Page 90 - Law and the Media

Copyright
3.3.6 Formalities

Under the CDPA, the owner of copyright does not need to go through any formalities such
as registration to protect a copyright work. No copyright notice need appear on a work.
However, the formula ©, the name of the copyright owner and the date of first publication
must be placed on a work for international protection under the Universal Copyright
Convention.

3.4 Infringement

The protection of copyright gives the owner of a work the exclusive right to deal with the
work in various ways. The copyright owner can permit or prohibit others to deal with the
work. A licence can be granted to use the work for one purpose, or generally. Any of
the following acts done without the permission of the copyright owner amount to a breach
of copyright. However, the consent of the owner is a good defence to an infringing act.

3.4.1 Copying

Copying is an infringement of all types of copyright. If an article in one newspaper is
reproduced verbatim in another, it will be a clear infringement. Moreover, the whole article
need not be taken. Copying a ‘substantial part’ of the original will be an infringement of
copyright. It is not necessary to take most of the original in quantitative terms in order to be
a ‘substantial part’. It is enough that the most significant or distinctive part is copied.

The issue of whether the part taken is ‘substantial’ is always a difficult question of fact. If
the first notes of Beethoven’s Fifth Symphony were taken by a rival composer, but not the
rest, that could be an infringement of copyright (if the copyright had not expired). These
notes are so distinctive as to amount to a ‘substantial part’. In the more modern technique of
sampling, very short extracts are taken from a record. If an extract is a distinctive ‘riff’ or
‘hook’, it can amount to an infringement of copyright (Produce Records v BMG
Entertainment (1999)). The same principle applies to written works or film clips. The
copying need not be exact. Minor changes will not prevent the infringement from taking
place, especially if the changes are intended deliberately to avoid a copyright action.

Even a parody or pastiche may breach copyright. The question is the degree of similarity
between the parody and the original. In Williamson Music Ltd v The Pearson Partnership Ltd
(1987), an advertising agency took a song from South Pacific called There Is Nothing Like
A Dame and produced a commercial for a bus company praising its waitresses, calling it
There Is Nothing Like Elaine. The owners of the copyright in South Pacific obtained an
interlocutory injunction. Although the words were totally different, the tune was the same.
The question for the court was whether the parody made use of a substantial part of the
expression of literary copyright. The use for which the parody is put appears to be relevant.
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