Copyright Fundamentals Dr. Mira T. Sundara Rajan, DPhil (Oxon.) Honorary Member, Magdalen College, Oxford formerly the Canada Research Chair in IP Law.

Copyright Fundamentals

Dr. Mira T. Sundara Rajan, DPhil (Oxon.)Honorary Member, Magdalen College, Oxfordformerly the Canada Research Chair in IP Law

Email: [email protected]

Copyright Fundamentals

Section Outline

(1) Territoriality and Sources of Law (2) Automatic Protection (vs. Registration)(3)“Originality” (4)“Fixation” (Idea vs. Expression)(5) Disclosure (First Publication)(6)“Authorization” (7)“Reproduction” & Communication to the Public(8) Fair Use (“Limitations and Exceptions”)(9) Economic vs. Moral Rights

Territoriality & Sources of Law

domestic legislation - enforced through courts (and police and customs...)

international treaties - general principles respected by all members of treaties

enacted in domestic law - harmonized across jurisdictions

“enforcement”? => public and private international law

Berne Convention & TRIPs Agreement (WTO)

Copyright Statutes

copyright = “exclusively” statutory law

historical reasons - Millar v. Taylor (1769), Donaldson v. Beckett (1775)

BUT non-statutory residue - U.S. - tort, consumer protection, etc.

contrast with TM

Automatic Protection – Berne Convention

Berne Convention for the Protection of Literary and Artistic Works (1886,...1971, 1979)

Article 5 (2) The enjoyment and the exercise of these rights shall not be subject to any formality; ...

http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P109_16834

U.N. Declaration of Human Rights (G.A. Res. 217 A (III),10 Dec. 1948)

Article 27

(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/043/88/IMG/NR004388.pdf?OpenElement

U.S. Constitution, Article I, § 8, Clause 8 – Copyright Clause – “Limited Monopoly”

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;...

Copyright Term Extension Act (“Sonny Bono”)

Eldred v. Ashcroft, 537 U.S. 186 (2003).

Threshold Requirements for Copyright Protection

copyright subject-matter

threshold requirements:

originality

fixation – or, the “idea-expression dichotomy”

Categories of Protection –Copyright “Subject-Matter”

literary, dramatic, musical and artistic works (“LDMA”)

but these words have come to signify something very specialized - eg. computer programs

different approaches: closed and open list definitions...

Copyright Subject-Matter: Some

Examples

Berne Convention – Article 2

(1) The expression "literary and artistic works" shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

United States - s.102, U.S. Copyright Act

Subject matter of copyright: In general

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

literary works;

musical works, including any accompanying words;

dramatic works, including any accompanying music;

pantomimes and choreographic works;

pictorial, graphic, and sculptural works;

motion pictures and other audiovisual works;

sound recordings; and

architectural works.

UK Copyright, Designs & Patents Act 1988 – includes both closed and open definitions

 3.—(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) a table or compilation, and

 (b) a computer program;

"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.

...        4.—(1) In this Part "artistic work" means—

 (a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality,

 (b) a work of architecture being a building or a model for a building, or

 (c) a work of artistic craftsmanship.

Databases in the UK CDPA 1988

Section 3A

Databases

(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.

(2) For the purposes of this Part a literary work consisting of a database is original if, and only if, by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation.

Germany - Copyright Law

Article 1: Authors of literary, scientific and artistic works shall enjoy protection for their works in accordance with this Law

Article 2 (2): Personal intellectual creations alone shall constitute works within the meaning of this Act.

France - Intellectual Property Code

Art L. 112-1: The provisions of this Code protect the rights of authors in all works of the mind, whatever may be the type, form of expression, quality or purpose of the work.

Art. L. 112-2: Notably, the following are considered works of the mind within the meaning of this Code...

Originality

Originality – “Sweat of the Brow” vs. “Creativity”

UK: “sweat of the brow” – University of London v. University of Tutorial Press (1916), Kenrick v. Lawrence (1890, Fine Arts Copyright Act 1862)

Continental Europe: “creativity”

United States: Feist Publications (U.S.S.C., 1991)

Canada: CCH (2004) – “skill and judgement” – indirectly follows NAFTA harmonization (Tele-Direct FCA, 1996)

India: Eastern Book Co. – follows CCH in India

Fixation

Berne Convention – Article 2

(2) It shall, however, be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.

TRIPs Agreement

Article 9 Relation to the Berne Convention

1. Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom.

2. Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.

Designers’ Guild v. Russell Williams Textiles (Ltd.) [H.L., 2001].

“Copyright law protects foxes better than hedgehogs.”[hedgehog photo by Jörg Hempel, Wikimedia Commons]

“The fox knows many things, but the hedgehog knows one big thing.” – Archilochus

Economic Rights “Moral” Rights

Attribution

COPYRIGHT

Integrity Reputation

Disclosure

Author’s Rights

disclosure (first publication)

“authorization” of use of the work

right of communication to the public (WIPO)

the “reproduction” right (“right to copy)

“Users’ Rights” (Fair Use/Fair Dealing)

digitization (eg. of news archives, Tasini, Robertson)

format shifting (eg. of music from CD to iPod)

“mash-ups”: Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005): “Get a license or do not sample. We do not see this as stifling creativity in any significant way.”

educational use (formerly “private” use)

parody

6 Steps to Resolving a Copyright Problem

(1) Is it a [copyright-able] work? – LDMA

(2) Does it meet the criteria for protection under the domestic Copyright Act? – originality& fixation

(3) Who owns the copyright in the work? Author or another person/corporation, etc. authorized by him/her?

(4) Is the work still within the copyright term?

(5) Has there been an infringing act?

(6) Does the person committing the act have a defense under the Copyright Act? = exception, fair use/dealing

Text

Copyright Fundamentals

Mira T. Sundara RajanEmail: [email protected]