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Copyright 1 Folder > Part 1 > Flashcards

Part 1 Flashcards

1
Q

What is the definition of Copyright?

A
  • “The exclusive legal right to reproduce, publish, sell, or distribute…a work”
  • Right to make a copy
  • Copying from a copyright-protected work may be an unlawful infringement
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2
Q

What are certain kinds of works protected?

A

Original Works

  1. Literary
    - Written – can be read
    - Eg. books, articles, poems, computer programs
  2. Dramatic
    - Eg. play, script, choreography, tv shows, films
  3. Musical
    - Arrangement of musial notes
    - Musical compositions
  4. Artistic
    - Eg. Painting, sculpture, drawing, photo, engraving, building

“Entrepreneurial” Works

  • Often jointly authored (multiple authors)
  • May contain other “original” works with separate protection
  • Examples:
  • -> Sound recordings
  • -> Film (broadly defined)
  • -> TV & sound broadcasts
  • -> Cable programmes
  • -> Published editions: typographical arrangements of literary works entitled to its own copyright protection

(Eg. Shakespeare work not protect since it was written before copyright. You can print out one of his works and have copyright for typographical arrangement of literary works.)

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3
Q

What does it mean if work has originality?

A
  • Original expression protected
  • If work originates with you, you may hold the copyright
  • -> Creating the work took skill, labour, judgement – cannot be defined in precise terms
  • Quality not required – not literary or artistic merit
  • Eg: What makes photograph original?
  • -> Composition: visual angle, shot framed, different features?
  • -> Illumination & visual contrast
  • -> When and where to click the camera
  • Bar for originality is very low
  • -> Just means making conscious choices
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4
Q

What is Copyright Fixation?

A
  • When does copyright take hold?
    A: When you save the file
  • Copyright automatic upon fixation:
  • SG: “in material form”, includes electronic (eg. digitally)
  • UK: “recorded in writing or otherwise”
  • US: can be perceived, reproduced, communicated for more than transitory period
  • -> Equivalent definition
  • No formalities required for copyright to exist
  • -> No registration
  • -> no notice
  • Eg. Your diary and random text messages are copyrighted
  • -> Have no commercial value –> no meaning –> no money
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5
Q

What is the Copyright Registration process like?

A
  • Best to document ownership of a potentially valuable copyright
  • US: optional registry system open to works from anywhere
  • -> Create public record of copyright
  • -> USD 35
  • SG: don’t have registration system
  • -> Musical compositions: can register with COMPASS (specifically to collect royalties)
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6
Q

What is an international recognised understanding regarding Copyright?

A

Berne Convention (1886)

  • International copyright treaty requires that copyright takes hold upon fixation
  • 100s of nations that are parties: SG, US, UK, South Korea –> make copyright automatic by fixation
  • All parties recognise the copyrights of nationals (citizens) of all other parties
  • -> No formalities can be required for cross-border recognition
  • -> Eg. Don’t need to send email for your copyright in SG to be honoured in the US
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7
Q

What is the difference between expression and fact?

A
  • Expression is protected, not facts
  • Protected: Expression of facts in words, images
  • Not protected: facts (history, science, news)
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8
Q

What is the difference between expression and ideas?

A
  • Idea:
  • -> 3rd person effect: Individual perception that a message will exert a stronger impact on others than on self
  • -> Eg. Something thinks hate speech might have a strong effect on others, but the same person would say it doesn’t bother them as much
  • Expression:
  • -> Articles about 3PE
  • -> Eg. In academic journals
  • Just using idea does not present copyright issues
  • When there are only limited ways to express an idea, expression must be nearly identical to constitute infringement
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9
Q

What’s are some examples of expression vs. idea?

A

Realistic art:

  • Does one realistic concrete deer lawn ornament infringe another?
  • Protected expression: a particular sculpture of a deer
  • Unprotected expression: realistic sculpture of a deer

Literary/film genre conventions:

  • Protected expression:
  • -> a particular fictional work (eg. Captain Marvel)
  • Includes:
  • -> sequence of events in plot and scenes
  • -> particular character that are well-developed
  • Unprotected expression:
  • -> genre/category of works (eg. Superhero films)
  • Includes:
  • -> standard plot elements
  • -> standard scenes (scenes a faire = scenes to do/to be made / obligatory scenes)
  • -> stock characters (stereotypical characters – smart asian)
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10
Q

What is copyright exhaustion?

A
  • aka. 1st sale doctrine
  • When you buy a copyrighted work:
  • -> You can control the copy
  • -> Can resell, give away, rent, destroy
  • -> copyright owner’s control over your copy “exhausted” by 1st sale
  • However, copyright holder retains copyright
  • -> Cannot make new copies (includes reproducing on screen)
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11
Q

What is the test for copyright infringement?

A
  1. Substantial objective similarity (or identical)
    - Reproduction of substantial part
    - Includes exact copies (eg. file sharing)
  2. Causal Connection indicating copying
    - Evidence that D may have copied, or
    - D’s access to P’s work may suffice (eg. work is published)
  • -> Assumptions
  • P’s work is (still) copyright protected
  • No permission to use work
  • Infringement is mostly civil law
  • Criminal prosecution possible for commercial-scale infringement
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12
Q

What is the defence for copyright material?

A

Fair use

  • Some jurisdictions: known as “fair dealing”
  • Fair use is a defence media rely on all the time. Allow media to use quotation of song lyrics and still images from video
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13
Q

When do you see borrowed material?

A
  1. Infringement
    - Exact copy, or substantial similarity
    - A causal connection indicating copying: the defendant had access to the work
  2. License
    - Permission
  3. Assignment
    - Transfer of rights entirely to the other party
    - Aka. Assignment of rights
  4. Fair use / fair dealings
    - A defence to infringement
    - No permission required
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14
Q

What’s included in the balancing test for Fair Use?

A
  • Consideration of these points taken into account
  1. Purpose of use
    - FAVOURS FAIRNESS: News/reporting the current event, teaching, private study/research, transformative use (parody, commentary/review/criticism)
    - DISFAVOURS FAIRNESS: Primarily commercial uses
  2. Nature of work
    - Core of copyright-protected: creative/expression rather than factual
    - Unpublished / borrowing from unpublished work
  • FAVOURS FAIRNESS: If more factual work
  • DISFAVOURS FAIRNESS: If more creative & expressive work
  • DISFAVOURS FAIRNESS: If unpublished work
  1. Amount & Substantiality of Use in relation to original
    - Look at the importance of what is used
  • Amount (quantity)
  • Substantiality (importance)
  1. Potential Market Effect
    - Supersede/substitute for original content
    - eg. Almost like a replacement of the work
  • No major formula that says if you get the majority of factor leaning towards fair use than it is automatically fair use
  • If a use is fair, you are still legally required to get permission?
  • -> False, but it’s hard to know for sure if a use is fair
  • If you have permission to use a work, this counts towards fair use
  • -> False, fair use is irrelevant if you have permission
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15
Q

What is considered parody?

A
  • Uses elements of original work
  • Makes fun of original work
  • Potential fair use
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16
Q

What is considered satire?

A
  • Uses elements of original work
  • Makes fun of another target
  • Not fair use
17
Q

What if the parody is so effective that it hurts the market for original?

A
  • Is this the negative potential market effect that the courts are referring to?
  • No, it is still potentially fair use unless the parody is a substitute for the original
18
Q

What are the copyright defences?

A
  1. De minimis / incidental use
  2. US Fair Use
  3. SG Fair Use
  4. Parody
19
Q

What to take into consideration when deciding if it is De Minimis?

A
  • Trivial use
  • Inessential use
  • -> Does not contribute – can be blanked out without diminishing the work in which it appears
  • Use is unavoidable
  • -> Eg. anything on a drama set is unavoidable
20
Q

What is SG law on incidental filming or televising of artistic works?

A

“ the copyright is an artistic work is not infringed by the inclusion of the work in a cinematograph film or in a television broadcast if its inclusion…is only incidental to the principal matters represented in the film or broadcast.”

  • No definition for ‘incidental’
  • Not a lot of cases  don’t know extent of protection
  • SG use the term ‘incidental’
21
Q

What are 2 ways to see de minimis / incidental use?

A
  1. No infringement has occurred – in SG law

2. It’s a defence to infringement – India’s view

22
Q

Why isn’t there a wider agreement on De minimis / incidental use?

A

It’s an undeveloped area of copyright law

23
Q

What is SG Fair Use like?

A
  • SG: Statutory law: Copyright Act
  • English common law helps interpret the statue
  • SG is a signatory to international treaties setting minimal standards
24
Q

Give more info about the Singapore - US Free Trade Agreement.

A
  • Singapore-US Free Trade Agreement (2013):
  • -> Harmonisation with US
  • -> Includes US-style fair use, but calls it fair dealing (UK term)
25
Q

In the context of copyright defence, how is Singapore fair dealing version 1 differs from version 2?

A

Copyright defence: SG fair dealing v1

  • Before US-SG FTA, fair dealing was a narrow defence, for purpose of criticism, review & reporting current events
  • -> Required to acknowledge original source
  • This kind of fair dealing survives – no changes to it

Copyright defence: SG fair dealing v2

  • After US-SG FTA: Amended Copyright Act made fair dealing similar to US fair use, except for the name and the 5th factor
  • For literary, dramatic, musical or artistic work, & audio-visual items, consider:
    (a) the purpose & character of the dealing, including whether (it) is of a commercial nature or is for non-profit educational purposes;
    (b) the nature of the work…;
    (c) the amount & substantiality of the part copied taken in relation to the whole work…;
    (d) the effect of the dealing upon the potential market for, or value of, the work…; &
    (e) the possibility of obtaining the work…within a reasonable time at an ordinary commercial price
  • 5th factor:
  • -> Protected individual who make copy of work when it’s hard to obtain work with reasonable time and at ordinary price
  • 5th factor significance:
  • -> Not much
  • -> Noy a lot of cases
26
Q

What are the changes going to be for Singapore fair dealing version 3?

A

Copyright defence: SG fair dealing v3

  • Coming soon: further proposed amendments to Copyright Act will
  • -> re-name fair dealings as fair use
  • -> Remove 5th factor
  • When SG & US fair use statutes are even more similar, will SG courts’ decisions mirror US precedents?
27
Q

In the context of copyright defence, how does US view parody?

A
  • In US: parody weighs toward fair use because it’s transformative
  • -> Portion is used for a purpose different from original work’s purpose
  • -> Use is meant to poke fun at original
  • -> Genre of parody requires using enough of original to evoke original
  • -> If parody may hurt market by making fun of original, still fair
  • -> If parody may hurt market by replacing original, not fair
28
Q

In the US, how does satire and parody differ?

A
  • In US, Satire doesn’t help case for fair use
  • -> Use is meant to poke fun at something else, not at original
  • -> Eg. changing words of popular song to make fun of election
29
Q

In Australia, what is the protection like for satire and parody?

A
  • In Australia, parody & satire both protected
30
Q

In SG and HK, what is the protection like for satire and parody?

A
  • For SG, HK: no specific provisions to be determined

- -> HK activists lobbied for protection

Copyright 1 Folder (1 decks)

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