What qualifies? Math exams - University of London Press Recall: math exams are literary works – they are printed or written matter This case stands for the “lowest standard” of work that has been found subject to copyright Vs Exxon case where court required that it “impart some substantial amount of intelligible information? Are math exams literary works? Includes works expressed in print or writing, irrespective of the question whether the quality or style is high “literary” seems to be used in a sense somewhat similar to the use of the word “literature” in political or electioneering literature – printed or written matter Accounting Forms - Bulman v One-Write (FCTD 1982) Background Issue was copyrighting forms used for an accounting system HELD: The forms are in a sense communicating, they tell you where to put information and that is an imparting of meaning or information (as per Exxon) So the forms are held to be literary works Plots, Scenes and Characters – Preston v 20th century Plots, scenes, characters that are clearly defined and well-known enough cannot be copied in a substantial form (in a sufficient level of detail) Must be well-known prior to the infringement (see Preston v 20th Century – Ewok example) Copyright cannot be limited literally to the text, or a plagiarist could make slight or immaterial variations If these things are copied in a sufficient level of detail, it will be infringement BUT cannot protect mere ideas or scenes “a faire” with copyright (stock characters, classic scenes, similar setups or plot characteristics) This can be a fine line, courts try to be flexible to protect author but not to extent to the protection of ideas Compilations –s.2.1/BC Jockey Club (race horse list)/Feist (Telephone book) Definition: a work resulting from the selection or arrangement of literary, dramatic, musical or artistic works or of parts thereof, or a work resulting from the selection or arrangement of data Must be ‘literary sense of functionally assisting, guiding, or pointing the way to some end” but no need to impart intelligible information (Bulman v One-Write) 2.1 (1) – if compilation consist of more than 1 type of category of work = compilation A compilation containing two or more of the categories of literary, dramatic, musical or artistic works shall be deemed to be a compilation of the category making up the most substantial part of the compilation.
PC Programs (Literary Works) – (Not ICT) – S.2 definition/Apple v Mac S2: “Computer program” means a set of instructions or statements, expressed, fixed, embodied or stored in any manner that is to be used directly or indirectly in a computer in order to bring about a specific result Protected as literary works Integrated circuit topographies have their own legislation, but it is little used Does not cover the solution to the problem per se – this is patent Rather it is the way the solution is expressed Merger Doctrine If there is only one way to express an idea, then copyright law should not protect that because it would effectively give a monopoly on the idea itself Apple v Mackintosh (SCC) – prog embed in chip a reproduction of language protected in CR. Issue: Object code burned into chip Direct mechanical copying of a computer program – is the code still protected when replicated in chip circuitry? HELD: Programs embedded in the chip are a reproduction of the programs in assembly language and as such are protected by copyright under s3(1) The program was protected, and the chip was like an “embodiment in 3D” of the program, so copying the chip is copying the program Recognized copyright in code: takes skill, judgment, and can be done in a variety of ways Now it’s in the act so not at issue Delrina– In CA we use Holistic Test: don’t filter out components- protect work on the whole Delrina v Triolet Systems (CA) Facts Original co-developer of diagnostic program goes off and creates a program that does the same thing as the original Holistic Test in CA: 1)Is the work subject to CR, 2) If so, was there substantial part taken 1) Determine you have an original work: does it as a whole qualify for copyright? 2) Determine whether it was substantially reproduced Takes into account the A-C-F type of factors at this stage of the test (the “quality” of what was taken) This is a two-step holistic analysis (as opposed to taking out all the elements that are not copyrightable and then comparing the results) ACF used only to determine whether infringement was substantial Held The new program was not a copy of the other one to an extent sufficient to be copyright It does the same thing, but the program itself is sufficiently different and novel 40/14,000 lines of code were the same; of those:
(But sales do not benefit SOCAN) Michelin v CAW: no mention source/name of original work, did not treat work fairly Michelin v. CAW Michelin failed on trademark issues: no “use” But succeeded on the copyright issues – union infringed copyright by making leaflets Court rejected that parody is criticism “Criticism” connotes analysis and judgment of another work that sheds light on the original CAW did not mention the source and author’s name “Mention” requires more than passive/implicit acknowledgement Did not treat work in a fair manner (i.e. good faith) “Good faith” = free from discrimination, dishonest, impartial Campbell v. Acuff-Rose – US case encourages transformative use, new creation Distinguish transformative work, which supersedes an original, from a derivative work, which includes major components of the original and which infringes s.29.1 – for purpose of criticism or review (as long as name of author mentioned) s.29.2 – for purpose of news reporting (as long as name/source of author mentioned s.29.4 Education – copying for classroom display or examination (s.29.4(2)) S.29.5 - Educational institutions’ giving student performances of works ( s.29.6 - Educational institutions’ making temporary copies of news programming for instruction or other programming for consideration as instructional aid (s. 29.7) s.30 Educational anthologies including some copyright works among mainly matter
Dissemination of works in public interest Step 2 – is it fair Purpose – used only for research Streamed, short, low quality Not a substitute for the work itself Character of dealing – no permanent copy retained Amount of dealing – look at proportion of work (short excerpt, typically low quality), not how many works users preview Alternatives to the dealing – no practical alternatives; returns are expensive Nature of the work – is of a type that should be widely disseminated Effect of the dealing on the work – no competition of preview with download Previews actually increase sales (But sales do not benefit SOCAN) AB v Access CR – found Fair Dealing for teacher to distribute copy to class Alberta (Education) v. Access Copyright, 2012 SCC 37 - F: Copies of short excerpts of textbooks made at teachers’ own initiative with instructions to students that they read the material. Copies made by teacher at request of student were considered to be fair; not at issue here A: Board erred in assessing fairness Purpose of the Dealing Board characterized as instruction or non-private study - unfair SCC: no separate purpose on the part of teacher – symbiotic Amount of the Dealing – only short excerpts were copied Number of copies to be considered under the character of the dealing Character of the dealing – multiple copies were distributed to entire classes Alternatives to the dealing – purchase of additional supplemental textbooks not a realistic alternative Effect on the work – other factors could be blamed for shrinking textbook sales Board appeared to consider that schools copy a quarter billion textbook pages per year, although a tariff is paid for most FULL TEST Copyright subsists in the work Substantial reproduction has occurred (i.e. there is infringement) Must fall into one of the statutory fair dealing exceptions Note: in Canada, unlike US, if not expressly listed in act, does not qualify as fair Exceptions: S29: research, private study, education, parody, satire S29.1: criticism or review