‘Copyright’ is a property right that confers on the owner the exclusive right to do, and authorise others to do, certain acts in relation to that work. Under UK law (as set out in the Copyright, Designs and Patents Act 1988 (CDPA 1988)), there is a ‘closed’ list of works that attract copyright protection, comprising: • original literary, dramatic, musical or artistic works • sound recordings, films, or broadcasts, and • the typographical arrangement of published editions A work falling into one of the above protectable categories must be recorded in some manner in order to be protected. For example, the notes and lyrics of a song could be recorded on paper or electronically and that ‘record’ will be protected by copyright provided that the work otherwise meets the qualification criteria contained in CDPA 1988. For detailed guidance on the qualification criteria and copyright subsistence in general, see Practice Notes: Copyright—protectable works and Copyright—subsistence and qualification. Note that it is not necessary for the work to be registered to attract copyright protection. Court of Justice

IP analysis: The High Court granted Samherji’s application for summary judgment in respect of its claims for passing off, copyright infringement and malicious falsehood. The underlying facts of this case are unusual and arise from what Mr Fridriksson considered to be his artistic expression and activism. The court was required to consider Mr Fridriksson’s right of freedom of expression under the Human Rights Act 1998 (HRA 1998) and, in respect of the copyright claim, whether his actions amounted to fair dealing under section 30 of the Copyright Designs and Patents Act 1988 (CDPA 1988). The court concluded that Mr Fridriksson’s defence to each of the claims had no real prospect of success and there was no other compelling reason for the matter to be disposed of at trial. Written by Nicole Bollard, barrister at 3PB.

IP analysis: In a fiery battle of copyright infringement, the court examined the guiding principles, and rejected the claims. It is a timely reminder of the threshold required to establish infringement, the court finding there can be no copyright infringement without copying, and no copying if the work has not been accessed. Further, it demonstrates the price of publicising a claim is the court’s preparedness (as it did here) to make a declaration of non-infringement and publicity orders, to provide the defendants some justice and redress the balance. Written by Danielle Carr, partner at Rosenblatt (a trading name of RBG Legal Services Ltd).

IP analysis: The Court of Appeal held that while the wrong test had been applied at first instance, the High Court was ultimately correct in its finding that copyright subsisted in various elements of the graphic interface of a software programme. The court further held that it was not open to the defendants to defend the claim for infringement on the basis of there being no communication in the UK, in light of their pleaded case and the admission they had made. This judgment will be of particular interest to those specialising in intellectual property law. It offers a helpful confirmation of the correct test and how this should be applied when determining issues of copyright subsistence, particularly in the context of software claims or claims relating to artistic works. More generally, the judgment is a stark reminder of the potential consequences of admissions and the importance of the parties’ statements of case addressing all the points they intend to argue at trial. Written by Nicole Bollard, barrister at 3PB Barristers.

1 The Consultant, as beneficial owner, grants to the Employer an irrevocable, royalty-free, non-exclusive licence

1 The copyright in all documents and information prepared by or on behalf of the Consultant in relation to the Project including,

This Agreement is made on [insert date] (the Commencement Date) between the following parties (each a party and together the parties): Parties 1 [insert licensor name] a company incorporated in [England and Wales] whose registered number is [insert company number] and whose registered office is at [insert registered office] (the Licensor); and 2 [insert licensee name] a company incorporated in [England and Wales] whose registered number is [insert company number] and whose registered office is at [insert registered office] (the Licensee). Background (A) Licensor is [the exclusive proprietor of OR entitled to grant rights in the] Intellectual Property Rights in the Plans [(both as defined below)]. (B) Licensor wishes to license the Intellectual Property Rights in the Plans to Licensee and Licensee wishes to receive and use the same on the terms of this Agreement. (C) The Licensee shall obtain no proprietary or beneficial right or interest in the licensed Intellectual Property Rights and shall not sublicense or otherwise deal with the licensed Intellectual Property Rights save in accordance with the terms of this Agreement. The parties agree: 1 Definitions and interpretation

How to use this Checklist This Checklist is designed to highlight issues that commonly arise during the negotiation and drafting of Precedent: Copyright licence in a construction project. For further information on issues raised by this Checklist, see Practice Notes: • Assigning intellectual property rights • Licensing intellectual property rights This Checklist can also, where appropriate, form the basis of a simple non-binding heads of terms. For guidance on how to do this, see Precedent: Heads of terms—commercial contracts. Checklist for proposed copyright licence relating to a construction project (A) Key commercial considerations Notes Parties Parties: confirm each party’s legal status and whether any third parties (such as group affiliates) will benefit from the proposed agreement. Commencement, duration and termination Commencement: confirm proposed commencement/effective date. Duration: confirm whether the proposed agreement will be a fixed term with reference to set time period or the occurrence of a specific event. Identify notice periods. Conditions precedent: confirm if there are any preconditions

How to use this Checklist This Checklist is designed to highlight issues that commonly arise during the negotiation and drafting of copyright licences, such as those provided in Precedents: • Copyright licence—pro-licensee • Copyright licence—pro-licensor • Copyright licence—short form For further information on issues raised by this Checklist, see Practice Notes: • Licensing intellectual property rights • Assigning intellectual property rights This Checklist can also, where appropriate, form the basis of a simple non-binding heads of terms. For guidance on how to do this, see Precedent: Heads of terms—commercial contracts. The third column can be used to record observations or comments as the Checklist is worked through. Checklist for proposed copyright licence Checklist Further information Notes (if any) Parties ☐ Confirm that the licence is between the correct legal entities. Check licensor and licensee are used correctly throughout and ensure the correct legal name and other specifying information such as address and company registration number are correct where the parties are defined. Commencement, duration and termination ☐ Confirm the proposed commencement or effective date. ☐

This Agreement is made on [insert date] Parties 1 [insert licensor name] a company incorporated in [England and Wales] whose registered number is [insert company number] and whose registered office is at [insert registered office] (Licensor); and 2 [insert licensee name] a company incorporated in [England and Wales] whose registered number is [insert company number] and whose registered office is at [insert registered office] (Licensee), each of the Licensor and the Licensee being a party and together the Licensor and the Licensee are the parties. Background (A) The Licensor is the [author and] [exclusive] proprietor of certain rights in works protected by copyright. (B) The Licensee is [insert description of Licensee’s background/the background to the licence or relevant transaction]. (C) The Licensor has agreed to grant a licence to the Licensee and the Licensee has agreed to take a licence on the terms of this Agreement. The parties agree: 1 Definitions and interpretation 1.1 In this Agreement: Affiliate • means any entity that directly or indirectly Controls, is controlled by or is under common Control with, another entity; Confidential Information • means information disclosed by or on behalf of a party (the Disclosing Party) to the other party (the Receiving

This Agreement is made on [insert date] Parties 1 [Insert licensor name] a company incorporated in [England and Wales] whose registered number is [insert company number] and whose registered office is at [insert registered office] (Licensor); and 2 [insert licensee name] a company incorporated in [England and Wales] whose registered number is [insert company number] and whose registered office is at [insert registered office] (Licensee), (each of the Licensor and the Licensee being a party and together the Licensor and the Licensee are the parties). Background (A) The Licensor is the[ author and] [ exclusive] proprietor of certain rights in works protected by copyright. (B) The Licensee is [insert description of Licensee’s background/background to licence or relevant transaction]. (C) The Licensor has agreed to grant a licence to the Licensee and the Licensee has agreed to take a licence on the terms of this Agreement. The parties agree: 1 Definitions and interpretation 1.1 In this Agreement: [Advance • means the sum of [insert];] Affiliate • means any entity that directly or indirectly Controls, is controlled by, or is under common Control with, another entity; Confidential Information • means information disclosed by or on behalf of a party (the Disclosing Party) to the other party (the

This AGREEMENT is made on [insert date] Parties 1 [insert name of party] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Licensor); and 2 [insert name of party] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Licensee), (each of the Licensor and the Licensee being a party and together the Licensor and Licensee are the parties). BACKGROUND: (A) The Licensor owns all proprietary rights and interests in and to the Work; (B) The Licensor has agreed to grant a licence to the Licensee and the Licensee has agreed to take a licence on the terms of this Agreement. The parties agree: 1 Definitions and interpretation 1.1 In this Agreement: Affiliate • means any entity that directly or indirectly Controls, is controlled by or is under common Control with, another entity; Confidential Information • means information disclosed by or on behalf of a party (the Disclosing Party) to the other party (the Receiving Party) under or in connection with this Agreement which is marked as confidential, or which the Disclosing Party