Copyright: Incidental Inclusion" Exception Case Note Updated and Transposed

To ease myself into the idea of earning my living again after a super weekend in Edinburgh, I have updated and transposed a case cote on Football Association Premier League Ltd and others v Panini UK Ltd [2003] EWCA Civ 995 which I wrote when the case was first reported.

The significance of the case is that it considers the meaning of the words "incidental inclusion" in s.31 (1) of the Copyright Designs and Patents Act 1988. The section provides:

"Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film or broadcast."

It is of obvious importance to podcasters, webmasters, broadcasters, publishers and just about everybody else using electronic media. The issue in this case was whether a picture of famous footballers in their games kit which necessarily included their club crests or logos infringed the artistic copyright and indeed other IPR such as trade marks in those insignia. In the note, I suggested parallels between the concept of incidental inclusion and substantiality.