Copyright subsistence is a very important concept in intellectual property law, and its the first key part we discuss with new clients when they approach us with a copyright infringement claim. Copyright subsistence is used to qualify different type of copyright works for protection and is used to lay the groundwork for making claims of copyright infringement.
Under the Copyright, Designs and Patents Act 1988 (CDPA 1988), there are very specific conditions which must be satisfied for copyright to subsist. These conditions varying depending on the type of work such as literary, dramatic, musical or artistic works and sound recordings, films or broadcasts. Subsistence is the first matter to address when it comes to copyright infringement.
I wrote this post to explain the requirements for copyright subsistence, outlines the differences between various categories of works, and in light of of the topic, examine important case law, such as
- Infopaq International A/S v Danske Dagblades Forening (C-5/08) EU:C:2009:465 (Infopaq)
- Cofemel v G-Star Raw CV (C-683/17) (Cofemel)
- Ladbroke Ltd v William Hill Ltd 1980 RPC 539 (Ladbroke)
Copyright Subsistence under the CDPA 1988
Under the CDPA 1988, copyright subsists in “original” works that fall into two broad categories. These include:
- Authorial works – Literary, dramatic, musical, and artistic works (LDMA).
- Entrepreneurial works – Sound recordings, films, broadcasts, and typographical arrangements of published editions.
It is important to note for copyright to apply, a work must be original. Originality under English law has traditionally been defined as the creator’s “skill, labour and judgement”. However, the Infopaq case, in the European Court of Justice (ECJ), introduced a a different threshold for originality. According to Infopaq, the requirement was that the work be the result of the author’s “own intellectual creation.” This is now the standard we use since the Infopaq decision occurred prior to Brexit impacting the laws in this country.
Fixation for LDMA
A key requirement of copyright subsistence for LMDA works is fixation. The work has to exist in a tangible form, such as writing, drawing, recording or digital file. Abstract ideas or concepts are not protected unless they are expressed in a fixed format.
Differences in Subsistence Requirements
These types, collectively referred to as “authorial works,” require originality and fixation for copyright subsistence.
Literary Works
This category includes novels, articles, poems, and even computer programs. To qualify, literary works must demonstrate a minimum level of creativity. The decision in Ladbroke confirmed that the “skill and labour” test applies to such works, meaning the creator’s effort and judgement become central considerations.
Dramatic Works
Dramatic works are those capable of being performed, such as plays, screenplays, and choreography. Unlike literary works, the performance aspect is key. Fixation could take the form of a recorded performance or a written script.
Musical Works
Musical works include arrangements, melodies, and compositions – lyrics by themselves do not count unless paired with music. The originality in music lies in the arrangement or creative choices made, which must also be fixed in sheet music or a recording.
Artistic Works
This category comprises paintings, sculptures, photographs, and other visual creations. Artistic works often enjoy broader interpretation regarding originality. For example, in Cofemel, the court reinforced that originality lies in intellectual creation, regardless of the specific format or medium.
Sound Recordings, Films, and Broadcasts
Entrepreneurial works such as these are treated differently from authorial works. Their protection focuses on the investment and effort involved in creating them.
Sound Recordings
Sound recordings are protected separately from the musical works they capture. The originality of these recordings lies in how they are produced and arranged, not in their intellectual content.
Films
Films are recognised as individual works encompassing creative and technical aspects, such as direction, script, and editing. They are protected as a whole, and originality is judged by creative effort in production rather than individual parts.
Broadcasts
Broadcasts include live and pre-recorded transmissions intended for simultaneous public reception. Unlike authorial works, originality in broadcasts relates to the organisational methods and technological effort involved in their transmission.
It is important to note that entrepreneurial works do not need to reflect “intellectual creation” as strictly as authorial works do. Their protection arises mainly from their commercial investment and production value.
Importance of Copyright Subsistence in Claims
Ownership – A claimant seeking to establish copyright infringement must first prove that the work in question satisfies the conditions for copyright subsistence. If the work lacks originality or fixation, copyright cannot subsist, and no infringement claim can proceed.
Originality – The Infopaq case established that originality extends to smaller components of a work, such as an 11-word excerpt, provided it reflects the author’s intellectual creation. This principle is vital when claims arise from partial reproduction or minor copying.
Subsistence – The requirement for subsistence is important so that copyright law remains focused on genuine, tangible creations. The subsistence threshold prevents frivolous claims based on ideas or general concepts that lack originality or fixation.
Relevant Copyright Cases
- Infopaq International A/S v Danske Dagblades Forening
This case highlighted the EU standard for originality, requiring intellectual creation by the author. It underscored that even small components of a work could be protected if they demonstrated originality. - Ladbroke Ltd v William Hill Ltd
Ladbroke clarified the British approach to originality by applying the “skill, labour and judgement” standard to betting coupons. It demonstrated how relatively mundane documents could still qualify for protection. - Cofemel v G-Star Raw CV
Cofemel addressed the artistic status of specific designs, emphasising the intellectual creation test as the core criterion for copyright subsistence. Clothing designs, for example, may be protected if they exhibit originality.
For creators such as authors, artists, and filmmakers, understanding copyright subsistence is vital to safeguarding their work against copying. For businesses, a clear grasp of subsistence rules helps ensure compliance with copyright law, ultimately reducing legal risks.
The distinction between authorial and entrepreneurial works highlights different legal thresholds for subsistence. While creativity and intellectual input are vital for the former, the latter relies more on production effort and commercial investment.
Parting Thoughts
Copyright subsistence under the CDPA 1988 is a critical aspect of copyright law. It ensures that only works meeting originality and fixation requirements are eligible for protection. Key decisions like Infopaq, Cofemel, and Ladbroke continue to influence the interpretation of subsistence, providing clarity and consistency for courts while protecting the interests of both creators and industries reliant on intellectual property.
For creators, understanding these principles ensures stronger protection of their rights. For legal practitioners, analysing subsistence provides essential insights into copyright disputes, balancing the need to defend ownership with the broader goals of fostering creativity and innovation.
If you would like advice on these matters, please contact us to discuss any copyright disputes or issues.
