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Copyrights Under Berne © 2006 David W. Opderbeck.

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Presentation on theme: "Copyrights Under Berne © 2006 David W. Opderbeck."— Presentation transcript:

1 Copyrights Under Berne © 2006 David W. Opderbeck

2 Berne Convention -- History 1858, 1861, Congress of Authors and Artists, Brussels – international meetings urging governments to pass international protection for authors 1858, 1861, Congress of Authors and Artists, Brussels – international meetings urging governments to pass international protection for authors 1878 – the International Association presided by Victor Hugo – call for a Union to protect intellectual property 1878 – the International Association presided by Victor Hugo – call for a Union to protect intellectual property –1883 meeting in Berne, Switzerland – draft treaty produced; Swiss government invited interested nations to participate

3 Berne Convention -- History 1886 – Berne Convention meeting -- Convention agreed to; still forms the backbone of the current Berne Convention 1886 – Berne Convention meeting -- Convention agreed to; still forms the backbone of the current Berne Convention Fundamental principle is national treatment; also some minimum standards Fundamental principle is national treatment; also some minimum standards Moral rights requirements – rights of authors to authorize public representation of dramatic works and public performance of musical works if authors local country provided for such rights Moral rights requirements – rights of authors to authorize public representation of dramatic works and public performance of musical works if authors local country provided for such rights Revised in 1948 to enact a life-plus-fifty year term as minimum requirement Revised in 1948 to enact a life-plus-fifty year term as minimum requirement Revised in 1928 to require right of public performance and representation as a minimum right Revised in 1928 to require right of public performance and representation as a minimum right

4 Berne Convention – Key Substantive Provisions – Subject Matter, Formalities, Term Article 2 – Subject Matter Article 2 – Subject Matter Article 2 – Subject Matter Article 2 – Subject Matter Article 2bis – Govt Documents Article 2bis – Govt Documents Article 2bis – Govt Documents Article 2bis – Govt Documents Article 3 – the Geographical Criterion Article 3 – the Geographical Criterion Article 3 – the Geographical Criterion Article 3 – the Geographical Criterion Article 4 – the Geographical Criterion and film and architecture Article 4 – the Geographical Criterion and film and architecture Article 4 – the Geographical Criterion and film and architecture Article 4 – the Geographical Criterion and film and architecture Article 5 – National Treatment; abolishment of formalities Article 5 – National Treatment; abolishment of formalities Article 5 – National Treatment; abolishment of formalities Article 5 – National Treatment; abolishment of formalities Article 6bis – Moral Rights Article 6bis – Moral Rights Article 6bis – Moral Rights Article 6bis – Moral Rights Article 7 – Term Article 7 – Term Article 7 – Term Article 7 – Term Article 7bis – Term and Joint Authorship Article 7bis – Term and Joint Authorship Article 7bis – Term and Joint Authorship Article 7bis – Term and Joint Authorship

5 Berne Convention – Key Provisions – Scope of Protection Article 8 – Right of Translation Article 8 – Right of Translation Article 8 – Right of Translation Article 8 – Right of Translation Article 9 – Right of Reproduction Article 9 – Right of Reproduction Article 9 – Right of Reproduction Article 9 – Right of Reproduction Article 10 – Fair Use Article 10 – Fair Use Article 10 – Fair Use Article 10 – Fair Use Article 10bis – News Reporting Article 10bis – News Reporting Article 10bis – News Reporting Article 10bis – News Reporting Article 11 – Public Performance Article 11 – Public Performance Article 11 – Public Performance Article 11 – Public Performance Article 11bis – Broadcast Rights Article 11bis – Broadcast Rights Article 11bis – Broadcast Rights Article 11bis – Broadcast Rights Article 11ter – Public Recitation Article 11ter – Public Recitation Article 11ter – Public Recitation Article 11ter – Public Recitation Article 12 – Adaptation Article 12 – Adaptation Article 12 – Adaptation Article 12 – Adaptation Article 13 – Sound Recordings Article 13 – Sound Recordings Article 13 – Sound Recordings Article 13 – Sound Recordings Article 14 – Cinematographic Works Article 14 – Cinematographic Works Article 14 – Cinematographic Works Article 14 – Cinematographic Works Article 14bis – Limitations on Cinematographic Works Article 14bis – Limitations on Cinematographic Works Article 14bis – Limitations on Cinematographic Works Article 14bis – Limitations on Cinematographic Works

6 Berne Convention – U.S. Resistance U.S. for many years objected to Article 6bis (moral rights) and Article 5(2) (formalities). U.S. did not join Berne until 1989, instead joined Universal Copyright Convention, which allowed for formalities. U.S. for many years objected to Article 6bis (moral rights) and Article 5(2) (formalities). U.S. did not join Berne until 1989, instead joined Universal Copyright Convention, which allowed for formalities. Presently the U.S. only protects moral rights in a limited way for works of visual art (defined as limited edition signed and numbered works) and even then excludes moral rights for works for hire. Presently the U.S. only protects moral rights in a limited way for works of visual art (defined as limited edition signed and numbered works) and even then excludes moral rights for works for hire.

7 Copyrights Under Berne – Moral Rights Moral Rights under Berne include: Moral Rights under Berne include: –Patrimony: accurately identify the creator of the work –Integration: the work may not be distorted, mutilated or modified, and no derogatory action may be taken against the work Other moral rights may include: Other moral rights may include: –Withdrawal: artist may withdraw the work from public display or distribution (though artist may have to pay economic damages to exercise this right) –First publication: artist may control the first publication of the work

8 Copyrights Under Berne – Moral Rights – Barcarola Case Facts: Facts: –Part of music from opera used in TV commercial (music: mU) mU mU Issues: is use of operatic music in TV commercial per se prejudicial of the honor and reputation of the author Issues: is use of operatic music in TV commercial per se prejudicial of the honor and reputation of the author Holding: violation of moral right cannot be considered in the abstract. Commercials may have their own artistic integrity. Holding: violation of moral right cannot be considered in the abstract. Commercials may have their own artistic integrity.

9 Copyrights Under Berne – Moral Rights – Plymouth Case Facts: Facts: –P produced brochures for city council promoting the dome (now a defunct attraction) –D city council subsequently completed a brochure using Ps visuals (drawings) –Visuals were altered to suit the brochures: extraneous background elided, color alterations (pre-Photoshop: done with scissors and paint) Issue: Issue: –Was Ds use derogatory of Ps work and thus an infringement of moral rights

10 Copyrights Under Berne – Moral Rights – Plymouth Case Analysis: Moral Rights Analysis: Moral Rights –Moral rights cannot be waived under U.K. statute except in written instrument –Derogatory use means the treatment accorded to the work is either a distortion or a mutilation that prejudices [the artists] honor or reputation as an artist. It is not sufficient that the author himself is aggrieved by what has occurred. It is not sufficient that the author himself is aggrieved by what has occurred. Holding: the color variations and cropping are typical in brochure work and do not demean the honor or reputation of the artist. Holding: the color variations and cropping are typical in brochure work and do not demean the honor or reputation of the artist. –Not analogous to colorizing a black and white film, which a French court had held to be a violation of moral rights

11 Copyrights Under Berne – Moral Rights – How Not to be Seen kiZYSVdeQ kiZYSVdeQ mU2IUH-bk mU2IUH-bk

12 Copyrights Under Berne – Who is an Author No fixed definition of an author – left to national law No fixed definition of an author – left to national law U.S. – the creator of a work is the author, except if the work is a work for hire U.S. – the creator of a work is the author, except if the work is a work for hire UK – Similar rule to U.S. UK – Similar rule to U.S. France – Employer has an economic right in the work, but employee retains non-transferable moral rights France – Employer has an economic right in the work, but employee retains non-transferable moral rights Germany – Employer gains neither economic nor moral rights; may gain economic rights only through contract Germany – Employer gains neither economic nor moral rights; may gain economic rights only through contract

13 Copyrights Under Berne – Authorship – Plymouth Case Issue: Issue: –Did P give up copyright generally by taking on the commission, or did P only license the use of his drawings on the specific brochures P produced? Analysis: Analysis: –U.K. statute: where a literary, dramatic, musical or artistic work is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary.

14 Copyrights Under Berne – Authorship – Plymouth Case Analysis: Analysis: –U.K. statute: where a person commissions the taking of a photograph, or the painting or drawing of a portrait, or the making of an engraving, and pays or agrees to pay for it in money or moneys worth, and the work is made in pursuance of that commission, the person who so commissioned the work shall be entitled to any copyright subsisting therein….

15 Copyrights Under Berne – Authorship – Plymouth Case Holding: Holding: –The scope of the commission here entailed a transfer or full copyright, not merely a license to use the drawings as incorporated into the brochures originally produced by P –Even if the commission did not extend this far, D had an implied license to use the drawings in later brochures

16 Copyrights Under Berne – Who is an Author – Reid Case

17 Issue: Issue: –Was the statue a work for hire under the scope of employment provision of the definition of work for hire under U.S. law Analysis Analysis –Where Congress uses terms with settled meanings look to common law –Terms such as employee or employment derive from the common law of agency

18 Copyrights Under Berne – Who is an Author – Reid Case Analysis Analysis –under common law of agency, must determine the hiring partys right to control the manner and means by which the product is accomplished. –Restatement § 220(2) of Agency: Factors include skill required; source of instrumentalities and tools; location of the work; duration of parties relationship; whether hiring party has right to assign additional projects to the hired party; extent of hired partys discretion over when and how long to work; method of payment; hired partys role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; provision of employee benefits; tax treatment of the hired party

19 Copyrights Under Berne – Who is an Author – Reid Case Analysis Analysis –Here, Reid was a skilled sculptor, supplied his own tools, worked in his own studio making daily supervision impossible, was retained for less than two months, was not further bound to CCNV, had freedom as to when and where to work, had discretion over which assistants to hire, and CCNV did not pay payroll, Social Security, insurance or workers comp. –Therefore, the sculpture was not a work for hire and Reid owns the copyright.

20 Copyrights Under Berne – Fair Use Analysis Analysis –Recall Berne Article 10(2): It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice. –And 10bis(2): It shall also be a matter for legislation in the countries of the Union to determine the conditions under which, for the purpose of reporting current events by means of photography, cinematography, broadcasting or communication to the public by wire, literary or artistic works seen or heard in the course of the event may, to the extent justified by the informatory purpose, be reproduced and made available to the public. –And 10bis(2): It shall also be a matter for legislation in the countries of the Union to determine the conditions under which, for the purpose of reporting current events by means of photography, cinematography, broadcasting or communication to the public by wire, literary or artistic works seen or heard in the course of the event may, to the extent justified by the informatory purpose, be reproduced and made available to the public.

21 Copyrights Under Berne – Fair Use – KCAL Case Background: i0JwNug Background: i0JwNug i0JwNug i0JwNug Oliver_Denny Oliver_Denny

22 Analysis Analysis –Purpose and character of use – KCAL used the video as part of a news story, but had been refused a license, and gave no attribution to LANS KCAL could have paid for its own helicopter and crew, but instead chose to rid[e] on LANS … coattails. KCAL could have paid for its own helicopter and crew, but instead chose to rid[e] on LANS … coattails. –Nature of the copyrighted work -- Informational / news, and previously published – favors KCAL –Amount and substantiality of portion used – small amount, but qualitatively substantial – weighs against KCAL –Effect on market – didnt destroy market for first publication, but did potentially affect market for licenses –Conclusion: not clearly fair use (no summary judgment) Copyrights Under Berne – Fair Use – KCAL Case

23 Copyrights Under Berne – Fair Use – BBC Case

24 Analysis Analysis –Section 30 of British copyright Act: Fair dealing... for the purpose of criticism or review... provided that it is accompanied by a sufficient acknowledgement Fair dealing... for the purpose of criticism or review... provided that it is accompanied by a sufficient acknowledgement Fair dealing... for the purpose of reporting current events... Provided that... It is accompanied by a sufficient acknowledgement Fair dealing... for the purpose of reporting current events... Provided that... It is accompanied by a sufficient acknowledgement –But no acknowledgement is required in connection with the reporting of current events by means of a sound recording, film, broadcast or cable programme. There is no longer an absolute monopoly to which a proprietor of broadcasting copyright is entitled. Parliament has eroded that monopoly by permitting fair dealing with the copyright work for the purpose of reporting current events. There is no justification for limiting the statutory defense so as to apply only to reporting current events in a general news programme There is no longer an absolute monopoly to which a proprietor of broadcasting copyright is entitled. Parliament has eroded that monopoly by permitting fair dealing with the copyright work for the purpose of reporting current events. There is no justification for limiting the statutory defense so as to apply only to reporting current events in a general news programme If anything, the BSB news reports, with their use of the excerpts, would have been likely … to have whetted the appetite of the football enthusiast. If anything, the BSB news reports, with their use of the excerpts, would have been likely … to have whetted the appetite of the football enthusiast. Conclusion: not in any sense a borderline case – clearly fair dealing Conclusion: not in any sense a borderline case – clearly fair dealing


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