Copyright

Question 1

what are the Five subject matters of copyright protection?

Answer 1

a. Literary works (e.g., books, articles, poems, computer code)
b. Artistic works (e.g., paintings, sculptures, photographs, architecture)
c. Musical works (e.g., compositions, songs, sheet music)
d. Dramatic works (e.g., plays, scripts, choreography)
e. Audiovisual works (e.g., films, TV shows, videos)

Question 2

what is copyright?

Answer 2

Grant authors, artists and other creators, protection for their literary and artistic creations, generally referred to as “works”. It includes software creation. Copyright protects the independent expression of an idea. Not the idea itself.

Does not protect “ideas” only the expression of ideas—thus have a copyright in the book, not the plot, generally, although some have tried to test this!

Only protects against copying—taking of your skill, labour and effort. So, if independently developed and same as yours—no violation of copyright.

Variety of terms—but generally life of author plus 50 - 70 years
(depending on type of work)

Question 3

what is included in copyright law?

Answer 3

Preparation of derivative works

Reproduction and distribution of copies

Exclusive rights conferred

Note that names and titles are not protected as literary works – e.g., Exxon Corp v exxon Insurance Consultants International Ltd [1982]

No registration is required in the UK

But lists and compilations can be protected—i.e., TV schedules, timetable index,
street directories etc. (also consider data base protection)

Question 4

what are the rights of owners under copyright?

Answer 4

To distribute the work to the public
To communicate the work to the public (i.e., via radio)
To perform, show or play the work in public
To rent or lend the work to the public
To make an adaptation of the work
To authorise others to carry out any of these activities
To copy the work

Question 5

What are the two main interests protected by copyright?

Answer 5

Moral:
* Reproduction
* Adaptation

Economic:
* Distribution
* Public performance/Communication to the public

Question 6

Criteria for protection

Answer 6

• Recorded in material form—fixed. Fixation
• Original (for literary, dramatic, artistic and musical works).
• Not necessary to be inventive, novel or unique but the author must have expended the necessary “skill labour or effort” in creating the work.
• Derivative works may attract copyright protection but may also infringe copyright in the existing work.
• S 3(2) Copyright, Designs and Patents Act 1988: “Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise…”
• Recording does not need to be done by the individual author or with their permission.

Question 7

Is a copyright notice required in the UK?

to use a copyright notice to advise third parties that the material is subject to copyright and who the owner is:
* Copyright 2023. University of Winchester. All rights reserved.

Answer 7

In the UK, a copyright notice is not legally required for copyright protection. Copyright protection is automatically granted to original works as soon as they are created and fixed in a tangible form, such as writing, artwork, music, or digital content. The copyright notice, consisting of the copyright symbol (©), the copyright owner’s name, and the year of first publication, is commonly used to provide information about the copyright and assert the rights of the copyright owner.

While a copyright notice is not mandatory for copyright protection, it can be beneficial to include one as it serves as a reminder to others that the work is protected by copyright and informs them of the copyright owner’s rights. The notice may also help deter potential infringements and provide evidence of copyright ownership in case of disputes. Additionally, including a copyright notice can be particularly relevant when works are published online or in digital formats where the copyright owner’s information may not be readily apparent. it prevents an infringer from raising a defence of innocent infringement.

Question 8

exemptions for copyright? (8)

Answer 8

Criticism / review /reporting
Accidental inclusion of copyright work
Fair dealing
Non-commercial research & private study
Teaching/Education
Pubic interest? – But would need consent
Helping disabled individuals i.e., Visually impaired
Library / Archives

Question 9

what is fair dealing?

Answer 9

Fair dealing for criticism, review or quotation is allowed for any type of copyright work. Fair dealing with a work for the purpose of reporting current events is allowed for any type of copyright work other than a photograph. In each of these cases, a sufficient acknowledgement will be required [UK Law]

Fair use of copyrighted works, as stated in US copyright law, “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” [US Law]

Question 10

what is the length of protection under copyright?

Answer 10

Written, dramatic, musical and artistic work = 70 years from author’s death
sound and music recording = 70 years from date of first publication
films = 70 years after the death of the director, author and composer
Broadcasts = 50 years from the date of first broadcast
layout of published editions of written, dramatic or musical works = 25 years from date of first publication

Question 11

what are the 4 Forms of ownership under copyright?

Answer 11

Joint works
Employee works
Balance of power
Transfer of ownership

Question 12

copyright legislation concerning computer programs

Answer 12

Copyright, Design and patent act 1988 recognises copyright to exist in computer programs as a form of literary work.

International agreement over the protection of computer programs was reached through Art 4 TRIPS agreement and Art 4 WIPO Copyright Treaty
Whitford committee’s report (1977) and unauthorised copying of computer programs. Green paper in 1981: recommendation to reform copyright law to include computer programs.
Copyright (computer program) regulations 1992

Question 13

Literal vs Non-literal

Answer 13

Literal: The same language of programming is employed in two different computer programs. See: Ibcos Computers v Barclays Mercantile High Finance
(1994)

Non-literal: Some elements are copied. These can include the method of programming, the outcome/ function intended or they way it operates.
Navitaire Inc v easyjet airline company (2004) and (2006)

Question 14

Three-stage test for non-literal copying

Answer 14

Abstraction - discovering the non-literal elements by a process akin to reverse engineering beginning with the code of the claimant’s program and ending with its ultimate function. This process retraces and maps out the designer’s steps and produces, inter alia, structures of differing detail at varying levels of abstraction

Filtration - the separation of protectable expression from non-protectable expression material. Some elements will not be protected being ideas, dictated by or incidental to ideas, required by external factors (scenes a faire doctrine) or taken from the public domain. these elements are filtered out leaving a core of protectable material - the program’s ‘golden nugget’ or protected expression

Comparison - a determination of whether the defendant has copied a substantial part of protected expression - whether any aspect has been copied and, if so, whether this represents a substantial part of the claimant’s program

Question 15

Copyright law for software

Answer 15

Can be protected by Patents (protecting the
functionality) or by Copyright (protecting the
expression from copying).

If your software is written by a third party for you
—who owns the IP in the code? Check the
contract!

Off-the-shelf software—i.e., word processing
packages—users have a limited license to use,
generally, all IP rights retained by the software
supplier

S1 (1) CDPA 1988
Copyright (computer program) regulations 1992
Sections 50, 50 A, 50B, 50BA CDPA 1988 And Sections 17, 18, 19 CDPA 1988
Section 3 (1) b and (c) CDPA 1988
Art 1 (2) DIRECTIVE 2009/24/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 23 April 2009 on the legal protection of computer program

personal copies - To copy CD, DVD, Music and video from one device to another Software based products can prevent copying even for personal use by using
technological measures such as encryption, etc.

Question 16

explain the adaptation and decompilation of computer programmes

Answer 16

Decompilation is a type of reverse-engineering that performs the opposite operations of a compiler.

here are two different types of reverse translation of software or compiled programming code in general. One is disassembly, where machine language code is converted into human-readable assembly code. The other is decompilation, where byte code is converted
back into the original programming language.

The Decompilation of computer programmes DOES fall under Exceptions

Question 17

what is INTEROPERABILITY?

Answer 17

• Interoperability has been defined as “the ability of computer programs to exchange information, and of such programs mutually to use the information, which has been exchanged.”
• However… achieving interoperability through reverse engineering can infringe the rights of the original owner.
• One of the main motives for reverse engineering software is to enable new software
  products to interact with programs that are already available.
• Given this, courts have recognised that reverse engineering is important for public benefit and to encourage inventors and businesses thereby maintaining healthy competition in the market.

Question 18

What is a trade secret?

Answer 18

While copyright is the main form of legal protection of software, most proprietary software
companies also ensure that the source code of the software is kept as a trade secret,
and only disclosed under a secrecy agreement where disclosure is necessary, such as
to producers of related software.
* There are two basic requirements for information to be treated as confidential according to
UK law:
* It must have the necessary quality of confidence. In other words, it must not be public
property or public knowledge.
* It must be imparted in circumstances importing an obligation of confidence i.e. when shared it
must not be done so as if it were public property or public knowledge.

Question 19

Formative 2

It is early in the days of the Internet and you and your friends have just had a great idea. You are avid football fans, fond of late night conversations about which team is really the best, which player the most productive at a particular position. Statistics are thrown about. Bragging is compulsory. Unlike other casual fans, you do not spend all your time rooting for a particular team. Your enjoyment comes from displaying your knowledge of all the players and all the teams, using statistics to back up your claims of superiority and inferiority. You find these conversations pleasant, but frustrating. How can one determine definitively who wins or loses these debates? Then you have a collective epiphany. With a computer, the raft of statistics available on football players could be harvested to create imaginary teams of players, “drafted” from every team in the league, that would be matched against each other each week according to a formula that combined all the statistics into a single measure of whether your team “won” or “lost” as against all your friends’ choices. By adding in prices that reflected how “expensive” it was to choose a particular player, one could impose limits on the tendency to pick a team composed only of superstars. Instead, the game would reward those who can find the diamond in the rough, available on the cheap, who know to avoid the fabled player who is actually past his best and prone to injury.

At first, you gather at the home of the computer-nerd in your group, who has managed to write the software to make all this happen. Then you have a second epiphany. Put this online and everyone could have their own team—you decide to call them FANtasy Football Teams, to stress both their imaginary nature and the intensity of the football-love that motivates those who play. Multiple news and sports sites already provide all the basic facts required: the statistics of yardage gained, sacks, completed passes and so on. The UEFA offers an “official” statistics site, but many news outlets collect their own statistics. It is trivial to write a computer program to look up those statistics automatically and drop them into the FANtasy game. Even better, the nature of a global network makes the markets for players more efficient while allowing national and even global competition among those playing the game. The global network means that the players never need to meet in reality. FANtasy Football Leagues can be organized for each workplace or group of former college friends. Because the football players you draft come from so many teams, there is always a game to keep track of and bragging to be done on email or around the water cooler.

FANtasy Football is an enormous success. You and your friends are in the middle of negotiations with Yahoo! to make it the exclusive FANtasy Football League network, when you receive a threatening letter from UEFA. They claim that you are “stealing” results and statistics from UEFA games, unfairly enriching yourself from an activity that the league stages at the cost of millions of euros. As this drama is playing out, you discover that other groups of fans have adapted the FANtasy Football idea to basketball and volleyball and that those leagues are also hugely popular.

) Should you be able to stop the “copycat” fantasy leagues in baseball and basketball? To demand royalties from them? Why?
2) What could you say in support of / against the UEFA’s argument?

Answer 19

1) Whether they should be able to stop the “copycat” fantasy leagues in baseball and basketball or demand royalties from them, depends on the intellectual property rights associated with your FANtasy Football game and the legal framework governing fantasy sports.

a) Intellectual Property Rights: If they have obtained intellectual property protection for their FANtasy Football game, such as patents or copyrights, they may have legal grounds to prevent others from directly copying or replicating their game without permission. However, it’s important to note that intellectual property rights generally do not extend to the underlying concepts or ideas behind a game. They instead protect the specific expression of those ideas.

b) Legal Framework: The legality of fantasy sports, including baseball and basketball leagues, varies by jurisdiction. In some countries, fantasy sports are considered a form of skill-based gaming and are protected under specific laws. If their FANtasy Football game falls under such legal protection, it may strengthen their position to stop copycats or demand royalties. On the other hand, if fantasy sports are not specifically regulated or protected in a particular jurisdiction, it may be challenging to prevent others from creating similar games.

2) In support of the UEFA’s argument, they may claim that you and your friends are “stealing” results and statistics from UEFA games, which they stage at significant financial cost. The UEFA may argue that you are benefiting from their investment in gathering the statistics and unfairly profiting from their copyrighted or proprietary data.
In opposition to the UEFA’s argument, you could assert the following points:

a) Publicly Available Information: If the statistics and results used in your FANtasy Football game are publicly available and not protected by intellectual property rights, you may argue that you are simply utilizing factual data that is accessible to the public. Copyright law generally does not extend to facts or data itself, but rather to the creative expression or compilation of that data.

b) Transformative Use: You could argue that your FANtasy Football game transforms the raw statistical data into a new and original form, creating a distinct and separate experience from the UEFA’s games. This transformative use may be considered fair use, depending on the jurisdiction, as it adds value and serves a different purpose than the original data.

c) Parody or Criticism: If your FANtasy Football game incorporates UEFA statistics in a satirical or critical manner, you may claim that it falls under the protection of freedom of expression or fair use. This argument would depend on the specific legal framework and the extent to which your game utilises UEFA’s statistics.

relevant legislation: Copyright, Designs and Patents Act 1988

Question 20

Formative 3

SAS is a business software giant, but their products are not well-known to the public. They provide business analysis and data processing software and services. The company is very successful because it follows a model of providing not only proprietary software solutions to medium and large enterprises, but also the accompanying profitable services, such as support and training. SAS has built this empire based on a combination of proprietary code and business know-how. One of the main assets held by the company is that it has its own programming language, Base SAS. The language is also combined into separate technical elements which allow consumer interaction, this is known as the SAS Components. All of this allows the company to keep tight control on the programs it creates. While users are allowed to program using this language to fit their own needs, SAS keeps a tight leash on the know-how elements of the equation, particularly training.

World Programming (WP) is a UK software company which saw an opening in the market, it created an SAS clone (knows as WPS) which would be able to run programs coded using Base SAS and the SAS Components. It also produced manuals and other supporting materials in order to train users.

Consider the above. Should SAS sue WP for breach of copyright? If so, on which grounds? If they shouldn’t sue, why not?

Answer 20

Copyright Infringement: SAS would need to determine if WP’s creation of an SAS clone, WPS, amounts to copyright infringement. Copyright protects original works of authorship, including software code. If WP’s WPS code is a substantially similar copy of SAS’s proprietary code, SAS may have grounds for a copyright infringement claim.

Scope of Copyright Protection: SAS’s claim would depend on the extent of copyright protection afforded to Base SAS and the SAS Components. Copyright generally protects the specific expression of ideas but does not cover ideas, methods, systems, or functionality. If SAS’s programming language and components are deemed functional or unprotectable elements, it may weaken their copyright claim.

Reverse Engineering: WP’s WPS could potentially be viewed as a result of reverse engineering SAS’s software. Reverse engineering involves analyzing and understanding a competitor’s software to create a compatible product. While reverse engineering is generally legal, there may be limitations or restrictions depending on the jurisdiction and any applicable license agreements.

Fair Use: Fair use is a legal doctrine that allows limited use of copyrighted material without permission, typically for purposes such as criticism, comment, news reporting, teaching, or research. WP may argue that their development of WPS falls under fair use if it can be shown that they are providing interoperability or compatibility with SAS’s software for the benefit of customers.

Licensing and Terms of Use: SAS should examine the licensing agreements or terms of use that customers agree to when using their software. These agreements may outline restrictions on reverse engineering or the creation of competing products.