Copyright 2 Subject matters general issues

Slide 1

In this video, we will look at the subject-matter of copyright. What sort of works are protectable
under Copyright law? In tackling a copyright problem, the first thing you have to do is to identify the
potential copyright works in the scenario. Then the next thing you have to do is to figure out if any of
these works meet the various copyright requirements.

There will be a few separate videos on subject-matters. This first one will look at some general issues
before we go into the more detailed considerations of the various copyright works. Sometimes it is
not readily obvious as to whether a particular work is considered the type of work which is
acceptable under copyright law. So in the subsequent videos, we will be considering the boundaries
of protection afforded certain types of work.

Slide 2

What works are protectable? In copyright, works are generated divided into two broad categories.
One consists of the creative works – they are the literary, dramatic, musical or artistic works.
Examples are books, poems, plays, songs, sculptures and paintings. They are referred to as primary
works because they are the main focus of copyright law.

There is a second category of works which cover non-creative productions, such as sound recordings,
film recordings, broadcasts etc. These works are also known as entrepreneurial works or secondary
works. They are secondary because they are based on a primary or creative work. For example a
sound recording would usually be a recording of a musical work, which is a primary work. Works like
sound recordings and broadcasts are not creative as such but nevertheless they are valuable works,
and clearly a lot of time and investment have gone into their production. Also, such products are
essential for carrying and disseminating the creative works. Copyright law recognises their
contribution and they therefore enjoy protection as well, although the extent of their protection and
the details of their protection differ from that enjoyed by the creative works.

Slide 3

The protection of creative works is set out in art 2(1) of the Berne Convention, which is set out in this
slide. Art 2(1) sets out an illustrative list of examples, and although it refers only to literary and
artistic works, it is clear that this encompasses dramatic and musical works as well.

Slide 4

The secondary works or entrepreneurial works are recognised by a different convention, the Rome
Convention of 1961. Here broadcasts, sound recordings and performances are protected. Note that
the rights which are attached to these works are sometimes referred to as neighbouring or related
rights in civil law countries.

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Slide 5

In the first copyright video, I mentioned that we have to be aware of the differing approaches of UK
copyright law and that of civil law countries. In the previous slide, I said that rights attached to
secondary works are referred to as neighbouring rights, and they are treated separately from the
creative works. However, in the UK, all primary or secondary works are treated under a single piece
of legislation, the Copyright Designs and Patents Act 1988. I will call it the CDPA for short.

Section 1(1)(a)(b) and (c) lists 8 separate categories of work which are recognised under copyright
law – you can see this on the slide.

In civil law, creative works are protected by authorial rights or author’s rights, while secondary works
are the subject of neighbouring rights. The EU refers to neighbouring rights as related rights.

The main thing to take away from this particular difference is the regard that UK copyright law has
for the entrepreneurial works, regarding them as being equally valuable as the primary works. This
does not necessarily mean that they have the exact same level of treatment. The demarcation
between authorial works and neighbouring rights in civil law countries serves to emphasise the fact
that the works are regarded differently.

Slide 6

Another way in which the UK’s approach is markedly different from civil law countries is the closed
system of subject matters that it has. In other words, the 8 categories of works in the CDPA 1988 is
not merely exemplary of the types of the works which can be protected under copyright law in the
UK – in order for a work to enjoy copyright, you must show that it fits neatly within one of these 8
categories. EU treatment is different, as we will see shortly, in that it makes reference to the Berne
Convention Art 2, which is a generous description of literary and artistic works, supported by
illustrative examples of the types of works which are protectable. We will see that this difference
between the two regimes is one which has been discussed and analysed by many academics.

An example of the impact of the UK closed list or closed system of works is illustrated by the case of
Creation Records v News Group [1997]. On the slide you will see the front cover of an album by
Oasis. The album was called Be Here Now. The cover features a photograph of the band members
artfully posed around a swimming pool and themselves surrounded by various items, including a
Rolls Royce. A freelance photographer who was present at the photoshoot took a shot which was
similar to the one on the album. His picture was published in a national newspaper and he offered
copies of his picture for sale as posters. The musician who arranged the scene and the record
company sued for copyright infringement.

The freelance photographer was not sued for copyright infringement of the photograph which was
used for the album cover as he did not make a direct copy of that photograph. Instead he was sued
for infringement of copyright in the arrangement.

The question was whether the arrangement could be considered a copyright work under the UK
CDPA 1988. The most likely category was artistic works. The question was whether the arrangement
was an artistic work. This depends on whether it could fit within the definition of artistic work within
section 4 of the CDPA.

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Slide 7

Section 4(1)(a) - artistic work means

(a) A graphic work, photograph, sculpture or collage

(b) Work of architecture
(c) Work of artistic craftsmanship.

The arrangement clearly wasn’t (b) or (c) – did it clearly belong to (a)? It wasn’t a graphic work or
photograph. So it might be a sculpture or collage – which were considered. The court took a very
traditional view of the meanings of these two mediums. A sculpture was something which you carve
or mould out of a material like clay or marble. A collage was something that you made by sticking
things together just like the sort of thing you used to do in primary school. The arrangement was not
made by carving out a work from material and it wasn’t actually stuck together. They were just
placed in and around the pool, and later removed after the photoshoot. The court held that it wasn’t
an artistic work and hence could not attract copyright protection.

The implications of such a finding is that by insisting on rather rigid categories, some types of
creative works might be left out, in particular modern art works which are not the traditional forms
of art.

For example (slide 8)

Tracey Emin’s My Bed

This is a work which has been exhibited in the Tate Modern, shortlisted for the Turner Prize and
bought for £2.5 million pounds….one may well wonder why but that’s not a question for this unit.

Slide 9

By contrast in the Netherlands, Lancome sued Kecofa for copyright infringement of its Tresor
perfume. Kecofa produced a perfume called Female Treasure which smelt like Tresor. The copyright
infringement suit was based on the fact that the smell of Tresor was an original work – we are not
talking about the particular blend or formula of the perfume. We are not talking about the packaging
either. Both of these elements would belong to Patents or Trademarks. The complaint was about
how it smelt. Lancome argued successfully that the smell was an artistic work – the barrister argued
likened the process of producing perfume to that of an artist selecting colours from his palette to
produce his painting. The perfume is made by selecting certain fragrances and combining them
expertly to form the scent.

The Dutch Copyright Act , unlike the UK one, has a very broadly worded section on protectable
works – Art 10 says that any creation in the literary or artistic domain, regardless of the manner or
form in which it has been expressed will be potentially protectable under copyright law. It is quite
clear that it is based on the Berne Convention. The broadness of this section allows the court to
consider any sort of creative work potentially as long as it meets other requirements. They were
therefore able to entertain the sort of arguments put forth by the barrister for Lancome – such
arguments would probably not be successful under UK copyright law.

Slide 10

Likewise the Eu’s approach to the type of works which are potentially protectable under copyright
law is not as rigid in relation to the particular question of subject matter. Generally, the approach is

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that anything that constitutes an ‘intellectual creation’ should be protected. We will explore the
meaning of intellectual creation in later videos when we look at the core requirement of originality.
What does such an approach mean however for UK law?
In SAS Institute v World Programming [2013], Arnold J was of the view that it should no longer be
fatal to a copyright claim if the work in question is not one of those listed in s.1(1)(a)(b) or (c) of the
CDPA 1988. He adds however that the work in question must however abide by the Berne
Convention Art 2(1) in that it must be a type of literary or artistic work, as defined or described
there. He also cautioned that while admittedly Art 2(1) is rather expansive, certainly far more open
ended than the 8 categories, it is not unlimited. There are limits to the sorts of work which will enjoy
copyright protection.

We will see an example of such limits in the next case: (slide 11)

Levola case involved a cheese that had a distinct taste. The defendants produced a similar smelling
cheese. The infringement lay in the copying of the taste, not in the formula of the cheese. The Dutch
court referred the case to the CJEU with some pertinent preliminary questions on the scope of
copyright protection. Broadly speaking the court asked if is because Art 2(1) of the Berne Convention
appeared to be limited to works that can be perceived only by sight and sound, that is why
something like a taste cannot be protected. Another question was whether the reason why such a
work should be precluded was the fact that it was unstable and highly subjective.

Slide 12

Essentially the CJEU said the following:

They reiterated the point that the work must be the expression of the author’s own intellectual
creation – which is a well established principle. The problem however is that intellectual creation is a
test of originality in copyright law, and the question here is whether tastes can be a type of work
which is recognised and acceptable for copyright purposes.

The other point they made was that a work, in order to enjoy protection, must be identifiable with
sufficient precision and objectivity. In this case, taste is so highly subjective and certainly imprecise.
It seems right to require objectivity and precision because of the need for legal certainty as well as to
clarify the rights and obligations of other traders who deal with the same type of work. If it is too
imprecise, then the boundaries of the owner’s rights in the work become blurred and potentially too
wide. The CJEU did however in its judgement refer to the possibility of future technological
advancements which might allow for much more stable tastes which can also be discerned more
objectively. It is arguable that smells too should face the same issues as tastes.

However, the CJEU has been criticised for ignoring the question on the Berne Convention, which is a
pity, as the exact scope of the convention is something that has not been determined with any
precision. It was an opportunity for the CJEU to have made a pronouncement on this.

Slide 13

In this video, we have reviewed a few key issues:

We looked at the closed-subject-matter-system in the UK. Key issues include:

One – its limitations as seen in the Creation Records case.

Two – its compability with EU law.

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We also looked at the Levola case, which is important because it questions the boundaries of
copyright protection. There are a number of creative works which may not be protected under
copyright law – not only tastes, smells – but also works like magic, recipes, stand-up comedy, to
name but a few.

Slide 14

Next time, we will look at the different subject matters which are protectable under UK law in more
detail.