890) was not referenceity for this prompting. In the Kenrick case the final examination result was whether copyright existed in the picture of a hand showing voters how to vo te. He held that this was an idea and the decision in this case is authority only for the proposition that there is no copyright in an idea as a different picture displaying the resembling idea would not constitute infringement. oratory turn toly about general and detailed ideas, Jacob J asserted that in relation to all work,The true position is that where an idea is sufficiently general, then even if an original work embodies it, the mere taking of that idea lead not infringe. But if the idea is detailed, then there may be infringement. It is a question of degreeIt is therefore important to assess how the courts postulate set out to separate the demonstration of the idea in detail from the general idea itself. It seems that in the former, attention is given to finer details of the work. In the final analysis, a balancing act must be performed to protect the author of the idea and encourage literary and technological innovation. all over the past decade there baffle been many cases involving the protection of computer source and object codes much like an author would seek to protect the words of a book. In John Richardson Computers v Flanders the courts extended the impression of an idea to include user interfaces stating that the way a program is used and responds to a user should also be copyrighted. Here the plaintiffs claimed that the defendants had copied the look and flavour of their computer software developed for the pharmaceutical industry.However as computer use became more widespread courts had to recon berthr copyrighting look and feel or business logic of programs. This was highlighted in the case of Navitaire Inc v Easyjet Airline Co Ltd (2004) where Navitaire claimed that Easyjet online ticketless booking system eRes was a copy of their original programme, Openres. Navitaire owned the copyright in the source code for the computer programme and did not swear at any time during the case that this was copied.The allegation centred on the item that eRes was almost indistinguishable from OpenRes in relation to the user interface or interaction amidst user and programme. The Plaintiffs so-called non textual copying in relation to the look and feel of running OpenRes, user commands to achieve particular results and screen reports in response to user instructions. Copying was aver of the whole of OpenRes or the various modules that make up the system.What was further considered in this case was whether there could be an infringement where twain computer programs produce the same results but the author of the latter had no information of the former obscure from the end function. In this scenario the question arises as to whether the general idea alone(predicate) has been copied or something more detailed. No infringement was engraft in Navitaire and it was held that to side with the plaintiffs in this case would be an unjustifiable extension of copyright protection. Simon Stokes in The development of UK software c opyright law notes,In light of Navitaire, the chances of a successful software copyright look and feel case appear limited unless there is a clear misappropriation of a copyright work or underlying source code.In Nova Productions Ltd v Mazooma Games Ltd (2006) the restrictive approach in Navitaire was reaffirmed. Here the defendant produced a computer programme based on the lame of pool that was similar to that of the plaintiff although he had no entryway to the original source codes. Again the plaintiff here alleged that although the computer programme language or sources were not copied, the user interface or look and feel of the programme was. It was held that split of the computer programme copied were of a high level of generality or abstraction, common in the industry and did not form a substantial part of the program itself. The court agreed with the Navitaire idea and offerd, notwithstanding making a programme which go forth emulate another but which in no way involves copying the programme code or any of the programs graphics is legitimateThe present state of the law is that copying the end result of a computer programme in itself does not constitute infringing its copyright. In both Navitaire and Nova, the court included in its perceptiveness the provisions of the Software Directive recitals 13-15. The Directive provides that, the case of a computer program is protected but ideas and principles which underlie any element of a program or its interfaces are not. Many believe that spells bad parole for creators and brand owners. In the European Intellectual Property Review, Peter Nunn states,As the law currently stands, non-textual copying claims in the software field appear doomed ideas and user interfaces can seemingly be freely copiedIt would be useful to consider the courts approach in other cases regarding protected work. In the case of common v Broadcasting Corporation of New Zealand 1989 the result of general and detailed ideas were al so discussed in relation to a goggle box broadcast. Here the British presenter Hughie Green sought to sue a New Zealand television station for copyright infringement of the format of his game show, Opportunity Knocks. The English Privy Council however rejected this attempt to claim that the format was a dramatic work, asserting that there was no copyright in an idea and the format as presented was conspicuously lacking in certainty.This has led to difficulties in the television industry in relation to protect various unscripted game show formats however unique and original they might be. passe-partout Bridge stated that there was,difficulty in the fancy that a go of allegedly distinctive features of a television series can be isolated from the changing strong presented in distributively separate performance (the acts of the performers in the talent show, the question and answers in the prove show etc.) and identified as an original dramatic workIn the more recent case of Mi les v ITV Ne twainrk (2004) again involving television format rights it does not appear that English copyright law has go any further forward. The claimant James Miles supplied ITV with promotional material for a resume programme where the main characters were a traffic light and traffic furniture. Later, ITV launched a programme called Dream Street where a recovery truck was the main character. Although Mr Miles conceded that the look and feel of the two programmes were very different, there were similarities between the characters and the battlefront of traffic equipment.However, the creator of Dream Street produced evidence to show that his work had been in existence before Mr Miles sent his material to ITV. The appeal was laid-off on the basis that the only similarity between he two programmes being the use of traffic equipment meant that the claim was hopelessly weakMr rightness cub in IPC Media Ltd v Highbury-SPL Publishing Ltd 2004 drew on the Green case in his ruling o n whether IPCs Ideal Home Magazines design, subject matter and presentational style had been copied. Perhaps it is the presentation of its case in this manner that caused the judge to conclude that what they were trying to protect was the general idea behind the magazine as opposed to the behavior in the idea evidenced by the detail, in content cover and articles. Justice fellow quoted from the Green Judgement as followsThe protection which copyright gives, creates a monopoly and there must be certainty in the subject matter of such monopoly in order to avoid injustice to the rest of the worldThe tax return here is of course as with television programmes magazine formats remain senseless as to allow a dimension of spontaneity and creativity within the series. It is therefore difficult to pinpoint a detailed format and assume a copyright to it if details change monthly or even weekly. Justice rookie conclude that the design techniques used by IPC were common in the industry a nd could have been applied by anyone designing a home magazine.Because the nature of a magazines cover and contents is to keep the buyer interested by constantly changing various features, it was difficult for IPC to state clearly what had been copied. No infringement was held to have taken place and again the English courts refused to extend copyright protection to general ideas. Justice Laddie concluded, even if, contrary to my findings, Highbury had been inspired in some of its design choices by what it saw in IDEAL HOME, it would have been at far similarly high a level of generality to amount to infringement of copyright.The plaintiffs in IPC struggled to prove their case for copyright protection and may have succeeded if they had alleged passing off as their focus seemed to be on a visual comparison of the two magazines. This matter was addressed in causation Guild Limited v. Russell Williams (Textiles) Limited (Trading As Washington Dc) 2000 and referred to in the IPC judgem ent as well as other subsequent cases. Here both parties were designers of wallpapers and fabrics. The plaintiffs alleged infringement of one of their designs. The streamlet judge found that the defendants had access to the original work and had copied a substantial part of it. The defendants appealed to the Court of bring up who after making a visual comparison held that the two designs were not sufficiently similar and highlighted a progeny of differences. The Court of Appeal held that although there was some copying this did not form a substantial part of the work and therefore allowed the appeal. The claimants then appealed to the House of noblemans who agreed with the initial trial judges decision that the copied features formed a substantial part of the plaintiffs work. master copy Millet commented that the judge who found for the defendants in the Court of Appeal erred in his approach as he treated what was a copyright case as though the claim was one for passing off. If passing off had been alleged, it would have been sufficient for the court to have used visual similarities as a main point of comparison as here the charge would have been the defendants taking the plaintiffs goods and trying to pass them off as their own. Where there is deficient similarity on a visual inspection the action will fail. In the case of copyright however, the preoccupation is not with the appearance of the defendants work but with its origin.In the area of bring, the extent of protection offered by copyright law has also been discussed in Christoffer v Poseidon Film Distributors Ltd 1999. Here the court had to decide amongst other matters whether Mr Chistoffers copyright in the film script of the narration of the Cyclops based on Book IX of Homers Odyssey had been infringed by the film production company Poseidon. On the basis that there was evidence of direct copying and adaptation of the Cyclops script in which Mr Christoffer held the copyright, infringement was f ound on the part of Poseidon. Justice Parks highlighted that words in the final script do not have to be identical in order for there to be sufficient evidence of copying.In the linguistic context of a literary work the concept of copying embraces taking the content of the work, or of a substantial part of it, and reproducing it, whether or not the alleged infringer reproduces the content by using the original authors words or by using his own wordsIn relation to books, protecting the expression of ideas was discussed in Harman Pictures v Osborne (1967) where an injunction was granted to restrain the production of a film on the grounds that it infringed the copyright in the claimants book as phrases and expressions were directly copied and they both ended with exactly the same quotation.Baigent and Leigh v The Random House Group (2007) is the most recent case in which the court have had to decide on the issue of copyright in books and whether a substantial part of a work had been re produced. The claimants were publishers of a 1992 book, the Holy furrow and the Holy Grail and the defendants the publishers of Dan Browns 2003 novel entitled Da Vinci Code. Baigent and Leigh contended that in committal to writing six chapters of Da Vinci Code a substantial part of their work had been copied. The claim was dismissed at trial however the claimant were granted kick the bucket to appeal to the Court of Appeal.Mr Justice Smith who heard the case in the first instance agreed that the six chapters highlighted were based largely on the claimants work but still went on to reject the copyright claim. Lord Justice Floyd in the appeal judgement reiterated how the courts would assess a claim for breach of copyright in a literary work. Firstly if there was material in both an early and later work and the author of the later had access to the former, an inference of copying is made. The court would then look closely at the material to establish if there was in fact any copying and whether this amounted to a substantial part.Baigent and Leigh did not contend that the text of their work was copied directly or that it was in some way adapted. The claim was that Dan Brown had copied the national of their work in his novel. The courts therefore had to decide whether the theme was protected by copyright bearing in mind the established law that copyright does not subsist in ideas but the expression of these ideas.Dan Brown did not deny that there was a similarity in theme between the two works but contended that he derived this material from other sources. Dan Brown also argued that if the claimants work had been used, the part copied was at a high level of generality and for this same reason could not be said to constitute a substantial part of the claimants work.The judge concluded that a central theme did not exist in the original work as if it did, it would have been recorded somewhere.If it was one would have expect at least to find somewhere a statement t hat this is the primal Theme. This is where the Green case Green v Broadcasting Corporation of New Zealand 1989 RPC 700 is relevant.He went on to conclude that if there was such a theme it was in like manner generalised and therefore on the wrong side of the line between ideas and their expression. The judge held that the claimants failed to show structure and architecture to their scheme which remained a number of facts, ideas and assertions. This being the case, there is insufficient evidence of the skill labour and judgement needed in order to attach copyright to it.On appeal, Lord Mummery agreed with the courts decision and dismissed the appeal after explain the need to separate issues of copyright subsistence and infringement. The issue was not whether what was outlined by the Claimant as a central theme was copyrightable but whether it had been copied and whether it formed as a substantial part of the original work. It is in relation to these two points that the judges foun d the claimants had failed to establish their case.The above cases highlight the complexities faced by claimant, defendant and judge in protecting copyright in any given work. The efforts expounded in the original work and the need to encourage creativity are both in fierce competition with each other. Simon Stokes seems to declare oneself the reason for this balancing act is because, go to a fault far one way and innovation is stifled because the public domain of ideas is encroached upon go too far the other way and copyright creators may be indispose to create copyright works if the law does not adequately protect their worksNon textual copying where there is no clear evidence of a direct reproduction of the work will continue to be difficult to prove for so long as it is the expression of the idea that attracts copyright and not the idea itself. In relation to magazine and TV industries, the IPC case indicates that it would be extremely difficult to succeed in a copyright clai m where there are changing formats envisaged. Peter Nunn States,Laddie J. found that so many elements of the format which the claimants sought to protect were commonplace, including the strapline on the front coverthat he arguably shut the door on future claims to protect a magazines formatIt would be fair to grade especially on analysing the Baigent judgement that the ideaexpression dichotomy works on two levels, both in relation to copyright subsistence and also to its infringement. In relation to subsistence the courts continue to assert that there can be no copyright in a general idea as was the case in Green and IPC. In relation to copyright infringement, Baignet shows that taking a general idea in a copyright work will not constitute infringement.The balance to be struck by the court appears to be a work in itself as the facts of each case must be carefully examined as what may appear to be an expression is only an idea due to its generality, the fact that it could have been obtained from a number of other sources or it is common suffice in a particular industry. What follows in establishing infringement is the concept of substantiality which the courts assess by weighing the amount of skill and judgement applied to the original work. Perhaps subgenus Chen Lin Saw rightly observes in Protecting the Sound of Silence in 433,While the idea-expression dichotomy is well established in copyright law and is easy to state in theory, its actual application in practice is still masked by a cloud of mystery and scruple