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II. RIGHTS
banner, repeated on other pages, with four icons each containing a reduced-
size photograph from the encyclopedia. On discovering the copying, the plaintiff
sued to recover payments made for the work, to cover potential infringement
claims from the copyright owner of the encyclopaedia against the continued
presence of infringing work on the website. The court concluded that the
defendant’s use of these photographs constituted copyright infringement:
Antiquesportfolio.com v. Rodney Fitch & Co. Ltd [2001] E.C.D.R. 51 (U.K.,
High Court)
MR JUSTICE NEUBERGER:
[T]he degree of originality in the photograph is small, as one is concerned in each case with a
photograph of a single object which is not exceptionally large or small. It is true that it has to be
photographed to show its features clearly, but I suspect that the question of focusing and lighting
and precise positioning did not involve substantial skill.
It is said that, in these circumstances, a very small representation of the photograph on a
computer screen does not infringe, on the basis that it does not benefit from any of the originality
involved in making the photograph: for instance, it does not benefit from the lighting or camera
angle.
Nonetheless, it seems to me that where the whole of the photograph is reproduced, as in the
present case, it would be an infringement. After all, it would seem rather strange if, as I have
concluded, copyright exists in the whole photograph, there is no infringement in a case involving
reproduction of the whole photograph.
- Reproduction includes the making of copy in a different form,
even if the copy is not easily perceptible
Reproduction includes making copes of a work by hand, as well as making
photocopies or tape recordings. In the electronic age, it has been applied to all
sorts of digital copies made with a computer, even where the copy is in a
different form from the original.
Apple Computer, Inc. v. Mackintosh Computers Ltd, (1986) 10 C.P.R. (3d)
1 (Canada: Federal Court, Trial Divison) (affirmed (1987) 44 D.L.R. (4th) 74
(Canada: Federal Court of Appeal), affirmed (1990) 71 D.L.R. (4th) 95
(Canada: Supreme Court)
[The defendant imported clones of Apple computers that included unauthorized
copies of the Apple operating system embodied in a ROM (“Read Only
Memory”) chip in the machine. Apple sued for copyright infringement, claiming
that the computer program on the chip was a “reproduction” of the written
source code of the program in which Apple had copyright. The trial judge
accepted Apple’s argument, and this decision was affirmed on appeal.]
JUSTICE REED in the first instance Court:
No one disputes, of course, that when the present Copyright Act was originally enacted by
Parliament in 1921, no thought could have been given to computer programs and whether they
would be covered by the provisions of the Act. This is not a relevant consideration, since the only
