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International Intellectual Property Prof. Manheim Spring, 2007 Exclusive Rights & Exceptions Copyright © 2007
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Spring, 2007Int'l IP2 Exclusive Economic Rights of © Berne Translation [Art. 8]Art. 8 Reproduction [Art. 9]Art. 9 Performance & Communication (display) [Art. 11]Art. 11 Broadcast [Art. 11bis]Art. 11bis Recitation [Art. 11ter]Art. 11ter Adaptation [Art. 12]Art. 12 Resale (droit de suite) [Art. 14ter]Art. 14ter Cinemagraphic Works [Art. 14]Art. 14 Adaptation, Reproduction, Distribution, Performance
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Spring, 2007Int'l IP3 Exclusive Economic Rights of © TRIPs Art. 9 incorporates Berne Arts. 1-21 Art. 9 Commercial Rental Rights [Art. 11]Art. 11 US [17 USC §106]17 USC §106 Reproduction Derivation (incl. adaptations) Distribution of phonorecords (incl. rental) Performance Display Digital Audio Transmission
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Spring, 2007Int'l IP4 Exceptions to Exclusive Rights Common Exceptions Fair Use Theory: balance of property & social interests Especially: 1st Amendment (US Constitution) Limited Reproduction for Educational Use First Sale Theory: © holder’s rights exhausted upon sale Compulsory Licenses Theory: social cost of exclusive right exceeds fair value to © owner; avoidance of monopoly power
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Spring, 2007Int'l IP5 Exceptions to Exclusive Rights Berne [Art. 9(2)]Art. 9(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such 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. TRIPs [Art. 13]Art. 13 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.
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Spring, 2007Int'l IP6 Problem 2-17 Does US Fair Use Exception violate TRIPs? [17 USC §107] … The fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of ©. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:17 USC §107 (1) the purpose and character of the use, including [if for] commercial … or nonprofit educational purposes (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 or value of the copyrighted work.
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Spring, 2007Int'l IP7 20th Century v. Aiken (SCt 1975) Listening to © works on single TV or Radio Does not infringe exclusive right of © Letting others listen to single TV or Radio Formal infringement of display rights SCt carves out an exception to this right Codified in Fairness in Music Licensing Act (A) “homestyle” (Aiken) exception to © Permits performance of work in public (B) Business exception - Certain extablishments can play nondramatic musical works in public
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Spring, 2007Int'l IP8 EU v. US (WTO 2000) Procedure Commencement of Dispute Resolution Process (DSP ~ complaint) in WTO by EU against US Exemption of certain performances [§110(5)]§110(5) (A) “ communication of a trans- mission embodying a perform- ance or display of a work by the public reception of the trans-mission on a single receiving apparatus of a kind commonly used in private homes ” is “ not an infringement of ©”
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Spring, 2007Int'l IP9 EU v. US (WTO 2000) (B) “ communication by an es- tablishment of a transmission … embodying a performance or display of a nondramatic musical work intended to be received by the general public, originated by a radio or tele- vision broadcast [or] by a cable system or satellite carrier, if [less than 2,000 sq. ft or 3,750 sq ft for bars & restaurants]
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Spring, 2007Int'l IP10 WTO Panel Report (2000) Exception allowed by TRIPs Art. 13 Members shall confine limitations or exceptions to exclusive rights to 1. certain special cases which 2. do not conflict with a normal exploitation of the work and 3. do not unreasonably prejudice the legitimate interests of the right holder. These are read in conjunctive (all must apply)
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Spring, 2007Int'l IP11 Certain Special Cases 1) Limited to “Certain” cases Is the US exception “clearly defined” to a “sufficient degree of legal certainty”? Business exception is defined with specificity Limited to “Special” cases Is 110(5) limited in its application or purpose? Not purpose of the law itself, but its application NB: this is in addition to the clarity requirement > 65.2% of restaurants & 71.8% of bars qualify Holding: (B) does not qualify as special case
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Spring, 2007Int'l IP12 Conflict w/ Normal Exploitation 2) Normal exploitation rights of © holders Doesn’t include all exclusive rights, or ability to make exceptions become meaningless Rights normally used to extract economic value from the © Not in conflict Uses that don’t compete economically w/ © Public, educational, and cultural uses Where © holders don’t have a way to extract value Musak?
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Spring, 2007Int'l IP13 Prejudice Interests of © Holder 3) What degree of prejudice is acceptable How much compromise to © holders’ economic interests is “reasonable”? Numerator: amount of derogation (loss) Denominator: value of exclusive rights in © How much income loss tolerated? Panel finds numerator (loss) to be too small here to be treated as “unreasonable”
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Spring, 2007Int'l IP14 WTO Case & Fair Use Exception Apply WTO §110 Case to Fair Use (§107) 1) Is the exception “clearly defined”? Or does it require a case-by-case analysis? 1) Is the exception limited to “special cases”? Any limit on fair use instances, or works covered? Is it narrowed by relative portion of work used? 2) Does “fair use” conflict w/ © expectancies? Does a means exist to collect for these uses? 3) Does “fair use” unduly prejudice legitimate (economic) interests of ©?
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Spring, 2007Int'l IP15 TRIPs Violations Effect of WTO Panel Decision: Cannot directly affect member state’s law Can authorize retaliation or Arbitration under WTO Art. 25 In EU v. US, arbitrator award > $1M / yr US has paid the fine rather than amend law Why?
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