Re: Copyright and conflicts of law

On Mon. 7 July 1997, Nikki Miller <nmiller[_at_]chq.byu.edu> wrote:
>
> I have a copyright/conflicts of law question. I understand that the
> sweat of the brow doctrine, rejected by the U.S. Supreme Court in
> Feist, is still followed in the UK. Is it true then that you could
> extract the purely factual information from any copyrighted
> compliation in the U.S. (so long as you didn't reproduce the
> selection and arrangement), even if it was created by a British
> author and published in the UK? If so, would it constitute copyright
> infringement under UK copyright law if you then distributed,
> displayed, and/or reproduced the extracted information in the UK?
> Would the extracted information constitute a "lawfully obtained copy"
> because it was lawfully created under U.S. law (though not under
> British copyright law) and be excepted from the display and
> distribution rights in the UK under the first sale doctrine?

Copyright in the UK could subsist in a collation of facts, at least where some judgment has gone into the compilation, and copying a selection of those facts could be an infringement if the copy takes a substantial part of the compilation. It is all a question of fact, so citing English cases which examine the issue (like Harman Pictures v Osborne) does not assist much.

A third party work made without the UK copyright proprietor's consent in the US would be assessed for the purposes of UK law by UK exceptions to copyright (as required by the definition of "infringing copy" in s27(3) CDPA). Whether there is a defence to an infringment action in the US is I think irrelevant.

Even where there is the UK copyright proprietor's express or implied permission for the copy to be made in the US, worldwide exhaustion of UK copyright may not apply, particularly since UK distribution right applies EU exhaustion principles only.

This is a response to a hypothetical situation and does not constitute legal advice.

Justin Watts
<justin.watts[_at_]bristows.co.uk> Received on Mon Jul 07 1997 - 11:54:20 GMT