SUBJECT MATTER OF

PROTECTION
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• Copyright is a property right, different from
property in a physical object.
• Example of 19th Century English author Charles
Dickens
• Issues-
– Whether Hogarth’s heirs,

– Dicken’s children’s heirs or

– Both were entitled to the money under the publishing

contract. If both were entitled, then how would they
share?
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• The Court decided:
• The bequest of “private papers” passed only the property in the
physical manuscript of The Life of Christ, not any copyright in it

• The bequest of Dickens’s “personal estate” passed all the author’s

copyrights, and would have done so even if the word copyright had
not been specifically mentioned

• The consent of both estates would be needed before the manuscript

of The Life of Christ could practicably be published.

– In Re Dickens [1935] Ch. 267 (U.K.: High Court & Court of Appeals)
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• Article 2(1) of Berne Convention- Copyright protects literary and
artistic works whatever may be the mode or form.

• Copyright protection shall extend to expressions of ideas but not

ideas themselves, procedures, methods of operation or
mathematical concepts
– Designers Guild Ltd v. Russell Williams (Textiles) Ltd [2001] 1 W.L.R.
2416 (U.K.: House of Lords)

• “Plainly there can be no copyright in an idea which is merely in the

head, which has not been expressed in copyrightable form, as
literary, dramatic, musical or artistic works…… The expression of
these ideas is protected” Lord Hoffman
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• Copyright does not subsist in style
• Norowzian v. Arks Ltd (No.2) [2000] E.M.L.R. 67 (U.K.:
Court of Appeal)

• “There is a striking similarity between the filming and

editing styles and techniques used by the respective
directors of the two films. But no copyright subsists in
mere style or technique….. The subject matter of the two
films being…very different from the other, similarities of
style and technique are insufficient to give the claimant a
cause of action against the defendants” Lord Justice
Nourse
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• Copyright does not subsist in merely news
• Wainwright Securities Inc. v. Wall St. Transcript Corp.,
558 F.2d 91 (U.S. Court of Appeals, 2d Cir. 1977)

– The plaintiff issued financial reports to subscribers. The

defendant summarized the reports in its own newsletter,
crediting the plaintiff as source. The court decided that there was
no copyright in news but there was in” the manner of expression,
the author’s analysis or interpretation of events, the way he
instructed his material and marshals facts, his choice of words,
and the emphasis he gives to particular developments.” The
defendants copied these elements in its summaries and had
therefore infringed the plaintiff’s copyright.
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• Copyright does not subsist in history, historical incidents
or facts.
• Hoehling v. Universal City Studios Inc., 618 F.2d 97
(U.S.: Court of Appeals, 2nd Cir., 1980)

– Hoehling wrote and published a book in which he theorized that

the crash of the Hindenburg airship in 1936 resulted from
sabotage by one Erich Spehl, a crew member who had placed a
bomb on the vessel. The defendant film company, with
knowledge of Hoehling’s book, produced a film which was based
on the same thoery and which depicted some of the same
incidents as the book. Hoeling’s claim for copyright infringement,
however failed.
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• Copyright does not subsist in scientific principles or
description of an art. Baker v. Selden, 101 U.S. 99 (U.S.:
Supreme Court, 1879)

– Selden wrote and registered the copyright, for a book explaining

how to apply the principles of double-entry bookkeeping so that
an entire day’s or month’s operation could be seen at a single
glance on a page. The book included some blank forms
demonstrating the principle. Bake produced some forms using
the same principle, but with different headings and differently
arranged columns. Selden estate brought an action for copyright
infringement against Baker, but failed.
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• Copyright does not subsist in mere principles or
scheme.
• Borden v. General Motors Corp., 28 F.Supp.330 (U.S.:
District Court , New York, 1939)

“ If it were conceded that postulates, axioms and

theorems of geometry in some distinctive arrangement
could be copyrighted as literary, what dramatic rights do
they carry? The six admonitions of the author in respect
to persuasion fall within the same limitation. They
express at most general thoughts- one of them new or
original…….ideas as such are not protected” Judge
Galston
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• Copyright does not subsist in methods of operation
• Lotus Development Corp.v. Borland International, Inc.,
49 F.3d 807 (U.S.: Court of Appeals, 1st Cir., 1995), aff’d
(4:4) 116 S.Ct. 804 (U.S.: Supreme Court, 1996)
• “ We think that “method of operation” as the term is used
in 102(b), refers to the means by which a person
operates something, whether it be a car, a food
processor, or a computer. Thus a text describing how to
operate would not extend copyright protection to the
method of operation itself…..We hold that the Lotus
menu command hierarchy is an uncopyrightable “method
of operation.” Judge Stahl for the majority of the Court of
Appeals.
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• General idea, e.g for entertainment, are not protected by
copyright
• Green v. Broadcasting Corporation of New Zealand
[1989] 3 N.Z.L.R . 18 (New Zealand: Judicial Committee
of the Privy Council)
• “The protection which copyright gives creates a
monopoly and “there must be certainty in the subject-
matter of such monopoly in order to avoid injustice to the
rest of the world”… The subject-matter of the copyright
claimed for the “dramatic format” of Opportunity Knocks”
is conspicuously lacking in certainty…..” Lord Bridge
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• Mere use of ideas in a work does not
infringe a copyrightable work.
• Bauman v. Fussell [1976] R.P.C. 485
(U.K.: County Court &Court of Appeals,
1953)
• “The mere taking of an idea would not be
an infringement” Judge Dale
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• Where does idea stop and expression start?
• Plix Products Ltd v. Frank M. Winstone (Merchants) Ltd
[1986] F.S.R. 63 (New Zealand: High Court), affirmed
[1986] F.S.R. 608 (New Zealand: Court of Appeals).
Infringement was found- “ There can be no general
formula by which to establish the line between the
general idea and the author’s expression of the idea. …”
Justice Pritchard

• Nichols v. Universal Pictures Corp., 45 F.2d 119 (U.S.:

Court of Appeals, 2nd Cir., 1930) No infringement was
found.
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• Idea and expression may merge
• Where there are just few ways of expressing the idea
• Where copyrightable subject matter is so narrow.

• “where the uncopyrightable subject matter is very narrow

so that the topic necessarily requires… if not only one
form of expression, at best only a limited number, to
permit copyrighting would mean that a party or parties,
by copyrighting mere handful of forms, could exhaust all
possibilities of future use of the substance….” Justice
Aldridge
• Morrissey v. Procter & Gable Co., 379 F. 2d 675 (U.S.:
Court of Appeals, 1st Cir., 1967)
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• What is protected by copyright –
Article 2 Berne Convention.

• LITERARY WORKS- a work

which is expressed in print or
writing

• In your own views do you think the

following works qualify for
protection as literary works?

– Timetable index
– Examination papers, Trade
catalogues
– Directories
– Football fixture lists
– List of programs
– Racing information service
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• University of London Press Ltd v. University
Tutorial Press Ltd [1916] 2 Ch. 601 (U.K.: High
Court)
• The plaintiff sued defendant for infringing
copyright in examination papers in mathematics.
The defendant denied that examination papers
were “literary” works.
• Justice Peterson : “Papers set by examiners are,
“literary work” within the meaning of the Act”
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• Letters- also protected as literary works

– The receiver may own the paper on which the letter is

written but the writer owns the copyright and can stop
the receiver from making copies of it.

• British Oxygen Company Ltd v. Liquid Air Ltd

[1925] Ch. 383 (U.K.: High Court). A firm which
wanted to expose a competitor’s business
practice was stopped from sending to
stockbrokers copies of a letter the competitor
had written to the firm’s customers.
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• What about short phrases?
• Exxon Corp. v. Exxon Insurance Consultants Ltd [1992]
Ch. 119 (U.K.: High Court and Court of Appeals)
– Issue: whether Exxon is an original literary work?

• Speech and interviews?

• Falwell v. Penthouse International Ltd, 215 U.S.P.Q. 975
(U.S.: District Court, West Virginia, 1981)

• Does recorded conversation or interview qualify as a

literary work?
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• Do blank forms qualify for copyright
protection?
• Bibbero Systems Inc. v. Colwell Systems
Inc., 893 F.2d 1104 (U.S.: Court of
Appeals, 9th Cir., 1989)
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• What about cards containing spaces and directions for
eliciting statutory information?

• Advertisement consisting of four commonplace

sentences?

• Titles of books?

• Themes?

• What about the de minimis concept; skill and judgement

and labour
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• DRAMATIC,
DRAMATICO-MUSICAL
WORKS,
CHOREOGRAPHY
• What are dramatic
works?
• Involve movement; story,
action
• Seltzer v. Sunbrock, 22
F.Supp. 621 (U.S.:
District Court S.D.
California, 1938)
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
MUSICAL WORKS WITH
OR WITHOUT WORDS

•A work consisting of
music exclusive of any
words or action
intended to be sung,
spoken or performed
with it.

•Lyricist and composer

–distinct copyright
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
MUSICAL

ARRANGEMENT
ADAPTATION
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• A publishes, for beginning and intermediate
players, an album of classical piano music that
is in the public domain. He inserts marks of
expression, phrasing and fingering to help such
players. B creates his own album, but uses
some of A’s selection containing the same
marks. Can A stop B from using such pieces?
– Consolidated Music Publishers Inc. v. Ashley
Publications Inc., 197 F.Supp. 17 (U.S.: District Court,
S.D., New York, 1961.
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• Title of a work
• Francis Day & Hunter Ltd v. Twentieth
Century Fox Corp. Ltd [1940] A.C. 112
(Canada: Judicial Committee of the Privy
Council)
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• ARTISTIC WORKS
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• Sculpture
• Greenfield Products Pty Ltd. v. Rover-Scott
Bonnar Ltd (1990) 17 I.P.R. 417 (Australia:
Federal Court)
– The plaintiff argued that a part of a lawn mower
engine (its drive mechanism) and the moulds from
which it was made were protected by copyright as
sculpture.

• What do you think?

 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• PHOTOGRAPHIC
WORKS

– Would photographs taken

by radars controlling speed
on highways qualify for
copyright protection?

– What about images taken

by safety cams in a shop?

• ARCHITECTURAL
WORKS
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• ARCHITECTURAL WORKS
• Construed broadly– includes
everything that can be
considered art irrespective of
form, mode of making,
purpose or merits.

• Can include ships, bridges,

and other utilitarian objects.
Paintings, drawings (2-
dimensional), works of
architecture; buildings and
other structures, sculptures or
any other work of plastic arts
and engraving (3-dimensional)
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• CINEMATOGRAPHIC WORKS

• Televisual works

• Videographic works,

• Video games and certain forms of

multimedia products.

• Form of dramatic works- not meant

to be performed but shown in front
of an audience.
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• Illustrations, maps,
sketches, and three-
dimensional works
relative to geography,
architecture and science

• Can be protected as
literary or artistic work

• Can be two-dimensional
or three-dimensional
works
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• COMPUTER-GENERATED WORKS
– Author is a person by whom the
arrangements necessary for creation of the
work are undertaken.

– Would a work of art designed through a

graphic software installed in a computer
attract copyright protection?
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• COMPUTER PROGRAMS
– Apple Computer, Inc. v. Franklin Computer Corp. 714
F.2d 1240 (3d Cir. 1983), 464 U.S. 1033 (1984)
– Issues:
– (a) whether copyright can exist in a computer
program expressed in object code
– (b) whether copyright can exist in a computer
program embedded in a ROM
– (c) whether copyright can exist in an operating system
program
– The court answered all the three issues affirmatively,
reaffirming and expanding the scope of protection for
computer programs.
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• DERIVATIVE WORKS
• Works derived from pre-existing works

• Protected since their creation requires special

knowledge and creative effort

• Two types of derivative works

– Translations, adaptations, arrangement and other
transformation of works
– Collections or compilations
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• Translations- same work put in another language.
– Must be original- much skill and judgement required.

– Copyright in a translation separate from copyright in the original work

– Some translations produced by computers, literal translation of a few

words from one language to another “fairly mechanical”- not protected.
Signo Trading International Ltd v. Gordon, 535 F. Supp.362 (U.S.:
District Court, Northern California, 1981

– “It is inconceivable that anyone could copyright a single word or a

commonly used phrase, in any language….It is also inconceivable that a
valid copyright could be obtained for a phonetic spelling, using standard
Roman letter, of such words of phrases on the translation or
transliterations….. For these reasons, plaintiff does not hold a valid
copyright.” Judge Henderson
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• Adaptation- preparation of new work in the same or
different work. Examples; recordings, reproduction. [Art.2
(3)]

Suppose a script is made of a well known ancient work

such as Homer’s Odyssey and is made into a film. Is this
adaptation of the Odyssey “original”?
Christoffer v. Poseidon Film Distributors Ltd [2000]
E.C.D.R. 487 (U.K.: High Court)

What about decision in Gormley v. EMI Records

(Ireland( Ltd [1999] 1 I.L.R.M. 178 ) Ireland: Supreme
Court)?
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• Compilations and collections- one work with contributions from
different authors for a specific purpose constituting a new work.
[Article 2(5)]
– Encyclopedia or anthology- protected if original in selection and
arrangement
• Feist Publications Inc. v. Rural Telephone Service Co. Inc., 499 U.S.
340 (U.S.: Supreme Court, 1991)
• “Factual compilations, may possess the requisite originality. The
compilation author chooses which facts to include, in what order to
place them, and how to arrange them. The choices as to selection
and arrangement , so long as they are made independently by the
compiler and entail a minimal degree of creativity, are sufficiently
original….. protect such compilations through the copyright law.
Thus even a directory that contains absolutely no protectible written
expression, only facts, meets the constitutional minimum for
copyright protection if it features an original selection or
arrangement.” Justice O’Connor
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• Expressions of folklore
• Need for protection of such works emerged in
developing countries

• An important element for developing countries

• Folklore as a means of self-expression and social

identity

• Folklore is commercialized without due respect for the

cultural and economic interests of the communities in
which it originates.
 SUBJECT MATTER OF
COPYRIGHT PROTECTION
• Some developing countries have tried to
regulate use of folkloric creations:
– Tunisia -1967 & 1994,
– Bolivia- 1968 & 1992
– Lesotho- 1989
– Malawi- 1989
– Ghana- 1985
– Nigeria- 1988 & 1992
– China- 1990
• Sui generis protection
 WORKS NOT PROTECTED
• Ideas

• News of the day

• Miscellaneous facts having the character of mere items

of press information

• Political speeches

• Speeches delivered in the course of legal proceedings