EBS Law Term 2013 Intellectual Property Law Copyright Law: Introduction Prof. Martin Senftleben VU University Amsterdam Bird & Bird, The Hague

Intellectual property domains technology commerce culture patent law trademark law copyright law

Contents international treaties subject matter of protection protection requirements term of protection first ownership

International treaties

Important international treaties The Berne Convention for the Protection of Literary and Artistic Works (1886/1967) The Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) The WIPO Copyright Treaty (1996)

Subject matter of protection

Literary and artistic works books, writings, plays musical compositions choreography drawings, paintings sculptures, architecture cinematographic works photography

Pablo Picasso, Guernica (1937) Literary and artistic works

Charles and Ray Eames, Eames Lounge and Ottoman (1956) Literary and artistic works

‘The expression ‘literary and artistic works’ shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic and dramatico-musical works;… Art. 2(1) of the Berne Convention

choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography;… Art. 2(1) of the Berne Convention

photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art;… illustrations, maps, plans, sketches and three- dimensional works relative to geography, topography, architecture or science. Art. 2(1) of the Berne Convention

‘Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression.’ Art. 4 of the WIPO Copyright Treaty

‘Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work.’ –copyright 1: original work –copyright 2: altered version Specific rules (art. 2(3) BC)

Neighbouring rights performing artists –fixations of performances phonogram producers –with regard to phonograms film producers –with regard to the original and copies of films broadcasting organizations –fixations of broadcasts

basis: copyright (author) adaptation 1: translator + neighbouring rights adaptation 2: scenarist Copyright clusters

Exclusions from protection ‘Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.’ (Art. 2 WIPO Copyright Treaty) =idea/expression dichotomy news of the day and miscellaneous facts having the character of mere items of press information (Art. 2(8) BC: mandatory)

official texts of a legislative, administrative and legal nature, and official translations of such texts (Art. 2(4) BC: optional) political speeches and speeches delivered in the course of legal proceedings (Art. 2bis(1) BC: optional) no protection unless fixed in some material form (Art. 2(2) BC: optional) Exclusions from protection

Protection requirements

Originality work = materialization of the author’s individual personality particular link between the author and the work copyright is automatically acquired through the very act of creation no formalities = no registration requirement

No registration required (art. 5(2) BC) ‘The enjoyment and the exercise of [the rights which the respective laws of Union countries grant to their nationals, as well as the rights specially granted by the Convention] shall not be subject to any formality;...’

Originality test not harmonized test may differ from country to country protection to be determined on the basis of the applicable national law ‘Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals…’ (Art. 5(1) BC = national treatment)

Term of protection

Art. 7 BC ‘The term of protection [...] shall be the life of the author and fifty years after his death.’ –in many countries: 70 years post mortem cinematographic works –making available + 50 years (optional) anonymous or pseudonymous works –making available + 50 years photographic works, works of applied art –making of the work + 25 years (minimum)

Joint authorship (art. 7bis BC) ‘...also apply in the case of a work of joint authorship, provided that the terms measured from the death of the author shall be calculated from the death of the last surviving author.’

Photographic works (art. 9 WCT) ‘In respect of photographic works, the Contracting Parties shall not apply the provisions of Article 7(4) of the Berne Convention.’ =regular term of protection instead of making of the work + 25 years

Ownership

First ownership not harmonized Berne Convention refers to the “author” without defining it standard solution: natural person creating a work is the first owner national law may provide for other rules in certain cases –employer’s copyright –work for hire doctrine

Application of general principles ‘Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals…’ (Art. 5(1) BC = national treatment) lex loci protectionis vs. lex originis contractual choice of the applicable law advisable

first ownership assignment possible? Transfer of ownership

Art. 6bis(1) BC ‘Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work…’ waiver of moral rights in several national systems (common law vs. civil law) contracts about the exercising of moral rights null and void?

author always keeps moral rights exploitation rights may be assignable Impact on transfer of exploitation rights?

Dualistic vs. monistic theory

EBS Law Term 2013 Intellectual Property Law Copyright Law: Protection Prof. Martin Senftleben VU University Amsterdam Bird & Bird, The Hague

Contents minimum rights the copyright balance use permitted by law

Minimum rights

Two branches of rights exploitation rights general right of reproduction (art. 9(2) BC) general right of communication to the public (art. 8 WCT) moral rights claim authorship object to any distortion, mutilation, modification or other derogatory action (art. 6bis BC)

‘Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.’ (para. 1) ‘Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.’ (para. 3) Art. 9 BC: Reproduction

Public performance rights public performance (art. 11(1)(i) BC) public recitation (art. 11ter(1)(i) BC) public communication by loudspeaker (art. 11bis(1)(iii) BC) standard constellation: –fixed place, fixed time

Arts. 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii), 14bis(1) BC Art. 8 WCT Right of communication to the public

‘…the exclusive right of authorizing any communication to the public of their works, by wire or wireless means…’ standard constellation: –flexible place, fixed time –example: broadcasting (art. 11bis BC) Art. 8 WCT: Communication to the public

‘…including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.’ making available online: –flexible place, flexible time Art. 8 WCT: Communication to the public

Further examples of rights… translation (art. 8 BC) adaptation (art. 12 BC) cinematographic adaptation, reproduction, distribution, public performance and public communication (art. 14 BC) right to an interest in resales (‘droit de suite’, art. 14ter BC)

Right of distribution (art. 6(1) WCT) ‘Authors of literary and artistic works shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfer of ownership.’ But: exhaustion of the right after the first sale is left to the discretion of Contracting Parties (art. 6(2) WCT)

Right of rental (art. 7(1) WCT) ‘Authors of (i)computer programs; (ii)cinematographic works; and (iii)works embodied in phonograms, as determined in the national law of Contracting Parties, shall enjoy the exclusive right of authorizing commercial rental to the public of the originals or copies of their works.’

The copyright balance

Limitations idea/expression dichotomy: copyright only protects the individual way of expressing ideas, not ideas as such (art. 2 WCT) limited term of protection (arts. 7, 7bis BC, art. 9 WCT) use permitted by law, serving social, cultural and economic ends

Use permitted by law

Legal traditions Anglo-America fair use doctrine open factors case-by-case approach (judge) flexibility quick reactions to new developments Continental Europe statutory limitations fixed requirements closed catalogue of limitations (legislator) legal certainty slow reactions to new developments

Specific international limitations quotations, press summaries (art. 10(1) BC) articles on current topics (art. 10bis(1) BC) lectures, addresses, works of the same nature delivered in public (art. 2bis(2) BC) reporting of current events (art. 10bis(2) BC) illustrations for teaching (art. 10(2) BC)

Underlying rationale freedom of expression freedom of information dissemination of information cultural participation equal chances in the information society (no ‘digital divide’)

But also regulation of industry practice compulsory licenses concerning broadcasting, and wireless or loudspeaker communications (art. 11bis(2) BC) ephemeral recordings made by broadcasting organizations (art. 11bis(3) BC)

‘It shall be a matter for legislation in the countries of the Union to permit the reproduction of [literary and artistic] works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.’ (art. 9(2) BC) =so-called ‘three-step test’ Open-ended international ‘three-step test’

certain special case –specific form of use, limited number of beneficiaries –room for considering policy justification? no conflict with a normal exploitation –currently exploited and potential future markets –room for normative considerations? no unreasonable prejudice to legitimate interests –refined proportionality test –reduction to reasonable level by providing for the payment of equitable remuneration Criteria of the three-step test

Article 9(2) BC Article 13 TRIPS Article 10 WCT The three-step test family

‘Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.’ =three-step test becomes general yardstick for the permissibility of national limitations Art. 13 TRIPS

scope of the three-step test specific international limitations Impact of the three-step test on specific limitations

scope of the three-step test specific international limitations Impact of the three-step test on specific limitations

‘It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment.’ Agreed Statement Concerning Art. 10 WCT

The end. contact:

ANNEX: Protection of Technological measures

Technological measures (art. 11 WCT) ‘…effective technological measures that are used by authors in connection with the exercise of their rights […] and that restrict acts […] which are not authorized by the authors or permitted by law.’ protected against circumvention exemption of permitted use realistic?

Ideal world – feasible in practice? scope of copyright = scope of protection of technological measures

Rights management information (art. 12 WCT) ‘…information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work…’ protected against removal or altering facilitation of e-commerce likely to be accepted by consumers?

limitationscontracts technological measures The role of digital rights management artificial extension of copyright? a threat to copyright’s balance? successful business model?