EMI to appeal Kookaburra case
Copyright Society seminar: All change for the Digital Economy? Some observations from the history of copyright
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What is a "substantial" part?
| "substantial part" | You may need copyright permission even if you are using just part of something, if the part is an important part of the work. In copyright law, this is referred to as a “substantial part”, but the part used need not be a large part. |
| small part can be "substantial" | Whether or not a part is sufficiently important to require permission is one of the most difficult issues in copyright law, because it depends on the circumstances of each case. There is no specific proportion or percentage. The quality of the part used is more important than its quantity; the skill and effort used to create the part you want to use is more important than how big it is, or what proportion it is. For example, Rudyard Kipling successfully sued for copyright infringement when one verse – 4 lines – of his 32 line poem "If" was used in an advertisement for Sanatogen pills, “a reviver of nerve power”. |
| purpose may matter | It is also important to note that the purpose of the use may also be relevant – particularly if the use would compete with the copyright owner’s work. |
| inexact reproduction | You may need copyright permission even if you do not make an exact
reproduction; the question is whether or not you have reproduced an
important part of the other work. You might infringe copyright in an
artistic work by producing something which strongly resembles it, even
though it is not exactly copied. Copying the combination of incidents
in a literary or dramatic work, or the mode in which the ideas are
worked out and presented, may infringe copyright even though the actual
words or dialogue are not used. This was the basis of the claim against
the publisher of The Da Vinci Code. There is no infringement, however, if both works are based on the same stock incidents or characters. |
| coincidentally similar works | There is no infringement if a person creates a work which is coincidentally similar to another work he or she has not seen (or heard). In a dispute, however, a court may infer that the creator of the second work has had access to the first work if it considers it unlikely that the second work could have been produced without reference to the first. |
| alterations or additions | You may need copyright permission even if you alter or add to another person’s material. It is the cumulative effect of the similarities which is important, not the differences. You also have a legal obligation to the creator of a work not to make additions or alterations which are prejudicial to the creator’s honour or reputation. |
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