The Spotlight ‘Burns’ on Copyright Protection

As we approach Burns Night, a day of the year dedicated to celebrating the life and works of the world-renowned poet, Robert Burns, “Address to a Haggis”, along with many other Burns’ poems, are likely to be recited by people across the country. One of the reasons Burns’ poems can be so freely used is because they are no longer protected by copyright, which raises some interesting considerations as to how far copyright extends to protect original literary works. This was explored recently in the High Court of England and Wales, in relation to a novel written by Anna Pasternak named “Lara: The Untold Love Story That Inspired Doctor Zhivago” (“Lara”).

Copyright: The Basic Principles

Copyright is an intellectual property right (“IPR”) which protects the expression of original works. In the UK, the law relating to copyright is set out in the Copyright, Designs and Patents Act 1988 (“CDPA”). Various types of work benefit from copyright protection, such as:

• Literary, dramatic, musical or artistic works;
• Sound recordings, films or broadcasts; and
• Typographical arrangements.

Unlike other IPRs, copyright does not require registration and is granted automatically upon creation of a work that qualifies for protection. The duration of copyright differs and depends upon the work in question. For example, literary, dramatic, musical, and artistic works are protected during the author’s lifetime, and for an additional period of 70 years from the author’s death (hence Burns’ work no longer being protected).

The CDPA provides copyright owners with exclusive rights in relation to their works. This includes the right to: copy the work, communicate the work to the public and issue copies of the work to the public. Primary acts of copyright infringement will occur when a third-party carries out any of these exclusive rights without the authorisation of the copyright owner.

The legal test to determine whether copyright infringement has taken place is whether all, or a substantial part of, the copyrighted work has been copied. Whilst it will be a clear case of infringement if the entirety of the work has been copied, in every other circumstance, the courts will undertake a qualitative assessment to determine whether a ‘substantial’ part of the work has been copied. Although decided on a case-by-case basis, the courts will generally consider the quality and significance of the copied extract in the context of the work as a whole. It is worth noting that the intent of the alleged infringer is not a relevant consideration for the courts when establishing liability for a primary act of infringement.

The Pasternak v Prescott Decision

In 2019, Lara Prescott released a novel, “The Secrets We Kept” (“TSWK”). Pasternak raised a claim in the High Court in late 2022 against Prescott for copyright infringement[1]. Pasternak contended that:

• Prescott copied a substantial part of the selection, structure and arrangement of facts and incidents that Pasternak created when writing her 2016 novel, Lara (“the Selection Claim”); and
• Prescott copied the English translation of parts of a book written in French, which were included in Lara (“the Translation Claim”).

Prescott denied both claims and counterclaimed for a declaration of non-infringement.

The Judge dismissed the Selection Claim on the basis that: (i) various other events outlined in Lara would have been included in TSWK had Prescott truly been copying Lara; and (ii) the events that were present in both Lara and TSWK appeared in different contexts and were expressed and ordered in a different manner.

In respect of the Translation Claim, it was held that copyright did subsist in the translation. To rebut the claim of copyright infringement, Prescott relied on the ‘quotation defence’, set out in Section 30(1ZA) of CDPA. The Judge held that Prescott’s use of the quotation was “fair dealing” because there had been no attempt to engage in any form of commercial competition. However, the defence ultimately failed because Prescott did not sufficiently acknowledge the source of the translation, as per Section 30(1ZA)(d) of CDPA. Prescott should have approached Pasternak or made an enquiry with her publishers to obtain the necessary information to sufficiently acknowledge the author of the quotation.

The court’s response to the Selection Claim highlights the risks involved with placing a significant emphasis on the similarities between the works. This is especially true where such works relate to real-life events, as historical facts are not protectable. Moreover, the court’s response to the Translation Claim confirms that authors cannot easily ‘escape’ the requirement to sufficiently acknowledge third-party sources simply because such details are not readily accessible.

Given that Burns’ poems would similarly be categorised as ‘literary’ works, this case demonstrates the ways in which infringement could arise if Burns’ work was still protected by copyright today. One could reasonably foresee infringers falling foul of copyright law by copying extracts of his poems, which may well be interpreted by the court as ‘substantial’ parts of his work.

Enforcing copyright in Scotland

Whilst Pasternak brought her case against Prescott in England, infringements often occur across the UK. As a result, copyright (and indeed all IPR) owners are presented with a choice as to whether they would like to raise proceedings in Scotland or England. Accordingly, it is worthwhile highlighting some of the main benefits of enforcing IPRs in Scotland:

• There is no mandatory pre-action correspondence. The Court of Session (the “Scottish IP Court”) does not require parties to set out their case in writing in advance of court proceedings being raised.
• Regardless of the case value, or the type of IP involved, the Scottish IP Court charges a flat fee of just over £300 to raise an action.
• Interim interdicts (the Scottish equivalents of preliminary injunctions) are regularly granted with no advance notice, which means that the infringer will only become aware of it when the order is served on them.

If you are interested in learning more about the benefits of enforcing IP rights in Scotland, please follow this link.

Article co-authored by Kaela Murie, Trainee Solicitor at CMS.

[1] Pasternak v Prescott [2022] EWHC 2695 (Ch)