WS4: Copyright

Drafting Copyright Assignments

Amending a copyright assignment to fit a clients instructions.

What is the purpose of the assignment?
What is its scope? May be divided up:
o Territory
o Subject

Typical clauses

1. INTERPRETATION typically two sections:

a. Definitions may need to change to suit the circumstances; re-visit definition if adding or
deleting any clauses;
o Define copyrighted work may need additional schedule attached which describes it in
detail; e.g. a computer programme involves not only copyright in the software code, but
items which appear on screen, or sounds which are played through the computer may also
be copyrighted;
o Define future work relevant where assignor agrees to continue to produce copyrighted
work which will also be assigned as part of the assignment; relevant for technology which
may be updated.

b. Statements which help the reader decide how to interpret words and phrases in the main body
of the agreement.

2. ASSIGNMENT the most important clause;
o Full title guarantee the assignor covenants that there are no incumbrances created by
anyone; commonly given where assignor is also the author; or
o Limited title guarantee assignor covenant that he has not created incumbrances on the title
to the copyright; used where assignor is not the original copyright owner.
o Territory if the assignment is limited to certain countries, an assignment must be made,
otherwise the assignment is worldwide;
o Description of rights to be assigned cover all bases as comprehensive as possible so that
no rights are left to the assignor:
a. The copyright describe widely as to cover national variations on the copyright
theme;
b. Database right may exist in cases when the work fails to satisfy the conditions for
copyright;
c. Cater for any legislative development around the world in this area;
d. Relate rights e.g. rights of enforcement.

3. PROCEEDINGS
The assignor undertakes to provide assistance in the event of proceedings being brought against
third parties by the assignee i.e. infringement proceedings;
Assignee likely to insist on such provision and the assignor likely to accept.
What is protected? Creative output
What benefit is there? Prevents copying
How is it obtained? Arises automatically (no registration)
How long does it last? 70 years from death of creator (in most cases)
4. WARRANTIES
Copyright is intangible assignee will want warranties as to what he is buying;
Assignor expected to enter into certain warranties relating to the existence of copyright:
a. Promise that the works are original basic condition for copyright to exist;
b. Promise that the assignor is the genuine owner of the copyright;
c. Statement that the works do qualify for copyright under the CDPA 1988 (other
relevant legislation if work created elsewhere);
d. Statement that the copyright has not been licenses or assigned so the assignor still
owns it;
e. Statement that the copyright does not infringe decency or anyone elses rights to
make sure the rights are usable;
f. Other appropriate warranties.

5. FURTHER ASSURANCE
Obliges the assignor to do anything necessary to ensure the assignee can exploit the works;
Concern that further steps may need to be taken in respect of the right, whether in defending or
pursuing legal actions, or executing further documentation that future legislation may require;
Kept intentionally vague to cover unforeseen circumstances width may be a concern to assignor, as
he may this it will become burdensome usual for the words expense of the assignee to appear so
at least he assignor will be recompensed for any inconvenience causes to him.

6. INDEMNITY
Warranties would be worthless unless they were actionable clause clarifies the liability which
arises upon breach of any of the warranties;

7. WAIVER OF MORAL RIGHTS
Not assignable, in that they do not pass with the copyright but capable of being waived;
Clause requires assignor to provide proof that the authors have waived their rights to ease the
concerns that the assignee may have that they may not be able to exploit the work in whichever way
they wish;
Not always appropriate.

8. GOVERNING LAW AND JURISDICTION
o Copyright is an international right;
o Important for financial reasons to agree in advance which countrys laws will apply to a
dispute.

















WS4 Copyright Notes
Task 1
For each of the following items:
Does copyright or database right arise? Why (not)?
What type of copyright? Who owns it?
A telephone directory
S 1(1)(a) original literary work;
S 3(1)(d) a database;
o S 3(A) definition of database:
o Collection of independent works, data or other materials arranged in a systematic
or methodical way, and are individually accessible; and
o Is it original higher standard of originality.
OR

S 3(1)(a) compilation; is it original enough? Based on the facts;
o Is there anything special about the selection or arrangement of the contents.

Is there a database right?
o Copyright and Rights in Database Regulations 1997;
o database within the meaning by s 3A(1) 1988 Act; Reg 12(a);
o Reg 13 database right subsists if there has been a substantial investment in obtaining,
verifying, or presenting the contents of the database; easier test to meet;
o Reg 15 the first owner is the maker;
o Reg 14 the maker of the database if the person who takes the initiative in obtaining,
verifying or presenting the contents of the database and assumes the risk of investing.
o Can arise regardless of whether there is a copyright work.
o Only lasts for 15 years from the end of the calendar year in which the database was made
(Reg 16).
The book The Girl with the Dragon Tattoo
S 1(1)(a) original literary work;
The work must be the authors own work, not copied from anywhere else;
Originality of expression and form, not of idea or content; original work even if a translation;
S 3(1) literary work written work;
S 3(2) recorded, in writing or otherwise;
Minimum effort required exact amount depends on category of work;
o Almost any work which is expressed in print or writing, irrespective of the question
whether the quality or style is high, might have the necessary minimum effort (University of
London Press v University Tutorial Press);
o Subject matter is irrelevant;
o Writing has to be substantial enough to constitute a work (Exxon Case)
Ownership author (s 9) (1) the person who created it; here, the translator (can lead to double
infringement);
Infringement s 21(3)(a)(i) unless permission obtained.

A report written for a company by one of its employee

A doodle of a Christmas tree

The title of the TV programme Top Gear
A customer list
S 3A database arranged in a systematic way need to check how the list is arranged;
o S3A(2) originality requirement must be the authors own intellectual creation (higher
standard + gets longer protection(s16);
Copyright and Rights in database Regs 1997
The idea for a new TV sitcom
Copyright does not protect ideas; not a work (Green Case; Dan Brown Case);
Might be protected by the law of confidence (Fraser v Thames);
The film Casino Royale
Film copyright s 5B;
Dramatic copyright in the screenplay
Sound track music copyright and literary copyright in the lyrics; sound recordings (5A);
Broadcast s6.
Task 2. Data protection
Your client is a registered data controller.

1. It has sent customer lists to a supplier in the US. What info do we need to advise the client?
Data Protection Act 1998 the 8
th
data protection principle prohibits the transfer of personal data to
countries outside the EEA, unless the country in question has an equivalent level of protection of
personal data;
Need to know: what was on the list? Personal data? Are people identifiable? Was consent given?
Does the supplier comply with the principles?

2. After a customer survey relating to income, living arrangements, religion and race of its customers, it
collated the anonymised data, and has used it to help negotiations with suppliers.
The Act doesnt apply because the data is not personal (cannot be identified)

3. A government agency investigating Terrorist offences has enquired about the identity of customers
purchasing certain types of product that might conceivably be used in creating improvised explosive
devices. Your client wants to release this information. Can it?
Sch1 data has to be fairly processed and have to comply with criteria in Sch2;
Exemptions for crime prevention s29(3);
Necessary to show one of the preconditions to processing is present;
Sensitive personal data can be processed without breaching the first principle if processing is
necessary for various purposes bases upon the substantial public interest.