Copyright ? Yours or mine ?

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For those who employ their time in writing, for a living and leisure alike, some understanding about the extent of protection our legal system can offer is hardly negligible. While the subject of Intellectual Property Law is quite a complicated area of law, I being a learner of this subject, feel obliged to clarify some of my fellow bloggers’ misconception of the copyright law. In fact I have been encouraged by Magliabecchi to write something on this area ever since an article titled 超凡抄襲 was posted on our blog.

Unique Nature of Copyright

Intellectual Property Law is the study of copyright, design, patent, trademark and passing-off . And anything written or published surely does not fall within the governance of the law of design and patent. Nor does it have anything to do with the law of trademark since only distinguishable mark of product or service presented in graphical form is registrable under the Trademark Ordinance (Cap.559). Even though the title of a book belongs to neither of the above two categories, it does not follow that this title can find shelter in the copyright law.

First of all, unlike design, patent and trademark, a work does not need to be registered before the copyright owner could enjoy the protection of the Copyright Ordinance (Cap.528). Secondly, even a foreigner’s copyright is protected so long as his work satisfies the criteria of being an original work in tangible form. It should be noted that the copyright law protects a recorded expression but not a mere idea to express.

In order to bring an action in copyright infringement, the copyright owner / plaintiff must prove on the balance of probabilities that his work is original and is the result of his skill, judgment and effort and there has been substantial copying or taking by the defendant, resulting in more than coincidental similarities or sometimes even being identical. Original or originality was defined in Sawkins v Hyperion Records Ltd [2005] 1 WLR 3281 as ‘the author originated his work by his efforts rather than slavishly copying it from the work produced by the efforts of another person.’ He also has to prove the infringing work is substantially similar and that the original work is the source from which the infringing copy is derived. Interesting to note that the mens rea or intention of the defendant in primary infringement is immaterial, in other words, plaintiff does not have to prove any knowledge on defendant’s part.

In order to judge or prove substantiality, the defence counsel in Ravenscroft v Herbert [1980] RPC 193 suggested the followings should be taken into account: 1. the volume of the material taken; 2. how much of such material is the subject-matter of copyright; 3. whether there has been any animus furandi(the intention to steal) on the part of the defendant as equivalent to an intention of the defendant to take for the purpose of saving himself his labour and 4. the extent to which the plaintiff’s and the defendant’s books are competing works. (With respect, I do not agree with the third item because unlike secondary infringement like selling infringing copies, the defendant does not need to have any malicious intent. So far as he tries to avail himself of others’ effort by copying the work of another in a substantial degree without acknowledging the source, that already amounts to infringement.) I personally think the test as illustrated in Francis Day & Hunter v Bron [1963] Ch 587 is more comprehensive. The first limb is there must be sufficient objective similarity between the infringing work and the copying work, or a substantial part thereof. This could be determined by the judge’s perception of fact and expert evidence tendered to him. The second limb is the copyright work must be the source from which the infringing work is derived. This limb is a subjective one. The alleged infringing work may be an identical reproduction of the original work with all its idiosyncracies and all the mistakes. It may be argued as complete coincidence but if the method of development of the infringing work is very distinctive and idiosyncratic, then it may preclude the argument of coincidence.

It is necessary to emphasize that copyright can be used to prevent copying of a substantial part of the relevant form of expression (the work), but it does not prevent use of the information, thoughts or emotion expressed in the copyright work. Per Sawkins

Subject-matter of Copyright

According to section.4 to 9 of CO, literary work, musical product, film, dramatic work, sound recordings, artistic works, graphical works / plans (cf the product of a design) are all under the protection of copyright law so long as they are the original works. And the copyright law protects only work which is the result of the compilation of skill, judgment and effort. However not everything in writing is copyrightable, or worth protecting. The law is not interested in something common which requires no exercise of skill, judgment but merely effort.

The English Court in Baily v Taylor (1829) 1 Russ & M 73 held copyright did not subsist in a table, where the information therein is entirely factual, there is no design freedom and no room for taste and judgment. And this principle was further consolidated in Feist Publication v Rural telephone Service (1991) 111 SCt 1282 where it was held that the White Page telephone directory was not protected by copyright because that section was the effort only but required no application of skill and judgment. It was basically a question arranging names in alphabetical order and including address and telephone number and hardly copyright material. More importantly, the Court in Kenrick v Lawrence (1890) 25 QBD 99 said there is no copyright in subject that could not be represented in any other way but the one in question. The law simply would not allow monopoly of an ordinary way of expression. Anyone would agree that you have no better way of arranging names in an orderly way other than by their alphabetical order. But situation would be otherwise if a phone directory is arranged in the form as the Yellow Page where there is a classification system and advertisement in it. A good illustration to this principle, is a standard employment contract or a legal document that you have to sign when you are going to buy a flat. You could not argue there subsist any copyright, since there is no alternative way to present the content or message thereof.

Another finding of this case was that only something special in the way of artistic treatment, would be worthwhile to be protected. In case of a sculpture of craftsmanship, it is copyright protected as opposed to a piece of furniture which is the product of mass production and is subject only to the protection of the law governing design, another regime of Intellectual Property Law.

The law disallows the monopoly of a method or mean of communication. It is not the compilation of a table that attracts copyright, but the compilation of information requiring a certain degree of skill and judgment that attracts copyright. But mind you the subjective quality of the work, would not affect its entitlement to the protection of copyright law. As expressed in University of London Press v University of Tuition Press [1916] 2 Ch 601, the word ‘literary work’ covers work that is expressed in print or writing, irrespective of the quality or style. Copyright, as mentioned above, is not concerned with originality of ideas but with the expression of thought. Fair enough since substantial value of a piece of writing is very subjective, that depends on personal taste and varies from person to person. While a boring cheap paperback may have no literary value at all, it would not be denied of copyright, so long as it is an original work and is written by the writer’s employment of his skill, judgment and effort.

Word or style of writing not a subject of copyright

If we apply the above legal principles, I should say, with greatest respect, that the argument of a particular word or phrase in the title of a book or a particular style of writing being copyrightable, is totally without any merit. By looking back to the history of English literature, you would have no difficulty to observe there have been numerous literary works bearing similar names. Like L. M. Alcott’s The Little Woman, Wilkie Collins’s Woman in White and D. H. Lawrence’s Woman in Love, all bear the most common English word ‘woman’, but I am sure nobody would suggest either of them could claim copyright for this single word and forbid other people using the same word in their book title. Because there is no other alternative to describe a grown-up female, except the use of the word ‘woman’. Besides, you would not be able to argue the use of this single word requires any skill, judgment and effort on the writer’s part. Above all, the title of a book or one single word or phrase, could hardly be called as literary in light of the definition provided in section.4 of the CO where it is stated that literary works mean “a compilation of data or other material, in any form, which by reason of the selection or arrangement of its contents constitutes an intellectual creation”. It was further elaborated in Exxon Corporation v Exxon Insurance Consultants International Ltd [1981] 3 All ER 241 that the term original literary works was “a composite expression denoting a literary work intending to offer information, instruction or pleasure in the form of literary enjoyment.” As the title of a book, a song or a movie is something of triviality that hardly qualifies as an intellectual creation or intends to offer information in a significant form, it certainly is not a subject of copyright and is by no means actionable.

However, please note that unlike arithmetic, the study of law is an art and nothing of an artistic nature is absolute. A name or title being expressed in a particular way may be an arguable case of copyright infringement but that is a rare exception.

In relation to the style or format of writing, the best illustrative example is Sir Arthur Canon Doyle being an eminent writer in the genre of crime fiction, did not prevent Agatha Chrisite, G. K. Chesterton, or Dick Francis to write detective novels. Or the publication of J. R. R. Tolkien’s Lord of the Ring and C. S. Lewis’s Chronicle of Narnia, would not result in J. K. Rowling and her publisher for being charged with copyright infringement, in spite of the fact that all these three novels are centered on fairies and monsters in an imaginary world. Actually I wish to point out that in Agatha Christie’s novels, the Belgian detective Hercule Poirot and his stupid side-kick Captain Hastings are no more than equivalents to Doyle’s Sherlock Holmes and his roommate Dr Watson, yet there had never been any challenges of copyright infringement. By material alteration to the plot, characters, storyline etc, allegation of infringement is thus avoided even though a similar story is written. It was held in Interlego v Tyco Industries [1989] AC 217 that even relatively small alteration may, if material, suffice to convert that which is substantially copied from an earlier work into an original work. Even without resorting to our law for an answer, any right-minded person would disagree that anyone in a world allowing freedom of creation and expression, could monopolise a particular genre or form of writing by claiming copyright infringement.

When competing works share the same source of information or reference

Question may arise in a situation where two different authors obtain their source or inspiration or information from the same source or public domain. This is very common in cases where two or more copyright works share similar or identical theme or source of information. In Harmon Pictures NV v Osborne [1967] 1 WLR 723 the plaintiffs were the copyright owner to a reproduction in cinemagraphic form of a book while the defendants produced a film based on a historical event depicted in the plaintiffs’ screenplay. In giving judgment Goff J dealt with the situation where ideas or schemes or systems or methods are sought to be protected:- he ruled:

“ another person may originate another work in the same general form, provided he does so from his own resources and makes the work he so originates a work of his own by his own labour and industry bestowed upon it.”

And over 10 years later, Buckley LJ in Elanco Products Ltd v Mandops Ltd [1979] FSR 46 affirmed Goff J’s finding in Harmon Pictures saying:
the plaintiffs cannot claim a monopoly in historical facts. The law of copyright does not preclude another author from writing upon the same theme … otherwise one would be driven to the conclusion that the plaintiff has monopoly of the facts … [only] if the plaintiff had research and selected which facts to use, and had expended substantial labour in making that selection, and a substantial amount of his labour had been taken by the defendant, then there might be infringement … I am inclined to accept that a historical work is not to be judged by precisely the same standards as the work of fiction. The purpose of a novel is usually to interest the reader and to contribute to his enjoyment of his leisure. A historical work may well have that purpose but the author of a serious and original historical work may properly be assumed by his readers to have another purpose as well, namely to add to the knowledge possessed by the reader and perhaps in the process to increase the sum total of human experience and understanding. The author of a historical work must, I think, have attributed to him an intention that the information thereby imparted may be used by the reader, because knowledge would have been sterile if it could not be applied.”
The ratio decidenti of these two cases were cited with approval by the Chancery Division in the latest sensational litigation on copyright infringement allegedly committed by the author of Di Vinci Code, Dan Brown in Michael Baigent, Richard Leigh v The Random House Group Limited [2006] EWHC 719. In summary, it was held there was no copyright infringement by Dan Brown on the grounds that (1) the book of Holy Blood and Holy Grail has no central theme, (2) there has been acknowledgement by Dan Brown to the claimants’ work, (3) there has been no substantial similarity of these two works or any substantial taking by Dan Brown, and (4) relying on the above reasoning, that information available from the public domain is open to everyone and having a similar theme would not render the claimant’s claim successful disregarding other factors.

By applying the principles of these two judgments, it is observed that the issue of copyright infringement would not arise merely because the two books sharing the same theme, say, a satire to the education system or school administration or learning as a whole. Nor would the action of infringement sustain, when the alleged copying work originates its source of information from the public domain which is available to everyone. Be it a historical fact or just sensational news widely reported by the press, nobody could disallow others originating their works from it. For example, anyone could write a novel on the First World War by researching on this subject. Writers of those reference books could not claim copyright infringement against those who writes a story of romance or suspense with the use of Sarajevo Incident as a background.

Life of Copyright


Having been asked this quite often, I think the length of copyright is a concern to those who write. The duration of a copyright work lasts for 50 years counting from the end of calendar year of the copyright’s owner’s death or 50 years from the time when the work is published or released. For example, if Ni Kuang dies on 15th May 2009, then the copyright of his works expires by 31st December, 2059. But one should note that even when the copyright has been licensed or assigned, authors still enjoy the moral right till the end of the world which means you cannot falsely attribute his works to another person, but the author himself alone.

The above is only my limited observations on the subject and no more than a way to kill my leisure time after work, so please don’t take it for more than its worth.

2 留言:

Meshi 說...

左兄,你提及引起你寫這篇大作的「導火線」是「超凡抄襲」一文,但內文討論的卻是「侵犯版權」(copyright infringement),而不是「抄襲」(plagiarism)。此二者,前者是法律問題,後者是專業操守的問題,範疇似乎不同。我們指摘一個作者專業操守出問題,並不等於也不涵蘊指摘他犯法。

左冷禪 說...

First of all, my writing is never good enough to be called as 大作. I seldom answer a question as such, but it so happened I saw it and can't help answering. For those who commit 'plagiarism' (copying others writing without acknowledgng the source), he or she may be liable of copyright primary infrigement. Unlike some of our fellow bloggers, I am not interested in things like 專業操守的問題, since it is something very vague and is only punbishable by conscience, if any, but not by law. I don't study philosophy, nor am I being a moralist. I am not interested in terminology or lexicology, but isn't a person being guilty of plagiarism, may also be liable to copyright infringment subject of course to the substantiality of work he has copied and whether the infringed work is copyrightable. Isn't a magazine posting a nude pic on it cover, may encounter the allegation of 操守的問題 and the charge from the Onscene Article Tribunal? Things in our world often have more than one interpretation.