Lecture 2 Intellectual property law:
Copyright 2
Copyright infringement and defences
First question in terms of infringement of copyright is have I infringed your work the expression itself
or have I just used the same idea?
Your work the book you’ve written is the fixated expression which you own.
However copyright does not cover the ideas behind it you cannot own ideas in copyright
Concept – you cannot copyright an idea but only an expression of that Idea
This is called the idea-expression dichotomy
Dichotomy just means a split a difference between the idea of something e.g an idea of a book and
it’s expression
The rationale for IP it’s always about finding the appropriate balance between public and private
interests. The public and private interests that sit behind the idea of expression dichotomy are that
the idea is something that should belong to everyone so it stays in the public domain you can’t own
that such that anybody can take that idea and write a book on it therefore the benefit to society the
public interest is served by saying well you have more and more detectives novels of different types
for example so that’s good for society and is fine.
The first key thing based around creation of IP in copyright is the idea of expression. If someone has
in a number of different ways copied the text of your book then there has been an infringement of a
right.
Plot of a novel? The broad distinction is between at one extreme the idea where there is like 1 or 2%
of detail and the expression at the other end where there is 100% of detail. The issue is where is the
dividing line between detail that is protected and idea that is not.
- Case: Corelli v Gray (1913) the plot of a novel is it protected?
- This is about balancing the public interest v private reward what should you own and what
shouldn’t you to balance the interest
Origins of the idea-expression dichotomy
- In 2006 Dan Brown was sued regarding novel the Divinchy code by some other people who
had written a non fictional book saying that he had plagiarised their work and they want
compensation money for it. That argument came down to we didn’t take the text of your
work you can’t own the facts that are out there just your words about them we took the
basic idea that you put together and used that in our novel. So we didn’t copy your work we
just reused the same idea.
- So what’s the basis in law if it’s gonna act as a defence
- In the UK it’s more of a pervasive concept that’s just used and acknowledged. So it isn’t in
the copyright and patents act 1988. Not in statute.
- Case law based : Kenrick v Lawrence (1890) this case was to do with how would you produce
a poster to tell people who can’t read how to vote in a voting booth. Mr Kenrick produced a
poster of a hand putting a cross in a box because this demonstrates how to vote.
Considering that represents what you actually do in a voting booth in a picture if you have to
do a poster how many ways of representing that idea are there? So 1 so the idea and
expression merge which means anybody who does their own poster is bound to to some
extent copy yours because your both showing the same thing.
, - There can be cases where managing the distinction between idea and expression become
problematical
- Key fundamental concept idea-expression dichotomy
- Recognised in UK case law
- Other cases Jones v London, Borough of Tower Hamlets (2000)
Rights that can be infringed
“Restricted acts”
S.16(1) only the owner has the right to do these:
- If you have a piece of property that you can own in IP then you have the rights over it
- What rights do you have over it?
- If you own the copyright in your novel you have the right to
- Copy the work I.e it gives you as the owner of the copyright the exclusive rights to do certain
acts
- Anyone else who does them is infringing your rights
- Look at slide in camera roll
- You have the right to sell copies so reproduction right publishing basically so you make
money out of it
- To issue the work to distribute it
- To rent or lend to the public
- Perform, show, play work in public: public performance right so dramatic works so
pantomime of Peter Pan for example so if you wanted to put on your own student version of
Peter Pan then you’d have to get permission from the copyright holders and pay them a fee
for you to perform, show or play the work
- Communicate to the public: communication right
- Adapt work ( or do above from an adaptation ) :adaptation right. So an adaptation might
take a book you’ve written and turn it into a film script or it might involve translating your
book from English to French etc
Types of infringement
Primary and secondary
- Primary infringement involves doing a restricted act without the owner’s permission. If I
have written a piece of music and say it’s okay for you to perform this then you are
performing it which is a right I have but it’s okay because I’ve given you permission. E.g
copying a protected work s.17-21
- One of the first offences is to say I had permission to do that so it doesn’t count as
infringement
- So you take a protected work you might take a copy of a DVD from a DVD disc and transcribe
it into a file on your PC that would be copying so a primary infringement because your taking
a basic piece of copyrighted protected work the DVD and copying it
- Primary leads onto secondary infringement. Secondary infringement is further dealing with
an infringing copy without permission so primary ripping of the copy of the DVD secondary
putting that DVD copy that file around the internet for other people to access. See slide in
camera roll
- You have to start of with a protected work, copy it, then do something else with it for
secondary
- So with primary you obviously know you’ve got that DVD and copied it
- With secondary you might receive a file of that film and not know where it comes from and
not know if it’s a bootleg illegal copy or not
Copyright 2
Copyright infringement and defences
First question in terms of infringement of copyright is have I infringed your work the expression itself
or have I just used the same idea?
Your work the book you’ve written is the fixated expression which you own.
However copyright does not cover the ideas behind it you cannot own ideas in copyright
Concept – you cannot copyright an idea but only an expression of that Idea
This is called the idea-expression dichotomy
Dichotomy just means a split a difference between the idea of something e.g an idea of a book and
it’s expression
The rationale for IP it’s always about finding the appropriate balance between public and private
interests. The public and private interests that sit behind the idea of expression dichotomy are that
the idea is something that should belong to everyone so it stays in the public domain you can’t own
that such that anybody can take that idea and write a book on it therefore the benefit to society the
public interest is served by saying well you have more and more detectives novels of different types
for example so that’s good for society and is fine.
The first key thing based around creation of IP in copyright is the idea of expression. If someone has
in a number of different ways copied the text of your book then there has been an infringement of a
right.
Plot of a novel? The broad distinction is between at one extreme the idea where there is like 1 or 2%
of detail and the expression at the other end where there is 100% of detail. The issue is where is the
dividing line between detail that is protected and idea that is not.
- Case: Corelli v Gray (1913) the plot of a novel is it protected?
- This is about balancing the public interest v private reward what should you own and what
shouldn’t you to balance the interest
Origins of the idea-expression dichotomy
- In 2006 Dan Brown was sued regarding novel the Divinchy code by some other people who
had written a non fictional book saying that he had plagiarised their work and they want
compensation money for it. That argument came down to we didn’t take the text of your
work you can’t own the facts that are out there just your words about them we took the
basic idea that you put together and used that in our novel. So we didn’t copy your work we
just reused the same idea.
- So what’s the basis in law if it’s gonna act as a defence
- In the UK it’s more of a pervasive concept that’s just used and acknowledged. So it isn’t in
the copyright and patents act 1988. Not in statute.
- Case law based : Kenrick v Lawrence (1890) this case was to do with how would you produce
a poster to tell people who can’t read how to vote in a voting booth. Mr Kenrick produced a
poster of a hand putting a cross in a box because this demonstrates how to vote.
Considering that represents what you actually do in a voting booth in a picture if you have to
do a poster how many ways of representing that idea are there? So 1 so the idea and
expression merge which means anybody who does their own poster is bound to to some
extent copy yours because your both showing the same thing.
, - There can be cases where managing the distinction between idea and expression become
problematical
- Key fundamental concept idea-expression dichotomy
- Recognised in UK case law
- Other cases Jones v London, Borough of Tower Hamlets (2000)
Rights that can be infringed
“Restricted acts”
S.16(1) only the owner has the right to do these:
- If you have a piece of property that you can own in IP then you have the rights over it
- What rights do you have over it?
- If you own the copyright in your novel you have the right to
- Copy the work I.e it gives you as the owner of the copyright the exclusive rights to do certain
acts
- Anyone else who does them is infringing your rights
- Look at slide in camera roll
- You have the right to sell copies so reproduction right publishing basically so you make
money out of it
- To issue the work to distribute it
- To rent or lend to the public
- Perform, show, play work in public: public performance right so dramatic works so
pantomime of Peter Pan for example so if you wanted to put on your own student version of
Peter Pan then you’d have to get permission from the copyright holders and pay them a fee
for you to perform, show or play the work
- Communicate to the public: communication right
- Adapt work ( or do above from an adaptation ) :adaptation right. So an adaptation might
take a book you’ve written and turn it into a film script or it might involve translating your
book from English to French etc
Types of infringement
Primary and secondary
- Primary infringement involves doing a restricted act without the owner’s permission. If I
have written a piece of music and say it’s okay for you to perform this then you are
performing it which is a right I have but it’s okay because I’ve given you permission. E.g
copying a protected work s.17-21
- One of the first offences is to say I had permission to do that so it doesn’t count as
infringement
- So you take a protected work you might take a copy of a DVD from a DVD disc and transcribe
it into a file on your PC that would be copying so a primary infringement because your taking
a basic piece of copyrighted protected work the DVD and copying it
- Primary leads onto secondary infringement. Secondary infringement is further dealing with
an infringing copy without permission so primary ripping of the copy of the DVD secondary
putting that DVD copy that file around the internet for other people to access. See slide in
camera roll
- You have to start of with a protected work, copy it, then do something else with it for
secondary
- So with primary you obviously know you’ve got that DVD and copied it
- With secondary you might receive a file of that film and not know where it comes from and
not know if it’s a bootleg illegal copy or not
