Protected works

Protected works

The following types of work are capable of being protected by copyright:

• Literary, dramatic, musical or artistic works. Note that copyright does not exist in literary, dramatic or musical works unless and until the work is recorded in some way, "in writing or otherwise"
• Sound recordings, films or broadcasts
• Typographical arrangements of published editions

Literary works

A literary work is any work, other than a dramatic or musical work, which is written, spoken or sung, and includes the following:

• A table or compilation other than a database. A compilation is a body of materials, representing a single exercise of taste and judgment, where the contribution of the author consists of the skill or labour employed in arranging, selecting or collecting the individual parts.
• A computer program and preparatory design material for a computer program.
• A database which by reason of the selection or arrangement of its contents constitutes the author's own intellectual creation. A database is a collection of independent works, data or other materials which are arranged in a systematic or methodical way and are individually accessible by electronic or other means. A database may also qualify for protection under the separate database right provided by the Copyright and Rights in Databases Regulations 1997.

No literary merit or style is required for a work to be protected as a copyright work. It can include, for example, design specifications used in the manufacture of industrial articles, business reports and marketing plans.

Attempts to protect single words have failed because they do not amount to literary works. A literary work is something which is intended to afford either information or instruction, or pleasure in the form of literary enjoyment.

Newspaper headlines may, however, be protected as literary works.

Dramatic works

Examples include: the script of a play, a screenplay for a TV programme, or a choreographed dance routine which has been recorded in some way.

Dramatic work means a work of action, with or without words or music, which is capable of performance before an audience. A poem, even though it can be performed by being recited, is not a work of action; it is, therefore, protected as a literary rather than dramatic work.

It is unclear whether TV programme formats can be protected as dramatic works. A format will consist of a number of distinctive and regular features, but the programme will also include material that changes in each separate performance. The issues are whether the distinctive features on their own can be identified as an original dramatic work and whether they have sufficient unity to be capable of performance so as to present a coherent and meaningful show.

Even if a court were prepared to accept that the format of a programme is capable of protection as a dramatic work, similarities that relate to commonplace matters and which are not particularly detailed will probably not be enough to establish that a substantial part of the work has been copied.

Musical works

A musical work means a work consisting of music, exclusive of any words or actions intended to be sung, spoken or performed with the music.

The court has said that the essence of music is "combining sounds for listening to", and that music is not the same as "mere noise", the sound of music being intended to produce effects of some kind on the listener's emotions or intellect.

In appropriate cases, performing directions and ornamentation may also be protected as musical works if they make some contribution to the sound of the music when performed.

Artistic works

An artistic work is:

• a graphic work, photograph, sculpture or collage, irrespective of artistic quality;
• a work of architecture, i.e. a building or a model for a building; or
• a work of artistic craftsmanship.

A collage involves, as an essential element, the sticking of 2 or more things together.

A building includes any fixed structure and a part of a building or fixed structure.

A graphic work includes any painting, drawing, diagram, map, chart or plan, engraving, etching, lithograph, woodcut or similar work.

A photograph is a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film. The intention is that this is technology-neutral, e.g. so that it would include holograms and digital photographs.

A sculpture includes a cast or model made for purposes of sculpture.

A dictionary definition of sculpture is "works of 3D representative or abstract forms, especially by carving stone or wood or by casting metal or plaster".

The court has said that the following points should be considered in determining whether an object is a sculpture:

• think about the normal use of the word 'sculpture': although the concept can go beyond what you would expect to find in art galleries, you can't stray too far from what would normally be regarded as sculpture;
• artistic worth is not relevant;
• not every 3D representation of a concept counts as a sculpture;
• the process of fabrication is relevant, but doesn't on its own decide the issue;
• a sculpture should have, as part of its purpose (as intended by its creator), a visual appeal in the sense that it might be enjoyed for that purpose alone, whether or not it might have another purpose as well. It has to have the intrinsic quality of being intended to be enjoyed as a visual item.

Applying these guidelines, the court concluded that replicas of 'Stormtrooper' uniforms and helmets from the first Star Wars film were not sculptures because they had not been created with artistic intent.

For works of artistic craftsmanship, it's not enough that a work is a work of craftsmanship; it must also have some aesthetic appeal, with relevant considerations including the intention of the creator and expert evidence. Artistic quality is required for a work to qualify as one of artistic craftsmanship. Examples of items which might qualify as works of artistic craftsmanship include hand-painted tiles, stained-glass windows and wrought-iron gates.

Works of architecture and (as noted above) works of artistic craftsmanship do require artistic quality; other artistic works do not. This means that a wide range of works can potentially constitute artistic works, including functional items like:

• Flow diagrams, charts and maps
• Graphic design materials
• Engineering and design drawings
• Logos or mastheads

Sound recordings

A sound recording is a recording of:

• Sounds, from which the sounds may be reproduced
• All or part of a literary, dramatic or musical work, from which sounds reproducing that work or part may be produced.

The first category is intended to cover recordings of sounds which are not based on underlying literary, dramatic or musical works, such as a recording of a bird singing, while the second category would include recordings of existing copyright works.

Films

A film is a recording on any medium from which a moving image may be produced, whatever the means of doing so. Film soundtracks are protected by copyright as part of the film when accompanying the film and by sound recording copyright in all other circumstances.

Broadcasts

A broadcast is an electronic transmission of visual images, sounds or other information, which is transmitted:

• for simultaneous reception by members of the public and is "capable of being lawfully received by them" (first limb); or
• at a time determined solely by the person making the transmission for presentation to members of the public (second limb).

Internet transmissions are, however, excluded from being broadcasts unless they are:

• transmissions taking place simultaneously on the internet and by other means;
• concurrent transmissions of a live event; or
• transmissions of recorded moving images or sounds which form part of a scheduled programme service.

In other words, internet transmissions that are essentially the same as conventional broadcasts will not be excluded.

The first limb covers, for example, traditional scheduled transmissions on public television or radio (including online radio) channels, where recipients have no choice as to what they receive or when they receive it. By contrast, it does not cover on-demand services or other services where a person can decide when and where they receive the transmissions.

The second limb covers transmissions of information to specific or selected groups of people, rather than the public as a whole.

Transmissions made available via a website can potentially be broadcasts. For example:

• Simultaneous re-transmission by a radio or television station of broadcast material over the internet (simulcasting) is likely to constitute a broadcast, since transmissions taking place simultaneously on the internet and by other means are not excluded from protection.
• Streaming of back-to-back pre-programmed music and/or video chosen by the service provider (a form of webcasting) would constitute broadcasting. But more advanced forms of webcasting, such as interactive webcasting, which give the user a choice as to what content they receive or the time they receive it, would not be a broadcast. Making material available on a website for download via peer-to-peer software will also not constitute broadcasting because a person who chooses to download the material has a choice as to what they receive and when.

What is protected as a broadcast is the transmission, not the works which happen to be included in the transmission. Copyright works included in the broadcast (for example, logos, titles or music) may be protected as separate copyright works.

Special rules apply to satellite broadcasts.

Within the European Economic Area (EEA), a country-of-origin principle applies for licensing of copyright material in cross-border satellite broadcasts. This means that when a satellite broadcaster transmits a copyright work from one EEA state to another, they are only required to get the copyright holder's permission for the state in which the broadcast originates. This avoids satellite broadcasters having to secure individual licences for every member state in which their broadcasts are received.

In the UK:

• The country-of-origin principle is applied to satellite broadcasts transmitted from any country into the UK. Legitimate satellite broadcasts of copyright works transmitted into the UK from abroad will not need specific right holder permission for the UK, except where both of the following apply: the broadcast is commissioned or uplinked to a satellite in the UK and it originates from a country that provides lower levels of copyright protection.
• UK satellite broadcasters may no longer benefit from the country-of-origin principle for broadcasts into the EEA. They might need to get extra right holder permissions covering the EEA states to which they broadcast, depending on how the domestic legislation of each EEA member state treats broadcasts originating in non-EEA countries - for example, whether they apply the country-of-origin principle to non-EEA broadcasts, as UK law does.

Typographical arrangement of published editions

Published edition means a published edition of the whole or any part of one or more literary, dramatic or musical works. Such typographical arrangements are not protected to the extent that the arrangement reproduces the typographical arrangement of a previous edition.

Relationship between categories of copyright

Different copyright works can exist in the same subject-matter. For example, a pop song recorded on a CD will attract several different copyrights:

• The music will be protected as a musical work.
• he lyrics will be protected as a literary work.
• The sound recording of the song will be protected as a sound recording.

Some forms of copyright overlap. For example:

• A circuit diagram can be protected as both a literary and an artistic work.
• A film may be protected by copyright as a film and also as a dramatic work, provided that it is a work of action capable of being performed before an audience.
• Literary and artistic copyright can exist in a calligraphic work in which the calligraphy is part of the work.

The 1988 Act does, however, provide that certain categories of copyright work cannot overlap. For example:

• A literary work cannot be a dramatic or musical work.
• A musical work does not include any words or action intended to be sung, spoken or performed with the music.
• A photograph (protected as an artistic work) is a recording of light on any medium on which an image is produced "which is not part of a film".

Originality

A literary, dramatic, musical or artistic work must be original in order to qualify for copyright protection. Originality means that the author must have created the work through their own skill, judgment and individual effort and that it is not copied from other works.

It is not necessary for the whole of a work to be original for copyright to exist.

The level of originality required in the UK is fairly low; for example, works which have been deemed to be the product of sufficient skill and labour include pools coupons and calendars.

Previously, it was generally accepted that titles and slogans were not protected by copyright either because words or titles were not literary works in the first place, or because they are not the product of sufficient skill and labour to be original. However, following a decision that newspaper headlines can have the necessary quality of originality to qualify as independent literary works if the subject matter is the author's own intellectual creation, it may be that titles or slogans will be protected if they can be said to be original in the sense of being the author's own intellectual creation, but there has not yet been a court decision to this effect.

The requirement that, in order to be original, a work must not be copied from another work does not mean that derivative works (that is works based on, or in some way derived from another) cannot be original so as to be protected by copyright. The key issue is whether sufficient skill and labour has gone into the creation of the new work.

Databases may be protected by copyright (as opposed to the separate database right) only if they are original in the sense that by reason of the selection or arrangement of the contents of the database, the database constitutes the author's own intellectual creation.

A database will only attract copyright if the selection or arrangement of its data amounts to an original expression of the creative freedom of its author. The intellectual effort and skill of creating the data are not relevant for the purpose of this assessment, and it is also not relevant whether the selection or arrangement of the data includes the addition of important significance to the data. Even if significant skill and labour are put into setting up a database, it will not qualify for copyright protection unless that skill and labour express some originality in the selection or arrangement of the data. A database whose structure and arrangement are determined by a set of inflexible rules or criteria (including those assembled by automated means) does not attract database copyright.