Lecture 2. Subject matter of copyright
Introduction
This section concerns the forms of “work” entitled to protection under copyright law. Under Copyright Designs & Patents Act
1988, s 1(1)
- CDPA 1988, s1(1) sets out the forms of “work” entitled to protection under copyright law in the UK:
“Copyright is a property right which subsists... in the following descriptions of work:
(a) original literary, dramatic, musical or artistic works;
(b) sound recordings, film or broadcasts, and
(c) the typographical arrangement of published editions.”
(CDPA 1988, s 1(1))
- eight categories are listed. Each is further defined in subsequent provisions. Thus, for example, literary, dramatic and
musical works are further defined in s 3 and broadcasts are further defined in s 6.
- In reality these eight categories fall into two broad classes.
1. Literary works
2. Dramatic works
3. Musical works
4. Artistic works
5. Films
6. Sound recording\broadcasts published edition (or typographical work)
Note here that, under thus provision, legal protection (as property) is granted in both “works” requiring originality as a
precondition for protection (s.1(1)(a)) and works which have no such precondition (ss.1(1)(a) and (b)). The latter class of
protected forms would typically be protected by “neighbouring rights” or “related rights” in mainland Europe, and in
jurisdictions deriving their law from leading continental European jurisdictions. In EU law, sound recordings, films and broadcasts
are protected by “related rights”. However, in the UK, the protection granted in such “works” is described as “copyright”.
Subject matter – terminological issues
- All types of subject matter that are protected by copyright are called ‘works’.
- Literary and artistic works
Bernes Convention, article 2 (1) - The expression “literary and artistic works” shall include every production in
the literary, scientific and artistic domain, whatever may be the mode or form of its expression)
- Other subject matter (related/neighbouring rights) – e.g. sound recordings, fixations of films broadcasts, performances
- Different approach to naming/distinguishing in national laws
Works” protected under CDPA
s 1(1)(a)
- all forms of work listed in s 1(1)(a)), are subject to a precondition of “originality”. A work falling into one of these
categories will only be protected where it is “original”
- This set of categories of protected forms include the types of work (songs, plays, novels etc). These are:
the forms of work which are covered by the Berne Convention in international copyright law
the types of interest protected by so-called “authors’ rights” in the laws of most mainland European
jurisdictions (and in countries deriving their law from those jurisdictions) and
the cultural products described as “works” in the EU copyright acquis
s1(1)(b) and (c)
- The subject-matter falling within this class is the product of commercial enterprise and investment
- There is no “originality” precondition for the protection of subject-matter of this kind. This is because works falling
within ss 1(1)(b) and (c) do not generally involve a contribution of “originality”, as this concept is understood in
copyright law.
“Open systems” and “closed systems”
- As outlined above, a claimant in copyright proceedings under the CDPA has traditionally had to establish that he or she
has created a “work” falling within one of the categories listed in s 1 (i.e., to demonstrate that he, or she, has created a
“sculpture” or a “dramatic work” or a “sound recording”, for example). As a consequence, there have been numerous
“boundary” cases, in which it has had to be determined whether a particular artefact falls within a specified category
(or categories) of “work” or not. Hi-Tech Autoparts Ltd v Towergate Two Ltd (No 1) [2002] FSR 15 and [2002] FSR 16, a
court had to consider whether a rubber car mat could be described as an “engraving” for the purpose of copyright law!
- closed list - a work will only be protected if it falls within certain designated categories of defined form. UK
- open list - a much broader, open definition of the subject matter of copyright is adopted
Categories of “work” listed in CDPA, s 1(1)(a) (also “works” / “authors’ rights’
, Literary works
- (CDPA 1988, s 3(1)) “’[L]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,
(c) preparatory design material for a computer program, and
(d) a database.”
- A work that is “written, spoken or sung” can be in code, symbols or numerals. This is apparent from the definition of
“written” / “writing” set out in CDPA, s.178 (which contains definitions of a number of terms employed in the Act):
“...’writing’ includes any form of notation or code, whether by hand or otherwise and regardless of the method by
which, or medium in or on which, it is recorded, and ‘written’ shall be construed accordingly.”
- “Literary” not implying elevated qualitative standard – ‘literary is often described as high creative aspiration however,
there is no requirement of ‘quality’ under CDPA 1988
- An overarching definition of “literary work” - Stephenson LJ in the Exxon case: ‘a literary work is intended to afford
either information and instruction, or pleasure, in the form of literary enjoyment. The sleeve chart before us gives no
information or instruction. It does not add to the stock of human knowledge or give, and is not designed to give, any
instruction by way of description or otherwise; and it certainly is not calculated to afford literary enjoyment or
pleasure.’” (Navitaire, para 79)
In Navitaire, the judge preferred an approach under which the concept of “literary work” was treated as a
term of art deriving from legal policy (and therefore did not extend to single words serving as commands
within computer programs).
- Single words and very short phrases - Names, titles and other single words in isolation have tended not to be
protected. Francis Day and Hunter v 20th Century Fox [1940] AC 112.
There is some evidence that (under the influence of European-level developments), the approach to this issue
may have been liberalized. In Newspaper Licensing Agency Ltd v Meltwater Holding BV [2011] EWCA Civ 890, it
was held that newspaper headlines will often be “original” and will benefit from copyright protection as
“literary works”
- Spoken works - such as lectures and sermons, can potentially be protected under the CDPA 1988/ However, the
question of whether or not a conversation might be protected under copyright law is quite a tricky one
- Compilations - Compilations of works and data have long been protected as “literary works” in UK copyright law. Many
such compilations will now satisfy the definition of a “database” under the CDPA 1988 and will be protected as such.
The general rules under the CDPA are slightly modified for anything that qualifies as a “database”. This is
because there is a particular Directive which establishes copyright rules for “databases” as a form of lex
specialis at EU level (see Directive 96/9 on the legal protection of databases).
However, there may be works that could be described as “compilations”, but which do not fall within the
definition of “database” under the Directive. Such “compilations” will nevertheless be “literary works” under s
3(1)(a) CDPA (“...compilation other than a database”)
- Databases - A definition of “database” is included within the CDPA as a result of the implementation of the Database
Directive (by the Copyright and Rights in Databases Regulations 1997). This states that: “... ‘database’ means a
collection of independent works, data or other materials which – (a) are arranged in a systematic or methodical way,
and
(b) are individually accessible by electronic or other means.” (CDPA 1988, s.3A)
Separate categorisation was required because the Directive applies specific rules to databases in some
respects (e.g., concerning infringement and defences).
(Directive 96/\9)
The CJEU has provided more detailed guidance on the definition in Fixtures Marketing Limited v OPAP AE
[2005] 1 CMLR 16
- Computer programs and preparatory design material for computer programs – the copyright regime applicable to
software under the CDPA 1988 derives from a specific Directive constituting lex specialis for that form of work (Directive
2009/24 on the legal protection of computer programs (codifying)). However, there is no exhaustive definition of the
protected form under that Directive. In jurisprudence, the CJEU has described the “object of protection” of the
Software Directive as “the expression in any form of a computer program which permits reproduction in different
computer languages, such as the source code and the object code.” ((C-393/09) BSA v Ministry of Culture of the Czech
Republic [2010] I-13971) [28]-[42].
The Software Directive explicitly states that the “ideas” and functionality underlying a program are not
protected by copyright (see Software Directive, Art 1(2). This is a specific application of a more generally
applicable principle in copyright law (“there is no “copyright in ideas”
Dramatic works
- Scripts for stage plays and scripts and screenplays for films and television dramas will be protected as “dramatic works”
under the CDPA 1988. Potential overlap between the categories of “literary work” and “dramatic work” are excluded
Introduction
This section concerns the forms of “work” entitled to protection under copyright law. Under Copyright Designs & Patents Act
1988, s 1(1)
- CDPA 1988, s1(1) sets out the forms of “work” entitled to protection under copyright law in the UK:
“Copyright is a property right which subsists... in the following descriptions of work:
(a) original literary, dramatic, musical or artistic works;
(b) sound recordings, film or broadcasts, and
(c) the typographical arrangement of published editions.”
(CDPA 1988, s 1(1))
- eight categories are listed. Each is further defined in subsequent provisions. Thus, for example, literary, dramatic and
musical works are further defined in s 3 and broadcasts are further defined in s 6.
- In reality these eight categories fall into two broad classes.
1. Literary works
2. Dramatic works
3. Musical works
4. Artistic works
5. Films
6. Sound recording\broadcasts published edition (or typographical work)
Note here that, under thus provision, legal protection (as property) is granted in both “works” requiring originality as a
precondition for protection (s.1(1)(a)) and works which have no such precondition (ss.1(1)(a) and (b)). The latter class of
protected forms would typically be protected by “neighbouring rights” or “related rights” in mainland Europe, and in
jurisdictions deriving their law from leading continental European jurisdictions. In EU law, sound recordings, films and broadcasts
are protected by “related rights”. However, in the UK, the protection granted in such “works” is described as “copyright”.
Subject matter – terminological issues
- All types of subject matter that are protected by copyright are called ‘works’.
- Literary and artistic works
Bernes Convention, article 2 (1) - The expression “literary and artistic works” shall include every production in
the literary, scientific and artistic domain, whatever may be the mode or form of its expression)
- Other subject matter (related/neighbouring rights) – e.g. sound recordings, fixations of films broadcasts, performances
- Different approach to naming/distinguishing in national laws
Works” protected under CDPA
s 1(1)(a)
- all forms of work listed in s 1(1)(a)), are subject to a precondition of “originality”. A work falling into one of these
categories will only be protected where it is “original”
- This set of categories of protected forms include the types of work (songs, plays, novels etc). These are:
the forms of work which are covered by the Berne Convention in international copyright law
the types of interest protected by so-called “authors’ rights” in the laws of most mainland European
jurisdictions (and in countries deriving their law from those jurisdictions) and
the cultural products described as “works” in the EU copyright acquis
s1(1)(b) and (c)
- The subject-matter falling within this class is the product of commercial enterprise and investment
- There is no “originality” precondition for the protection of subject-matter of this kind. This is because works falling
within ss 1(1)(b) and (c) do not generally involve a contribution of “originality”, as this concept is understood in
copyright law.
“Open systems” and “closed systems”
- As outlined above, a claimant in copyright proceedings under the CDPA has traditionally had to establish that he or she
has created a “work” falling within one of the categories listed in s 1 (i.e., to demonstrate that he, or she, has created a
“sculpture” or a “dramatic work” or a “sound recording”, for example). As a consequence, there have been numerous
“boundary” cases, in which it has had to be determined whether a particular artefact falls within a specified category
(or categories) of “work” or not. Hi-Tech Autoparts Ltd v Towergate Two Ltd (No 1) [2002] FSR 15 and [2002] FSR 16, a
court had to consider whether a rubber car mat could be described as an “engraving” for the purpose of copyright law!
- closed list - a work will only be protected if it falls within certain designated categories of defined form. UK
- open list - a much broader, open definition of the subject matter of copyright is adopted
Categories of “work” listed in CDPA, s 1(1)(a) (also “works” / “authors’ rights’
, Literary works
- (CDPA 1988, s 3(1)) “’[L]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,
(c) preparatory design material for a computer program, and
(d) a database.”
- A work that is “written, spoken or sung” can be in code, symbols or numerals. This is apparent from the definition of
“written” / “writing” set out in CDPA, s.178 (which contains definitions of a number of terms employed in the Act):
“...’writing’ includes any form of notation or code, whether by hand or otherwise and regardless of the method by
which, or medium in or on which, it is recorded, and ‘written’ shall be construed accordingly.”
- “Literary” not implying elevated qualitative standard – ‘literary is often described as high creative aspiration however,
there is no requirement of ‘quality’ under CDPA 1988
- An overarching definition of “literary work” - Stephenson LJ in the Exxon case: ‘a literary work is intended to afford
either information and instruction, or pleasure, in the form of literary enjoyment. The sleeve chart before us gives no
information or instruction. It does not add to the stock of human knowledge or give, and is not designed to give, any
instruction by way of description or otherwise; and it certainly is not calculated to afford literary enjoyment or
pleasure.’” (Navitaire, para 79)
In Navitaire, the judge preferred an approach under which the concept of “literary work” was treated as a
term of art deriving from legal policy (and therefore did not extend to single words serving as commands
within computer programs).
- Single words and very short phrases - Names, titles and other single words in isolation have tended not to be
protected. Francis Day and Hunter v 20th Century Fox [1940] AC 112.
There is some evidence that (under the influence of European-level developments), the approach to this issue
may have been liberalized. In Newspaper Licensing Agency Ltd v Meltwater Holding BV [2011] EWCA Civ 890, it
was held that newspaper headlines will often be “original” and will benefit from copyright protection as
“literary works”
- Spoken works - such as lectures and sermons, can potentially be protected under the CDPA 1988/ However, the
question of whether or not a conversation might be protected under copyright law is quite a tricky one
- Compilations - Compilations of works and data have long been protected as “literary works” in UK copyright law. Many
such compilations will now satisfy the definition of a “database” under the CDPA 1988 and will be protected as such.
The general rules under the CDPA are slightly modified for anything that qualifies as a “database”. This is
because there is a particular Directive which establishes copyright rules for “databases” as a form of lex
specialis at EU level (see Directive 96/9 on the legal protection of databases).
However, there may be works that could be described as “compilations”, but which do not fall within the
definition of “database” under the Directive. Such “compilations” will nevertheless be “literary works” under s
3(1)(a) CDPA (“...compilation other than a database”)
- Databases - A definition of “database” is included within the CDPA as a result of the implementation of the Database
Directive (by the Copyright and Rights in Databases Regulations 1997). This states that: “... ‘database’ means a
collection of independent works, data or other materials which – (a) are arranged in a systematic or methodical way,
and
(b) are individually accessible by electronic or other means.” (CDPA 1988, s.3A)
Separate categorisation was required because the Directive applies specific rules to databases in some
respects (e.g., concerning infringement and defences).
(Directive 96/\9)
The CJEU has provided more detailed guidance on the definition in Fixtures Marketing Limited v OPAP AE
[2005] 1 CMLR 16
- Computer programs and preparatory design material for computer programs – the copyright regime applicable to
software under the CDPA 1988 derives from a specific Directive constituting lex specialis for that form of work (Directive
2009/24 on the legal protection of computer programs (codifying)). However, there is no exhaustive definition of the
protected form under that Directive. In jurisprudence, the CJEU has described the “object of protection” of the
Software Directive as “the expression in any form of a computer program which permits reproduction in different
computer languages, such as the source code and the object code.” ((C-393/09) BSA v Ministry of Culture of the Czech
Republic [2010] I-13971) [28]-[42].
The Software Directive explicitly states that the “ideas” and functionality underlying a program are not
protected by copyright (see Software Directive, Art 1(2). This is a specific application of a more generally
applicable principle in copyright law (“there is no “copyright in ideas”
Dramatic works
- Scripts for stage plays and scripts and screenplays for films and television dramas will be protected as “dramatic works”
under the CDPA 1988. Potential overlap between the categories of “literary work” and “dramatic work” are excluded
