International Treaties on copyright and neighboring rights.

International Treaties on copyright and neighboring rights

A. Berne Convention (BC) established in 1886, came into effect on 5 Dec. 1887 original member countries: Belgium, France, Germany, Great Britain, Haiti, Italy, Spain, Switzerland and Tunisia revisions and additional acts: Paris (1896), Berlin (1908), Berne (1914), Rome (1928), Brussels (1948), Stockholm (1967), Paris (1971) amended in 1979 (Berne Union) USA joined in 1989, China in 1992 and the Russian Federation in 1995 number of members: 164 states http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html

B. Universal Copyright Convention (UCC) UNESCO’s Copyright Division after World War II without prejudice to the continuation of the BC signed on 6 Sept. 1952, entered into effect on 16 Sept. 1952 concurrently revised with the BC in 1971 100 members http://portal.unesco.org/culture/en/ev.php- URL_ID=1814&URL_DO=DO_TOPIC&URL_SEC TION=201.htmlhttp://portal.unesco.org/culture/en/ev.php- URL_ID=1814&URL_DO=DO_TOPIC&URL_SEC TION=201.html

1. Similarities of BC and UCC principle of national treatment, supplement with special provisions independence of copyrights Minimum standard of protection rights are at least… – the reproduction right – the public performance right – and the rights to the radio and television broadcasts absence of formal requirements for copyright protection, art. 5 par.2 of BC. But country of origin protection may be made dependant upon the deposit of copies, upon application, registration or a reservation of rights, etc. Privileges for developing countries: Restrictions on copyright in consideration of their social and cultural circumstances

2. Differences Droit moral since 1928, the BC protects author’s personality rights in Art. 6 bis par. 1: a droit moral flowing from the copyright is not contained in the UCC

3. Difference Term of protection

4. Relations between the conventions UCC contains rules concerning the relations proceeding from the basic assumption that the Berne Union prevails many members of the Berne Union are also contracting states of the Universal Copyright Convention

C. Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (RC) Berne Union and UNESCO convened a joint committee of experts in 1960 in The Hague signed on 26 Oct. 1961 and came into effect on 18 May 1964 number of member states increased rapidly up to 88 http://www.wipo.int/treaties/en/ip/rome/

The beneficiaries of RC defined in art. 4 – 6 performers: –performance in another contracting state –incorporation of a performance in a protected phonogram –transmission of a performance in a protected broadcast, not fixed in a phonogram producers of phonograms: –nationals of another contracting state –first fixation of the sound was made in another contracting state –phonogram was first published in another contracting state broadcasters: –headquaters situated in another contracting state –or transmission from within territory of another contracting state

D. Other international treaties Convention for the Protection of Producers of Phonograms against WIPO and UNESCO To combat piracy in the phonogram market signed on 29 Oct. 1971 number of contracting states: 77 http://www.wipo.int/treaties/en/ip/phonogram s/trtdocs_wo023.htmlhttp://www.wipo.int/treaties/en/ip/phonogram s/trtdocs_wo023.html

Other protections of Copyright A further special treaty: Convention Relating to the Distribution of Program-Carrying Signals Transmitted by Satellite, signed in Brussels on 21 May 1974 http://portal.unesco.org/en/ev.php- URL_ID=13636&URL_DO=DO_TOPIC&URL_SECTIO N=201.htmlhttp://portal.unesco.org/en/ev.php- URL_ID=13636&URL_DO=DO_TOPIC&URL_SECTIO N=201.html

E. Framework of the Council of Europe Three agreements for the protection of television and broadcasting: –European Agreement Concerning Programme Exchanges by means of Television Films of 15 Dec. 1958 http://conventions.coe.int/Treaty/en/Treaties/Html/027.htm http://conventions.coe.int/Treaty/en/Treaties/Html/027.htm –European Agreement on the Protection of Television Broadcasts of 22 June 1960 http://conventions.coe.int/treaty/en/Treaties/Html/034.htm http://conventions.coe.int/treaty/en/Treaties/Html/034.htm –European Agreement for the Prevention of Broadcasts Transmitted from Stations Outside National Territories of 22 Jan. 1965 in Strasbourg http://conventions.coe.int/Treaty/EN/treaties/Html/053.htm http://conventions.coe.int/Treaty/EN/treaties/Html/053.htm

F. World Copyright Treaty (WCT) WCT is a special agreement under the BC mentions two subject matters to be protected by copyright: –computer programs –compilations of data or other material (“databases”) deals with exclusive author’s rights of distribution, rental and communication to the public entered into force on March 6, 2002 71 contracting parties http://www.wipo.int/treaties/en/ip/wct/

G. Performances and Phonograms Treaty (WPPT) deals with intellectual property rights of performers and producers of phonograms grants performers exclusive economic and moral rights exclusive economic rights for producers term of protection must be at least 50 years entered into force on May 20, 2002 contracting parties: 69 http://www.wipo.int/treaties/en/ip/wppt/trtdocs_wo034.html

H. TRIPS “Uruguay-Round” in 1994 all WTO members See my other previous slides http://www.wto.org/english/tratop_e/trips_e/trips_e.htm

Copyright is a specialized field of private law. In the great majority of countries, it is governed by special legislation

In Italy e.g. the foundations of copyright are laid down in the libro di lavoro of the Codice Civile; but specific regulation was provided for in the Copyright Act of 1941.

The reason for these special laws lies in the nature of the subject matter to be protected. Intellectual creations are not tangible goods.

strong feeling that the creator of a literary or artistic work was alone entitled to praise and honour, and that plagiarism was highly immoral,

yet the idea of a legal protection, and an exclusive legal right in the work did not emerge until the 18° century, where laws where enacted in favour of writers.

There are several strong reasons for this slowness 1. Rights exercised erga omnes and having for object the intellectual substance, as distinct from the actual copies, of productions of the mind, were strangers in the system of ROMAN law.

2. a great intellectual effort was required to invent the legal solutions necessary for an efficient protection of the rights of authors (and inventors).

3. A need for such an effort was not very pressing before the invention of the printing press made the reproduction and distribution of literary works, musical notes and graphic works of art an operation infinitely less demanding in time, skill and costs than the actual composition

4. The creation and growth of a market, which followed from mass reproduction and other – economic and social – developments gave authors, and perhaps even more publishers, a strong incentive to fight for their interests.

5.The market also gave authors a measure of independence in relation to those princes, prelates and nobles who had been their patrons

6. with the growth of the middle classes, both economically, socially, and ideologically, the voice of at least the more influential and considered categories of intellectual creators became stronger.

7.Towards the beginning of the 18th century, time was ripe for the first legislative initiatives.

By that time, however, specially granted individual rights – privileges – had existed for a couple of centuries, and had become more and more widespread. The first known privileges given by the Duke of Milan in 1481. The privilege granted by the Republic of Venice to Sabellicus for the printing and sale of his history of Venice, became important as a model for further monopolies of this kind.

privileges, i.e. ad hoc acts of grace granted in favour of individual authors or – just as often or more often – their publishers and printers. The privileges usually implied an exclusive right to reproduce and distribute a named work for a specified, mostly rather short period of time. privileges i.e. administrative acts, has exercised, and still exercises, a fundamental influence upon the status of copyright – in private international law.

The United States of America Constitution: The constitutional provisions. – The Federal Constitution art. I s. 8 empowers Congress to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”. 1790 first Copyright Act

Growing recognition of the authors’ “natural rights” led to intensified reform discussion and attempts at legislation in the course of the 19th century.

A real “break-through” for copyright in the modern sense was the French revolutionary legislation This legislation set an example which was followed with some delay in most countries.

1.So in the latter half of the 19th century and the earlier part of the 20th century Progress meant and required a highly developed copyright law. the legal position of writers was slowly but safely and systematically strengthened, and other groups of intellectual creators, such as composers, dramatic writers, artists of various kinds, were grated rights equal, or at least similar, to those that had been won by the literary artists, who were usually first to obtain adequate protection.

2. dividing line between CONTINENTAL and ANGLOAMERICAN – in particular AMERICAN – ideas and practical solutions.

3.INTERNATIONAL MOVEMENT INFLUENCE See above

FRANCE (1791) recognised an entirely new right: that of performance. authors were simply granted the exclusive right to authorise the public performance of their works; the right subsisted for five years after the author’s death.

FRANCE an exclusive right to sell, let others sell, and distribute their works on the territory of the republic and to transfer property in the work to others.

FRANCE In a series of decisions, the FRENCH courts elaborated the principle that copyright is more than a proprietary right.

FRANCE Proclaimed the “moral rights” of authors as an autonomous set of prerogatives, distinct from, and superior to, the “economic rights”.

FRANCE The French Supreme Court recognises a distinction between the exclusive right of using a work and the author’s “right, inherent in his person, to modify his creation in the future, or indeed to suppress it…”.

Germany Grotius, Pufendorf and Locke maintained that there does exist, under the law of nature, and ought to exist, in positive law, a group of prerogatives known as “rights of the personality”. Generally held that rights of the personality are innate, untransferable and imprescriptible.

Germany The idea of rights of personality implied many possible developments: 1. Copyright as a human right 2. notions as the moral rights of authors, “right of integrity” corresponding to the common law “right of privacy”, idea that copyright as a whole, including the economic elements, is a “personal right”.

Germany 3. Creator can claim exclusive command over his work not, or not only, because it has been performed by his labour but also, or essentially, because it is part of his self.

Germany 4. Kant, author’s right is “not a right in re, i.e. the copy (for its owner can burn it before the author’s eyes), but an innate right, inherent in his person, which implies the faculty to protest against another making him speak to the public unwillingly….” Strengthened the idea that the rights of authors are different in kind from “normal” proprietary interests.

Germany 5. Kohler, argues for the idea that copyright consist of two rights: a right in intellectual products, and a “right of the personality, which remains, in principle, outside the domain of property but exercises a strong influence on the structure and contents of the proprietary right.

United Kingdom + USA 1.neither legislature nor courts interfered with the free play of contractual relationship between authors and their commercial associates.

United Kingdom + USA 2. field of copyright was highly pragmatic, nothing even remotely similar to the doctrine of continental countries developed.

United Kingdom + USA 3. American attitude to copyright remained for a long time characterised by protectionism and a highly businesslike view of intellectual creation.

United Kingdom + USA 4.The most characteristic feature, when comparing the American Act of 1909 with European law, is undoubtedly the formalities which had to be complied with for acquiring copyright under that enactment, viz. publication with prescribed copyright notice, deposit of copies at the copyright office

United Kingdom + USA 5. no mention, neither in the Act itself nor preparatory works, of moral rights.

Copyright was confronted by a number of new inventions. these inventions were particularly difficult to handle since they consented an exploitation of protected material that could not be efficiently controlled.

Before it was required at least a minimum of machinery and equipment to copy. This copying activity could not be carried out by private individuals in their homes.

Now devices for reproducing texts and pictures are available to any private person. The costs for such private reproduction decreased gradually with the expansion of the market and the development of the technique By contrast we assist to a rapid rise in the costs of printing and distributing books, reviews and other copyrighted material

Devices for reproducing, and performing, sounds and pictures were also put into the hands of the public at large. New methods for retransmission of broadcasts and television programmes within limited areas (cable transmission) were developed.

Finally broadcasting and rebroadcasting, including television, was performed from satellites, moving in space, beyond any national frontiers, inaccessible to control by others than sending agency.

1.All these technical innovations confronted copyright law with new tasks of the greatest difficulty. 2. At the same time, new candidates for protection. The emergence and growth of computer technique had created a strong need for protection of the so-called software.

3. New ideologies on the international level. a) Copyright is not infrequently described as “individualistic” or even “antisocial”. The social and cultural interests of the public, which militated against a right for the author to prohibit broadcasting or to demand excessive royalties.

3. New ideologies on the international level. b)This opposition of the public interest to the authors’ claims has been taken over by developing countries, which are very largely importers of copyright material. They contend that international copyright represents an obstacle to cultural and scientific development. It means that the poor should pay the rich for something they badly need but cannot afford.

A.External criteria. The “object” of copyright is a “work” of art, including music, or literature.

However, for various reasons the drafters of statues on copyright may prefer to give more detailed descriptions of those productions

1. the statutory texts describe the “object” of copyright by enumerating the works the creation of which gives rise to copyright as completely as possible Example The copyright act, 1976 of the United States starts with i)literary works; ii)musical works, including any accompanying words; iii)dramatic works, including any accompanying music; iv)pantomimes and choreographic works; v)pictorial, graphic, and sculptural works; vi) motion pictures and other audiovisual works; and vii) sound recordings;

or 2.by defining in broad language the indispensable characteristics of those phenomena. Example Argentinean Copyright Law “…in short, every scientific, literary, artistic or educational production, whatever it process of reproduction.”

3)In a few a cases, copyright statutes express an additional condition, with regard to the actual physical nature of copyrightable productions. Example the American statute text to be copyrightable, a work should be “fixed in any tangible medium of expression, now known or later developed”

B.Internal criteria 1.“Originality”, “Creativity”, Expression of “personality” minimum level of originality (Gestaltungshőhe) achieved by a process of individual creation Everything that is worth copying is worth protecting

2) What is Protected? The ideas may not be the subject of appropriation. The United States Copyright Act 102(b) explicitly excludes from copyright protection “any idea, procedure, process, systems method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”

3) The Question of Quality literary, artistic, or general intellectual quality of a work for which copyright protection is claimed is not necessary for the granting of, refusal to grant, such protection. It is the requisite minimum of originality and creative independence, not the good taste, learning, or intelligence of the author, that justify protection. Consequently, the most vulgar song and the most unartistic painting can claim such protection provided the other criteria referred to here are fulfilled.

4) The purpose of the Work The principle that the purpose of a literary or artistic work is not necessary for its claim to copyright protection

5) The State of Completion of the Work In the East German Copyright Law 2 par. I it was laid down that “a sketch or draft may also be deemed to be a work”. The Polish Copyright Law has a more sweeping provision: “Copyright shall subsist, not only in works finally completed, but also in plans, outlines, sketches, drawing, models and projects.

6)Quantitative Requirements contemporary intellectual property law does not up hold any requirements as to the length (size) of the work concerned.

C. Special categories of works i) adaptations = works original but dependent Continental solutions cover the prevailing forms of derivative works which deserve protection in their own right. Example Italian Copyright Law of 1941: “… elaboration … such as translations into another language, transformations into any other literary or artistic form, modifications and additions constituting a substantial recasting of the original work, adaptations, reductions, abridgement and variations which do not constitute an original work…”

Common law solutions defined adaptations at considerable length and with high degree of technicality Example The Australian Copyright Act, 1968

The criteria by which the claim to copyright protection of a derivative work is examined are the same as those applied to original productions; the basic requirement remains a minimum level of originality (Gestaltungshőhe) achieved by a process of individual creation.

ii) Independent Creation Based on Existing Works works which fulfil the requirement of originality and which imply the use of pre-existent works but without the intellectual dependence characteristic of adaption. Examples anthology or compilation.

problem = where to draw the line which represents the minimum level of originality Hence, first work plays an important part as source of inspiration in a general way, but where the new author’s creative effort has reached a level where he must be held fully independent for copyright law purposes. Example Shakespeare’s use of Italian short stories

iii)Parody and Travesty parody = maintaining the original author’s style and tone and applying it to an entirely different, usually inappropriate, subject, travesty = treating the original author’s subject-matter in a new form, mostly one held to be improper

frequently imply close and extensive imitation of the works thus dealt with. + problems for moral rights of authors

In spite of this, parody and travesty do not constitute copyright infringements, provided the parodist’s own effort expresses a reasonable minimum of creative originality. Ratio: the buffon’s freedom of expression

iv)Folklore “folklore” = folks songs, folk tales and folk art normally not protected; then copyright question arose when writers, composers or artists made use of them for their own purposes.

In many Developing countries several legislatures have introduced definition and special rules + UNESCO convention traditional knowledge

vi)Letters ownership in the letter as a physical object passes to the receiver, whereas copyright remains with the author, unless an agreements has been made to the contrary. This state of affairs may obviously give rise to conflicts, since the receiver is not, normally, under any obligation to put the letters at the sender’s disposal for the purpose of publication

It is mostly the author who has interest in keeping his letters within the sphere of privacy, but it may also be the receiver, or a third person whose private life might be delivered to the public if confidential letters were published. For instance Art. 93-95. The Italian text specifies carefully such exceptions from the protection as letters are in the public interest.

vii)Portraits Problems = letters most frequent solution in Common Law jurisdiction: copyright is vested in the person who commissioned the portrait.

viii) Computer Software and Semi-Conductor Chips Problems: a) what elements in computer programme shall be considered for copyright purposes Solution: underlying mathematical theories and principles are not entitled to protection

b) in each individual case whether the required minimum level of creativity has been attained. introducing a test of quality is otherwise unknown in the field of copyright and anyway the creativity test, originally invented for entirely different intellectual operations, is hardly suitable as guide in determining the measure of individual creativity expended upon a production as tightly bound to mathematical rules and technical necessities as a computer programme.

D. Works Excluded from Copyright copyright protection is explicitly withdrawn because of the illegal character of a work.

E.photographs Photography, being the art of producing pictures by use of the chemical action of light on a sensitive material, belonged to the innovations which needed a long time to obtain recognition as an art.

a)In some legal systems, photographs are put on an equal footing with works of art; b) in others, representing an intermediary group, they are divided into “artistic photographs”, which enjoy the same protection as paintings or engravings, and “ordinary photos”, for which a less elaborate and, in particular, a shorter, protection is provided. c) Finally, there is a third category of laws where photographs are not at all recognised as copyright material but are subject to special provisions throughout.

An author is the person whose personality is indestructibly imprinted on the work.

A. Determining the ownership of copyright 1.Some legal system have introduced rules for cases where author is completely unknown and there is publisher or other person in a similar position to take care of the work. Mexican Copyright Act, where it is laid down that “the use of an anonymous work shall be free as long as the author does not make himself known”.

2.The Anonymous or Pseudonymous author Berne Convention from 1886 “In the case of anonymous and pseudonymous works, other than those referred to in paragraph above, the publisher whose name appears on the work shall, in the absence of proof to the contrary, be deemed to represent the author, and in this capacity he shall be entitled to protect and enforce the author’s rights. The provisions of this paragraph shall cease to apply when the author reveals his identity and establishes his claims to authorship of the work” (art. 15, par. 3).

Reasons for these rules 1)The need for identification a)The author’s own interest in having his position recognised a)The author’s nationality or habitual residence is one of the decisive factors for the purpose of determining whether a work is at all entitled to protection in a given county a)copyright normally lasts for a period ending a specified numbers of years after the author’s death a)A great number of situations, legal security requires that there be someone whit whom valid contracts can be concluded, and from whom valid permissions can be requested with regard to a given work

B. Work of several authors 1)adaptations: the contributions of original author and adapter can normally be clearly distinguished whereas the original work can be exploited as it is, independently, the final production, the adapted work, can not be used without the original, as transformed, being utilised at the same time.

2) compilations, anthologies, they distinguishing themselves from the adaptation since their original elements are not in principle modified; they may and mostly do remain completely unmodified.

3) “works of collaboration” work to the creation of which several physical persons have collaborated, either in such a way that each produces a distinguishable part of the common final product or in such a manner that in the ultimate result of the work, the individual contributions cannot be separated from the whole or from each other.

C. The Rights of Co-Authors 1)Where individual contributions can be distinguished, each author has an exclusive right in his production; + any utilisation of works, or elements of works, which embody the labour of more than one, requires the permission of all those whose contributions are involved.

2)Where the individual contributions are inseparable, the normal solution, in these cases, is that all the co-authors have a right to take part in decisions concerning the work.

3)Special cases A. Work created by several collaborators frequently represent very heavy investments; the persons or bodies making these investments would not incur the risks involved if they could not count upon complete control over the use of the production. The most typical examples of these kinds of work are cinematographic films.

 special rules = transfer of copyright from individual co-authors to e.g. their employer or to a party who has commissioned a work.  Special rules = confer, by legal fiction, initial authorship on the physical or juristic person who organises the production of a work requiring many individual contributions.

B. Commissioned works = “commissioned works” = works created in performance of a contract concluded before the work was made between the author and a person or entity who has expressed at least some indication, accepted by the author, about the outward appearance, function, or character of the work Fundamental difference of attitudes between Continental and Common Law-based.

Civil Law solutions example Portuguese Copyright Law art. II: “unless otherwise specified, copyrights shall belong to the intellectual creator of the work”. This principle is then applied but also somewhat qualified by the art. 14 par. 2: “In the absence of any agreement, it shall be deemed that ownership of copyright in a work carried out on behalf of another person belongs to the intellectual creator”. Where the person on whose behalf the work has been created owns the economic rights, the intellectual creator may demand a special remuneration, in addition to the one agreed upon.

Common Law solutions Example British Copyright Act: subject to the provision that copyright in an employee’s works, if made under a contract of employment or apprenticeship with the proprietor of a periodical, vests with few exceptions in that proprietor, it is laid down that where a person commissions the taking of a photograph, or the painting or drawing of a portrait, or the making of an engraving for remuneration, the person who so commissioned the work shall be entitled to statutory copyright in the work. This basic rule may be set aside by agreement between the parties.

The difference in principles BUT in actual practice the systems are not wholly incompatible. the common law rule represents only a partial solution. In all cases not strictly covered by the British Act – e.g. in the case of drawings (not being portraits) – copyright remains vested in the artist (who can of course assign it). And the rule expressed in the Portuguese text can be set aside by agreement (art. 14 part I).

C. Works of employees (Journalists) independent authors nowadays are a minority. Common law jurisdictions Where a literary, dramatic or artistic work is made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, and is made for the purpose of publication in that periodical, the proprietor is entitled to copyright in the work, but only insofar as that copyright relates to publication of the work in a periodical; beyond that, the author is entitled to any copyright subsisting in the work. Further (subs. 4), in a case which concerns neither an employed journalist, as defined in subs. 2, nor a commissioned work, but where the work is made in the course of employment under a contract of service or apprenticeship, the employer is entitled to the copyright subsisting in the work. The regime thus instituted can be set aside by contract.

Civil law Example France Copyright in computer programmes created by employees in the course of their employment is vested in the employer, to whom are granted all the rights belonging to the author. This does not mean that the employer is the first owner of copyright, but it does imply “a true presumption for a transfer of rights to the employer”.

1)In modern copyright law, the majority of legal systems offer protection without any formality of any kind.

2)One of the most important producers, exporters and importers of “works” in the broadest sense, viz. the United States of America, maintained compliance with certain formal requirements as a condition for copyright protection until joining the Berne Convention on 1 March 1989

 The decisive formality was placing, on all publicly distributed copies of a work published in the United States by authority of the copyright owner, of a copyright notice. The notice consisted of the symbol ©, or the word “Copyright” or the abbreviation “Copr.”; the year of first publication of the work; and the name of the copyright owner.

 Works published after 1 March 1989 are protected independent of the copyright notice.  Formalities under American copyright law are the deposit of two copies (phonorecords) in the Copyright Office in the Library of Congress. Non-compliance with that demand is sanctioned by a fine, but copyright is not invalided.

 Finally, the copyright owner has a right – but not duty – to obtain registration of copyright in the Copyright Office upon delivery of the prescribed deposit, and of an application and against payment of a fee. Registration is not a condition for copyright as such, but it is a prerequisite for instituting an action for infringement and certain remedies (statutory damages and attorney’s fees) are not granted in principle for infringements committed before registration took place.

3) Deposit and registration are part of copyright laws of a few other countries, e.g. Argentina. 4) Some legal systems registration in some form is prescribed – though not as a condition for the coming into existence or validity of copyright – for films, videogrammes, and contracts relating to such kinds of works. This is the case e.g. in France, where an extensive body of rules regulates the film industry.

A.Exploitation in a material form i)The rights of reproduction Definitions: the right of reproduction is the earliest element of authors’ right, the original “copy-right”, as the “right to make copies of the work, irrespective of method or number”.

Modern technology has given added complexity to the question how “reproduction” should be defined. Reproductions in the form of records or cinematographic films, converting a work into a three-dimensional form. The fixation of the work on devices which permit the repeated communication of a series of images or sounds. Reproducing data programmes in a material form, e.g. by reproduction on paper or, by writing out programme incorporating the protected programme constitutes infringements of copyright in the programme.

ii)The right of distribution Definitions of the “right of distribution”: “The right to offer to the public or to place in circulation the original work or copies thereof”

“Exhaustion” of the right of distribution: if the original work or copies thereof have been distributed through sales thereof with the consent of the owner of the right of distributing the work for the area within the jurisdiction of this Law, their further distribution shall be permissible.

The concept of “exhaustion” The “exhaustion” of the right of distribution is a necessary corollary of the right of distribution; for if no limitations were introduced, that right would cover every act implying a dissemination of copies to the public. It is the first distribution of copies that the copyright owner has a legitimate interest in controlling; once a copy has passed that turnpike, it is and should be free, as far as the right of distribution is concerned. Only such distribution of copies as has taken place with the copyright owner’s consent has the “effect of exhaustion”.

B.Exploitation in a non-material form – Public performance The right of public performance – “rights of recitation, performance, representation and presentation” communication of a work to a public which is physically present. Additional rights have been judged necessary to offer adequate protection in light of the technical development of the last decades. These are the right of broadcasting, the right of communication by means of visual or sounds records, and the right of communicating broadcasts to the public.

The Italian Copyright Law divides that same right (public performance) into two: the right of public performance the right of diffusion which covers the “use of any means of diffusion over a distance, such a telegraphy, telephony, radio or television broadcasting, and other analogous means.

“Public” and “Private” No other single problem in contemporary copyright law would seem to have been debated more extensively or more intensely than the question whether a specified act of communication has taken place “in public” or privately. Most questions as to what is “public” and what is “private” have had to be left to the courts and to legal writers.

1.The right to make the work public 2. The “Right of respect” Berne Convention, “any distortion, mutilation or other modification” of the work. “Any other action in relation to the said work”. The protected interests are the author’s “honour or reputation”.

3. The “Paternity Right” The Scandinavian statutes: “When copies of a work are produced, or when it is made available to the public, the name of the author shall be stated to the extent and in the manner required by proper usage”.

4. Special rights derived from droit moral i)The right to correct or retract In the Italian Copyright Act the author is granted a personal non- transferable right to withdraw his work from commerce “whenever grave moral reasons arise”, subject to compensation to any person or persons who have acquired a right to reproduce, diffuse, perform or circulate the work. The exercise of the author’s right is surrounded by formalities – thus non only the parties directly concerned but also the minister of culture shall be notified, and the interested parties also have the right to institute an action in court to oppose the author’s claim and to obtain damages. The last resort, it is for the courts to examine whether the “grave moral reason” invoked by the author exist. (art. 142 and 143).

ii)The right to alter the work (Droit de modifier) The Mexican Law provides that “the author may, at any time, make or authorise the making of modification of this work”.

iii)Destruction of the work Within the framework of the Berne Convention, energetic attempts have been made to introduce provisions intended to prohibit the destruction of protected works. The initiative was not carried further at later revision conferences, however, and it would seem to be generally accepted that complete destruction of a work, as distinct from permitting it to be seen by the public in a state of decay and partial destruction, is not an infringement of the author’s droit moral. Norvegian Copyright Law “if circumstances necessitate the destruction of the original copy of the work, the author, if he is alive, shall be notified in reasonable time, if this can be done without special sacrifice”.

A.Public safety and the administration of law The effect that reproduction, public exhibition, or even performance of protected works is lawful when such act is realised for the purpose of the administration of justice or in the interest of public safety to make or cause to be made copies of protected works for use in proceedings before a court, an arbitration tribunal, or a public authority

B.Collections for privileged purpose In British copyright law a publisher who includes short passages of published literary or dramatic works in a collection is described both in its title and in advertisements for which the publisher is responsible, as a school book; that the work included was not created for the use of schools; that the collection is mainly composed of non-protected material and due acknowledgement is made

C.Educational broadcasting and similar cases –Swedish Law: general liberty to make sounds recordings of published works in “educational activity”. –No remuneration is paid. –Make sounds recordings of published literary works to be used for loans to blind and other gravely disabled persons.

D.Speeches, press articles and news Limit copyright in the interest of public information and debate. The Italian Copyright Law art. 65 (articles of current interest) and art. 66 (public speeches). Particular emphasis is laid on the indication of the source. No remuneration is stipulated.

In the United States Copyright Act the corresponding rule, exempting from liability of infringement such acts as constitute “fair use”: the fair use of copyrighted works, including such use by reproduction in copies or phonorecords or by any other means specified in § 106, where the exclusive rights are defined, is not an infringement, if such use has the purpose of criticism, comment, news reporting, teaching, scholarship, or research.

It is added that in determining whether the use made of the work in any particular case is fair “the factors to be considered shall include (1) the purpose and character of the use, including whether such use is of a commercial nature; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for, the copyright work”.

E.Quotations Copyrighted works for purposes of study, research, and criticism has been recognised as a necessary limitation upon the exclusive rights of authors as long as there has been copyright law.

F.Free public performance French law does not know of any other free performance than such as takes place in the family circle and which is, consequently, private by definition (art. 41 no. 1). The same attitude is adopted by Italian law.

British copyright law: the reading or recitation in public of any reasonable extract from a published literary or dramatic work, if accompanied by a sufficient acknowledgement, shall not be considered an infringement; however, the rule does not cover any act performed for the purpose of broadcasting United States copyright legislation opens a considerable number of possibilities which regard to free public performance and also public display of a protected work.

G.Private use and similar cases The “classical” freedom to reproduce copyrighted material for private use came into existence at a time when modern methods of reproduction were unknown. A short survey of the problems created by the invention and the systems of public fees and collective compensation seems to represent the most adequate answer to the challenge

By adopting, in addition to rules embodied in copyright statues, special rules concerning public fees and collective remuneration schemes, the countries under consideration here have mostly been able to avoid far- reaching modifications of the copyright laws in the proper sense

In France it is permitted to make copies or reproductions “reserved strictly for private use of the copyist and not intended for collective use, with the exception of copies of works of art intended to be used for purpose identical with those for which the original work was created”.

Non-public use in common law legislation In the British Copyright Act the broad “fair dealing” rule has the the highly detailed and lengthy provisions in s.7, which lay down far- reaching exceptions in favour of libraries and archives. For all practical purposes, all public libraries that make works available to be the public free of charge are covered by the regulations issued by virtue of the Act.

 Liberty for a teacher or pupil, in the course of instruction, whether at school or elsewhere, to make a reproduction or an adaptation of a protected work otherwise than by use of a duplication process. Even if such process is used, a protected work may be used without ha author’s permission as part of the questions to be answered in an examination, or in an answer to such question.

Likewise, in the United States Copyright Act, archives and libraries enjoy extensive rights to reproduce and distribute protected material for their own purpose

H.Minor exceptions Broadcasting and television companies can frequently invoke good reasons for making their own records of works which they are entitled to communicate to the public. Both technical needs, historical interest and the need, in some cases, to secure first-hand evidence of what has actually been communicated, make it important for them to keep, at least for some time records of programmes available.

Swedish Law Under the Swedish Law, both the right to make ephemeral recording (upon conditions laid down in administrative regulations) and that of securing evidence by recording are explicitly granted to broadcasting and television companies which have a right to broadcast protected material

Finally, the United States Copyright Act provides for a range of exception from the author’s exclusive right to produce recordings.

Exhibiting and testing records and equipment, etc. The organizers of public exhibitions or auction sales are permitted to reproduce and distribute, in illustrated catalogues, works of art which are exhibited or offered for sale. Swedish law has a corresponding provision

Works in public places - Works which are permanently placed on public roads, streets or places may be freely reproduced by painting, drawing, photography or cinematography under the West Germany Copyright Law § 59; in the case of architectural works, this freedom applies only to the exterior view. Such reproductions must not be performed as an element of a building. An almost identical provision exists in Swedish law. The British Copyright Act contains similar provisions.

A. Introduction Under the economic and technical conditions which have prevailed for a long time already in the industrialised parts of the world, the exercise of the author’s exclusive right in his work, and of the various elements composing it, is almost invariably entrusted to a professional publisher; theatrical manager; music performer, etc.

1)That professional “exploiter”, in his turn, is almost invariably an organization of some kind: a company, a public authority, an association. This means, practically, that the exercise of copyright is mostly surrounded by a more or less complex network of contracts concluded between the author and the body wishing to make the work.

2) The same observation is true about author’s successors in title; for, given the duration of modern copyright, part of the exploitation frequently falls into the period after the author’s death, which leads to a transfer of rights of another kind.

B. Transfer by succession Under the vast majority of copyright statutes, copyright passes to the author’s spouse and heirs according to normal rules on succession and matrimonial property if and when the author dies intestate. It is also frequently stated that normal rules on testamentary succession apply. In the case of Austria it is only by transfer mortis causa (and between heirs) that copyright can be transferred at all; inter vivos it can only be the object of licences.

C.Transfer by contract 1)Meaning of “licence” and assignment

i)assignment “Full” or “regular” assignment of rights ii) licence A simple permission to exploit a work in one several ways iii)compulsory licences The term “licence” is used for another, entirely different category of rights to use, viz. “legal” and “compulsory licences”

iv)The licencee cannot, normally, react against infringements v)Whereas the assignee can.

2)General remarks The explosive technical development in the field of communications of all kinds has increased almost indefinitely the possibilities of exploiting literary, dramatic, musical and artistic works. At the beginning of the present century, the contract of publishing and the contract of performance were by far the most important legal channels through which an author could communicate his work to the public and obtain some profit from it. These types of contracts have therefore been studied and elaborated for a long time. Besides these “named contracts”, there are, however, many forms of exploitation which cannot be discussed one by one.

The author’s right in a work could be better described not as one, but as a bundle of rights, each referring to a specific method of exploiting to protected work, and that these more or less narrowly defined “part rights” are often transferred to different professional “exploiters”.

today, in those countries which have a particularly extensive and developed copyright industry, many, if not most, contracts of transfer (licence) are made in the form of, or in accordance with, standard contracts drafted by exploiting firms or by organizations of authors and professional exploiters of copyright material.

C.General rules 1. Transfers of physical property. - A great number of copyright contain provisions to the effect that transfer of the physical object embodying a protected work does not imply transfer of copyright

2. Transferred rights must be specified. 3. In French law strict formal requirements are upheld with regard to contracts of transfer: the most important forms of assignments must be in writing, and the rights concerned must be explicitly mentioned. Written form of also prescribed for assignments of copyright under the British Copyright Act. In German law, only contracts concerning future works must be writing.

D.Publishing contracts The five most characteristic features of a publishing contract would seem to be: (1) its purpose is to secure the reproduction of the work concerned in the form of copies and the distribution of these copies to the public;

(2) for this purpose the copyright owner confers upon the publisher a right which is exclusive within the limits agreed upon in the contract (and which vary very much); (3) the publisher incurs an obligation to reproduce and distribute within e period of time which is sometimes set out in the contract and which is usually indicated in the relevant copyright law provisions, if any

(4)The way in which the economic relations between the parties are settled is not necessarily dealt with in statutory provisions and would not seems to be considered in all copyright law systems as decisive for the question whether a give agreement should be classified a publishing contract or not. But in some of those countries which have for a long time held a leading position in the international publishing trade, it is part of the definition of a publishing contract that the reproduction and distribution take place at the expense, and for the account, of the publisher. The way in which the author is remunerated – if it all – is usually left for the parties to settle, but in e.g. contemporary French law, a set of detailed provisions have been enacted to secure, as efficiently and as extensively as possible, the author’s right to remuneration in proportion to the proceeds of the operation (royalties); lump sum payment is permitted only in closely defined special circumstances, especially where the calculation of royalties presents difficulties.

(5)Finally, principle that the author-transferor guarantees to the publisher the peaceful enjoyment of the transferred rights. Many statutes contain detailed rules on the state in which the manuscript shall be delivered; the publisher’s obligation to submit proofs to the author, and the author’s duty to correct these without undue delay and without introducing too costly modifications.

E.Contracts of performance 1.In most copyright acts, it is laid down that in the absence of agreement, the right transferred by a contract of performance is not exclusive. 2. The main preoccupation of legislators in the area of performance contracts is to prevent transferees from letting assigned works die in silence. Few copyright acts impose upon the manager of the theatres or concert hall a positive obligation to have the work performed; the normal solution is to provide that if the work has not been performed within a certain period, or if performances have been interrupted for a specified period of time, the author resumes the transferred right; this sanction is obviously of interest only where the transfer concerned an exclusive only where the transfer concerned an exclusive right.

F.Other contracts Many contemporary copyright acts contain extensive and ambitious provisions on various other kinds of contracts. 1. e.g. contracts for publishing in newspapers; 2. the Copyright Law of Portugal regulates contracts on the fixation of protected works on records and phonogrammes 3. as well as contracts on translation and adaptations; 4. and the recent Colombian Law contains a special chapter on contracts in respect of phonographic fixation 5. (and also special rules on musical performance).

These types of contract, besides publishing and performance, seem to have been considered most important, viz. broadcasting employment and cinematographic contracts. “Common” elements in such provisions is the principle that authorisation to broadcast does not give a right to rebroadcast or to communicate the work to the public in any other way.

G. The employed author 1. In Common Law or Common Law-Inspired systems the employer is considered the first owner of copyright. 2. Civil law copyrights in the person of the employee, but it is usually held that it passes, by virtue of the contract of employment, to the employer. However, this transfer is subject to the doctrine of purpose-limited transfer, and consequently embraces only such rights as the employer requires in the activity for which the author is employed and which could be foreseen when the work was created.

H. Cinematographic works 1. France confers the quality of first owner of copyright on the film producer, even if that is most often a company or an organization. 2. Many other countries have chosen not to bestow first ownership of copyright upon the film producer.

The term “legal licence” refers to such cases where permission to use a protected work is granted ex lege, not by contract, but where such permission is subject to a duty to pay remuneration to the author. Several exceptions from the exclusive rights of authors as dealt with above are of this character.

A.Developed countries Berne Convention allows legal and compulsory licences in respect of the author’s exclusive right to broadcast and to authorise the sound recording of musical work. Swiss compulsory licence in musical works, granted in favour of Swiss manufacturers of mechanical instruments. The Italian Copyright Law grants broadcast works from theatres, concert halls and other public places without the author’s permission. Remuneration shall be paid.

British copyright law, only one compulsory licence is in operation. Under s. 8 any manufacturer of records who complies with the conditions set out in the provision has a right to make records of a musical work of which records have previously been lawfully made in the United Kingdom for the purpose of retail sale; a royalty shall be paid. The right also covers words sung or spoken with the music.

The licence is surrounded by a great number of complicated rules ensuring perfect clarity. Similar licences exist in other Common Law countries. In the United States, the corresponding compulsory licence is extended so as to cover also performance of works on coin-operated phonorecord players.

Canadian copyright law contains far-reaching licences, to be granted by the competent authorities, in case copyrighted material is out of print and the copyright owner fails to furnish the market.

B.Developing countries The revision of the Berne Convention at the Paris Conference, 1971 made it possible for DEVELOPING COUNTRIES belonging to the Union to introduce certain compulsory licences, and many such countries have made use of this possibility. Thus, under the Algerian Copyright Law, the Ministry of Information and Culture of the country may grant a licence to any Algerian national to translate and publish, for purposes of teaching, scholarship and research, a work which has not been translated in Algeria by the copyright owner. Remuneration shall be paid, and it must be proved that the copyright owner has either refused to grant the authorisation needed or has been impossible to find. Similar provisions exist in a number of other countries.

Berne Convention, where a minimum term of 50 years post mortem auctoris was adopted. United States adopted 50 years’ principle.

Anonymous and pseudonymous works Performance, copyright terminates when has elapsed from the first publication. If, before the end of that period, the name or pseudonym of the author is made known, the normal post mortem rule becomes applicable. Under United States law, copyright in anonymous works, pseudonymous works, but also in “works made for hire” endures for a term of 75 years from the first publication of the work, or a term of 100 years from its creation, whichever expires first.

Posthumous works Some copyright statutes have special rules for works the existence of which becomes known, or which are published, after the author’s death. It should be mentioned, without going into details, that in some countries, where the effects of the two world wars made themselves felt with particular intensity in the field of literature, music, and theatre, legislators have interfered and extended the term of copyright protection.

A. The notion of Neighbouring rights i)In order to reach the public, their regular addressee, works of authorship must have a specific medium. In case of literary works, until the second half of the 19th century, the printing press was the sole technology to play the role of respective medium. In the case of dramatic and musical works, it was the artist, the actor, signer, dancer and musician who through hislive performance served as the mediator. Exhibition was the only way to make artistic works known to public.

ii) Impact of technology developments. - the situation changed drastically with the advent of photography, the phonograph and other forms of sound recording, as well as of silent film in the second half of the 19th century, and of films with soundtracks, radio and television in the 20th century. These achievements made it possible, for the first time in history, to transform the purely transitory and ephemeral offerings of stored, multiplied, sold and used indefinitely. Moreover, thanks to the invention of broadcasting, performance of artists, either live or fixed on discs or other sound carriers, suddenly reached an enlarged public, and were no longer limited to the theatre or concert hall audience of a given performance.

iii)the issue raised was that of classification of this new subject- matter, i.e. photographs, films and phonograms, but also artists’ performance, which, for reasons to be explained, needed and deserved protection. In the context of droit d’auteur the question to be answered was whether they constituted works to be protected. Whereas in the case of photographs and films, qualifying as works was difficult but still feasible, at least with some modifications, in most droit d’auteur countries this was neither accepted for artists’ performance nor for sound recordings.

iv)Following solutions of the Austrian Copyright Law of 1936 § 66- 72 and the Italian Copyright Law of 1941 art. 80-85, both which included a special chapter on neighbouring right providing for protection of “recitals and performances (including broadcasts) of literary and musical works”, a compromise was eventually reached at an International Convention for the Protection Performers, Producers of Phonograms and Broadcasting Organisation of 26 Oct. 1961 - the Rome Convention. The right of performers, producers of phonograms and broadcasting organizations are understood as neighbouring rights.

v)Common characteristics of neighbouring rights. - parallel relationship with various copyright aspect. Moreover, the beneficiaries of these right play an auxiliary role in literary and artistic creation, for performers fulfil the destiny of musical compositions and dramatic works, sound recording companies impressions, and broadcasting organizations abolish distances. a close relationship exists between two kind of rights. Therefore the term neighbouring rights reflects the fact that they are suited nearby the copyright.

B. Socio – Economic aspects i)Performance under technological threat. - technique of sound recording for performing artists resulted in their essence competing with each other.

ii)Rise and decline of phonogram industry due to technical developments – - this first crisis was serious competition from the radio. - The second challenge was the widespread piracy that developed in the phonogram market. -The next serous threat was ever-increasing private copying

iii) Broadcasting organization and their needs The concerns of broadcasting organizations also resulted from technological advances, which made it possible to rebroadcast and record their programs and to show them in places to which the public had access.

C. Relationship between authors’ rights and neighbouring rights i)French and Italian, have classified neighbouring rights as derivative right and thus inferior to copyrights. The main reason is fear that the enforcement of rights of performing artists could affect the exploitation of the rights of authors. Problem. neighbouring rights which can also emerge by communication of works in the public domain, in which no copyright exists.

ii) 1) relationship of the rights of performers, phonogram producers, and broadcasting organizations with rights of authors, however, is not a homogeneous one: closest link exists in regard to the rights of performers, where respect for the personality of the performer is of primary importance. To this end, it is necessary to reserve to the performer the right to consent to the first recording and broadcast of his or her personal performance. Performers must also be in a proposition to oppose, i.e. to forbid the deformation of their presentation, which could damage their reputation and professional standing. Because of the necessity for the phonogram producers and broadcasting organizations to get performers’ permission for the first fixation and broadcast of the performance, the economic interest of the performers are also at least in part secured. Thus, in the case of performers, moral as well as economic interests are to be observed.

ii) 2)The situation is different, and less comparable to that of authors, as far as the rights of phonogram producers and broadcasting organizations are concerned. Here economic interests clearly predominate and the initial right owner is not a natural person, as in the case of copyright and performers’ rights, but a corporate body, which has invested technical and organization skills and money, wishes to see them protected.

iii)there is no relationship of inferiority or superiority between copyrights and neighbouring rights. They exist parallel to each other and independently in a kind of competitive relationship. The basic principle is laid down in Rome Convention art. 1, which states that the protection granted to neighbouring rights shall leave intact and shall in no way affect the protection of copyright in literary and artistic works.

The use of copyright protected works has been supranational in character since the very beginning. Consequently, national copyright law of the Member States very soon started to be in tension with the fundamental freedoms in the common market.

specific EC Directives in the field to date 1. Rental and Lending Directive 2006/1 2. Satellite and Cable Directive 93/83 3. Term Directive 93/98 4. the Resale Right Directive 2001/84 5. Computer Program Directive 91/250 6. the Database Directive 96/9 7. the Information Society Directive 2001/29

1)The current copyright acquis covers large areas of copyright law. The substantive condition for protection has been harmonized in specific areas (computer programs, databases, photographs). The substantive threshold for protection in European law is the existence of an “own intellectual creation”. It can thus be said that this condition for protection has become a characteristic element of European copyright law as a compromise between the broad copyright protection for mere investments (“sweat of the brow”) in the U.K. and Ireland and the rather restrictive condition (originalité, Shőpfungshőhe in certain areas) on the Continent.

2)with regard to the object of protection, certain common principles can be identified in European law. Thus, the exclusion of abstract ideas and concepts from copyright law; Article 1(2) Computer Program Directive

3)rights of the author or copyright owner a)moral rights Indeed, harmonization with regard to the moral rights is still in its infancy, although the droit moral has been in principle acknowledge by the ECJ as part of the specific subject matter of copyright protection.

3)rights of the author or copyright owner b)main commercial rights Information Society Directive harmonized main commercial rights, in particular the reproduction right, the distribution right and the right of making available to the public,

c)exceptions Article 5 Information Society Directive harmonization of exceptions to copyright. 1. However, comprehensive listing of possible exceptions to copyright law of the Member States could never expect to achieve more than what might be called “virtual harmonization”.

C) 2.The crucial issue of digital private copying has been left open for the Members State to decide Substantially different catalogue of possible exceptions will at least prohibit future disharmonization on the grounds of the establishment of new exceptions to copyright by certain Member States. However, the enumerative catalogue of exceptions “freezes” this are of European copyright law

C)3. Article 5(5) Information Society Directive the incorporation of the three-step-test from international law into the European copyright acquis through According to the Three-Step-Test from international exception and limitation to copyright shall only be applied in certain special cases (first step) which do not conflict with normal exploitation of the work or other subject-matter (second step) and do not unreasonably prejudice the legitimate interests of the rightholder (third step). However, the incorporation of the three-step-test stands somewhat at odds with the detailed catalogue of optional exception in Article 5(2)-(4)

C) 4.With regard to ownership of rights and specific provisions on contracts relating to copyright, the current acquis is rather selective and narrow. the crucial issue of first ownership copyright has not been harmonized horizontally.

C) 5.Similarly, with regard to copyright contracts, fundamentally different traditions of copyright and droit d’auteur have prevented harmonization in this field. C) 6.issues of collective management and remuneration system are unsolved on the European level.

A. Primary Community law 1)ECJ’s case law concerning the applicability of Article 12 EC in the field of copyright law Phil Collins judgement has recently been consolidated in Ricordi and Tod’s any direct or indirect discrimination of authors or rightholders from another Member State on grounds of nationality must be justified by objective circumstances the established system of reciprocity rules in the international copyright laws does not provide for such objective justification.

2)The recent CISAC Decision of the Commission, on the practices of European collecting societies, stated that certain essential clause, which prevents a collecting society from offering licenses to commercial users outside their domestic territory, as well as other concerted practices between collecting societies resulting in strict segmentation of the market on a national basis, cannot be upheld. This Decision has been appealed to the CFI by CISAC and no less than 22 national collecting societies.

3)As regards Article 82 EC, the ECJ’s IMS Health case and the CFI’s Microsoft case (in the part on the access to interoperability information) have restated and slightly broadened the possibility to grant compulsory licences with respect to indispensable IPRs under certain additional conditions.

B. ECJ case law On Secondary Community law Information Society Directive 1)Laserdisken In Laserdisken principle of exhaustion of the distribution right according to Article 4(2) Information Society Directive is limited to the European Economic Area, and that the provision precludes national rules which provide that the distribution right is exhausted where the first sale or other transfer of ownership is made outside the Community. The Court thus transferred its jurisprudence against international exhaustion from patents and trademarks to the field of copyright law.

2)SGAE v. Rafael Hoteles The SGAE judgment concerned the installation of TV sets in hotel rooms which were fed by a central signal previously received by the hotel. The question whether such use could be regarded as a communication to the public according to Article 3 Information Society Directive was prejudicial for the claims of Spanish national collecting society SGAE against the Rafael Hoteles group. Article 3(1) Information Society Directive to the facts of the case.

the ECJ rests upon an interpretation of the Directive consistent with the international law provision in the field. Berne Convention and Artt. 8 and 11 bis of the WIPO Copyright Treaty (“WCT”) = specifically designed to cover the making available to the public in such a way that the place of access can be individually chosen by each member of the public. EC DIRECTIVE has to be interpreted consistent with international law the mere action of the hotel by which it gives access to the broadcast work to its customers (i.e. the installation of the TC sets and the central feeding of the signal as such) does indeed in itself communicate the work to a “new” public in a commercial context and therefore triggers the communication right according to Article 3(1) Information Society Directive.

A subsequent act of access through members of the public will be the typical consequence, but is not even a precondition of applying Article 3(1) Information Society Directive, as long as the installation and the communication to the room terminals has already made public access technically and factually possible. In particular, the fact that such subsequent access usually takes place in an individual, private setting does not preclude such an interpretation of the communication to the public right.

crucial question of detail remains unanswered: How many potential customers are needed to form a “public” in the sense of the SGAE test? “Usually hotel customers quickly succeed that they may be considered to be a public. But what if in a specific case only a very small number of customers is involved? objective of the Directive high level of protection the answer to a small number of person should suffice. Act of communication is public in the sense that at least potentially

3)Peek & Cloppenburg v. Cassina Peek & Cloppenburg v. Cassina = interpretation of the distribution right use of armchairs by Peek & Cloppenburg for the rest area in a shop, as well as the mere display of such armchairs for decorative purposes in a display window. The design of the armchairs was protected by German copyright whereas these armchairs had been manufactured in Italy where no copyright protection for such design was granted.

Against this background, the first (and essential) reference question of the German Federal Supreme Court concerned the problem of Peek & Cloppenburg already violated the distribution right according to the Article 4(1) Information Society Directive by offering third parties the possibility to merely use the armchairs without the grant of use involving a transfer of de facto power to dispose of those items. Following the Opinion of Advocate General Sharpston, the Court decided that such offer of mere use of copyright protected items to a third party without a transfer of de facto power over the items did not constitute distribution in the sense of Article 4 Information Society Directive.

interpretation of the Information Society Directive genuinely guided by the rules on the free movement of goods in the internal market. The goal of the Directive to implement four freedoms of the internal market is thus effectively balanced against the goal to establish a high level of protection. barriers to the free movement of good could clearly have followed from a broad interpretation of the distribution right as a result of differences in substantive national copyright law with respect to the question of copyright protection designs.

C. Recent Policy initiatives (overview) The centrepiece of the recent activities of the Commission in the copyright sector is the proposed retroactive term extension for performing artists and phonogram producers which is being discussed in the European Parliament and in the Council at present. (from 50 to 95 years) However, taking into account the Council’s resistance, a compromise was reached The European Parliament’s endorsement of the proposal to extend the term from 50 to 70 years was welcomed by the Commission.

International Treaties on copyright and neighboring rights.

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