UNESCO
2010
The ABC of Copyright (23.06.2010)

Throughout the document:
common law = anglo-american countries
civil law traditoin = European continent

All lists are verbatim quotes.

Copyright concerning film: page 28.

9
Copyright

• Central role in culture and communication
• Intrinsically linked to technological advances
• Challenged by rampant piracy in many countries

10
The Essences of Copyright

• Right of ownership in creative works
• Protection against unauthorized uses
• Limitations for the benefit of society at large

11
The Rationale behind Copyright

• Exclusive rights as economic reward and stimulus for creativity
• Natural/personal right in the results of intellectual work
• Distinction between Anglo-American (common Law) and Continental (civil law) tradition

12
The Origins of Copyright

• From the earliest days some forms of protection -> in ancient Greece it was a dishonour to copy
• 15th-century Europe: Invention of the printing press
• Printing privileges precursors of modern copyright laws

The First Copyright Laws

• 1710: Statute of Queen Anne (England)
• 1791 and 1793: Revolutionary decrees (France) -> introduction of public domain
• By the mid-19th century: followed by many countries

13
The Modern Copyright System

• Marked by the conclusion of international agreements
• Cross-border trade and technological advances as motor
• Information society requires further global co-operation

16
The Scope of Copyright Protection

• Copyright protects ‘works of a literary, scientific or artistic nature’
• Works must be original and more than mere ideas
• Trend towards extension of scope in recent years

17
The Idea-Expression Dichotomy

• Copyright requires an expression in a particular form
• No protection of underlying ideas, mere information or style
• Usually non-exhaustive list of examples provided by copyright laws

-> Ideas can be copied freelly, “the form in which the ideas are expressed” (page 16) cannot.

18
The Originality Criteria in Copyright Law

• Central requirement of originality to be interpreted by courts
• Form, purpose, quality, novelty, artistic merit or commercial value not relevant
• Derivative works protected like original works

19
Absence of Formalities in Copyright Law

• Absence of formalities enshrined in international conventions
• © symbol introduced by the Universal Copyright Convention (1952)
• Voluntary registration may serve as prima facie evidence

Fixation Requirement in Copyright

• Fixation ≠ registration; necessity depends on national legislation
• Concerns ephemeral or improvised works (e.g. music, speeches, choreographies)
• Decisive for the starting point of protection

-> common law: work must be fixed by any tangible, material means
-> civil law: copyright takes effect from the very moment it is created

20
The Protection of Computer Programs

• Includes applications and operating systems alike
• Applies to both source code and object code
• Form of embodiment (stored/written) irreleva[nt]

21
Protection of Databases

• ‘Original’ databases: protected as compilation by reason of structure
• Sui generis protection of contents of non-original databases

-> the database structure is protected everywhere, the content not necessarily

Traditional Cultural Expressions and Folklore

• Form part of the culture from which they originate
• Impersonal/collective nature at odds with individual property rights
• New forms of protection explored by UNESCO or others

24
Copyright Ownership

• Initial ownership generally vested in authors
• Certain exceptions in particular cases
• Copyright transferable after death or by contracts

Who is the ‘Author’?

• Primarily the natural person who created the work
• Common law: third parties may be deemed authors (ex: corporate bodies, legal entities)
• Civil law tradition: no author apart from the creator

25
Works made for hire

• Works produced in the course of employment
• Common law: copyright initially vested in employer instead of employee
• Civil law: employer can acquire copyright via contract

Copyright in Anonymous and Pseudonymous Works

• Legal presumption in favour of publishers
• Valid until the author reveals his or her identity

“the publisher is not the real owner of copyright but is only entitled to protect and enforce the author’s rights”

27

28
Rights Ownership in Cinematographic Works

• Civil laws approach: films as joint or composite works, several right owners
• Common law approach: producer typically sole copyright owner

30
Concerns the author’s non-financial interests

• Recognized in most countries in different ways
• Recognition required by international law

The Most Important Moral Rights

• Right of attribution (authorship)
• Right of integrity
• Right of disclosure
• Right of withdrawal

31
Development of International Recognition

• Originally characteristic of civil law systems
• Art. 6bis Berne Convention / 1996 WIPO Treaties
• Implementation outside copyright possible -> tort or contract law for example

32
Basic Features of Moral Rights

• Exist independently from economic rights
• Generally not assignable -> cannot be transferred to someone else
• Last at least as long as economic rights

33
The Right of Attribution

• Right to claim authorship in a work
• ≠ Right against wrongful attribution -> part of personality rights

34
The Right of Integrity -> ‘The Right to Respect’

• Right to prevent derogatory use of the work
• Takes into account both content and context
• Exercise often subject to balance of interests

The Right of Disclosure

• Relates to making the work publicly known
• Work may not be divulged despite contract
• Requires divulgation beyond the private circle

35
The Right to Withdraw

• The author may withdraw the work after a change of ideas
• Subject to conditions to protect third parties

38
Economic Rights

• Exclusive rights and remuneration rights
• Usually a bundle of prerogatives corresponding to different uses
• Minimum standards guaranteed by international treaties

39
Most Important Economic Rights

• Right of Reproduction
• Right of Distribution
• Rental and Lending Rights
• Rights of Communication to the Public (incl. Right of Making Available)
• Droit de suite (Resale Right)
• Adaptation Right (incl. Translation)

The Right of Reproduction

• Right to authorize the making of copies
• Covers all methods known or yet to be discovered
• Includes storage in digital form (except transient acts -> caching, temp files)

40
The Right of Distribution

• Right to disseminate physical copies
• Subject to national, regional or world-wide exhaustion

41
Rental and Lending Rights

• Address successive uses by multiple users
• Rental: exclusive right
• Lending: entitles authors to an equitable remuneration

42
The Rights of Communication to the Public

• Right of public presentation and performance (incl. small rights -> background music in bars and shops)
• Broadcasting right
• Rights of remote transmission by other means

The Right of Making Available

• Aims at access from a place and at a time individually chosen
• Technology-neutral and future-proof

-> introduced with the Internet, but covers all future technologies

43
The Resale Right (Droit de suite)

• Entitles visual artists to a share in the resale price of their works
• Remuneration right rather than exclusive

The Adaptation Right

• Exclusive right to authorize ‘derivative works’ (incl. translation)
• Adaptation distinct from free use of ideas as source of inspiration
• Author of adaptation has own copyright in the derivative work

45
Limitations to Copyright Protection

• Protection expires after a limited time
• Exceptions for certain legitimate uses
• Non-voluntary licences

46
Term of Protection

• According to international law: at least 50 years after the death of the author
• In some countries no time limit for moral rights

47
General Rules on Exceptions

• Basically four categories of legitimate interests
• Concept and rules vary from one country to another
• Strictly defined exceptions vs. wider concepts
• Three-step test

48
Freedom of expression

• Secured through free flow of information
• Of particular importance: right to quote

49
Access to Knowledge

• Exceptions in favour of educational institutions
• Usually valid only for non-profit uses
• Specific clauses for the benefit of handicapped persons

Justice and Government

• Official texts often excluded from protection
• Free use of protected material in courts

50
Private Copying

• Permitted in a number of countries
• Usually framed by levy-based remuneration -> on the copying devices and bland media

[L]imitations in the Digital Environment

• Right owners concern over enhanced quality of digital copies
• TPM and application of limitations
• Application subject to domestic law and courts

53
Transfer of Rights

• Contractual transfer inter vivos (during the author’s lifetime)
• Transfer mortis causa (after the author’s death)

54
Contractual Transfer of Rights

• Concerns only economic rights; moral rights inalienable
• Transfer of rights independent of ownership of the physical material
• Two principal ways for rights transfer: assignment or licensing
• Each right may be transferred or licensed separately

55
Transfer of Rights by Assignment

• Assignee becomes owner of the rights
• Total or partial assignment possible
• Typical of common law tradition

56
The Licensing of Rights

• Right owner maintains ownership
• Permission for a specific use
• Simple licences vs. exclusive licences -> “For the period for which it is granted, exclusive license has an effect comparable to a transfer of rights by assignment” (page 55)

57
Limitations on Transfer of Rights

• Protection of the author as typically weaker party
• Rules concerning scope of transfer
• Rules concerning proportionate remuneration

Formal Requirements

• Usually written form of contract
• Legal presumptions in some cases

58
Transfer of Rights After Death

• Economic rights: freely transferable
• Moral rights: several models in different countries

60
Related Rights

• Protect the results of certain activities mainly related to the dissemination of works

The Most Important Related Rights

• Performers’ rights
• Phonogram producers’ rights
• Broadcasters’ rights

61
The Development of International Related Rights Protection

• The Rome Convention of 1961
• The TRIPs Agreement of 1994
• The 1996 WIPO Performances and Phonograms Treaty

62
The Characteristics of Related Rights

• Covering a variety of heterogeneous subject matter
• Terminology reflects personality-centred author’s rights approach
• Protection similar to copyright albeit more limited

63
Protection of Performers’ Rights

• ‘Performer’: usually one who performs works or expressions of folklore
• Rights of reproduction, distribution, rental and making available
• Moral rights of identification and integrity
• Minimum term of protection 50 years under the WPPT

64
Protection of Phonogram Producers

• ‘Phonogram’: Fixation of sounds of any kind on any medium
• Rights of reproduction, rental, distribution and making available
• Minimum term of protection: 50 years

Protection of Broadcasters’ Rights

• ‘Broadcast’: transmission of any sound or images by wireless means -> but often also cable
• Rights of re-broadcasting, reproduction and communication to the public.
• Minimum term of protection 20 years
• Ongoing discussion on updating protection within WIPO

67
Enforcement of Rights

• Civil Remedies
• Penal and Administrative Sanctions
• Technological Protection Measures
• Provisional and Border Measures

68
Forms of Rights Infringement

• Infringement of Economic Rights
• Infringement of Moral Rights

69
Civil Remedies

• Injunction and seizure of infringing objects (no bad faith required)
• Damages
• Monetary compensation for moral suffering (in some countries)

Penal Sanctions

• Fines and imprisonment depending on the severity of the act
• Usually intentional infringement required
• Significantly enhanced due to compliance with international law

70
Technological Protection Measures

• Encryption tools and ‘Digital Rights Information’
• Legal protection against circumvention in compliance with international law

71
Challenges of enforcement in the digital environment

• Online copyright piracy (illegal up and downloading)
• Specific measures to tackle online infringements discussed (“Graduated response” (-> three strikes rule) v. “Global license” (-> ISP collects and distributes royalties)
• Development of legal online offer of cultural products

73
Collective Management of Rights

• Takes place where individual licences are impractical
• Collective bodies act on behalf of individual right owners
• Additional cultural and social activities -> of those collective bodies

74
The Origins of Collective Rights Management

• France of 18-19th Century: Beaumarchais and others
• 1777: Foundation of SACD
• 1851: Foundation of SACEM

75
The most important rights administered collectively

• Performing rights in non-dramatic musical works (‘small rights’) -> grand rights = performance of all dramatico-musical crations: opera, ballet
• Rights of reproduction on sound recordings (‘mechanical rights’)
• Rights of satellite transmission and cable re-transmission
• Remuneration rights (e.g. reprographic reproduction)

76

77
Variety of Collective Rights Management

• Legal status: private vs public bodies
• Number of organizations: monopoly vs multitude
• Membership: optional vs mandatory

78
International Collective Rights Management

• Reciprocal representation agreements
• International umbrella organizations (e.g. CISAC, BIEM)

The Advantages of Collective Rights Management

• Facilitates licensing in case of individually uncontrollable uses
• Viable alternative to non-voluntary licences
• Increases individual author’s bargaining power

79
Challenges for Collective Rights Management

• Digital technology may entail new forms of management
• Globalization trends call into question traditional territorial basis

81
International Protection of Copyright and Related Rights

• Rule of territoriality -> copyright law only applies inside the country
• Harmonization of national laws through international treaties
• Today, system of widely accepted multilateral conventions

82
The Most Important International Conventions

• The Berne Convention for the Protection of Literary and Artistic Works of 1886 (last revised in 1971)
• The Universal Copyright Convention of 1952 (last revised in 1971)
• The Rome Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations of 1961
• The TRIPs Agreement of 1994
• The WIPO Copyright Treaty of 1996
• The WIPO Performances and Phonograms Treaty of 1996

83
The Origins of Today’s Multilateral Conventions

• 1878 Literary Congress in Paris, chaired by Victor Hugo
• Foundation of the ALAI and 1882 Congress in Rome
• 1886: Berne Convention signed

84
International Treaties on Copyright and Related Rights

• Obligations on contracting states to adapt domestic laws -> We protect your work in our country the same way we protect our own work
• Principle of national treatment
• Guaranteeing of minimum standards

85
Berne Convention for the Protection of Literary and Artistic Works (1886)

• Several revisions, last revised in 1971 (Paris Act)
• Creation of the Union for the Protection of the Rights of Authors over their Literary and Artistic Works, administered by WIPO
• Referred to in later treaties (e.g. TRIPs and 1996 WIPO Treaties)
• Minimum standards concerning economic and moral rights, exceptions/limitations and terms of protection

86
The Universal Copyright Convention (1952)

• Revised in 1971 (Paris Act)
• Intended to serve as a ’bridge’ toward the Berne Union

87
The Rome Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations (1961)

• Jointly administered by WIPO, UNESCO and ILO
• First international instrument to address neighbouring rights

88
The Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) -> TRIPs

• Links Intellectual Property with trade issues within the World Trade Organization
• “Berne / Rome plus” standard of protection (without moral rights)
• Specific obligations on states to introduce effective enforcement procedures

89
The WIPO Copyright Treaty The WIPO Performances and Phonograms Treaty (1996)

• Designed to address new technologies and means of communication
• Introduction of new ‘right of making available to the public’
• Obligation to prohibit circumvention of technical protection measures
• Moral rights for performers