Seminar 2 HISTORY, PHILOSOPHY & SIGNIFICANCE

What is the point of copyright?  Is copyright the most boring subject known to man?  Encouragement of intellectual creation  Concerned with the processes of information creation and distribution - barriers to the free flow of information?  Is the current copyright regime efficient?  Whether the optimal balance between private incentives and social benefits has been reached?

History of Copyright  The origin of the British Copyright legislation is rooted in the vested interests of the printing and publishing community.  The first copyright law, in the modern sense, was the English Statute of Anne  It granted exclusive rights to authors, rather than publishers.  Millar v. Taylor (1769 KB) ruled that a copyright had existed in common law in perpetuity even after publication of the work and the Statute of Anne limited this duration of protection with regard to published works only.  HL in 1774 in Donaldson v. Becket overruled this decision and held that the common law copyright had been repealed by the 1709 Act.

SPECIAL CHARACTERISTICS OF COPYRIGHT oTotal absence of formal requirements oLimited monopoly oUniversity of London Press v University Tutorial Press [1916] 2 Ch 601 oPrince Albert v Strange (1849) 2 De Gex & Smale’s Reports 652 – statutory right (concerning privacy-confidentiality interests). oAlbert & Son v Fletcher Construction [1974] 2 NZLR 107 – different rights can be divided up and parcelled out to different persons for different periods of time and for different territories.

Justification for copyright protection Article 27(2) of the Universal Declaration of Human Rights provides :- "Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.“ This human right stems from two waves in intellectual thought (i) Copyright as fair play to the author (ii) Copyright as an essential factor to encourage exploitation of works

Aims of copyright law  Complete coverage - White Smith Publishing v Apollo (1908) 209 US 1  Control of all the channels  Protection should be international  Incentive to the author  Protection should not stifle independent creation  Legal rules should be convenient to handle.

Significance of Copyright “Cultural industries” New technologies Effect on existing rights

Why is protection essential? Recognition and Reward – avoiding a “free ride” Encouragement to human creativity and new talent Recompense for the time, money, effort and thought - fair economic rewards Access to knowledge Enhancement of enjoyment of culture and entertainment

Exclusive Rights  Steady expansion of owners’ rights.  Anyone doing an act for whatever reason, which is in the exclusive domain of an owner, without the owner’s consent, may infringe copyright.  The owner may or may not give consent, and may impose whatever conditions he or she wishes.  Only the owner has the exclusive right to publish the work, i.e., making it available “to the public”  The owner has the right to produce or reproduce the work in any material form whatever.  Reproduction implies that there is a causal connection between an earlier and a later work.  Close similarity between the two works, if D had access to the first, presents a prima facie case D must answer to avoid infringement (Francis Day & Hunter Ltd v Bron [1963] Ch 587 (CA).

Substantial Infringement Use of copyright consists either of: (i) exact use of part of the work, taken verbatim or (ii) some reworkings of the whole of it (e.g., paraphrasing – colourable imitation) or (iii) combination of these. Seldom, works are copied in toto. Issue: Whether a substantial part of the work has been copied? Substantial part does not refer to the physical amount taken but to the amount of the skill and labour which went into the creation of P’s work.

Caution Copyright should not be allowed to become an instrument of oppression and extortion Some use of a work is clearly permissible, for the law does not prohibit the use of “any” part. The test is whether D has made a substantial use of those features of P’s work in which copyright subsists? Has there been a substantial appropriation of the independent labours of the author? (Ladbroke at 288).