General Meaning University of London Press Ltd. v. University Tutorial Press, Ltd. -
s1(1) of the Copyright Act 1911 provides for copyright in "every original literary dramatic musical and artistic work", subject to certain conditions which for this purpose are immaterial and the question is whether these examination papers are, within the meaning of this Act, original literary works.
-
s 35 states what the phrase includes, though the definition is not a comprehensive one.
-
Includes maps, charts, plans, tables, and compilations.
-
"The word 'literary' seems to be used in a sense somewhat similar to the use of the word 'literature' in political or electioneering literature and refers to written or printed matter."
-
"Papers set by examiners are, in my opinion, "literary work", within the meaning of the present Act.
-
Question then becomes whether or not they are original.
Hollinrake v. Truswell -
Plaintiff claimed copyright protection in a "sleeve-chart" designed to be used in dressmaking.
-
It consisted Readi a piece of cardboard curved to resemble parts of an arm and depicted phrases and measurement scales to be followed when using the chart.
-
Had certain descriptive words, and measurement labels.
-
Proceedings at time were under Literary Copyright Act in the UK, at the time they would have been "literary work" in Canada, until Copyright Amendment Act 1988 and would now be known as an artistic work.
-
Ruling:
-
"Literary work is intended to afford either info and instruction or pleasure in the form of literary enjoyment."
-
Sleeve gives us no information or instruction, doesn't add to the stock of human knowledge and doesn't give any instruction.
-
Doesn't afford any pleasure or enjoyment.
-
Said it is a mechanical contrivance, appliance or tool.
-
Should have been a patent for an invention.
The Bulman Group Ltd. v. Alpha One-Write Systems BC Ltd. -
Plaintiffs claimed copyright in seven business forms constituting an overall accounting system that avoided the necessity of repeating entires in subsequent accounting documentation.
-
Known as a "one-write" system.
-
Judge found sufficient originality skill and labour required to render the work in issue capable of being copyrighted.
-
Trial Judge:
-
Not only s 4 but all throughout the act literary works are linked with dramatic, musical and artistic works.
-
Settled law that the literary merit of a work need not be high and indeed might be minimal or non-existent, especially in the case of a compilation.
-
May be a trade director or a compilation of some sort as long as some original skill and judgment is required in its preparation.
-
Federal CoA
-
Trial judge erred in saying that a work must be informative to be a literary work within the meaning of the Copyright Act.
-
American Cyanimid v. Ethicon Ltd.
-
Application for an interlocutory inunction is not the stage for determining difficult questions of law on which the merits of the case depend, and that where the other conditions for an injunction are satisfied, it should not be refused if there is a serious question to be tried.
-
Held that the request for interlocutory injunction should not have been refused on the ground that the forms were not proper subject-matter for copyright.
Exxon Corporation v. Exxon Insurance Consultants International Ltd. -
Plaintiff had invented the name Exxon.
-
Principal issue is whether or not protection could be given to the single word.
-
Submitted that the creation of the word had involved considerable time and labour and was accepted as being original, although with some reservation as to the extent and nature of the literary or research work involved.
-
Clear from the definition from University of London Press, words literary and original must be treated reasonably broadly, and it stems from that if a word is invented it must for practical purposes be considered as original.
-
If a copyright were granted, the general public wouldn't be able to refer to any of the plaintiff companies or to any of their goods without having the plaintiff's licence expressly or impliedly to do so.
-
It's merely a word which, though invented and therefore original, has no meaning and suggests nothing in itself.
-
To give it meaning it must be accompanied by other words.
-
Already covered by Trade Marks Act, but that shouldn't impact the decision on whether or not the Copyright Act may also cover it.
-
Doesn't have any of the qualities which common-sense would demand.
-
Conveys no information, provides no instruction, gives no pleasure, simply an artificial combination of court letters which serves a purpose only when it is used in juxtaposition with other English words.
British Columbia v. Mihaljevic -
Relationship between copyright and trademark protection was raised before Macdonell J.
-
The province of BC, in preparation for Expo 86, obtained trademark registration and official mark notification in various words, phrases and designs. Two of these were Expo 86 and Expo.
-
Province had official marks notified in Nov '82 and Dec '85, with Trademark applications filed in July '82 and Nov '83.
-
Registration was completed in Aug '85 and Sep '85.
-
Sought a declaration as to its exclusive right to these words or phrases.
-
Defendant, was an entrepreneur, concluded from the success of the exposition in Montreal in 67 that the same would happen in Vancouver.
-
Designed logos with the words Expo 86 in them, and registered copyrights for designs and words Expo and Expo 86 on August 1, 1985.
-
Claimed copyrights to have existed in his works prior to the province's registration of its trade and official marks.
-
Interlocutory injunction was granted on April 16, '86 against the defendant.
-
Ruling:
-
Defendant has failed to establish a causal connection between the plaintiff's designs and the copyrighted designs.
-
The common elements are Expo and Expo 86, though a prominent part of the defendant's designs, these marks alone do not constitute a "substantial part" of the designs.
-
Further, none of the plaintiff's designs reproduce any of the defendant's graphic representations of the marks.
-
For the defendant to succeed, would have to prove copyright in word Expo or Expo 86.
-
In order to gain exclusive use of a word or name, one must turn to the law of trade marks.
-
Copyright vs. trade mark
-
Analogous case is King Features Syndicate v. Lechter, Canadian defendant saw Popeye watches being promoted in the US and started doing so in Canada with 4 of the Popeye characters on them.
-
Court held that the reproduction of the 4 characters constituted infringements of the plaintiff's copyright.
-
Also held that the use of the name Popeye in conjunction with the characters was infringement.
-
Plaintiff claimed that the defendant had no right to use the name Popeye on watches, the court stated the the law of copyright would not assist the plaintiff on this point - reliance had to be placed on the law relating to passing off.
-
Attempting to sue for passing off was unsuccessful, because there had been no attempt by the plaintiff to market the watches in Canada before.
-
Despite the defendant clearly using the popularity of the cartoon character as an aid to sell the watches.
-
On the basis of King Features the defendant's copyrights cannot prevent the plaintiff from adopting, using and registering the words as office marks and/or trade marks.
-
Therefore if the defendant is to succeed against the province, must rely on the common law tort of passing off.
-
On the facts of the case, cannot succeed in that - plaintiff was using the marks well before the defendant began selling his souvenir items.
-
Copyright is essentially a protection against plagiarism. To set it up as a defence to a trade mark infringement action is to misconceive the nature of and protection offered by a copyright.
Via Rail Canada Inc. v. Location Via-Route Inc. -
Plaintiff is a Crown corporation providing a national rail passenger service.
-
Registered a design trademark (April 15, 83) and an artistic copyright (Oct 20, 87) in its corporate logo.
-
From May 87, the defendant used the design trademark VIA ROUTE for its business of automobile and truck rentals.
-
The plaintiff claimed infringement of both its trademark and its copyright.
-
Ruling:
-
Previously established that the copyright registration certificate covered an artistic work entitled "via" (the logo).
-
This doesn't manifestly accord copyright on the VIA trade mark itself, just the logo.
-
Function of the logo is to convey the idea behind the word "via", the word itself is not protected by the registration.
-
Copyright Act doesn't protect the idea itself but simply the expression of it.
-
Common word, in English and French.
-
Logo also doesn't just said VIA, the 'A' is an upside down V, technically not the word anyway (JB-this seems like a cop-out excuse to me)
Share with your friends: |
