What is Copyright?

Copyright regulates the creation and use of a range of cultural goods such as books, songs, films and computer programs. The Copyright, Designs and Patents Act 1988 details what works are capable of copyright protection and what rights an owner of copyright has over the work. The CDPA gives the owner of copyright various rights. A copyright owner has the exclusive right to: copy the work; issue copies to the public; perform the work in public; broadcast or send a cable transmission; and make adaptations of the work. Copyright will be infringed where any of these acts are done without the consent of the copyright owner. The copyright owner may license, assign or sell these rights outright or in part or transfer them to an agent.

The existence of Copyright in a particular work restricts the uses that can be made of the work, thus having the potential to inhibit the public’s ability to communicate, to develop ideas and produce new works.

Copyright protection exists from the moment the work is recorded in material form, has no formal registration process and lasts for 70 years after the author’s death. This term is currently under review following the Gowers Review of Intellectual Property, which suggests that the term of copyright should in fact be increased. Although, one might argue that the extension of duration of copyright would further hinder creative re-use, it will not be looked at in detail in this paper due to space limitations.

History of Copyright

British copyright originated as a means to regulate the book trade. The Crown granted copyright to certain publishers, which gave them the sole right to publish books. No one else was allowed to publish books within England. It was also the case that unless an author was registered with one of these publishers their work would not see the light of day. Thus giving publishers a substantial monopoly. Therefore the publishing companies controlled what was seen as worthy to publish, thereby limiting an author’s ability to be creative. And as the Crown granted copyright to the publishers, the origin of Copyright lay in the Crown’s control over the spread of ideas in literary works. This was exercised by restricting the printing of books.

Although this situation is not much different today, there are a larger number of publishing companies today and with the developments in technology an author or any other creator does not require the assistance of publishing companies etc. to make their works available to the world. The effect of technology on the accessibility of work is largely outside the scope of this paper, however it will be considered later in this paper in the context of creative re-use. This aspect of copyright has little bearing on this paper, other than the mere fact that even with the first forms of copyright, companies were given a monopoly and power of the author and their creativity.

The Statute of Anne introduced statutory copyright for published works and unpublished works received copyright protection by virtue of common law. The stimulus to conferring protection was the developing technology that allowed an increasing number of articles to be printed easily and in a way that was also cost effective.

British copyright law, was codified into what we perceive today, granting rights in works of literature and art, by the Copyright Act 1911. The Copyright Act was amended and redrafted several times to take in to account changes in new technology, before the CDPA 1988 was enacted. 1886 saw the first international treaty on Copyright law, the Berne Convention. The Berne Convention has been amended several times since its enactment with the last amendment in 1979. The Berne Convention was a multinational agreement that enabled reciprocal Copyright protection to be secured in all member states so long as the author is connected with a member state or the work was first published in a member state. The United Kingdom was and remains a signatory to the Berne Convention.

Copyright has developed as technology has developed. In many respects it has come a long way since its origins as a right to publish books and control the flow of information to the public. However, its primary purpose of disseminating creative works to the public has not changed, only the means of communication. Therefore with the latest changes in technology, why is copyright law not promoting the dissemination of creative works but promoting the control copyright owners have over the works? A large reason for this is that the creative industries have more power over the changes in legislation than the authors and public. For example, the American legal regime is strongly influenced by politics and the entertainment industries. Although this happens on a lesser scale in the UK, “the UK seeks to implement laws that are harmonised with the EU, while at the same time, maintaining the integrity and viability of its entertainment industry which depends heavily on American developments. Consequently, the UK is influenced strongly by the U.S. and thus by the creative/entertainment industries.” The entertainment industry is a large profit-making sector of both the UK and the US and as such it is easy to see why legislatures feel obliged to listen to their desires.

The author believes that the “current heavy-handed tactics of large organisations, such as the Recording Industry Association of America, and the seemingly pro-owner copyright legislation in place, is creating a chilling of creativity in the market place.

Justifications for copyright

Intellectual property rights have three key features. First, they are property rights. Secondly, they are property rights in something intangible. Thirdly, they protect innovation and creations and reward innovative and creative activity.

“Copyright is said to be primarily concerned with encouraging the production of new works.” There are 3 basic arguments to support the recognition of copyright: natural rights, reward and incentive-based arguments. Each will briefly be considered.

Natural rights: One of the most basic justifications for intellectual property is that a person who puts intellectual effort into creating something should have a natural right to own and control what he creates. Such an entitlement is recognised is Art 27(2) of the Universal Declaration of Human Rights, which states:

“Everyone has the right to the protection of moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

In addition, according to Georg Hegel’s Personality theory, “creation is an extension of its author’s individuality or person, belonging to that author as part of his or her selfhood.”

“Some criticise the extension of natural rights theories to copyright, challenging the idea of individual creation of ideas, emphasising the social (or “˜intertextual’) nature of writing and painting. If works are seen less as the products of individual labour or personality, and more a reworking of previous ideas and texts, the claim to ownership seems weak.

Rewards: Copyright is granted because we think it is fair to reward an author for the effort expended in creating a work and giving it to the public. A criticism is that reward signifies that someone has done something pleasant and deserves gratitude. However, the threshold for copyright protection is very low and thus catches works which are created for their own sake such as letters and therefore do not deserve reward.

Another criticism is that of the nature of the reward, why should a person be granted an exclusive right? There are other systems of reward (such as the Booker Prize) that have fewer social and economic costs, and restrictions on creativity. Many authors don’t hold the copyright in their works; therefore they are generally more interested in moral rights, such as the right to be identified as the author, and acknowledgment of their work through systems such as the Booker Prize.

Incentive-based: Not based on what is right or fair to the author, like the previous arguments but based on the idea of what is good for society or the public in general. The argument presupposes that the production and public dissemination of cultural objects is an important and valuable activity, and that without copyright protection, the production and dissemination of cultural objects would not take place at an optimal level. The reason for this is that works are often costly to produce but once published can be readily copied and thus it is believed that people will just wait for someone else to create it and then copy it. This attitude would lead to a reduction in new cultural objects.

“It is believed that copyright protection serves as an incentive for the investment of time and capital in the research and development, which are required to produce inventive and creative works. By providing the owner with exclusive property rights, he enjoys the benefit of the stream of revenue generated by exploitation of his work, proportional to the popularity of the work.

There are criticisms for the incentive-based argument one of which is whether an exclusive property right is the appropriate incentive. After all, exclusive properties impose costs on people who wish to use the work, costs of policing rights and enforcement of owners and transaction costs on those who seek permissions.

The author does not give any one argument more weight than another. However, the arguments do not seem to take into account the actual application of copyright laws and the fact that most copyright owners are not in fact the author but the creative industries. Therefore the rewards and incentives go to organisations who have the money and power to obtain the works and the copyright in those works and not the person who used “˜sweat of the brow’ to create the work. As such the theories do not support the author but the creative industries and thus it is questionable whether copyright is in fact promoting creativity through either reward or incentive to authors.

Qualification for copyright & originality

There are several requirements for a work to obtain copyright, such as recorded in a material form, however the one relevant to this paper is the requirement that the work must be original. It should be noted that this only applies to literary, dramatic, musical and artistic works. It is very difficult if not impossible to state with any precision what copyright law means when it requires works to be original. It has been submitted that originality simply means that the work should originate from the author and that the test is that the author used sufficient skill, labour and judgment in creating the work. However, there is limited to no rules surrounding the test, as originality “must depend largely on the facts of the case and must in each case be very much a question of degree”. “It is important to appreciate that the question of whether a work is original often depends on the particular cultural, social and political context in which the judgment is perceived by the courts.

It is worth pointing out that English copyright law is concerned with originality of expression rather than originality of ideas.

It has long been established that it is important that authors should be rewarded not just for creating new works, but also for building upon existing works. This type of work is known as a derivative work. Obvious examples of such works are translations, abridgments and new editions. It is possible for copyright to exist in a derivative work even though it may infringe copyright in the existing work. As such a derivative work may be both original and infringing. In such a situation, any copyright that is acquired in a derivative work will be distinct from the copyright in any original work, which is incorporated into it. If the original work is still apparent in the new work, the author of the new work will need the licence of the copyright owner of the original.

For a derivative work to be treated as original the labour expended must of the right kind, the effort must bring about a material change in the work, and that change must be of the right kind. Each will briefly be considered.

The labour must of the right kind: Lord Oliver said in Interlego “only certain kinds of skill, labour and judgment confer originality”. In this sense it would be the wrong kind of labour where a direct or slavish copy of another work or where a work is photocopied. In MacMillan v Cooper the Privy Council held that the reduction of a book to make it suitable for use in schools was not original and thus not protected by copyright. The court held that such a process did not require “great knowledge, sound judgment, literary skill or taste’. The court acknowledges that labour was spent on making the reduction but it was not the right kind of labour.

The effort must bring about a material change in the work: The skill, labour and judgment must have given to the original work “some quality or character which the raw material did not possess, and which differentiates the product from the raw material”. Although a change may have occurred as a result of the effort of the author, that change may not have been regarded as sufficient to confer originality on the resulting work. Where the change is material, the work will be original as was the case with arrangements of music in ZXY Music.

The change must be of the right kind: To confer copyright in the new work the skill and labour must produce a change, which is relevant to the category of work in question. For example, changes to drawings need to be visual and not numerical.

In relation to films, sound recordings, and published editions the requirement is that the work is not copied from a previous work of the same kind. An issue with this criterion is in relation to music. Would a compilation of parts of sound recordings (such as a “˜megamix’) be protected as a separate sound recording? “If the “˜megamix’ is compiled from pre-existing recordings, then nothing is protectable. As each pre-existing element is excluded on the basis that it is copied from another sound recording.” However, it might be the case that a “˜megamix’ would indirectly create an original musical work or that the process of digitization creates an original literary work. In a creative sense it is believed that a compilation of sound recordings should be protected as a sound recording, as the compilation is more than the sum of its parts. Skill, labour and judgment have been used in creating a new coherent musical work.

The threshold of originality within copyright law (sufficient skill, labour and judgment) appears to be sufficiently low not to stifle creative re-use. Taking the example above of creating a “megamix” and thus a new piece of music, the author is exhibiting skill, labour and judgment in choosing the samples of music that will fit together, and mixing the samples in a melodic arrangement. The result being a new and distinct piece of music. By carrying out the steps to produce a “megamix” the author has been creative and re-used existing material to produce something new and innovative. The use of existing music has not diminished the creativity of the author and the originality of the new piece of music. It is possible that the new work could be seen to have promoted the value of the original piece of work. For example, the musician Dido became popular by granting Eminem the right to use a section of her song “Thank You” in his song “Stan” as a single. Although the relevant copyright hurdles were met in this example, it demonstrates how using samples can have a positive outcome for the original author.

On the surface it appears it would be rare for a new piece of work of such creative re-use would fail the originality test of the English legal system. However cases such as MacMillan mean that one could not be completely certain of this. Even if the new work passed the test of originality and copyright was granted it would very likely be challenged under infringement of copyright.

Infringement

Copyright in a work is infringed if any of the rights conferred on the copyright owner are done by someone who is not the copyright owner and without the owner’s consent. The rights are detailed in sections 17 to 21 of the CDPA. The two we are concerned with in this paper are the exclusive right to copy the work and to make adaptations of the work.

Copying the work

To copy a work means to “˜reproduce the work in any material form’. This means that as well as protecting owners against identical copying of the work, a defendant may still infringe works where they make a non-identical copy of a literary, dramatic, musical or artistic work. Reproduction of a sound recording and film has a lower threshold with the subject matter of a sound recording being defined as “the recording of sounds from which the sounds may be reproduced”. Consequently it is the recording of the sounds that is protected and not the content per se. Similarly it is the recording of the images that are protected in relation to films and not the image itself. As such copyright in a sound recording is not infringed where a person remakes (or “˜covers’) the same song or records the same song performed in a similar style. However, it should be noted that while an entrepreneurial copyright will not be infringed where a new recording of identical or similar sounds or images is made, it may infringe copyright in an underlying work such as the music, lyrics or screenplay.

Adaptation

The copyright owner of an artistic work is given the exclusive right to make an adaptation of the work. In English law the adaptation right is restrictively defined to making a translation or a dramatisation of a work and is not a right to control all derivative works, like the right in USA copyright law.

As such creative re-use of a work would potentially only create the infringement of copying.

In order to establish infringement it needs to be established that the defendant’s work derived from the claimant’s work. There needs to be a causal link between the work used by the defendant and the new work. It is down to the claimant to prove that the defendant’s work derived from his copyrighted work and this will be a matter of fact based on the individual case. The court is likely to imply a causal link where the similarities are numerous or so individual that the possibility of their having been independently conceived by the defendant is implausible. It is possible for the defendant to use as a contra argument that the work was created independently. However this would not be possible in the case of creative re-use. Therefore in the context of creative re-use a claimant is likely to succeed in showing that the defendant’s work derived form the claimant’s.

It will also need to be established whether the restricted act, in the case of creative re-use this would be copying, has been carried out in relation to the work as a whole a or substantial part of it. In determining whether a substantial part of the claimant’s work has been copied the court will look at what has been taken and its importance to the claimant’s work. This is a matter of impression and is determinable on the quality of the work taken in relation to the claimant’s work rather than the quantity taken.

As the creative re-use of a work is likely to involve the copying of some of the claimant’s work the test for a substantial part will be applied.

There is however a fine dividing line between copying the idea of a work and copying its expression. Therefore if a defendant could show that it was only the idea that was copied it is possible that the new work would not be held to be infringing the claimant’s work. An example of this is the case regarding Dan Brown’s novel, The Da Vinci Code (DVC). In this case it was held that 11 of the 15 elements raised were copied from The Holy Blood and The Holy Grail (HBHG) but the elements did not form the central theme of HBHG. Lord Justice Mummery described the elements that were copied as merely an assortment of 11 items of “historical fact and information, virtual history, events, incidents, theories, arguments and propositions”. In this case the courts favoured creativity and the public domain. The case has essentially given the suggestion of a lower level of protection for historical works. It needs to be noted however that it is possible to infringe copyright by copying the story line, plot and characters that form part of a novel.

The decision in this case was significant in terms of creative re-use as the works of many authors has come about after being inspired by someone else’s, or after researching, reading, hearing or seeing another’s work. If this case had decided that there was infringement between the two books, it would have opened a potential floodgate for claims of theft of ideas. This would have been a disaster for the creative industry and would not only open the floodgates for existing work but would likely have caused concern for new works within this area of the creative industry within the UK, causing worry that by taking inspiration from another’s work they will be infringing ideas rather than the expression of those ideas. This would possibly lead to authors finding publishers outside of the UK in order to avoid the problem.

In relation to an artistic work the scope of protection was considered in Krisarts SA v Briarfine, where it was considered taking a photograph or painting from the same view and angle as in a copyrighted work was potentially infringement. It was held that artists should not be prevented from using the same scenes as their subject but there could be certain elements of the scenes that were “˜distinctive’ enough to warrant protection. For example the balance of features in the foreground, middle ground or far ground and the images that have been inserted in the scene. This case suggests that it is possible to use other artists’ works as inspiration, even if you are going to create a work using the same scene and angle, without infringing the other artists’ works.

As to whether creative re-use will be seen as infringing will depend on the degree of that use. If the copyrighted work is used as inspiration with possibly minimal features taken, such as location or general gist of a theme, copyright would not be infringed. However, if one wanted to use sections of copyrighted musical works to help create a new musical work it is more likely that copyright in those works would be infringed. As such creative re-use has two ends to the scale in relation to infringement and there appears to be a fine line between using copyrighted work as inspiration and the more extreme end of the scale of further developing copyrighted works to create new works.

Accordingly whether a new work developed through creative re-use will fail for infringement will depend on what end of the scale the level of re-use falls.

Defences

There are defences to copyright infringement such as fair dealing. However, the defence of fair dealing can only be used for the purposes of research or private study; criticism or review; or reporting current events. The defence of fair dealing within the UK is not a suitable defence for creative re-use.

In the US the defence of fair use is wider and used more as a general defence. The fair use defence is set out in the Copyright Act of 1976, 17 U.S.C. Section 107. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• the effect of the use upon the potential market for or value of the copyrighted work.

All of these factors have merit but the first shall briefly be considered.

The first factor is about whether the use in question is to stimulate creativity for the enrichment of the general public, or to simply make personal profit. To justify the use as fair, it must be shown that it either advances knowledge or the progress of the arts through the addition of something new. “A key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative.

An example of the fair use defence succeeding where the new work is a creative re-use, is where Tom Forsythe appropriated Barbie dolls for his photography project “Food Chain Barbie.” It was held that Forsythe’s work parodied Barbie and the values she represents. However, contrast this with Jeff Koons sculpture of “String of Puppies” which was based on Art Rogers’ photograph “Puppies”. Koons last the parody defence because his work was not presented as a parody of Rogers’ photograph in particular, but of society at large, which was deemed insufficiently justificatory.

It can be seen that the US fair use exception allows “˜transformative works’. “Such new works can create new value, and can even create new markets.

The Hon. Judge Pierre Leval explained, in relation to a transformation work that “the use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original.” This allows some scope for creative re-use but still limits the way in which creators can use works and is not consistent with the common forms of re-use, building on what went before rather than changing the medium.

It is questionable whether there can ever be a true distinction between use for a commercial nature or for non-profit educational purposes as many, if not most, secondary uses seek at least some measure of commercial gain from their use. This matter has been considered by some US Circuits who have deemphasized this aspect of the factor.

In order for authors to safely be able to use the defence of fair dealing the UK law needs to adapt to be more in line with the US defence of fair use. This would allow greater creative freedom and would open up the UK to more of the creative industries and make it a competitor to the US creative industry.