1. TRIPS and IP-Related Matters Mauritius, 5 March 2014 Mauritius Copyright Legislation and TRIPS Prof. Dr. Martin Senftleben VU University Amsterdam

2. TRIPS Agreement WIPO Copyright Treaty Beijing Treaty Marrakesh Treaty International Framework

3. protection requirements term of protection minimum rights limitations and exceptions technological measures neighbouring rights Contents

4. Protection requirements

5. Pablo Picasso, Guernica (1937) Literary and artistic works

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

16. ‘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;...’ (Art. 5(2) BC) No registration required

17. 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 originality test = central threshold for determining eligibility for protection But originality

18. protection against unfair competition trademark, trade name and geographical indications law patent and industrial designs law copyright High level of creativity required?

19. protection against unfair competition patent and industrial designs law copyright trademark, trade name and geographical indications law Or skill and labour sufficient?

20. Term of protection

21. 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)

22. 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.’

23. 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

24. Minimum rights

25. 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)

26. ‘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

27. 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)

28. 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.’

29. 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)

30. 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

31. 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

32. ‘…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

33. ‘…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

34. primary acts secondary acts Conceptual contours

36. © Bird & Bird LLP 2011 Subject matter | Client details Pa ge 36

37. Limitations and exceptions

38. freedom of expression freedom of information dissemination of information education and cultural participation equal chances in the information society (no ‘digital divide’) Underlying rationales

39. 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 Legal traditions

40. 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) Specific international limitations

41. compulsory licenses concerning broadcasting, and wireless or loudspeaker communications (art. 11bis(2) BC) ephemeral recordings made by broadcasting organizations (art. 11bis(3) BC) Specific international limitations

42. Marrakesh Treaty ‘Contracting Parties shall provide in their national copyright laws for a limitation or exception to the right of reproduction, the right of distribution, and the right of making available to the public as provided by the WIPO Copyright Treaty (WCT), to facilitate the availability of works in accessible format copies for beneficiary persons. The limitation or exception provided in national law should permit changes needed to make the work accessible in the alternative format.’ (Art. 4(1)(a))

43. Marrakesh Treaty ‘Contracting Parties shall provide that if an accessible format copy is made under a limitation or exception or pursuant to operation of law, that accessible format copy may be distributed or made available by an authorized entity to a beneficiary person or an authorized entity in another Contracting Party.’ (Art. 5(1)) importation in other Contracting Parties made possible by Art. 6

44. ‘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 limitation

45. Article 9(2) BC Article 13 TRIPS Article 10 WCT Three-step test family

46. ‘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 on Art. 10 WCT

47. Title of the presentation

50. Technological measures

51. ‘…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.’ (Art. 11 WCT) protected against circumvention Technological measures

52. ‘…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…’ (Art. 12 WCT) protected against removal or altering facilitation of e-commerce Rights management information

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

54. Neighbouring rights

55. performing artists –fixations of performances, including audiovisual fixations (Beijing Treaty) phonogram producers –with regard to phonograms film producers –with regard to the original and copies of films broadcasting organizations –fixations of broadcasts

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

57. The end. contact: m.r.f.senftleben@vu.nl