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COPYR IGHT AND P I RACY

An understanding of the changing nature of the law and practice ofcopyright infringement is a task too big for lawyers alone; it requiresadditional inputs from economists, historians, technologists, socio-logists, cultural theorists and criminologists. Where is the boundary tobe drawn between (illegal) imitation and (legal) inspiration? Is theanswer different for creators, artists and experts from different disci-plines or fields? How have concepts of copyright infringement alteredover time and how do such changes relate – if at all – to the culturalnorms operating among creators in different fields? With such anapproach, one might perhaps begin to address the vital and overarchingquestion of whether strong copyright laws, rigorously enforced, impederather than promote creativity. And what can be done to avoid any suchadverse consequences, while maintaining the effectiveness of copyrightas an incentive mechanism for those who need it?

lionel bently is Herchel Smith Professor of Intellectual PropertyLaw, Director of the Centre for Intellectual Property and InformationLaw, and Professorial Fellow at Emmanuel College, University ofCambridge.

jennifer davis is Herchel Smith College Lecturer in IntellectualProperty Law and a member of the Centre for Intellectual Property andInformation Law, University of Cambridge. She is also a Fellow ofWolfson College, Cambridge.

jane c. ginsburg is Morton L. Janklow Professor of Literary andArtistic Property Law, and Director of the Kernochan Center for Law,Media and the Arts, at the Columbia University School of Law. She isalso an Honorary Fellow of Emmanuel College, University of Cambridge.

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COPYRIGHT AND PIRACY: AN

INTERDISCIPLINARY

CRITIQUE

Edited by

LIONEL BENTLY,

JENNIFER DAVIS

and

JANE C. GINSBURG






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CONTENTS

Notes on the contributors page viiiEditors’ preface xviiTable of cases xxTable of statutes xxv

PART I Introduction 1

1 Inspiration or infringement: the plagiarist in court 3I SABELLA ALEXANDER

PART II History 17

2 Nineteenth-century Anglo–US copyright relations: the languageof piracy versus the moral high ground 19CATHER INE SEVILLE

3 Language, practice, and history 44ADRIAN JOHNS

PART III Comparative law 53

4 The metamorphosis of contrefaçon in Frenchcopyright law 55DAVID LEFRANC (TRANS . S E BAST IEN ODDOS)

5 A common lawyer’s perspective on contrefaçon 80JANE C . G INSBURG

PART IV Economics 91

6 Copyright infringement, ‘free-riding’ and the lifeworld 93ANNE BARRON

7 Copyright and the limits of law-and-economics analysis 128JONATHAN ALDRED

v






PART V Linguistics 145

8 ‘Substantial similarity of expression’ in copyright infringementactions: a linguistic perspective 147ALAN DURANT

9 Refining notions of idea and expression through linguisticanalysis 194GRAEME B. D INWOODIE

PART VI Computer software 207

10 Copyright, piracy and software 209JON CROWCROFT

11 Of plots, puddings and draught-excluders: the law as it appliesto the infringement of computer programs 230J ENNIFER DAVI S

PART VII Information studies 245

12 Measuring text reuse in the news industry 247PAUL CLOUGH

13 Reflections on measuring text reuse from a copyright lawperspective 260TANYA APL IN

PART VIII Literature 269

14 Unoriginal genius: plagiarism and the constructionof ‘Romantic’ authorship 271NICK GROOM

15 The genius and the labourer: authorship in eighteenth-and nineteenth-century copyright law 300I SABELLA ALEXANDER

PART IX Art 309

16 Piracy and authorship in contemporary art and the artisticcommonwealth 311DANIEL MCCLEAN

vi contents






17 Copyright’s imperfect republic and the artisticcommonwealth 340JONATHAN GRIFF ITHS

PART X Sociology/music 355

18 Reggae open source: how the absence of copyright enabledthe emergence of popular music in Jamaica 357JASON TOYNBEE

19 ‘Free-riding on the riddim’? Open source, copyright lawand reggae music in Jamaica 374JOHNSON OKPALUBA

PART XI Criminology 387

20 Copyright infringement: a criminological perspective 389LORAINE GELSTHORPE

21 Towards a clearer understanding of the file-sharingphenomenon? Comments on a criminologicalperspective 410SH IRA PERLMUTTER

Bibliography 421Index 449

contents vii






NOTES ON THE CONTRIBUTORS

jonathan aldred

Fellow of Emmanuel College and a Newton Trust Lecturer in theDepartment of Land Economy, both at the University of Cambridge.An economist by training, his research interests are now inter-disciplinary, spanning economics, philosophy, law and politicaltheory. He has particular interests in the philosophical foundations ofwelfare economics and economic theories of rational choice. Recentpublications have focused on the scope and limitations of usingmonetary measures to value environmental impacts and public policyoutcomes. Dr Aldred is currently working on an introductory bookon the ethical assumptions behind popular economic arguments,Ethical Economics.

isabella alexander

Newton Trust Lecturer in the Faculty of Law, University of Cambridgeand Beachcroft LLP Fellow in Law and Director of Studies in Law atRobinson College, Cambridge. Her research interests lie in intellectualproperty law and legal history. She is the author of Copyright and thePublic Interest in the Nineteenth Century.

tanya aplin

Reader in Intellectual Property Law at the School of Law, King’s CollegeLondon. She teaches courses on UK copyright law, international andcomparative copyright law, patent law, trade marks and passing off,and legal regulation of the cultural industries. Dr Aplin has writtenextensively on copyright law, particularly in relation to digitaltechnologies, as well as on the protection of confidential information.Her publications include: Copyright Law in the Digital Society: TheChallenges of Multimedia (2005); Intellectual Property: Text, Cases,and Materials (2009).

viii






anne barron

Reader in Law at London School of Economics and Political Science,where she specializes in intellectual property law (in particularcopyright law) and legal and social theory. Currently working on abook that aims to map the contemporary field of theoretical inquiry inrelation to the institution of copyright.

paul clough

Lecturer in Information Systems in the Department of InformationStudies, University of Sheffield (UK). He received his B.Eng. from theUniversity of York in computer science while also working for BritishTelecommunications plc as a software engineer. He received his Ph.D.from the Department of Computer Science, University of Sheffield,and has since worked as a researcher on a range of language-engineering and information access projects. Clough is member of theInformation Retrieval (IR) group and his core research interestsare information retrieval (geographical IR, multimedia IR andevaluation), computational text analysis (plagiarism detection,authorship attribution and creating corpora) and human–computerinteraction. He has over seventy peer-reviewed publications in hisresearch area and a US patent for an information management system.

jon crowcroft

Marconi Professor of Networked Systems in the Computer Laboratory,of the University of Cambridge. Prior to that he was Professor ofNetworked Systems at University College London in the ComputerScience Department. He is a Fellow of: the ACM; the British ComputerSociety; the IET; the Royal Academy of Engineering; and the IEEE.He was a member of the IAB 96–02, and went to the first 50 IETFmeetings; was general chair for the ACM SIGCOMM 95–99; isrecipient of Sigcomm Lifetime Achievement Award in 2009. He hassupervised twenty-five Ph.D. students to completion and has publishedfive books and around 150 papers.

jennifer davis

Herchel Smith College Lecturer in Intellectual Property Law and amember of the Centre for Intellectual Property and InformationLaw, University of Cambridge. She is also a Fellow of Wolfson College,Cambridge. She is the author of Intellectual Property Law (2008) andwith Tanya Aplin, Intellectual Property: Text, Cases, and Materials

notes on the contributors ix






(2009). Together with Lionel Bently and Jane Ginsburg, she edited thefirst book in this series: Trade Marks and Brands: An InterdisciplinaryCritique (2008). She has a particular interest in trade mark law andunfair competition and has published extensively on these topics.Before joining the Faculty of Law, Dr Davis practised as a lawyerspecializing in intellectual property litigation.

graeme b. dinwoodie

Professor of Intellectual Property and Information Technology Lawat the University of Oxford, Director of the Oxford IntellectualProperty Research Centre and a Professorial Fellow of St. Peter’sCollege. Prior to taking up the IP Chair at Oxford, ProfessorDinwoodie was a Professor of Law and Director of the Program inIntellectual Property Law at the Chicago-Kent College of Law. He isthe author of several casebooks and numerous articles on variousaspects of intellectual property law. Professor Dinwoodie holds a first-class LLB (Hons.) degree from the University of Glasgow, an LLMfrom Harvard Law School, and a JSD from Columbia Law School.

alan durant

Professor of Communication at Middlesex University Business School,London, and the author ofMeaning in the Media: Discourse, Controversyand Debate (2010). His earlier publications include a number oftextbooks on English language and literature as well as the textbookLanguage and Media, co-written with Marina Lambrou (2009). Otherstudies include: Conditions of Music (1984) and (ed. with Nigel Fabb,Derek Attridge and Colin MacCabe) The Linguistics of Writing (1987).

loraine gelsthorpe

University Reader in Criminology and Criminal Justice at the Instituteof Criminology, University of Cambridge and a psychoanalyticpsychotherapist (UKCP registered). She is also chair of the CambridgeSocio-legal Group (an interdisciplinary initiative) and chair of theBritish Society of Criminology’s Ethics Committee. She has publishedwidely and internationally on a range of matters in the fields of youthjustice, community penalties, and, in particular, women, crime andcriminal justice. She recently published The Handbook of Probation(ed. with Rod Morgan, 2007).

x notes on the contributors






jane c. ginsburg

Morton L. Janklow Professor of Literary and Artistic Property Law andCo-Director of the Kernochan Center for Law, Media and the Arts.Teaches legal methods, copyright law, and trade marks law atColumbia Law School. Has taught French and US copyright law andUS legal methods and contracts law at the University of Paris and otherFrench universities. During the 2004–5 academic year held the ArthurL. Goodhart Chair of Legal Science at the University of Cambridge.

Publications: co-author (with Sam Ricketon), InternationalCopyright and Neighbouring Rights: The Berne Convention andBeyond (2006); (with Robert P. Merges) Foundations of IntellectualProperty (2004) and (with Rochelle Dreyfuss) Intellectual PropertyStories (2005). With Professors Dreyfuss and François Dessemontet,Co-Reporter for the American Law Institute project entitled IntellectualProperty: Principles Governing Jurisdiction, Choice of Law andJudgments in Transnational Disputes (2008), Legal Methods: Casesand Materials (3d edn, 2008); Cases and Materials on Copyright (withGorman, 7th edn, 2006 and 2010 suppl.) and Trademark and UnfairCompetition Law (with Litman and Kevlin, 4th edn, 2007 and 2010suppl.), as well as a variety of law review articles. Co-editor (with LionelBently and Jennifer Davis) of Trade Marks and Brands: AnInterdisciplinary Critique (2008).

jonathan griffiths

Senior Lecturer, Queen Mary, University of London. Specializes inintellectual property law (particularly copyright law) and informationlaw. Mr Griffiths is a solicitor and teaches intellectual property law,international and comparative copyright law and the law of torts.He has published widely on the relationships between intellectualproperty, free speech and access to information, and is currentlyengaged in research on the three-step test in copyright law and onthe impact of the Human Rights Act 1998 on trade mark law. Since2008, a senior fellow of Melbourne Law School, University ofMelbourne.

Publications include: Blackstone’s Guide to the Freedom ofInformation Act 2000 (with John Wadham and Kelly Harris, 3rd edn,2007); Copyright and Free Speech: International and ComparativePerspectives (ed. with U. Suthersanen, 2005).

notes on the contributors xi






nick groom

Professor, Department of English, University of Exeter. His workinvestigates questions of authenticity and the emergence of nationaland regional identities, particularly in the eighteenth and earlynineteenth centuries. Following predominantly literary critical studies,his work has become more emphatically interdisciplinary. An interestin national identity and culture has inspired further research into therelationship of culture variously with the past, with noise and withthe landscape; currently working on a history of representations of theBritish environment and the problems of sustainability. ProfessorGroom has frequently appeared on radio and television and is a regularreviewer for the Independent. He teaches literature and culture fromShakespeare to the present day, and runs option courses on nationalidentity, literature and the environment, and erotic literature.

Publications include: The Making of Percy’s Reliques (1999), editionsof Thomas Percy’s collection of ballads and associated Arthurian texts;Thomas Chatterton and Romantic Culture (1999); The Forger’s Shadow(2002); and The Union Jack: The Story of the British Flag (2006).

adrian johns

Professor of History and Chair of the Committee on Conceptual andHistorical Studies of Science at the University of Chicago. Educatedat the University of Cambridge, he has also taught at the CaliforniaInstitute of Technology and the University of California, San Diego. Heis the author of The Nature of the Book (1998); Piracy: The IntellectualProperty Wars from Gutenberg to Gates (2010); and Death of a Pirate:British Broadcasting and the Origins of the Information Age(forthcoming, scheduled for late 2010).

david lefranc

A French lawyer specializing in intellectual property. He obtained hisdoctorate in law in 2003 . His thesis, under the direction of ProfessorHenri-Jacques Lucas, addressed the legal consequences of fame incopyright and trade mark law and rights of personality. Following sixyears of university teaching, David Lefranc became an avocat. Hecontinues his research through the publication of numerous articles.He also contributes to one of the LexisNexis legal encyclopaedias.David Lefranc is also interested in literary history, and has publisheda study of the Dada movement in Paris. A participant in the defenceof intellectual property, he is a member of the French national group

xii notes on the contributors






ALAI (Association Litteraire et Artistique Internationale). In addition,he is the president of the Association pour le Droit de la CreationIntellectuelle, whose website he manages (www.ip-sharing.com). DavidLefranc also composes electronic music and designs websites.

daniel mcclean

An independent art curator and lawyer, specializing in art law. He iscurrently advising Seth Siegelaub’s Stichting Egress Foundation in theNetherlands, on the creation of an art law centre and is curating anexhibition related to copyright with the Danish artist group, Superflexat the Van Abbemuseum, Eindhoven. He has commissioned and editedtwo publications examining the relationship between art and law: DearImages: Art, Copyright and Culture (2002); The Trials of Art (2007).

sebastien oddos

A dual-qualified lawyer in France (avocat) and in England (solicitor).His experience is in private practice in Paris (2000–3) and London(2006–9). His main focus is intellectual property law and informationtechnology law from transactional and litigation standpoints. Morerecently he served as UK Corporate Counsel for Sybase, a USsoftware publisher for the financial services industry. He has anLL.M. from Columbia Law School; Master’s degrees in intellectualproperty law from King’s College, London (LL.M.) and from theUniversity of Poitiers, France. He also holds a Master’s in corporatelaw from the University of Paris XI and HEC Business School and aBA in economics and finance from Sciences Po Paris.

johnson okpaluba

Visiting lecturer at King’s College London, where he gained his Ph.D. forhis thesis entitled ‘Digitisation, culture and copyright law: digitalsampling, a case study’. Dr Okpaluba also lectures at PepperdineUniversity on the International Copyright and Entertainment course.As a lawyer in private practice, he advises recording artists, songwriters,producers and managers on all aspects of the music industry and alsoadvises clients on intellectual property matters.

shira perlmutter

Executive Vice President for Global Legal Policy at the InternationalFederation of the Phonographic Industry (IFPI). She leads thedepartment that develops and coordinates IFPI’s positions for

notes on the contributors xiii






improving the legal framework under which record producers operateworldwide, in particular with respect to copyright and related rights.Ms Perlmutter joined IFPI from Time Warner, where she held theposition of Vice President and Associate General Counsel for IntellectualProperty Policy. She previously worked at the World Intellectual PropertyOrganization (WIPO) in Geneva, as a consultant on the copyright issuesinvolved in electronic commerce. From 1995 to 1999, she was AssociateRegister for Policy and International Affairs at the US CopyrightOffice. In that capacity, she advised Congress on and drafted portionsof, the Digital Millennium Copyright Act of 1998, and prepared theCopyright Office’s 1999 Report on Copyright and Digital DistanceEducation and its 1997 Report on Legal Protection for Databases.In 1996, Ms Perlmutter was a key member of the US delegation thatnegotiated the two WIPO Internet Treaties, and served as the expert onthe copyright law of the US during the WTO TRIPs Council review ofdeveloped countries’ copyright laws. From 1990 to 1995, Ms Perlmutterwas a law professor at the Catholic University of America, teachingcopyright law, trade marks and unfair competition, and internationalintellectual property law.

Publications include: co-author (with Graeme Dinwoodie andWilliam O. Hennessey), International Intellectual Property Law:Problems and Materials (2002); numerous articles on copyright issues.

catherine seville

University Lecturer in Law, Vice-Principal and Director of Studies inLaw at Newnham College. First degrees in music and English ledinexorably to an interest in copyright law. She has written two bookson the history of copyright. Her research interests also includeintellectual property law in the EU, and a book on this is forthcoming.Her most recent article is ‘Authors as Copyright Campaigners: MarkTwain’s Legacy’ (2008). Provoked by the Google Library controversy,it considers the role and influence of authors and authors’ organizationsin copyright reform.

Publications include: Literary Copyright Reform in Early VictorianEngland (1999); The Internationalisation of Copyright Law: Books,Buccaneers and the Black Flag in the Nineteenth Century (2006).

jason toynbee

Senior Lecturer in Media Studies, the Open University. His researchinterests are in media and cultural production, and the way that it

xiv notes on the contributors






impacts on textual form and meaning. He argues for the prevalence of‘social authorship’, whereby music makers are creative agents, yet arealso enmeshed in social networks of collaboration, competition andeconomic exploitation. This has led to an interest in copyright and itseconomic function of specifying the cultural commodity which installsa regime of enforced originality. Dr Toynbee is also involved in aresearch project on British jazz completed in 2007 which exploredauthorship and cultural policy. He is currently researching ‘MigratingMusic’ as part of the AHRC-funded project Tuning In DiasporicContact Zones at BBC World Service. ‘Migrating Music’ is aninternational, collaborative inquiry into the socio-cultural implicationsof music and diaspora across the world.

Publications include: Making Popular Music (2000); Bob Marley:Herald of the Postcolonial World? (2008).

notes on the contributors xv






EDITORS ’ PREFACE

Copyright infringement has been high on the national, regional andinternational political agenda for some time. The creative industries –publishers, the film and music industries and broadcasters – havelobbied hard for improved mechanisms of enforcement and strongerpenalties in the face of what they describe as rampant ‘piracy’ of theirproducts. The UK government increased criminal penalties for copy-right infringement in 2002 from a maximum of two years’ imprison-ment to a maximum of ten years, putting copyright infringement on apar with assault and other violent crimes. The French government in2009 introduced a mechanism (dubbed ‘graduated response’) thatwould oblige Internet service providers (ISPs) to cut off (or reduce)Internet access for users implicated in peer-to-peer file sharing. Thisinitiative has been imitated in the UK, where the Digital Economy Act2010 provides a framework for imposing similar obligations on ISPs toimpose ‘technical restrictions’ on the services offered to subscriberswho appear to have been involved in repeated copyright infringements.In 2007, the US launched an action at the WTO, complaining thatChina had not complied with the TRIPs Agreement because the rele-vant Chinese laws set certain thresholds for prosecution of copyrightpiracy. New initiatives are being discussed in the EU, the US, Japan,Australia and several other nations for an ‘Anti-Counterfeiting TradeAgreement’.

Although the question of copyright infringement has gained a greatdeal of political attention and is unquestionably controversial, aca-demics have generally attended more to other questions, particularly,‘authorship’. But there is much valuable work that could be undertakenwith a view to understanding the nature, causes and effects of infringe-ment, the parallels and differences between the norms of copyrightinfringement and cultural and social norms, and, perhaps, more impor-tantly, the nature and effects of different enforcement mechanisms. Inthis volume, we have sought to address some of the key questions

xvii






which present themselves in any study of copyright infringement.Thus, we have asked why does infringement occur and who, precisely,is involved in such infringements? How is it detected? And what arethe consequences of infringement, for both the creation and exploita-tion of copyright works? How, if at all, can such infringements beprevented in the light of new digital communications technologies?More generally, where is the boundary to be drawn between (illegal)imitation and (legal) inspiration? Is the answer different for creators,artists and experts from different disciplines or fields? How have con-cepts of copyright infringement altered over time and how do suchchanges relate, if at all, to the cultural norms operating among creatorsin different fields? What, if anything, are the practical implications ofthe use of the term ‘piracy’ rather than ‘infringement’ in relation tocopyright works. Indeed, how should the significance of the rhetoric of‘piracy’ be measured?

It is certainly the case that while plagiarism continues to garnermoral opprobrium, its legal counterpart, copyright infringement, hasbecome controversial both as a matter of legal doctrine, and of socialordering. The related concept of ‘piracy’ also appears to be losingrhetorical bite. There is no doubt that there is widespread disregardof copyright laws by the public at large, following the introduction oftechnology that enabled the public first to acquire and then to disse-minate copies for free. This raises the wider question of whetherlaws against copyright infringement can maintain their normativeappeal. It follows that in the face of oversimplified rhetoric demonizing‘copyright piracy’ and its apparent lack of resonance among largesections of the general public, it is important for academic study tostep back and take a deeper and more reflective approach. Such anunderstanding of the changing nature of the law – and practice – ofcopyright infringement is a task too big for lawyers alone. We take theview that it requires the multiple inputs of economists, historians,technologists, sociologists, cultural theorists and criminologists – aswell as lawyers. With such an approach, one might perhaps begin toaddress the vital and overarching question of whether strong copyrightlaws, rigorously enforced, impede rather than promote creativity. Andwhat can be done to avoid any such adverse consequences, whilemaintaining the effectiveness of copyright as an incentive mechanismfor those who need it?

This volume is the second in a series of books offering multidis-ciplinary examinations and critiques of various issues concerning

xviii editors ’ preface






intellectual property. The previous volume in the series, Trade Marksand Brands: An Interdisciplinary Critique (2008), was the first sustainedexamination of trade marks and brands from a multiplicity of disci-plines. Similarly, in this volume, we seek to offer a series of discretechapters not from a single perspective but rather to pair lawyers andnon- lawyers, so that each commentator will address and critique hisor her counterpart’s analysis from the viewpoint of their differentdisciplines. In contrast to most of the legal studies of copyright infrin-gement, we have given prominence primarily to specialists fromother disciplines who have in most cases authored the main chapters;lawyers have supplied most of the commentaries. We hope that thisformat will successfully highlight why interdisciplinary inquiries shouldbe of interest and assistance to legal academics and practitioners. Inaddition, we believe the volume should prove of interest to academicsin other disciplines whose modes of analysis are brought to bear onthe issue of copyright infringement and piracy. For those who wish toexplore further, an extensive bibliography collecting commentariesfrom all the fields here represented concludes the volume.

The chapters in this volume grew out of two successive workshopsheld at Emmanuel College, University of Cambridge, in July 2007 andJuly 2008. We are grateful to all the participants, including those whodid not present papers, but whose questions and critiques helped thepresenters to sharpen or rethink their arguments. We express ourappreciation as well to the Master and Bursar of Emmanuel Collegefor their support of this project. Both of the workshops were gener-ously funded by the Herchel Smith bequest to Emmanuel College forthe promotion of research into intellectual property law.

Lionel BentlyJennifer Davis

Jane C. GinsburgCambridge and New York, December 2009

editors ’ preface xix






TABLE OF CASES

BelgiumSociété Belge des Auteurs SCRL v. SA Scarlet, Case No 04/8975/A, District Courtof Brussels 28 June 2007 419

CanadaMichelin & Cie v. National Automobile, Aerospace, Transportation and GeneralWorkers Union of Canada (CAW-Canada) [1997] 2 FC 306 349, 350

European Court of Human RightsVereinigung Blidender Künstler v. Austria, Application 68354/01 25 January2007 338

European UnionInfopaq International A/S v. Danske Dagblades Forenig, Case C-5/08, [2009] ECDR16 265–6, 349

Microsoft antitrust ruling 233

FranceBouvier v. Gassigneul Cass. crim., 13 December 1995, RIDA July 1996, no 196, 307 -Cass. crim., 24 September 1997: Bull. crim. (Bulletin de la Cour de cassation,chambre criminelle), no. 310, 1036: Gaz. Pal. (Gazette du Palais) 1998, jur 529,note Leclerc. 75–6

Conseil Constitutionnel decision no. 2006-540 DC, 27 July 2006 81Conseil Constitutionnel decision no. 2009-580 DC, 10 June 2009, Loi favorisant ladiffusion et la protection de la creation sur internet 77

Cour de Cassation 1re civ, 7 March 1984, RIDA 1984/3 151; JCP G 1985 II20351 70–1

Cour de cassation decision 24 June 1852 67Cour de cassation decision 10 November 1930 66King’s Council decision 27 February 1682 57Pau Court of Appeal case 1904 65Tribunal de police correctionelle decision 15 February 1822 67–68

GermanyBild-Kunst v. Focus [2005] ECDR 6 (BGH, Federal Supreme Court) 348

xx






United KingdomAnacon Corporation v. Environmental Research Technology [1994] FSR 659343, 344

Archbold v. Sweet (1832) 1 M & Rob 162; 5 Car & p 219 11Ashdown v. Telegraph Group [2001] EWCA Civ 1142, [2002] Ch 149 10, 262, 350Baigent and Leigh v. RandomHouse Group Ltd [2006] EWHC 719, [2006] EMLR 16;[2007] EWCA Civ 247, [2007] FSR 24, [2008] EMLR 7 4, 7, 8, 177–80, 185, 188,197, 237–8, 264, 265, 267, 348–9

Banier v. News Group Newspapers Ltd [1997] FSR 812 349Barrett v. Universal Island Records [2006] EWHC 1009, [2006] EMLR 567 369Baumann v. Fussell [1978] RPC 485 (CA) 169Billhofer Maschinenfabrik GmbH v. Dixon & Co [1990] FSR 105 199Boosey v. Jefferys [1851] 155 ER 675 31Boosey v. Purday [1849] 154 ER 1159 30, 31Boosey v. Whight [1900] 1 Ch 122 374Bramwell v. Halcomb (1836) 3 My & Cr 737 5Bristol Conservatories v. Custom Built [1989] RPC 455 11British Broadcasting Corporation v. British Satellite BroadcastingLtd [1992] Ch 141 350

British Leyland Motor Corporation Ltd v. Armstrong Patents Co Ltd [1986]AC 577 348

Burnett v. Chetwood (1720) 2 Mer 441 301, 303Cantor Fitzgerald International v. Tradition (UK) [2000] RPC 95 204, 234, 265Cary v. Kearsley (1802) 4 Esp 168 8, 305Cave, Edward, plagiarism case as to Dr Trapps Sermons (1739) 302Chatterton v. Cave (1874-5) LR 10 CP 572 5Chiswell v. Lee (1681) C33/257/112 301, 302Coffey v. Warner/Chappell Music Ltd [2005] FSR 34 323, 379Cogan v. Cave (1743) C12/2204/24 302Confetti Records v. Warner Music UK Ltd [2003] EMLR 790 378D’Almaine v. Boosey (1835) 1 Y & C Ex 288 305–6Designers’ Guild v. Russell Williams (Textiles) Ltd [2001] 1 WLR 2416, [2001] FSR11; [2001] 1 All ER 700 (HL) 6, 147, 180, 182, 197, 199, 204, 205, 235, 237, 261,262–3, 264–5, 342, 343, 348

Dickens v. Lee (1844) 8 Jur 183 306Dicks v. Yates (1880-1) LR 18 Ch D 76 14Dodsley v. Kinnersley (1761) Amb 403 302Donaldson v. Becket (1774) 2 Bro PC 129, 1 ER 837 48, 49, 300Express Newspapers plc v. News UK Ltd [1990] 1 WLR 1320 349Exxon Corporation v. Exxon Insurance [1982] Ch 119 152, 234Francis Day & Hunter v. Bron [1963] Ch 587 8, 153, 261, 263–4Fraser-Woodward Ltd v. British Broadcasting Corporation [2005] EMLR 22 350

table of cases xxi






United Kingdom (cont.)George Hensher Ltd v. Restawhile Upholstery (Lancs) Ltd [1976] AC 64 352, 353Graves’ case (1869) 4 LRQB 715 332Gyles v. Wilcox (1740) C33/375/274, 2 Atk 141, Barn C 368, 2 Eq Ca Abr 697 302Hanfstaengl v. Baines & Co [1895] AC 20, 64 LJ Ch 81 169Harman Pictures v. Osborne and others [1967] 1 WLR 723 178Hawkes v. Paramount [1934] Ch 593 262Hollinrake v. Truswell [1894] 3 Ch 420 6Hyde Park Residence Ltd v. Yelland [2000] EMLR 363 (CA) 350Ibcos Computers v. Barclays Mercantile Highland Finance [1994] FSR 275 194,195, 198, 231, 232, 233–4

IPC Media Ltd v. Highbury Publishing Ltd [2004] EWHC 2985 148–59, 160–1,168, 200

Jefferys v. Boosey (1854) 10 ER 681, 4 HLC 815 33John Richardson Computers Limited v. Flanders [1993] FSR 497 6, 233, 234Joy Music v. Sunday Pictorial Newspapers (1920) Ltd [1960] 2 QB 60 185Kenrick & Co v. Lawrence & Co [1890] LR 25 QBD99; 38 WR 779 149Kenwrick v. Lawrence [1890] LR 25, QBD 99 312Kleeneze Ltd and another v. DRG (UK) Ltd and another [1984] FSR 399 235Landa v. Greenberg (1908) 24 TLR 441 11LB Plastics Ltd v. Swish Products Ltd [1979] RPC 551 (HL) 181, 194Lewis v. Fullarton (1839) 2 Beav 6 8Lucas v. Ainsworth [2008] EWHC 1878 (Ch) 322Ludlow Music Inc v. Williams (No 1) [2001] EMLR 7, [2001] FSR 19 262Millar v. Taylor (1769) 4 Burr 2303, 98 ER 201 300Morris v. Kelly (1820) 1 Jac & W 481, 37 Eng Rep 451 84Navitaire Inc v. Easyjet Airline Co Ltd (No 3) [2006] RPC 3 232, 234–5, 239, 264Newspaper Licensing Agency v. Marks & Spencer Ltd [2003] 1 AC 551 265, 343Norowzian v. Arks Ltd (No 2) [1999] FSR 79, [2000] FSR 363 (CA) 159Nova Productions Ltd v. Mazooma Games Ltd [2006] Ent LR 181, [2007] RPC 25(CA) 148, 194, 232, 234, 235–6, 264, 265, 267

Pike v. Nicholas (1869) 5 Ch App 251, 39 LJ Ch 435, 18 WR 321 178Plix Products v. Frank M Winstone [1986] FSR 92 182–183Pope v. Curll (1741) 2 Atk 342 3Pro Sieben Media AG v. Carlton UK Television Ltd [1999] 1 WLR 605 349, 350, 352Proctor & Gamble Co v. Reckitt Benckiser (UK) Ltd [2007] EWCA Civ 936 204R v. Ghosh [1982] 3 WLR 110 13Ravenscroft v.Herbert and New English Library Ltd [1980] RPC 193 162–3, 178–9,189, 348

Read v. Hodges (1740) C11/583/36, C33/374/153 302Reade v. Conquest (No 1) (1861) 9 CB (NS) 755 306Reade v. Conquest (No 2) (1862) 11 CB (NS) 479 306

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Reade v. Lacy (1861) 1 J & H 524 306Reckitt & Coleman Products Ltd v. Borden [1990] 1 WLR 491 11Sandman v. Panasonic UK Ltd [1998] FSR 651 344Sawkins v. Hyperion [2005] 1 WLR 3281 343Sayre v. Moore (1785) 1 East 361n, 102 ER 139n 303–4Schweppes v. Wellingtons Limited [1984] FSR 210 185

Société Technique de Pulvérisation Step v. Emson Europe Ltd [1993]RPC 513 (CA) 197

Strahan v. Newbery (1774) Lofft 775 302, 303Sweeney v. Macmillan Publishers Ltd [2002] RPC 35 11

Tate v. Fullbrook [1908] 1 KB 821 5Tidy v. Trustees of the Natural History Museum (1995) 39 IPR 501 353Time Warner v. Channel Four [1994] EMLR 1 (CA) 350

Tinsley v. Lacy (1862) 32 LJ (Ch) 537, 1 H & M 747 306Tonson v. Collins, Trin 1 Geo III KB; Mich 2 Geo III KB; 1 Black W 301 49Tonson v. Walker (1752) 3 Swans 672 302Toole v. Young (1874) LR 9 QB 523 306Trapp’s (Dr) sermons, plagiarism case against Edward Cave (1739) 302Walter v. Lane (1899) 2 Ch 749, [1900] AC 539 305Walter v. Steinkopf [1892] 3 Ch 489 11, 349Warwick Film Productions Ltd v. Eisinger and others [1969] 1 Ch 508 178Wellington v. Levi (1709) C33/314/54-55 302

Wilkins v. Aikin (1810) 17 Ves Jun 422 305Williamson Music v. Pearson [1987] FSR 97 185

United StatesA&M Records Inc v. Napster Inc, 239 F 3d 1004 (9th Cir 2001) 88Arnstein v. Porter, 154 F 2d 464 (2nd Cir 1951) 195, 196, 200Baker v. Selden, 101 US 99 (1879) 83Blanch v. Koons, Docket No 05-6433-cv (2nd Cir 2006) 312, 313, 337–8Bleistein v. Donaldson Lithographic, 188 US 239 (1903) 339Boucicault v. Fox, 3 F Cas 977 (CCSDNY 1862) (No 1691) 84Bridgeport Music Inc v. Dimension Films, 383 F 3d 390 (6th Cir 2004) 383Brown Bag Software v. Symantec Corporation, 960 F 2d 1465 (9th Cir 1992) 196Capitol Records v. Aluajan, 626 F Supp 2d 152 (D Mass 2009) 89

Cariou (Patrick) v. Richard Prince et al (SDNY) (Claim filed 30 December 2008) 313Cartoon Network LP v. CSC Holdings Inc, 536 F 3d 121 (2d Cir 2008) 87Computer Associates International v. Altai Inc, 982 F 2d 693 (2nd Cir 1992) 195,203, 204, 234

Dawson v. Hinshaw Music Inc, 905 F 2d 731 (4th Cir 1990) 204Elektra Entertainment Group v. Barker, 551 F Supp 2d 234 (SDNY 2008) 85Fairey v. Associated Press, Case no 09-01123 (AKH) (SDNY, filed 9 February 2009) 313

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United States (cont.)Gaste v. Kaiserman, 863 F 2d 861 (2nd Cir 1988) 196Grand Upright Music Ltd v. Warner Brothers Records Inc, 780 F Supp 182 (SDNY1991) 383

Harper & Row Publishers v. Nation Enters, 471 US 539 (1985) 194Hoepker v. Kruger, 200 F Supp 2d 340 (SDNY 2002) 313Kregos v. Associated Press, 937 F 2d 700 (2nd Cir 1984) 194London-Sire Records v. Does, 452 F Supp 2d 153 (D Mass 2008) 85, 86–7Lotus v. Borland International Inc, 49 F 3d 807 (1st Cir 1995) 195Nash v. CBS Inc, 899 F 2d 1537 (7th Cir 1990) 201, 202Nichols v. Universal Pictures 45 F 2d 119 (1930) 6, 150, 194, 202, 204Peter Pan Fabrics v.Martin Weiner Corporation, 274 F 2d 487 (2nd Cir 1960) 197Positive Black Talk Inc v. Cash Money Records, 394 F 3d 357 (5th Cir 2004) 197Rogers v. Koons, 960 F 2d 301 (1992) 340, 347, 351Serra v. US General Services Administration, 847 F 2d 1045 (2nd Cir 1988) 326,334–6

Strombeck v. New Line Cinemas, 384 F 3d 283 (6th Cir 2004) 195Whelan Associates v. Jaslow Dental Laboratory Inc, 797 F 2d 1222 (3rd Cir1986) 195, 203, 233

Woods (Lebbeus) v. Universal Studios Inc, 920 F Supp 62 (1996) 314

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TABLE OF STATUTES

AustraliaCopyright Act 1968 345

European Convention on Human Rights (ECHR)Art. 10 338

European UnionAmended Proposal for a Directive of the European Parliament and of the Council onCriminal Measures aimed at Ensuring the Enforcement of Intellectual PropertyRights COM/2006/168 – COD 2005/0127 58, 77–8

Directive 2001/29/EC (Copyright Directive) 317Art. 2 266Art. 5(3) 189

Directive 2001/84/EC (Artist’s Resale Right Directive) 316, 344Directive 2004/48/EC (IPR Enforcement Directive)Arts. 6, 8, 9 77

Directive 2007/65/EC (Information Society Directive)Art. 2 266Art. 2(a) 266

Directive 2009/24/EC (Computer Program Directive) 231Recital 11 232

Directive 91/250/EEC (Computer Program Directive)Art. 1(2) 6, 232Art. 1(3) 231

Directive 96/9/EC (Database Directive) 231

FranceAct of 1 August 2006 74Act of 29 May 1925 67Act of 5 February 1810 61Arts. 41,42 61

Act of 8–19 April 1854 66Code of Intellectual PropertyArt. L 122 326Art. L 122-1 58

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France (cont.)Art. L 122-4 58Art. L 122-5 74Art. L 335-2 56Art. L 335-3 57Art. L 713-5 69

Copyright Bill 2006 69, 72–3, 74–6Copyright Bill 2009 76–7Criminal Code 1804 57, 61, 63Art. 425 61Art. 426 69Art. 428 65

Decree of the King’s Privy Council of State, which establishes a Stamp Office forMusic, of 15 September 1786Art. 1 59–60

HADOPI law 81–2King’s Council decision 1682King’s Council Order of 30 August 1777 59King’s Council Order of 15 September 1786Art. 19 60

Law of 12 June 2009 77Law of 28 October 2009 77legislative debates on contrefaçon 1793Loi n8 2006-961, 1 August 2006 72, 74Loi n8 2009-669, 12 June 2009,Loi favorisant la diffusion et la protection de la creation sur internet 75

Loi n8 57-298, 11 March 1957, on literary and artistic property 58, 62, 63, 68–9, 80Art. 2 58, 68Art. 26 68Art. 27 68Art. 28 68Art. 31 71

Loi n8 85-660, 3 July 1985, private copy remuneration scheme 71Loi n8 95-4, 3 January 1995, right of repography compulsory licence 71Order of 13-19 January 1791 62, 63–4, 65, 66, 67–8, 80, 280Order of 6 August 1791 62, 64, 65, 66, 67–8Order of 19 and 24 July 1793 60, 64, 66, 67–8, 71, 80Art. 3 64Arts. 3, 6 60–61

Order of 5 February 1810Art. 39 66

Royal Declaration of 15 March 1777 59

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GermanyCopyright Act 1965s. 24 348, 349

International agreementsAgreement on Trade-Related Aspects of Intellectual Property 1994 (TRIPSAgreement) 358, 372, 373Art. 10(1) 196Art. 9(2) 6, 148, 194, 264

Berne Convention 69, 261, 339, 375Art. 2(1) 261Art. 2(8) 264Art. 6bis 8–9

WIPO Copyright Treaty 1996Art. 2 6, 148, 194Recital 15 148

JamaicaCopyright Act 1993 373, 377–8, 380–1s. 14 378s. 15(4)(a) 378s. 77 384

Copyright Act (draft) 1977 377copyright statute of 1913 358

United KingdomArtist’s Resale Right Regulations 2006 344s. 3(1)–(3) 316s. 12(3) 316Sch. 1 316

Copyright Act 1842 305Copyright Bill 1837 23, 25Copyright, Designs and Patents Act 1988 (CDPA 1988) 8–9, 56, 85, 97, 229, 322,343, 344–6, 347–8, 349, 352, 378Chapter 3 9–10, 13, 265s. 1 261s. 1(1) 344s. 1(1)(c) 159s. 3(1)(b) 231s. 3(2) 344, 345s. 3(3)(ab) 232s. 4 344s. 4(1)(a) 312, 322

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United Kingdom (cont.)s. 4(1)(c) 312, 352ss. 5, 5B, 6, 8 344s. 8(1) 159ss. 9–11 96ss. 16–27 198s. 16 261, 343s. 16(3) 5, 97, 198s. 16(3)(a) 149, 265s. 16(3)(b) 262s. 17 261s. 21 261, 342ss. 28-76 153ss. 29, 30 10, 199s. 30(1) 348, 349, 352s. 77 9, 326s. 77(1) 345s. 78 9s. 78(2) 345s. 78(3)(a) 345s. 79 9ss. 80, 84 326s. 107(1) 15s. 107(2A) 412s. 171(3) 10

draft UK–US copyright treaty 1854 33Dramatic Literary Property Act 1833 84Engraving Copyright Act 1734 314, 344Fine Arts. Copyright Act 1862 9, 332, 338, 344Fraud Act 2006 9–10, 13, 14s. 2 9–10, 13s. 2(2) 13s. 2(4) 13

Imperial Copyright Act 1911 338, 358, 374, 375, 376, 377s. 5(1)(b) 377s. 5(2) 377s. 19(1) 377s. 19(2) 375s. 24(b) 376ss. 25–28 374

Licensing Act 1695 57Statute of Anne 1710 57, 279–80, 281–2, 300–1, 302, 304, 308

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United StatesCalifornian Resale Royalties Act 1976 316Chace bill 36, 37, 38, 41–2Clay bill 1837 27Connecticut copyright legislation 1783 20Constitution 1783Art. 1, s. 8, cl. 8 20, 315

Copyright Act 1870 84Copyright Act 1891 23–4, 42–3Copyright Act 1976 84–5, 86–7, 87–8, 89§ 101 84, 86§ 102(a) 85§ 102(b) 194, 264§ 106 85, 87–8, 198§ 106(1) 85, 87§ 106(3) 85, 87§ 106(4) 84§ 106(6) 84, 88§ 106A 326§ 107 185, 199, 335, 337–8§ 109(a) 85§ 111 88§ 114(d)–(j) 88§ 116 88§ 118 88§ 504(c)(2) 89§ 506(a)(1)(B) 88§ 506(a)(2) 88§ 1201 88, 90§ 1202 88

Copyright Act Amendment 1856 84copyright bills 1871–1874 35Declaration of Independence 1776 20Digital Millennium Copyright Act (DMCA) 227Dorsheimer bill 36draft UK–US copyright treaty 1854 33Federal copyright legislation 1790 20Amendment 1831 21

Federal copyright legislation 1837–1891 23Federal Rules of Civil ProcedureRule 56(c) 197

Hawley bill 36–7

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United States (cont.)No Electronic Theft Act 88–9USC§§ 2318–20 (2008) 82

Visual Artists Rights Act (1990) (VARA) 326s. 106A(3)(b) 326

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