Monday, 17 June 2019

Copyright, Poetry and Wales

Jane Lambert














Copyright is a very useful intellectual property right. Unlike patents, trade marks and registered designs, copyright does not have to be registered with the Intellectual Property Office. It comes into being automatically in the UK as soon as the conditions for subsistence are met.  Copyright also subsists simultaneously in works that have been created by British nationals or residents in all countries that are party to an agreement with HM Government for the reciprocal protection of the literary and artistic works of each other's nationals or residents.

In this country, copyright subsists in original artistic, dramatic, literary or musical works, broadcasts, films and sound recordings and typographical arrangements of published works.  However, it has been argued before the Court of Justice of the European Union that copyright can subsist in the taste of a foodstuff because art 2 (1) of the Berne Convention defines"literary and artistic works" so as to include every production in the literary, scientific and artistic domain, whatever the mode or form of its expression may be (see my case note on Levolo Hengolo BV  v Smilde Foods BV ECLI:EU:C:2018:899, [2018] EUECJ C-310/17, EU:C:2018:899 (13 Nov 2018)).

"Artistic works" include architects' plans. artwork for surface decoration, logos, web pages, photographs and some high-value handicrafts such as apparel, furniture, jewellery, pottery and light fittings. "Dramatic works" can include screenplays and choreography as well as plays, "Literary works" can include computer code, directories, compilations of statistics, advertisements and brochures as well as poems and novels. "Films" can include animations and videos and "sound recordings" MP3 files.

Copyright confers on the author of a work, his or her employer or assignee the exclusive right to copy, publish, lend or rent, perform, communicate, translate or otherwise adapt the work without his or her licence.  There are a number of exceptions to that right and the copyright owner's licence can sometimes be inferred. However, anyone who does any of those things without such licence and outside any of the exceptions is said to infringe copyright. Copyright can also be infringed by importing, possessing, selling or offering for sale or hire, exhibiting or otherwise distributing an infringing copy of a copyright work knowing or having reason to believe it to be such.

Infringers can be sued for copyright infringement in the High Court or County Court sitting in Caernarfon, Cardiff or Mold, the Royal Courts of Justice in London or any of the other hearing centres in England where there is a Chancery  District Registry. Remedies can include an injunction (order of the court to stop, refrain from or occasionally do a specified act), destruction or delivery  up to the claimant of infringing copies, payment of damages for the claimant's loss or the surrender of the defendant's profits from the infringement, publication of the finding of infringement in the press or other media and reimbursement of the costs of bringing the claim.  Infringement on an industrial scale is also an offence carrying a maximum sentence of 10 years imprisonment, an unlimited fine or both.

For claims under £500,000 that can be tried in 2 days or less, there is a special court based in London which can sit in Wales known as IPEC (the Intellectual Property Enterprise Court).  Copyright claims of £10,000 or less can be heard in the small claims track of the Intellectual Property Enterprise Court. All other claims should be brought in the Chancery Divison of the High Court of Justice or the County Court.

An interesting Welsh copyright case is Pablo Star Media Ltd v Bowen [2017] EWHC 2541 which I discussed in Copyright in Photographs - Pablo Star Media v Bowen 15 Oct 2017 NIPC Law.  The defendant had posted Dylan Thomas's wedding photo on the VisitWales website where it was seen by only a handful of people before it was taken down.  An infringement action wa\s brought in the IPEC small claims track where the deputy district judge awarded the copyright owner net damages of £88.90. The copyright owner appealed to the Enterprise Judge who found no error on the part of the district judge and dismissed the appeal.  As this was a lower award than many would have expected I posted links to other articles and case notes for infringing copyright in photos online.

Last year, Ballet Cymru created two ballets to some of Dylan Thomas's most famous poems which were read by Cerys Matthews which they called Dylan Thomas - A Child's Christmas, Poems and Tiger Eggs.  I saw the show at the Stanley and Audrey Burton Theatre in Leeds and the Pontio Centre in Bangor and reviewed their performances in Ballet Cymru's Dylan Thomas Programme: The Company's Best Work Ever 13 Dec 2018 Terpsichore, Before their show in Leeds Ballet Cymru invited me and other ballet students to their workshop where they taught us their setting of In My Craft or Sullen Art  (see More than a Bit Differently: Ballet Cymru's Workshop and the Launch of the Powerhouse Ballet Circle 29 Nov 2018 Terpsichore.

Dylan Thomas is one of my favourite poets and Robert Burns is another.  Not owning a picture with a Dylan Thomas connection I resorted to this photo of my shaking hands with Burn's "Wee sleekit, cowran tim'rous beastie" in the gardens of the Robert Burns birthplace museum.  Anyone wishing to discuss this article or copyright, in general, should call me on 020 7404 5252 during office hours or send me a message through my contact form.

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