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European IP Bulletin, Issue 23, June - Copyright

Copyright

5. Has Interlego been Waltered Down?

This case was an appeal from the High Court decision of 2 July 2004. The Defendants, Hyperion Records Limited, were found to have infringed the copyright of three musical editions belonging to Dr Lionel Sawkins, Principal Lecturer in music at the Roehampton Institute, by publishing a CD of the music “Music for the Sun King”.

The actual composer, de Lalande, died  280 years ago. Dr Sawkins, a specialist in this area, studied the pieces and carried out a large amount of research, which resulted in over 3000 annotations to the music.

On cross-examination, when asked whether he had created new pieces of work, Dr Sawkins answered that he had not, but had merely made corrections to the original piece, changing individual notes. The Defendants argued that the new notes did not result in music that was significantly aurally different and that whilst mere editors might be due a hire fee, they could not claim copyright to their work. In other words, they argued that if the nature of the work was research, this did not result in the creation of a new musical copyright work. Pattern J at first instance found that the research, skill and labour put into the series of annotations and corrections by Dr Sawkins was sufficient to create protectable copyrights in the new works.

On appeal, Mummery LJ also brushed aside Hyperion’s arguments. He based his decision on the earlier case of Walter v Lane [1900] AC 539, where preparatory work, in addition to the publishing of the work gave originality to the final work. Additionally, it was held that the directions added, as well as the changed notes themselves, could be taken into account in establishing an original “musical” work.

The decision of the Court of Appeal was unanimous but both supporting judgments (Jacob LJ and Mance LJ) first considered the problem to this approach raised by the decision in Interlego AG v Tyco Industries Inc. [1988] RPC 343. In that case, Lord Oliver said, “Skill, labour or judgment merely in the process of copying cannot confer originality”. This statement did not sit comfortably with the notion that artistic works are autographic and thus a work derived from an earlier work could attract copyright. The decision in Interlego conflicted with the earlier House of Lords decision in LB (Plastics) v Swish Products [1979] RPC 565 where a relatively simple derivation made by hours of painstaking work was afforded copyright.

Both Jacob LJ and Mance LJ agreed with the views expressed in both texts on copyright, Laddie and Copinger, that the decision in Walter was still good law despite the introduction of the originality requirement in the 1911 Copyright Act. They further found that the statement in Interlego was drawn too widely and the true question was “the extent to which the "copyist" is a mere copyist – merely performing an easy mechanical function. The more that is so, the less is his contribution likely to be taken as "original”.

Whilst this is not a decision of the House of Lords, it is welcome clarification that the lower Courts may ignore the unreasonably wide obiter dicta of Lord Oliver in Interlego and make a practical assessment of the skill and labour put into creating a new work. By maintaining flexibility in the types of input which can result in a new work of a certain kind, the Courts will not be tied to looking beyond the developments in the immediate subject matter, but rather may recognise that the creation of new works often derives from a variety of skills held by an individual. This approach more closely recognises the purpose of copyright to recognise the real creativity of the author.

6. Sony BMG Tests 'Sterile Burning’ to Bar Unlimited CD Burning

Sony BMG is testing a new technology solution known as ‘sterile burning’, allowing consumers to make limited copies of protected discs but blocking them from making further copies of the copies.

Sterile burning has been developed by First4Internet, a UK anti-piracy firm. It differs from traditional concepts such as Digital Rights Management (DRM), which sets up an encryption key to decode the DVD before viewing, and Digital Watermarking, which allows the CD producer to add hidden copyright notices or other verification messages to digital audio, video or image signals. Neither of these technology solutions has the power of sterile burning to bar extra CD burning.

Since March, Sony has released at least 10 commercial titles (more than 1 million discs in total) to test the technology that can help control casual piracy or school yard piracy (i.e. making multiple copies for friends). Sony BMG considers this development in the battle to protect rights holders as vitally important because two-thirds of all piracy comes from ripping and burning CDs.

The effectiveness of sterile burning, and doubts about its compatibility continue to worry Sony’s product development department. This is highlighted by the fact that iPod users are not able to transfer tracks from copy-protected disco to their devices to because Apple Computer has yet to license its FairPlay DRM for use on copy-protected discs.

Among Sony’s other partners in this anti-piracy effort are SunnComm and their Mediamaxx technology. The Sony BMG partners are expected to begin commercial trials of sterile burning within the next month whether or not its a commercial success depends on consumers accepting Sony’s claims that the new solution is not an extension of copyright protection as it allows consumers a fair-use replication of rights enjoyed on existing CDs.

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