Access and Similarity base proof of Copying
Copyright is intended to protect one person against his work being copied by another. One person must not be permitted to appropriate the result of another’s labour; it is for the plaintiff to establish and prove as a matter of fact that copying has taken place. Proof of copying will usually begin with the establishment of similarity combined with proof of access to the plaintiff’s works. Once access and similarity is established, the burden will move to the defendant to establish independent creation.
That the dominant principle of copyright law that protection is given not for ideas, but only for the form of expression is ‘trite law’ (Lord Hailsham of St Marylebone)
Section 9(8) ‘applies by way, and only by way of defence, i.e. after the issue of copying has been decided, and on the assumption that it has been decided in favour of the plaintiff’
Lord Wilberforce Lord Hailsham of St Marylebone
[1979] RPC 551
Copyright Act 1956 9(8)
England and Wales
Citing:
Approved – King Features Syndicate Inc v O and M Kleeman Ltd HL 1941
The owners of copyright in drawings of ‘Popeye, the Sailor’ sued importers of ‘Popeye’ dolls and other toys. The defendants contended that the copyright in the original work had been lost by the operation of section 22 of the 1911 Act because the . .
At First Instance – LB (Plastics) Ltd v Swish Products Ltd ChD 1979
Whitford J said: ‘The cases since the Act of 1911 have, however, I think quite plainly established that no originality of thought is needed to sustain a claim to copyright. Under copyright ideas are not protected, only the skill and labour needed to . .
Cited by:
Cited – Designers Guild Limited v Russell Williams (Textiles) Limited PatC 14-Jan-1998
The defendant denied that it had copied the plaintiff’s designs.
Held: There was sufficient evidence of copying. It was wrong to dissect a work, but rather the court should look at the matter as a whole. . .
Cited – Designers Guild Ltd v Russell Williams (Textiles) Ltd (Trading As Washington DC) HL 28-Nov-2000
Copyright Claim: Was it Copied, and How Much?
The claimant sought to enforce its copyright in artwork for a fabric design Ixia, saying the defendant’s design Marguerite infringed that copyright. Two issues faced the House. Just what had been copied and if any, then did this amount amount to the . .
Cited – Kaisha v Green Cartridge Company (Hong Kong) Limited PC 30-Apr-1997
(Hong Kong) The claimants complained of the sale by the defendants of refilled cartridges for use with their printers.
Held: The spare cartridge manufacturer’s appeal failed: ‘repair is by definition something which does not amount to the . .
Cited – Nova Productions Ltd v Mazooma Games Ltd and others CA 14-Mar-2007
The defendant appealed against a finding of copyright infringement in a computer game.
Held: The appeal failed. The court must identify the artistic work relied upon and then decide whether it has been reproduced by copying of the work as a . .
These lists may be incomplete.
Updated: 16 June 2021; Ref: scu.191195
