Murdoch's Term of the Week: Copyright

A recent EUIPO decision has cancelled McDonald's exclusive ownership of the 'Mc' trademark, marking a second victory for Supermac's in the ongoing battle between the two fast food outlets.

Whether its the above fast food trademark war, the controversial EC Directive on copyright or the Premier League's recent High Court action to ban unlicensed streams, this issue is rarely out of the spotlight. This week's TOTW offers insight into the  world of copyright.



Copyright is a property right whereby the owner of the copyright in any WORK(qv) may undertake or authorise certain acts in the State, referred to as acts restricted by copyright: Copyright and Related Rights Act 2000 ss.17 and 37. Copyright is presumed to exist in a work until the contrary is proved; this presumption applies in any proceedings, civil or criminal, for infringement of the copyright in any work (ibid s.139).

It has been held that the intention of parliament in enacting copyright legislation was to reward the skill involved in producing an original work and not to reward the good memory, verbal acuity and gift of articulation of a bright child who entertainingly recounted a story the child had been told: Gormley v EMI Records (Ireland) Ltd [2000] 1 IR 74.

Copyright subsists in (a) original literary, dramatic, musical or artistic works, including computer programs, (b) sound recordings, films, broadcasts or cable programmes, (c) the typographical arrangement of published editions, and (d) original databases (ibid s.17(2)). It is the creativity and not the language which creates the copyright; originality does not require the work to be unique, but merely that there should have been original thought: Gormley v EMI Records (Ireland) Ltd [1999 SC] 1 ILRM 178.

Copyright protection does not extend to the ideas and principles which underlie any element of a work (ibid s.17(3)). Copyright does not subsist in a literary, dramatic or musical work until the work is recorded in writing or otherwise, by or with the consent of the author (ibid s.18) or in sound recordings until the first fixation of the sound recording is made (ibid s.19).

The acts restricted by copyright are the copying of the work, the making of the work available to the public, and the making of an adaptation of the work (ibid s.37(1)). The author of a work is the first owner of the copyright, but there are exceptions eg where the work is made by an employee in the course of employment (ibid s.23). The previous “commissioner” exception has been abolished.

The copyright in a work is transmissible by assignment, by testamentary disposition or by operation of law, as personal or moveable property (ibid s.120(1)). An assignment of copyright is not effective unless it is in writing and signed by or on behalf of the assignor (ibid s.120(3)). The government may restrict copyright protection for authors from non-convention countries where Irish works are not adequately protected in those other countries (ibid s.190). There are specific provisions in the Act dealing with DATABASE RIGHTS, which subsist independent of copyright (ibid ss.320-361). International protection of copyright is obtained via the Berne Copyright Union (qv) and the Universal Copyright Convention (qv).

The Controller of Patents, Designs and Trade Marks has jurisdiction in relation copyright licensing, licensing schemes, registration of licensing bodies and the determination of disputes between licensing bodies and persons with or requiring licences (ibid ss.149-181). A licence scheme is in the nature of a standing invitation to treat: Phonographic Performance (Irl) Ltd v Controller of Industrial and Commercial Property [1993 HC] 11 ILT Dig 162. See also Allibert SA v O’Connor [1982] ILRM 40; Phonographic Performance (Ire) Ltd v Chariot Inns Ltd [1993 HC] 11 ILT Dig 162; Phonographic Performance (Ireland) Ltd v Controller of Industrial and Commercial Property [1996 SC] 1 ILRM 1.

Many regulations have been made in relation to the Copyright and Related Rights Act 2000 eg SI No 404 of 2000 (commencement of certain Parts / Sections); SI No 405 of 2000 (recording of broadcasts and cable programmes for archival purposes); SI No 406 of 2000 (provision of modified works); SI 407 of 2000 (recording for purposes of time-shifting); SI 408 of 2000 (works of folklore); SI 409 and 410 of 2000 (educational establishments); SI No 411 of 2000 (material open for public inspection - international organisations); and SI No 427 of 2000 (librarians and archivists - copying of protected materials).

See “The Copyright and Related Rights Act 2000 by Terence Coghlan BL in Bar Review (March 2001) 294. For amendment to the 2000 Act to complete the implementation into Irish law of Directive 2001/29/EC, see SI No 16 of 2004. [Bibliography: Clark & Smyth; Kelly & Murphy; Copinger UK; Laddie UK; Oppenheim UK]. See BREHON LAWS; COMMERCIAL PROCEEDINGS; DATABASE; DATABASE RIGHT; DESIGN; FAIR DEALING; INFRINGEMENT OF COPYRIGHT; INTANGIBLE ASSET; INTERNET; IRISH COPYRIGHT LICENSING AGENCY; LICENCE TO RIGHT, COPYRIGHT; MORAL RIGHTS; ORPHAN WORK; PERFORMERS’ RIGHTS; RECORDING RIGHT; RIGHTS PROTECTION MEASURE; SOUND RECORDING; WRITING.



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