Moral rights = authors rights
In the UK, Adaptation, distribution etc are called *****rights, as opposed to authors rights.
Moral rights in the UK are limited to just a couple of things.
Right to be named as an author. Right not to be named. Right against derogatory treatment.
Duration is the same for all copyright works, unless the item in question holds a right not to bame the author. Then, it’ll be 20 years.
You might also say that the use of these rights is also economic. That people will have to go for his concerts instead of getting them online for free.
Moral rights in the UK are used in the same way that standard sets of copyright are used for.
You can still use standard sets of copyright, but the reasons used for them are still similar.
Art 6.bis of the Berne Convention.
Basic idea of moral rights. System of moral rights apparent in the convention.
In 1988, the moral rights system was introduced to fill the gap in the UK. Although everyone insists that they are part of the Berne convention, in reality, they aren’t.
Right of Attribution
877(1)
If you want to use the right to be named as an author, you actually have to say that you want to be named as an author.
2. includes categories of work that do not attract the right.
Confetti Records v Warner Music 2003
Someone called Andrew alcy and a song. He wanted to be named as the author of the work.
Remix of a song. Had dubious lyrics. Could he be named as author. Court felt that he couldn’t actually used this right but it was a bit unsure if he was part of the song.
Sawkins v Hyperion Records 2005
Sawkins put together forming addition to classical music. Sawkins wanted to be nbamed as the author to claim recording rights, but Hyperion Records just mentioned on a booklet: “With thanks to Dr Sawkins.”. Sawkins wanted it to be reflected as Copyright, Sawkins. Hyperion Records refused on many occasions because of company policy.
1. EXCEPTIONS
S79:
If an employer of copyright owner has authorised reproduction.
2 right to object to false attribution of a work
S84(1)
Allen Clsrke produced a book called Allen Clarke’s ecret diaries.
Nespaper produced a spoof of it.
Peter Bradshaw produced it and his name was in smaller type under the text Allen Clarke.
However, would people not see the name of Bradshaw and see Clarke instead and mistake Clark to be the author?
Clarke was successful in his action.
Clark v Associated Newspaper 1998
Noah v Shuba 1991
Hypergenic tatooing. Noah produced some guidance. Someone came along adding a very similar book here and there.
Right invoked by Noah.
Additional 17 words could not have claim brought against them because it wasn’t enough to the copyright work itself. In relation to the whole work, you could bring an action that you are not an author of that.
The right of integrity
S80 (1) The right to object to derogatory treatment of a literary, dramatic, musical or artistic work....
Noah v Shuba 1991
Claim for derogatory treamtment failed because there wans;t enough done in therms of DT.
Morrison v Lightbond 1993
A CD of George Michael has been emixed and incorporated into another CD. An injunction case. Wanted to prevent remix being distrivuted. TRaking sections of his work, cutting them up and making them into music could be considered derogatory.
10-60 secs of music was chopped up. A reasonable amount was chopped up.
Confetti Records v Warner Music 2003
Infringing music.
Shizzle my nizzle. Mish Mish Man. Court wasn’t even sure what those words mean, let alone who to attribute to them,
Tidy v Trustees of NHM.
Dinosaurs by Bill Tidy. Reproduced by NHM. Colourised by NHM. Bill Tidy worried public might sdee this as a derogatory treatment f his work.
Pasterfield v Denham 1999
Plymouth Dome. Drawming had been altered very slightly. Original author, denome wanted to stop it from being distributed. Court said, very slight alteration. This isn’t derogatory treatment.
Original case heard in Plymouth magistrates court. Court thought streaight away that this wasn;t derogatory. 2 potentially different approaches.
Snow v The Eaton Centre 1982 Canada
Snow had produced these flying geese and had them hung up in a shopping centre as an artistic work.
The shopping centre put red rbbons around their necks. Artists thought they made them look like some Christmas decorations. Integrity of his work was offended.
Wnet to Ontario High Court.
Compare this with Tidy. Tidy emphasises the public. So, you’ve got different approaches.
In Canada, copyright statute altered there to consider what the public thinks.
Dominant approach now is not to consider what the public thinks.
The strongest approach on moral rights.
The frsh experience.
Huston v Turner Entertainment. Concerned some colorisation of film.
The important thing is that the standard approach was emphasioses. You can enforce moral rights against your work. Right of distributio, destruvtion etc.
Completely different approach than what is done in the UK.
4.Privacy in Photogpahs an film
Most of the time, you’ll just bring an action against privacy...
Droit de Suite.
Berne Convention Art 14ter
Right to an artist or an estate to claim the interest over the resale of works.
At one level, it is aimed at artists who become famous, to reclaim money made on their earlier work.
They might have sold works for a tenner, but they’ll get some money off that now.
EU Direvctive 2001 84/EC ‘ on the resale
Continental Europe. Less trade in artwork More so in the UK. This law was made possibly to prevent UK from shipping to much to the rest of continental Europe?
Started with European Convention, now absorbed to UK law.
The right applies to works of graphic or plastic art, which includes inter alia, pictures, collages, paintings, drawings, engravings, paintings, and lithographs.
The seller pays:
E 1000 – 50,000 = 4%
-200,000 = 3%
-35000 = 1%
-500000 = 0.5
-500000+ = 0.25%
Maximum limit = E12500
PERMITTED ACTS AND DEFENCES
Fair dealing is technically not a defence. It’s simply a permitted act.
It’s the same in the USA with their system of fair use.
You’ll often see this as a defence because it’s a lot easier.
Why do we have 2 systems?
1. The nature of fair dealing in the UK.
Fair dealing vs Fair Use.
THE US APPROACH
Title17 USC Para 107. Limitations on exclusive rights: Fair use...
(1)
(2)
(3)
(4)
Indemnity insurance?
A more narrow form of insurance for ppl making films.
UK Law. Copyright Act 1911.
CDPA 1988.
British Oxygen v Liquid Air [1923]
Indicated that copyright act 1911 was going to be construed bery restrictively.
One co had ben using anti practices. Dealing with canisters etc. Sent a lterr to another co outlining what they do. Sory of practices they got up to. Fixing the market. Other co, liquid air, turned around saying they were not gg to be involved in this. Letters sent to ther places like stock markets etc where ppl would actually take offence.
Fair dealings provisions.Court said they won;t deal with that provision. You can’t used an unpublished letter (not given to public) in this aprticiular fashion. Start of when things start to become narrow.
The international angle:
Art 13 TRIPS / ART 10 WIPO CT
EU Copyright Directive Art. 5(5)
The 3 step test. Pushed the courts to a narrow restrictive approach. Rights of right holders have to be protected. Any step away from that has to be treated very minimally.
i. any limitations or exceptions to the rights of authors should be confined to certain special cases that
ii. do not conflict with a normal exploitation of the work and which
iii. do not unreasonably prejudice the legitimate interests of the author.
II. The Fair Dealing Provisions
When a computer was making temporary copies of copyright work into its hard drive, it was thought that a copyright infringement was ocrruing,
II (i) Making of temporary copies
S.28 A It has to be transient or incidental, an integral or essential part
Infopaq
Reference to ECJ. Someone had been taking headlines of newspaper articles and making a summary.
It was said that the taking of some of thesheadlines and reproduction of them was not an essential part of the technological process. Some of it was printed out. Wasn’t an essential part of the technological process.
You need something hat is actuallypart of a technological process, and not, outsode of it.
II (ii) Non-Commercial Research/ Private study
When there might be competition being involved that undermines fundamental technological protection measures.
Silitoe v Mc Graw-Hill Book Co [1983]
The controller of HMSO OS v Green Amps Ltd [2007]
Survey online through Athens Svc.Student continued using it even after he had continued his studies, in his subsequent employment.
Defence of no n commercial research and private study failed as he was no longer a student.
Casec-467/08PADAWAN SL v Sociedad General de Autores y Editores (SGAE) CJEU (Third Chamber) (Oct 21 2010)
If you have a technological protection act, you can’t circumvent with with above mention ddefence as it will undermine the value of that work?
II(iii) Ciriticism or Review
Pro Sieben Media AG v Carlton UK (1999)
German media broadcasting co. Produced a documentary on checkbook journalism.
Produced video that had 30 sec of video used in Calton’s documentary.
A documentary about Mandy Allwood.
Fraser Woodward Ltd v BBC [2005]
Some photographs had been reused by BBC on the documentary of tabloid journalism. 14 photos.
It was decided to be permissible. Not accessive. Genuine, and it did not damage the value of the photographs.
Time Warner v Channel 4 [1994]
12 and a half minutes from Clockwork orange. Was “A matter suitable for public debate”.
Banier v NGH 1997
A NEWSPAPER PHOTOGRAPHER BRINGING action against News group.
Somebody bringing action.
The use of the photographs was unjustified and unlawful.
II(iv) Reporting of Current Events.
Ashdown v Telegraph Group Ltd [2001]
Paddy Ashdown. A respective coalition between the liberal democrats and new Labour. Therehas been a leaking of a memorandum from downing street that detailed everything that eas happening, a largeportion of ich was reproduced n the telegraph paper.
Can you rely on this defence?
MMany pages from it? You can make people aware of the situation if you wish to produce the memorandum?
Newspaper Licensing Agency v Marks & Spencer [2002]
Type of graphical addition rights. If you wan to invoke successful infringement acts...
Chancery division impt one for our pursposes. Defence was denied. M&S reproducing internally articles.
In the chancery division, there is a chance to bring the defence for the reporting of current events.
Denied.
V Chalton UK
II(v) Incidental Inclusion
S31 (1) “Copyright in a work is not infringed byu its
Hawkes and Son v Paramount 1934
Piece of music where 28 bars had been reused.
Football Association v Panini [2003]
Many casessimilar to this in the context of trademarks.
Int he context of trademarks, it’s entirely possible that an action may no succeeed.Foot ball platying cards concerning pics of players of England footnall swuad. Reportduction of England 3 lions logo.
Was it incidental or not. Was incidental. Action succeeded.
II(iv) Use of Notes of Spoken Words
Porter and Lane predates this by quite a bit. A preporter was writing down was lord rosebury was saying.
One issue that was talked about was whether, if you were denied permission, whether there would be an infringement, or if you wuld hold copyright or not.
S58(1) Where a record of spoken words is made, in writing or otherwise, for the purpose...
S 58(2)
II (iv) Time shifting
More about video recordings. Life television broadcasrs.
Case in the united states. Sony, Universal studios.
Supreme court case from 1984.
The only case we have of this sort of issue is Sony v Universal
Easy internet cafe. Allowed people... time shifting purposes.
II(viii) Educatrional Use
Person giving in struction has to do the copying
Not by a repographic process
For a non commercial purpose
Achknowledge the surce
s.36(2)
Limits to Copyright
including formal shifting, paradoy, non-commercial research, library archiving
... are protected from..
Back – Up copes
You can make a back up copy of a workif its necessary.
A back up copy of MS word for exp.
Is making a back up copy of a piece of commercial software permissible.
s. 50 A CDPA 1988
Sony v Owen 2002
Narrow view of when you can make a back up copy. You can only make a back up copy if you are dealing with something like a data set. Very very narrow.
Decompilation, observing and testing
The problem we have is the scope of it.
The trouble is, to do this properly, you might need to decompile elements of it.
Contract
In the UK s28(I)
Us: ProCS, Inc v ZeidenBerg 86 F.3d 1447
(7th Circuit, 1996) – cf
Pro CD Inc. V Zeidenberg
III. Applying the Fair dealing provisions
Hubbard v Vosper [1972]
Christian Scientist church. Vosper gone to some meetings. Obtained somematerial abt them. Published them in a book.
Christian science wanted to prevent such material being distributed.
LLord Denning came up with 5 hings to look at. Extent of quotations. The manner in whch they are used.
Whether they will be used for viable purpose. Proportions that were taken. Accessing thew way in which provisions should be applied is a matter of impression.
Proceed with media. Similarly, te amount taken, the purpose, necessity and the motives.
BBC v BSB [1991]
30 sec snippets had been used in reporting of football events, even though both of them are essentially competing.
30 secs not enough to influence compettion between 2.
Hyde Park v Yelland [2000]
Looks at thinfs through what is in the mind of a fair minded person.
A specfici test that comes of the public interest.
General interest, subject to cases mentioned earlier.
US position.
IV (i) Public Interest
Beloff v Pressdram [1973]
S1, 171 (3) CDPA 1988
Countries secutity
Breach of the law
fraud
Matters that are destructive to country or its people
Lion labs v Evans [1985]
Found out that tests with breathalisers were inaccurate
Wantd to stop dissemination of info tht had been leaked.
Found that it was in the public interest.
Hyde Park Residence Ltd Yelland and Others [2000]
CCTV footage of Diana leaving residence.
Aldous LJ. Copyright cannot be enforced. The public interest will be introduced if you are dealing with something that is:
A Immoral, Scandalous, or contrary to family life
Injuruouis to public life, public health and safety or the administration of justice
c) incites or encourages others to act in a way referred to in (b)
Unilever v Griffin [2010]
Marmite deatured in oe of their party broadcasrs.
Marmite will do undue harm to unilever to be association with BNP.