RETHINKING COPYRIGHT

SHOULD IT BE

INDIVIDUAL PRIVATE PROPERTY

OR COLLECTIVE PROPERTY?

SARAH DIASV.M. SALGAOCAR COLLEGE OF LAWGOA..

The law does not permit one to appropriate to himself what has been produced by the labour, skill and capital of another to promote creativity, and the dissemination and application of its results, and to encourage fair trade, which would contribute to economic and social development.

Intellectual property relates to items of information or

knowledge, which can be incorporated in tangible objects at

the same time in an unlimited number of copies at different

locations anywhere in the world. The property is not in those copies

but in the information or knowledge reflected in them.

WHAT IS COPYRIGHT?When a person creates a literary, musical, scientific or artistic work, he or she is the owner of that work and is free to decide on its use. That person (called the “creator” or the “author” or “owner of rights”) controls the destiny of the work.

DURATION OF COPYRIGHTCopyright does not continue indefinitely. The law provides for a period of time during which the rights of the copyright owner exist. The period or duration of copyright begins from the moment when the work has been created, or, under some national laws, when it has been expressed in a tangible form. It continues, in general, until some time after the death of the author. The purpose of this provision in the law is to enable the author’s successors to benefit economically from exploitation of the work after the author’s death.

In countries party to the Berne Convention, and in many other countries, the duration of copyright provided for by national law is as a general rule the life of the author plus not less than 50 years after his death. The Berne Convention also establishes periods of protection for works such as anonymous, posthumous and cinematographic works, where it is not possible to base duration on the life of an individual author. There is a trend in a number of countries toward lengthening the duration of copyright. The European Union, the United States of America and several others have extended the term of copyright to 70 years after the death of the author.

ORIGINAL

LITERARY

•Computer programmes and databases

DRAMATIC

•Piece of recitation

•Choreographic work or entertainment

•Scenic arrangement or acting

MUSICAL WORK

•Graphical notion of such work but does not include any words or action intended to be sung, spoken or performed with the music.

ARTISTIC

WORKS

•Painting, sculpture , drawing, map, chart, building having artistic design, model of a building, wood cuttings, engravings, etc….

CINEMATO

GRAPHIC

FILMS

•Any work of visual recording on any medium produced through a process from which moving image maybe produced by any means and includes a sound recording accompanying such visual recording

SOUND RECORDINGS

•Recording of sounds

The Berne Convention for the Protection of Literary and Artistic Works (Article 2) states: “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”. The Convention goes on to list the following examples of such works:books, pamphlets and other writings;lectures, addresses, sermons;

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;

“translations, adaptations, arrangements of music and other alterations of a literary or artistic work, which are to be protected as original works without prejudice to the copyright in the original work..

collections of literary or artistic works such as encyclopaedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations, are to be protected as such, without prejudice to the copyright in each of the works forming part of such collections.”

Work of architecture- ArchitectLITERARY WORKS- AUTHORDRAMATIC WORK- AUTHOR

CINEMATOGRAPH FILM- PRODUCER

PERFORMERS RIGHTS UNDER SEC 38

PHOTOGRAPH- PHOTOGRAPHER ARTISTIC WORKS- ARTIST

IN COURSE OF EMPLOYMENT THE EMPLOYER IS THE

OWNER

SOUND RECORDING- COPYRIGHT IN THE MUSIC VESTS IN THE COMPOSER

AND THE COPYRIGHT IN THE MUSIC RECORDED VESTS IN

THE PRODUCER OF THE SOUND RECORDING.

MUSICAL WORK- IF MUSIC IS OF ONE PERSON AND LYRICS OF ANOTHER THEN BOTH THESE PARTS ARE PROTECTED SEPRATELY BUT NOT THE

SONG AS A WHOLE.IN EXCEPTIONAL CASES WHERE BOTH THE LYRICS AND THE MUSIC IS BY

ONE PERSON THEN THE ENTIRE THING IS PROTECTED BY COPYRIGHT AS A WHOLE.

THE POSITION MAYBE DIFFERENT IN THE CASE OF A COMPLICATED WORK COMPRISING MUSICAL AND LITERARY COMPOSITIONS SUCH AS

AN OPERA.

Why is collective management of copyright and related rights necessary?Composers, writers, musicians, singers, performers and other talented individuals are among society’s most valuable assets. The fabric of our cultural lives is enriched by their creative genius. In order to develop their talent and encourage them to create, we have to give those individuals incentives, in particular remuneration in return for permission to make use of their works. Collective management organizations are an important link between creators and users of copyrighted works (such as radio stations) because they ensure that, as owners of rights, creators receive payment for the use of their works.

 

COLLECTIVE MANAGEMENT

IN THE FIELD OF MUSICAL WORKS

• Works (encompassing all types of music, modern, jazz, classical, symphonic, blues and pop whether instrumental or vocal), documentation, licensing and distribution are the three pillars on which the collective management of the rights of public performance and broadcasting is based.

• The collective management organization negotiates with users (such as radio or television stations, discotheques, cinemas, restaurants and the like), or groups of users (hotel associations for example) and authorizes them to use copyrighted works from its repertoire in return for payment and on certain conditions. On the basis of its documentation (information on members and their works) and the programs submitted by users (for instance, logs of music played on the radio), the collective management organization distributes copyright royalties to its members according to established distribution rules. A fee to cover administrative costs, and in certain countries also socio-cultural promotion activities, is generally deducted from the copyright royalties. The fees actually paid to the copyright owners correspond to the use of the works and are accompanied by a breakdown of that use. These activities and operations are performed with the aid of computerized systems specially designed for the purpose.

IN THE FIELD OF DRAMATIC WORKS

• (which includes scripts, screenplays, mime shows, ballets, theater plays, operas and musicals), the practice of collective management is rather different in that the collective management organization acts as an agent representing authors. It negotiates a general contract with the organizations representing theaters in which the minimum terms are specified for the use of particular works. The performance of each play then requires further authorization from the author, which takes the form of an individual contract setting out the author’s specific conditions. The collective management organization then announces that permission has been given by the authorconcerned and collects the corresponding remuneration.

IN THE FIELD OF PRINTED WORKS

• (meaning books, magazines and other periodicals, newspapers, reports and the lyrics of songs), collective management mainly involves the grant of the right of reprographic reproduction, in other words allowing protected material to be photocopied by institutions such as libraries, public organizations, universities, schools and consumer associations.

• Non-voluntary licensing arrangements, when allowed by international conventions, can be written into national legislation; in such cases, a right of use against remuneration is accorded that does not require the consent of the owner of rights.

• Collective management organizations administer the remuneration. In the special case of reproduction for private and personal use, some national legislation contains specific provision for equitable remuneration payable to the owners of rights and funded by a levy imposed on equipment or photocopies or both.

IN THE FIELD OF VISUAL ARTS

• collective management allows the rights linked to the use of three-dimensional works (paintings, statues, drawings, lithographs, sculptures), graphic creations (illustrations, caricatures, cartoons) and photographic works to be managed. Apart from the right of reproduction, the authors of these categories of works can avail themselves of other rights if they are recognized in their national laws, such as the droit de suite, lending right and right of exhibition. As regards private digital copies, the works of visual art downloaded at home from databases (museum sites, image banks) through the Internet give rise to the payment of remuneration in certain countries.

IN THE FIELD OF RELATED RIGHTS

• the legislation of some countries provides for a right of remuneration payable to performers or producers of phonograms or both when commercial sound recordings are communicated to the public or used for broadcasting. The fees for such uses are collected and distributed either by joint organizations set up by performers and producers of phonograms or separate ones, depending on the relations between those involved and the legal system of the country.

• The participation of collective management societies for performers’ rights also occurs in relation to the copying of sound or audiovisual recordings in the countries which have installed this system. The remuneration for private copying compensates the loss suffered by the beneficiaries as a result of the copies made by private individuals at home. This system, which also covers

• phonogram producers, cannot be managed individually and uses the services of joint management bodies acting on behalf of the bodies representing the different rights’ owners (authors, performers, producers). The method of distributing the rights is based on sampling which has the advantage, in this case, of reflecting as well as possible the effective use of protected works.

LIMITATIONS ON RIGHTS

The first limitation is the exclusion from copyright protection of certain categories of works. In some countries, works are excluded from protection if they are not fixed in tangible form. For example, a work of choreography would only be protected once the movements were written down in dance notation or recorded on videotape. In certain countries, the texts of laws, court and administrative decisions are excluded from copyright protection.The second category of limitations concerns particular acts of exploitation, normally requiring the authorization of the rights owner, which may, under circumstances specified in the law, be carried out without authorization. There are two basic types of limitations in this category: (a) free use, which carries no obligation to compensate the rights owner for the use of his work without authorization; and (b) non-voluntary licenses, which do require that compensation be paid to the rights owner for non-authorized exploitation.

Examples of free use include:quoting from a protected work, provided that the source of the quotation and the name of the author is mentioned, and that the extent of the quotation is compatible with fair practice;use of works by way of illustration for teaching purposes; anduse of works for the purpose of news reporting.

In respect of free use for reproduction, the Berne Convention contains a general rule, rather than an explicit limitation. Article 9(2) states that Member States may provide for free reproduction in special cases where the acts do not conflict with normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author. As noted above, many laws allow for individuals to reproduce a work exclusively for their personal, private and non-commercial use. However, the ease and quality of individual copying made possible by recent technology has led some countries to narrow the scope of such provisions, including through systems which allow certain copying, but incorporate a mechanism for payment to rights owners for the prejudice to their economic interests resulting from the copying.

In addition to the specific categories of free use set out in national laws, the laws of some countries recognize the concept known as fair use or fair dealing. This allows use of works without the authorization of the rights owner, taking into account factors such as the nature and purpose of the use, including whether it is for commercial purposes; the nature of the work used; the amount of the work used in relation to the work as a whole; and the likely effect of the use on the potential commercial value of the work.

Non-voluntary licenses allow use of works in certain circumstances without the authorization of the owner of rights, but require that compensation be paid in respect of the use. Such licenses are called non-voluntary because they are allowed in the law, and do not result from the exercise of the exclusive right of the copyright owner to authorize particular acts. Non-voluntary licenses were usually created in circumstances where a new technology for the dissemination of works to the public had emerged, and where the national legislator feared that rights owners would prevent the development of the new technology by refusing to authorize use of works. This was true of two non-voluntary licenses recognized in the Berne Convention, which allow the mechanical reproduction of musical works and broadcasting. The justification for non-voluntary licenses is, however, increasingly called into question, since effective alternatives now exist for making works available to the public based on authorizations given by the rights owners, including in the form of collective administration of rights. 

• Many people believe that intellectual property provides a temporary monopoly that protects the use or exploitation of that good, supported by legal enforcement mechanisms

• In fact, intellectual property protection cannot properly be thought of as providing an economic monopoly, at least in part, because a monopoly can only exist in the presence of a market and the ability of an actor to manipulate the market to a point where higher than competitive prices are able to be maintained, which is something that is rarely achievable by an owner of intellectual property.

What the copyright protects is not the physical object as such, but the idea which it embodies. By forbidding an unauthorized reproduction of the object, the law declares, in effect, that the physical labor of copying is not the source of the object's value, that that value is created by the originator of the idea and may not be used without his consent

Copyrights are the legal implementation of the base of all property rights: a man's right to the product of his mind. Every type of productive work involves a combination of mental and of physical effort: of thought and of physical action to translate that thought into a material form. The proportion of these two elements varies in different types of work. At the lowest end of the scale, the mental effort required to perform unskilled manual labor is minimal. At the other end, what the patent and copyright laws acknowledge is the paramount role of mental effort in the production of material values; these laws protect the mind's contribution in its purest form the origination of an idea.

THANK YOU!