What amounts to copying a substantial part of a work
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22 January 2012
Section 16(3) of the Copyright, Designs
and Patents Act 1988 ("the Act") states "references in this Part to the
doing of an act restricted by the copyright in a work are to the doing
of it - (a) in relation to the work as a whole or any substantial part
of it, and (b) either directly or indirectly; and it is immaterial
whether any intervening acts themselves infringe copyright."
When considering whether a substantial part of a material has been
copied the part of the copyright work which has been copied is what
needs to be considered, not part of the copy as the test is a
qualitative test not a quantitative test.
In the case of HRH Prince of Wales v Associated Newspapers Ltd [2006]
EWHC 522 the qualitative test was applied when the court decided
copyright infringement had occurred when only parts of a journal were
copied, but those parts were the parts which were of most interest to
readers.
In the Nova Productions case the Court of Appeal held that where an
amount is too general to a substantial part there would be no copyright
infringement.
In The Da Vinci Code case the Court of Appeal held that where work fell
on the side of being an idea rather than an expression there would be
no copyright protection.
In the Designers Guild it was established that once copying had been
established, the question was whether what was copied formed a
substantial part of the original copyright work. The court will look at
the similarities in the works when deciding whether their cumulative
effect adds up to a substantial part of the copied work.
An inference of copying will be concluded where the similarities are
enough to justify copying.
Where the part of the work copied is a very important part of the
original work copyright infringement may occur (as the test for
infringement is qualitative). However the work should be assessed as a
whole and should not be split when assessing the whether or not the
work has been copied.
Infringement can also occur indirectly where the author of a work
copied the original through a re-creation of the original work.
In Infopaq International A/S v Danske Dagblades Forening, Case C-5/08
the ECJ said that words, considered in isolation could not be
protecrted as they were not the intellectual creation of the author.
However, there could be infringement if the elements reproduced (more
than isolated words) were the expression of the intellectual creation
of their author. In that case the judge stated:
"As regards the parts of a work....there is nothing in the Copyright
Directive or any other relevant Directive indicating that those parts
are to be treated any differently from the work as a whole. It follows
that they are protected by copyright since, as such, they share the
originality of the whole work... the various parts of a work thus enjoy
protection under Article 2(a) of [the Copyright Directive], provided
that they contain elements which are the expression of the intellectual
creation of the author of the work."
By Owen Ross - Owen is a trainee solicitor with
Lawdit Solicitors and can be contacted through email at
owen.ross@Lawdit.co.uk.
About the Author
Lawdit
Solicitors offer services and advice for litigation,
commercial contracts, Intellectual Property and IT legal agreements. We
are experts in commercial law with a heavy emphasis on Intellectual
Property, Internet and e-commerce law. Lawdit is a member of the
International Trademark Association, the Solicitors' Association of
Higher Court Advocates and we are the appointed Solicitors to the
largest webdesign association in the world, the United Kingdom Website
Designers Association.
