Principles of Copyright Law – Cases and Materials

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I. COPYRIGHT: CASES AND MATERIALS

CHAPTER I.

Selected and edited by

Professor David Vaver

Reuters Professor of Intellectual Property & Information Technology Law,

University of Oxford;

Director, Oxford Intellectual Property Research Centre,

St Peter’s College, Oxford

according to a Plan devised by

Professor Victor Nabhan

Arab Bureau

World Intellectual Property Organisation

[N.B.:The cases below have been heavily abridged. Citations have frequently been removed, and

paragraphing and punctuation sometimes changed, to assist readability without changing

meaning.]

SUBJECT MATTER AND CONDITIONS OF PROTECTION

1. COPYRIGHT IN AN ITEM IS DISTINGUISHED FROM PROPERTY
   RIGHTS IN IT AS A PHYSICAL THING

Copyright is a property right, but it is different from property in a physical thing.

If I buy a book from a bookstore, I will now own the book and can do what I like

with it as a physical object: read it, stand on it or throw it in the garbage. But

someone else will typically own the copyright in the book: either the author or

whoever the author has transferred the copyright to. That person too has rights

over the book, such as the right to make copies of it. If I make a copy of the

book without that person’s consent, I infringe his rights in the book. I may have

paid for the book, but neither the copyright owner nor I intended to deal with

the copyright in the book, and the sale price certainly did not include anything

for that copyright.

EXAMPLE 1:

In his will, the 19thcentury English author Charles Dickens left “all my private

papers whatsoever and wheresoever” to his sister-in-law Georgina Hogarth. He

left the remainder of his “real and personal estate (including my copyrights)” to

his children.

Included in the estate was the manuscript of The Life of Christ, which Dickens

had handwritten for the use of his children, and which he did not intend to

publish. Some years after Dickens’s death, however, a trustee acting for the

surviving family sold the copyright of the manuscript to a publisher and also

gave him a photocopy of the original manuscript to be used as the basis of the

book to be published.

The question arose whether (1) Hogarth’s heirs, (2) Dickens’s children’s heirs, or

(3) both, were entitled to the money under the publishing contract. If both were

entitled, then how would they share?