Intellectual Property –Copyright.

INTELLECTUAL PROPERTY –COPYRIGHT

Godfrey has intercepted Harry Moore’s telephone conversations with Robert and recorded them. He has worked as Harry’s gardener for 15 years but it obviously has not been any part of Godfrey’s work to intercept Harry’s telephone conversations and/or record them. Godfrey’s contract with Harry seems to be unrelated with these events, Although it may have helped him in recognising Harry’s voice he could have been able to do that anyway as Harry is well-known. The main questions are Harry’s and Robert’s right to privacy, confidential information, the scope of copyright relating to a telephone conversation and available remedies. The publication of the conversation or the contents thereof would certainly cause serious damage to Harry’s family life and almost certainly end his career as a well-known family entertainer. Robert’s reputation would also be damaged. Having said that, he might still be financially better of as a little-known poet as his forthcoming poetry collection will catch more public interest. Godfrey on other hand would probably receive considerable remunerations by selling information that he has possibly acquired unlawfully.

Although there is no general right of privacy recognised by English law, it is an offence under the Wireless Telegraphy Act 1949 section 5 ‘Misleading messages and interception and disclosure of messages’ to use any wireless telegraphy apparatus with intent to obtain information as to the contents of any message of which the user is not an intended recipient. Disclosing the information obtained unlawfully is an offence as well, except in the course of legal proceedings. The first time Godfrey listens the conversations seems to be incidental but after that it is his intention to intercept these conversations. However, the reported cases relating to interception of telephone conversations are concerned about tapping telephone lines and the result could be somehow different with reference to mobile phones. When it comes to private persons illegally tapping telephone lines courts seem to be reluctant to allow any public interest defence to any claim of confidentiality. In Francome v. Mirror Group The Daily Mirror had obtained tapes of recorded telephone conversations. The paper was proposing to publish a scandalous article based on these tapes. An unrevealed person had tapped John Francome’s telephone. In these tapes he as a highly successful jockey was allegedly revealing information concerning serious breaches by him of Jockey Club rules and possibly the commission of criminal offences. Fox L.J. commented that he found The Daily Mail’s public defence argument quite baseless under English law that citizens would be free to commit a criminal offence if only they have formed the view that it will further what they believe to be public interest. However, in Malone v. Metropolitan Police Commissioner where The Metropolitan Police had tapped the plaintiff’s telephone following established procedure, it was held among other things that the plaintiff had no right of privacy protecting him and he had no right of property in his conversation apart from copyright. This case was tried before the Human Rights Act 1998 and the tapping had been done in course of criminal investigation without the plaintiffs consent but pursuant to a warrant of the Home Secretary. The court held that the Convention of Human Rights had the status of a treaty, which was not justifiable in England, and the rights claimed under article 8 of the Convention (entitlement to ‘respect for his private and family life, his home and his correspondence’) were not legal or equitable rights.

Copyright Designs and Patents Act 1988 (CPDA), which has now amended to adopt EU Directives relevant to copyright, gives copyright to an original literary work which is outlined as ‘any work, other than a dramatic or musical work, which is written, spoken or sung’. As only originality is required and even words spoken extempore will constitute a literary work at the time they are recorded it is quite clear that the conversations receive copyright protection. Once the spoken words have been written down or recorded they constitute literary works, irrespective of their quality. Even though the taping was done without any authority, it does not affect the author’s rights to the work. The authors of the work are the speakers, in this occasion Harry and Robert. However, if the record of the conversation would be in writing, an old case of Walter v. Lane could still be applicable, even though the decision was reached before the word ‘originality’ was included to the law. In this case the Earl of Rosebery delivered several speeches on subject of public interest to public audiences. The reporters for The Times wrote down the speeches in shorthand, wrote out their notes and corrected and edited them to be published in the The Times as verbatim speeches of Lord Rosebery. The respondent published a book which incorporated these speeches. Lord Rosebery did not make any claim, but The Times claimed that it had copyright in these speeches and sought inter alia an injunction, damages and costs. Earl of Halsbury L.C. said that he would found it difficult to come to the conclusion that law permitted one man to make profit and to appropriate to himself the labour, skill, and capital of another. As Lord Rosebery did not himself put the speeches in writing and publish them he did not have any copyright in his speeches and on the other hand when The Times (or initially the reporters) did the work it was able to claim copyright. The work and skill the reporters had performed in writing down the speeches was enough in respect of the outcome to qualify for literary work able be protected by copyright. If the other reporters (or papers) had done the same work, there would have been as many copyrights as reporters. Though, if Lord Rosebery had himself written his speeches down, printed and published them, the reporters would have no copyright in their reports.

Copyright gives the author as the owner of copyright the exclusive right to undertake or authorise others to undertake certain activities in relation to the work. Anyone who undertakes a restricted act without an authorisation will be liable to primary copyright infringement, even if the person was not acting knowingly or intentionally. The restricted acts relevant to this case the owner has exclusive right to perform in relation to the work are: copying the work; issuing copies of the work to the public; performing, showing or playing the work in public; broadcasting the work or including it in a ...

This is a preview of the whole essay

There are several exceptions to the exclusive right of copyright owner. The most relevant fair dealing defences are for the purposes of criticism, review and news reporting and incidental inclusion of works. The amended version of the CDPA, which came to force 31st October 2003, permits fair dealing for the purposes of criticism, review and news reporting only if it is accompanied with sufficient acknowledgement and provided that a work has lawfully been made available to the public.The owner of the copyright has the exclusive right to make a work available to the public and no unauthorised act can be taken into account. However, Andrew Hobson (IP partner Reynolds Porter Chamberlain) argues that for the purpose of reporting current affairs it could still be possible to quote freely to unpublished literary works. The case Ashdown v. Telegraph Group Ltd does not support his view even though it obviously precedes this amendment of copyright law. Sunday Telegraph published a previously unpublished minute written by Paddy Ashdown who was at the time the leader of the Liberal Democrats. The minute was about a secret meeting (right after the general elections in 1997) between him and the Prime Minister. Later after Mr Ashdown had already resigned from the leadership of his party he made inquires concerning publishing his memoirs. In the course of negotiations with potential publishers Mr Ashdown presented some materials including the minute on a confidential basis. However, before any contract was signed the Sunday Telegraph published an article where it described the minute as “leaked document”. The story included verbatim quotations of the unpublished minute according to which despite Downing Street’s official denials the Prime Minister had considered forming a coalition cabinet after the general elections of 1997. Mr Ashdown sued the Telegraph for breach of confidence and infringement of copyright. The court issued a summary judgment on the copyright claim and granted an injunction against further infringement. Mr Ashdown was given the opportunity to choose as the remedy damages or defendant’s profits.

It seems that Angela’s story would be infringing Harry’s and Roberts copyright in their recorded conversation. The conversations are not previously published and therefore Godfrey (or Angela) is not authorised to make them available to the public. As copyright does not protect mere ideas or information, only the expression, it will be difficult to distinguish which piece of information has come from which source. She can obviously use any information she has received by herself when she followed Harry in order to take photographs. She or Daily Pail as her employer also has copyright to the photographs she has taken. In recent case Campbell v. Mirror Group Newsgroup Ltd the court held that Daily Mirror had right to publish photographs and information detailing a fashion model Naomi Cambell’s drug addiction and attendance at meetings of Narcotics Anonymous. Although the publications contained confidential information about her drug rehabilitation treatment these disclosures were justified in the public interest as Ms Cambell was a famous figure and had a history of courting publicity and in addition she had lied to the press that she did not use drugs.

As Godfrey has taped the conversations illegally, Angela cannot either use the confidential information, which is included in the tapes without committing an offence under section 5 of the Wireless Telegraphy Act 1949. Angela and Daily Pail could use the public interest defence or freedom of information defence against potential copyright infringement and confidentiality infringement claims as they may argue that it is in the public interest to know about the real character of Harry Moore, but probably their defences will not be successful. It has to be taken into consideration that Robert’s right to privacy is also at stake and he does not seem to be a similar public figure as Harry.

The author of the work has in addition moral right to object to derogatory treatment of the work if it amounts to distortion or mutilation of the work, or is otherwise prejudicial to the honour or reputation of the author. Putting the conversations together as one and deleting non-lewd parts would probably be ‘prejudicial to the honour or reputation’ of Harry and Robert. ‘Honour’ and ‘reputation’ are consepts analogous to the personal interests protected by the law of defamation and an objective test can be used: ‘ would right thinking members of the public think less of the person because of the treatment?’

The exclusive right to copyright in literary, dramatic or artistic works expires at the end of the period of 70 years from the end of the calendar year in which the author dies. If the author is unknown the period is calculated from the end of that calendar year when the work was made or if it is made public later, from the end of that calendar year.

Infringements of copyright are actionable by the author or a person deriving title from him (the copyright owner) and all such relief by way of damages, injunctions, accounts or otherwise is available to the claimant as is in respect of the infringement of any other property. Damages is a monetary compensation of the loss the plaintiff has suffered. The court, when deciding the amount of damages is not bound to the actual damages suffered as a result of the infringement. The court must have regard to all the circumstances and has even power to award additional damages which go beyond the actual damages suffered. Alternatively an account of profits accrued from the infringement can be claimed. An account of profits is an equitable remedy and therefore only available if the claimant has acted equitably in claiming the account. An injunction is a court order restraining a person from doing an act which is a breach of his legal duty.If the court is satisfied that the claimant has made out a good arguable case of infringement, the court may grant an interim injunction, ordering the defendant to refrain from the alleged infringing act until the action is tried. The infringing copies are usually seized as well as equipment for making them and a self-remedy in respect of these may also available and if the copyright is successful in the infringement proceeding he or she may also seek an order for forfeiture or destruction of the infringing copies.

In respect of certain offences against copyright criminal penalties can be imposed by a court. Commercial acts of infringement seem to fall into the category of these offences. When a person knows has reason believe that the article he or she in the course sells or lets for hire, or offers or exposes for sale or hire, or exhibits in public or distributes is an infringing copy of a copyright work, he or she shall be guilty of an offence. When an offence is committed by a company, company directors and officers may also be found guilty of the offence.

Someone who infringes copyright may use as a defence that he or she did not know or have any reason to know under the circumstances that the work was in copyright; in this case there would be no liability to damages. The test of reasonableness would then be used: would any reasonable man with the same knowledge as the infringer have believed that the work is in copyright? This defence is not very likely to succeed. The person who claims he or she had no knowledge whatsoever that the work was in copyright has to perform such adequate enquiries that are can under the circumstances reasonably satisfy the inquirer that the work is free from copyright. If no enquires and investigations are made the defence will hardly be successful.

Harry and Robert can seek for an injunction against Angela and Daily Pail to refrain them from publishing the article. They can also claim damages or account of Daily Pails profits whichever they think is more reasonable in this occasion if Daily Pail has already published the article without contacting them first and in any case they can seek an order for forfeiture or destruction of the infringing tapes against Daily Pail, Angela and Godfrey. Criminal proceedings could also be pursued against Daily Pail’s directors, Angela and Godfrey.

Godfrey has sold two of the conversations that contain poetry to ‘Scandalous’ service. If the service is commenced, it may cause damage to Harry’s and Robert’s reputation. Robert could face difficulties in publishing his poems them being already published and available. Robert is the author of the two poems he read to Harry during the telephone conversations. The form and quality of the poems is irrelevant with regard to copyright protection as far as they are original. Also spoken works are entitled to copyright as soon they are written down or recorded. It does not matter if recording was unauthorised as it is in this case. Both poems are unpublished and as Robert owns copyright in the poems, he has the exclusive right to make them available to the public or he can even choose not to publish then at all.

The ‘Scandalous ‘ phone-in service would be infringing Harry’s and Robert’s copyright to the telephone conversations and in addition Robert’s copyright to his poems. The service falls either in the category of performance of the work in public, which includes any mode of visual or acoustic presentation or the category of making of an adaptation of the work. Both acts are restricted to the owner’s exclusive right. The service apparently has also knowledge of the fact that Godfrey has made the recordings during an illegal interception of the conversation. Using this unlawfully obtained confidential information might be an offence under section 5 of the Wireless Telegraphy Act 1949.

Robert’s exclusive right to copyright in his poems expires 70 years from the end of the calendar year in which he dies.

Harry and Robert can seek for an injunction against the Scandalous phone-in service to refrain it from publishing the tapes or to stop using them. They can also claim damages or account of the Scandalous profits whichever they think is more reasonable in this occasion if Scandalous has already commenced the service and in any case they can seek an order for forfeiture or destruction of the infringing tapes against Scandalous and Godfrey. Robert may seek for an injunction in respect of his poems as well as remedies. Criminal proceedings could also be pursued against Scandalous directors and Godfrey.

The release of the home video on Daily Pail’s website will probably cause damage to Harry’s and Robert’s reputation. Robert’s brother has obviously been paid by Daily Pail of Angela for the video he almost certainly took without Harry’s or Robert’s permission. Harry is presumed as the author and owner of the copyright in the home video Angela obtained from Robert’s brother. The Act defines film in a technology neutral way as ‘a recording on any medium from which a moving image may by means be produced’, so there is no doubt that Harry’s home video qualifies for a film. If Harry has filmed the video by himself he is the author of the film as its director. He also might have commissioned someone else to film the video. He would then have the right not to have copies of the work issued to the public, the work exhibited or shown in public or communicated to the public.

By up-loading the film onto Dail Pail’s website Angela is infringing Harry’s copyright. Daily Pail would also be liable to copyright infringement by having infringing material on it’s website regardless of knowing its infringing nature. Also the possible service provider that is hosting the website could become liable after receiving actual knowledge of illegal activity or information if it does not act expeditiously to remove or disable access to the information

Copyright in films expires at the end of the period of 70 years from the end of the calendar year in which the last of either the principal director, the author of the screenplay, the author of the dialogue or the composer of music specially created for and used in the film

Harry and can seek for an injunction against Daily Pail (and possibly the service provider) to make it remove the infringing material from its website. He can also claim damages or account of Daily Pails profits whichever he thinks is more reasonable in this occasion. He can also seek an order for forfeiture or destruction of the infringing copies of the film against Daily Pail and Angela. Criminal proceedings could also be pursued against Daily Pail’s directors, Angela and Robert’s brother.

Under the circumstances Upright Publication has to be aware that Angela’s story includes also materials that might be infringing Harry’s and Robert’s copyright and illegally obtained confidential information. The firm would be likely to be liable to infringement of copyright and confidential information as well. Daily Pail owns copyright to Angela’s story in it’s recorded or written form (fixation) as her employer. An employer becomes the initial owner of the copyright in the absence of contrary agreement as long as the work is done in the course of employment. The employer might also be entitled in equity to the copyright in a work created by an employee not in the course of employment if the employee created the work in beach of his or her fiduciary duty to his or her employer. If Angela on the other hand can be considered as a freelance writer to Daily Pail, she for example is free to work for other employers as a free contractor, then she would own copyright in her story at least until it has been assigned to the paper. As a freelancer she could still retain right to any further use of the story, such as Upright Publication book. However, even if Daily Pail is Angela’s employer, the paper cannot license that part of the material that has not been legally made available to the public.

Upright Publication may not even need any license from Daily Pail, as there is no copyright in news, only in the expression. There has to be a work capable of protection. Copyright protects only expression, not ideas. Fair dealing exception for the purpose of news reporting and criticism can be used quite freely as long as the source is acknowledged and the expression has been changed somehow. Photographs are normally excluded from fair dealing exception and a licence is required. The typographical arrangement of a published edition of the whole or part of the literary work enjoys copyright protection on its own. Copying in the sense of fair dealing is a matter of substantiality, how much is fair considering circumstances. The real problem in this case is the materials that have not been lawfully published; Upright Publication cannot make any reference to those.

Harry and Robert can seek for an injunction against the Upright Publications to refrain it from publishing the story in respect of the parts that are infringing their copyright or privacy. They can also claim damages or account of Upright Publications’ profits whichever they think is more reasonable in this occasion if Upright Publications has already published the infringing material and in any case they can seek an order for forfeiture or destruction of the infringing materials against Upright Publications. Criminal proceedings could also be pursued against Daily Pail’s directors and Upright Publication’s directors.

References:

Cornish, W.R.: Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, 4th edition 1999, Sweet & Maxwell, ‘Cornish’.

Flint, Michael F., Fitzpatrick, Nicholas, Thorne, Clive D.: A User’s Guide to Copyright, 5th edition 2000, Butterworths, ‘Flint’.

Phillips, Jeremy, Durie, Robbie, Karet, Ian: Whale on Copyright, 5th edition 1997, Sweet & Maxwell, ‘Phillips’.

Stokes, Simon: Digital Copyright – Law and Practice, 2002, Butterworths LexisNexis, ‘Stokes’.

Malone v. Metropolitan Police Commissioner [1979] Ch. 344. Human Rights Act 1998 and Data Protection Act 1998 may have changed this to some extent.

Francome v. Mirror Group [1984] 2 All E.R. 408, CA

Malone v. Metropolitan Police Commissioner [1979] Ch. 344

Section 1(1).

Section 3(1).

Flint, p. 14.

Phillips, p. 29.

Section 3(2), Section 178.

Flint, p. 14.

Walter v. Lane [1900] A.C. 539, HL.

Cornish, p.399.

Referring to Walter v. Lane in Roberton v. Lewis (1960) [1976] R.P.C. 169, Cross J.

Flint, p. 83.

Section 16(1).

Section 20(1)(a).

Section 30(1).

Section 30(1A).

www.thelawyer.com, ‘Biographers face new copyright hurdle’, 2.12.2003.

Ashdown v. Telegraph Group Ltd [2001] EWCA civ 1142; [2001] 3 W.L.R., Ent. LR. 2003, 14(2), 24-34.

Phillips, p. 40.

Campbell v. Mirror Group Newspapers Ltd [2002] EWCA civ 1373; [2003] Q.B. 633 (CA).

Ashdown v. Telegraph Group Ltd [2001] EWCA civ 1142; [2001] 3 W.L.R., Ent. LR. 2003, 14(2), 24-34

Section 80(2)(b).

Stokes, p. 72.

Section 12 (1), (2).

Section 12 (3).

Section 96.

Section 97(2).

Flint, p. 107.

Phillips, p. 98.

Ibid. p. 99.

Ibid.

Section 107.

Section 110(1).

Section 97(1).

LA Gear Inc v. Hi-Tech Sport plc [1992] FSR 121.

Infabrics Ltd v. Jaynex Ltd [1980] FSR 161, CA.

Section 3(1).

Section 19 (2).

Section 21.

Phillips, p. 103 – 104.

Section 6 (1).

Section 85.

Stokes, p. 48.

Section 13 B (1), (2).

Flint, p. 17.

Cornish, p. 461.

Service Corporation International Plc and Another v. Channel Four Television Corporation and Another [1999] E.M.I.R.83.

Flint, p. 144 -145.

Cornish, p. 492.

Ibid, p. 396.

Ibid, p. 493.

Intellectual Property –Copyright.

INTELLECTUAL PROPERTY –COPYRIGHT

This is a preview of the whole essay

Document Details

Related Essays

Intellectual Property Law.

Intellectual Property Law.

Legal Analysis Model - Copyright Law

Historically, property has always been divided into two categories - real p...