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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
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?
