Copyright legislation affords protection for a number of different classes of work. The protection varies to some extent, with reference to the type of work concerned.
Classic copyright legislation provides that copyright exists in an original literary dramatic musical or artistic work. The underlying concept or idea need not be original. The expression of the idea must originate from the author and not be copied from another source.
Ideas and general concepts in themselves will not usually suffice as copyright works. They are usually insufficiently expressed in a tangible way. Persons will not be owners or joint owners having suggested being the source of a very general plot or concept in a literary dramatic or musical work.
The classification is somewhat inconsistent with European Union legislation, which is broader in scope in some respects/ and less based on classification. EU directives seek to protect works that are the author’s intellectual creation even if they do not fit into existing categories.
The EU law approach contemplates protection of an entire work where it has the requisite originality notwithstanding that it is comprised of elements in different classifications or cannot as a whole be placed in any particular category.
UK legislation protects against the copying of a substantial part of a work. The EU legislation and case law emphasises originality. Under this latter approach, relatively small snippets such as newspaper headlines may be capable of protection independently or as part of the article concerned. The EU approach has tended to broaden the scope of protection in this context
This UK test on its face is somewhat inconsistent with the EU approach, which emphasises that copyright author’s intellectual creation. It is not clear if and to what extent, the EU concept of copyright weakens protection for unskilled or mechanical expression traditionally covered by UK copyright.
In the Infopaq case, an 11-word expression was held sufficient to enjoy copyright protection. Infopaq was a decision of the European Court of Justice concerning the interpretation of Directive 2001/29/EC on the harmonisation of certain aspects of copyright.
The most likely position is that the existing degree of protection as expressed in the interpretation of older copyright legislation continues to apply. The EU tests focus on creativity and originality but there is no reason in principle why this cannot be squared with the earlier more mechanical approach to the scope of copyright protection.
A literary work is defined as any work other than a dramatic or musical work, which is written spoken or sung. It includes books, articles and other writing. It also encompasses computer programs, preparatory designs for computer programs and some compilations.
A literary work means little more than that it is capable of reproduction in a written form. The test in no way considers the literary or artistic merit. It is the expression of the work in written form that is protected. Therefore, mundane mechanically produced documents such as lists catalogues et cetera will readily be protected by literary copyright.
The written material need not be long. However, names and slogans are usually insufficient for this purpose. They may be protected as trade names or otherwise. Some advertising slogans are accepted as being literary works in this sense, while others are not. The cases have fallen on either side of the boundary.
The courts have not afforded protection to made up words as literary works. Once again, they are almost invariably too insubstantial. Equally the titles of songs and books are usually insufficiently substantial to enjoy protection as literary works in this context.
In principle, a photograph may be capable of sufficient originality as being the authors creation for the purpose of literary copyright protection. Where the image is a product of skill and labour of the photographer copyright is likely to apply. Photographs enjoy separate protection; see below.
A dramatic work is defined as including a work of dance or mime. It can include films and plays.The words of a dramatic work is likely to be protected by literary copyright.
The dramatic work will usually have some form of story or plot development. It should not be a static or fixed thing. Accordingly, a photograph is unlikely to be a dramatic work. It has been held that a video game was not a dramatic work in this context Sporting events such as football games are not protected as dramatic works
Small elements or incidental features such as a set or background of a work may not be protected as such, as they are not a dramatic work. The may be capable of other copyright protection.
Adaptations or transcriptions may enjoy copyright if they have the requisite input of labour and skills. They must not however be such that they infringe other copyright.
Musical works are protected by copyright. They are works consisting of music exclusive of any words or actions intended to be sung, spoken or performed with music.
The words are not the subject of music copyright but will usually have literary copyright. The performance of music may have dramatic copyright.
Music must be identifiable as such, at least in some sense. A small number of notes may enjoy copyright protection..Random noise or even notes, are not sufficient. As in other settings, the general concept alone is insufficient. Ownership of copyright requires a significant input and contribution to the output.
An artistic work includes
- a graphic work
- photographs or collage irrespective of artistic quality
- a work of architecture being a building or a model for building
- a work of artistic craftsmanship
As with other works, artistic quality or merit is not significant consideration, other than it the last-mentioned case. It is said that a simple drawing is capable of protection.
Artistic work is protected irrespective of artistic quality. It may be functional or utilitarian. However, craftsmanship requires an artistic element
An artistic work may include a painting, drawing, diagram, map charter plan, a photograph, sculpture (which includes a cast model made for the purposes of sculpture) collage irrespective of artistic quality. A sculpture should be three-dimensional with intended visual appeal. It need not have artistic merit in itself.
Artistic craftsmanship may include jewellery and other crafted products. It will usually be such that is valued for its appearance. The author will be seeking to create a work of art. Genuine artistic craftsmanship is required.
There is separate protection for industrial designs which is for a significantly shorter duration. Formerly, prior to this separate protection, there was a more expansive interpretation of artistic work. Some commercial products in terms of their shape and structure were treated in a manner analogous to a sculpture. The modern approach is to limit artistic copyright to something closer to its common-sense meaning.
The concept of artistic craftsmanship may require subjective review of the context and intention of the maker. Some minimum artistic element is required in the make-up so that craftsmanship is artistic in this sense.
Derivative and Secondary Works
This are a number of forms of secondary and entrepreneurial copyrights which may exist alone or in conjunction with the classic forms of copyright.. Derivative works are said to protect the entrepreneur rather than the author.
Original sound recordings are protected by copyright. Sound recordings must be a recording of sounds from which sounds may be produced. They may be fixed in any technologically available medium.
The EU has introduced the Directive on Copyright in respect of films. Film rights relate to a recording on any medium from which a moving image may be produced. A soundtrack may be part of the film.
A film is a broad concept that is technologically neutral. The film soundtrack may be part of the film for the purposes of protection. It may also enjoy protection as a sound recording. The film may also be a dramatic work separate from the script. It may be protected by literary copyright
Broadcasts are protected in common with other electronic transmission of visual images or sounds or information by electronic means. Broadcast means an electronic transmission of visual images, sounds or other information which is transmitted either for simultaneous reception by members of the public and capable of being lawfully received by them or transmitted at a time determined solely by the person making the transmission for presentation to members of the public. Most Internet data are not covered as the recipient chooses the time and place of receipt.
Copyright subsists in the typographical arrangements of previous editions of literary, dramatic or musical work. The typographical arrangement in terms of layout may attract separate copyright. There must be a new typographical arrangement.
A person who publishes a previously un-published work after the expiration of copyright may enjoy a publication equivalent to copyright. This is considerably shorter than copyright.
The EU database directive provides for protection of databases as defined. Many such databases may be protected to some extent by literary copyright. Databases have their own special category of protection by analogy with literary works.
The database right is a special stand-alone. A 15 years’ right is granted to the maker of the database who makes a substantial investment.
The database is a collection of independent works data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means. Literary copyright may also be available but is effectively limited to databases which by reason of the selection of the contents constitute the author’s own intellectual creation.
The stand-alone database right is available where the maker has quantitatively or qualitatively made a substantial investment in either obtaining verifying or presenting the contents of the database.
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