CHAPTER 7: Compilations and Databases

Subject Matter Protected by Neighbouring Rights (Other Subject-Matter)

Performer’s Performances

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  s. 15 provides for protection of a performer’s performance that takes place in Canada or in a country that is party to the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, signed in Rome on October 26, 1961.
  
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    s 15(1) - a performer has a copyright in the performer’s performance, consisting of the sole right to do the following in relation to the performer’s performance or any substantial part thereof:
    
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      (a) if it is not fixed,
      
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        (i) to communicate it to the public by telecommunication
        
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        (ii) to perform it in public, where it is communicated to the public by telecommunication otherwise than by communication signal, and
        
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        (iii) to fix it in any material form,
        
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      (b) if it is fixed,
      
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        (i) to reproduce any fiction that was made without the performer’s authorisation
        
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        (ii) where the performer authorized a fixation, to reproduce any reproduction of that fixation, if the reproduction being reproduced was made for a purpose other than that for which the performer’s authorisation was given, and
        
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        (iii) where a fixation was permitted under Part III or VIII, to reproduce any reproduction of that fixation, if the reproduction being reproduced was made for a purpose other than one permitted under Part III or VIII, and
        
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      (c) to rent out a sound recording of it,
      
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    and to authorize any such acts.
    
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  s. 2 “performer’s performance” means any of the following when done by a performer: 
  
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    (a) a performance of an artistic work, dramatic work or musical work, whether or not the work was previously fixed in any material form, and whether or not the work’s term of copyright protection under this Act has expired,
    
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    (b) a recitation or reading of a literary work, whether or not the work’s term of copyright protection under this Act has expired, or
    
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    (c) an improvisation of a dramatic work, musical work or literary work, whether or not the improved work is based on a pre-existing work.
    
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  s. 26(1) the sole right to do the following in relation to the performer’s performance or any substantial part thereof:
  
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    (a) if it is not fixed, to communicate it to the public by telecommunication and to fix it in a sound recording, and
    
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    (b) if it has been fixed in a sound recording without the performer’s authorization, to reproduce the fixation or any substantial part thereof, and to authorize any such acts.
    

Sound Recording Makers

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  s. 18 provides for rights of coins recording makers when the sound recording is first fixed by a citizen or permanent resident of, or first published in, a Berne Convention country or a country that is a TWO member.
  
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  s. 19 provides for a right of remuneration by royalty payments to both the performer of the performance and the maker of the sound recording of that performance in a situation where the sound recording has been published.
  
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  The sound recording must either be first fixed by a Canadian citizen or permanent resident of Canada, or a citizen or permanent resident of a Rome Convention country.
  
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    The circumstances and scope of this right of remuneration by royalty payments is specified in ss. 19(2) and (3), with exceptions in s. 20.
    

Broadcaster’s Communication Signals

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  ss. 21 to 23 provide a copyright to a broadcaster … in the communication signals that it broadcasts.
  
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    Exceptions in s. 21(3) and reciprocity provisions in s. 22.
    

Rental Rights

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  Computer programs, musical work, a sound recording in which the work is embodied, sound recording, and a performer’s performance.
  
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  Rental under s. 2.5 of the Copyright Act.
  

Notes

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  Difference between works under s. 5, and the scope or content of “other subject-matter” or “neighbouring rights”.
  
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    Other subject-matter does not enjoy full and general economic rights under s. 3.
    
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  Moral rights under s. 14.1 are only available to the original author “of a work”.
  

Reproduction

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  s. 3(1) of the Copyright Act is the “sole right to produce or reproduce the work or any substantial part therefor in any material form whatever”.
  
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  Quite clear on ordinary contexts of literal copying, such as photocopying pages from a book.
  
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  Concept of reproduction is more difficult, however, when it occurs in a different medium, presentation, form, or dimension.
  
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    Literal copying of the “object code” of a software program.
    
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      Virtually non-readable by humans, it is a reproduction of a human-readable code and is protected (pp 83).
      
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    Non-literal copying of software programs (pp 90).
    
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    3D copying by making an object presented in a plan, chart, or drawing (pp 216).
    
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    Distinction between reproduction of the selection and arrangement of a database or between the compilation and reproduction of the data or content of the database (pp 233).
    

Nichols v. Universal Pictures Corporation

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  Two plays, different stories but similar characters.
  
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  “A comedy based upon conflicts between Irish and Jews, into which the marriage of their children enters, is no more susceptible of copyright than the outline of Romeo and Juliet.”
  
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  Expert evidence was said to not be needed.
  
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  Found in the defendant’s favour.
  
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  Character protection, again from Nimmer.
  
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    A character can be protected separately form the plot, but must be “distinctively delineated” in the work; and
    
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    This delineation can be achieved more readily through an artistic depiction (as in cartoon characters) than through a literary description or “word portrait”.
    

Preston v. 20th Century Fox Limited

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  Plaintiff was resident in Canada.
  
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  Claimed that the motion picture “Return of the Jedi” and a tv series, was an infringement of his Space Pets manuscript. 
  
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  Copyright in the Ewok character was discussed at the trial division.
  
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    Claim was dismissed.
    
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  Generally no copyright in a mere name.
  
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    But, where the name identifies a well-known character copyright in the name and associated character may be recognised. 
    
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    For such recognition it is said the character must be sufficiently clearly delineated in the work subject to copyright that it became widely known and recognised.
    
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    In words of Learned Hand J, the less developed the character, the less they can be copyrighted.
    
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  Characteristics set out in the script do not delineate the character of the Ewok sufficiently distinctly to warrant recognition as a character subject to copyright.
  
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    Not sufficiently different from other characters in the same movie, name not really mentioned in actual script, only popular due to Star Wars anyway.
    

Hanfstaengl v. Empire Palace

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  Exhibition presented five pictures of which the plaintiff held the copyright.
  
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  Defendant did tableaux vivants of the pictures, exact reproductions of the pictures as such.
  
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    Backgrounds were painted on canvas.
    
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  Copyright includes exclusive right to copy, engrave, reproduce, and multiply… by any means and by any size … could that include the exhibition of living figures?
  
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    Doubt it.
    
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    Dicks v. Brooks
    
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      Madame Tussaud case, allows the wax sculptures as they don’t compete with the originals in any way (the paintings or photos on which they were based).
      
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  Doesn’t seem like the original legislative intent was to cover this, would be a stretch, so no.
  

Roger v. Koons

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  Copyright in a black and white photo of eight newly born German Shepherd puppies with a man and woman.
  
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  Defendant made sculptures of the puppies.
  
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  Sculpture was clearly to be based exactly off of the photo.
  
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  Had the appellant simply used the idea, would not have been copying.
  
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    But, copied expression exactly.
    
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  Held that there was infringement, trial judgement was correct.
  

Substantiality

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  In determining what is substantial copying, two primary criteria are utilized.
  
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    Quantity
    
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    Quality
    
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      Qualitative factors are more significant.
      
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        Relative effort between the parties in preparing their respective works
        
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        The economic impact on the plaintiff’s market
        
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        Other factors re: some notion of unfair competition
        
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    Inquiry as to substantiality within broader considerations of:
    
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      Whether there has been an infringement through the similarity or striking similarity of the respective works to a substantial extent, or whether there is substantial similarity between copyrightable elements in the respective works
      
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      Whether a fair amount has been taken in a manner of the fair dealing defence.
      
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    “If the quantity taken be neither substantial nor material, if, as has been expressed by some judges, a “fair use” only be made of the publication, no wrong is done and no action can be brought"
    

Quantitatively Substantial

Hawkes & Son (London) Ltd. v. Paramount Film Service, Ltd.

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  Plaintiffs owned a copyright in a song “Colonel Bogey”.
  
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  Defendants filmed an event were the song was played, film had some of the music in it.
  
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  Trial J
  
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    No substantial part of the work has been reproduced.
    
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    What has been used is fair dealing.
    
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    Impossible for there to be substantial injury from it.
    
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    Defendants didn’t have knowledge the work had been infringed.
    
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  LJ
  
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    Though not prolonged, clearly a substantial, vital, and essential part which was reproduced.
    
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    Despite not really causing any damage, and the fact this will hamper news films, has infringed.
    

Qualitatively Substantial

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  Illustrated best with musical works involving a portion that is highly appealing and often repeated, the “hook”.
  

Breen v. Hancock House Publishers Ltd.

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  Plaintiff completed a doctoral thesis in ’72 on the Canadian West and the Ranching Frontier.
  
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  Defendant prepared a manuscript in the 70s on Ranching.
  
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  Defendant was working on own manuscript, at recommendation of others looked at the plaintiff’s.
  
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    Late for deadline, made liberal use of the plaintiff’s work.
    
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  Plaintiff went to update own work, read defendant’s, found substantial copying.
  
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  Quantitatively small, but seemed to be more than fair dealing.
  
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  Only conjecturally damaging. Sale of second book was disappointing.
  
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  Even in the absence of monetary loss, or of accountable profits, the finding of infringement might nevertheless entitle a successful plaintiff to exemplary or punitive damages.
  
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  Publisher was unaware, so sufficient to limit to permanent injunction.
  
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  Though a scholarly work might have limited commercial value, it is nonetheless entitled to the full protection of copyright.
  
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  It is his work, his labour an chis talent which have produced it.
  
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    Plaintiff succeeded in proving this point.
    

Hutton v. Canadian Broadcasting Corporation

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  Facts were done before, two TV shows, Star Chart and Good Rockin’ Tonite.
  
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  Appreciable similarity between the words of the two productions, at least between the words of SC and the first 125 programmes of GRT.
  
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  Same author for those, same host.
  
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  Common stock elements like teases, bumpers, montages, etc. were common to the trade.
  
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  Some similarities were inevitable due to the author’s personal writing style and the clichés of the business.
  
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  Trial J: Deal with similar subject matter, but no substantial similarity in the presentation of it, due to the dramatic incidents of SC, which give it its original character, are altogether lacking in GRT.
  
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  Appeal: Different premises, different structure, based on similar things (show from the 50s). When both shows are viewed as a whole, there is no substantial similarity in the mode of expression.
  

Prism Hospital Software v. Hospital Medical Records Institute

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  Two computer programs, facts given earlier.
  
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  Had access to the source code, had other program installed on computer while doing the other version.
  
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  Evidence of actual copying.
  
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  Defendants tried to hide their activities.
  
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  No literal copying, more of a translation.
  
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  Actual copying has been demonstrated, access to the source code has been demonstrated, and the programs are substantially similar on the positive evidence available.
  
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  Bad copying, but still copying.
  
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  Copying goes beyond a reproduction explainable by reference to the specifications for data collection laid down.
  
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    Program is more similar to other one, doesn’t align with specific requirements of HMRI.
    

Directory: outlines
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outlines -> Adil Khan Contracts Midterm outline- waldron
outlines -> Remedies for breach of promise (1) The Interests Protected
outlines -> Basic Process for Assessing Damages: 97 Select  interest that deserves vindication 97 a. Restitution 97
outlines -> Chapter Five: Written Documents 1 Unsigned Documents 1
outlines -> Cases and Materials on Contracts
outlines -> College of Science and Health
outlines -> Evidence outline
outlines -> 2. Act, Omission, Status or Circumstances 4 Consequences and Causation 8 Introduction to Mens Rea and Intent 10 Levels of Fault 11

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