Just how many words do you need before you have a literary work?

January 2010

All areas

The 9th annual IBC International Copyright Law conference in London on the 8th and 9th December 2009 was a fascinating affair with some excellent speakers. An underlying theme was the pressing and relentless rate of change as technology offered more and more new opportunities to business and consumers – and more and more problems for content owners, legislators and lawyers! The forthcoming Google Books settlement decision and the UK’s Digital Economy Bill both featured a number of times, as did pleas from commercial users for everyone to use copyright to enable legitimate services to prosper – to allow them to pay content owners and creators of content – and restrict illegal operators to perhaps the margins (rather than the mainstream where the music industry stands as the main example of a sector damaged by change and illegal downloading). In particular pan-European and even global licensing was seen as a pressing need to allow legitimate services to flourish as well as transparency in collection societies who were repeatedly identified as key players in the digital age.

One speaker who stood out was David Carson, General Counsel at the US Copyright Office, who, having considered the recent Bridgeport Music v UMG case, otherwise known as the “Bow wow wow, yippie yo, yippie yea” case (see MLU December 2009on what can constitute music sampling in the USAmade the interesting comment that the US Copyright Office had registered a 14 word motto that was used on a T-shirt as a protected literary work rather than a trade mark. David remarked that perhaps this wasn’t so surprising and pointed to the  European Court of Justice ruling inCase C-5/08, Infopaq International A/S v Danske Dagblades Forening which held that a 11 word work could be protected.  For an interesting article on the topic (which all starts with Exxon!!) of what can be an original work for the purposes of copyright, and an analysis of the recent decision of the Auckland High Court in Sunlec International Pty LtdElectropar Ltd  (2007) See Jonathan Barrett’s article athttp://webjcli.ncl.ac.uk/2009/issue3/barrett3.html. By way of comparison, we also saw an important Court of Appeal judgment in December which looked at whether or not artistic copyright could subsist in the iconic ‘Stormtrooper’ helmets and costumes from the Star Wars series of films. Well in Lucasfilms v Ainsworth,  the Court held that they were not artistic works …… see Hugo Cox’s summary at http://the1709blog.blogspot.com/2009/12/appeal-of-star-wars-helmets.html

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