The Intellectual Property Law Seeks to Protect

As the facts are not clear whether the claimants Dwayne Preston and Horace Thompson should take appropriate action to against the editor of ‘Eagle Eye’ John Armstrong or journalists employed by the magazine, it is submitted that John Armstrong may be the high possibility defendant to the case as he has full control to two features in the forthcoming issue written by the journalists and he has rights to decline the article to be published if he found it is infringing the copyrights of claimants.

The copyright law in the UK is largely governed by the Copyright, Designs and Patents Right Act 1988 (herein-after referred to as CDPA 1988). In compliance with the Berne Convention’s rule that the enjoyment and exercise of copyright should not be subject to any formality [2], copyright arises automatically providing the work qualifies for copyright protection.

Copyright is an intangible property right which gives the authors the right to control the use and exploitation of his creation in return of the creativity, effort, time and money that he vested in producing his work. It subsists in several works as listed exhaustively in the CDPA 1988 and work can only attract copyright if it falls within the descriptions of any of the categories of work provided for by the CDPA 1988.

An autobiography “My Life” is a book about the life of a person written by Newcastle United player Dwayne Preston. Dwayne Preston may claim that John Armstrong infringed of copyrights which include brief paragraphs from the autobiography to the ‘Eagle Eye” feature article. This is more likely to be copyrights subsist in a book pursuant to s. 1(1) of CDPA 1988.

An autobiography categories as literary works and there are not limited to works of literature but it must expressed in print or writing. Literary work is defined as “any work, other than a dramatic or musical work, which is written, spoken or sung” under s. 3(1) of CDPA 1988. A useful guidance was set out by the courts in the case of Hollinrake v. Truswell [3] where a ‘book’ to be qualified under the Literary Property Act 1842, the creation must afford ‘either information and instruction, or pleasure, in the form of literary enjoyment’. [4]

In order for John Armstrong to against the claims from Dwayne Preston, firstly, it is to establish whether Dwayne Preston’s autobiography is qualified to be protected under copyright law. In order to be protected, a work must be original and an original work must be in writing pursuant to s. 3(2) of CDPA 1988 as copyright law only protects the form of a work but not the underlying idea of a work.

On facts, claimant is the owner of the work who has exclusive right under s. 2(1) CDPA 1988. John Armstrong is facing in an action of infringement of copyrights which include brief paragraphs from the best selling autobiography ‘My Life’ to the feature article of ‘Eagle Eye’, if the claimant could prove that defendant has done some restricted acts in relation to the work concerned such as copy or issue copies under s. 16 of CDPA 1988.

As per s. 16(2), copyright in a work is infringed by a person who without the license of the copyright owner does; prima facie the claimant may succeed in an action for copyrights infringement. Thus, restricted acts are defined in s. 17(1) the copying of the work is an act restricted by the copyright and s. 18(1) clearly stated that copies of the work publish to the public is an act restricted by the copyright. It is submitted that John Armstrong may fail to defence this offence but the courts will consider the importancy of the brief paragraphs whether it is a substantial part has been copied.

The threshold for originality in UK is low. This is seen where Mr. Justice Peterson in University of London Press Ltd. v. University Tutorial Press Ltd. [5] stated that, “…the Act [6] does not require that the expression must be in an original or novel form, but that the work must not be copied from another work – which it should originate from the author. [7] Besides, the author must also have expanded “skill, judgment or labour” [8] in producing the work. But even if the threshold is low, works that do not meet this minimum standard will not attract copyright protection.

In order for Dwayne Preston to prove that his work has been infringed, two elements propounded in Francis Day & Hunter Ltd. and Another v. Bron and Another [9] must present: first, the copyright work must be the source from which the infringing work is derived; secondly, there must be sufficient objective similarity between the infringing work and the copyright work, or a substantial part thereof, for the former to be properly described, not necessarily as identical with, but as a reproduction or adaptation of the latter. [10]

In determining whether an infringement has occurred, the courts will consider the causal connection between John Armstrong and Dwayne Preston’s work and the act of copying has been carried out in relation to the work as a whole or any substantial part of it, either directly or indirectly by referring to s. 16(3) of CDPA 1988. A substantial part is not defined in the Act but it has been affirmed by the courts that substantially must be decided qualitatively rather than quantitatively and it was stated by Lord Reid in the case of Ladbroke v. William Hill [11] .

Lord Reid in Ladbroke (Football) Ltd. v. William Hill (Football) Ltd. [12] stated that in deciding whether there is copyright infringement, the work concerned must be assessed as a whole and wrong decision might be reached if the assessment is to be made by dissecting the whole into separate parts and then submitting that there is no copyright in the parts. This is further discussed in Baigent v. The Random House Group Ltd. [13] where it was concluded that the issue is not whether the part in the claimant’s work was qualified as original literary work but rather, whether the parts taken by the defendant constitute a substantial part of the claimant’s work.

In Designer Guild Ltd. v. Russell Williams (Textiles) Ltd., [14] the House of Lords approved the inference made by Mr. Lawrence Collins Q.C. [15] that the defendant’s design was derived from the design of the claimant on the grounds of the similarities between the two designs and the proof of access to the copyright work by the defendant.

Lord Justice Diplock in Francis Day & Hunter Ltd. and Another v. Bron and Another [16] indicated that the similarity between the works coupled with the proof of access to the copyright work by the infringer does not call for an irrefutable presumption that the copyright work is being copied but it shifts the burden of proof and raise a prima facie case for the defendant to answer. [17] This approach was affirmed by House of Lords in LB (Plastics) Ltd. v. Swish Products Ltd. [18]

On facts, Dwayne Preston may bring another claim against John Armstrong that the ‘Eagle Eye’ article claims that claimant is a product of the premiership culture which encourages them to pursue material status and the empty cult of celebrity over skill and integrity. The defences that John Armstrong could argue to the criticism are public interest and fair dealing.

John Armstrong may raise public interest as the first defence that no rule of law preventing the enforcement of copyright on grounds of public interest or otherwise under s. 171(3) of CDPA 1988. There will be no infringement if public interest outweighed personal rights. The question is whether the criticisms made in ‘Eagle Eye’ article has the interest to the public or mainly lower down the reputations of the claimant. It is submitted that the defendant is a football player and it is likely to be concerned on the performance so it is more on public interest. Thus, it is more likely as a good defence to John Armstrong as per Lord Justice Aldous stated in the case of Hyde Park Ltd. v. Yelland [19] which the court might choose not to enforce copyright when it is identified where the work is immoral, scandalous, or contrary to family life. [20] Clearly, the facts are not in one of these circumstances, the court might approve public interest to John Armstrong which allowing him to publish the article.

John Armstrong may raise another defence of fair dealing to the criticism. Lord Denning stated in the case of Hubbard v. Vosper [21] that it must consider the number and extent of the quotations and extracts [22] in applying fair dealing. Besides that, proportions are playing important role in fair dealing. It may consider unfair if take long extracts and attach short comment but short extracts and long comments may be fair. [23] It is submitted that John Armstrong may fail in fair dealing as a defence as the article claims that Preston’s book demonstrates that he has a complacent cocky attitude and that he, like many other players but included short comments and criticisms to the passage.

As a conclusion, John Armstrong may fail in defending his first offence of infringing claimant’s copyright to the brief paragraphs but it is submitted that the facts remain unclear in the brief paragraphs whether it is a substantial part or not. This may leave to the court to decide. John Armstrong may succeed in public interest to the criticisms in the ‘Eagle Eye’ article.