Joshy Thomas
Joshy specialises in intellectual property and media law and has a wide range of experience of IP litigation in all areas of IP. Joshy trained at Eversheds, qualifying in September 2000, where she worked for a number of high-profile brands. After six years at Eversheds she worked at Thomas Eggar, where she acted on a diverse range of contentious IP matters before moving to LexisNexis in 2011. Joshy’s expertise at LexisNexis included writing (and updating) core and unique IP and media content and case analysis primarily in the areas of copyright, databases, social media and the internet, digital trade, music, publishing, and film and TV. As a podcast enthusiast she has written, directed and presented podcasts on IP issues. In 2022 she moved to RPC to work as an IP and Tech Knowledge Lawyer.
Practice Area
Panel
- Contributing Author
Membership
- BLACA (The British Literary and Artistic Copyright Association)
- AIPPI (International Association for the Protection of Intellectual Property)
5 Contributions by Joshy Thomas
PRACTICE NOTES
UK copyright authorship and ownership under the Copyright, Designs and Patents Act 1988: joint/co-authorship, employment and commissioned works, presumptions, AI/computer-generated works, and Crown/Parliamentary copyright
The Copyright, Designs and Patents Act 1988 (CDPA 1988) states that the author of a work is the individual who brings it into being. The creator is not invariably the proprietor of a work, though, as a rule, they hold the initial copyright unless the work is produced in the course of employment (see below), when the employer takes it. Knowing who the author is matters across much of copyright law. For instance, the duration of protection typically runs by reference to the author’s lifetime; authors may assert moral rights; and protection might not subsist at all unless the author holds the requisite qualifying status. Identifying the owner of the copyright is also crucial; as a matter of prudence, title and ownership ought to be confirmed before acquiring or taking a licence of a work. Ownership is equally central in infringement disputes, because only the copyright proprietor (or an exclusive licensee) may bring proceedings against alleged infringers.
Authorship
Authorship in primary and secondary works
For works created on or after 1 August 1989, authorship is determined under the CDPA 1988...
IP
PRACTICE NOTES
UK copyright exceptions and litigation defences: fair dealing, permitted acts, linking, TDM/AI, and post‑Brexit assimilated law
Defending a claim of copyright infringement
In most copyright infringement cases, a defendant will first challenge the claimant’s position on copyright itself, contending either that no copyright exists in the work identified, or that any subsisting copyright is not owned by the claimant (and sometimes both). The next step is often to assert that, even assuming copyright does subsist, there has been no infringement. This may include arguing that the original work and the accused material lack sufficient similarity, or adducing evidence that the disputed work was created independently, i.e. that no copying occurred.
Finally, there are specific statutory carve-outs to infringement, predominantly set out in the Copyright, Designs and Patents Act 1988 (CDPA 1988). These are referred to as permitted acts. The range of permitted acts applying to copyright is extensive, with several also relevant to database right. Where other legal claims arise, such as breach of confidence, the permitted acts defence will not cover those causes of action. Permitted acts can be invoked in relation to criminal charges as well as in civil litigation...
IP
PRACTICE NOTES
UK copyright infringement: restricted acts, source and similarity, substantial part, communication to the public, exhaustion, software, adaptations and authorisation, with post‑Brexit assimilated EU law and key case law
The Copyright, Designs and Patents Act 1988 (CDPA 1988) grants the copyright holder in the UK the sole authority to undertake a variety of acts in relation to any copyright work. Where those specified acts in the CDPA 1988 are carried out by someone other than the owner, without consent, this may amount to an infringement of the owner’s exclusive rights.
Status of EU copyright law in the UK
As of 31 January 2020, the UK ceased to be a Member State of the EU. In line with the Withdrawal Agreement, an 11‑month transition or implementation period followed, ending on 31 December 2020 (IP completion day), during which EU law continued to apply across the UK. Thereafter, EU legislation made or brought into force after that date is not binding on the UK. For pre‑existing measures, the legal position immediately before IP completion day was maintained for legal continuity by taking a snapshot of the EU rules then applicable in the UK and, for the most part, incorporating them into the UK’s domestic legal framework as a distinct category of law known as retained EU law...
IP
PRACTICE NOTES
UK copyright protectable works: categorisation, originality/identifiability and fixation, artistic craftsmanship, design overlap and section 51, artist’s resale right, and post‑Brexit divergence from EU case law
Categorisation
Copyright grants the proprietor the exclusive ability to carry out, and to authorise others to carry out, particular acts in respect of qualifying works. The Copyright, Designs and Patents Act 1988 (CDPA 1988) formally sets out categories of protected works, bringing certainty about the types recognised. However, the boundaries between these groupings have since become less distinct, partly because of the digital revolution and the growing intricacy of creative production. This has created uncertainty as to whether the CDPA 1988 categories are exhaustive—so that anything outside them is not protected—or whether copyright may subsist in creations not expressly listed in the statute. Debate therefore persists about the scope of protection available to works that defy neat classification under the statutory scheme.
CDPA 1988, s 1(1) identifies the categories:
original literary, dramatic, musical or artistic works
sound recordings, films or broadcasts, and
typographical arrangements of published editions
These headings delineate what the legislation regards as eligible subject matter. Earlier UK authority determined that a work falling outside these headings would not attract protection. In Lucasfilm Ltd v Ainsworth, for example, copyright was refused for the helmet worn by ‘Stormtrooper’ characters in the Star Wars film franchise...
IP
PRACTICE NOTES
UK copyright: subsistence and qualification—protectable works, originality, fixation, ideas/expression, author, publication and broadcast criteria, and post-Brexit assimilated EU law with leading cases
What formalities are required for copyright protection?
Copyright recognises the value of an author’s intellectual creation whenever a creative work is brought into existence. The governing rules are primarily set out in the Copyright, Designs and Patents Act 1988 (CDPA 1988), which came into force on 1 August 1989, in particular.
For works made before 1 August 1989, the earlier Copyright Acts of 1911 or 1956 should be examined as the applicable legislation. Copyright is not a registered right; it subsists automatically once the work has been created and the qualifying circumstances have been satisfied.
As a result, the question of subsistence is often not analysed closely until the owner wishes to licence or assign the right, or to invoke it as a cause of action when commencing proceedings, eg for infringement.
For a creative work to be eligible for copyright protection, certain criteria must be fulfilled in respect of the work itself, and in respect of its author and its publication. Whether copyright subsists depends upon the nature of the work and the circumstances surrounding its creation. Copyright qualification refers to the author’s status and to the particular way in which the work is published...
IP
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