Copyright: Primary Infirngement – Copying

The right to copy a copyright work is restricted to the copyright owner by s.2 (1) and s.16 (1) (a) of the Copyright, Designs and Patents Act 1988. The restriction applies to every description of copyright work though different provisions apply to different types of work (s.17 (1)). This right to restrict copying is referred to as the right of reproduction in art 9 of the Bern Convention and art 2 of the “Copyright in the Information Society” or Copyright and Related Rights Directive  (Directive 2001/29).

Literary Musical, Dramatic or Artistic Works
Copying in relation to an artistic, dramatic, literary or musical work
 work means reproducing the work in any material form including storing the work in any medium by electronic means. In the case of an artistic work this includes making a copy in 3 dimensions of a 2 dimensional work and the making of a copy in 3 dimensions of a 3 dimensional work.

Films and Broadcasts
S.17 (4) of the 1988 Act as amended  includes within the definition of copying making a photograph of the whole or any substantial part of any image forming part of a film or broadcast
 .

Typographical Arrangements
Copying in relation to a typographical arrangement of
 a published edition means making a facsimile copy of the arrangement (s.17 (5) of the 1988 Act). In Newspaper Licensing Agency Ltd. v Marks and Spencer Plc [2001] UKHL 38 the House of Lords held that the copyright in an edition of a newspaper is not infringed by making copies of cuttings that have been distributed lawfully by a licensed press cutting service and forwarding such copies to individuals within an organization. “Published edition” for the purposes of the Act meant “the product, generally between covers, which the publisher offers to the public” and facsimile meant the edition as a whole.

Transient or Incidental Copies
In respect of any description of copyright work, s.17 (6) of the Act includes within the definition of copying the making of copies that are transient or incidental to some other use of the work.

Meaning of “Copying”
In 
Francis Day & Hunter Ltd v. Bron [1963] Ch. 587, Diplock LJ said at page 583 that copying involves 2 elements:

“first, there must be sufficient objective similarity between the infringing work and the copyright work, or a substantial part thereof, for the former to be properly described, not necessarily as identical with, but as a reproduction or adaptation of the latter; secondly, the copyright work must be the source from which the infringing work is derived.”

Where those elements occur, the tactical burden of proof shifts to the defendants who must provide a credible explanation for the apparent similarity. A useful paper on the topic entitled “Proof of Copying” appears on the website of a New Zealand barrister, Andrew Brown QC at http://www.andrewbrown.co.nz.

See also Case Note: Christoffer v Poseidon Film Distributors Ltd. and Case Note Creation Records Ltd. v News Group 

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About Jane Lambert

I am a barrister specializing in intellectual property, technology, media and entertainment and competition law. I specialize in helping SME (small and medium enterprises) protect and exploit their investment in brands, design, technology and the arts. SME require intellectual property (legal protection for their intellectual assets) at least as much as big business but their limited means restrict the way they can use it. Looking after such clients wisely requires skills and knowledge which have taken me years to learn.
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