Please enable JavaScript.
Coggle requires JavaScript to display documents.
Criteria for Protection (1.3) - Coggle Diagram
Criteria for Protection (1.3)
Idea and Expression
Ideas are not protected:
Birrel writing in 1899 spoke of
'mere ideas'
being as
'free as air'
Designers Guild Ltd v Russel Williams:
"My Lords, if on examines the cases in which the distinction between ideas and expression of ideas has been given effect, I think it will be found that they support 2 quite distinct propositions
The first is that a copyright work may express certain ideas which are not protected because they
have no connection with the literary, dramatic musical or artistic nature of the work
The other proposition is that certain ideas expressed by a copyright work may not be protected because, although they are literary, dramatic or artistic in nature,
they are not original, or so commonplace as not to form a substantial part of the work
The Idea Expression Continuum/Spectrum
Baigent and Leigh v The Random House Group [2007]:
Facts: Dan Brown denied copyright infringement pertaining to Holy Grail myth. Dan Brown said he felt like he didn't copy it. Copyright does not extend to the closing on info, facts, ideas, theories and themes (existing copy rights). C (book on the right) was trying to monopolize historical research.
Held: There was 11 elements/themes that are common to both books, as D didn't contest that he had access, but Court held that it was too general in terms of ideas to qualify for copyright protection so if D had taken everything he only took historical research/knowledge and that these were unprotectable. CA acknowledged the lines between idea and expression that it can be difficult
Mr Justice Arnold in
SAS Institute v World Programming Ltd
has affirmed the position of the doctrine in UK law
He held that the doctrine applied to computer programs primarily on the basis that principle is enshrined in
Art 9(2) of TRIPS
and
Art 2 of the WCT
Court of Justice and CA subsequently then proceeded to find that the non-protection of ideas applied to the non-literal copying of authorial works covered by the Infosoc Directive as much as it did to those concerning computer programs
In light of the foregoing, it is clear that the idea-expression dichotomy has a much firmer footing now in UK law than has previously been the case
Art 9(2):
Copyright protection shall extend to expression and not to ideas, procedures, methods of operation or mathematical concepts as such
(Trade-Related Aspects of Intellectual Property Rights (TRIPS) 1994
Art 2:
Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such
(WIPO WCT 1996)
Art 1(2):
Protection in accordance with this Directive shall apply to the expression in any form of computer program. Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under this Directive.
(Directive 2009/24/EC of the European Parliament and the Council of 23 April 2009 on the legal protection of computer programs)
Criteria for Protection
Recording/Fixation
S.3(2) CDPA 1988:
Copyright does not subsist in a literary, dramatic or musical work unless and
until it is recorded in writing or otherwise
S.3(3) CDPA 1988:
It is immaterial for the purposes of subsection (2) whether the work is recorded by or with the permission of the author; and where it is not recorded by the author, nothing in that subsection affects the question whether copyright subsists in the record as distinct from the work recorded
Merchandising Corp of America Inc v Harpbond Inc [1983]:
A painting must be on a surface of some kind... a painting is not an idea: it is an object; and paint without a surface is not a painting/ Makeup however, idiosyncratic it may be as an idea cannot possibily be a painting for the purpose of the Copyright Act 1956
Isletarr Holdings Ltd v Aldi
Originality
Oxford English Dictionary Website States:
'Original' in the mid 17th Century described as:
created, composed, or done by a person directly: produced first-hand; not imitated or copied from another
But from the 1750s the use of the term 'original' took on connotations of:
novel or fresh in character and style
Originality - Traditional Approach:
No statutory definition
It was defined in
University of London Press Ltd v University Tutorial Press Ltd [1916]
per Peterson J: "The word 'original' does not in this connection mean that the work must be an expression of
original or inventive thought
Walter v Lane [1900]:
A reporter was enttiled to copyright in a verbatim report of a public speech
Ladbroke v William Hill [1964]:
HoL considered the alleged infringement of copyright in fixed odds football betting coupons. The coupon was a compilation. And a "a vast amount of
skill, judgement, experience and work
has gone into the building up of the respondents coupon"
'labour, skill and/or judgement'
Copyright subsisted and was infringed
British Northrop Limited v Texteam Blackburn [1973]:
per Megarry J - Anything short of 'barren and naked simplicity'
Held anything more complex than a single straight line drawn with a ruler may have copyright as an artistic work
Sawkins v Hyperion [2005]:
The author originated the work by his efforts rather than slavishly copying from the work of another
Originality - European Originality
Art 1(3), Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs
Art 6, Council Directive 93/98/EEC of 29 October 1991 harmonising the term of protection [...] (photographs)
Art 3(1), Directive 96/9/EC of the European Parliament and the Council of 11 March 1991 on the legal protection of databases
Infopaq International A/S v Danske Dagblades Forening (C-5/08) [2009]:
It appears now eleven words may be copyrightable after this decision
"Author's Own Intellectual Creation"
[37] - 'Copyright within the meaning of Art 2(a) of Directive 2001/29 is liable to apply only in relation to a subject-matter which is original in the sense that it is its author's own intellectual creation'
Painer v Standard Verlags Gmbh (C145/10) [2012]:
Portrait Photogragh
'Personal touch', 'making free and creative choices'
Further CJEU Decisions:
Football Association Premier League Ltd and Others v QC Leisure and Others (C403-08) stated football matches:
"are subject to rules of the game leaving no room for
creative freedom
for the purposes of copyright", and therefore are not
intellectual creations
Football Dataco v Yahoo UK (C-604/10):
"that criterion of originality is satisfied when, through the selection or arrangement of the data which it contains, its author expresses his creative ability in an original manner by making
free and creative choices
... and thus stamps his
'personal touch'
Where are we now?
Football Dataco Ltd v Britten Pools Ltd [2010]:
'judgement, taste or discretion'
NLA v Meltwater [2011]
Equates the 2 standards
Temple Island Island Collection v New England Teas Ltd [2012]
common ground
Rahmatian [2013]
No change, AOIC is what you would like it to be
THJ v Sheridan [2023]
The CA confirmed that AOIC is the standard of UK originality for creative works - "the European test is more demanding" at para [23]
Implications for the Closed List System
Bezpecnostni Softwarova Asociace v Ministerstvo Kultury [2010]:
[44] ... it is appropriate to ascertain whether the graphic user interface of a computer program can be protected by the ordinary law of copyright by virtue Directive 2001/29
[45] The Court has held that copyright within the meaning of Directive 2001/29 is liable to apply only in relation to subject matter which is original in the sense that it is its author's own intellectual creation
[46]: Consequently, the graphic user interface can, as a work, be protected by copyright if it is its author's own intellectual creation
SAS Institute v World Programming Ltd [2013]:
In the light of a number fo recent judgements of the CJEU, it may be arguable that is is not a fatal objection to a claim that copyright subsists in a particular work that the work is not of the kinds of work listed in S.1(1)(a) of the Copyright, Designs and Patents 1988 and defined elsewhere in that Act. Nevertheless, it remains clear that the putative copyright work must be a literary or artistic work within the meaning of Art 2(1) of the Berne Convention
It should have been an autonomous interpretation in EU law
Identified with sufficient interpretation and integrity
Waterrover (UK) Limited v Liking Limited [2024] - We need clarification on interpretation because right now, it is inconsistent and subjective