Notes

Overview

• What is Copyright?
• Why is it granted? ("Rationale")
• Who does grant it? ("Source of Law")
• What is protected ("Subject Matter")
• What is really protected? (Idea/expression dichotomy)
• When is a work protected? (Requirements)
• Who is it granted to? ("Beneficiaries")
• What right does it encompass? ("Economic Rights")
• Does copyright prevent all use by third parties ("Fair Use and Exceptions")?
• What other rights does it encompass? ("Moral Rights")
• How long is the term of protection? ("Duration")

Before getting into the rules of copyright, ask yourself:

• What do we really mean when we say: this book is copyrighted?
• If we mean protection, protection from what?

What is Copyright? "Bunch of rights" granted to the "author" of an "original" "work" for a "period of time" starting from "creation" in order to "avoid free-riding".

Why is copyright granted? - Copyright Traditional Rationale(s)

• In Civil Law because the work is expression of author's personality ("Natural rights")
• In Common Law in order to increase progress and culture ("Incentives").

Who does grant copyright? - Legislative Sources

• National Copyright Laws

• International Conventions

  • In 1886: Berne Convention (last revised in 1971) was signed and agreement was reached on. (Probably most important international treaty that we have)
  • In 1994: TRIPs. (Adopted to annex developing countries to the Berne Convention).
  • In 1996: WIPO Treaties were signed to extend copyright protection to the web. (Made to address the challenges posed by the Internet, extending the rules of the analog world to the digital world).

• Regional Directives

  • European Directives.

As a matter of fact, copyright is not universal though works covered by copyright are intangibles and ubiquitous. That meant that historically there were states granting protection to their nationals for certain works but as soon as those works were abroad or the nationals created abroad, protection was not granted anymore. Similarly, if you weren't nationals of a country, your creations weren't protected in that country. Bilateral agreements were than signed in order to grant protection on reciprocity bases: state A was granting protection to works of state B's nationals as long as (and to the extent that) state A's nationals' works were protected in state B: Principle of Material Reciprocity.

International Set of Minimum Rights are the set of rules aimed at ensuring a minimum level of protection worldwide.

What can be protected under copyright law? - Subject Matters or Protected Works

• Traditional categories of subject matter (Berne Convention art.2): "literary and artistic works".

  • Literary works
  • Dramatic or dramatic-musical works
  • Musical works
  • Cinematographic works.
  • Works of drawing, painting, architecture, sculpture, engraving and lithography.
  • Photographic works
  • Works of applied arts.
  • Derivative works and translations.

• New categories of subject matter: (TRIPs Art. 10)

  • "Computer Programs".
  • "Databases".

What is really protected?

• Idea/Expression Dichotomy
• Under TRIPs, art 9(2): "Copyright protection shall extend to expressions and not to ideas, procedures, methods or mathematical concept as such".

What does this mean? Think about a literary work, it involves disposition of words Artistic work involves disposition of lines, colours, shapes. Musical works involve disposition of sounds. Dramatic works involve disposition of words and scenes (scenic presentation). Now, all these dispositions aim at communicating an idea. The idea itself is not protected whereas the disposition that expresses the underlying idea is protected.

When does a work get copyright protection? - Criteria for Protection or Requirements

• A work must be Original.
• Creativity
  • Different originality thresholds in different countries.
  • In EU: no legal provision until the software directive in 1991.
  • Judicial harmonization in EU and across countries.
• Novelty

Sweat of the Brow in Common Law countries. While in Civil Law Countries, the creation has to express the personality of the author. (example of the alphabetical order).

For all subject matters in all European countries, the thresholds of originality there must be a certain degree of intellectual contribution from the author.

"Intellectual contribution" is a matter of creative choices, if the author has made some choices.

Who is the beneficiary of Copyright?

• The Author:
  • In Civil Law it's a natural person.
  • In Common Law it's natural and legal entities.

Joint authorship - Problems:

• How is the term of protection to be calculated?
• Is both authors' permission necessary to exploit it?
• Are the authors' contributions separable?
• What if A feels his reputation injured and B does not?
• What if a new work results from A's elaboration/
• interpolation of B's work?
• What if A's work is the result of B's material activity?
• What if A develops B's activity?
• Who are the authors of films?

Dividing line of authorship: originality of both contributions. Collective work (newspapers): author is the co-ordinator. Joint work (comics): co-authorship. Manipulation/interpolation: when the result is original, protection is granted but first author's consent is necessary to economic exploitation.

Economic Rights The entity who is authorized to enforce the rights is called the "Rightsholder", which initially is the author, but these rights can be sold. In EU:

• Right of Reproduction, is very broad
  • Literal Reproduction
    • From a medium to the same medium.
    • From one medium to another medium.
  • Non-Literal Reproduction (e.g., you cannot made a movie out of a book of which you don't possess the rights.
  • Reproduction of a two-dimensional work into a three-dimensional work and vice versa (photo to statue).
  • Digital Reproduction, from one medium to another medium.
• Right of Distribution, it relates to tangible copies. (e.g., you make copies and then you enter the market with them).
• Right of Communication to the Public, it relates to intangible uses of the work. It encompasses the "making available right".
  • Infosoc Directive, "Member States shall provide authors with the exclusive right to authorize or prohibit any communication to the public of their works... including the making available to the public of their works in a such a way that members of the public may access them from a place and at a time individually chosen by them."
  • The Evolving concept of "Public"
    • From the communication of live performances to the "public" to the communication of a recorded work ("cinemas") to the "public".
    • To the communication of a broadcasting or of a radio program to the "public" to the right of making available to the public where "members of the public" may access these works from a place and at a time individually chosen by them.

In the US:

• Right of Reproduction
• Right to Perform

Fair Use and Exceptions

• 17 U.S. Code 107 -- Limitations on exclusive rights: "Fair Use".
• Article 5 Information Society Directive: "Exceptions and Limitations"
• Sections 29-30 UK CDPA 1988: "Fair Dealing Doctrine".

Fair Use "Notwithstanding the provisions of sections 106 ad 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

• The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• The Nature of the copyrighted work;
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
• The Effect of the Use upon the potential market for or value of the copyrighted work".

Exceptions and Limitations in EU (Directive 29/2001 current version) Compulsory exception (Article 5(1)):

• Temporary acts of reproduction referred to in Article 2, which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable:
  • A transmission in a network between third parties by an intermediary, or
  • A lawful use of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided in Article 2.

Optional Exceptions (Article 5(2))

• Exception to Reproduction Right
  • Photocopy.
  • Private Copy.
  • Libraries.
  • Ephemeral broadcasting.
  • Broadcasting by public institutes.
• Exception to Reproduction & Communication Right
  • Teaching/Research.
  • Disables.
  • News Reporting.
  • Quotation/Critic.
  • Security/Administration.
  • Speech/lectures.
  • Religious Celebrations.
  • Freedom of Panorama.
  • Incidental Inclusion.
  • Advertising.
  • Parody.
  • Demonstration of Equipment.
  • Building/Drawing.
  • Dedicated Terminals.
  • Others (Cases of minor importance where exceptions or limitations already exist under national law-analogue uses).

Main Moral Rights

• Purposes:
  • Protection of Author's personality
  • Protection of Author's work
• Strong moral rights in civil law countries v. weak moral rights in common law countries (where protection was traditionally granted under contract, defamation, torts).
• Very little harmonization.

Moral rights: The first two rights are those imposed as "Minimum Standard" by the Berne Convention.

• Right of Paternity (Attribution - Identification)

  • Right to have the name on the work or to have the work published anonymously or pseudonymously.
  • Right to impede false attribution of the work.
  • Very important when all economic rights have been assigned.

• Right of Integrity

  • Right to impede an exploitation of the work derogatory to the author's artistic reputation and honour. (e.g. Snow v Eaton Center (ribbons on "flying geese", Canada)).
  • Right to prevent the destruction of the work? In this regard, there is a clash between the right of property and moral rights.
    • Countries specifically including this right under moral rights (US for visual art works).
    • Countries having cases asserting that destruction affects the author's reputation. (France).
    • Countries having cases asserting that the absence of the work (deriving from the destruction) can not affect the author's reputation. (Germany and France).

• Right of Divulgation

• Right of Withdrawal (Retraction)

How long is the term of Protection?

• Extension of terms from the initial short terms to:
  • 50 year p.m.a. under Berne Convention
  • 1993 Term Directive in EU
    • 70 years p.m.a
    • 50 for related right
  • 1998 US Copyright Term Extension Act
    • 70 years p.m.a
    • 50 years for related rights
    • 95 years for "corporate authorship" works.
  • Directive 2011/77 amending the term directive
    • From 50 to 70 for some related rights (performers and phonogram producers).