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I. COPYRIGHT: CASES AND MATERIALS
In the two plays at bar we think both as to incident and character, the defendant took no more ...
than the law allowed. The stories are quite different. ... The only matter common to the two is a
quarrel between a Jewish and an Irish father, the marriage of their children, the birth of
grandchildren and a reconciliation. ...
[The plaintiff ’s] copyright did not cover everything that might be drawn from her play; its
content went to some extent into the public domain. We have to decide how much, and while we
are as aware as any one that the line, wherever it is drawn, will seem arbitrary, that is no excuse
for not drawing it; it is a question such as courts must answer in nearly all cases. Whatever may
be the difficulties a priori, we have no question on which side of the line this case falls. A
comedy based upon conflicts between Irish and Jews, into which the marriage of their children
enters, is no more susceptible of copyright than the outline ofRomeo and Juliet.
- COPYRIGHT PROTECTION ARISES AUTOMATICALLY ON
CREATION OF THE WORK, AND DOES NOT DEPEND UPON
REGISTRATION
Article 5(2) of the Berne Convention provides:
The enjoyment and the exercise of these [authors’] rights shall not be
subject to any formality; such enjoyment and such exercise shall be
independent of the existence of protection in the country of origin of
the work. ...
Many countries, nevertheless, have registration and deposit requirements for
works. Such requirements may provide some evidential advantages but must,
under Berne, be optional and cannot affect the “enjoyment” or “exercise” of
copyright or moral rights.
EXAMPLE:
In Canada, copyrights may be, optionally, registered. Under the Canadian Act
(s. 53), the Register of copyrights is “evidence of the particulars entered in it”
and a certificate of registration “is evidence that copyright subsists in the work
and that the person registered is the owner of the copyright.”
The effect of this provision was considered in the following case:
Circle Film Enterprises Inc. v. Canadian Broadcasting Corp. [1959] S.C.R.
602 (Canada: Supreme Court)
[The plaintiff was registered as copyright owner of a film called Golgotha. The
copyright had been transferred a number of times, starting with the author of
the scenario, a French national, and culminating with the plaintiff. The defendant
broadcast the film without the plaintiff’s consent, but with the consent of
another person claiming the copyright. The plaintiff sued the defendant for
infringement, claiming that it need not produce each assignment to show its
title. Instead, it claimed that that the production of the certificate of registration,
naming it as copyright owner, was enough for it to show its title to sue and
recover damages and an injunction. The defendant disputed the plaintiff’s title.]
