Intellectual Property Outline (Copyright)

LAW3760: INTELLECTUAL PROPERTY OUTLINE
PROPERTY OF O’NEIL R. CORINALDIE
COPYRIGHT
Copyright is a personal property right, created by statute, that protects the exclusive right
of authors of literary, dramatic, musical and artistic works to carry out (or permit/licence
others to carry out) certain defined restricted acts in relation to those works. Separate
copyright also subsists in secondary works such as films, sound recordings, broadcasts
(cable programmes and typographical arrangements of published works).
Groves, “A Dictionary of Intellectual Property”, 2011
REQUIREMENTS FOR PROTECTION section 5, Copyright Act of Jamaica

(1) The work is an eligible work
(2) The author is a qualified author
(3) The work is published in Jamaica or a specified country
N.B. Works are eligible/qualify for copyright protection if:

(i) the work is original (i.e. not copied)
(ii) the work falls within one of the protected categories
(iii)registration of the work is not a sine qua non
(iv) the work is fixed in a material form
Ideas are not eligible for copyright protection; and the work need not be of a certain quality
but a “modicum of creativity” is required.
…copyright protection may subsist in a work irrespective of its quality or the purpose for which it
was created…
CATERGORIES OF ELIGIBLE WORKS section 6, Copyright Act of Jamaica

(1) Original literary, dramatic, musical or artistic works
(2) Sound recordings, films, broadcasts or cable programme
(3) Typographical arrangements of published editions
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SUBJECT MATTER
(i) COPYRIGHT & PHYSICAL PROPERTY

Copyright in an item is distinguished from property rights in it as a physical thing.
Re Dickens (1935) 1 Ch 267

FACTS: The case concerned the last will and testament of Charles Dickens, an English
novelist. In his will, he had left all of his real and personal estate (including his copyrights)
to John Forster and Georgina Hogarth, on trust for his children. In addition, he left Miss
Hogarth ‘all of my private papers whatsoever and wheresoever’. Among the private papers
that Hogarth received was a manuscript of an unpolished work, originally written for the
instruction of Dicken’s children, the Life of Christ. Hogarth, in her will, bequeathed the
manuscript to her nephew, Henry Fielding. Dickens, who subsequently left it to his wife,
Marie Therese Dickens, the appellant. The appellant assigned the copyright in the work to
Associated Newspapers Limited. The residuary legates of the Dickens estate sought the
proceeds of the sale, arguing that the copyright in the work did not pass with the
manuscript to Georgina Hogarth.
HOLDING: in favour of respondent, that copyright in an unpublished work was an

incorporeal right of property which subsisted independently of the actual manuscript.
(ii) IDEA/EXPRESSION DICHOTOMY

Copyright protects only a work’s expression, not the ideas it contains.
Copyright protection does not extend to an idea, concept, process, principle, procedure, system or
discovery or things of a similar nature…
section 6(8), Copyright Act of Jamaica
Designers Guild Ltd. v. Russell Williams (Textiles) Ltd. (2000) 1 WLR 2416
FACTS: The Claimant sought to enforce its copyright in artwork for a fabric design Ixia,
claiming that the Defendant’s design Marguerite infringed that copyright.
HOLDING: Where a court of first instance considered a claim of breach of copyright, it

must consider both the quest of whether copying had taken place, and if so, whether what
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had been copied was substantial. Although in this case not the smallest part of a fabric
design had been reproduced with anything approaching photographic fidelity, the copying
of certain of the ideas expressed in that design which, in their conjoined expression, had
involved original artistic skill and labour, constituted the copying of a substantial part of
the artistic work.
Generally speaking, in cases of artistic copyright, the more abstract and simple the copied idea, the
less likely it is to constitute a substantial part. Originality, in the sense of the contribution of the
author’s skill and labour, tends to lie in the detail with which the basic idea is presented. Copyright
protects foxes better than hedgehogs. ~ Lord Hoffmann
Norowzian v. Arks Ltd. (No. 2) [2000] EMLR 67

Copyright does not subsist in style
FACTS: The Claimant film artist showed a film to an advertising agency, who did not make
use of it, but later appeared to use techniques and styles displayed in the film in subsequent
material sold to third parties.
HOLDING: A film was protected as a dramatic work subject to copyright law, but not the
artistic techniques demonstrated in it.
[W]here it is not suggested that the judge has made any error of principle, a party should not com to
the Court of Appeal simply in the hope that the impression formed by the judges in this court, or at
least by two of them, will be different from that of the trial judge.
Fraser v. Thames Television Ltd. (1984) 1 QB 44

Conversely, ideas may be protected through means other than copyright, i.e. breach of confidence
FACTS: Three actresses, an all-girl group called ‘Rock Bottom’, and their composer and
manager developed an idea for a television series based on the group and their lives. The
television company’s head of drama said she would commission a pilot script. Thames and
the claimants were paid to maintain the idea’s confidentiality until a decision had been
made and that they would not until then appear in any competing television programme.
The claimants agreed that any eventual series might use different actors, confirmed in a
letter by Thames. Two series came to be made derived from the idea. The claimants sued in
breach of confidence and of contract.
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HOLDING: The Court rejected the Claimants’ argument that they, having exercised their
right to first refusal, Thames was not entitled to impose any additional terms in relation to
the other work by the Claimants during the making of the series.
Bauman v. Fussell (1978) RPC 485

Taking an idea does not infringe copyright
FACTS: The plaintiff, a photographer has taken a photograph of 2 cocks fighting which was
published in a magazine. The defendant painted a picture of the photograph and the
plaintiff claimed that the painting breached his copyright in the photograph. The plaintiff
contended that the position of the birds was the main element of the photographic
composition and that was a substantial part of the photograph had been reproduced.
HOLDING: The County Court judge held that there was not an infringing copy. The effect
of the painting was entirely different from that of the photograph, and the defendant had
produced a new work of art of his own using the plaintiff’s work as inspiration. The
plaintiff appealed on the point that the judge was imposing a test which was wrong
because it was too high in seeking substantial similarity overall.
Somervell LJ considered that the difference in colour treatment between the photograph
and the painting it inspired was such as to prevent the latter constituting an infringement of
copyright in the photograph, although both the subject matter of the photograph and the
positioning of that subject matter in the photograph were copied by the painter.
Romer LJ (dissenting) said that the trial judge had not properly considered whether the
painting was a reproduction of a substantial part of the photograph. Enumeration of the
features of the photograph which were not present in the painting was not material to this
question. The consideration should be rather as to what had been reproduced than to what
had not.
(iii) ORIGINALITY
Copyright protection only subsist where the work to be protected is original – section 6,
Copyright Act of Jamaica.
University of London Press v. University Tutorial Press [1916] 2 Ch 601

‘sweat of the brow’
FACTS: Examiners where appointed for a matriculation examination at the University of
London, upon a condition being any copyright in the examination papers should belong to
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the University. The University agreed with the plaintiff company, University of London
Press Ltd, to assign the copyright and by deed purported to assign it to the plaintiff
company. After the examination, the defendant company, University Tutorial Press Ltd,
issued a publication containing a number of examination papers (including three which
had been set by two examiners, who were co-plaintiffs), with criticisms on the papers and
answers to questions. The plaintiff company commenced action against the defendant
company for infringement of copyright.
ISSUE: Whether, upon the assumption that the papers are literary works, they are original
HOLDING: Peterson J, the word “original” does not mean that work must be expression of
original or inventive thought. Copyright Acts are not concerned with the originality of
ideas, but with the expression of thought, and in the case of “literary work”, with the
expression of thought in print or writing. The originality, which is required, relates to the
expression of thought. But the Act does not require that the expression must be in original
or novel form, but that the work not be copied from another work. That is, it should
originate from the author.
Examiners proved that they thought out the questions which they set, and that they made
notes or memoranda for future questions and drew on those notes for the purposes of the
questions which they set. The papers, which they prepared, originated form themselves,
and were, within the meaning of the Act, original. The papers set by the examiners are
“original literary work” and proper subject for copyright under the Act.
Ladbroke (Football) Ltd. v. William Hill (Football) Ltd. [1964] 1 WLR 273
FACTS: The plaintiff alleged copying of their football pools coupons and copyright
infringement.
ISSUE: Whether, and to what extent of, copying is required to establish infringement
HOLDING: The question of substantiality is a matter of quality rather than quantity. There
must be a sufficient resemblance between the copyright work and the alleged infringement,
but there is no copyright in a mere idea. The subsistence of copyright involves an
assessment of the whole work in which copyright is claimed. It is wrong to make that
assessment by dissecting the whole into separate parts and then submitting that there is no
copyright in the parts.
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The originality which is required relates to the expression of the thought and as regard to
compilation, originality is matter of degree depending on the amount of skill, judgment or
labour that has been involved in making the compilation. Substantiality depends upon
quality rather than quality.
“The reproduction of a part which by itself has no originality will not normally be a substantial part
of the copyright and therefore will not be protected. For that which would not attract copyright
except by reason of its collocation will, when robbed of that collocation, not be a substantial part of
the copyright and therefore the courts will not hold its reproduction to be an infringement. It is this, I
think, which is meant by one or two judicial observations that ‘there is no copyright’ in some
unoriginal part of a whole that is copyright.” ~ Lord Pearce
Sawkins v. Hyperion Records Ltd [2005] 1 WLR 3281

FACTS: The Claimant had developed historical musicals works for performance. They
were published by the Defendant, by means of recordings for a performance from the
scores he had prepared, so called ‘performance editions’. The many hundreds of hours
expended, involved transcription of the scores into modern notation and interpretation of
the composers shorthand. The publisher unsuccessfully appealed against a finding of
copyright infringement, saying that the Claimant had not created an original work capable
of being protected under copyright law.
HOLDING: Copyright can be used to prevent copying of a substantial part of the relevant form of
expression, but it does not prevent use of the information, thoughts or emotions expressed in the
copyright work. It does not prevent another person from coincidentally created a similar work by his
own independent efforts.it is not an intellectual monopoly in then same sense as a patent or a
registered design. There is no infringement of copyright in the absence of a direct or indirect causal
link between the copyright work and the alleged copy. ~ Jacob LJ
Copyright did subsist in the works prepared by the Claimant, and the recordings did
infringe that copyright. The short thanks given to the Claimant in the CD packaging did not
sufficiently acknowledge his moral rights to be identified as the author. The sleeve merely
thanked him without acknowledging his authorship.
Originality for the purposes of the Act does not equate to novelty; work need only be
original in the limited sense that the author originated it by his efforts rather than slavishly
copying it from the work produced by the efforts of another person.
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Feist Publications Inc. v. Rural Telephone Service Company Inc. 44 US 340

To qualify for copyright protection, a work must be original to the author, which means that the work
was independently created by the author, and it possesses at least some minimal degree of creativity.
A work may be original even though it closely resembles other works so long as the similarity is
fortuitous, not the result of copying.
FACTS: Rural Telephone services Company Inc. provides telephone services to several
communities. Due to a state regulation, it must issue an annual telephone directory, so it
published a directory consisting of white and yellow pages. The yellow pages have
advertisement that generate revenue. Feist Publications is a publishing company whose
directory covers a larger range than a typical directory. It distributes its telephone books
free of charge, and they also generate revenue through the advertising in the yellow pages.
Rural refused to give a licence to Feist for the phone numbers in the area, so Feist used them
without Rural’s consent, for which Rural sued for copyright infringement.
ISSUE: Whether the names, addresses and phone numbers in a telephone directory are able
to be copyrighted
HOLDING: Facts cannot be copyrighted, however compilation of facts can generally be

copyrighted. Facts aren’t original. The first person to find and report a particular fact has
not created the fact but has merely discovered its existence. Facts may not be copyright and
are part of the public domain available to every person. Factual compilations may possess
the requisite originality. The author chooses what facts to include, in what order to place
them and how to arrange the collected data so they may be effectively used by readers.
Thus, even a directory that contains no written expression that could be protected, only
facts, meets the constitutional minimum for copyright protection if it features an original
selection or arrangement. But even though the format is original, the facts themselves do
not become original through association. The copyright does not extend to the facts
themselves.
To establish copyright infringement, two elements must be proven: ownership of the valid
copyright and copying of constituent elements of the work that are original.
The first element is met in this case because the directory contains some forward text. As to
the second element, the information contains facts, which cannot be copyrighted. They
existed before being reported and would have continued to exist if a telephone directory
had never been published. There is no originality in the formatting, so there is no
copyrightable expression. Thus, there is no copyright infringement.
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Infopaq International A/S v. Danske Dagblades Forening C 5/08 of 2008

For copyright protection to arise, it is both necessary and sufficient that the subject matter at hand is
original, in the sense that it is its author’s own intellectual creation that results from their free and
creative choices and reflects their personality.
section 5(2), Berne Convention for the Protection of Literary & Artistic Works
The enjoyment and the exercise of these rights shall not be subject to any formality…
LITERARY WORKS
section 2, Copyright Act of Jamaica
literary work means any work, other than a dramatic or musical work, which is written,
spoken or sung and accordingly includes:
(a) a written table/compilation
(b) a computer programme
Walter v. Lane [1900] AC 539

FACTS: A reporter attended a speech by Lord Rosebery. His report of the speech was
republished in the Times after another journalist who had not been present published a
verbatim copy. He claimed a copyright in the work he produced.
HOLDING: The first journalist had copyright and was entitled to succeed. The House
considered what was required to establish originality for copyright purposes. Copyright
subsisted in reports prepared by shorthand writers’ of public speeches as ‘original literary’
works. The speeches were made by the Earl of Rosebery in public when reporters were
present. The reporters made notes in shorthand, transcribed them, corrected, revised and
punctuated them and published them in newspapers as verbatim reports of the speeches. A
speech and a report of a speech are two different things. Lord Rosebery was the author of
his speeches. They spent effort, skill and time in writing up their reports of speeches that
they themselves had not written. Even though the reporters had intended only to reproduce
the speeches as accurately as they could, the works they prepared remained original works.
I should very much regret if I were compelled to come to a conclusion that the state of law permitted
one man to make profit and appropriate to himself what has been produced by the labour, skill and
capital of another. And it is not denied that in this case the defendant seeks to appropriate to himself
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what has been produced by the skill, labour and capital of others. In the view I take of this case, the
law is strong enough to restrain what to my mind would be a grievous injustice. ~ Lord Halsbury LC
Exxon Corporation v. Exxon Insurance Consultants International Ltd. [1982] RPC 69

A literary work is one that conveys information or instruction. Copyright exists in the expression of
the words, not the information itself
HOLDING: The word Exxon conveys no information, it provides instruction; it is simply
an artificial combination of four letters of the alphabet which serves a purpose only when it
is used in juxtaposition with other English words, to identify one or other of the companies
in the plaintiff’s group.
University London Press

Literary – work expressed in print or writing, irrespective of its quality
Express Newspapers v. Liverpool Daily Post

The subject matter will amount to literary work where a great deal of skill and labour went into the
subject matter
Rose v. Information Services [1987] FSR 254

No copyright will exist in the subject matter where little skill was expended ~ Hoffman J
DRAMATIC WORKS
dramatic work includes a work of dance or mime
Norowzian v. Arks Ltd. (No. 2) [2000] EMLR 67

HOLDING: Although there was striking similarity between the filming of and editing style
of two films, no copyright subsisted in the mere style/technique of a dancer performing
physically impossible movements. The film was not a recording of a dramatic work because
it was incapable of being performed before an audience.
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Green v. Broadcasting Corporation of New Zealand [1989] 3 NZLR 18

HOLDING: The plaintiff’s scripts could not support a claim of copyright in a dramatic
work because they could not themselves be acted or performed and were no more than a
general scheme for entertainment. There could not be a claim from copyright in the format
(title, various catch phrases, etc.)
Privy Council
1. The subject matter of copyright in the dramatic format was lacking certainty;
2. The purported dramatic work did not have sufficient unity to be capable of
performance;
3. The scripts did no more than express a general idea or concept and could not
be protected by copyright.
MUSICAL WORKS
musical work means a work consisting of music, exclusive of any words or action intended
to be sung, spoken or performed with the music…
Sawkins v. Hyperion Records Ltd [2005]

(See page 6)
Lawson v. Dundas (1985) UKHC

HOLDING: A four note call sign to identify a radio or television was a musical work.
ARTISTIC WORKS
section 2, Copyright Act of Jamaicaq
artistic work means –
(a) a graphic work, photograph, sculpture or collage, whether the work is of artistic
quality or not;
(b) a building or a model of a building, whether the building or model is of artistic
quality or not; and
(c) a work of artistic craftsmanship to which neither paragraph (a) nor (b) applies.
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George Henscher Ltd. v. Restawhile Upholstery (Lancs) Ltd. [1976] AC 64

At dispute in this matter is as to the existence of copyright in a prototype of a piece of
furniture.
HOLDING: It is I think of importance that the maker or designer of a thing should have intended
that it should have an artistic appeal, but I would not regard that as either necessary or conclusive. If
any substantial section of the public genuinely admires and values a thing for its appearance and
gets pleasure or satisfaction, whether emotional or intellectual, from looking at it, I would accept that
it is artistic although many others may think it meaningless or common or vulgar… In the present
case, I find no evidence at all that anyone regarded the appellants’ furniture as artistic. The
appellants’ furniture as artistic. The appellants’ object was to produce something which would sell…
no doubt many customers bought the furniture because they thought it looked nice as well as being
comfortable but looking nice appears to me to fall considerably short of having artistic appeal. I can
find no evidence that anyone felt or thought that the furniture was artistic in the sense which I have
tried to explain. ~ Lord Reid
In deciding whether a work is one of artistic craftmanship, I consider that the work must be viewed
and judged in an attached and objective way. The aim and purpose of its author may provide a
pointer, but the thing produced must itself be assessed without giving decisive weight to the author’s
scheme of things… so I would say that the object under consideration must be judged as a thing in
itself. Does it have the character or virtue of being artistic? ~ Lord Morris
DERIVATIVE WORKS
adaptation means –
(a) in relation to a literary or dramatic work –
(i) a translation of the work which, as respects a computer program, includes a
version of a program in which it is converted into or out of a computer
language or code, otherwise than incidentally in the course of running the
program;
(ii) a version of a dramatic work in which it is converted into a non-dramatic
work or, as the case may be, of a non-dramatic work in which it is converted
into a dramatic work;
(iii)a version of a work in which the story or action is conveyed wholly or mainly
by means of pictures in a form suitable for reproduction in a book or in a
newspaper, magazine or similar periodical;
(b) in relation to a musical work, an arrangement or translation of the work;…
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section 9(1)
… the owner of the copyright in a work shall have the exclusive right to do or to authorize
other persons to do any of the following acts…-
(a) to copy the work;
(b) to issue copies of the work to the public;
(c) to perform the work in public or, in the case of a sound recording, film, broadcast or
cable programme, to play or show the work in public;
(d) to broadcast the work or include it in a cable programme service; or
(e) to make an adaptation of the work and, in relation to such adaptation, to do any or
all of the foregoing acts.
Redwood Music Ltd. v. Chappell & Co. Ltd. [1982] RPC 109
An arrangement of an existing musical work only attracted a separate copyright if it involved great
skill and labour.
Redwood made reference to University of London Press Ltd. and Ladbroke (Football) Ltd.
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OWNERSHIP & MORAL RIGHTS

AUTHOR
According to section 2, Copyright Act of Jamaica, the author, in relation to a work, means
the person who creates it. The author may accordingly hold the copyright to his work, and
the moral and economic rights. For example, a translator is the author of his translation;
and the author of the sound recording is the producer.
section 22(1)
… the author of a protected work is the first owner of any copyright in that work unless there is an
agreement to the contrary…
Walter v. Lane [1900]

(see page 8)
Creation Records Ltd. v. News Group Newspaper Ltd. (1997) 39 IPR 1

FACTS: A pop group posed at a specially devised scene, consisting of a white Rolls Royce
in the swimming pool of a hotel and incorporating various other props. The object of the
exercise was to take a photograph to be used as a record/album cover. The defendants
commissioned a freelance photographer to take photographs of the scene.
HOLDING: The nature of the operation together with the imposition of security measures
made the occasion one of confidentiality, at any rate as it regards photography. However,
the arrangement of a group of people on album cover was not sufficient to warrant
copyright protection.
Cummins v. Bond [1927 1 Ch 167

FACTS: Miss Cummins was a professional medium who used a pen to transcribe a
message supposedly by a 1900-y-o spirit, which was addressed to Mr. Bond, who was an
architect and was present at the session. After she wrote it, Bond typed the message
himself. Bond claimed copyright on the resulting text because it was addressed to and
typed by him.
HOLDING: The court had no jurisdiction over the afterlife and as such, the copyright
holder and sole author is Cummins because she was the one who held the pen.
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Donoghue v. Allied Newspaper Ltd. [1938] Ch 106

If the idea, however original, is nothing more than an idea, and is not put into any form of words, or
any form of expression such as a picture, then there is no copyright
HOLDING: A journalist was the author and was responsible for the literary creation;
Donoghue was just the original source of the ideas, for which no copyright protection could
be afforded.
JOINT AUTHORSHIP
section 22(3)
Where a protected work is a work of joint authorship the authors thereof shall be co-owners
of the copyright in that work.
section 2
collective work means –
(a) a work of joint authorship; or
(b) a work in which there are distinct contributions by different authors or in which
works or parts of works of different authors are incorporated;…
work of joint authorship means a work produced by the collaboration of two or more
authors in which the contribution of each author is not separate from the contribution of the
other author or authors;…
section 7
(1) A work qualifies for copyright protection if the author was qualified person at the
material time.
(2) A work of joint authorship qualifies for copyright protection if any of the authors
satisfies the requirement of subsection (1), so however, where a work qualifies for
copyright protection only under this section, only those authors who satisfy such
requirement shall be taken into account…
Robin Ray v. Classic FM plc [1998] FSR 622

FACTS: The plaintiff had contributed a design of a system of classifying and selecting
tracks to be played on a radio station. He did so under a consultancy contract.
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HOLDING: A joint authorship claim requires the contributor to have made some direct
contribution to the words appearing in the eventual published item. A contribution of ideas
was insufficient. What is essential is a direct responsibility for what actually appears on the
paper. The defendant was to be licensed to use the copyright database, but only as was
foreseen within the original arrangement.
The court set out a classic statement of the law on the position of an original author of
copyright works, Lightman J on the general principles governing the respective rights of the
Contractor & Client in the copyright in a work commissioned by the Client:
(1) the Contractor is entitled to retain the copyright in default of some express or
implied term to the contrary effect;
(2) the contract itself may expressly provide as to who shall be entitled to the copyright
in work produced pursuant to the contract;
(3) the mere fact that the Contractor has been commissioned is insufficient to entitle the
Client to the copyright;
(4) If it is necessary to imply some grant of rights in respect of a copyright work, and the
need could be satisfied by the grant of a licence or an assignment of the copyright,
the implication will be of the grant of a licence only;
(5) If necessity requires only the grant of a licence, the ambit of the licence must be the
minimum which is required to secure to the Client the entitlement which the parties
to contract must have intended to confer upon him. The amount of the purchase
price which the Client under the contract has obliged himself to pay may be relevant
to the ambit of the licence…
(6) The licence accordingly is to be limited to what is in the joint contemplation of the
parties at the date of the contract and does not extend to enable the Client to take
advantage of a new unexpected profitable opportunity.
Cala Homes (South) Ltd & Ors v. Alfred McAlphine Homes East Ltd. [1995] FSR 818
FACTS: The Plaintiff alleged that the Defendant had copied its house designs after a senior
employee involved in creating the designs left and eventually came to work for the
Defendant. The Plaintiff alleged that the copying was flagrant allowing additional damages.
HOLDING: Though some work had been outsourced, the employee remained the author,
and his employer retained the copyright as his employer and therefore infringement had
occurred; ‘to have regard merely to who pushed the pen is too narrow a view of authorship.
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What is protected by copyright in a drawing or a literary work is more than just the skill of
making marks on paper or some other medium. It is both the words or lines and the skill
and effort involved in creating, selecting or gathering together the detailed concepts, data
or emotions which those words or lines have fixed in some tangible form which is
protected. It is wrong to think that only the person who carries out the mechanical art of
fixation is an author. There may well be skill and expertise in drawing clearly and well but
that does not that it is only that skill and expertise which is relevant.
Section 9, Copyright (Amendment) Act to amend sections 13A&B of Copyright Act

Section 13A
Where, pursuant to an agreement between employer and employee, the copyright in a
work created by the employee has vested in the employer, the copyright expires at the end
of the period of 95 years from the end of the calendar year in which the work was created.
Section 13B(1)
Where a work is made by a person employed or engaged by the Crown under a contract of
service, a contract of apprenticeship or a contract for services, the Crown is the first owner
of any copyright in the work, subject to any agreement to the contrary.
Ray v. Classic FM [1998]

(page 14 and 15)
Stevenson, Jordan Harrison Ltd. v. MacDonald & Evans [1952] 1 TLR 101
FACTS: An engineer wrote a book that used knowledge that he had acquired whilst he was
working for a firm in different capacities. Section 5(1), Copyright Act 1911 provides that if
the author of a work was under a contract of service, then the first owner of the copyright
shall be the person by whom the author was employed.
HOLDING: Applying the control test concerning whether the employer has the right to
control the way in which a person does the work, a person is considered an employee
under a contract of service when the work is integrated in that of the business and
considered an integral part of the business.
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Therefore, the engineer is the author of the work, but that specific material that he acquired
whilst he was an employee feel within the Copyright Act 1911 and should be excluded from
the publication.
Kenrick & Co. v. Lawrence & Co. (1890) 25 QBD 99

Ideas expressed by a copyright work may not be protected because although they are ideas of a
literary, dramatic or artistic nature, they are not original, or are so commonplace as not to form a
substantial part of the work.
MORAL RIGHTS

… the author of a literary, dramatic, musical or artistic work that is a protected work and
the director of a film that is a protected work have, respectively, the right not to have the
work or any part thereof subjected to derogatory treatment…
(a) PATERNITY
… The right of an author or director under this section is –

(a) in the case of commercial publication or the issue to the public of copies of a film or
sound recording, to be identified in or on each copy or, if that is not appropriate, in
some other manner likely to bring his identity to the notice of a person acquiring a
copy;
(b) in the case of identification on a building, to be identified by appropriate mean
visible to persons entering or approaching the building; and
(c) in any other case, to be identified in a manner likely to bring his identity to the
attention of a person seeing or hearing the performance, exhibition, film, broadcast
or cable programme in question,
and the identification must, in each case, be clear and reasonably prominent.
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Ateliers Tango Argentin Inc. v. Festival d’Espagne et Amerique Latine Inc. (1997) 84 CPR
(3d) 56
A photo of a photo could easily be an infringement
The Defendant reproduced a photograph – same location, same angle, same layout of the
same subject matter. The Court decided that this infringed the copyright in the original
photograph.
EXCEPTION
Section 14(9)
Except as may otherwise be explicitly provided by contract, the right conferred by this
section does not apply in relation to-
(a) a computer programme, the design of a typeface or a computer-generated work;
(b) any work made for the purpose of reporting current events;
(c) the publication in a newspaper, magazine or similar periodical or in an
encyclopedia, dictionary, yearbook or other collective work of reference, of a literary
dramatic, musical or artistic work made for the purposes of such publication or
made available with the consent of the author for purposes of such publication;
(d) a work in which copyright originally vested in an international organisation…,
unless the author or director has previously been identified as such in or on
published copies of the work.
(b) INTEGRITY
Section 15(1) (see page 17)
Section 15(4)(a)
“derogatory treatment” in relation to a work means any addition to, deletion from,
alteration to or adaptation of the work (not being a translation of a literary or dramatic
work or an arrangement or transcription of a musical work involving no more than a
change of key or register) which amounts to a distortion or mutilation of the work, or is
otherwise prejudicial to the honour or reputation of the author or director, as the case may
be…
PAGE 18 OF 32
Morrison Leahy Music Limited & Anor v. Lightbond Limited [1993] EMLR 144
A composer may successfully argue infringement where any composition made by him had been
sampled without his consent.
FACTS: The Defendants sought to release a mix of George Michael compositions having
already obtained a mechanical licence to use the musical works from MCPS on behalf of
George Michael’s publisher. George Michael objected to this on the basis that it constituted
a derogatory treatment of the compositions.
The Court accepted that George Michael had an arguable case that making a remixed
record embodying extracts from compositions could constitute a derogatory treatment of
the composition which was actionable at the composers behest.
Snow v. The Eaton Centre Ltd (1982) 70 CPR (2d) 105

Moral rights in art can be upheld if it is shown that infringement of the rights is prejudicial to the
artist’s honour or reputation, both subjectively and objectively
FACTS: Snow, a sculptor, had sold a sculpture of a flock of geese to the Eaton Centre. As
part of Christmas decorations, the geese had red ribbons placed around their necks. Snow
brought an action against the Centre to get an injunction to have the ribbons removed. He
argued that his naturalistic composition had been made to look ridiculous and requested an
interim injunction under section 12(7) of the Copyright Act.
HOLDING: granting the injunction, while the Eaton Centre has commercial rights in the
sculpture, Snow still held moral rights and the ribbons were prejudicial to his honour and
reputation. The Court applied a test for moral rights:
(1) Subjective component (creator’s perspective) – met by Snow’s frustration with the
situation; and
(2) Objective (perspective must be reasonably arrived at) – colleagues and experts in the
field agree with the prejudice to Snow’s honour and reputation.
Confetti Records v. Warner Music UK Limited [2003] EMLR 790

To constitute derogatory treatment, the treatment of the work had to prejudice the author’s honour or
reputation.
FACTS: The Claimants owned the copyright in a track garage music (“the track”). The
Defendant wanted to use the track on a compilation album and after negotiations sent a fax
PAGE 19 OF 32
to the Claimants containing deal terms, marked “subject to contract”. The Claimants faxed
back a signed version of the terms, sent the Defendant a CD of the track, label copy for the
track as “cleared” and an invoice. However, before the Defendant tendered payment and
before any full contract had been entered into, the Claimants informed the Defendant that
they wanted to renegotiate terms and that the track was not to be used in the meantime.
The Defendant’s compilation album had by this time been recorded and manufactured. The
Claimants issued proceedings and sought to restrain use of the track. The third claimant,
the originator of the track, also brough a claim for the derogatory treatment of the work
under section 80(2)(b) of the Copyright, Patents & Designs Act 1988.
HOLDING: (1) The use of “subject to contract” on the fax prevented it from constituting a
contract.
(2) The delivery of the track and invoice constituted an offer which the Defendant had
accepted. The Defendant’s use of the track was not therefore an infringement of the
Claimant’s copyright.
(3) The meaning of the words of the rap could only be explained by expert evidence and
had not been proved. The claim for derogatory treatment failed as no evidence of prejudice
to the third Claimant’s honour or reputation had been shown.
(c) FALSE ATTRIBUTION – RELATED RIGHTS
Section 16(1)
A person has the right –
(a) not to have a literary, dramatic, musical or artistic work falsely attributed to him
as author; and
(b) not to have a film falsely attributed to him as director, and in this section
“attribution”, in relation to such work, means a statement, whether express or
implied, as to the identity of the author or director.
Section 40(1)
… the right conferred on a person by section 16 not to have a literary, dramatic, musical or
artistic work falsely attributed to him as author or a film falsely attributed to him as
director, is infringed by a person who –
(a) issues to the public copies of a work of any of those descriptions in or on which there
is a false attribution;
PAGE 20 OF 32
(b) exhibits in public an artistic work or a copy of an artistic work in or on which there is
a false attribution.
Clark v. Associated Newspaper [1998] 1 WLR 1558
FACTS: The Claimant was a member of Parliament and an author. The Defendant
published a column which was said to give the impression that the Claimant had written it.
It was a parody. A claim was brought in passing off.
ISSUE: Whether a substantial number of readers had been misled.
HOLDING: The deception must be more than momentary and inconsequential. A parody
of writing style was capable of constituting the tort of passing off and being a breach of
Copyright Act rights even though there was a clear attribution. The evidence supported the
fact that the parody, which relief upon creating just enough, but not too much confusion,
had crossed the line. It was sufficient to establish that one of the possible reasonable
meanings of the publication would mislead a substantial number of people; but a single
meaning was required for the statutory tort of false attribution of authorship.
Moore v. News of the World [1972] 1 QB 441

An article was published which the plaintiff said left readers with the false apprehension
that she had written it. She brought a claim under the statutory tort of false attribution. The
judge was correct to direct the jury to make up their minds what the impression was to the
reader.
PAGE 21 OF 32
INFRINGEMENT
(1) The copyright in a work is infringed by any person who, without the licence of the
copyright owner, does, in relation to that work, any of the acts which the copyright
owner has the exclusive right to do pursuant to section 9.
(2) Copyright in a work is infringed by a person who, without the licence of the
copyright owner, imports into Jamaica for any purpose other than for his private
and domestic use, an article which he knows or has reason to believe is, an
infringing copy of the work.
(3) Copyright in a work is infringed by a person who, without the licence of the
copyright owner –
(a) possesses in the course of a business;
(b) sells or lets for hire or offers or exposes for sale or hire;
(c) exhibits in public or distributes in the course of a business; or
(d) distributes otherwise than in the course of a business, to such an extent as to
affect prejudicially the owner of the copyright,
an article which is, and which he knows or has reason to believe is an infringing copy of the
work.
PRIMARY INFRINGEMENT
The direct unauthorized acts in relation to the rights of reproduction, distribution, public
performance, communication to the public, and adaptation.
Turner v. Performing Rights Society [1943] 1 All ER 413

HOLDING: Where the proprietors of a factory relayed programmes of music broadcast by
the BBC and also gramophone records played at the factory and relayed by means of
loudspeakers to their employees, it was a performance in public even though all strangers
were executed from the factory.
PAGE 22 OF 32
SECONDARY INFRNGEMENT
The unauthorized acts in relation to dealing with infringing copies, providing the means of
making infringing copies and permitting or enabling public performance.
LA Gear Inc. v. Hi-Tec Sports plc [1992] FSR 121

The court considered at what point a work would constituted a finished work, and how this related to
the copyright in earlier forms of the work: ‘If, in the course of producing a finished drawing, the
author produces one or more preliminary versions, the finished product does not cease to be his
original work simply because he adapts it with minor variations, or even if he simply copies it, from
an earlier version. Each drawing having been made by him, each is his original work.’ The phrase
‘reason to believe’ involves the concept of knowledge of facts from which a reasonable man would
arrive at the relevant belief: ‘Facts from which a reasonable man might suspect the relevant
conclusion cannot be enough. Moreover, as it seems to me, the phrase does connote the allowance of a
period of time to enable the reasonable man to evaluate those facts so as to convert the facts into a
reasonable belief.’ ~ Morritt J
CBS Songs Ltd. v. Amstrad Consumer Electronics plc [1988] UKHL 15

FACTS: The Plaintiffs as representatives sought to restrain Amstrad selling equipment with
two cassette decks without taking precautions which would reasonably ensure that their
copyrights would not be infringed by its users.
HOLDING: Amstrad could only be liable as a joint tortfeasor. If they were not a joint
tortfeasor they would be under no tortious liability. A defendant who procures a breach of
copyright is liable jointly and severally with the infringer for the damages suffered by the
Plaintiff as a result of the infringement. The defendant is a joint infringer if he intends and
procures and shares a common design that infringement shall take place. A defendant may
procure an infringement by inducement, incitement or persuasion. But in the present case
Amstrad do not procure infringement by offering for sale a machine which may be used for
lawful or unlawful copying and they do not procure infringement by advertising the
attractions of their machine to any purchaser who may decide to copy unlawfully. Amstrad
are not concerned to procure and cannot procure unlawful copying. The purchaser will not
make unlawful copies because he has been induced or incited or persuaded to do so by
Amstrad. The purchaser will make unlawful copies for his own use because he chooses to
PAGE 23 OF 32
do so. Amstrad’s advertisement may persuade the purchaser to buy an Amstrad machine
but will not influence the purchaser’s later decision to infringe copyright.
Moorhouse v. University of New South Wales [1976] RPC 151

FACTS: The Australian Copyright Council arranged for a graduate of the UNSW to
photocopy an infringing portion of a book by Frank Moorhouse entitled, “The Americans”,
on a photocopier in the UNSW library. It then brought a test case against UNSW, claiming
that it had authorized the infringing reproduction by making photocopying machines
available in its library without exercising supervision over how the machines were used
and without displaying proper notices as to copyright exceptions and limitations.
HOLDING: The University was liable for authorizing the infringement. The Court
considered what it meant “to authorize” something. They adopted the definition that
“authorize” means “sanction, approve, countenance”. Something more than merely
providing the facilities for infringement is required. However, Gibbs J found the University
liable predominantly because they should have known that copyright infringement was
likely and had the power to prevent or discourage it but declined to do so. Jacobs and
McTeirnan JJ found the University liable because it had, by locating photocopiers within the
library, effectively extended an invitation to library patrons to infringe copyright. This
invitation was unqualified as the University had not done anything to indicate to users
what was allowed under copyright law.
It seems to me… that a person who has under his control the means by which an infringement of
copyright may be committed – such as a photocopying machine – and who makes it available to other
persons, knowing, or having reason to suspect, that it is likely to be used for the purpose of
committing an infringement, and omitting to take reasonable steps to limit its use to legitimate
purposes, would authorize any infringement that resulted from its use. ~ Gibbs J
PROOF OF INFRINGEMENT
Section 9(2)
For the purposes of subsection 1 [acts restricted to the owner of the copyright] references to
doing an any act in relation to any work means the doing of the act –
(a) in relation to the whole or any substantial part of the work; and
(b) either directly or indirectly,
PAGE 24 OF 32
and it is immaterial whether any intervening acts themselves infringe copyright.
(1) An unauthorized act in relation to the whole work
Antiquesportfolio.com v. Rodney Fitch & Co. Ltd. [2001] ECDR 51

Photographs of three-dimensional objects may be copyrightable
FACTS: The Plaintiff wished to set up a business, operating over the internet, to sell
antiques, and had contracted the Defendant, Rodney Fitch, to create its website, business
cards, logos, and advertising literature. The Plaintiff sued after it discovered that several of
its images used by Fitch were copies of photographs that were in Miller’s Antiques &
Encyclopaedia, an encyclopaedia of antiques. It alleged that Fitch had breached an implied
term of the contract, namely the supply of a website that did not violate another party’s
copyrights, sought the repayment of all monies paid, and moved for summary judgment.
Fitch counterclaimed for all monies owed.
HOLDING: Lord Justice Neuberger held in reliance upon Lister v. Romford Ice & Cold Storage
Company, that there was an implied term in the contract between the two parties, for the
goods supplied to be fit for the purpose for which they were commissioned. This comprised
a duty of reasonable care on the part of Rodney Fitch to not use material that was
knowingly copied from a third party.
(2) An unauthorized act in relation to a “substantial” part of the work
Schweppes Ltd. v. Wellingtons Ltd. [1984] FSR 210

FACTS: The Claimant produced the drink ‘Schweppes”. The Defendant produced a bubble
bath almost identical in appearance to a bottle of Schweppes, but called ‘Schlurppes’. The
Claimant sued for a breach of copyright.
HOLDING: Parody is irrelevant to the issue of infringement. This as a substantial part had
been copied, there was infringement.
PAGE 25 OF 32
Spelling Goldberg Productions Inc. v. BPC Publishing Ltd. [1981] RPC 283
Taking a copy of even a single frame of a cinematograph film may result in an infringement of
copyright
Ravenscroft v. Herbert [1980] RPC 193

FACTS: The Plaintiff had written a non-fiction book entitled ‘The Spear of Destiny’. He
claimed infringement of copyright by the Defendant in his books of fiction called ‘The
Spear’. Both books were centered on a spear exhibited in Vienna, said to have been the
lance which pierced Christ’s side on the cross. The allegation was that the story spun by the
Defendant had leant too heavily on the plaintiff’s work.
HOLDING: The Defendant’s novel copied a substantial part of a non-fiction work, the
Spear of Destiny. The novel contained as many as 50 instances of deliberate language
copying, as well as copying the same historical characters, historical incidents and
interpretation of the significance of historical events.
Designers Guild Ltd. v. Russell Williams (Textiles) Ltd. (2000) 1 WLR 2416
(see page 2)
Ladbroke (Football) Ltd. v. William Hill (Football) Ltd. [1964] 1 WLR 273
(see page 5)
(3) Indirect copying
Francis Day & Hunter Ltd. v. Bron [1963] Ch. 587

RATIO: The test of substantial similarity in copyright infringement cases is an objective
one. That assessment is for the court with such assistance from the evidence and parties as
it can muster. To be an infringement, there must be ‘some causal connection’ between the
form of the infringing work and the form of the copyright work.
To constitute infringement of copyright in any literary, dramatic or musical work, there must be
present two element: first, there must be sufficient objective similarity between the infringing work
and the copyright, or a substantial part thereof, for the former to be properly described, not
PAGE 26 OF 32
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. ~ Diplock LJ
King Features Syndicate Inc. v. O & M Kleeman Ltd. [1941] AC 417

FACTS: The owners of the copyright in drawings of ‘Popeye, the Sailor’ sued importers of
‘Popeye’ dolls and other toys. The Defendants contended that the copyright in the original
work had been lost by the operation of section 22 of the Copyright Act 1911 because the
designs were capable of registration under the Patents & Designs Act 1907 (although not
registered) and the Plaintiffs had previously licensed other companies to manufacture dolls
and other items based on those designs.
HOLDING: rejecting the argument, the condition of use or intention to use for multiplication
by an industrial process had to be satisfied or not at the date when the design first came
into existence. If it was not satisfied at that time then full copyright protection under the
1911 Act could not be lost by the grant of subsequent licences for the multiple reproduction
of the design. Notwithstanding similarity, products may still have been independently
designed and not copied.
(4) Copying and the Internet
Sony Music Entertainment (UK) Ltd. v. Easyinternetcafe Ltd. [2003] FSR 48

Copyright infringement liability is strict, so it is not a defence that the infringer doesn’t know he is
committing an infringing act. ~ Smith J
FACTS: The Defendant operates a chain of Internet cafes in the UK. It allows its customers
to save downloaded files to their own private directories on the company's servers. They
then could have café employees burn those files to CDRs for £5 (about $8) per CD.
According to Easyinternetcafe, its employees did not know what types of files they were
copying, because company policy prohibited employees from looking at the contents
of files, unless the customer agreed. Sony Music, Polydor and Virgin Records filed a
copyright infringement suit against Easyinternetcafe. Easyinternetcafe opposed the record
companies’ summary judgment motion on two grounds:
(1) it was an “involuntary copier” and shouldn’t be held liable for said reason; and
(2) it was not liable because British copyright law provides that it is not infringement to
make copies of “cable programmes” for private and domestic use to enable those
PAGE 27 OF 32
“programmes” to be viewed at a more convenient time. According to Easyinternetcafe,

internet transmissions are “cable programmes”, so its customers are permitted to make
copies to listen at more convenient times, and therefore it is not liable for permitting its
customers to do so. Easyinternetcafe also argued that its position was analogous to that of a
fax machine owner who received an infringing fax.
HOLDING: (1) Smith J concluded that the analogy was factually flawed. The only reason
the Easyinternetcafe employees didn’t know what they were copying was that the company
chose to keep the contents of customers’ directories confidential. This was not involuntary
but rather voluntary – that is, Easyinternetcafe didn’t know what it was doing simply
because it chose not to know.
(2) No evidence was introduced to show that music recordings had been copied for private
or domestic use, and Smith J refused to take judicial notice that Easyinternetcafe customers
were likely to use copies for those purposes rather than commercial ones. More
importantly, CDR copies of recordings were being made by Easyinternetcafe itself, and it
was not doing so "for the purpose of private and domestic use. It is copying for the
purposes of selling the complete CDR for £5 . . . [and] is making a profit out of it."
A & M Records Inc. v. Napster Inc. 239 F 3d 1004 (2001)

FACTS: The Defendant designed and operated a peer-to-peer (P2P) file-sharing network
allowing users to search, access, and download audio recordings stored in MP3 digital file
format on their own or others’ computers. Plaintiffs, corporate music producers,
complained that Napster users obtained copyrighted works from each other’s networked
computers without copyright holders’ authorization. Napster asserted that the service had
legitimate purposes: sampling works in deciding whether to make a purchase; accessing
works the users already owned (space-shifting); and receiving authorized distributions of
copyrighted works. Plaintiffs alleged Napster was liable for contributory and vicarious
copyright infringement as a result of its operation of the P2P network. The district court
granted plaintiffs a preliminary injunction, finding in part that Napster’s P2P file-sharing
service was not a fair use of copyrighted works. Napster appealed.
ISSUE: Whether transferring copyrighted works in digital audio files from someone else’s
computer through a P2P file-sharing network to download a copy, without authorization or
payment, constituted fair use.
PAGE 28 OF 32
HOLDING: The Ninth Circuit held that the district court did not err in ruling that transfer
of digital files through Napster’s service was not fair use. The court deemed the purpose of
the use non-transformative, noting that courts are reluctant to find fair use where the
original work is merely retransmitted in a new medium. The court also found the purpose
to be commercial, concluding that recurring exploitative copying constitutes commercial
use when made to avoid the expense of buying an authorized copy and that users also
received other copyrighted works in exchange for making their own files available for
download. Additionally, the court found that the nature of the works was creative (as
opposed to fact-based) and that the file-sharing process generally involved copying works
in their entirety, both weighing against a finding of fair use. Regarding the market effect,
plaintiffs introduced sufficient evidence to show that Napster caused a reduction in audio
CD sales and hindered plaintiffs’ ability to enter the digital sales market.
The court also found that the lower court did not err in determining that downloading for
sampling purposes is a commercial use. It determined that, even if users ultimately buy the
recording, free promotional downloads are highly regulated by the recording industry.
Furthermore, the court found that the users who downloaded for sampling purposes were
actually less likely to purchase an authorized copy. Regarding space-shifting, the court
remarked that courts have only permitted space shifting by the original user. Napster
impermissibly allowed space shifting between different, subsequent users.
https://onlinelaw.wustl.edu/blog/case-study-am-records-inc-v-napster-inc/
(5) No infringement of public performance right if performance is private
Performing Rights Society Ltd. v. Harlequin Record Shops Ltd. [1979] 1 WLR 851
Music played over speakers in a record shop a public performance for the purposes of the Act
~ Brown Wilkinson J
Brown Wilkinson J referred to Jennings v. Stephens [1936] Ch 460:

when deciding what was ‘in public’ the criterion “…was the character of the audience, and the
passage in my Lord’s judgment to which I have referred supplies a good test of that character. Is the
audience one which the owner of the copyright could fairly consider a part of his public?”
PAGE 29 OF 32
Ernest Turner Electrical Instruments Ltd. v. Performing Arts Society Ltd. [1943] 1 Ch. 167
Playing music to workers in a factory is a public performance
~ Lord Greene MR
“It is a question of law whether these performances ‘in public’ within the language of the statute, but,
in answering that question of law, the chief guide to the court is the guide of common sense. Some
cases on their facts fall on one side of the line, and some on the other. In the present case, having
regard to the character of the audience and all the relevant facts which bear on the matter, I have no
doubt that these performances were performances ‘in public’…”
Rank Film Production Ltd. v. Dodds [1983] 2 NSWLR 553

The use of a publicly accessible venue is not needed for a performance or communication to be “to the
public”
FACTS: Dodds was the owner of a motel. He played movies on a video recorder that could
be watched by guests on the television sets in their rooms.
HOLDING: ‘public’ includes a portion of the public, no matter how small. Dodds had
caused the films to be ‘seen or heard in public’ and had therefore infringed the copyright
owned by Rank Film.
(6) Performers’ rights in their performance

A performer’s rights are infringed by a person who, without his consent –
(a) makes, otherwise than for his private and domestic use, a recording of the whole
or any substantial part of a qualifying performance; or
(b) broadcasts live, or includes live in a cable programme service, the whole or any
substantial part of a qualifying performance.
PAGE 30 OF 32
DEFENCES
DEFENCES UNDER CONTRACT
Rule: There is no infringement if the acts done in relation to the copyright work were
done in pursuance of a valid contract.
(1) Assignment of Economic Rights

To be valid , the assignment must be in writing and executed by the copyright owner –
done by way of a deed. What may be granted is an assignment or licence (exclusive or non-
exclusive).
section 23
(1) … copyright in a work may be transferred as personal or moveable property by –
(a) assignment;
(b) testamentary disposition; and
(c) operation of law,
and a transfer… by way of assignment shall not be effective unless it is in writing and
signed by or behalf of the assignor.
(2) An assignment or other transfer of copyright may be partial, that is to say, limited so as
to apply –
(a) to one or more, but not all, of the things the owner of the copyright has the exclusive
right to do;
(b) to part, but not whole, of the period for which copyright subsists…
section 2
“exclusive licence” means a licence in writing signed by or on behalf of the owner of
copyright in a work authorizing the licensee, to the exclusion of all other persons, including
the person granting the licence, to exercise a right which would otherwise be exercisable
exclusively by the owner of the copyright…
(2) Assignment of Moral Rights

Moral rights conferred upon a copyright owner are not assignable – section 27, Copyright
Act of Jamaica
However, a consent or waiver may be given – section 28(4)
PAGE 31 OF 32
DEFENCES UNDER STATUTE
(1) Fair Dealing

To establish evade liability, the defendant must show
(i) their dealing with the copyrighted (ii) the dealing was fair.
work fell within one of the three
categories; and

Subject to section 54, fair dealing with a literary, dramatic, musical or artistic work for the
purposes of research or private study does not infringe copyright in the work, or in the case
of a published edition, in the typographical arrangement.
section 53 (1)
(1) Subject to section 54 –
(a) fair dealing with a protected work for the purposes of criticism or review of that or
another work or of a performance of a work; and
(b) fair dealing with a protected work (other than a photograph) for the purpose of
reporting current events,
does not infringe copyright in the work so long as it is accompanied by a sufficient
acknowledgement.
(2) No acknowledgement is required in connection with the reporting of current events by

means of a sound recording, film, broadcast or cable programme.
PAGE 32 OF 32

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LAW3760: INTELLECTUAL PROPERTY OUTLINE

PROPERTY OF O’NEIL R. CORINALDIE

REQUIREMENTS FOR PROTECTION section 5, Copyright Act of Jamaica

N.B. Works are eligible/qualify for copyright protection if:

CATERGORIES OF ELIGIBLE WORKS section 6, Copyright Act of Jamaica

(i) COPYRIGHT & PHYSICAL PROPERTY

Re Dickens (1935) 1 Ch 267

HOLDING: in favour of respondent, that copyright in an unpublished work was an

(ii) IDEA/EXPRESSION DICHOTOMY

HOLDING: Where a court of first instance considered a claim of breach of copyright, it

Norowzian v. Arks Ltd. (No. 2) [2000] EMLR 67

Fraser v. Thames Television Ltd. (1984) 1 QB 44

Bauman v. Fussell (1978) RPC 485

University of London Press v. University Tutorial Press [1916] 2 Ch 601

Sawkins v. Hyperion Records Ltd [2005] 1 WLR 3281

Feist Publications Inc. v. Rural Telephone Service Company Inc. 44 US 340

HOLDING: Facts cannot be copyrighted, however compilation of facts can generally be

Infopaq International A/S v. Danske Dagblades Forening C 5/08 of 2008

Walter v. Lane [1900] AC 539

Exxon Corporation v. Exxon Insurance Consultants International Ltd. [1982] RPC 69

University London Press

Express Newspapers v. Liverpool Daily Post

Rose v. Information Services [1987] FSR 254

Norowzian v. Arks Ltd. (No. 2) [2000] EMLR 67

Green v. Broadcasting Corporation of New Zealand [1989] 3 NZLR 18

Sawkins v. Hyperion Records Ltd [2005]

Lawson v. Dundas (1985) UKHC

George Henscher Ltd. v. Restawhile Upholstery (Lancs) Ltd. [1976] AC 64

OWNERSHIP & MORAL RIGHTS

Walter v. Lane [1900]

Creation Records Ltd. v. News Group Newspaper Ltd. (1997) 39 IPR 1

Cummins v. Bond [1927 1 Ch 167

Donoghue v. Allied Newspaper Ltd. [1938] Ch 106

Robin Ray v. Classic FM plc [1998] FSR 622

Section 9, Copyright (Amendment) Act to amend sections 13A&B of Copyright Act

Ray v. Classic FM [1998]

Kenrick & Co. v. Lawrence & Co. (1890) 25 QBD 99

section 15(1), Copyright Act of Jamaica

… The right of an author or director under this section is –

Section 15(1) (see page 17)

Snow v. The Eaton Centre Ltd (1982) 70 CPR (2d) 105

Confetti Records v. Warner Music UK Limited [2003] EMLR 790

(c) FALSE ATTRIBUTION – RELATED RIGHTS

Clark v. Associated Newspaper [1998] 1 WLR 1558

ISSUE: Whether a substantial number of readers had been misled.

Moore v. News of the World [1972] 1 QB 441

Turner v. Performing Rights Society [1943] 1 All ER 413

LA Gear Inc. v. Hi-Tec Sports plc [1992] FSR 121

CBS Songs Ltd. v. Amstrad Consumer Electronics plc [1988] UKHL 15

Moorhouse v. University of New South Wales [1976] RPC 151

and it is immaterial whether any intervening acts themselves infringe copyright.

(1) An unauthorized act in relation to the whole work

Antiquesportfolio.com v. Rodney Fitch & Co. Ltd. [2001] ECDR 51

(2) An unauthorized act in relation to a “substantial” part of the work

Schweppes Ltd. v. Wellingtons Ltd. [1984] FSR 210

Ravenscroft v. Herbert [1980] RPC 193

(3) Indirect copying

Francis Day & Hunter Ltd. v. Bron [1963] Ch. 587

King Features Syndicate Inc. v. O & M Kleeman Ltd. [1941] AC 417

(4) Copying and the Internet

Sony Music Entertainment (UK) Ltd. v. Easyinternetcafe Ltd. [2003] FSR 48

“programmes” to be viewed at a more convenient time. According to Easyinternetcafe,

A & M Records Inc. v. Napster Inc. 239 F 3d 1004 (2001)

(5) No infringement of public performance right if performance is private