COPYRIGHT STUDY SHEET

What is Copyright?

 It is an automatic property right that subsists in certain specified types of work as

provided by the relevant jurisdiction’s legislation
 The owner of a copyright has certain economic rights in the work. Essentially, the
copyright works as a protection from other persons exploiting those rights which
belong to the owner such as the right to reproduce by selling copies without
compensation to the owner who may or may not be the author of the work.
 They may grant permission to others to exploit the work by granting a license.
Ownership of a copyright enables persons to sue for infringement if such actions are
taken without a license.
 However, perhaps the most important tenet of copyright law is that copyright
subsists not in an idea, but in the expression of an idea thus it is upon the courts to
decide whether an action infringes on an owner’s rights.
 Firstly, one needs to determine if copyright even subsists in the specific work.
Subsistence

 Section 6(1) of the Barbados Copyright Act lists the following categories of work as
those in which copyright may subsist: (a) original literary, dramatic, music or artistic
work; (b) sound recordings, films, broadcasts or cable programmes; (c) typographical
arrangements of published editions
 The section continues to say that copyright may subsist in a work irrespective of its
quality or the purpose or which it was created.
 For copyright to subsist in a work there needs to be: (i) Fixation per section 6 (2) of
the Barbados Copyright Act, (ii) Originality (iii) Satisfaction of the De minimis
principle
 The difference between the Trinidad and Tobago Copyright Act and the Barbados
Act:
o Barbados’ list is definitive of 8 outlined categories while Trinidad’s section
includes any works that are “original intellectual creations”.
o We see that the language is broader and perhaps leads to a broader
interpretation

1. ORIGINALITY
o Does not mean that the work has to be unique
o The word originality is more concerned with the manner in which the
work was created
o Is taken to require that the work in question ORIGINATED from the author
and it was no copied from another work as stated in Ladbroke v William
Hill by Lord Pearce.
 2. FIXATION
o Work needs to be in tangible form
o some works’ very existence implies tangibility e.g. sound recording or
painting. However, others like a poem recited from memory without
being written down is an example of a literary work. In such cases,
copyright law requires that copyright does not subsist unless and until
they are fixated in writing or otherwise.
o In some cases, the work is not fixated by the author or even with the
author’s permission. This is not essential for a copyright vested in the
author to exist. If a person delivers an impromptu speech without having
made any notes previously and member of the audience records the
speech verbatim in writing, then the speaker will be the author of the
written work for copyright purposes.

3. DE MINIMIS PRINCIPLE
o The court uses the principle de minimis non curat lex which means that
the work is insufficiently significant to be afforded copyright protection,
in order to make the proper distinction between works that should be
considered a proper subject matter of copyright and those that should
not.
o For instance, in the case Francis Day & Hunter Ltd v Twentieth Century
Fox Ltd. the court held that the title ‘The Man who Broke the Bank at
Monte Carlo’ was insufficiently substantial for copyright purposes.
o It is arguable that a small number of words may qualify under the de
minimis principle if they are a result of a significant amount of work
involving the exercise of skill and judgement.
o However, in the case of Exxon Corporation v Exxon Insurance, the courts
did not accept the argument that the considerable amount of market
research that had gone into selection of the word Exxon could mean that
the word was an original literary work.
o The decision also is rooted in the rationale in Hollinrake v Truswell that to
qualify as literary work, it must provide information or instruction or
pleasure in the form of literary enjoyment and single words or titles are
not taken to do so.

 Literary Works
o The relevant Copyright statutes tend not to define what exactly is meant by
literary work and thus, judicial guidance and instruction is critical in this area.
o Per Hollinrake v Truswell, a literary work must offer information, instruction
or pleasure. It is any work other than a dramatic or musical work, which is
written, spoken or sung.
o It must convey an intelligible meaning to the relevant public and hence can
include mathematical tables, braille and computer programmes.
 o It is sufficient that the work is understood by a defined group of persons to
be a literary work.
o University of London Press v University Tutorial Press adds further guidance
with Peterson J’s judicial opinion that “…the words ‘literary work’ cover work
which is expressed in print or writing, irrespective of the question whether
the quality or style is high”
o As previously mentioned, a title is not considered to be literary work as it
does not involve literary composition (Francis Day). The exception was
outline in Dicks v Yates that it may be so where ‘a whole page of title or
something of that kind requiring invention’ is under consideration.
o In Walter v Lane, the court was of the opinion that when sufficient labour,
skill and judgement is exerted in taking and transcribing notes, although the
speech itself was not the work of the reporter, copyright subsisted in the
article itself as an original literary work.

 Dramatic Works
o There is no definition of a dramatic work in the relevant Caribbean
legislation, however, it is widely regarded as one that includes a work of
dance or mime.
o In the case of Norwozian v Arks (No. 2), the court defined a dramatic work as
“a work of action, with or without words or music, which is capable of being
performed before an audience”.
o They must be, just as literary and musical works, be recorded for copyright to
subsist in them.
o In Green v Broadcasting Corporation of New Zealand, it was held that the
dramatic format of a television show had t have some certainty in it subject
matter for that format to be entitled to copyright protection. In this case,
Green who devised the show Opportunity Knocks claimed copyright in the
scripts and dramatic format of the show. However, the court found that it
lacked certainty for want of material form, or because the respondent had
copied only the idea and not the expression of the idea.
o However, the recent decision of Banner Universal Motion Pictures ltd. v
Endemol stands as authority that television formats are potentially eligible
for copyright protection under UK copyright law as dramatic works even if
the format contains elements of spontaneity and events vary from episode.
For this to succeed, there must be a number of clearly identified features
which when taken together clearly distinguish the how in question from
others of a similar type; and that those distinguishing features must be
connected with each other in a coherent framework which can be repeatedly
applies so as to enable the show to be reproduced in recognisable form.
o Green is still considered to be good law for the position that in order for a
dramatic format to be protected, there must be certainty of subject matter
and sufficient unity to be capable of performance.
 Musical Works
o Again, music is not defined by the relevant statute.
o However, in Sawkins v Hyperion Records, Lord Justice Mummery stated that
“the essence of music is combining sounds for listening to. Music is not the
same as mere noise. The sound of music is intended to produce effects of
some kind on the listener’ emotions and intellect. The sound may be
produced by an organized performance on instruments played from a
musical score, though that is not essential for the existence of music of
copyright in it”
o A musical work is exclusive of any words or action intended to be sung,
spoken or performed with music
o A song therefore has two copyrights: one in the music and another in the
lyrics.
o A relatively small number of notes and chords are sufficient for copyright
protection as a dispute as to the ownership of the copyright in a previous
Channel 4 logo music, comprising of a four-note theme in an orchestral
setting demonstrated.
o An arrangement of an existing piece of music may attract its own copyright
alongside the copyright subsisting in the prior work. If the arrangement is
made without the permission of the original copyright owner, then
infringement has occurred.

 Artistic Works
o Includes several different types of works and may overlap with design law
o The Barbados Act defines ‘artistic work’ as (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 (c) any other work of artistic craftsmanship.
o According to Jacob LJ in Nova Productions, all things falling within the artistic
work category have one thing in common int hat they are all static, non-
moving.
o The formula ‘irrespective of artistic quality’ ensures that personal taste or
preference is no bar to copyright to protection and it also safeguard
utilitarian and functional works such as drawings for engineering equipment,
photographs made for scientific purposes, etc.
o Sculptures:
o A very generous view of the meaning was taken in the Court of Appeal of
New Zealand in Wham-O Manufacturing Co v Lincoln Industrie Ltd, in which it
was held that a wooden model in which moulds were made to produce
frisbees was a sculpture as the moulds were held to be engravings.
o In Metix v GH Maughan, laddie J accepted that it was not possible to say with
precision what is and what is not a sculpture. However, he considered the
submission that a sculpture is a three-dimensional work made by an artist’s
 hand. However, this is difficult to reconcile with the fact that copyright
subsist irrespective of artistic quality.
o There are limits to what can be considered a sculpture. For instance, in
Creation Records v News Group Newspapers, an arrangement or objects and
people lowered into a swimming pool for the purpose of taking a photograph
for an album cover was held not to be a sculpture, nor a collage as such a
work required the essential elements of two or more items being stuck
together.
o In the case of Lucasfilm Ltd v Ainsworth, Mann J had to decide whether the
helmets worn by the Stormtroopers in the Star Wars film were sculptures. IN
holding that they were not, he set out guidance factors to assist in the
consideration which included the word sculpture’s original meaning, no
judgement regarding artistic worth, the existence of visual appeal, the
process of fabrication and the purpose or use of sculpture being wholly or
partially utilitarian.
o With hs judgement, Mann J respectfully disagreed with the decision in
Wham-O, meaning that artistic purpose must be resent whether or not the
finished product achieves that purpose, objectively or subjectively.
o It can thus be stated that the phrase “irrespective of artistic quality” must be
intended to prevent challenges to copyright subsistence based on a
perceived lack of artistic merit rather than an intention to onfer copyright
protection on three-dimensional articles designed for purely functional or
utilitarian purposes.