Post by Tim JacksonOn Tue, 31 Dec 2024 18:10:04 +0000, Norman Wells wrote...
Post by Norman WellsPost by Tim JacksonEarlier in the thread, someone linked a Kipling poem. Ignore for the
sake of argument the fact that Kipling's copyright has expired.
If I were to summarise that poem in my own words, it would be
derivative. But since it would be my words, not Kipling's, it wouldn't
infringe his copyright.
On the other hand, if I were to write a short story which quoted a
substantial part of Kipling's poem, that would infringe his copyright
(unless one of the Copyright Act exceptions applied). Typically in such
circumstances, my publisher would seek permission.
Although what publishers do, perhaps out of excessive caution, isn't
really much of an indication. An example has been given here of
Sherlock Holmes keeping bees being a no-no for publishers to repeat.
See my comment elsewhere that this seems to be based on practice in USA,
rather than UK.
Post by Norman WellsBut I doubt very much whether just that, without quoting a considerable
amount of Conan-Doyle's actual words can amount to copyright infringement.
What is "considerable"? You may be thinking of the old "skill and
labour" test previously applied by the English courts.
However, nowadays it can be as little as 11 words, depending whether
those words amount to "the author's own intellectual creation".
This comes from the CJEU Infopaq case. That was about a newspaper
clippings service, which reproduced 11-word snippets from newspaper
articles and sent them to its subscribers.
Since Brexit, the higher UK courts have had discretion to depart from
such CJEU case law, e.g. to restore the old 'skill and labour' test.
But to the best of my knowledge, so far they have shown no signs of
doing so. The "author's own intellectual creation" test is well
established in the English courts.
I've said before that UK copyright law, maybe even global copyright law,
is completely unfit for purpose, having failed to keep up with ease of
reproduction and distribution worldwide of anything it was intended to
protect. It's stuck in Victorian (or even earlier) times being intended
to last for two generations after the death of the work's originator,
presumably through poverty in some cold and lonely garret. It's
indeterminate, it's often impossible to find who the author is, or when
he died, or even how many separate copyrights exist in a single work,
requiring distinct investigations of all those. It requires thorough
root and branch reform.
And now judges are determined, it seems, to perform absurd contortions
to bring things within the scope of the law that were never intended to
be there. That is anathema to anyone who has practised in any area of
the law in the UK who has been brought up to believe that the law means
what it says, and isn't up for grabs.
As an example of that, I give you the finding that 'Del Boy is a
protected literary work', meaning the character, not a book. If that
doesn't make you wince, I don't know what will.
Shazam Productions Ltd v Only Fools The Dining Experience Ltd and others
[2022] EWHC 1379 (IPEC)
as reported in
https://uk.practicallaw.thomsonreuters.com/w-036-0489?transitionType=Default&contextData=(sc.Default)&firstPage=true