Copyright and Related Rights An introduction

Size: px

Start display at page:

Download "Copyright and Related Rights An introduction"

Thomas Hines
7 years ago
Views:

1 Copyright and Related Rights An introduction Intellectual Property Law in the Information Society, Lecture 2 Professor Ole-Andreas Rognstad

2 International conventions on copyright protection Berne Convention for the protection of literary and artistic works (BC) (1886) Last revision, Paris contracting parties WIPO Copyright Treaty (WCT) (1996) Closely related to the Berne Convention Adjusted to the technological development 89 contracting parties TRIPs (1994) Articles 9-13 WTO Agreement on Trade Related Aspects of IP Rights 153 members Universal Copyright Convention (UCC) (1952)

3 EU Legislation Computer Program Directive (1991) Directive 2009/24/EC Rental and Lending Directive (1992) Directive 2006/115/EC Term Directive (1993) Directive 2006/116/EC Satellite and Cable Directive (1993) Directive 93/83/EEC Database Directive (1996) Directive 96/9/EC Infosoc Directive (EUCD) (2001) Directive 2001/29/EC Resale Directive (2001) Directive 2001/84/EC

4 New proposals - EU Commission Proposal for a Directive on certain permitted uses of orphan works COM (2011) 289 Commission s Digital Agenda. Communication on A Single Market for Intellectual Property Rights COM (2011) 287

5 What is a «work»? BC Article 2: Non exhaustive list 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 arts; illustration, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture and science TRIPS Articles 10 and WCT Article 4 and 5 Includes computer programs and compilations of data (databases)

6 Neighbouring rights (related rights) Protection for (e.g.) Performing artists performances Phonogram and film producers productions Broadcasting organizations broadcasts Databases sui generis (Europe) Rights to photographic pictures (certain countries) International Conventions Rome Convention for the Protection of Performers, Phonograms and Broadcasting Organizations (RC) (1961) WIPO Performances and Phonograms Treaty (WPPT) (1996) TRIPs Article 14 (1994)

7 Preconditions for protection. Works No formalities, BC Article 5(2) «The enjoyment and the exercise of these rights shall not be subject to any formality» Applies only to works from other contracting states E.g.: The protection of a work from other «Berne states» shall not be dependent on the use of Fixation requirement? Not in international conventions (BC art. 2(2)). In certain jurisdictions (e.g. UK/US) Originality requirement Implicit in the term «work» EU: Computer Directive Article 1(3); Database Directive Article 3 The program/database shall be protected if it is original in the sense that it is «the author s own intellectual creation»

8 Preconditions for protection. Works Originality requirement (cont.) Case C-5/08 (Infopaq) 11 words of a newspaper article. Could «not be ruled out that certain isolated sentences, or even parts of sentences may be suitable for conveying to the reader the originality of a publication» The idea / expression dichotomy Copyright extends to the expression of works, not the underlying ideas TRIPs Article 2

10 Derivative works BC Article 2(3) 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

11 Exclusive rights Reproduction right BC Article 9 EUCD Article 2 Exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means or in any form Includes any temporary storages in computer and computer systems; however subject to limitations in Article 5(1) Public performance right BC Article 11(1)

12 Exclusive rights Public communication right BC Article 11bis WCT Article 8 EUCD Article 3 Includes the making available of works in such a way that members of the public may access them from a time and a place individually chosen by them («On demand right») Every act of communication is covered by the communication act See case C-306/05 (Rafael Hoteles) What about hyperlinks? No exhaustion of the communication right (Article 3(3) EUCD)

13 Exclusive rights Distribution right (tangible copies) WCT Article 6 EUCD Article 4 Includes the exhaustion principle, which is limited to sale within the EEA (Article 4(2), cf. case C-479/04 (Laserdisken) Rental right (tangible copies) TRIPS Article 11 WCT Article 7 EU Rental Directive Article 1

14 Limitations/exceptions to the exclusive rights Examples Quotation right (BC Article 10(1)) Private copying (EUCD Article 5(2)b) Temporary copying (EUCD Article 5(1) Educational puropses, public libraries, press, and so on Limitation to the limitations: The «three step test» BC Article 9(2), TRIPs Article 13, EUCD Article 5(5) Different styles of limitations/exceptions Specific vs. open ended rules (fair use /fair dealing) Different models Free use vs. Compulsory licenses

15 Infringements Primary infringements Copying Adaptations Similaritiy test

16 Infringements Secondary infringements Contributions to others primary infringement Example: Swedish Pirate Bay Case

17 Moral rights Paternity rights and Integrity rights BC Article 6bis 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 distorition, mutilation or other modification of the said work + others (divulgation right; droit d acces; etc.)

18 Terms of protection Works BC Article 7(1): 50 years after authors death EU Term Directive: 70 years after authors death Neighbouring rights Performances and Phonogram productions: 50 years after publication EU: Proposals for prolongation

African Law Library: Copyright Policy

African Law Library: Copyright Policy When you submit a document to the African Law Library (online or offline), you confirm that you have the right to submit the document and to make it available to the