EBS Law Term 2013 Intellectual Property Law Copyright Law: Introduction Prof. Martin Senftleben VU University Amsterdam Bird & Bird, The Hague.

EBS Law Term 2013 Intellectual Property Law

Copyright Law: Introduction

Prof. Martin SenftlebenVU University Amsterdam

Bird & Bird, The Hague

Intellectual property domains

technology

commerce

culture

patent law

trademark law

copyright law

Contents

• international treaties

• subject matter of protection

• protection requirements

• term of protection

• first ownership

International treaties

Important international treaties

• The Berne Convention for the Protection of

Literary and Artistic Works (1886/1967)

• The Agreement on Trade-Related Aspects

of Intellectual Property Rights (1994)

• The WIPO Copyright Treaty (1996)

Subject matter of protection

Literary and artistic works

• books, writings, plays

• musical compositions

• choreography

• drawings, paintings

• sculptures, architecture

• cinematographic works

• photography

Pablo Picasso, Guernica (1937)

Literary and artistic works

Literary and artistic works

Literary and artistic works

Literary and artistic works

Literary and artistic works

Literary and artistic works

Literary and artistic works

Charles and Ray Eames, Eames Lounge and Ottoman (1956)

Literary and artistic works

Literary and artistic works

Literary and artistic works

Literary and artistic works

‘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 and dramatico-musical works;…

Art. 2(1) of the Berne Convention

• 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;…

Art. 2(1) of the Berne Convention

• 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.

Art. 2(1) of the Berne Convention

‘Computer programs are protected as

literary works within the meaning of

Article 2 of the Berne Convention. Such

protection applies to computer programs,

whatever may be the mode or form of

their expression.’

Art. 4 of the WIPO Copyright Treaty

‘Translations, adaptations, arrangements

of music and other alterations of a literary

or artistic work shall be protected as

original works without prejudice to the

copyright in the original work.’

– copyright 1: original work

– copyright 2: altered version

Specific rules (art. 2(3) BC)

Neighbouring rights

• performing artists

– fixations of performances

• phonogram producers

– with regard to phonograms

• film producers

– with regard to the original and copies of films

• broadcasting organizations

– fixations of broadcasts

basis: copyright (author)

adaptation 1: translator

+ neighbouring rights adaptation 2:

scenarist

Copyright clusters

Exclusions from protection

‘Copyright protection extends to expressions and

not to ideas, procedures, methods of operation or

mathematical concepts as such.’

(Art. 2 WIPO Copyright Treaty)

= idea/expression dichotomy

• news of the day and miscellaneous facts

having the character of mere items of press

information (Art. 2(8) BC: mandatory)

• official texts of a legislative, administrative

and legal nature, and official translations of

such texts (Art. 2(4) BC: optional)

• political speeches and speeches delivered

in the course of legal proceedings

(Art. 2bis(1) BC: optional)

• no protection unless fixed in some material

form (Art. 2(2) BC: optional)

Exclusions from protection

Protection requirements

Originality

• work = materialization of the author’s

individual personality

• particular link between the author and

the work

• copyright is automatically acquired

through the very act of creation

• no formalities = no registration

requirement

No registration required (art. 5(2) BC)

‘The enjoyment and the exercise of [the

rights which the respective laws of Union

countries grant to their nationals, as well

as the rights specially granted by the

Convention] shall not be subject to any

formality;...’

Originality test not harmonized

• test may differ from country to country

• protection to be determined on the basis

of the applicable national law

‘Authors shall enjoy, in respect of works for which

they are protected under this Convention, in

countries of the Union other than the country of

origin, the rights which their respective laws do

now or may hereafter grant to their nationals…’

(Art. 5(1) BC = national treatment)

Term of protection

Art. 7 BC

• ‘The term of protection [...] shall be the life

of the author and fifty years after his death.’

– in many countries: 70 years post mortem

• cinematographic works

– making available + 50 years (optional)

• anonymous or pseudonymous works

– making available + 50 years

• photographic works, works of applied art

– making of the work + 25 years (minimum)

Joint authorship (art. 7bis BC)

‘...also apply in the case of a work of joint

authorship, provided that the terms

measured from the death of the author

shall be calculated from the death of the

last surviving author.’

Photographic works (art. 9 WCT)

‘In respect of photographic works, the

Contracting Parties shall not apply the

provisions of Article 7(4) of the Berne

Convention.’

= regular term of protection instead of

making of the work + 25 years

Ownership

First ownership not harmonized

• Berne Convention refers to the

“author” without defining it

• standard solution: natural person

creating a work is the first owner

• national law may provide for other

rules in certain cases

– employer’s copyright

– work for hire doctrine

Application of general principles

‘Authors shall enjoy, in respect of works for which

they are protected under this Convention, in

countries of the Union other than the country of

origin, the rights which their respective laws do

now or may hereafter grant to their nationals…’

(Art. 5(1) BC = national treatment)

• lex loci protectionis vs. lex originis

• contractual choice of the applicable law

advisable

first

ownership

assignment

possible?

Transfer of ownership

Art. 6bis(1) BC

‘Independently of the author’s economic rights,

and even after the transfer of the said rights, the

author shall have the right to claim authorship of

the work and to object to any distortion, mutilation

or other modification of, or other derogatory

action in relation to, the said work…’

• waiver of moral rights in several national

systems (common law vs. civil law)

• contracts about the exercising of moral

rights null and void?

author

always keeps

moral rights

exploitation

rights may be

assignable

Impact on transfer of exploitation rights?

Dualistic vs. monistic theory

EBS Law Term 2013 Intellectual Property Law

Copyright Law: Protection

Prof. Martin SenftlebenVU University Amsterdam

Bird & Bird, The Hague

Contents

• minimum rights

• the copyright balance

• use permitted by law

Minimum rights

Two branches of rights

exploitation rights

• general right of

reproduction

(art. 9(2) BC)

• general right of

communication to

the public

(art. 8

WCT)

moral rights

• claim authorship

• object to any

distortion, mutilation,

modification or other

derogatory action

(art.

6bis BC)

‘Authors of literary and artistic works

protected by this Convention shall have

the exclusive right of authorizing the

reproduction of these works, in any

manner or form.’ (para. 1)

‘Any sound or visual recording shall be

considered as a reproduction for the

purposes of this Convention.’ (para. 3)

Art. 9 BC: Reproduction

Public performance rights

• public performance (art. 11(1)(i) BC)

• public recitation (art. 11ter(1)(i) BC)

• public communication by loudspeaker

(art. 11bis(1)(iii) BC)

• standard constellation:

– fixed place, fixed time

Arts. 11(1)(ii), 11bis(1)(i) and (ii),

11ter(1)(ii), 14(1)(ii), 14bis(1) BC

Art. 8 WCT

Right of communication to the public

‘…the exclusive right of authorizing any

communication to the public of their works,

by wire or wireless means…’

• standard constellation:

– flexible place, fixed time

– example: broadcasting (art. 11bis BC)

Art. 8 WCT: Communication to the public

‘…including the making available to the public

of their works in such a way that members of

the public may access these works from a

place and at a time individually chosen by

them.’

• making available online:

– flexible place, flexible time

Art. 8 WCT: Communication to the public

Further examples of rights…

• translation (art. 8 BC)

• adaptation (art. 12 BC)

• cinematographic adaptation, reproduction,

distribution, public performance and public

communication (art. 14 BC)

• right to an interest in resales

(‘droit de suite’, art. 14ter BC)

Right of distribution (art. 6(1) WCT)

‘Authors of literary and artistic works shall

enjoy the exclusive right of authorizing the

making available to the public of the original

and copies of their works through sale or

other transfer of ownership.’

But: exhaustion of the right after the first sale

is left to the discretion of Contracting Parties

(art. 6(2) WCT)

Right of rental (art. 7(1) WCT)

‘Authors of

(i) computer programs;

(ii) cinematographic works; and

(iii) works embodied in phonograms, as

determined in the national law of Contracting

Parties,

shall enjoy the exclusive right of authorizing

commercial rental to the public of the

originals or copies of their works.’

The copyright balance

Limitations

• idea/expression dichotomy: copyright only

protects the individual way of expressing

ideas, not ideas as such (art. 2 WCT)

• limited term of protection

(arts. 7, 7bis BC, art. 9 WCT)

• use permitted by law, serving social,

cultural and economic ends

Use permitted by law

Legal traditions

Anglo-America

• fair use doctrine

• open factors

• case-by-case

approach (judge)

• flexibility

• quick reactions to

new developments

Continental Europe

• statutory limitations

• fixed requirements

• closed catalogue of

limitations (legislator)

• legal certainty

• slow reactions to

new developments

Specific international limitations

• quotations, press summaries (art. 10(1) BC)

• articles on current topics (art. 10bis(1) BC)

• lectures, addresses, works of the same

nature delivered in public (art. 2bis(2) BC)

• reporting of current events (art. 10bis(2) BC)

• illustrations for teaching (art. 10(2) BC)

Underlying rationale

• freedom of expression

• freedom of information

• dissemination of information

• cultural participation

• equal chances in the information society

(no ‘digital divide’)

But also regulation of industry practice

• compulsory licenses concerning

broadcasting, and wireless or loudspeaker

communications (art. 11bis(2) BC)

• ephemeral recordings made by broadcasting

organizations (art. 11bis(3) BC)

• ‘It shall be a matter for legislation in the

countries of the Union to permit the

reproduction of [literary and artistic] works

in certain special cases, provided that such

reproduction does not conflict with a normal

exploitation of the work and does not

unreasonably prejudice the legitimate

interests of the author.’ (art. 9(2) BC)

= so-called ‘three-step test’

Open-ended international ‘three-step test’

• certain special case– specific form of use, limited number of beneficiaries

– room for considering policy justification?

• no conflict with a normal exploitation– currently exploited and potential future markets

– room for normative considerations?

• no unreasonable prejudice to legitimate interests– refined proportionality test

– reduction to reasonable level by providing for the payment of equitable remuneration

Criteria of the three-step test

Article 9(2) BC

Article 13 TRIPS

Article 10 WCT

The three-step test family

• ‘Members shall confine limitations or

exceptions to exclusive rights to certain

special cases which do not conflict with a

normal exploitation of the work and do not

unreasonably prejudice the legitimate

interests of the right holder.’

= three-step test becomes general yardstick for

the permissibility of national limitations

Art. 13 TRIPS

scope of the three-step test

specific international limitations

Impact of the three-step test on specific limitations

scope of the three-step test

specific international limitations

Impact of the three-step test on specific limitations

‘It is understood that the provisions of Article 10 permit

Contracting Parties to carry forward and appropriately

extend into the digital environment limitations and

exceptions in their national laws which have been

considered acceptable under the Berne Convention.

Similarly, these provisions should be understood to

permit Contracting Parties to devise new exceptions

and limitations that are appropriate in the digital

network environment.’

Agreed Statement Concerning Art. 10 WCT

The end.

contact: [email protected]

ANNEX: Protection of

Technological measures

Technological measures (art. 11 WCT)

‘…effective technological measures that

are used by authors in connection with the

exercise of their rights […] and that restrict

acts […] which are not authorized by the

authors or permitted by law.’

• protected against circumvention

• exemption of permitted use realistic?

Ideal world – feasible in practice?

scope of

copyright = scope of protection of technological

measures

Rights management information (art. 12 WCT)

‘…information which identifies the work,

the author of the work, the owner of any

right in the work, or information about the

terms and conditions of use of the work…’

• protected against removal or altering

• facilitation of e-commerce

• likely to be accepted by consumers?

limitations contracts

technological measures

The role of digital rights management

• artificial extension of copyright?

• a threat to copyright’s balance?

• successful business model?