An Introduction to Copyright and How to Use It

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An Introduction to Copyright and How to Use It

The Asia/Pacifc Cultural Centre or UNESCO (ACCU) is a non-proft organisa-

tion or Asia and the Pacifc regional activities in line with the principles o

UNESCO, working or the promotion o mutual understanding and cultural

cooperation among peoples in the region. ACCU, since its inception in 1971,

has been implementing programmes on book development, the saeguard-ing o tangible and intangible cultural heritage and literacy education jointly

with Asian and Pacifc UNESCO Member States.

Cultural works realised through the mind, creativity and culture o people

living everywhere contribute to the enrichment o culture itsel. Copyright was

envisaged to provide a legal ramework to protect the rights o those who cre-

ate cultural works so that their urther creation is encouraged.

However, due to the rapid development o digital technologies andrampant piracy today, universal understanding o copyright is high on the list

o international political priorities.

This booklet,An Introduction to Copyright and How to Use It, was planned

by ACCU based on eedback gained rom readers and participants o copyright

seminars and workshops since the publication o the Asian Copyright Hand-

bookin 2004. It provides readers with the key aspects o copyright and how it

works in society. ACCU hopes that this will be shared by as many people as

possible and contribute to better understanding and utilisation o copyright

or both the creators and the users.

ACCU is grateul to Ms. Caroline Morgan, who has been supporting ACCU

in its copyright activities or the past our years, or her valuable contribution as

the author o this booklet.

Asia/Pacifc Cultural Centre or UNESCO


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An Introduction to Copyright and How to Use It

By Caroline MorganIllustrations by Hiromi

2009 by the Asia/Pacifc Cultural Centre or UNESCO

Publication Date: 1 March 2009

ISBN 978-4-946438-83-7

Published by the Asia/Pacifc Cultural Centre or UNESCO

Tokyo, Japan

Edited, produced, and book design by Japan Echo Inc.

Printed and bound in Japan (1,000 copies)


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CONTENTS

1 About Intellectual Property ____________________ 5

2 The Copyright Balance ________________________ 8

3 How Does the Copyright System Work? _________ 10

4 Works Protected by Copyright ________________ 12

5 The Rights o the Copyright Owner _____________ 20

6 Ownership o Copyright _____________________ 24

7 Scope o Copyright Protection ________________ 28

8 Exceptions to Copyright Rights ________________ 31

9 Examples o Common Exceptions to Copyright ___ 34

10 Use o Copyright Works ______________________ 37

11 Inringements o Copyright ___________________ 39

12 The International Copyright Framework _________ 41

13 Copyright and the Digital World _______________ 44

14 Open Access Movements ____________________ 46

15 Conclusion ________________________________ 47


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5

Our society protects a number o dierent kinds o property rights. The

ones you would be most amiliar with are real propertythe owner-

ship rights over land and personal propertyand the ownership o

items such as cars, handbags or watches. A property owner controls

the uses o their property. For example, the owner o a car can decide

who is allowed to drive it and where.

Intellectual property gives rise to another kind o property owner-

ship. It provides property or ownership rights over creative works.

There are a number o dierent kinds o intellectual property, depend-

ing on the sort o rights being protected. Some common examples

include:

Trademarks: To protect logos and other symbols that identiy a

particular product or business.

Patents: To protect inventions, such as medicines.

1About IntellectualProperty


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Trademarks

Industrial designs

Copyrights

Patents

Geographical indications

Intellectual property


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The subject o this booklet is copyright. Copyright is a orm o

intellectual property giving creators o original works ownership rights

over the products o their creativity. By encouraging and ostering cul-

tural and scientifc activity, it enriches society and serves the public

good. However, copyright is limited in particular ways so that others in

society can access works and beneft rom them.

Copyright has two important dimensions. The frst o these is eco-

nomic. Copyright provides creators or authors o works with a set o

exclusive rights over the works that they create. These rights enable

copyright owners to control the use o their works and to negotiate

payment or their use. The economic beneft encourages them to cre-

ate more works, and this benefts society as a whole.

The other important dimension o copyright is its protection o

moral rightsthe rights o the author. These rights are very dierent

rom the economic rights o copyright but are equally important. They

promote the status o the author in our society and increase our re-

spect and appreciation or cultural works by giving rights to the author

to be attributed or to object to the derogatory treatment o their

work.


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Because o its importance to culture and society, copyright is recog-

nised as a human right in the Universal Declaration o Human Rights.

Copyright protects cultural works, the creative expression o thoughts

and eelings. These works are in a variety o ormsart works, music,

novels and poetry. They are the expression o a cultureits heritage,

which is built on by each generation adding their own perspective to

the existing culture, and this enriches the lives o generations to come.

In our increasingly globalised world, individual cultural expres-

sion allows people rom other cultures to experience and learn about

the thoughts and eelings o other people.

This means that our society has an interest in promoting access to

copyright worksto enable new generations o artists, authors and

musicians to experience the thoughts and emotions o others and to

be inspired to create new works that in turn will enrich our society.

Access to copyright works may encourage us to create new works,

thereby enriching our culture, or we may learn rom those works, thus

increasing our skills and education levels. The works may also entertain

us and provide enjoyment.

This access, o course, must be on terms that do not prejudice the

legitimate interests o the copyright owner.

2The CopyrightBalance


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Achieving the right balance between protecting the rights o cre-

ators over their works and the access to those works by others is one o

the key objectives o copyright law. Through the careul balancing o

these sometimes competing interests and through the copyright sys-

tem, our society, and culture as a whole, is enriched.

It is or this reason that creators, copyright owners and users and

governments need to understand the key aspects o the copyright

system, including its strengths and limitations.

Copy

rig

ht

Copyrigh

t

Copyright

copy

copy

copy

copy

Striking a balance between protecting the rights o creators overtheir works and enabling access to those works by others


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At frst individual countries developed their own dierent copyright

laws. However, concerns developed about the interaction o the sepa-

rate national copyright systems, because the dierences aected the

trade in copyright goods between countries.

An example o this issue occurred in the United States. When it

was developing its copyright system it decided to protect only the

rights o American citizens. This was because it was elt that only the

creativity o American citizens and American culture should be en-

couraged and protected. People asked, why should America protect

the copyright o citizens rom other countries?

The result was that the American market was ooded with low

cost copies o English works. These books could be sold more cheaply

than American works because the publisher did not have to negotiate

copyright contracts or the works or go to the expense o readying

them or publication. The outcome was that the US government (lob-

bied by US creators) was required to extend copyright protection to

works rom all countries. The objective was to ensure that the rules ap-

plying to all copyright works were the sameto create a level playing

feld.

To harmonise copyright protection amongst countries, an inter-

3How Does theCopyright System Work?


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national treaty about copyright protection, the Berne Convention, was

developed. The Berne Conventions objective is to protect every pro-

duction in the literary, scientifc and artistic domain.

The way it works is that any country that implements the Berne

standard o copyright protection in its national legislation is eligible to

become a member o the convention.

By becoming a member you agree to give copyright owners rom

other Berne member countries the same protection you give to your

own copyright owners. This is called national treatment and it means

that wherever you go in the world, copyright protection is broadly the

same, with some adjustments or national circumstances. In 2008 there

were 168 signatory countries to the Berne Convention, the vast major-

ity o countries in the world.


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There are a number o rules defning which works are eligible or copy-

right protection.

Firstly, the work must be fxed in material ormthis means

that the work must be permanent and perceptible. When computers

were frst invented there was some debate about whether works

stored in computer memory were in a material orm as they could not

be seen or heard without the computer being used. This question was

eventually settled and material orm is now understood to mean any

orm o storage rom which the work can be reproduced.

4Works Protected byCopyright

CD

HDD

Fixedinmateri

alform


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Another requirement or protection is that the work must be cre-

ated by a human author who is a citizen o one o the countries that

is a signatory to the Berne Convention.

Humanauthor


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The works created must be original. This does not mean that

they must be unique or valuable. What it means is that the work must

be the product o the skill and labour o the creator and not copied

rom another work.

These are not particularly high standards, and copyright protec-

tion does not depend on any aesthetic requirement or value judge-

ment. Rather it depends on the skill and eort that goes into the cre-

ation o a work. This means that a simple sketch or plan or a house can

be protected as can a private letter or e-mail.

Original


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Another requirement is that copyright protects expressions o

ideas, not the ideas themselves. What does this mean? Think about a

love storya couple meet, they all in love, they are separated, then

reunited and live happily ever ater. This storyline is an idea and its ex-

pressions would be in any number o books, movies, poemseach o

which is protected by copyright. Copyright protects the expression,

but it does not protect the ideas.

CopyrightNovel Film Music Dance

Expressionso

fideas


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Some common examples o copyright works are:

What links each o the examples in the table above is that these

works are:

Fixed in material orm

Created by a human author

Original

The expression o an idea.

In addition, the Berne Convention gives governments the scope

to make special rules or certain categories o material, as ollows.

Literary works Novels, poems, scientifc articles, flm scripts

Choreographic works For ballet or dance

Artistic worksPaintings, drawings, sculpture, cartoons, maps,

designs, photographs

Musical works Musical pieces with or without words

Cinematographic works Films, television shows, video games

Category of Work Examples


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(a) Translations

Translations, adaptations and arrangements o works will be protected

as original works. This means that i you translate a work that is in or out

o copyright you will have a copyright in your translation. You can con-

trol the use to which your translation is put but you cannot stop an-

other person rom translating the original work into their own words

into the same or a dierent language.

I the original work that you want to translate is in copyright you

will need to obtain the permission o the copyright owner in the origi-

nal work or the translation to be made. This is because translation is a

copyright right.

(b) Collections of Works

Collections o works, such as encyclopaedias, can also be protected by

copyright. This copyright is independent o the copyright in the indi-

vidual works or inormation making up the compilation. In order to be

protected, however, the selection and arrangement o the works have

to be su ciently original to create a copyright in the collection itsel.

The threshold o originality required or this protection varies

amongst countries. For example, in Australia the telephone book and

television listings are considered to be su ciently original to attract

copyright protection, but in some other countries this is not the case.

(c) Legislation and Other Government Publications

Governments can also decide whether to provide copyright protec-


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tion or certain categories o works. These include legislation and o -

cial texts o an administrative nature. The approach taken depends on

the philosophy o the government concerned. For example, in the

United States all government publications are copyright-ree. How-

ever, the Australian government has retained copyrights in its publica-

tions and licences these copyrights to publishers.

Each o these decisions is motivated by a desire to make access to

government publications as easy as possible. In the United States it is

elt that removing copyright protection means that participants in the

ree-market economy will take up the opportunity to republish the

works, which will then allow them to become more widely available.

In Australia the government licences the copyright and controls

the production o government materials. This ensures that the access

is to the correct and authorised version o legislation or legal cases.

Governments can also choose the extent to which political

speeches, lectures and addresses can be reproduced by the press or

inormational purposes.

(d) Neighbouring Rights

There is a specifc type o copyright protection given to those involved

in the production or transmission o works. The thinking is that these

activities add value to the copyright works and should be protected

independently. These works are called neighbouring rights.

The most common examples o neighbouring rights are:

Record companies copyright in their sound recordings

Broadcasters copyright in their broadcasts, and


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Perormers copyright in their perormance.

Neighbouring rights are akin to copyright in that they grant ex-

clusive economic interests to those who have been involved in the

production o copyright works.

However, neighbouring rights are oten distinguished rom copy-

right in original works in various waysusually they apply in more

limited circumstances or they have a more limited set o rights.

It is important to remember that neighbouring rights exist inde-

pendently o the copyright in the copyright work being transmitted or

produced. This means that separate copyrights can exist in a single

itemor example, in a CD o musical works there might be a copy-

right in the original composition, a copyright in the perormance and

a copyright in the sound recording itseleach owned by a dierent

copyright owner.

RECORDING

Recording

Composition

Performance

Separate copyrights can exist in a single item


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Copyright is oten reerred to as a bundle o rights. What this means is

that copyright is a set o rights to manage and control particular uses

o works. I the use o the work is not one that is specifed as a copy-

right use, the copyright owner does not control that particular use o

their works.

Although there is a core set o copyright rights (as set out in the

Berne Convention), these rights can be described dierently in dier-

ent countries.

Sometimes the rights dier between countries, as some coun-

tries might give copyright owners greater rights than the minimum

specifed in the Berne Convention. For example, Japan has a display or

exhibition right or artistic works, but that right does not exist in Aus-

tralia.

This is also the situation with moral rights. In some countries,

mainly those with a European tradition, authors have very high stand-

ards o protection o their moral rights. In others, those with an English

or common law tradition, the rights can be much more limited, or non-

existent.

It is also important to note that sometimes not all copyright works

have the same rights attached to them; or example, in Australia liter-

5The Rights othe Copyright Owner


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ary works have a dierent set o rights rom artistic works. This is be-

cause dierent copyright works are used in dierent ways. For example,

a right o display or exhibition is more important to owners o artistic

works than it is to owners o literary works.

(a) Economic Rights

Listed below are some examples o typical copyright rights and how

they are used:

Reproduction

To copy or reproduce. It can be

in a dierent orm, including

sound or visual recording.

Photocopying,

photography,

printing, recording.

Perormance

To publicly perorm. It includes

individual perormances as

well as playing CDs in public or

using speakers to broadcast.

Playing CDs in a

shop, perorming a

play in a theatre.

Communication

to the public

Broadcasting by wire or

wireless, including one-to-

one communication on the

Internet.

Radio, television,

Internet use, e-mail.

Publication or

distribution

Make the work available to the

public or the frst time.Publishing a book.

Adaptation or

translation

Making a translation or

dramatised version o a literary

work.

Screenplay o a

book, translation o

an English work into

another language.

Right Explanation Examples


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In addition to the most common rights mentioned above, other

rights exist in some countries or or specifc categories o copyright

material. Some examples are:

The right o display or exhibition that can apply to artistic works

The right o rental that usually only applies to flms or CDs

The Berne Convention requires a minimum term o protection o

copyright o the lie o the author plus 50 years. However, increasingly

the duration o copyright is being extended to the lie o the author

plus 70 years, particularly in Europe and in the United States.

Just as with other orms o property, copyright can be let to your

heirs as part o your estate ater death. In most legal systems the same

rules apply to intellectual property, including copyright, as to other

types o property.

(b) Moral Rights

Moral rights protect the honour and reputation o creators. The ration-

ale or moral rights is that creative works are an emanation or exten-

sion o the creators personality and that what is done with their

copyright works may aect their standing and reputation.

Moral rights provide an ongoing connection between the indi-

vidual creator and their audience. They ensure cultural and educational

best practice by requiring correct attribution and aithul reproduction

o works.

There are three basic types o moral rights:


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An authors right to be attributed as the creator o a work (in-

cluding the right not to be alsely attributed as the author o a

work);

An authors right to object to derogatory treatment o their work

which prejudicially aects his or her honour or reputation (the

right o integrity o authorship o a work); and

The right o disclosurethe right to determine i and when ma-

terial is made public.

The Berne Convention only mentions the rights o attribution and

integrity o the author o a work (the frst two points above) and not

the right o disclosure. This means that in some countries, such as Aus-

tralia, creators only have the frst two o these moral rights. In other

countries, such as Japan, creators have all three moral rights.

Moral rights generally last or the same period as copyright in a

work but not always, as in some countries they only last or the lie o

the author. In countries in which they have the same term o protec-

tion as economic rights, heirs control the moral rights ater the authors

death.

Dierent countries have dierent rules about the extent to which

a positive act by the author is required or the rights to come into e-

ect. In some countries, such as the UK and New Zealand, authors must

assert their moral rights i they want to beneft rom them. In other

countries, such as Australia, the entitlement is automatic. In some

countries, moral rights can be waived by written agreement by the

author.


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One o the most important things to note about copyright is that it is

a set o rights given to the creator or author o a work. We have already

discussed the dierent categories o copyright works and the dierent

rights given to copyright owners.

We need now to consider the rules that apply to ownership

who is the copyright owner and thereore entitled to control the uses

being made o the work.

6Ownership oCopyright

reproduce

translate

Owner of the bookAuthor

Ownership o copyright and ownership

o physical item are diferent


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The frst and most important thing to note is that ownership o

copyright exists independently o the ownership o the physical item

containing the work. I, or example, an artist creates a painting and

then sells it, the copyright in the painting does not automatically pass

to the new owner o the painting; it stays with the artist. Similarly when

you buy a book, you are merely buying a copy o the work, not the

rights to translate or reproduce the work contained in the book.

The general rule is that the frst owner o copyright is the creator,

the author or artist whose creative ideas are expressed in the work.

Someone who acts as a simple scribe, taking down dictation, does not

qualiy as an author.

I there is a single author this is reasonably straightorward. How-

ever, i there is more than one author the rules that apply to joint au-

thors need to be applied.

A work ojoint authorship means that two or more authors have

collaborated in such a way that their contributions are not separate.

The test is whether each author has made a distinct contribution.

I two authors work together, and each writes separate chapters o a

book, they are not joint authors, because their contributions are dis-

tinct. This contrasts with the situation where each author contributes

to the same workin which case they are joint authors.

In the case o joint authors no one author can exercise copyright

rights without the consent o the other.

There are also several important exceptions to the general rule

about copyright ownership.


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(c) Government Works

In some countries there are dierent rules i you are employed or com-

missioned by the government to write or create a work.

For example, in Australia, where a work is created under the

direction or control o the government, the government retains the

copyright in the work. This is beyond the general provision relating to

employment, which was reerred to earlier, and covers works created

by third parties who are consultants or contractors, not employees.


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The monopoly that the Berne Convention grants copyright owners

over the use o their works is limited in a number o ways. Limitations

on copyright rights balance the public interest in promoting copyright

protection against a number o other public interests. This is impor-

tantit means that you do not need the copyright owners permis-

sion to use copyright works in ways that are not protected by copy-

right.

Key limitations on the scope o copyright owners rights include

the ollowing:

(a) Expression of Ideas

Copyright only protects the expression o ideas, not the underlying

ideas themselves. A requirement or copyright protection is that the

work be fxed in material orm. This is to encourage the reuse, criticism

or discussion o the ideas contained in copyright works.

Consequently, reading a copyright work and using the ideas it

contains is not an act restricted or limited by copyright.

7Scope o CopyrightProtection


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(b) Certain Rights

Copyright owners are only entitled to control some uses o their works.

That is, the copyright owner is given the right to exploit somenot

alluses o their work. These rights vary rom country to country and

are oten described dierently in dierent countries.

Uses o copyright material that are not specifed to be copyright

rights are not controlled by copyright owners. An example would be

that copyright owners o books and journals do not generally control

the rental or lending o their works, and consequently libraries can

lend books or reading purposes.

(c) Certain Works

The Berne Convention also allows national governments to decide

whether or not to provide copyright protection or a number o cate-

gories o works.

These include o cial texts o a legislative, administrative and le-

gal nature and o cial translations o texts.

Works that governments are not required to provide copyright

protection or also include political or legal speeches and lectures and

addresses that are delivered in public.

(d) Term of Protection

Copyright protection is limited in time. The Berne Convention requires

protection o economic rights or the lie o the author plus 50 years,

although some countries have longer terms. Once the copyright term


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expires the copyright material becomes part o the public domain and

available to all to use without needing to seek the authors permission

or to rely on an exception.

(e) Substantial Part

In order or a copyright inringement to occur the proportion o the

work used must be substantial. Whether a proportion o a work is

substantial or not depends on a number o actors, such as the signif-

cance o the part used and the circumstances o the use. This means

that it is not possible to provide a general guideline as to the size or

amount that would be appropriate to be used without requiring the

permission o the copyright owner in all circumstances.

I none o the above limitations apply, there are some permitted

exceptions to the copyright owners rights in specifc circumstances.


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Copyright exceptions allow copyright material to be used or certain

purposes without the permission o the copyright owner i the use o

that material meets particular public policy objectives.

Exceptions to copyright recognise that in certain circumstances

the value o the community having access to copyright material out-

weighs the public interest in protecting the interests o the individual

copyright owner.

These exceptions to copyright apply in dierent circumstances

depending on the national context in the country concerned. How-

ever, exceptions to copyright contained in national laws are required

to be consistent with the standards o protection set down in the

Berne Convention.

The Berne Convention also provides the test against which any

proposed exceptions to copyright owners rights are to be assessed.

This test is contained in Article 9 (2) o the Berne Convention, which

reads:

It shall be a matter or legislation in the countries o the union to per-

mit the reproduction o such works in certain special cases, provided

that such reproduction does not conict with the normal exploitation

8Exceptions to CopyrightRights


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o the work and does not unreasonably prejudice the legitimate inter-

ests o the author.

This test, which has become known as the three step test, was

extended to apply to all uses o copyright material (rather than only to

the reproduction right) by the TRIPS Agreement1 and its application to

works in digital orm was confrmed by the WIPO Copyright Treaty2.

The three step test provides that exceptions to copyright can be

justifed in national law i they:

Apply only in certain special cases: This implies that the excep-

tions to copyright must be clearly defned;

Do not conict with the normal exploitation o the work: The

uses permitted by the exceptions to copyright must not eco-

nomically compete with the authors interests; and

Do not unreasonably prejudice the legitimate interests o the

author: The legitimate interests o the author include both moral

and economic rights. It may be that i the exception to copyright

provides or a payment to the copyright owner, then permitting

a use in legislation will not unreasonably prejudice the interests

o the copyright owner.

Governments use the three step test in deciding how to rame

the exceptions that they will adopt in their national copyright laws.

Even though many o these are specifc to individual national circum-

1 Agreement on Trade-Related Aspects o Intellectual Property Rights, 1994.2 WIPO Copyright Treaty, 1996.


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stances, there are a number o exceptions to copyright that appear in

the copyright law o most countries.


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There are several exceptions to copyright that in many countries are

considered to be consistent with the three step test. However, it is im-

portant to note that these are limited exceptions, not broad use rights.

The scope o these exceptions must be construed narrowly so as to

comply with the three step test.

It is also important to note that many o the commonly accepted

exceptions were developed in the time beore the digital use o copy-

right works. As such they may not be appropriate or the digital envi-

ronment. In act one o the questions many national governments are

struggling with is how to best shape their copyright laws to take ac-

count o the digital environment.

Here are some examples o common exceptions to copyright:

9Examples o CommonExceptions toCopyright


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Use by

disabled

readers

Provides access to

works by the visually

impaired, as the

works may not be

in the ormat they

require.

Digital networks provide great

opportunities or the visually

impaired, but care must be taken

to ensure that copies made or

this purpose do not enter the

general market or copyright

goods.

Fair dealing

or research

and study

Use by students or a

course o study they

are undertaking.

The airness requirement

means that the scope o these

exceptions cannot involve

copying the whole o the book.

News

reporting

Only as much as is

required to report the

news.

This is an important exception,

but the scope o the term news

is subject to debateit generally

means the news o the day.

Criticism and

review

For the purposes

o reviewing or

analysing another

work.

Requires acknowledgment o

the original source. The amount

used cannot be so much as to

substitute or the original.

Legalproceedings

For individuals to

inorm themselves o

the law when theyare involved in legal

matters.

Again, the scope is limited, and

does not include all copying bylawyers, or example.

Copying by

libraries

To assist patrons

exercising air dealing

exceptions and or

preservation and

archiving purposes.

The scope is limited to the

equivalent o air dealing

uses, and does not extend to

commercial document supply,

or libraries in commercial

undertakings.

Exception Explanation Comment


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A common eature o each o these exceptions is that the uses o

copyright permitted by them are limited. Such limited uses are consid-

ered not to prejudice the interests o the copyright owner and conse-

quently to be consistent with the three step test.

A variation on the exception system o speciying particular uses

that can be made o copyright works without inringement is the air

use system developed in the United States.

In the air use system, instead o a list like the one above, a general

provision enabling the air use o copyright material is included in the

Copyright Act. It is then let to the courts to decide i a particular use o

a copyright work is air in the particular circumstances. In order to do

this the courts use a test similar to the three step test.

The key beneft o the air use system is considered to be its exi-

bilityas it can apply to new uses o copyright works without requir-

ing a change to legislation. However, it also means that there is uncer-

tainty whether a particular use is air unless it has been litigated.

The key beneft o the air dealing system is its certainty. Because

the exceptions are specifed in law the users o copyright material

know what uses will be considered air.

In either system the uses that are considered to be air and there-

ore permissible are very similar.


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As discussed earlier, copyright is a property right, and similar protec-

tions or copyright owners exist as exist or the owners o other prop-

erty rights, such as property in land and physical items.

This means that it is an oence, sometimes a criminal oence, to

use a copyright work in any o the ways protected by copyright unless

you have either:

The copyright owners permission or

The use is permitted by an exception to copyright, or a statutory

licence.

However, i the use being made o a work is not a copyright use

or the copyright has expired, the work can be used reely. Thereore it

is important to be aware o the scope o copyright protection and its

limits.

There are a number o steps to consider in deciding whether the

use o a copyright work is permitted. The frst step is to consider i the

use is a copyright use at all. An example would be i the copyright in

the work has expired, then the work is no longer protected by copy-

right. It is in the public domain.

10Use o CopyrightWorks


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38

I, however, the work is a copyright work and has copyright pro-

tection, the next step is to identiy whether the use is permitted by an

exception to copyright or by a statutory or compulsory licence. I the

use is not permitted by an exception or statutory licence the next step

is to obtain the copyright owners consent.

This series o steps can be illustrated as ollows:

Is it the type o material

protected by copyright?

Yes

Has the copyright expired?

No

Is the use a copyright use?

Yes

Is the use covered by an

exception or statutory licence?

The consent o the

copyright owner is not

needed or its use.

The consent o the

copyright owner is

needed or its use.

No

No

Yes

No

Yes


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39

I you use someone elses copyright work without permission and an

exception does not apply to its use, then you will have inringed an-

other persons copyright.

Inringement o copyright can be a civil inringement or a crimi-

nal inringement. The distinction is drawn as a result o the seriousness

o the illegal use o the copyright work that has occurred.

I it is o a more minor naturesay a small number o copies

made or personal useit is usually defned as a civil inringement.

I the oending use o another persons copyright work is on a

broader, perhaps commercial scale, then it is usually considered a

criminal oence. One reason or this distinction is the eect that the

dierent inringements will have on the copyright owners legitimate

interests in their work. I one or two oending copies are made the e-

ect on the authors market will be small, and the loss they will have

suered will be small. I many copies o a work are made and sold, the

detrimental impact on the copyright owners market will be greater.

Naturally, where a criminal inringement is proved, the punish-

ment will be greater than or a civil inringement.

Many countries have established specialist courts or tribunals to

hear inringement cases. They have expertise in copyright, to assess i

11Inringements oCopyright


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41

In this review o copyright we have reerred to the Berne Convention,

which is the main treaty governing copyright works, although not the

only one. Major treaties include:

(a) The Berne Convention

http://www.wipo.int/treaties/en/ip/berne

The minimum standards o copyright protection are set out in the

Berne Convention or the Protection o Literary and Artistic Works,

which was developed in 1886. The Berne Convention provides stand-

ards or the term o protection o copyright and guidelines on excep-

tions to copyright owners exclusive rights in a work.

The standards or protection o rights contained in the Berne

Convention are incorporated into later treaties, such as the 1994 World

Trade Organisations Trade-Related Aspects o Intellectual Property

Rights Agreement (TRIPS) and the World Intellectual Property Organi-

sations Copyright and Perormers and Phonograms Treaties o 1996.

The 1996 treaties were drated to take into account recent digital de-

velopments and their eects on copyright interests.

12The InternationalCopyrightFramework


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42

(b) The Rome Convention

http://www.wipo.int/treaties/en/ip/rome

The ull name o the Rome Convention is the International Convention

or the Protection o Perormers, Producers o Phonograms and Broad-

casting Organisations. The convention sets out the system o protec-

tion or the holders o neighbouring rights.

(c) The TRIPS Agreement

http://www.wto.org/english/tratop_e/trips_e/trips_e.htm

This agreement regarding Trade-Related Aspects o Intellectual Prop-

erty Rights (TRIPS) ties copyright protection into the wider economic

environment. TRIPS was developed to tackle problems o inconsistent

intellectual property rights between dierent countries. This has be-

come increasingly important as the value o the trade in intellectual

property goods has risen. Thereore, TRIPS contains minimum agreed

standards o protection or the various intellectual property rights,

such as copyright, trademarks and patents, that member nations have

to aord other World Trade Organisation members. It also sets a rame-

work or the resolution o trade disputes in relation to the TRIPS Agree-

ment.

(d) WIPO Copyright Treaty / WIPO Performers and Phonograms Treaty

http://www.wipo.int/treaties/en/ip/wct

http://www.wipo.int/treaties/en/ip/wppt

The purpose o these treaties, which are known as the WIPO Internet


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Treaties, is to strengthen and supplement the Berne and Rome Con-

ventions standards o protection in response to the new challenges o

the digital environment. They were introduced in 1996. They clarifed

that the reproduction right covered digital as well as analogue copy-

ing o works and introduced the new right o communication, which

was discussed earlier in this booklet.

A key eature o these two treaties is their protection o digital

rights management tools and electronic rights management inorma-

tion.

(e) The Universal Copyright Convention

http://portal.unesco.org/culture/en/ev.php-URL_ID=1814&URL_DO=DO_TOPIC&URL_SECTION=201.html

The Universal Copyright Convention was developed by UNESCO as an

alternative to the Berne Convention or countries that elt they were

unable to comply with all aspects o the Berne Convention but still

wanted to participate in a multilateral copyright system. The key dier-

ence between the two treaties is that the Berne Convention does not

require any ormalities or copyright protection.

It is through these conventions that the various national governments

around the world have worked together to build the international sys-

tem o copyright protection.


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The digital environment poses many challenges or copyright owners

and disrupts the equilibrium between copyright owners and users.

This disruption occurs in a number o ways:

Ease o copying and reproduction is greatly enhanced by digital

technology;

The copies made more easily are the same quality as the original;

and

The potential scale and organisation o the re-use o material is

acilitated by the Internet and the networked environment.

Digital technology means people can now distribute copyright

content easily and cheaply when they have no right to do so. Further,

that content, because o the quality o the reproduction, competes

directly with legitimate content.

This lack o security in the digital environment diminishes copy-

right owners confdence in providing materials and indeed the incen-

tive to create them in the frst place. Lack o incentive to create means

a reduction in the quantity o new material available to the whole

community, which is contrary to the public interest.

13Copyright and theDigital World


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The question here is, does the increased ease with which copy-

right works can be accessed and copied through digital networks

change the existing balance between the rights o creators and own-

ers on the one hand and users or consumers o copyright material on

the other? I so, does the copyright system also need to change?


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There are also a number o initiatives in which copyright owners either

choose not to assert their copyright at all or waive their copyright or

certain purposes or uses. The motivating idea is the view that the cur-

rent balance between ownership and access in copyright needs to

shit towards greater access to copyright works.

Creative Commons is an example o one such initiative. Creative

Commons works by developing a set o easily identifed licences to

use content. The copyright owners then attach this licence to their

works indicating the circumstances in which a copyright work can be

used without requiring payment.

The most important thing to note about these systems is that the

copyright owner is still making decisions about the extent to which a

particular work can be used or ree or under which circumstances use

can take place. This is why these systems are oten considered to be

variations on copyright licencing, except on standard terms and condi-

tions.

14Open Access Move-ments


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Copyright is a key tool through which our society balances the public

interest in protecting and promoting the interests o creators and in-

vestors in cultural works with the public interest in access to those

creative works. Understanding the key aspects o the copyright system

and how they work together to achieve that balance is important to

creators, copyright owners and users and governments.

15Conclusion


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Caroline Morgan

Ms. Morgan is company secretary and general manager o the Cor-

porate Services Division, Copyright Agency Limited (CAL), in Aus-

tralia. She plays an active part in developing CALs submissions to

government on various copyright-related proposals and also rep-

resents CAL at various government enquiries. She is a well-known

local and international speaker on copyright and is involved with

the World Intellectual Property Organisation and the International

Federation o Reproduction Rights Organisation. She has a BA and

LLB rom Sydney University and an MBA rom the Australian Gradu-

ate School o Management.

This booklet is also available at ACCUs book development website (http://www.accu.or.jp/appreb/),which also includes theAsian Copyright Handbook (2004) and its local language versions.

About the author


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An Introduction to Copyright and How to Use It

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