Copyright, moral rights and

performers rights
Copyright
This is a
property right

What types of copyright

does the work contain?

Classical works s.1(1)(a) CDPA

Original literary, dramatic, musical and
artistic work

a) Requirements for a classic

work to be copyrighted

1) Fixation It must be recorded in writing or otherwise s.3(2) CDPA

This must be recorded in a permanent form onto any medium in a way

that it can be reproduced

There is no copyright in mere ideas It has to be fixed

E.g. For a literary work when it is typed into a computer

E.g. For a music recording when it is put onto a CD or by writing the

music notation

2) Originality

a) It must originate from the author

(not copied from another)

b) The creation of the work must have

involved some skill and judgment

3) The work is more than De Minimis

Exxon Corp v Exxon Insurance Consultants

The made up name Exxon was insufficiently substantial to qualify for

copyright protection

This would also apply to song and film titles and character names
IPC Magazines v MGN Ltd

If the name or title is represented in a particular or stylised was (e.g. as

a logo) artistic copyright would likely arise

b) Types of classic copyright

Literary copyright s.3 CDPA

Any work, other than a dramatic or musical work, which is written,

spoken or sung

E.g. Can therefore apply to a table of numbers as much as song lyrics

Dramatic copyright s.3 CDPA

Would include works of dance and mime which are capable of being
performed to an audience

Musical copyright s.3 CDPA

Music, exclusive of any words or action intended to be sung, spoken or

performed with the music

E.g. the tune to a song, an advertising jingle or a series of notes (Intel)

A new musical arrangement of another song would attract new musical

copyright if sufficiently original

Artistic copyright s.4 CDPA

E.g. Graphic works, paintings, drawing, diagrams, maps, engravings,

photographs and architecture irrespective of artistic quality or merit

Derivative works s.1(1)(b) and (c)

CDPA
These are derived from classic works
because the classic works provide their
underlying subject-matter

a) Requirements for a classic

work to be copyrighted

1) No requirement for originality

The copyright in the derivative work exists independently of any

copyright in the underlying work

b) Types of derivative
copyright

Sound recordings s.5A CDPA

Includes sound recordings of a performance on CDs, vinyl and digital

recordings (mp3)

Films s.5B CDPA

Includes recording on any medium which a moving image may by any

means be produced such as films, home videos, TV adverts, music
videos and news footage

Broadcasts s.6 CDPA

Defines as an electronic transmission of visual images, sounds or other

information for simultaneous reception by members of the public

Includes broadcasts submitted to the public on terrestrial and satellite,

by TV or radio

Does not include internet transmission unless they are simultaneous

This is in addition to any copyright in the underlying material

Typographical s.1(1)(c) and s.8 CDPA

Includes the typesetting / formatting of published editions of the whole

or part of a literary, dramatic or musical works

E.g. For a new publication of a Shakespeare sonnet the literary

copyright in the sonnet itself will have expired, but the publishers will
still have typographical copyright in the formatting / layout

Who is the author?

The author will

also, generally, be
the original
copyright owner

General rule

The author is the creator of the work s.9(1) CDPA

Special rules

Sound recordings s.9(2)(aa)

The producer is the author

Films s.9(2)(ab)
The producer and the principal director are the authors

Broadcasts s.9(2)(b)
The person making the broadcast is author

Typographical arrangements of published editions

s.9(1)(d)
The publisher of the edition is the author

Joint ownership

Hadley v Kemp

Kemp was the principal songwriter

Other group members made small changes to the

songs leading up to recordings

Did not contribute sufficiently to be joint authors

Levy v Rutley

To achieve joint ownership the work must be the

join design of two or more persons working on
the work in concert

There must be joint labouring in common design

Who is the owner of the

copyright?

General rule

The author is the first owner of the copyright in the

work s.11(1)

E.g. A painter sells his picture, but retains the

copyright in the underlying work and can
therefore reproduce prints of the painting

Employees

Where an employee makes a copyright work in the

course of his employment s.11(2)

If it is as part of his normal duties;

The employer is the first owner of the copyright;

Subject to an agreement to the contrary

Commissioners

The author of the commissioned copyright work is still

the owner s.9

This is even though the client has right to the

physical copyright work (e.g. a photograph)

Commissioner would therefore still need consent

of author to make copies of the work

Commissioner would be advised to obtain

assignment of the work or a license

What rights does a

copyright owner have?
(s.16 the restricted acts)

1) The exclusive right to do certain things with the work

2) The right to prevent others from doing such things (the Restricted Acts)

Cannot do these without the consent of the copyright owner

Will be a primary infringement of copyright

This is whether or not they knew it constituted an infringement

Infringements are direct or indirect, so includes authorising another to do a

Restricted Act .16(3)

What can the copyright

owner prevent others
doing? (Restricted Acts)
s.16

1) Copying s.17

Includes format shifting copying music

from a legitimately purchased CD onto a
computer

a) Copying includes storing the work in any electronic

medium s.17(2)

2) Issuing, renting and lending to the public

s.18 and 18A

a) Issuing copies of a copyright work to the public

b) Renting out, or lending a copyright work

3) Public performance s.19

a) Performing, showing or playing a copyrighted work

in public

b) Public includes if the public pays for the

performance

c) Public includes if the performance is in a public

place or otherwise not in a domestic situation

4) Communication to the public s.20

a) Communicated to the public in an electronic

transmission a copyright work

b) Broadcasting or making available to the public in a

way which would allow the public to access it
individually (e.g. video on demand services)

5) Adaptations s.21

a) Translations

b) Work adapted from a non-dramatic work to a

dramatic work and vice versa (e.g. novel to a screen
play)

c) Parodies which use a substantial part of the

original work in order to be effective

6) Secondary infringement s.22-26

a) Where a copyrighted work as been infringed by copying it

without consent is primary infringement

This is infringement of the copyright of the underlying source

b) Subsequent commercial exploitation (e.g. by creating multiple

CDs and selling / distributing them) is secondary infringement

This is the means by which the products of primary

infringement are disseminated

What are the requirements

to establish a claim for
infringement?

1) There must be an objective similarity between

the works

2) There must be a causal connection

Where the claimants work was created before the defendants, and the defendant has
access to and knowledge of the claimants work, there is a presumption of copying

Burden of proof shifts onto defendant to rebut presumption

3) There must be the copying of the whole or

any substantial part of the work

a) This is measured by quality of the copied part, not the quantity of the copying

Copying a single, but memorable line of a song might therefore be a substantial

part of the work

b) Michael Baignet and Richard Leigh v Random House Group

Facts

Claimed the theme of the Da Vinci Code, not actual words had been copied

Claimant contended that:

o
11 of the central theme elements were common to both books
o
Dan Brown had access to the claimants book when he wrote Da
Vinci Code and based relevant parts of it on the claimants book
Held

No Copyright infringement
Reason

Material not protected by copyright

o
The material Dan Brown took were general propositions
o
They were mere ideas and were not elements of original expression
o
The claimant could not monopolise historical research

Substantial part
o
The purported central theme of the claimants book was not its
actual theme
o
Therefore the use of the 11 elements was not copying a substantial
part of the claimants book

Liability is established if:

The infringer knew or had reason to

believe;

He was dealing with infringing copies of a

work

What are the defences to

copyright infringements?

1) General defences

a) It is a defence if consent or a formal licence was given by the

copyright owner; or

b) It is a defence if no infringement has occurred by showing that

neither the whole nor a substantial part of the work was copies

c) It is a defence if the Claimant does not own the copyright

d) It is a defence if no copyright exists due to the work not being

original or the copyright period has expired

2) Fair dealing defences

a) Fair dealing for the purpose of research or private study s.29

CDPA

Allows a fair amount to be copied

Copies must not be for commercial purposes

Acknowledgment of the source is required

b) Fair dealing for the purpose of criticism or review s.30(1)

CDPA

Allows the quoting of extracts

Acknowledgement of the source is required

The review need not be balanced

c) Fair dealing for the purpose of reporting current events s.30(2)

CDPA

Applies for all work except photographs

Acknowledgment of the source is required except for

reporting by sound recording, film or broadcast

3) Incidental inclusion

What are the remedies for

copyright infringement?

1) Injunction

2) Damages or an account of profits

3) Associated orders

Where a copyright work is shown or heard incidentally e.g. in a live

broadcast

Does not allow for deliberate inclusion where the broadcaster

or film producer has had time to identify and remove it

Moral Rights

What are the key features

of moral rights?

1) They are personal to the author, not the work

2) They cannot be assigned (but can be waived)

What are the moral rights?

1) Right of paternity s.77 and s.78 CDPA

This is the right to be identified as the author or director of the copyright work
provided the author / director has asserted this right in accordance with s.78

2) Right of integrity s.80 CDPA

The author or director of a copyright work has the right to object to any
derogatory treatment of the work. This is defined as an addition to, deletion
from, or alteration or adaptation of the work which amounts to a distortion or
mutilation of the work or is otherwise prejudicial to the honour or reputation of
the author or director

3) Right to object to false attribution of work s.84 CDPA

The author or director of a copyright work has the right not to have a copyright
work falsely attributed to him

4) Right to privacy of certain photographs and films s.85 CDPA

A person who commissions a photograph or film for private or domestic
purposes but does not acquire the copyright in it has the right of privacy in that it
is not issued, exhibited, shown or communicated to the public

Performers
rights s.180188 CDPA

What are the key features

of performers rights?

1) Rights of singers, musicians and actors in their performances

2) Exists separately of any copyright in the underlying work and moral rights

3) They are particularly important where the performer does not own the
copyright in the underlying work

What are the performers

rights?

a) Performers Non-Property rights

Rights relating to the recording or
broadcast of a live performance

1) Rights in the whole or substantial part of a qualifying

performance s.182
These rights will be infringed by anyone who, without his / her
consent:

a) Makes a recording of the whole or a substantial part of a

qualifying performance directly from the live performance itself

b) Broadcasts the performance live or any substantial part of it

c) Makes a recording directly from a broadcast of the live

performance

d) Shows or plays or communicates to the public the recording

e) Imports (for non-private use) into the UK or in the course of

business possesses, sells, rents or distributes a recording,
knowing or having reason to believed it is an illicit recording
2) Right to equitable remuneration s.182D
Even if the performers rights have been assigned, the performer
retains the require to equitable remuneration from the copyright
owner of the sound recording

3) Recording rights s.185-188 CDPA

Anyone with an exclusive recording contract has prohibit others
from:

a) Making a recording of the whole or any substantial part of the

performance

b) Showing or playing the whole or any substantial part of the

performance in public

e) Importing (for non-private use) into the UK or in the course of

business possesses, sells, rents or distributes a recording,
knowing or having reason to believed it is an illicit recording

b) Performers Property Rights

Rights in respect of the
performance one it has been
recorded

1) Rights in the whole or substantial part of a qualifying

recording
These rights will be infringed by anyone who, without his / her
consent:

a) Makes a copy of the recording

b) Issues to the public copies of the recording

c) Rents or lends to the public copies of the recording

d) Makes a recording available to the public via electronic

transmission

Remedies for breach of

Performers rights

1) An injunction

2) Damages or an account of profits

3) Delivery up

4) Seizure