These are the slides for a seminar on creative output that I gave on 30 Oct 2013. "Creative output" for these purposes means works of art and literature and design. Works of art and literature connote visual and literary arts and performing arts. Investment in visual and literary arts are protected by copyright and performing arts by rights in performances. Design means the design of products that are likely to be reproduced though not necessarily in a large scale, Design can be functional or ornamental. Functional designs are protected by unregistered design right. Ornamental designs that are new and have individual character can be protected by registration as registered designs or as registered Community designs. There is also 3 year protection throughout the EU against copying for designs that could be registered as registered or registered Community designs. This presentation considers copyright: subsistence, qualification, title, duration, infringement, economic and moral rights. It also touches on rights in performances, design rights, registered designs and registered and unregistered Community designs.

1. Creative Output
Copyright, Related Rights and Designs
Jane Lambert
4-5 Gray’s Inn =
Square, Gray’s Inn, London WC1R 5AH
+44 (0)20 7404 5252
jlambert@nipclaw.com
www.4-5.co.uk

2. Introduction
● Intellectual assets: brands, design,
technology and works of art and literature
● Works of art and literature
○ Visual arts
○ Literary arts
○ Performing arts
● Designs
○ Functional
○ Decorative

3. Legal Protection of Art and Literature
● Visual and literary works are protected by
copyright (Part I of the Copyright, Design
and Patents Act 1988 (“CDPA”).
● Performances are protected by rights in
performances (Part II of the CDPA).

4. Designs
● Functional designs are protected by
unregistered design right (Part III of the
CDPA).
● Decorative designs are protected by
registration under the Registered Designs
Act 1949 or Community Design Directive or
as unregistered Community designs.

5. Copyright
● A property right which subsists in original
artistic, dramatic, literary and musical works,
broadcasts, films and sound-recordings and
typographical arrangements of published
editions (s.1 (1)).
● Can be assigned or transferred by will or
operation of law (s.90 (1)).

6. Copyright
Two conditions are required for the subsistence
of copyright:
● A work must fall within one of the categories
mentioned in s.1 (1).
● The qualification requirements of s.153 must
be fulfilled.

7. Copyright
Copyright can subsist in an artistic, dramatic,
literary or musical work only if it is original.
Originality is not defined in the Act but the case
law indicates that it is the application of at least
some independent skill and labour.

8. Copyright
S.153 (1) requires the author of a work to be a
“qualifying person” or the work to have been
first published or broadcasted from a “qualifying
country”.

9. Copyright
Qualifying persons are nationals or residents of
the UK, its territories or countries which are
designated as “qualifying countries” in an Order
of Council.

10. Copyright
HMG has power to designate any state which
protects the work of British nationals and
residents under its own copyright laws as a
“qualifying country”.
As most states belong to TRIPS, Berne or the
UCC most are “qualifying countries.”

11. Copyright
Copyright can be infringed in two ways:
● Primary infringement: doing or authorizing
any of the acts specified in s.16 (1); and
● Secondary infringement: importing, selling,
distributing infringing copies knowing or
having reason to believe them to be such as
well as certain other acts that facilitate
infringement.

12. Copyright
The exclusive rights conferred by copyright are
subject to the large number of exceptions that
are set out in Chapter III of Part I of the CDPA.

13. Copyright
The author of a work or his or her employer is
the first owner of copyright in a work (s.11 (1)
and (2) CDPA).
The author is the person who created the work
(the producer of a sound recording or the
principal director or producer of a film) (s.9 (1)
(2))

14. Copyright
Duration of copyright:
● Life of the author plus 70 years in the case
of an artistic, dramatic, literary or musical
work (s.12 (1) and (2));
● Life of the director, author of the screenplay
or dialogue or composer plus 70 years in the
case of a film (s.13B (1) and (2)).

15. Copyright
● 50 years from the end of the year in which a
broadcast or sound recording was made or
less in the case of certain foreign nationals
(s.13A (2) and s.14 (2)); and
● 25 years from the end of the year in which a
typographical arrangement was published (s.
15).

16. Copyright
Special provisions as to subsistence and
duration of copyright apply to copyright works
made by HM or Crown servants in the course
of their duties (s.163).
Such copyright is known as “Crown copyright.”

17. Copyright
● Remedies for infringement are damages,
injunctions and other remedies for
infringement of a property right (see s.96 (2)
but see Twentieth Century Fox Film Corp
and Others v Harris and Others
● Actions are brought in Chancery Division,
IPEC or certain county courts.

18. Copyright
Some infringements give rise to criminal liability
which are prosecuted by local authorities or
organizations like FACT and FAST.
Collecting societies act on behalf of groups of
copyright owners to enforce copyright.
Collective licensing regulated by Chapter VII of
Part I of CDPA.

19. Copyright
In addition to rights conferred by s.2 (1) which
are called “economic rights”, authors of certain
works are entitled to the following “moral
rights”:
● to be identified as author
● to object to derogatory treatment of works.
and
● right to privacy of certain photos and films

20. Copyright
Moral rights can be enforced by claim for
injunction or other relief under s.103.
Right to be identified has to be asserted.
Moral rights have to be taken into account
when drafting licences and other agreements.

21. Rights in Performances
Part II of the CDPA conferred a right to object
to broadcasting, filming or taping of their
performances known as a right in a
performance upon:
○ Performers: actors, dancers, musicians, singers
etc; and
○ Recording and film studios and broadcasters
with a right to record or broadcast the performance

22. Rights in Performances
Performers enjoy both:
● economic rights (rights to object to recording
or broadcasting without consent) and
● moral rights (rights to be identified as a
performer and to object to derogatory
treatment of performances).

23. Rights in Performances
● Qualification requirement for subsistence as
in copyright
● Enforceable by civil action in the Chancery
Division, IPEC or certain county courts
● Some infringements are also offences
● Subject to a number of exceptions
● Regulation of collective licences

24. Unregistered Design Right
● A new IP right which subsists in original
designs
● Design means shape or configuration of an
article or part of an article
● Replaced artistic copyright as a means of
protecting investment in industrial designs
● Conferred by Part III of the CDPA

25. Unregistered Design Rights
● UK is almost the only country in the world to
confer unregistered design right
● Qualification requirement which are met by
UK and EU nationals and residents but
almost nobody else
● Very short term: 15 years if not exploited or
10 years from end of year of creation

26. Unregistered Design Right
● Designer, his or her employer or person who
commissioned the design is the first owner
of a design right
● Design right subsists from the fixation of the
design in a design document or prototype
● Design right is infringed by making articles to
a design or a design document for such
purpose

27. Unregistered Design Right
● Design rights enforced by civil proceedings
in the Chancery Division, IPEC or certain
county courts
● No criminal liability for design right
infringement
● Threats action available for groundless
threats
● Licence of right available for last 5 years

28. Design Registration
Designs that are new and have individual
character may be registered for up to 25 years
as “registered designs” for the UK under the
Registered Designs Act 1949 or as “registered
Community designs” under the Community
design Regulation.

29. Design Registration
Applications for registration as “registered
designs” for the UK are made to the IPO.
Applications for registration as “registered
Community designs” are made to OHIM in
Alicante.
Registration confers a monopoly of the design.

30. Design Registration
Design rights are enforced by proceedings in
the Patents Court or IPEC only.
Threats action for groundless threats.
Clause 13 of Intellectual Property Bill will create
a new offence of infringing a registered design
by copying if passed.

31. Unregistered Community Design
Not to be confused with design right.
Designs that could be registered as registered
or registered Community designs enjoy 3 years
protection from copying throughout the EU.
Proceedings can be brought in Chancery
Division, IPEC and certain county courts

32. Any Questions
JJ
Jane Lambert
Tel 020 7404 5252
jlambert@4-5.co.uk