creative output
DESCRIPTION
These are the slides for a seminar on creative output that I gave on 30 Oct 2013. "Creative output" for these purposes means works of art and literature and design. Works of art and literature connote visual and literary arts and performing arts. Investment in visual and literary arts are protected by copyright and performing arts by rights in performances. Design means the design of products that are likely to be reproduced though not necessarily in a large scale, Design can be functional or ornamental. Functional designs are protected by unregistered design right. Ornamental designs that are new and have individual character can be protected by registration as registered designs or as registered Community designs. There is also 3 year protection throughout the EU against copying for designs that could be registered as registered or registered Community designs. This presentation considers copyright: subsistence, qualification, title, duration, infringement, economic and moral rights. It also touches on rights in performances, design rights, registered designs and registered and unregistered Community designs.TRANSCRIPT
Creative OutputCopyright, Related Rights and Designs
=Jane Lambert
4-5 Gray’s Inn Square, Gray’s Inn, London WC1R 5AH+44 (0)20 7404 5252
Introduction
● Intellectual assets: brands, design, technology and works of art and literature
● Works of art and literature○ Visual arts○ Literary arts○ Performing arts
● Designs○ Functional○ Decorative
Legal Protection of Art and Literature
● Visual and literary works are protected by copyright (Part I of the Copyright, Design and Patents Act 1988 (“CDPA”).
● Performances are protected by rights in performances (Part II of the CDPA).
Designs
● Functional designs are protected by unregistered design right (Part III of the CDPA).
● Decorative designs are protected by registration under the Registered Designs Act 1949 or Community Design Directive or as unregistered Community designs.
Copyright
● A property right which subsists in original artistic, dramatic, literary and musical works, broadcasts, films and sound-recordings and typographical arrangements of published editions (s.1 (1)).
● Can be assigned or transferred by will or operation of law (s.90 (1)).
Copyright
Two conditions are required for the subsistence of copyright:● A work must fall within one of the categories
mentioned in s.1 (1).● The qualification requirements of s.153 must
be fulfilled.
Copyright
Copyright can subsist in an artistic, dramatic, literary or musical work only if it is original.
Originality is not defined in the Act but the case law indicates that it is the application of at least some independent skill and labour.
Copyright
S.153 (1) requires the author of a work to be a “qualifying person” or the work to have been first published or broadcasted from a “qualifying country”.
Copyright
Qualifying persons are nationals or residents of the UK, its territories or countries which are designated as “qualifying countries” in an Order of Council.
Copyright
HMG has power to designate any state which protects the work of British nationals and residents under its own copyright laws as a “qualifying country”.
As most states belong to TRIPS, Berne or the UCC most are “qualifying countries.”
Copyright
Copyright can be infringed in two ways:● Primary infringement: doing or authorizing
any of the acts specified in s.16 (1); and● Secondary infringement: importing, selling,
distributing infringing copies knowing or having reason to believe them to be such as well as certain other acts that facilitate infringement.
Copyright
The exclusive rights conferred by copyright are subject to the large number of exceptions that are set out in Chapter III of Part I of the CDPA.
Copyright
The author of a work or his or her employer is the first owner of copyright in a work (s.11 (1) and (2) CDPA).
The author is the person who created the work (the producer of a sound recording or the principal director or producer of a film) (s.9 (1)(2))
Copyright
Duration of copyright:● Life of the author plus 70 years in the case
of an artistic, dramatic, literary or musical work (s.12 (1) and (2));
● Life of the director, author of the screenplay or dialogue or composer plus 70 years in the case of a film (s.13B (1) and (2)).
Copyright
● 50 years from the end of the year in which a broadcast or sound recording was made or less in the case of certain foreign nationals (s.13A (2) and s.14 (2)); and
● 25 years from the end of the year in which a typographical arrangement was published (s.15).
Copyright
Special provisions as to subsistence and duration of copyright apply to copyright works made by HM or Crown servants in the course of their duties (s.163).
Such copyright is known as “Crown copyright.”
Copyright
● Remedies for infringement are damages, injunctions and other remedies for infringement of a property right (see s.96 (2) but see Twentieth Century Fox Film Corp and Others v Harris and Others
● Actions are brought in Chancery Division,IPEC or certain county courts.
Copyright
Some infringements give rise to criminal liability which are prosecuted by local authorities or organizations like FACT and FAST.Collecting societies act on behalf of groups of copyright owners to enforce copyright.Collective licensing regulated by Chapter VII of Part I of CDPA.
Copyright
In addition to rights conferred by s.2 (1) which are called “economic rights”, authors of certain works are entitled to the following “moral rights”:● to be identified as author● to object to derogatory treatment of works.
and● right to privacy of certain photos and films
Copyright
Moral rights can be enforced by claim for injunction or other relief under s.103.
Right to be identified has to be asserted.
Moral rights have to be taken into account when drafting licences and other agreements.
Rights in Performances
Part II of the CDPA conferred a right to object to broadcasting, filming or taping of their performances known as a right in a performance upon:
○ Performers: actors, dancers, musicians, singers etc; and
○ Recording and film studios and broadcasters with a right to record or broadcast the performance
Rights in Performances
Performers enjoy both:● economic rights (rights to object to recording
or broadcasting without consent) and● moral rights (rights to be identified as a
performer and to object to derogatory treatment of performances).
Rights in Performances
● Qualification requirement for subsistence as in copyright
● Enforceable by civil action in the Chancery Division, IPEC or certain county courts
● Some infringements are also offences● Subject to a number of exceptions● Regulation of collective licences
Unregistered Design Right
● A new IP right which subsists in original designs
● Design means shape or configuration of an article or part of an article
● Replaced artistic copyright as a means of protecting investment in industrial designs
● Conferred by Part III of the CDPA
Unregistered Design Rights
● UK is almost the only country in the world to confer unregistered design right
● Qualification requirement which are met by UK and EU nationals and residents but almost nobody else
● Very short term: 15 years if not exploited or 10 years from end of year of creation
Unregistered Design Right
● Designer, his or her employer or person who commissioned the design is the first owner of a design right
● Design right subsists from the fixation of the design in a design document or prototype
● Design right is infringed by making articles to a design or a design document for such purpose
Unregistered Design Right
● Design rights enforced by civil proceedings in the Chancery Division, IPEC or certain county courts
● No criminal liability for design right infringement
● Threats action available for groundless threats
● Licence of right available for last 5 years
Design Registration
Designs that are new and have individual character may be registered for up to 25 years as “registered designs” for the UK under the Registered Designs Act 1949 or as “registered Community designs” under the Community design Regulation.
Design Registration
Applications for registration as “registered designs” for the UK are made to the IPO.Applications for registration as “registered Community designs” are made to OHIM in Alicante.Registration confers a monopoly of the design.
Design Registration
Design rights are enforced by proceedings in the Patents Court or IPEC only.Threats action for groundless threats.Clause 13 of Intellectual Property Bill will create a new offence of infringing a registered design by copying if passed.
Unregistered Community Design
Not to be confused with design right.Designs that could be registered as registered or registered Community designs enjoy 3 years protection from copying throughout the EU.Proceedings can be brought in Chancery Division, IPEC and certain county courts
