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Law Flashcards

(35 cards)

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1
Q

Duration - Berne Convention minimum

A

Life + 50 years

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2
Q

Duration - foreign works

A

Same as country of origin
Principle of “comparison of terms” rather than “national treatment”
e.g. CA work has Life + 50 years even in UK

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3
Q

Duration - LDMA general

A

Life + 70 years from end of calendar year in which author dies (s.12(2))

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4
Q

Duration - LDMA joint

A

Life + 70 years from last author to die (s.12(4))

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5
Q

Duration - co-authored songs

A

As joint LDMA, Life + 70 years from last author to die (s.12(8))

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6
Q

Duration - computer-generated LDMA

A

50 years from end of year in which the work was made (s.12(7))

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7
Q

Duration - industrially produced works of artistic craftsmanship

A

Life + 70 years

Used to be 25 years, but s.52 CDPA repealed

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8
Q

Duration - perpetual copyright

A

Peter Pan Schedule 1, para 1, 3 CDPA

Royalties to GOSH, even though author died in 1937

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9
Q

Duration - unknown authorship

A

70 years from date of creation, or date on which made available to public (s.12(3))

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10
Q

Duration - Films

A

Life + 70 years, from last to die of:
principal director
author of screenplay
author of dialogue
composer of music (specially created for and used in the film)
OR 70 years from end of year in which the film was made available to the public (s.13B(4)(b), (10))
Rememeber Norowzian v Arks - protected as dramatic work

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11
Q

Duration - sound recordings

A

50 years from end of year in which recording was made
OR
70 years from year of publication, C2P, played in public

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12
Q

Duration - broadcasts

A

50 years from when the broadcast was first made

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13
Q

Duration - typographical arrangements

A

25 years from year of first pubilcation

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14
Q

Duration - Database rights

A

15 years from completion, or making available (sui generis DB right)

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15
Q

Infringement - Primary

A

Exclusive/restricted action w/o consent
Strict liability - knowledge and intention irrelevant, innocence defence only in relation to remedies (BUT: GS Media - presumed knowledge in linking cases)
Two requirements:
1. DERIVATION (causal connection) - independent creation allowed, proof by D if inferred from similarity
2. OBJECTIVE SIMILARITY
(c) work, or substantial part thereof

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16
Q

Infringement - (Substantial) Part

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A

UK: substantial part (s.16(3) CDPA)
EU: part (Art. 2(a) InfoSoc)
Infopaq - part amounts to infringement if it contains expression of AOIC
Pelham - recognisable to the ear (2s), no de minimis requirement
Need to balance interests of (c) holder and user

17
Q

Infringement - Secondary

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A 
Those that deal in or facilitate the production of infringing copies (i.e. not directly involved in infringing acts)
Import, possess, sell/let, exhibit, distribute, supply article designed/adapted for making copies, permitting a place to be used for infringing performance, supplies/gives permission for apparatus
Knowledge requirement (or reason to believe) - put on notice to satisfy, "should know" arguments not sufficient (Superdry)
18
Q

Infringement - Fair Dealing Defence

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A

Research/private study s.29(1) and (1C)
Criticism/review s. 30(1) - published works only, w/acknowledgement
Quotation s. 30(1ZA) - published works only, acknowledgement, no more than necessary, intention to enter dialogue
Reporting current events s. 30(2) - national/political/sport, contemporary issue
Parody, caricature or pastiche s. 30A(1) - no ack/originality, must 1) evoke while noticeably different, 2) expression of humour/mockery
Illustration for instruction s.32

Merely that D has made use of work, no need for transaction
Purposive list (except re. quotation) - specified purposes assessed objectively
Driven by pubic interest
19
Q

Infringement - Defences (EU)

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A 
Transient acts (mandatory)
Closed list of optional exceptions
Art. 5(5) - 1. special cases only
2. must not interfere with normal exploitation
3. must not unreasonably prejudice legitimate interests of right holder
Purposive approach - fair balance
New mandatory exceptions in (c) Dir:
Text/data mining, online teaching/distance education, digital preservation (lib, heritage archives)
20
Q

Infringement - Temporary acts of reproduction

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A

Art. 5(1) InfoSoc, also s.28A CDPA, enablement of browsing/caching
Transient/incidental, and an integral and essential part of a technological process, and whose sole purpose is to enable:
a) transmission between third parties by intermediary
b) lawful use
.. of a work, which has no independent economic significance

21
Q

Fairness - Factors

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A

Quantity and quality of what is taken (defence usually only if part taken)
Addition/transformation (esp. for criticism, quotation, parody) likely to be fair
Commercial benefit weighs against fairness
Impact on market for the work, competition
Unpublished work? Criticism, review, quotation does not apply
How the work was obtained (legitimately? Yeland)
Motives, dishonest?
Could the purpose have been achieved by different means?

22
Q

Infringement - Defences, General Terms

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A

Non-commercial/NFP users
Lawful user or acquirer (Oracle)
Sufficient acknowledgement
Contract cannot override, certain contractual provisions will be void/unenforceable

No private copying defence in UK

23
Q

Infringement - Defences (UK)

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A

Public Interest
Incidental Use
By/for people with disabilities (Marrakech directive)

24
Q

Infringement - Remedies

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A

Damages - lost sales, comparable licence fees/”willing licensor/ee”, not for innocent infringement (s.97(1))
Flagrancy damages, moral prejudice (mental distress, humiliation)
Injunctions, accounts
Delivery up
Seize infringing copies/other articles
Criminal offences - fine/up to 10y prison

25
Infringement - Jurisdiction (EU)
Normally defendant's MS of domicile Tort - where harmful event took place >1 defendant, any of defendants' MS of domicile Other MS if both parties agree MS not always able to consider case across EU (Pinckney v Mediatech, in France)
26
Infringement - Who can sue?
Owner of (c) Joint owners must all be joined to proceedings NB: legal/beneficial owner (Dr Martens - Griggs v Evans) Exclusive licensees (s.101-102) - same rights as if assignment, must join (c) owner to proceedings Non-exclusive licensees (s.101A) - certain infringements actionable, licence in writing and signed by (c) owner expressing grant of right of action Person entitled re. moral rights
27
Infringement - Who can be sued?
``` Primary/secondary infringers Employers Joint tortfeasors (common design) Directors of a company Sole director and shareholder ```
28
WBOs - Criteria
1. Defendant is an ISP 2. Users/operators of website infringe C's (c) 3. Use D's services to infringe 4. D has knowledge of unlawful activity (put on notice) 5. Grant of injunction must be proportionate, subject to court's discretion
29
e-Commerce Directive - Safe Harbours
Mere Conduit - transmission in communication network Caching - automatic temporary storage of info Hosting - storage of info at request of users of service where SP has no actual knowledge of unlawful activity/info Immunity from liability for damages (but not injuction) Notice and Take Down - can't rely on defence on notice No requirement for general monitoring
30
OCSSPs (e.g. YouTube)
``` Will infringe (C2P) unless they conclude fair and appropriate licensing agreements w/RHs Must make best efforts to obtain auth, ensure unavailability when notified, act expeditiously when put on notice to disable/remove access/prevent future upload (NTD/NSD) ```
31
Assignment - Formalities
In writing, signed by/OBO the assignor Oral assignment taken as equitable assignment Future (c) - s. 91(1) - signed by/OBO prospective owner of (c), for valuable consideration Partial - s. 90(2) - in relation to rights, duration, location Joint - all owners must consent to transaction NB: moral rights may be waived/inherited but cannot be assigned
32
Licence - Types of Licence
Sole licence - only licensor and licensee can use (c) work Non-exclusive licence - orally/writing, contractual/gratuitous, express/implied, may grant right of action re. licensed act Exclusive licence - only licensee can use (c) work, like assignment Implied licence - by Court in exceptional circumstances. Inherent in contract, necessary for business efficacy Creative Commons licence - general public licence re. computer programs Collecting Societies - e.g. songs, broadcasts
33
Licence - Abuse of Dominant Position
1. indispensible 2. demand 3. excluded competition 4. refusal cannot be objectively justified
34
Database Rights - sui generis
Protects where there has been qualitatively/quantitatively substantial investment in obtaining, verifying or presenting the contents Maker (author) = person who takes initiative and assumes risks of investment Term = 15 years from completion, 15 years from publication if made available within that 15 years
35
Database Rights - Copyright
Selection or arrangement of contents constitutes AOIC Protects arrangement, not individual contents, and not when setting up of the database is dictated by technical considerations, rules or constraints. e.g. "The UK's 50 most brilliant lawyers" Term = life of author + 70y Key case: Football Dataco v Yahoo Works falling outside of database (c) might still be protected by (c) as a compilation

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