Copyright Infringement
Copyright Infringement
APTER-IO : 419
INFRINGEMENT OF COPYRIGHT
ii) Misappropriation
able way. Once convinced that the defendant unfairly cut a competitive
corner by setting out to revamp the plaintiff's completed work, they will
not easily be dissuaded that the alternations have been sufficient.''' In
this approach, the taking of ideas alone is confined to cases where the
defendant does not start from the completed work at all, save in the
sense that he goes through a similar process of creation : as where he
paints for himself the scene that the plaintiff painted^", or draws his own
cartoon for the same basic joke.^'
The assessment of each case turns a good deal on its own
circumstances. But there are some general considerations which may
well have a bearing on the result. These are worth illustrating.
first copied the plaintiff's instruction leaflet for a weed killer and had
to withdraw it; they then produced a revision giving the same detailed
information in other words. This was held to create an arguable case of
infringement because the defendants were not entitled to make use of
the plaintiff's skill and judgement in securing the information.
If the plaintiff's labour, skill and judgement have only been just
enough to earn him copyright, infringement may arise only where there
is exact imitation of such features as are of some individuality. In
Kenrick V. Lawrence,-'^ the plaintiff claimed copyright in a simple
drawing of a hand, made with the intention of showing voters where to
register their vote on a ballot form. But it was held that only an exact
copy of the drawing would infringe, if the plaintiff were not to be
conceded a monopoly in drawings of hands for this and other purposes.
Through this consideration also the court is able to take account of the
overall merit of the plaintiff's work.
sketch or similar plan, provided that the subsequent work doesn't repeat
or imitate the main design of the earlier works/^ Where other types of
work are concerned, a similar approach might well be adopted : the
relation between the two end products would be considered rather than
the relation between the first work and what has been copied from it.
The fact that the author made his reproduction unconsciously (if he can
be believed) would probably enhance any claim not to have infringed/^
copies. Control over them and their contents once legitimately made has
been conceded only on a case-by-case basis : the rights over public
performance and broadcasting are one form of control over use; the
newly created rental right in sound recordings, films and computer
programs is another.
Often enough the various rights that make up copyright are
separately assigned or made the subject of an exclusive licence. The
assignee or exclusive licensee is then entitled to sue only in respect of
his own part and it may be necessary to decide just what his part is if the
division up has been made by reference to the different acts listed in the
statute, then the question will turn on the meaning of the statutory
words.*'' If some other, more specific right has been conceded (such as
the right to translate into French, or the right to engrave a picture for a
particular book) then the particular assignment or licence will require
interpretation.
letting for hire, offering or exposing for sale or hire, and exhibiting in
public in the course of a business, and distributing either in the course
of a business, or otherwise to an extent that prejudicially affects the
copyright owner.
As to the defendant's state of mind in secondary infringement,
the previous law required it to be shown that the defendant had
knowledge that the copies in issue were infringements.^* But that had
been read as requiring only that he had "notice of facts such as would
suggest to a reasonable man that "breach of copyright was being
committed".^^ The new phrase, "knew or had reason to believe", for
all its apparent subjectivity, is likely to be understood in the same sense.
(F) Rights Concerned With Performance And Broadcasting :
(') The Various Performing Rights :
The extension of copyright from the making of copies to the
giving of public performances began in 1833. With modern technology,
this has grown into a bundle of related aspects of copyright that can be
loosely grouped as "performing rights". These include, performing,
playing or showing a work in public; broadcasting it or including it in
a cable programme (cable - casting).^^
The possibilities of infringement in this field have become
complete. If, for instance, a copyright musical work is performed to a
public audience at the same time as being televised, both the perfor-
mance and the broadcast require licence. If broadcast is received and
shown publicly this calls for licence of the copyright in the music , and
save (where the showing is free) of that in the broadcast. If the original
performance was recorded this will be either in the form of a sound
CH.APTER - 10 : 437
materials, nor may the student be charged for the copy beyond the actual
cost of photocopying. Where a teacher created a "learning activity
package" concerning cake decorating, by copying II out of the 28
pages of a copyrighted booklet, used such package over several aca-
demic years and didn't acknowledge the owner's authorship or copy-
right, such copying did not qualify as fair use under these guidelines.''^
The copying of a computer programme for use by students is probably
not a "fair u s e " because of the need to copy substantially the entire
programme. Similar guidelines have been adopted in regard to educa-
tional uses of music.'' But no guidelines for classrooms use have been
developed with respect to off-the-air taping of copyrighted audio-visual
works incorporated in radio or television broadcasts although it has
been recognised that the fair use doctrine has some limited application
in this area.'^ The use of excerpt from copyrighted works for the purpose
of educational broadcasting activities, where such use is not otherwise
exempt and is not subject to compulsory licensing provisions'^ may
nevertheless be a fair use, depending on whether the performers,
producers, directors, and others responsible for the broadcast were
paid, the size and number of excerpts taken, and in the case of recording
made for broadcasts, the number of copies reproduced and the extent of
their re-use or exchange.'*
(il) Parody, Satire Or Burlesque :
A ' 'parody" protected by the fair use provisions has been defined
as a work in which the language or style of another work is closely
imitated or mimicked for comic effect or ridicule and in which some
critical comment or statement about the original work is made reflecting
CH.APTER - 10 : 442
the original perspective of the parodist, thereby giving the parody social
value beyond its entertainment function.^^ It is in the interest of
creativity, not piracy, to permit others to take well-known pharases and
fragments from copyrighted works and add their own contributions of
commentary or humor.'"" The parody branch of the fair use doctrine is
a means of fostering the creativity protected by the copyright law : it
balances the public interest in the free flow of ideas with the copyright
holder's interest in the exclusive use of his work.
" S a t i r e " forpurposesof the fair use provision is defined as work
which holds up the vices or shortcomings of an individual or institution
to ridicule or derision, usually with an intent to stimulate change or the
use of wit, irony, or sarcasus for the purpose of exposing and discred-
iting vice or folly.'"' Similarly, it has been said that the law permits more
extensive use of the protected portion of a copyrighted work in the
creation of a burlesque than in the creation of other fictional or dramatic
works not intended as burlesque.'"^
Parody and satire have been said to be deserving of substantial
freedom, both as entertainment and as a form of social and literary
criticism. Where the parodist does not appropriate a greater amount of
the original work than is necessary to recall or conjure up the object of
his satire. While, a parody song to a copyrighted tune may be a fair
use,'"^ a burlesqued or parodized presentation has been held to be no
defence to copyright infringement when substantially more material
was "borrowed" from the copyrighted original than necessary for
successful burlesque."''*
Although it has been that the Copyright Acts do not expressly
CH.APTER - 10 : 443
1. See. e.g. Pole V Curl (1741) 2 Atl. 341; Gee V. PritCh.ard (1818)
2 Swans. 402; Phillip V. Pennell (1907) 2 Ch.. 577; Hauhart (1984)
13 U. Ball. L.R. 244.
2. E.g. a letter to the edition Under a will a bequest of an unpublished
manuscript or artistic work is now to be construed as including the
copyright: See U.K. copyright. Designs & Patents Act, 1988, Sec-
tion 89.
3. For instance Droit de suite, supra. Chapter II, "Subject matter of
Copyright Right and Rights of Authors".
4. In any case an implied licence (exclusive or non-exclusive accord-
ing to circumstances) may be a more reasonable implication.
5. See, U.K. Copyright, Designs & Patents Act 1988, Section 16;
Indian Copyright Act 1956, Section 51 (i); U.S. Copyright Act
1976, Section 106.
6. Sargant J., Corelli V. Gray (1913) 29 T.L.R. 570; Diplock L.J.,
Francis Day V. Bron (1963) Ch. 587; Learned Hand J., Fisher V.
Dillingham 298 Fed. 145 (1924).
7. Mansell V. Valley Printing (1908) 2 Ch. 441; Byrne V. Statist Co.
(1914) 1 K.B. 622. Innocent defendants may be protected from
liability for damages: see infra Chapter X, "Reme' ies for Copyright
Violations".
8. If the question is whether the defendant's work has come from the
plaintiff's or from independant sources, the defendant may find it
difficult to explain the presence of plaintiff's errors or idiosycrasies in
his text: see, e.g. Harman V. Osborne (1967) 2 All E.R. 324.
9. See generally Francis Day case, supra note 6.
10. Poznanski V. London film (1936 - 1945) Mac. C.C, 107; Harman
Pictures, ibid.
11. Rees V. Melville (1911-1916) Mac. C.C. 168; Ricordi V. Clayton &
Waller (1928-1935) Mac. C.C. 154; Industrial Furnaces V. Reaves
(1970) R.RC. 605.
12. Per Wilberforce J., Francis Day V. Bron, Supra note 6.
CH.APTER - 10 : 447