Intellectual Property

Copyright and Associated Rights (cont)

Literary Work

Sound Recordings and Films

Broadcasts:

Cable Programmes:

Published Editions

This is subject to the proviso that works created prior to 1988 may be covered by different regimes, as UK copyright law has not been retrospective in nature. Thus, under the 1956 Act, copyright in a photograph belonged to the person who owned the negative film, unless the photograph was taken under commission.

"....[a provision of GATT] will restore copyrights on a number of foreign books, paintings, films, photos and sketches that are currently in the U.S. public domain. The rule, scheduled to go into effect Jan. 1, 1996, will apply to works still protected by copyright in the country of origin. It could have a "big impact on multimedia rights," says the acting general counsel for the U.S. Copyright Office. France and Mexico have already said they intend to restore copyrights on all movies, and works by artists such as Picasso and Matisse could be covered if they were created within the past 75 years.(31)"

Literary, Dramatic and Musical Works

Works of Joint Authorship

Artistic Works

Anonymous Works

Films

Sound Recordings

Broadcasts and cable programme services

Computer Generated Works

Published Editions

Publication or communication to the public of a previously unpublished literary, dramatic or musical or artistic work or film in which copyright has expired

• Literary elements - protected as literary works
• Dramatic elements - protected as dramatic works
• Musical elements - protected as musical works
• Artistic work (graphics, photographs, drawings and models) - protected as artistic works
• Moving images - protected in the same way as films
• Sound recordings - protected as sound recordings
• Typographical arrangements of published editions of literary, dramatic or musical work
• Computer program - protected as a literary work
• Choreographic routine - protected as a literary work

• the right to copy the work
• the right to issue copies of that work to the public and a limited right to let them copy it (32)
• the right to adapt the work
• the right to perform the work in public (dependent upon the medium to be used for publication)
• the right to broadcast that work (dependent upon the medium to be used for publication)

The process described above, however, may only scratch the surface of the identification and acquisition of rights process. For example, there is the issue of performers rights, a right associated with copyright. Under the CDPA 1988, performers rights exist in musical works, dramatic performances, readings or recitations of literary works, and performances of variety acts. As a result, where a multimedia product includes recordings of such performances, various consents may be required from differing categories of performers. Obtaining such consents may be difficult particularly where one is dealing with older material. Problems include both identifying performers(33), and identifying rightholders(34). Further, while copyright in literary, dramatic, musical and artistic works produced in the course of employment transfers automatically to the employer, performance rights do not. Consent should therefore be obtained contractually(35). In certain circumstances, the Copyright Tribunal under CDPA 1988 can give consent on behalf of untraceable or unreasonable rights holders, however, such consent can only apply to the United Kingdom.

Copyrights in films and sound recordings

These belong to the person or persons who undertook the arrangements which resulted in the film being made, and the principal director(36). Multimedia producers should therefore ensure that it is clear in contracts of employment that such arrangements are undertaken on the understanding that they are on behalf of the producers.

Outside hours work by employees

Where employees undertake work outside their strict working hours, works created in that time may not be covered by the employers' right to the copyright. Contracts should thus ensure that this eventuality is catered for.

Personality rights(37)

The right of a person to prevent their name, likeness or biography to be used without their consent. therefore individuals mentioned in credits and packaging should give consent as should those featured in a multimedia product.

Music

The use of music in a multimedia publication may require the obtaining of synchronisation licences(38) and the payment of mechanical royalties(39). Commissioned music by the multimedia producer can avoid both these problems, and may lead to potentially lucrative spin-offs (40).

There are three important copyright issues relating directly to aspects of the WWW itself. It would seem that the actual layout of a webpage, as opposed to it's content, would be capable of protection as a published edition, in that there is copyright in the typography and layout of a work. Thus to copy the layout of a web page, something that the browser technology makes very easy, is potentially a infringing action. This may be ameliorated to some degree by the fact that a the moment the HTML standard is still a fairly limited technology, and thus there are only limited ways of designing a page(41).

Another as yet unresolved question concerns the issue of a webserver which does not itself contain any infringing material, but which has links to sites that do. Does the owner of that website incur any liability with respect to the infringing material by virtue of providing links which users can follow to that material at other sites, especially where the links explicitly refer to the fact that the material is infringing?

Finally, there is the issue of caching. One of the solutions to the slow WWW link times, especially to transatlantic websites, has been the development of various levels of local storage of copies of resources held on remote websites. At the simplest level, this may simply be storage of copies of recently visited webpages on a user's PC, either in RAM or in a hard disk cache. At a somewhat higher level, some sites, such as HENSA in the UK, store large numbers of webpages in their caches, users can then set their browsers to check if pages are stored in those local caches, before attempting to access the remote website. However, a possible problem arises out of this clever workaround, in that the CDPA 1988 states that rights exclusive to the owner of a copyrighted work include its reproduction in any material form, and further that this includes storing the work in any medium by electronic means(42). Whether or not this apparent infringement of intellectual property rights will affect the use of caching technology remains to be seen, although web sites with "revolving" commercial advertising(43) - may see caching as a threat to their future viability(44).

20 Indeed, as the HE funding obtained from the government continues to decrease, Universities are likely to look increasingly to alternative forms of revenue generation, and their attitude towards the ownership and exploitation of intellectual property rights may then become less informal.

21Up to 125 years from the end of the year in which the work was created. If the work is published commercially before the end of 75 years after its creation, the term is 50 years from the end of the year of publication.

22A limited amount of legislative material may now be found on the HMSO Publications server

23 See the URL http://www.pls.com:8001/d2/kelli/httpd/htdocs/his/2.GBM (as of 14/11/95).

24 See the URL http://canada.justice.gc.ca/Loireg/index_en.html(as of 14/11/95).

25 See the URL http://austlii.law.uts.edu.au/austlii_sources.html (as of 14/11/95).

26 OJ1993 L290, adopted in October 1993.

27 The Community having decided to adopt the highest level of term protection amongst the Member States, that of Germany.

28 SI 1995 No. 3297. This substitutes the Copyright, Designs and Patents Act 1988, s5, s12, s13, s14; amends s57(1)(b), (2)(b), 79(4), 80(6), 81(5), 85(2), 105(2), 117, 124, 154(3), 179, 191, 211(1), 212, .Sch 1, para 9. and adds s15A, s66A, s172A.

29 The UK Patent Office issued a consultation paper with regard to this issue. See (1995) 11 CLSR 107. for details.

30 See Appendix XX

31 Wall Street Journal 27 July 1995, section A1

32 That is, a limited right to make RAM and hard disk copies, so that the electronic publication can be used by a computer, but not a general right to copy and distribute.

33 As performer's rights can include not just featured performers, but also backup musicians and singers, chorus girls and crowd extras.

34 Where a performer has died, the right of consent may well have been transmitted to their heirs.

35 Note that consent applies only to 'first fixing' although this problem can in turn be overcome by copyright.

36 SI 1995 No. 3297

37 Applies in the US and a number of other jurisdictions, but not the UK.

38 The consent of the copyright owner to use music and lyrics in synchronisation with or timed relation to moving images.

39 Payment above and beyond that for the synchronisation licence for each use of the music.

40 A example of this would be the music commissioned for the video game "Super Mario Brothers" which has since been used in a successful dance mix record.

41 Although it has been suggested in the computer software copyright debate that the fact that there are only a limited number of ways of creating a work does not necessarily prevent an individual gaining a copyright. See Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd [1994] FSR 275; [1994] 1 Masons Computer Law Reports 2.

42 CDPA 1988 s16.

43 Where each time a web page is accessed a new advertising logo is seen.

44 Although apparently it is possible to add code to a webpage which in effect tells the caching software that the owner of that page does not wish it to be cached, see Wired 3.12 December 1995.

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