"Yes, yes, yes ...": the UK Government responds to Hargreaves

Today's proposals: more
'ups' than 'downs'?

I've not yet had a chance to read carefully through today's UK government's response to the Hargreaves Review, Digital Opportunity, which was published this May.  The response is the subject of a themed web page on the UK's Intellectual Property Office website, which also gives details of a separate proposal for improving the government's so-far inadequate approach to dealing with IP crime. The response document is 24 pages in length, covering areas of IP as well as copyright.  A short summary of its copyright proposals is contained in this morning's press release:

"Sweeping intellectual property reforms to boost growth and add billions to the UK economy

The Government today announced plans to support economic growth by modernising UK intellectual property laws. Ministers have accepted the recommendations made in an independent review which estimate a potential benefit to the UK economy of up to £7.9 billion.

The recommendations were made in May 2011 by Professor Ian Hargreaves in his report, - ‘Digital Opportunity: A review of intellectual property and growth’. Modernising intellectual property law is a key action from the Government’s Plan for Growth, published in March alongside the Budget, which will help create the right conditions for businesses to invest, grow and create jobs. ...

Among the recommendations that have been accepted are:

• The UK should have a Digital Copyright Exchange; a digital market place where licences in copyright content can be readily bought and sold. The review predicted that a Digital Copyright Exchange could add up as much as £2 billion a year to the UK economy by 2020. A feasibility study will now begin to establish how such an exchange will look and work. The Government will announce arrangements for how this work will be driven forward later in the year. 

• Copyright exceptions covering limited private copying should be introduced to realise growth opportunities. Thousands of people copy legitimately purchased content, such as a CD to a computer or portable device such as an IPod, assuming it is legal. This move will bring copyright law into line with the real world, and with consumers’ reasonable expectations. 

A copyright exception may allow this parody,
but it's not much comfort if there's still
a risk of trade mark or design infringement 

• Copyright exceptions to allow parody should also be introduced to benefit UK production companies and make it legal for performing artists, such as comedians, to parody someone else's work without seeking permission from the copyright holder. It would enable UK production companies to create programmes that could play to their creative strengths, and create a range of content for broadcasters. 

• The introduction of an exception to copyright for search and analysis techniques known as 'text and data mining'. Currently research scientists such as medical researchers are being hampered from working on data because it is illegal under copyright law to do this without permission of copyright owners. The Wellcome Trust have said that 87 per cent of the material housed in the UK's main medical research database is unavailable for legal text and data mining, that is despite the fact that the technology exists to carry out this analytical work. 

• Establishing licensing and clearance procedures for orphan works (material with unknown copyright owners). This would open up a range of works that are currently locked away in libraries and museums and unavailable for consumer or research purposes. 

• That evidence should drive future policy - The Government has strengthened the Intellectual Property Office's economics team and has begun a programme of research to highlight growth opportunities. One report has already shown that investments made by businesses in products and services that are protected by intellectual property rights (IPRs) are worth £65 billion a year. ..".

The 1709 Blog expects that it won't be long before readers' comments will be arriving. A follow-up post is planned, bringing news of some reactions from interested parties on all sides of the continuing copyright debate.

A Rose by Any Other Name

No matter what you call it or how you try to frame it, internet streaming is internet streaming.

Zediva tried to claim otherwise, setting up a rather elaborate system that attempted to get around the copyright law requirements for licensing movies streamed over the internet.  A lot of times this is how the law is figured out, attempts to get around it lead to law suits and court-issued clarifications.  (See the Napster/Grokster/Limewire string of cases.)  But in this case, the Zediva folks missed an important part of copyright law history, and the District Court for the Central District of California issued an injunction.

How Zediva tried to avoid licensing fees

First, I want to acknowledge that I was not able to locate a copy of the decision so my information is coming from various news sources, all listed at the end of this post.

Zediva set-up the service to mimic a video rental store.  Users rented a dvd that Zediva had purchased and the dvd was played in a remote dvd player also purchased by Zediva and shown to the customer via the internet.  One article mentions that users would sometimes get messages that movies were out of stock.  I’m guessing this occurred when customers had rented out all of the DVDs Zediva had purchased of that film. 

Rather than finding this system as a way of remotely renting purchased DVDs, the court found that this was just an annoyance and potential source of confusion for customers learning about video streaming. 

Zediva wasn’t paying licensing fees, trying to rely on the first sale doctrine saving their rental model.  But, as one law professor pointed out, Zedvia seemed to have missed the case where renting a video to be watched in a booth inside the store was infringement.  (That case was Columbia Pictures Indus. v. Redd Horne, Inc. from 1984.)  Even if Zediva could persuade the court that it was renting and not streaming movies, the facts are more similar to Redd Horne than to a regular video rental store.

However, the court did not buy the rental concept and instead found that Zediva was transmitting the performance to the public and thus infringing copyright.  Wonder if they’ll be another attempt at a work around…

Media Post News: http://www.mediapost.com/publications/?fa=Articles.showArticle&art_aid=155164

Read Write Wed: http://www.readwriteweb.com/archives/citing_copyright_law_judge_orders_movie_streaming_service_shut_down.php

CNET: http://news.cnet.com/8301-31001_3-20050579-261.html?tag=mncol;2n

Waiting for the Cable News

There have been numerous press articles recently on what the Government will and won't be picking up from Professor Ian Hargreaves' review of intellectual property law (nice to know it's still of interest!) but the main two topics that seem to be the most likely subjects for reform are formalising a right of parody and providing for a private copying right.

The 'parody' exception will be something (I presume) akin to an extended fair dealing or fair use right, and it seems the most likely reform. Almost all of the articles I have read mention the (in)famous 'Newport State of Mind' spoof of 'Empire State of Mind' by Jay-Z and Alicia Keys - performed by unsigned rapper Alex Warren and singer Terema Wainwright and pulled from YouTube after a takedown notice from EMI Music Publishing - to much knashing of teeth in the cyber community. Most comment is that the 'YouTube' amendment will be accepted by Government as a reform.

The introduction of a private copy right in the UK would be more complex - and whilst giving citizens the right to make private copies of CDs or otherwise format shift does seem to make sense in the digital age, content owners including the major and big indie record labels and film companies are likely to push for compensation - and possibly (the very un-British) introduction of some kind of levy on digital music players and other hardware, similar to the levy systems that exist in many European countries where the private copy right has been part of the copyright landscape.

I would have thought that new provisions for non-commercial research and library archiving stand a fairly good chance too, but the European dimension is going to make the task a challenging one with some of Professor Hargreaves's other recommendations.

UK Business Secretary Vince Cable is due to make the announcement tomorrow. Watch this space

Photo by Nick Cordes (c) 2008 Glastonbury Festivals Ltd

New books, special prices for 1709 Blog readers

Edward Elgar Publishing have a special offer for 1709 Blog readers regarding four of their latest titles.  You can view the official PDF of the offer here or download it here. The gist of it is that the following titles are available at a 35% discount -- so long as you order by 31 October 2011, when the offer closes:

Copyright Law and the Progress of Science and the Useful Arts 

Alina Ng, Mississippi College School of Law, US 

The American Constitution empowers Congress to enact copyright laws to ‘promote the progress of science and the useful arts’. This book offers the first in-depth analysis of the connection between copyright law as a legal institution and the constitutional goal of promoting social and cultural advancement. 

Oct 2011 c 168 pp Hardback 978 1 84980 781 4 c £65.00
Discount price £42.25 + carriage charges
e 978 1 84980 782 1
Elgar Law, Technology and Society series


Copyright in the Information Society: A Guide to National Implementation of the European Directive 

Edited by Brigitte Lindner, Rechtsanwältin, Member of the Bar of Berlin/Germany,
Registered European Lawyer, Lincoln’s Inn, London and Ted Shapiro, Attorney
(Massachusetts Bar)/Solicitor (England and Wales - non-practising), Brussels 

Celebrating the tenth anniversary of the Directive 2001/29/EC on copyright in the information society, this book sheds new light on an important European legal instrument at a crucial stage – not only in the life of the Directive, but indeed for copyright itself. 

Aug 2011 c 648 pp Hardback 978 1 84980 010 5 £140.00
Discount price £91.00 + carriage charges
e 978 1 78100 113 4

Copyright and Creativity: The Making of Property Rights in Creative Works 

Andreas Rahmatian, University of Glasgow, UK 

‘Professor Rahmatian is perhaps uniquely placed to offer a complete rethinking of the nature and
function of copyright. Working with original materials in original languages, he spans the continental and common law traditions in a breathtaking synthesis of the varied justifications and uses (or misuses) of the concept of creativity as property' – Paul J. Heald, University of Georgia, US 

Aug 2011 c 328 pp Hardback 978 1 84844 246 7 79.95
Discount price £51.96 + carriage charges
e 978 0 85793 633 2


Copyright, Communication and Culture: Towards a Relational Theory of Copyright Law 

Carys J. Craig, York University, Canada 

In this provocative book, Carys Craig challenges the assumptions of possessive individualism embedded in modern day copyright law, arguing that the dominant conception of copyright as private property fails to adequately reflect the realities of cultural creativity. 

July 2011 288 pp Hardback 978 1 84844 839 1 £65.00
Discount price £42.25 + carriage charges
e 978 0 85793 352 2"

To order any of these titles, or for further information, do contact the Sales & Marketing Department, Edward Elgar Publishing Ltd, The Lypiatts, 15 Lansdown Road, Cheltenham, Glos GL50 2JA, United Kingdom (Tel: + 44 1242 226934; Fax: + 44 1242 262111); website www.e-elgar.com, email info@e-elgar.co.uk

Please quote code 351709 when ordering

Royalties, broadcasts and underlying works: an Indian epic

From Amit Jamsandekar comes news of an epic Indian copyright ruling, all the way from the Bombay High Court, Music Broadcast Private Limited v Indian Performing Right Society Limited, before S. J. Vadzifdar J. Let Amit explain:

"After a very long time we have witnessed a trial of an Intellectual Property dispute in the Bombay High Court. Most of the reported judgments on Intellectual Property disputes in India are decisions on interim application for injunction. Therefore there was a general direction by the Supreme Court to all Courts to finish the trial within six months instead of deciding an interim application. In practice this decision of the Supreme Court is not followed because it is practically not possible to finish a trial within a period of six months.

The radio broadcasters and the Indian Performing Rights Society (IPRS) are in a fight over the issue of payment of royalty to IPRS when the ‘sound recording’ is ‘communicated to the public’ in many proceedings before various courts in India. The members of the IPRS are the authors of literary and musical works. The IPRS has always claimed that they are entitled to claim royalty in respect of their ‘work’ which is embodied in the sound recording when such sound recording is communicated to the public through broadcast on radio. IPRS claims that, in the absence of a licence from IPRS, such communication of sound recordings amounts to infringement of copyright of the members of the IPRS in the underlying works embodied in the sound recording, i.e. the literary and musical works. The radio broadcasters have valid licences to broadcast the sound recordings from Phonographic Performance Limited (PPL). The sound recordings owners are the members of the PPL.

The claim of the IPRS has always been that, even after a valid licence from PPL, the radio broadcasters are also required to take a licence from IPRS because, when the sound recording is communicated to the public, the underlying works embodied in the sound recording are communicated to the public.

This issue came up before the Bombay High Court in a civil suit filed by Music Broadcast Private Limited against the IPRS seeking relief, inter alia, by a declaration that IPRS is not entitled to claim and that the Plaintiff is not liable to pay any royalty to the IPRS when the sound recording is communicated to the public. The Plaintiff sought other relief which included an order of permanent injunction restraining IPRS from interfering with the broadcast of the sound recordings. The other relief in respect of the disputes of licence fees already paid and their refund, sought by the Plaintiff, were not within the jurisdiction of a civil court and the Copyright Board constituted in the Copyright Act, 1957 has an exclusive jurisdiction. Therefore, the Court dismissed the claim of the Plaintiff in respect of the disputes of licence fees already paid and refund thereof as sought by the Plaintiff and other consequential relief.

The crucial issue which is adjudicated and answered by the Court is that IPRS is not entitled to any royalty in respect of the literary or musical work embodied in the sound recording when the ‘sound recording’ is communicated to the public. Justice Vazifdar has analyzed the provisions of the Copyright Act 1957 and accepted the submissions made by Dr Tulzapurkar, Senior Counsel on behalf of the Plaintiff that:

• The Act recognises only three classes of work viz. (a), literary, dramatic, musical or artistic work; (b) cinematograph films and (c) sound recordings. Each class is independent of the other. Each class of work gives a bundle of right to the owner thereof, which are independent of the other works. The rights therein can be exploited by the owner of the work in each class without the interference by the owners of the works in other class.
• No class of work is inferior to the work in another class.
• In sound recordings and cinematograph films, the literary and musical work gets incorporated into it, whereupon independent copyright works, viz.sound recordings and cinematograph films, come into existence and, therefore, rights under Section 14 in respect of each sound recording and cinematograph film come into existence which can be exploited by the owner of the sound recording or cinematograph film without interference from the owner of copyright in the underlying works.
• The owner of a sound recording has, inter alia, the exclusive right of communicating the sound recording to the public. Though the exercise of such right has the effect of communicating the underlying work, viz. musical or literary work, to the public such communication of underlying works being a part of the sound recording does not amount to infringement of the copyright of communicating to the public, the underlying works. The owner of a sound recording has an exclusive right to communicate the sound recording in any form and such communication in exercise of right under Section 14(1)(e)(iii) cannot amount to infringement of any underlying work in such sound recording.
• The owners of underlying works incorporated in a sound recording do not have the right of communicating the same to the public as a part of the sound recording.
• The owner of a copyright in the underlying works retains the bundle of copyrights in them otherwise than as a part of the sound recording.
• The right of public performance of an underlying work is different from the right to communicate the sound recording in which the musical or literary work is incorporated.
• The Defendant, therefore, can claim licence fee only in respect of public performance of musical or literary work of its members or in respect of communication of such works otherwise that as a part of other copyright viz. Sound recording or cinematograph film. In other words, the Defendant cannot claim licence fees in respect of public broadcast or communicate to the public, musical or literary works as a part of the sound recording.

The Judge did not accept the last submission of the Plaintiff that, upon the owner of a copyright in musical and literary work permitting the making of a sound recording, his right to make or permit to be made another sound recording containing such work comes to an end.

This judgment is certainly going to change the scenario of music industry in India".

Thanks so much for this, Amit.  Readers can access the 108-page judgment here.

NewzBin2: some reflections

So much has already been written and posted on today's judgment of Mr Justice Arnold in Twentieth Century Fox Film Corp & Ors v British Telecommunications Plc [2011] EWHC 1981 (Ch) ("NewzBin 2") that it is difficult to think immediately of a fresh slant for coverage on this blog.  In short, for those who may have missed it, NewzBin's rather crude attempt to keep its Usenet internet indexing website going has been smitten by an order that internet service provider BT block users from accessing NewzBin's website.  The order actually sought runs like this:

""1. The Respondent [i.e. BT] shall adopt the following technology directed to the website known as Newzbin or Newzbin2 currently accessible at www.newzbin.com and its domains and sub domains. The technology to be adopted is:
(i) IP address blocking in respect of each and every IP address from which the said website operates or is available and which is notified in writing to the Respondent by the Applicants or their agents.
(ii) DPI based blocking utilising at least summary analysis in respect of each and every URL available at the said website and its domains and sub domains and which is notified in writing to the Respondent by the Applicants or their agents.
2. For the avoidance of doubt paragraph 1(i) and (ii) is complied with if the Respondent uses the system known as Cleanfeed and does not require the Respondent to adopt DPI based blocking utilising detailed analysis.
3. Liberty to the parties to apply on notice in the event of any material change of circumstances (including, for the avoidance of doubt, in respect of the costs, consequences for the parties, and effectiveness of the implementation of the above measures as time progresses)".

A fairly lengthy account of NewzBins 1 and 2 appears on the IPKat here. and the BBC's report is here.

Rights-owners are predictably jubilant at their victory in what is very plainly stated to be a test case (though, curiously and perhaps for subtle strategic reasons, other ISPs which were invited to intervene in these proceedings declined to do so).  A lot of work has gone into preparing the ground for this action. Given the state of the law and the nature of the damage inflicted, the victory was deserved.  In contrast, those who are not rights are owners are equally predictably critical. While no-one appears to have a good word for NewzBin itself, there are wider issues afoot.

Among the more interesting comments is that of Andrew Orlowski, writing for The Register here:

"It's fascinating to hear arguments such as BT's contention that it is not an internet service provider, or that Newzbin2 members were passive recipients, and just happened to have anime and pirate movies pop onto their PCs ... or that after notification from a copyright-holder, an ISP could claim that it hadn't been notified. These are surreal arguments [Andrew's right, and this blogger wishes that this sort of thing would stop. It wastes the court's time, distracts us all from the core issues and does little to enhance the public's image of the legal profession].

The voluntary plan at meetings chaired by Culture Minister Ed Vaizey – one floated by publishers, music and movie industries and the Premier League – permits speedy judicial review of site-blocking on a site-by-site basis. BT was the strongest opponent in those talks – perhaps hoping for a favourable decision from Arnold.

That hasn't been forthcoming.[It surely wasn't likely to be forthcoming either, in the light of the ruling in NewzBin 1 and given that Arnold J is not known to be a fantasy judge]

Site-blocking not only runs contrary to the classic liberal spirit of English law – I have seen no exemption mooted for journalists or researchers – but it also has another consequence. It makes rights-holders look like they're keener on legislation than on creating new markets for content. Despite a smashing victory, they should be careful what they wish for ['creating new markets for content', like 'creating new business models', is becoming an increasingly hopeless cry as it becomes ever more apparent that there are no realistic and sustainable business models without enforceable copyright -- with the possible exception of micropayment schemes -- and no realistically enforceable copyright in the face of technological advance]".

Readers' comments and reflections are welcomed.

Meltwater: Never mind Infopaq, Court of Appeal preserves old British 'original literary work' test

"Clear, careful and
comprehensive": Mrs
Justice Proudman upheld
on appeal

Today's ruling of the Court of Appeal for England and Wales in The Newspaper Licensing Agency Ltd & Others v Meltwater Holding BV & Others [2011] EWCA Civ 890 has upheld the ruling of Mrs Justice Proudman (noted on this blog by Hugo here) that end-users of media monitoring service Meltwater required end-user licences to access and use search results consisting of the headline of each article which mentions the search term (which hyperlinks to the article), the opening words of that article and an 11-word extract showing the context in which the search term appears.

A longer description of the factual background appears on the IPKat this morning, here. This post focuses on what the Court of Appeal said about the Court of Justice of the European Union ruling in Case C-5/08 Infopaq, which has caused a good deal of consternation in copyright circles of late. The question before the Court of Appeal at this juncture was whether a headline could be protected by copyright as an original literary work. Said the Court:

"19. The starting point [is] s.1(1)(a) CDPA. To satisfy that subsection the headline must be "a work" and both "original" and "literary". A headline is plainly literary as it consists of words. The word "original" does not connote novelty but that it originated with the author. This test was clearly established in the domestic law of England by the decision of Peterson J in University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 approved by the House of Lords in Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273. 

20. The decision of the European Court of Justice in C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009] ECDR 16 related to questions of infringement but in paragraphs 33 to 37 the Court considered the conditions necessary to attract copyright protection. The Court said: 

"33 Article 2(a) of Directive 2001/29 [the Information Society Directive] provides that authors have the exclusive right to authorise or prohibit reproduction, in whole or in part, of their works. It follows that protection of the author's right to authorise or prohibit reproduction is intended to cover 'work'. 

34 It is, moreover, apparent from the general scheme of the Berne Convention, in particular Article 2(5) and (8), that the protection of certain subject-matters as artistic or literary works presupposes that they are intellectual creations. 

35 Similarly, under Articles 1(3) of Directive 91/250, 3(1) of Directive 96/9 and 6 of Directive 2006/116, works such as computer programs, databases or photographs are protected by copyright only if they are original in the sense that they are their author's own intellectual creation. 

36 In establishing a harmonised legal framework for copyright, Directive 2001/29 is based on the same principle, as evidenced by recitals 4, 9 to 11 and 20 in the preamble thereto. 

37 In those circumstances, copyright within the meaning of Article 2(a) of Directive 2001/29 is liable to apply only in relation to a subject-matter which is original in the sense that it is its author's own intellectual creation."

Although the Court refers to an 'intellectual creation' it does so in the context of paragraph 35 which clearly relates such creation to the question of origin not novelty or merit. Accordingly, I do not understand the decision of the European Court of Justice in Infopaq to have qualified the long standing test established by the authorities referred to in paragraph 19 above".

Good news for those who have been uncomfortable with Infopaq. Bad news for those who don't like the idea of headlines being potentially protectable as copyright works.

Q: when is a helmet not a sculpture? A: when it's not an elephant either

British judges' ability to know
one when they see it is of little
assistance to them when faced
with a charging litigant ...

The United Kingdom Supreme Court gave its ruling this morning in the "Star Wars helmet" copyright infringement case of Lucasfilm Limited and others (Appellants) v Ainsworth and another (Respondents) [2011] UKSC 39.  The decision, which has already attracted substantial media attention (see eg the BBC here), affirms that the Star Wars Stormtrooper helmet is not a "sculpture" under the Copyright, Designs and Patents Act 1988 but that Lucasfilms may bring proceedings in the United Kingdom to sue for infringement of US copyright in the United States. According to the Supreme Court's Press Summary:

"BACKGROUND TO THE APPEAL 

The appeal raises two distinct legal issues:

(1) The definition of “sculpture” in the Copyright, Designs and Patents Act 1988, and, in particular, the correct approach to three-dimensional objects that have both an artistic purpose and a utilitarian function;
(2) Whether an English court may exercise jurisdiction in a claim against persons domiciled in England for infringement of copyright committed outside the European Union in breach of the copyright law of that country?

This appeal is concerned with intellectual property rights in various artefacts made for use in the first Star Wars film, “Star Wars Episode IV – A New Hope”. The most important was the Imperial Stormtrooper helmet. It has been treated as decisive for the outcome of the case. ... The film’s story-line and characters were conceived by George Lucas. Between 1974 and 1976 his concept of the Imperial Stormtroopers as threatening characters in “fascist white armoured suits” was given visual expression in drawings and paintings by an artist, Mr Ralph McQuarrie, and eventually three-dimensional form by Mr Andrew Ainsworth. He produced several prototype vacuum-moulded helmets. Once Mr Lucas had approved the final version, Mr Ainsworth made 50 helmets for use in the film. 

The Appellants (here referred to collectively as Lucasfilm) own copyrights in the artistic works created for the Star Wars films. They have built up a successful licensing business, including licensing models of Imperial Stormtroopers. In 2004 Mr Ainsworth used his original tools to make versions of the Imperial Stormstrooper helmet and armour for sale to the public. ... He sold between $8,000 and $30,000 of the goods in the United States. Lucasfilm obtained judgment against him in the United States. It also commenced proceedings in the English High Court, including claims for infringement of English copyright and claims under US copyright law. 

By the time of the Supreme Court hearing, Lucasfilm claimed only that the helmets qualified for
copyright protection under English law as “sculptures” and not as “works of artistic craftsmanship” [realistically, "works of artistic craftsmanship" was never a runner given the body of existing case law on the subject, including Hensher v Restawile [1976] AC 64 and Merlet v Mothercare [1986] RPC 115]. 

In terms of section 4 of the Copyright Designs and Patents Act 1988, copyright subsists in ... original “artistic works”, which includes a “sculpture”, irrespective of artistic quality. Whether a helmet was a “sculpture” is significant for two reasons. If it is, any copying of the helmets which Mr Ainsworth had originally produced would infringe Lucasfilm’s copyright. It is also relevant for the defences which are available. To produce a helmet by working from a drawing of it infringes copyright in the drawing. However, it is not an infringement of any copyright in a design document which records a design for anything other than an artistic work to make an article to the design or to copy an article made to the design: section 51 1988 Act. If the helmet did not qualify as sculpture, and was therefore not an artistic work, Mr Ainsworth had a defence to an English copyright action based on infringement of Mr McQuarrie’s graphics.

The High Court dismissed the claims for infringement of English copyright: the helmet was not a
work of sculpture and therefore Mr Ainsworth had a defence under section 51. It held, however, that the United States’ copyright claims were justiciable and that US copyright had been infringed. The Court of Appeal allowed Mr Ainsworth’s appeal. It agreed that the helmet was not a work of sculpture but held that the US copyright claims were not justiciable. Lucasfilm appealed to the Supreme Court.

JUDGMENT 

The Supreme Court unanimously allows the appeal. It holds that the helmets were not sculptures but that the US copyright claims were justiciable in English proceedings. Lord Walker and Lord Collins [both of whom have some IP experience before their elevation to the Supreme Court] give a joint opinion, with which the other members of the Court agree. 

REASONS FOR THE JUDGMENT 

Sculpture issue 

The court reviews the legislative history of the current statutory provisions and previous authorities as to the meaning of “sculpture”: [14] – [35]. In the High Court, the judge had formulated various “guidelines” as to the meaning of sculpture. For example, some regard must be had to the normal use of the word “sculpture”. The concept can apply to things going beyond what one would normally expect to be art, but it is inappropriate to stray too far from what would normally be regarded as sculpture. Not every three dimensional representation of a concept qualifies: [36] – [37]. Lucasfilm contended that the helmet was sculpture as it had no practical function at all. Its purpose was wholly artistic, to make a visual impression on the filmgoer. That was not, however, how the trial judge and the Court of Appeal had viewed matters. Mann J found the helmets to be a mixture of costume and prop and that their primary function was utilitarian, namely to express an idea as part of character portrayal in the film. He held that this lacked the necessary quality of artistic creation required of a sculpture. This type of judgmental conclusion was one with which appellate courts should be slow to interfere, as Lord Hoffmann observed in Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1
WLR 2416: [40] – [45] [The court in that case seemed more concerned with the Court of Appeal's increasing tendency to substitute its own findings of fact and impression for those of the trial judge -- but the question still remains as to whether the trial judge should need to form an opinion as to whether the primary function of something which may or may not be a sculpture is utilitarian]. The judge did not err in law or reach an obviously untenable conclusion: [46]. 

It would not accord with the normal use of language to apply the term “sculpture” to, for example, a 20th century military helmet used in the making of a film, however great its contribution to the artistic effect of the finished film. The argument for applying the term to an Imperial Stormtrooper helmet was stronger, because of the imagination that went into the concept of the Stormtroopers. But it remained the Star Wars film itself that was the work of art. The helmet was utilitarian in the sense that it was an element in the process of production of the film: [44]. The Court noted that the law did not apply an “elephant test” [ie it might be difficult to define but you know one when you see one], but instead a multi-factoral approach: [47]. 

Justiciability of foreign copyright claim 

The Court of Appeal had held that the common law rule in British South Africa Co v Companhia de Moçambique [1893] AC 602 that an English court had no jurisdiction to entertain an action for the determination of title to, or the right of possession of, foreign land, or the recovery of damages for trespass to such land, was an example of a general principle which applied to claims for infringement of foreign intellectual property rights. The Supreme Court concludes that, provided there is a basis for in personam jurisdiction over the defendant, an English court does have jurisdiction to try a claim for infringement of copyright of the kind involved in the present action: [105]".