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IPR > Copyright > Flashcards

Copyright Flashcards

1
Q

What is or can be copyright protected?

A

Authorial works

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2
Q

HISTORY Berne Convention 1886

A

Contains:

  • Minimum standards for copyright law
  • No discrimination
  • Automatic copyright (no registration required)
  • Term: At least 50 years after author’s death
  • Specific copyright exceptions
  • three step test
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3
Q

Three-step-test (Berne)

A

In addition to specific exceptions, the Berne Convention contains a ”three-step-test”, which established that members may develop their own exceptions as long as the exception is, cf. Art. 9(2):

  1. limited to certain special cases
  2. that the exception does not conflict with a normal exploitation of the work
  3. that the exception does not unreasonably prejudice the legitimate interests of the author
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4
Q

HISTORY Rome Convention 1961

Full name: […] for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations

A

Extended copyright protection from authors of the work to creators and owners of particular, physical manifestations.

Covers performers and producers under copyright:
1. Performers’ acts are protected, cf. Art 7
2. Producers right to authorise or prohibit the direct or indirect reproduction of their recordings, cf. art. 10.
3. Broadcasting organisations enjoy the right to authorise or prohibit certain acts, cf. art 13
Also includes exceptions, cf. art. 15:
Private use, use of excerpts for reporting, education, science etc.

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5
Q

EU Copyright Framework Today

A

No full harmonisation in the form of an EU Copyright Regulation.

Copyright is instead regulated under national laws of each member state
Although there is no EU Regulation, there is still a lot of harmoninasation in the form of many directives
Each member state need to enact the directives in their own national laws

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6
Q

Main copyright directives

A

Main copyright directives:
Information Society Directive (InfoSoc Directive)
The Computer Programs Directive
The Term Directive
The Database Directive (databases will be covered in another lecture)
The E-commerce Directive
The new Directive on Copyright in the Digital Single Market (DSM Copyright Directive)

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7
Q

Copyright challenges today

A

Copyright’s main rivals & challenges today:
Copyright vs. freedom of speech
Copyright vs. consumer rights
Computers and the internet

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8
Q

Information Society Directive (Infosoc) (2001)

A

The basic obligations with respect to copyright
Closest instrument to an EU Copyright Directive
Art. 2: Reproduction right
Art. 3: Right of communication to the public of works and right of making available to the public other subject-matter
Art. 4: Distribution right
Art. 5: Exceptions and limitations
Art. 6: Protection against tech-circumvention measures (Copy protection, DRM, cracks)

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9
Q

EU Computer Programs Directive (1991 + 2009)

A

Art 1 (1): Computer Programs protected as literary works within the meaning of the Berne Convention
Art. 1 (3): Originality standard: ‘author’s own intellectual creation’.
Art. 1 (2): Protection to the ‘espression in any form’ of a computer program
Art. 4: Exclusive Rights
Permanent or Temporary Reproduction
Translation, adaptation
Distribution, subject to exhaustion
Art. 5 - 6: Exceptions
Reproduce and adapt for normal use
Back-up, observe, study
Decompile (‘reverse engineering’)

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10
Q

The Term Directive (1993 + 2011)

A

Sets the term lenghts of copyright protection

Art. 1: Author’s right – 70 years after death of author
Art. 2: Cinematographic or audiovisual works – 70 years after death of the principal director
Art. 3: Related rights/Performer’s rights – 50 years after the first publication/
Art. 4: Protection of previously unpublished works - 25 years after publication
Art. 5: Critical and scientific publications - 30 years after
Art. 6: Photographs – Same as author’s work, if intellectual creation

In Denmark, photographs, which are not of intellectual creation, is protected for 50 years (not for self-portrais by order).

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11
Q

The E-commerce Directive

A

A framework for electronic commerce
Aim: Remove obstacles to cross-border online services
Limits liability of Internet intermediaries and ISPs

Of especially importance to copyright: Liability of intermediaries for infringement, cf. Art. 12-14

In some specific instances, Internet intermediaries are exempt from liability for copyright infringements, specifically if the activity is:
Mere conduit
Caching
Hosting

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12
Q

The Directive on Copyright in the Digital Single Market (DSM Copyright Directive)

A

Aim: Balance rights holder interests vs. public interests such as freedom of expression, information and Internet access in the modern era.
Strong, harmonized author’s rights in digital spaces

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13
Q

The Requirements for Copyright Protection

A

Copyright subsist in any subject-matter that:
A. Is of a protectable type
B. Is sufficiently connected to the territory of the protecting state
C. Satisfies any applicable formalities.

Identifying the subject matter in question
A novel: what is protected? (plot, characters, literallanguage)

Only expression of copyrighted work, not idea or facts

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14
Q

Copyright and related rights

A

Copyright Berne Convention

Related rights Rome Convention
performance, broadcasting, phonograms, databases is the

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15
Q

Two-step test to achieve copyright protection:

Case C-5/08 Infopaq International A/S vs. Danske Dagblades Forening

A

Original works that express an author’s own intellectual creation.

This definition has been repeatedly affirmed in EU case law:

Case C-5/08 Infopaq International A/S vs. Danske Dagblades Forening
To meet the definition above, the work must be a bounded expressive object that is the result of the >author’s free and creative choices< and bears the author’s mark.
There is a two-step test to determine the above:
1. Does the type of creation leave scope for free and creative choices?
2. Did the author exploit the mentioned scope in step 1?

No other requirements must be demanded for >copyright protection as an authorial work

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16
Q

Case 145/10 Painer vs. Standard Verlags GmbH (Photographs)

A

Do portrait photographs have copyright protection, and is it weaker than protection for other works?
The CJEU:
“Simplicity is no bar”
“creative choices in setting up, shooting and developing the photo can make so that the author of a portrait photograph has stamped the work created with his ‘personal touch’.”
“nothing in any EU directive “supports the view that the extent of protection should depend on possible differences in the degree of creative freedom in the production of various categories of works””

Court of Justice confirmed: If something is an authorial work protected by Copyright, its simplicity or realism will not limit the scope of depth of its copyright protection

“Weaker copyright protection” is not a thing

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17
Q

CJEU

A

Court of Justice

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18
Q

G-Star v. Cofemel, C-683/17:

A

Does EU law
prevent Member States from granting copyright protection to designs subject to requirements other than originality, e.g., a high level of artistic (or aesthetic) value?

MSs cannot demand aesthetic effect for copyright protection.
On the other side, copyright protection cannot be given because of aesthetic effect.
The important thing is still: is it an intellectual creation based on free and creative choices by the maker?

19
Q

CJEU & originality criterion*

A
  1. The creation is the author‘s own original creation.
  2. The creation reflects his/her personality.
  3. The author, in conjunction with the creation of his/her work, has been able to express his/her creative ability by making free and creative choices and thus stamping his/her ‘personal touch’ on the work.
20
Q

Computer Programs

A

Computer Programs Directive Art. 1:
”Member States shall protect computer programs, by copyright, as literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works.”

The form wherein the program is written by a programmer, ie. the source code is protected
Not the underlying idea

21
Q

C-393/09, Bezpečnostní softwarová asociace v. Ministerstvo kultury

A

“A graphic user interface is not a form of expression of a computer program within the meaning of software directive art. 1(2)… and cannot be protected by copyright as a computer program under that directive”

“Nevertheless, such an interface can be protected by copyright as a work by Infosoc… if that interface is its author’s own intellectual creation.”

22
Q

C-406/10 SAS Institute v. World Programming Ltd

A

“Software directive art 1(2) must be interpreted as meaning that neither the functionality of a computer program nor the programming language and the file format used in a computer program in order to exploit certain of its functions constitute a form of expression of that program and, as such, are not protected by copyright in computer programs for the purposes of that directive

23
Q

CJEU & originality criterion*

A

The creation is the author‘s own original creation.
The creation reflects his/her personality.
The author, in conjunction with the creation of his/her work, has been able to express his/her creative ability by making free and creative choices and thus stamping his/her ‘personal touch’ on the work.

24
Q

The Requirements for Copyright Protection

A

Copyright subsist in any subject-matter that:
A. Is of a protectable type
B. Is sufficiently connected to the territory of the protecting state
- 2. The second requirement: If a protectable subject matter is established, then it is necessary to determine whether the work is sufficiently connected to the territory of the protecting member state.

C. Satisfies any applicable formalities.
- 3. Third and final requirement: any applicable formalities must be met.

25
Q

What rights do author’s enjoy over their copyright protected works?

A 
The Reproduction Right
Right of: 
* Communication,
* Distribution, 
  - Rental, Lending and Resale
26
Q

Direct vs. indirect Reproduction

A

Infosoc Art. 2:

Member States shall provide for the exclusive right to authorise or prohibit >direct or indirect

27
Q

Direct reproductions

A

Reproducing directly from the original work
Copying and sharing a file (for example a pirated movie or song)
Copying an entire article (for example copying and publishing on a blog)
Copying the design of a copyright protected design furniture
But also photographing a painting and writing a poem as it is being told out loud

28
Q

Indirect reproduction

A

Example: Producing a sculpture from a person’s description of an existing sculpture and without ever seeing it.

29
Q

idea/expression distinction

A

distrinction between what are merely underlying ideas and what are parts of the authorial work that actually contributes to the intellectual creation’s expression

30
Q

Copyright does not protect ideas, but are ideas not “part” of a work?

A

Hamilton, the musical:
Idea: A musical autobiography of Alexander Hamilton
Expression: The plot and story beats, characterization, songs, choreography, performances.

Separating the idea from the expression
necessary in order to determine if the reproduction right has been infringed upon

31
Q

Infopaq International A/S v Danske Dagblades Forening, C-05/08

A

A Danish media monitoring service which services its subscribers by finding and summarizing news articles from the subscriber’s set search keyword/criteria. A newspaper association sued them.

Conclusion: Infopaq was infringing upon newspapers right of reproduction.

32
Q

What is a public?

A

Definition: An indeterminate and fairly large number of people. No set minimum, but needs to be a fairly large number of people.

33
Q

SGAE v. Raphael Hoteles Case C- 306/05

A

A hotel retransmittingtv-broadcast to its rooms by means of cable.

34
Q

What is a “new” public?

A

A group not comtemplated by the rights holder when consenting to the original transmission

35
Q

Two instances where hyperlinking is an infringement:

A
  1. The hyperlinking enables the circumvention of accesibilityrestrictions (“New public”) (Svensson)
  2. The hyperlinker knew or should knowthat the work had been posted on the third party website without permission
36
Q

What does “anyform ofdistribution to the public by sale orotherwise” entail?

A

C-5/11 (Donner): Italian company selling counterfeit furniture that was not protected in Italy, but it was protected in Germany.

  • The sale to German consumerswas an infringement of Distribution Right.
    - Directedmarketing: specific delivery system and payment method
    - Therefore the German market was enabled and the furniture was seen as distributed in Germany where the furniture was copyright protected

C-516/16 (Knoll):

  1. The distribution right covers the mere act of offering the original and copies to the public for sale
  2. Both binding and non-binding contractual offers are also covered

C-572/17 (Syed)
Merely storing infringing goods canbe deemedto be “distribution”,if
The goods are stored in a juristiction where they’re infringing goods
The one storing the infringing goods is a retailerwho offers identical goods in a store within the same juristiction.

37
Q

Does the Distribution Right make it so that you cannot sell your consumer goods second hand?

A

Exhaustion, cf. Infosoc rec. 28

38
Q

Exhaustion of rights principle

A

Exhaustion of rights principle

Rights holder can’t use the exclusivity rights in order to oppose the further commercialisation, once these products have been placed in the market by him or with his consent.

–> As such, the buyer of a copy of a work can resell that copy to subsequent buyers.

NB!: Until the UsedSoft decision the principle only applied to the sale of tangible copies of copyright works. The UsedSoft decision by ECJ ruled that the owner of copyright in software cannot prevent a perpetual licensee who has downloaded the software from the internet from selling his ‘used’ licence.

NBNB: Tom Kabinett. UsedSoft is an exception. In Tom Kabinett the ECJ ruled that sale of used ebooks cant happen without permission from the rights owner. This is different from Infosoc directive art. 4

39
Q

Authorial work protected by copyright

A

Anne Black case

40
Q

Infringement of reproduction right?

A

Anne Black case

41
Q

Database

A

Database Directive art. 1(2): “…a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.”

  • Independent works: The content of the database must beindependent from each other
    Individually accessible: They must be retrievable on their own. Doesn’t matter if the material is copyright protected or not.

Both electronic and non-electronicdatabases are covered (Bothencyclopedia collections and Wikipedia.com)

  • Arranged in a systematic or methodical way:

C-444/02 (Fixtures Marketing v. OPAP):
Thus you should ask: “Does the independent work have value for third parties on its own?”

42
Q

The Database Right – Sui Generis

A

Sui generis: types of works not falling under general copyright law but protected through separate statutes

If there has been qualitatively and/or quantitively a substantial investment […] then makers of such a database has the exclusive right to it

The rights are afforded to >the maker< who is the person who takes the initiative and risk of investing in obtaining, verifying an presenting the contents of the databse., cf. database directive, rec. 41.

Length: 15 years.

43
Q

The database right - who can use the database?

A

Art. 8(1): Lawful users of the database can extract/retutilize insubstantial parts of a database

Member states can provide the following copyright and sui generis right limitations, cf. Art. 6(2) and 9:

  • Private reproduction, cf. Art 6(2), litra a and 9, litra a.
  • Research and teaching, cf. Art. 6(2), litra b and 9, litra b.
    - Provided that it can be illustrated that the reproduction is for non-commercial teaching or scientific research and that a source is indicated.
    • For copyright: any use
    • For sui generis right: only extraction
      - Thus not reutilization, such as a communication to the public.
  • Purposes of public security or an administrative or judicial procedure, cf. Art 6(2), litra c and 9, litra c.
    Member states can provide other limitations on copyright (only), cf. Art. 6(2), litra d.
    - However, the exception must adhere to the three-step test in the Berne Convention
44
Q

Case question: Copyrighted Database, Sui Generis Database, or both or neither?

A
  1. A list of your favourite restaurants in Copenhagen?
  2. The Copenhagen public telephone directory
  3. The Bayern Munchen official website with all this season’s football scores
  4. The dictionary of the Danish language
  5. The entire book collection of the KU library
  6. A topographical map of the city of Copenhagen

IPR (5 decks)

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