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May 03, 2023



The following paper highlights the Copyright, Designs and Patents Act, 1988 of the UK, which is one of the important regulatory bodies in the United Kingdom for granting copyright protection. Moreover, the paper will include what subject matters have been covered under the act to which the protection has been granted under the act and what subjects are being excluded from its regime, the discussion paper will be based around discussing the United Kingdom approach towards protecting certain specific categories of the work in European Union, which will be discussed through the judgment of the Levola Hengelo v Smilde Foods which is considered as an authority on the subject that whether the taste of the food should be provided the consumer protection or not.

Through the application of the different approaches that have been adopted by the European Union as well as the United Kingdom to provide protection to all those classes of the literary and artistic works which qualify the eligibility of being capable of protection, including the main area as to whether the closed systems of copyright-protected works are compatible with European Union Laws or not.

The main purpose of providing copyright under Intellectual Protection is to extend protection to those artistic and literary works which have been the original creation of the author, from being copies or misused[1]. The copyright, Designs and Patents Act 1988, also known as the CDPA, is a Parliamentary Act, was enforced on 15 November 1988. It is the regulatory authority in the UK for the Legislation relating to copyright, which is covered under the Copyright Act, 1956

Article 1(1) Of The Copyright, Designs And Patents Act, 1988 Defines Copyright And Copyrighted Works As

  • Copyright being the property subsisting in accordance in the following manner
  • Original artistic works, literary work, dramatic or musical works,
  • Films, broadcasts, and sound recordings
  • Arranged publication editions.
  • In this Part “Copyright Work” implies any such work of those descriptions which consists of copyrighted material.
  • Copyright never exists in any work until the conditions for the applicability for copyright protection are met[2].

The Copyright Protection Act In The United Kingdom

The main focus is on Article 1(1) of the act of the United Kingdom which protects the rights of the works of authors by covering them under copyright. The rights which are specifically protected under the ambit of copyright are have to be scrutinized before granting them the rights that whether they pass from the following category within one of the descriptions of the work mentioned under the act. If they pass, then whether the certain work do possess originality or not[3]. And lastly whether the particular work is eligible for protection under the act or not. The various kinds of works which are protected under the category of copyright protection are musical works, dramatic works and the literary works which needs to be written and must be granted copyright from the date of recording of the work takes place, literary works includes the databases, compilations and computer programs[4].

 Under the CDPA Act, Section 3(1) of the act defines literary works, which means any work under the category of musical or dramatic work been either sung, spoken, or written and involves a compilation of computer programs, and the database. In the case London Press v University Tutorial Press[5], the court held that the literary works can be copyrighted and attract the protections irrespective of their literary and scientific merits. Copyright works are covered under the Patents Laws of the United Kingdom which protects the works of an author and stops other people the world at large from using it without any authority[6].

Subject Matters That Are Closely Covered Under The Act

Copyright is that particular class of Intellectual Property right which protects certain rights of the authors from the infringement. Subject matter is protectable in different copyright jurisdictions through two kinds of approaches. Firstly, is the open ended approach and the second is the closed ended approach[7].

Open ended approach does not cover those subjects which are copyrightable rather it requires common areas of work to be the subject of copyright. Whereas the there is closed list approach identifying the list of jurisdictions which provides the protection to the copyright regimes to various subject matters for ex: Musical, artistic, literary works, which is not don under the open ended approach, it does lack in this context[8].The closed list approach is covered by the jurisdictions of the Australia, United Kingdom and India as a result of this approach the non-conventional works such as computer-generated patterns, graffiti, and perfumes will ultimately fall out of the copyright protection[9].

The United Kingdom covers very few subject matters under its regime of copyright and the legislation that is followed in the United Kingdom is the Copyright, Designs and Patents Act, 1988, codifying the copyright regime. According to the CDPA, it follows the closed system approach whereby 4 are authorial and 5 are of entrepreneurial works to whom the protection is afforded under the act[10].

 The CDPA in the United Kingdom classifies copyrighted content into different categories, the closed list approach which does protect the rights of those qualifying under the category have adverse effects on those who are not covered under the same category, incapable of being provided the copyright protection. The closed list approach contains various aspects like authoritarian works which must also establish that the work has been recorded or published and is covered specifically under the category of the authorial works the same protection is not provided under the closed-end approach. Secondly closed lists contain the literary works which have to be established under the same category which is also not been given under the open-ended approach as it does not provide protection to the such artistic and literary works.

Third is the Dramatic work under which the work should be in the recorder form either it be a Dance or Mime, must be recorded in order to grant protection, the same kind of protection is not covered by the former approach as it somewhere lacks the ideal requirements. In the case Green v Broadcasting Corporation of New Zealand[11], the court stated that copyright protection granted on subject matter to the plaintiff is not considered a copyrighted subject matter to be given protection being a dramatic work, it lacked creativity[12].

The third is the musical Works, which includes the combination of the sounds, notes, and chords for listening. Fourth covers the artistic works, in the case Harpon v. Merchandizing corporation[13], the court refused to grant protection to the makeup done on the face of a famous pop star, on the ground that facial painting is not covered under the category of the art. Photographs, it is often considered as the recording of light with the help of any mode through which an image is produced which is not a part of the film. Last is the Sculptures and collages, which is defined as the casts or model created for the purposes of any sculpture. In the case Creation Record Ltd v. News Group Newspaper Ltd[14], the court held: Plaintiff’s pictures which had the use of various props do not be considered collage and thus were not afforded protection[15].

However, there are certain categories of subject matter that are not covered under the protection of the copyright are the visual works, any other kind of works including the sensory perception such as smell taste, or touch from gaining the protection are not accorded the protection under the copyright as they are covered under the category of the open ended approach, In the case Levola Hengelo v. Smilde Foods[16], court refused to grant the protection of copyright to the taste of certain category of cheese, as it belonged to the category of the open ended approach and is not covered under the closed category approach[17].

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