The Rag Committee approaches Cam TV with an idea for a programme to fill an entire day's schedule. The programme is to be called 'Secret Rag', and involves the recording of a number of events during rag week. Advise Cam TV whether they could broadcast the following without infringing any intellectual property rights.
A. A video recording of parts of a law lecture. Thanks to heavy editing and shortening, the lecturer appears to advocate the abolition of examinations, although this is not in fact what he said. The video includes footage of the new law building.
B. A recording of a private rehearsal taking place in King's College Chapel. The works rehearsed include a new anthem written by the organ scholar, to be premiered later in the year. On the tape several people are heard to remark that the opening theme of the anthem bears a strong resemblance to a current chart record. The organ scholar dismisses the allegation furiously, claiming that he never listens to such trash.
C. A video-taped interview with a local gallery owner who is mounting an exhibition of contemporary artistic photographs. The interview features two of the photographs in particular. When describing them the gallery owner mixes up their photographers. To make amends, the Rag Committee has reproduced both photographs, correctly attributed, in the Rag magazine.
Please note that when an Act is not mentioned for a section, this indicates a section of the Copyright, Designs and Patents Act 1988 is being referred to.
A
There are two works here, and I shall examine them separately. The first is the lecturer's speech, which contains copyright at the point that it becomes fixed via the video recording. The second is the footage of the new law building.
When the lecture is recorded, two works are created. The first applies to the lecture given, and the words and performance of them. A secondary copyright applies to the sound recording made by Cam TV. Cam TV cannot violate their own copyright, so the question becomes to what extent Cam TV is allowed to reproduce the speech without permission of the lecturer.
The Copyright, Designs and Patents Act 1988 defines literary works in s.3(1) as 'any work, other than a dramatic or musical work, which is written, spoken or sung'. This clearly includes the speech given by the lecturer. Lest this should be in doubt, Norowzian v Arks Ltd (No. 2) (CA) [2000] also makes clear in defining a dramatic work as 'a work of action, with or without words or music, which is capable of being performed before an audience’ (Nourse L.J). S.3(2) states that 'copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise', but the fixing of the speech to the video recording activates this provision and so a copyright is created. Assuming this is after 1995, we apply The Duration of Copyright and Rights in Performances Regulations 1995 (SI 1995/3297) alterations to s.12(2), meaning that 'copyright expires at the end of the period of 70 years from the end of the calendar year in which the author dies'.
Any reproduction of the speech video recording is thus prevented under s.20(a), which prevents the broadcasting of the work or its inclusion in a cable programme service if it is 'a literary, dramatic, musical or artistic work'. This is clearly true in this case, and so broadcast is restricted.
A possible defence is that of fair dealing. s29(1) states that 'fair dealing with a literary, dramatic, musical, etc, work, for the purpose of research or for a non-commercial purpose, does not infringe any copyright in the work, provided it is accompanied by a sufficient acknowledgement of the source'. s30(1) then adds that 'fair dealing with a work for the purpose of criticism or review, of that or another work, or of a performance of a work, does not infringe copyright in the work, provided it is accompanied by a sufficient acknowledgement, and provided the work has actually been made available to the public'. This defence is problematic in this case for two main reasons. Firstly, we cannot know on the facts if the purpose is non-commercial, but in general broadcasters are commerical enterprises. Secondly, on the facts it does not seem that the reproduction of the speech is for bona fide research. It is not suggested that commentary is added, and so the claim under s30(1) that the work is for criticism or review is extremely weak as this appears to be a mere edited reproduction. A fair trading defence is thus likely to fail, and Cam TV would thus be screening an infringing work even if we do not consider any other issue.
Separately from this, the question of moral rights arises. The lecturer has the right under s.80 to not to have his work subjected to derogatory treatment. s.80(2)(b) states 'the treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director'. The distortion of the lecturer's views via the cuts imposed would almost certainly be prejudicial to the reputation of the author of the speech, in that it misrepresents his views and is thus likely to damage his academic standing.
There are thus two major reasons why Cam TV should not broadcast the VT, and both are infringements likely to attract damages in any resultant claims against them. Given that it is produced by the Rag Committee it might well be a parody under US law, but UK fair dealing is far stricter than US fair use and the tape would require huge re-editing not to be a clear infringement.
The video footage of the new building is comparatively unproblematic in copyright terms; whilst the designs for the building are protected under copyright, the footage of the building itself is unproblematic as s.62(1)(a) defines buildings as a permitted class for filming under s62(2)(c). A building cannot be a work of artistic craftsmanship by definition, and freedom of panorama would apply for any sculptures within the building under s.62(1)(b) as it is a public place. S.31(1) means that any incidental inclusion of artistic work on the walls would also not be an issue if the screen time is so fleeting as to show no intent to include this (I shall look at this further in part C).
B
The case of the organist's song is somewhat simpler. The potentially infringing work is clearly a song, as defined by CDPA s. 3(1) as a work ‘consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music’.
A major question here is if the opening theme is in fact similar to the chart song. Assuming it is, we proceed to the question of if the Hawkes & Son (London) Ltd v. Paramount Film Service Ltd [1934] test is passed: was "a substantial, a vital and an essential part" of the original work copied? This test depends on the importance of the theme to the original work, although it is clear in Ludlow Music v Robbie Williams (ChD) [2001] FSR 271 that this is smaller than might be supposed. The original line "Every son of God has a little hard luck sometime, especially when he goes around saying he's the way" was held to be similar to Williams' lyric "Even the son of God gets it hard sometimes, especially when he goes around saying, 'I am the way'". This is merely one line out of an entire song, but it was held that "the extent of the copying is substantial, although not by much". If we can hold this to be substantial copying, it seems clear that the opening bars should qualify. EMI Music Publishing Ltd v Papathanasiou (1993) E.M.L.R. 306 also makes clear that 'what is worth copying is worth protecting', and this strict attitude can also be seen in Ludlow.
Also, EMI makes clear that unconscious copying (cryptomnesia) is held not to be a defence, although on the facts this was held not to have occurred in EMI. The apparent extreme similarity of the opening bars is likely to invalidate the claim in the facts that the organist 'never listens to such trash' as given the substantially similar nature of the work to the chart work and close timing it is likely that the organist has heard the song played or sung by students regardless of his own choice of listening. The organist's work is therefore highly likely to be deemed infringing.
The original work is thus limited under s.21 from adaptation, and the fact that the organist's piece is a derivative work means that it may not be copied, performed, shown, played, broadcast, or displayed over cable (s.18-20). It should however be noted that the changing of the mere opening bars will render the whole new song a non-infringing work.
C
There are several issues here.
S.31(1) means that any incidental inclusion of artistic work on the walls would also not be an issue as 'Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film, broadcast or cable programme', but incidental is hard to define without case law. The Football Association Premier League v Panini UK Ltd [2003] EWCA Civ 995 test "why has work 'A' been included in work 'B'" shows that the CA appears to have defined incidental as close to substantial in s.16(3)(a). This can be seen in the interpretation of the section as it applies in this case; the finding by Chadwick LJ that
"The authenticity of the image of the player as it appears on the sticker or in the album (work 'B') depends on the inclusion in work 'B' of the individual badge and the FAPL emblem (work 'A') in which copyright subsists. It is impossible to say that the inclusion of the individual badge and the FAPL emblem is "incidental". The inclusion of the individual badge and the FAPL emblem is essential to the object for which the image of the player as it appears on the sticker or in the album was created."
gives us a clearer example of this test. Applying the Panini logic here, any pictures purely in the background of the interview are likely to be incidental as they are not essential to the object of the interview. The interview however 'features two of the photographs in particular'. Given that they are featured specifically and described by the gallery owner they are essential to the object of the interview. They therefore exceed the Panini test for infringement, and means that that the interview as a whole is encumbered by the copyright licences of the two photographs at first blush.
A potential defence to this is s.30(1), which allows for 'Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement.' The problem here is that a sufficient acknowledgement has not been given. As s.30(2) and (3) specifically exclude photographs, we must exclude s.30 as a defence.
The other defence sometimes used is that of the reproduction of artistic works which are for sale. Assuming that the exhibition is commercial, s.63(1) 'It is not an infringement of copyright in an artistic work to copy it, or to issue copies to the public, for the purpose of advertising the sale of the work.' may be claimed. We can dismiss this in this case, as even if we accept that the interview could have been to advertise the works (dubious in and of itself), any reproduction or broadcast of the videotape by Cam TV would itself become an infringing copy under s.63(2) if a legitimate copy 'is subsequently dealt with for any other purpose, it shall be treated as an infringing copy for the purposes of that dealing, and if that dealing infringes copyright for all subsequent purposes'. Cam TV's broadcast would thus be infringing.
Even were we to hold for the sake of argument that the works were not de facto infringing, the moral rights of the authors pose an obstacle to broadcast. Firstly (and briefly), any cropping, bad lighting or colour distortion may be held infringing of the moral right under s.80 to protect the author's work from being subjected to derogatory treatment. s.80(2)(b) states 'the treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director', and affecting the work negatively can amount to this. This is however the lesser concern.
Secondly, the author has the right under s.77(4)(a) to be identified when 'the work is published commercially or exhibited in public, or a visual image of it is broadcast or included in a cable programme service'. Cam TV's broadcast clearly falls under this clause, and thus is open to action by authors. Clark v Associated Newspapers [1998] 1 All ER 959 makes clear that C can claim both damages to reputation and an injunction against publication if a 'significant number of readers had been or were likely to be misled more than temporarily and inconsequentially into believing that C had written the articles and whether C had or was likely to suffer damage as a result'. If the art is specifically wrongly credited in the interview, the interview is extremely likely to mislead as to authorship. The likely financial implications for Cam TV revolve around the expected income and established goodwill of the artists wrongly identified, and are impossible to quantify on the facts given.
Overall, it is clear that broadcast must be heavily advised against, especially as infringement has been demonstrated as wilful as Cam TV has solicited advice.
To make amends, the Rag Committee has reproduced both photographs, correctly attributed, in the Rag magazine.
The Rag Committee's printing of the photographs with correct attribution to apologise is ironically itself a separate infringement. The reproductions are for no purpose other than the correction of a news report, which itself cannot reproduce photographs. The correction itself also lacks the rights to reproduce the image, and the reproduction and distribution are thus infringing and thus actionable under s16(1)(a) and (b). The one saving grace of this matter is that it may lessen the moral rights damages that can be claimed for the misattribution in the interview, but this could be done without the photographs. Since the date of printing is passed, Rag Committee unfortunately have infringed due to good faith mistake but have nonetheless infringed. It should however be noted that the damage cost of a bad quality reproductions may not exceed the value the publication removed from the damages claimable under due to the interview misattribution, and may have been a positive outcome overall. This depends on knowledge of values of art etc. untold in the facts.
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