Infringement of Copyright in Non-Fiction Works: From Luxembourg to Darlington
UK law gives a copyright owner of a literary work the exclusive right, for a specified period of time, to control certain restricted acts, such as copying the work, issuing copies of it or communicating it to the public or making an adaptation of it. The creator (or the creator’s employer) is the first owner of the copyright, which may be assigned or licensed to others. Copyright is infringed by anyone who, within the UK, does any of the restricted acts, without the permission of the copyright owner, in relation to the protected work or a substantial part of it, unless what is done falls within one of a number of permitted acts such as ‘fair dealing’. An infringement can occur irrespective of whether there was intent to infringe.
It is well known that copyright does not exist in ideas, but in the expression of ideas. Similarly, copyright does not exist in mere information or facts, but in the way in which they are expressed. The author of a factual or historical work does not gain a monopoly on facts by referring to them in his or her work, but is entitled to protection of the skill and labour used in selecting, compiling and arranging those facts in literary form.
This article considers three significant court decisions in this area. The first is a decision of the European Court of Justice (“ECJ”) which introduced a new test for infringement in 2009. The second is an English court decision, which confirmed that headlines may attract copyright protection in their own right. Both cases were concerned with electronic reproduction of short extracts from news articles. The third decision, also in an English case, relates to the unauthorised adaptation into a film of the self-published autobiography of a disabled supporter of Darlington Football Club. The second and third decisions blend the 2009 ECJ test of infringement into established English law.
The ECJ gave judgment in Luxembourg on 16 July 2009 in the case of Infopaq International A/S v Danske Dagblades Forening, concerning a complaint by a Danish newspaper publishers’ association that a media monitoring business was infringing the publishers’ copyright by preparing short text summaries of articles by means of an electronic ‘data capture process’ and providing them to subscribers by email. Each summary comprised a pre-defined search word, the five words before it and after it, a reference to the article concerned and an indication of the location of the 11 consecutive words of text within the article.
The Information Society Directive (EC) 2001/29 provides that authors have the exclusive right to authorise or prohibit reproduction, in whole or in part, of their works. The ECJ stated that the reproduction of 11 consecutive words of a work, such as an article, could amount to the prohibited reproduction, in part, of that work if the extract was the “expression of the intellectual creation of the author”, with the result that the reproduction of as little as part of a sentence may, if it meets that test, amount to an infringement of copyright. The ECJ stated that it was for the national courts of EU countries to decide that issue in cases that come before them, in effect laying down the principle upon which English courts should decide such cases in the future.
A case involving a similar situation came before the courts of England and Wales in Newspaper Licensing Agency Ltd. & others v Meltwater Holding BV & others in 2010/11. Meltwater provided a commercial media monitoring service to business customers. It monitored websites and provided customers with reports comprising a headline from a relevant article and an extract limited to 256 characters. The customer would be able to access the whole article by clicking on a link. The case was heard initially by the High Court and then by the Court of Appeal.
The High Court stated that headlines were capable of being literary works in their own right and, as such, subject to copyright protection. The Court of Appeal agreed, referring both to the Infopaq principle of the expression of the intellectual creation of the author and earlier English decisions which recognised that a headline – or title – may enjoy copyright protection if it is an original creation.
As to the extracts of articles, in the particular circumstances of the case it was not necessary to decide whether individual extracts infringed copyright. However, the High Court judge commented that “I have no doubt that in many … cases the text extracts, even leaving aside the headlines, do contain elements which are the expression of the intellectual creation of the author of the article as a whole … In most cases the text extracts … are not merely isolated words or clauses which in themselves convey no meaning. They provide the tone of the article and generally have the special function of drawing the reader in to the work as a whole”. The Court of Appeal agreed, observing that “… it seems … inevitable that some of [the extracts] will constitute a substantial part of the original [and], when copied …, prima facie, … amount to an infringement of copyright in the original literary work”. It was noted that this was consistent not only with Infopaq but also with established English law that “the test of substantiality is one of quality not quantity”.
Hodgson v Isaac: “Flipper’s Side”
In December 2011, Judge Birss QC delivered judgment in the Patents County Court in a less “high-tech” copyright infringement claim, but which was decided on the same principles as the cases just considered.
The claimant, Paul Hodgson, known to his friends as “Flipper”, was disabled and used a wheelchair as a result of childhood meningitis. He self-published an autobiography in the UK in 2000 entitled “Flipper’s Side”, which told the story of his life as a fan of Darlington Football Club, his relationship with his family and other experiences. Many of the reminiscences are colourful, some of them challenging stereotypes of disabled people, including sexual experiences, playing football and workplace pranks. Others are more sombre.
Andrew Isaac, was a screen writer who became involved in a project with Mr. Hodgson to make a film based on Mr. Hodgson’s life story. He wrote a script under the title “Down Among the Dead Men”, in which Mr. Isaac’s company claimed copyright. Mr. Hodgson withdrew any permission Mr. Isaac had to use an adaptation of the book and claimed that the script was an unauthorised adaptation of the book. Mr. Isaac denied that the script was an adaptation of the book, asserting that he had never read the book and that his script was based on his own creative input, as well as on conversations he had had with Mr. Hodgson about his life. Mr. Hodgson accepted that he had no right to object to the script if it was only based on conversations with him and not on the book, directly or indirectly.
The judge noted that if the script was a version of the whole or any substantial part of the book, the script would be an unauthorised, infringing adaptation of the book. He adopted a checklist for dealing with allegations of infringement of literary copyright, set out in the Court of Appeal’s 2007 decision in The Da Vinci Code case (in which the publisher of that book was sued unsuccessfully for breach of copyright in an earlier book, “The Holy Blood and the Holy Grail”):
(i) What are the similarities between the original work and the alleged infringing work? Unless similarities exist and are carefully identified, there can be no arguable case of copying;
(ii) What access, direct or indirect, did the alleged infringer have to the original work? There must be some evidence from which access can be directly proved or properly inferred, especially where the original work is non-fiction;
(iii) Did the alleged infringer make use in his or her work of material derived, directly or indirectly, from the original work?
(iv) If the defendant contends that no such use was made, what is his/her explanation for the similarities?
(v) If such use was made, was it of at least a substantial part of the original work? If so, the infringement claim will succeed. If not, it will fail.
As to point (v), the judge said that if all that had been derived from the book had been the idea of telling the story of the life of a disabled football supporter, that would not have amounted to copying a substantial part of the book. However, in addition to using the main characters and many of the settings and contexts, the script used specific incidents from the book with striking details. The script also employed the same interpretation of those events as appeared in the book, such as Flipper having to pay his father 50 pence for a car journey, used to illustrate the meanness of his father. The judge noted that there was much more, in terms of content, in the book than in the script, but regarded that as largely due to the different nature of a book and a film script. He concluded that a substantial part of the book had been copied and “Flipper’s” copyright infringement claim therefore succeeded.
The judge deftly blended pre-Infopaq English law with the Infopaq principle, stating that “A substantial part must be one in which the elements … reproduced are the expression of the intellectual creation of their author (Infopaq) … This must be a qualitative test under the Infopaq approach just as it was before Infopaq”.
- Infopaq introduced the concept of the “expression of the intellectual creation of the author” as a criterion for whether the reproduction of an extract of a work infringes its author’s copyright.
- The Meltwater and Hodgson v Isaac cases assimilated that concept into established English law on what constitutes a substantial part of an original work. However, the Infopaq principle could, in the future, have the effect of lowering the threshold for what constitutes a substantial part of a work, for the purpose of proving infringement.
- In Meltwater and Infopaq, small, electronically created extracts from works were held to be capable of amounting to infringements. The courts appear to have been influenced by the capacity of such extracts to distil the essence of the original work or part of it and to draw the reader into the work as a whole. This may have significance in the burgeoning world of digital publishing.
- Hodgson v Isaac re-states the established approach towards claims of ‘plagiarism’ of factual or historical works and is an example of a case which fell on the wrong side of the line of infringement by some margin.
Finally, a question: Meltwater confirms that a headline or title is capable of being a copyright work in its own right, but it is also often stated that copyright cannot exist in a single word. Is the notorious headline in the Sun, on the sinking of the Belgrano during the Falklands War, an original literary work in which copyright exists: “Gotcha!”?
This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 020 7404 0606 and ask for your usual Goodman Derrick contact.