Copyright
Copying
Jane Lambert
Last
updated 5 May
2004
The right to copy a copyright work is restricted to the copyright owner by s.2 (1) and s.16 (1) (a) of the Copyright, Designs and Patents Act 1988. The restriction applies to every description of copyright work though different provisions apply to different types of work (s.17 (1)). This right to restrict copying is referred to as the right of reproduction in art 9 of the Bern Convention and art 2 of the "Copyright in the Information Society" or Copyright and Related Rights Directive (Directive 2001/29).
Literary
Musical, Dramatic or Artistic Works
Copying in relation to a
literary,
dramatic,
musical
or
artistic
work means reproducing the work in any material form including storing
the work in any medium by electronic means. In the case of an artistic
work this includes making a copy in 3 dimensions of a 2 dimensional work
and the making of a copy in 3 dimensions of a 3 dimensional work.
Films and
Broadcasts
S.17 (4) of the 1988 Act as amended includes within the definition
of copying making a photograph of the whole or any substantial part of
any image forming part of a
film
or
broadcast
.
Typographical
Arrangements
Copying in relation to the
typographical arrangement
of a published edition means making a facsimile copy of the arrangement
(s.17 (5) of the 1988 Act). In
Newspaper Licensing Agency Ltd. v
Marks and Spencer Plc [2001] UKHL 38 the House of Lords
held that the copyright in an edition of a newspaper is not infringed by
making copies of cuttings that have been distributed lawfully by a
licensed press cutting service and forwarding such copies to individuals
within an organization. "Published edition" for the purposes of
the Act meant "the product, generally between covers, which the
publisher offers to the public" and facsimile meant the edition as a
whole.
Transient or
Incidental Copies
In respect of any description of copyright work, s.17 (6) of the Act
includes within the definition of copying the making of copies that are
transient or incidental to some other use of the work.
Meaning of
"Copying"
In Francis Day & Hunter Ltd v. Bron [1963] Ch. 587, Diplock LJ
said at page 583 that copying involves 2 elements:
"first, 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; secondly, the
copyright work must be the source from which the infringing work is
derived."
Where those elements occur, the tactical burden of proof shifts to the defendants who must provide a credible explanation for the apparent similarity. A useful paper on the topic entitled "Proof of Copying" appears on the website of a New Zealand barrister, Andrew Brown QC at www.andrewbrown.co.nz..
