LW4641 Chap.3 Protected Works and the Closed List
Protected Works and the Closed List
Subsistence starts with a category
Before asking whether anything was copied, a claimant must show that copyright subsists, and in Hong Kong that begins with fitting the material into one of the descriptions of work the Ordinance names. The course materials count nine in Hong Kong against eight in the United Kingdom.
Hong Kong keeps a closed list: material that fits none of the descriptions is unprotected however creative it is. The authorial works must also be original, which is the subject of the next chapter.
How much a closed list can stretch
The drafting mixes two verbs.
Where a definition says a term means something, the list is exhaustive; where it says the term includes something, the word keeps its natural meaning and more. Parliament debated this choice when the UK Act of 1988 was passed, and Cap 528 follows it: graphic works include paintings, drawings, diagrams, maps, charts and plans.
That opens arguments about face painting and tattoos, though a narrow construction was taken for face make-up in Merchandising Corporation of America v Harpbond.
Works at the edge
Creation Records v News Group Newspapers is the leading example of a creative arrangement that fitted no category: a staged album-cover scene was not a dramatic work, a sculpture, a work of artistic craftsmanship or a collage.
A television show format failed as a dramatic work in Green v Broadcasting Corporation of New Zealand for want of creativity and unity, and film props were refused protection as sculptures in Lucasfilm v Ainsworth.
Open lists and the question of who decides
France, the United States, Canada and the Netherlands use open lists built on general criteria.
The Dutch Supreme Court accepted that a perfume scent could qualify, and protected a scheme of chemical equations as a work. The course materials argue that closed lists preserve democratic legitimacy, because deciding that a new form deserves protection is a policy judgement a legislature can tailor and a court cannot.
What this chapter covers
- 01
Why subsistence starts with a category
- 02
Nine descriptions of work in Hong Kong
- 03
Means against includes in the definitions
- 04
The photo-shoot scene and each failed category
- 05
Television formats and film props
- 06
Open lists, perfume and chemical schemes
- 07
Who should decide on new categories
Worked example · free
Test a creative arrangement against every category
- 2Explain why subsistence must be shown first and under which descriptions.
- 4Test the arrangement against dramatic work, sculpture, artistic craftsmanship and collage.
- 2Conclude, noting any separate work the artist does own.
Key terms
- Closed List
- A system that protects only the descriptions of work named in the statute; Hong Kong follows it, as do the United Kingdom, Australia and India.
- Open List
- A system that protects works meeting general criteria such as originality or intellectual creation, with an illustrative rather than exhaustive list of examples.
- Graphic Work
- A category of artistic work covering paintings, drawings, diagrams, maps, charts and plans, along with engravings, etchings and similar works.
- Collage
- An artistic work made by sticking two or more things together; an ephemeral assembly of unfixed objects does not qualify.
- Television Format
- The recurring framework of a show's episodes; courts in New Zealand and Germany refused to treat one as a protected work.
- Democratic Gatekeeping
- The argument that extending copyright to a new kind of creation is a policy decision best left to the legislature after public debate.
- Rule Of Doubt
- A United States registration practice that records unconventional claims while leaving the question of protection to the courts.
Protected Works and the Closed List FAQ
Why does Hong Kong use a closed list of protected works?
Because the Copyright Ordinance names the descriptions of work that can be protected and anything outside them is excluded. The course materials defend this on grounds of certainty and democratic legitimacy, while noting that the mix of means and includes in the definitions still leaves room for argument at the edges.
Can a perfume or a recipe's smell be protected by copyright in Hong Kong?
It would have to fit one of the named descriptions of work, and none obviously fits a scent. A Dutch court under an open list accepted that a perfume could qualify, but critics noted that the framers of that statute had works of sight and hearing in mind, and a Hong Kong court would begin from the categories.
What does Creation Records teach for a problem question?
That creativity is not enough without a category. Work through each description the facts could fit, as Lloyd J did with dramatic work, sculpture, artistic craftsmanship and collage, and give a reason each one fails before concluding that the arrangement itself is unprotected.
Exam move
List the nine descriptions from memory, then collect five unusual things, such as a stage set, a tattoo, a game format, a scent and a garden, and write one line on which category each might fit and why it might fail. The exercise trains exactly the move the closed list demands.
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