Copyright, Designs and Patents Act 1988, section 3

Literary, dramatic and musical works

Part I Copyright

(1)In this Part—

  • “literary work” means any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes—

(a)F3a table or compilation [F2other than a databaseF2] , . . .

(b)F4a computer program; . . . [F5(c) preparatory design material for a computer programF5][F6 and

F6(d)a databaseF6]

  • “dramatic work” includes a work of dance or mime; and

  • “musical work” means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music.

(2)Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise; and references in this Part to the time at which such a work is made are to the time at which it is so recorded.

(3)It is immaterial for the purposes of subsection (2) whether the work is recorded by or with the permission of the author; and where it is not recorded by the author, nothing in that subsection affects the question whether copyright subsists in the record as distinct from the work recorded.

Definitions used in section 3 5

written

“writing” includes any form of notation or code, whether by hand or otherwise and regardless of the method by which, or medium in or on which, it is recorded, and “written” shall be construed accordingly

Defined in s.178 · see it in the full Act
database

(1) In this Part “database” means a collection of independent works, data or other materials which—

(a)are arranged in a systematic or methodical way, and

(b)are individually accessible by electronic or other means.

Defined in s.3A(1) · see it in the full Act
design

1 (1) In this Act “design” means features of shape, configuration, pattern or ornament applied to an article by any industrial process, being features which in the finished article appeal to and are judged by the eye, but does not include—

(a)a method or principle of construction, or

(b)features of shape or configuration of an article which—

(i)are dictated solely by the function which the article has to perform, or

(ii)are dependent upon the appearance of another article of which the article is intended by the author of the design to form an integral part.

Defined in Sch.4 para.38 · see it in the full Act

“design” has the meaning assigned to it by section 1(1) of this Act ;

Defined in Sch.4 para.38 · see it in the full Act
writing

“writing” includes any form of notation or code, whether by hand or otherwise and regardless of the method by which, or medium in or on which, it is recorded, and “written” shall be construed accordingly

Defined in s.178 · see it in the full Act
author

(1) In this Part “author”, in relation to a work, means the person who creates it.

Defined in s.9(1) · see it in the full Act

“author”, in relation to a design, has the meaning given by section 2(3) and (4);

Defined in Sch.4 para.38 · see it in the full Act

(3) In this Act the “author” of a design means the person who creates it.

Defined in Sch.4 para.38 · see it in the full Act

Cases considering section 3 37

Dr Craig Steven Wright & Ors v BTC Core (a partnership) & Ors

[2023] EWCA Civ 868 · 20 July 2023Interprets

If the Bitcoin File Format was a work, it was capable of being a literary work in view of the broad statutory concept of writing (see para [62]). The provision confirms that a computer program is included within the statutory category of literary works (see para [38]). Fixation is a condition precedent to copyright subsistence but remains distinct from the work. A structure may satisfy the provision if recorded completely and unambiguously; descriptive content and permanence are unnecessary (see paras [50]; [59]; [68]-[75]). Read with section 3(2), the provision confirms that the fixation need not be made or authorised by the author. No causal link is required between the subsistence fixation and the later copying (see paras [74]-[75]).

The Newspaper Licensing Agency Ltd & Ors v Meltwater Holding BV & Ors

[2011] EWCA Civ 890 · 27 July 2011Defines

Defines the literary-work framework applied to headlines and newspaper articles (see paras [12]; [19]-[22]). Applies the definition of literary work to written newspaper headlines and articles (see paras [12]; [19]-[22]). Cited only.

Nova Productions Ltd v Mazooma Games Ltd & Ors

[2006] EWCA Civ 1044 · 25 July 2006Defines

The court noted that s.3 already treated computer programs as literary works and had been amended to include preparatory design material. It regarded the amendment as unlikely to have made a major change to UK law. (see para. [10])

17 more judgments, and what each says about section 3, are in the case-law panel in the full Act.

Amendments and notes

5 notes from legislation.gov.uk

Amendments

  1. F3Word in s. 3(1) omitted (1.1.1993) by virtue of S.I. 1992/3233, reg. 3
  2. F2Words in s. 3(1)(a) inserted (1.1.1998) by S.I. 1997/3032, reg. 5(a) (with Pt. IV)
  3. F4Word in s. 3(1)(b) left out (1.1.1998) by virtue of S.I. 1997/3032, reg. 5(b) (with Pt. IV)
  4. F5Word and s. 3(1)(c) inserted (1.1.1993) by S.I. 1992/3233, reg. 3
  5. F6S. 3(1)(d) and word preceding it inserted (1.1.1998) by S.I. 1997/3032, reg. 5(c) (with Pt. IV)