The concept of 'taking of a substantial part' has been stretched too far by judges dealing with copyright infringement. Discuss.

Essay by phuoctien07University, Master'sA-, April 2009

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The British Copyright Designs and Patents Act 1988[1] effectively provide the maker of an original work a copyright. But copyright does not protects idea, it only protects the mode of expression of the idea, thus the taking of idea rather than the substance of work will not amount to infringement[2]. Similarly there is no protection for what is merely the style or technique with which a work is created[3].The right holder will have negative right to stop others from infringing his or her copyright. Nevertheless, there is strict liability for copyright infringement. Infringement can either be primary or secondary. Primary infringement occurs when a person himself commits an infringing act or authorized another to do an infringing act restricted by the copyright. On the other hand, secondary infringement is when people dealing with infringing copies of a work.

There is no requirement that the works are identical in order to constitute infringement.

But Copyright is only infringed where another person copies the whole work or a substantial part of the work. It is clearly stated under S16 (3) (a) of CDPA 1988 that, infringement may be constituted as much by the doing of an act in relation to a substantial part of a work as by the doing of such acts in relation to the whole of the work. In another words, it is dispensable that the whole copyright work should be taken by the infringer. This is later affirmed in Warwick Film Production Ltd v Eisinger[4] which suggested that there will be no infringement if what is done in relation to an insubstantial part.

As a result, where the whole work is not copied, the requirement is that a substantial part has been copied. What constitute a substantial part is debatable and it is readily apparent that the...