Difference between US and UK Copyright Law

In my last post I mentioned IBCOS in which I appeared on the losing side. In the minds of all the advocates were US cases such as Lotus v Borland and Computer Associates International, Inc. v. Altai, Inc., (2nd Cir. 1992). Very early in the argument, Mr Justice Jacob (as he then was) made clear that he could see very little relevance in those authorities because US copyright law had diverged from English law as far back as Baker v Selden 101 U.S. 99 (Mem), 11 Otto 99, 25 L.Ed. 841.

Part of the reason for that may be the statutory entrenchment of the ideas-expression dichotomy by s.102 (b) of the US Copyright Act (17 USC 102 (b)) now transposed to TRIPS by art 9 (2) of that Annexe. Part of it may be psychological arising from the requirement to register a copyright in order to bring proceedings in the USA. The significance of that requirement is that it leads to the dissection of a work into "copyrightable" and "non-copyrightable" elements. We have never taken that approach in England. Copyright subsists in a work as a whole. The work may be infringed by copying the whole or a "substantial part". "Substantiality" has never depended on quantity but on quality or, as I prefer to put it, "value added". Thus, in Warwick Film Productions Ltd. v Eisinger [19960] 1 Ch 508, whole screeds were lifted from the antecedent work. However, that did not matter because those screeds were the transcript of a trial (Oscar Wilde's as it happens) that had themselves been lifted and were either out of copyright or licensed. Because they were not part of the value added by the author of the antecedent work they were not a substantial part of that work.

All this brings me to the main point which is that my US colleague, Toni Tease, publishes a first class monthly newsletter on her website called "Intellections". Like me, Toni practises intellectual property in a small town not far from a great national park. In her case, the park is Yellowstone (she practises in Billings, Montana) and in mine it is the Peak District National Park (which is much closer to Huddersfield though we don't have geysers or (hopefully) extinct volcanoes). Toni has written a really good article entitled in this month's Intellections entitled "The Importance of Copyright Registrations in Protecting your Copyrightable Works" whcih I commend to English and other Commonwealth IP lawyers, in particular, but also to anyone else interested in this area of US copyright law.


Anonymous said…
Thank You for this brief note. Saved my lot of time.

Anonymous said…
This makes no sense and doesn't say the main differences between UK and US Copyright law.

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