Intellectual Property Law in the UK - Coursework Example

?Introduction The modern copyright laws originated in the United Kingdom. Currently, the UK copyright law is found in the 1988 Act, which has since been amended several times especially for the purpose of inclusion of European Union directives. Under this Act, the types of work protected under copyright include artistic/musical work, dramatic, sound recording, literary work, broadcast, and typographical arrangement of a published work. Copyright infringement refers to use of works under copyright without proper authorization, infringing the "exclusive rights" of the copyright holder through reproduction, distribution, and display or performing of the copyrighted work, spreading of the information that is contained in copyrighted works, or deriving work from copyrighted works without permission from the owner. The last named often includes copying of "intellectual property" without authorization in writing from the copyright holder, who in almost all cases is a publisher who has been authorized to act on behalf of the work’s creator (Cornish and Llewelyn, 2007). Through the parliament, the United Kingdom enacted Copyright, Designs and Patents Act 1988 (c. 48), which is also called CDPA. Under section 1 of the Copyright,1 existence of copyright in an original literary work is spelt out. A person is assumed to have violated the Copyright if he does any act that is restricted by the Act, which includes copying literary work without seeking permission from the author or the copyright owner,2 and publicizing copies of the work.3 Breach of the copyright can be committed in respect to the whole of a sizeable part of the work.4 Provided that certain conditions are fulfilled, copyright grants the author of the work exclusive rights over their use. For instance, the author of a work enjoys exclusive rights to prevent or allow performance of their work in public or its copying. These rights are referred to as economic rights (Intellectual Property Office, 2011). Copyright is violated if someone does any of the exclusive actions prohibited by the copyright devoid of consent from the owner, in respect to the entire or a substantial component of a copyright work. Notably, there are exceptional circumstances where someone may use copyrighted work without violating the copyright. In the case of Paul Gregory Allen v (1) Bloomsbury Publishing plc (2) Joanne Kathleen Murray, 5 it will be discussed, in length, to what extent the judges considered copyrights as infringed or not infringed and the reasons they based their judgements on. Civil Procedure Rules A court is charged with the power to grant a summary judgement on the entire claim or on a particular issue or against a claimant or defendant as per rule 24.2, which is enshrined in the Civil Procedure Rules (CPR).6 However, two things must be considered before a summary judgement is granted including that the defendant or the claimant cannot successfully defend the claim and if there is any other gripping purpose why the the case should be taken for trial. Under CPR rule 24.6, security for costs can be put as a condition to act as an option to give a summary judgement (Cornish and Llewelyn, 2007). Facts The famous case between the popular Harry Potter series and the litigant, the Estate of Adrian Jacobs, the author of little known Willy the Wizard, a 16-page 1987 publication, shed new light into copyright issues and brought a completely new perspective into the history of copyright litigation.  Paul Gregory Allen on behalf of the Adrian Jacob estate, alleged that defendant, Scholastic Inc. continued to reproduce, distribute, offer for sale, sell copies of the book by J.K Rowling Harry Potter and the Goblet of Fire, which is "In substance similar to the copyrighted book Willy the Wizard, thus violating the United States Copyright Act. The authors of Harry Potter were therefore accused of violating the right to derivative works and hence the other copyrights of the complainant. This makes the case unique as the court had to decide whether there were ideas that were borrowed from the latter in making of the latter. The case proved to be complex since issues to decided can only be established after a thorough analysis of the plots of the two books in contrast to the more common cases where copyright infringement cases focus on the language and expressions. Allen pointed to various similarities that appear in the plots of the two books.  For example, Allen noted that the settings of the two books are the same as both involve “a wizard contest that takes year". He also alleged that both stories were based in a world in which magical communities coexist with the everyday world.  Since these similarities seem vaguely comparable at a first glance, Allen outlined additional similarities between the two works:  In both protagonists participate in an annual wizard contest and in both, they have to "deduce the exact nature of the central task in the competition." The protagonists, Willy and Harry both get to know the task while they are in a bathroom for senior wizards. Both characters make use magical "water additives" they get from the special senior wizards’ bathroom to decode the instructions of the competition. Allen argued that a special bathroom is not a normal setting of stories and that the fact that the main characters make extremely important discoveries that affect the bearing of the story in bathrooms that were specially reserved for use by high-ranking wizards, and use of the same tool in deducing the instruction of the competition, is enough to conclude that the Goblet book borrowed much of its contents from Willy the Wizard. Allen claimed that the large number of similarities could not have occurred by chance and that Rowling used Willy the Wizard to create Harry Potter and the Goblet of Fire.  Allen, therefore, sought to stop Scholastic Inc., its officers and affiliates from reproducing, publishing, printing, distributing, advertising, displaying, promoting, offering for sale, and/or selling the book Harry Potter and the Goblet of Fire as it was an infringement of Willy the Wizard’s copyright. He also sought to stop them from making any transactions on any other materials derived or copied from Willy the Wizard. In his submission, Allen also sought to have all copies of Harry Potter and the Goblet of Fire delivered to the plaintiff to see to the destruction of the same. Allen also wanted the defendant, at their own expense, to recall Harry Potter and the Goblet and any other infringing works. The most significant demand, however, was that the defendant was to transfer to the plaintiff any and all profits, gains, savings, advantages that were realized by him from the copyright infringement. The amount of money that the plaintiff was demanding was over twenty million dollars in view of the number of copies that the book had sold in the USA. Issues According to Kitchin, it is true there were no evidence of word-for-word copying, but it was claimed that some aspect of some themes, plot, sub-plots and incidents in WTW had been duplicated in Goblet. All things considered, the court’s approach had to be the same, as described by the Court of Appeal in Baigent v Random House Group Ltd, which was about Dan Brown’s book called the DA Vinci Code. In this case, the court of appeal upheld the decision of the High Court in a tale involving the alleged copyright violation of HBHG,7 written by the DA Vinci Code (DVC), notwithstanding the court’s condemnation of the decision by the trial judges. The court of appeal held that the material copied was not substantial since it was more of ideas rather than abstraction (Intellectual Property Office, 2011). Following the approach taken in the DA Vinci Code , Kitchin J thought that the court’s initial responsibility was to recognize and take regards to the similarities between the books that Mr Allen relied upon, and then to establish whether he was likely to determine whether: Rowling had access to WTW and whether he copied from it when writing Goblet. The commonalities depended upon led to considerable part WTW. Kitchin J, when assessing this, claimed that he had to assess whether the content that had been copied was related to the expression side of the ideas side of the line, considering tat copyright only safeguards the expression of ideas rather than the ideas themselves. In conclusion, Kitchin asserted that the buck stopped at the defendants to prove that Mr Allen did not have any genuine outlook of winning the case. Similarities Mr Allen pointed out five main plot elements in WTW, which he claimed was also common elements in the plot of Goblet. These included the following: 1. The chief character in both Goblet and WTW were wizards who battled out in wizard contest competition and which they eventually won 2. The key characters were required to figure out the precise character of the main duty. 3. The key characters secretly exposed the character of the main duty in a bathroom. 4. The key characters finished the main duty by getting hints from helpers 5. The main characters major responsibility was concerned with salvaging of humanity who were held hostage by a community of half-animal creatures, half-human. Besides these major similarities, there were other elements related to themes, sub-plots and incidents which appeared in both WTW and Goblet, hence the total similarities amounted to a staggering 27. These similarities were addressed in the series, and Kitchin alleged that they unraveled a considerable number of arguments since it was not very clear whether similarities existed or not, and if at all such similarities existed, it was hard to establish whether they were commonplace of the original. Although Kitchin did not pay attention as to whether the similarities were commonplace or original, he assessed the details of their elements as well as their sub-elements. For instance, in respect to the existence of wizards as the chief characters in both Goblet and WTW, Kitchin J claimed that although there were wizards who compete in a wizard competition, the competition was very dissimilar altogether. In resect to the key characters secretly exposing the character of the main duty in a bathroom, even though there was some commonality, the way these ideas were presented in the books were quite different. By the virtue of the key characters finishing the main duty by getting hints from helpers, there was a similarly in that there was an extent of disapproval by the helpers (Intellectual Property Office, 2011). Access and copying Kitchin claimed that the dispute in respect to the fact between Mr Little and the claimant’s witnesses could not be addressed in the summary of the judgement application. Nevertheless, the evidence from the claimant brought about a real likelihood that Mr Little’s opinion in regard to the events that had taken place was incorrect, therefore, leading to the conclusion that Little passed copies of WWW and gave them to Ms Rowling. According to Kitchin, Rowling’s evidence was very powerful and claimed that Mr Allen could hardly challenge it because he did not possess substantial evidence. All things considered, Kitchin added that there were a number of issues that had to be considered. For example, Ms Rowling had not disclosed Mr little’s diaries although there were claims that they had been consulted. After examining a number of witnesses that had been presented, Kitchin concluded that the defendants had failed to disclose that Mr Allen had no real prospect of determining that Rowling had copied from it and could not have accessed WWW when writing Goblet. Substantial part Kitchin, once again, made reference to the Baigent v Random House, whereby the differences between expression and ideas in a case in a case of this nature was particularly taken into account. He affirmed that copyrights provided protection on the literary work including facts, development and arrangement of ideas among other issues. In judging whether what was taken is substantial, the court takes into account all the facts including the extent and nature of what is alleged to have been copied. Furthermore, the importance and quality of the copied content as well as the extent of originality are taken into account. Therefore, Kitchin used these rules in the case hence concluding that the similarities that Mr Allen relied on were tantamount to relatively simple and abstract ideas. He focused on the fact that those allegations were largely general and hence falling under ideas rather than expressions. Nevertheless, these facts did not make Kitchin to consider Mr Allen’s case as imaginary. In Baigent v Random House, the court of appeal made it clear that the extent of originality of the content that is copied as well as its importance of the original work were important factors to consider. Mr Tucker’s proof was a resemblance of devices and ideas which were unusual and original. However, Kitchin J maintained that he concurred that Mr Allen has a genuine vision of asserting that these ideas and devices formed the primary of its design, despite his reservations about their repetition. In conclusion, Kitchin maintained that Mr Allen’s allegations were likely to sail through, though the chances were improbable and hence he was asked to make a conditional order.  Conclusion In view of all these similarities, Rowling’s assertion that she first heard of Willy the Wizard when the lawsuit was filed hardly be true. It is a fact that she read the book and used some of the ideas to create a whole new story. The plaintiff's assertion that a literary agent, Mr. Christopher Little who had had access to Mr. Jacobs’s work and who later became Rowling’s agent had made available a copy of Willy the Wizard to Ms. Rowling should be treated with the weight it deserves. That Mr. Little worked as a literary agent for both Mr. Jacobs and Ms. Rowling provides the missing link as to how Rowling could have gotten to read Willy the Wizard. This brings up the question, “ Does using several ideas from protected literary works to create new work with a significantly different and independent storyline constitute infringement of copyright?” (Cosgrove, 2006). The answer is yes. The United Kingdon law where both Willy the Wizard and the Harry Potter series were first published is explicit that making of derivative works that is derived or based from another work that is copyrighted is exclusively limited to the original work’s owner. However creative the new work might be, it amounts to infringement if it uses the earlier work’s characters or setting. Rowling clearly used Jacobs’s work’s setting without the prior permission of the latter as stipulated by the law (Intellectual Property Office, 2011). The only exceptions to this law are criticism and parody. The provision for fair use allows use of characters and setting of copyrighted work in criticism. Since Rowling’s work is neither criticism nor parody and it is not meant for fair, it should be considered as having infringed Jacobs’s work. The failure of the lawsuit to succeed was mainly due to the failure by the plaintiff to fulfill their duty of proving that Ms. Rowling did indeed have access to the Mr. Adrian’s work and that she used a substantial part of the same to create her work. The author’s evidence to the effect that her first meeting with Mr. Little was considered powerful by the court. The fact that Ms Rowling declined to disclose her manuscripts of Harry Potter and the Philosophers Stone and Harry Potter and the Goblet or her notebooks in which she recorded her ideas and Mr. Little also declined to disclose his diary, could point to the fact that disclosure could reveal evidence of ideas obtained from Mr. Adrian’s book. The Court also considered the extent of the copying and came to a conclusion that the ideas from which the plaintiff alleged that Ms. Rowling copied were simple, abstract and general. This ruling can be faulted on the grounds that the ideas essentially make the Harry Potter series different from other children’s fantasy stories and are hence partially responsible for the success of the series. They also required a significant amount of labor to develop as they are not commonplace (Cosgrove, 2006). The case may have a strong bearing on other copyright cases in the future as the court could not explicitly determine whether Ms. Rowling’s books were extensively borrowed ideas from Jacobs’ book as the evidence pointed both ways and the defense raised strong arguments to counter the allegations and evidence produced by the plaintiff. The sum demanded by the courts from the plaintiff was also restrictive and could surmount to a miscarriage of justice. In his initial ruling, the judge while acknowledging that the plaintiff had a strong case, he told him that it was highly unlikely for the suit to succeed (Cosgrove, 2006). The precedent set by this case gives a leeway for copyright infringement as the justice system failed to protect protected works even in cases that point to direct and indirect borrowing. The ruling in this case could water down the copyright laws that are supposed to protect the exclusive rights of authors’ ownership of their works. Protecting wordage and not ideas open doors for a new way of plagiarizing. At the same time, the indecisiveness of the judge in this case where he could not establish whether Rowling had had access to Willy the Wizard before writing the Harry Potter series should be criticized if the courts are to deliver justice and if people’s faith in the rule of law is to be boosted. At the same time, the judges unconsciously or otherwise leaned towards the more established works with the judge in the DA Vinci Code going so far as to use the codes established in the book in making his ruling. This could be interpreted as showing indirect preference to the book (BPI, 2010). References BPI, 2010. Copyright (online) Available at: [Accessed 3rd December 2012]. Cornish, W. and Llewelyn, D., 2007. Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, 6th ed. London: Sweet & Maxwell. Cosgrove, E.A., 2006. Minstrels in the public domain: British copyright legislation, and the argument for an extension of performers' rights protection in the European Union. Loyola of Los Angeles Entertainment Law Review, 27 (3), pp. 383-430. Intellectual Property Office, 2011. Copyright essential reading (online) Available at: [Accessed 27 December 2012] Read More