the work or substantial part thereo

the work or substantial part thereof?

the third and final question that needs to be asked in an infringement action is whether the restricted act has been carried out in relation to the work or a substantial part thereof. the basic approach was set out by lord millett in designers guild.

once the judge has found that defendants' design incorporates features taken from the copyright work, the question is whether what has been taken constitutes all or a substantial part of the copyright work,. this is a matter of impression, for whether the part taken is substantial must be determined by its quality rather than its quantity. it depends upon its importance to the copyright work. It does not depend upon its importance to the defendants' work, as I have already pointed out. The pirated part is considered on its own...and its importance to the copyright work assessed. there is no need to look at the infringing work for this purpose.

this question of substantiality is the most difficult aspect of copyright infringement. In principle, in order to answer this question it is neccessary to ask two subsidiary questions:

1. what is the work for the purposes of infringement; and
2. has the defendant's utilized the whole of the claimant's work or a substantial part thereof?

what is the work for the purposes of infringement?
logically, the first task that arises when determining whether the defendant has utilized the whole or a substantial part of the copyright work is to ascertain the limits of the copyright work. To determine what the work is, it is necessary first to determine the parameter of the work, and then to diistinguish the protected from non-protected elements of the work. We will deal with each of these in turn.

what are the parameters of the work?
In many situations the parameters of the work will not be in dispute. This would be the case,for example, where person photocopies all of a book, or they copy all of a computer program. Where a work is divisible into smaller elements the question may arise as to whether the 'parts' should be treated as separate and distinct works. if we take the case of a book, for example, while it is clear that the book as a whole is a copyright work, what of the chapters, pages, paragraphs. sentences, or words that are included in the book? The decision as to the size of the copyright work may have an important bearing on the out come of an infringement action. The reason for this is that the question whether something is 'the whole or a substantial part' of something else depends on what it is being judged against. In this case, that something else is the copyright work.

The questions the parameter of the work are to be determined was considered by judge Laddie QC in Hyperion Records v. Warner music. This was an application for summary judgment brought by Hyperion Records who owner copyright in a sound recording of the medieval chant, 'O Euchari'. The chant, which was 5 minutes 18 seconds long, appeared on the album A Feather on the Breath of god. Hyperion Records alleged that their copyright had been infringed when the electronic-pop band, the Beloved, copied (or sampled) eight notes from 'O Euchari' and incorporated them into their record 'Happiness'.

While it was clear that the song 'O Euchari' was a work, Hyperion Records argue that the eight notes sampled by The Beloved also formed a distinct copyright work in their own right. If this was accepted, it would clearly have been an infringement, as 100 per cent of the 'work' would have been taken. judge Laddie QC rejected the argument saying that 'I do not accept that all copyright can be considered as a package of copyright work, consisting of the copyright in the whole and an infinite number of subdivisions of it'. He added that 'if the copyright owner is entitled to redefine his copyright work so as to match the size of the alleged infringement, there would never be a requirement for substantiality'. More specifically, judge Laddie did not accept that it was legitimate ‘to arbitrarily cut out of a large work that portion which has been allegedly copied and then to call that the copyright work’. While judge Laddie held that the eight notes sampled by The Beloved could not be treated as a separate work, this did not mean that in other circumstances a re cording of eight notes could not be a copyright sound recording: it is possible that it could. The reason for this was that a particular aspect of a larger work might be treated as a separate work if it has a discrete, natural, or non-artificial shape. Thus, a day’s footage on a film that is ‘a discrete product of the film-maker’s art’ may be tread as a distinct work. Presumably the results of a recording session, as distinct art’ may be treated as a distinct work. Presumably the results of a recording session, as distinct from the final product, would also attract separate copyright protection.
judge Laddie’s judgment provides us with some useful assistance in undertaking the (much neglected) task of defining the parameter of the work. In addition to focusing on whether a particular item can be seen as ‘natural’ or ‘non-artificial’. it seems that other relevant considerations would include: the intention of the creator; the level of interdependence or independence of the units concerned; and the commercial form in which the work is to be published or made available. Given that one consequence of recognising small units as discrete copyright works is potentially to increase the level of protection, a useful staring point should be that, where a work has been published, the form in which the work is first issued is presumed to determine the parameters of the work.

the depth of protection

As we explained in Chapter 6, the protection given to entrepreneurial works is limited to the form in which the work is fixed (e.g. in the case of a film, the specific images; or in the cases of a sound recording, the specific sounds recorded). One of the consequences of this is that the only question that arises in relation to entrepreneurial works is whether a substantial part of a work has been taken. In relation to authorial works, however, the protection extends beyond the specific from in which the work is recorded to include other aspects of the work. For example, the protection afforded to a literary work, such as a novel, may extend beyond reproduction of the printed words on the page to include copying of the story line, plot, and characters that form part of the novel.
In some case, the non-literal element of the work may take the form of more abstract or general ways of describing the literal aspects of a work. As Mr Justice Learned Hand said in the well-known American describing in Nichols v. Universal Pictures Corporation, ‘[u]pon any work, and especially a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out’. Thus, at its most specific, a play may consist of the words of the script. At a more abstract level, it may consist of the plot or story line. The play may also be described very generally as a tragedy or a comedy. (It should be noted that the vary general aspects of the work may not be protected on the basis that they are “ideas”.) While thinking about a copyright work as if it consisted of a series of levels of abstraction may be useful in certain instances, in other situations the non-literal elements of a work cannot be described in these terms. In these cases the non-literal elements are better seen as aspects a work that are not visible on looking at the surface of the work: this is particularly the case in relation to computer programs. Given this, perhaps the best way to understand the scope of protection potentially available beyond the surface of the work is to provide some examples.