Lecture 5/6. Nature of rights
- The rights granted under the CDPA 1988 are “negative” rights – that is, they are rights to object to
certain acts being performed in relation to a copyright work. These “acts restricted by the copyright”
are listed in s 16: “The owner of the copyright in a work has, in accordance with the following
provisions of this Chapter, the exclusive right to do the following acts in the United Kingdom:
(a) to copy the work (see section 17)
(b) to issue copies of the work to the public (see section 18);
(c) to rent or lend the work to the public (see section 18A)
(d) to perform, show or play the work in public (see section 19);
(e) to communicate the work to the public (see section 20);
(f) to make an adaptation of the work or do any of the above in relation adaptation (see section 21);
and those acts are referred to in this Part as the ‘acts restricted by the copyright
(CDPA s.16(1))
- Where a third party carries out one of these acts in relation to a work without the permission of the
owner of the copyright in a work, he or she infringes copyright. As noted in the previous section, and
by contrast with the “secondary infringements” outlined below, these “primary” infringements of
copyright have all been understood to be strict liability torts (although doubt has been cast on this
principle by the controversial judgment of the Court of Justice in (C- 160/14) GS Media BV v Sanoma
Media Netherlands BV).
- Generally, all the listed exclusive rights apply to each class of protected work. However, there are
some exceptions to this general rule. For example, as you’ll see below, the right to prohibit the public
performance of a work does not apply to artistic works. Furthermore, the owners of copyright in
typographical arrangements in published editions are only entitled to a limited range of exclusive
rights.
- In most instances, these rights “map” onto equivalent (although sometimes differently named) rights
within the European acquis on copyright and related rights (for more information, see the outline of
each individual right below). For a useful chart demonstrating these equivalences, see Bently et al, ch
6, sec 1.
Introduction
• Naming – exclusive (exclude other people from a specific activity) / economic rights (by contrast with
moral rights. Rights transferred to third parties) = the definition of these rights dictates the
boundaries of a copyright owners’ monopoly (next point)
• Defining the parameters of the copyright owner’s monopoly
• Individual elements of copyright’s “bundle of rights” – these rights make up these
• To be viewed alongside general principles applicable to claims of infringement (see Lecture 8)
Relationship to International and EU law
- the list in the 1988 act is backed up by rules in international law and eu law. even though uk law pre-
dates these systems. Overtime they’ve been structured together. Typically in international law,
different terms are used for the 19998 list. – next point
- Reproduction (s 17) (this is referred instead of copying)
- Distribution (s 18) (this is referred instead of issuing copies to the public)
- Rental / lending to the public (s 18A)
- Performing, playing or showing in public (s 19)
- Communication to the public (s 20)
- Adaptation (s 21)
- See Bently et al, p142 for chart demonstrating “parent” provisions in EU acquis
- Performing, playing, showing of work in public is NOT COVERED by the eu law in regard to copyright.
(odd as this is one of the first copyright works granted. Copyright developed around this. it evolved.
Can be said the EU hasn’t covered this as it would be very hard to inforce? (can be said to very local
and difficult t control and enforce on a global scale). This doesn’t have much to do with free
movement. The eu need justification to legislate. This area doesn’t require this. no cross-border
issues. Thus, there has been no harmonization
copying (“reproduction”) (CDPA 1988, s 17)
, Literary, dramatic, musical and artistic works
- “Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in
any material form. This includes storing the work in any medium by electronic means.” (CDPA 1988,
s.17(2))
- The statute also provides further guidance on the meaning of “copying” in the case of certain forms of
work. Different approach to subject-matter of “related rights (“works covered by CDPA ss 1(1)(a) and
(b)
- For artistic works, a “dimensional shift” may infringe: “In relation to an artistic work copying includes
the making of a copy in three dimensions of a two-dimensional work and the making of a copy in two-
dimensions of a three-dimensional work” (CDPA 1988, s.17(3))
- In the case of a film or broadcast: “Copying...includes making a photograph of the whole or any
substantial part of any image forming part of the film or broadcast.” (CDPA 1988, s.17(4))
- In the case of any form of work: “Copying...includes the making of copies which are transient or are
incidental to some other use of the work” (CDPA s.17(6)) - SIGNIFICANT = the incidental copy used to
get to the outcome can be infringing,
- In (C-403/08 & C-429/08) FA Premier League Ltd v QC Leisure [2012] 1 CMLR 29, the Court of Justice
held that the reproduction right extended to transient fragments of works within the memory of a
satellite decoder and on a television screen, provided that those fragments contain elements which
are the expression of the authors’ own intellectual creation [154]- [159]. For consideration of the
application of these principles to films and broadcasts, see ITV v TV Catchup [2011] FSR 40 [105]-
[112]; [2012] FSR 10 [25]-[26].
- In the cases of “entrepreneurial” works / related rights, “copying” (and other forms of infringement)
has traditionally been restricted to “literal” reproduction (or communication etc) (see discussion in
section immediately below). This is established explicitly in the case of typographical arrangements
(CDPA 1988, s 16(5)). In the case of other forms of work, the principle has been confirmed in case law
– see Norowzian v Arks Ltd (No.1) [1998] FSR 394.
- Copying or following instructions?
However, in the case of works requiring originality, the concept of copying (reproduction “in
any material form” under the CDPA 1988) is more extensive and encompasses non-identical
copying. The scope of this concept raises interesting questions (particularly in relation to the
following of instructions and execution of descriptions (see Bently et al, 5th ed, ch 6, sec 2.1
for an interesting discussion of “descriptions” and “instructions”)
Brigid Foley v Ellot [1982] RPC 433 – an application. Didn’t repordce a set of knitting
instruction in literatury form.
Sandman v Panasonic UK [1998] FSR 651 – court accepted the argument that the concept of
reproduction encompassed copying the diagram as a literary work in accordance with those
instructions.
“…I suspect that the proper answer is that the circuit itself is a reproduction because it still
contains all the literary content of the literary work, albeit in a form which would require
analysis for it to be extracted…” (per Pumfrey J, at 657)
Abraham Moon & Sons Ltd v Thornber [2012] EWPCC 37 – set of instruction for a loom.
Argued fabric coming out of the loom was a reproduction of the instruction given to the
loom in program type form. Court said in those circumstances the fabric that came out of the
loom in a particular pattern couldn’t be regarded as. Reproduction of those instruction.
Judge said a person in the street wouldn’t consider this as reproduction, thus it’s not a
reproduction. Point of controversy? – if we regard these loom instructions (in number and
letters) as an artistic work, then there would be a copyright. He said that only those who
knew how loom is operated would understand what the material outcome would look like.
Consequence of the uk having a closed list system – they are difficulties court get in
to because there has to be a distinguish between artistic and literary creativity. No
distinction = difference between infringement in written and visual form wouldn’t
matter anywhere near as much.
- Reproduction – making something in accordance with a description?
“Pippi Longstocking” BGH, 17 July 2013 (Germany) – children’s book. Went to supreme court
in Germany. Film was being made. in uk the license of the copyright owner would be needed
as it is a remake. In Germany, this film was simply based upon the character, not the story.
The defendant (supermarket chain), made advert of main character. When book author
- The rights granted under the CDPA 1988 are “negative” rights – that is, they are rights to object to
certain acts being performed in relation to a copyright work. These “acts restricted by the copyright”
are listed in s 16: “The owner of the copyright in a work has, in accordance with the following
provisions of this Chapter, the exclusive right to do the following acts in the United Kingdom:
(a) to copy the work (see section 17)
(b) to issue copies of the work to the public (see section 18);
(c) to rent or lend the work to the public (see section 18A)
(d) to perform, show or play the work in public (see section 19);
(e) to communicate the work to the public (see section 20);
(f) to make an adaptation of the work or do any of the above in relation adaptation (see section 21);
and those acts are referred to in this Part as the ‘acts restricted by the copyright
(CDPA s.16(1))
- Where a third party carries out one of these acts in relation to a work without the permission of the
owner of the copyright in a work, he or she infringes copyright. As noted in the previous section, and
by contrast with the “secondary infringements” outlined below, these “primary” infringements of
copyright have all been understood to be strict liability torts (although doubt has been cast on this
principle by the controversial judgment of the Court of Justice in (C- 160/14) GS Media BV v Sanoma
Media Netherlands BV).
- Generally, all the listed exclusive rights apply to each class of protected work. However, there are
some exceptions to this general rule. For example, as you’ll see below, the right to prohibit the public
performance of a work does not apply to artistic works. Furthermore, the owners of copyright in
typographical arrangements in published editions are only entitled to a limited range of exclusive
rights.
- In most instances, these rights “map” onto equivalent (although sometimes differently named) rights
within the European acquis on copyright and related rights (for more information, see the outline of
each individual right below). For a useful chart demonstrating these equivalences, see Bently et al, ch
6, sec 1.
Introduction
• Naming – exclusive (exclude other people from a specific activity) / economic rights (by contrast with
moral rights. Rights transferred to third parties) = the definition of these rights dictates the
boundaries of a copyright owners’ monopoly (next point)
• Defining the parameters of the copyright owner’s monopoly
• Individual elements of copyright’s “bundle of rights” – these rights make up these
• To be viewed alongside general principles applicable to claims of infringement (see Lecture 8)
Relationship to International and EU law
- the list in the 1988 act is backed up by rules in international law and eu law. even though uk law pre-
dates these systems. Overtime they’ve been structured together. Typically in international law,
different terms are used for the 19998 list. – next point
- Reproduction (s 17) (this is referred instead of copying)
- Distribution (s 18) (this is referred instead of issuing copies to the public)
- Rental / lending to the public (s 18A)
- Performing, playing or showing in public (s 19)
- Communication to the public (s 20)
- Adaptation (s 21)
- See Bently et al, p142 for chart demonstrating “parent” provisions in EU acquis
- Performing, playing, showing of work in public is NOT COVERED by the eu law in regard to copyright.
(odd as this is one of the first copyright works granted. Copyright developed around this. it evolved.
Can be said the EU hasn’t covered this as it would be very hard to inforce? (can be said to very local
and difficult t control and enforce on a global scale). This doesn’t have much to do with free
movement. The eu need justification to legislate. This area doesn’t require this. no cross-border
issues. Thus, there has been no harmonization
copying (“reproduction”) (CDPA 1988, s 17)
, Literary, dramatic, musical and artistic works
- “Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in
any material form. This includes storing the work in any medium by electronic means.” (CDPA 1988,
s.17(2))
- The statute also provides further guidance on the meaning of “copying” in the case of certain forms of
work. Different approach to subject-matter of “related rights (“works covered by CDPA ss 1(1)(a) and
(b)
- For artistic works, a “dimensional shift” may infringe: “In relation to an artistic work copying includes
the making of a copy in three dimensions of a two-dimensional work and the making of a copy in two-
dimensions of a three-dimensional work” (CDPA 1988, s.17(3))
- In the case of a film or broadcast: “Copying...includes making a photograph of the whole or any
substantial part of any image forming part of the film or broadcast.” (CDPA 1988, s.17(4))
- In the case of any form of work: “Copying...includes the making of copies which are transient or are
incidental to some other use of the work” (CDPA s.17(6)) - SIGNIFICANT = the incidental copy used to
get to the outcome can be infringing,
- In (C-403/08 & C-429/08) FA Premier League Ltd v QC Leisure [2012] 1 CMLR 29, the Court of Justice
held that the reproduction right extended to transient fragments of works within the memory of a
satellite decoder and on a television screen, provided that those fragments contain elements which
are the expression of the authors’ own intellectual creation [154]- [159]. For consideration of the
application of these principles to films and broadcasts, see ITV v TV Catchup [2011] FSR 40 [105]-
[112]; [2012] FSR 10 [25]-[26].
- In the cases of “entrepreneurial” works / related rights, “copying” (and other forms of infringement)
has traditionally been restricted to “literal” reproduction (or communication etc) (see discussion in
section immediately below). This is established explicitly in the case of typographical arrangements
(CDPA 1988, s 16(5)). In the case of other forms of work, the principle has been confirmed in case law
– see Norowzian v Arks Ltd (No.1) [1998] FSR 394.
- Copying or following instructions?
However, in the case of works requiring originality, the concept of copying (reproduction “in
any material form” under the CDPA 1988) is more extensive and encompasses non-identical
copying. The scope of this concept raises interesting questions (particularly in relation to the
following of instructions and execution of descriptions (see Bently et al, 5th ed, ch 6, sec 2.1
for an interesting discussion of “descriptions” and “instructions”)
Brigid Foley v Ellot [1982] RPC 433 – an application. Didn’t repordce a set of knitting
instruction in literatury form.
Sandman v Panasonic UK [1998] FSR 651 – court accepted the argument that the concept of
reproduction encompassed copying the diagram as a literary work in accordance with those
instructions.
“…I suspect that the proper answer is that the circuit itself is a reproduction because it still
contains all the literary content of the literary work, albeit in a form which would require
analysis for it to be extracted…” (per Pumfrey J, at 657)
Abraham Moon & Sons Ltd v Thornber [2012] EWPCC 37 – set of instruction for a loom.
Argued fabric coming out of the loom was a reproduction of the instruction given to the
loom in program type form. Court said in those circumstances the fabric that came out of the
loom in a particular pattern couldn’t be regarded as. Reproduction of those instruction.
Judge said a person in the street wouldn’t consider this as reproduction, thus it’s not a
reproduction. Point of controversy? – if we regard these loom instructions (in number and
letters) as an artistic work, then there would be a copyright. He said that only those who
knew how loom is operated would understand what the material outcome would look like.
Consequence of the uk having a closed list system – they are difficulties court get in
to because there has to be a distinguish between artistic and literary creativity. No
distinction = difference between infringement in written and visual form wouldn’t
matter anywhere near as much.
- Reproduction – making something in accordance with a description?
“Pippi Longstocking” BGH, 17 July 2013 (Germany) – children’s book. Went to supreme court
in Germany. Film was being made. in uk the license of the copyright owner would be needed
as it is a remake. In Germany, this film was simply based upon the character, not the story.
The defendant (supermarket chain), made advert of main character. When book author
