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IP law > COPYRIGHT > Flashcards

COPYRIGHT Flashcards

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1
Q

notes to read

A
  • berne Convention was the main one up until 1990s and then TRIPS incorporates all of Berne convention
  • ## this is because berne convention can only be changed by all the countries agreeing so they established new one
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2
Q

what is the Marrakesh treaty for

A

to ensure that the copyright materials are available to everyone (visual impairment)

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3
Q

What are the main international treaties on copyright

A
  • berne convention
  • TRIPS
  • WIPO copyright treaty
  • Marrakesh treaty
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4
Q

what are the main international treaties on copyright protection for neighbouring rights

A
  • rome convetion
  • WIPO performers and phonograms treaty
  • Beijing treaty
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5
Q

what is protected by copyright

A

expressions not the ideas

Literary and artistic works

  • books, writings, plays, paintings, drawings, photography, computer games, maps, furniture
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6
Q

What does the Berne convention define as literary and artistic works

A

Article 2(1)
- every production in the literary scientific and artistic domain whatever the mode or form if its expression

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7
Q

what states that computer games are protected

A

article 4 WIPO copyright treaty

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8
Q

how are alterations of productions like translations, adaptations, arrangements of music protected without prejudice to the copyright in the original work

A
  • Article 2(3) berne convention
  • same level of protection
  • requires permission but it is a separate copyright
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9
Q

how do you navigate when a book has a film, a translator, scenarist?

A

copyright to each individual person
- neighbouring rights to those related in its production

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10
Q

who gets neighbouring rights

A
  • performing artists
  • phonograms
  • broadcasting organisations
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11
Q

what are the different layers and protection to recorded music

A

1 - copyright on musical composition for COMPOSER
2 - copyright on the lyrics for LYRICIST
3 - copyright on sound recording for PRODUCER
4- neighbouring rights for performers

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12
Q

what is excluded from protection

A
  • ideas
  • news of the day
  • official texts of legislative, administrative and legal nature official translations of the texts.
  • political speeches
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13
Q

why is there protection

A
  • incentive for the creation of works
  • reward for creative work
  • engine of freedom of expression
  • development of cultural identity
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14
Q

what are the requirements for protection

A

copyright us automatically acquired through the very act of creation there is no formalities

need to show originality thats all

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15
Q

what are the consequences of no formalities

A

ADVANTAGE = no formal threshold means that works are protected straight away which makes it more accessible for those who cannot easily access things.

DISADVANTAGE =
proving ownership and the date of creation can be more challenging without a formal registration record.
- there is no data resource which makes it hard to find info and ask for permission.

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16
Q

what is a problem with the originality test

A

the originality test differs from country to country meaning that protection is based on applicable national law.

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17
Q

what is the level of protection

A

it differs depending where you create it,
Article 5(3) Berne convention states that protection in country of origin of product is governed by domestic law.

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18
Q

what is the term of protection

A

life of author + 70 years

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19
Q

what are the exceptions to the term of protection

A

Article 7 berne convention
- cinematographic works = date it was made available + 50 years
- Anonymous works = date It was made available + 50 years
- photographic works = creation of the work +25 years

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20
Q

what is the term of protection for joint authorship

A

Death of last surviving author + 70 years

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21
Q

What is an author

A

Berne convention refers to author but doesn’t define it
= NATURAL PERSON

22
Q

if AI is involved can it be protected ?

A

if human creativity is involved.

23
Q

Is there national treatment?

A

countries of the union are also protected.

24
Q

how it copyright law enforced

A

on an international scale, states vs states not country vs same country

25
Q

what is the criteria of eligibility for protection

A

article 3 berne convention
- protection of berne is given o
1. Protection under the convention applies to authors who are nationals of one of the countries in the Berne Union, for all of their works, regardless of whether those works are published.
2. Authors who are not nationals of a Union country but have published their works first in a Union country, or simultaneously in a Union and a non-Union country, also receive protection.
3. Authors who are not nationals of a Union country but habitually reside in one are treated as nationals of that country for the purposes of the convention. This means they are afforded the same protections as nationals.

26
Q

what is the criteria of cinematographic works, works of architecture and certain artistic works

A

article 4
1. Article 4 extends protection to works that are published in several countries of the Union simultaneously. This is crucial because it ensures that a work receives uniform protection across all Berne Union countries, regardless of where it was first published.
2. For a work to be considered simultaneously published under the Berne Convention, it must be published in two or more countries within 30 days of its first publication.

27
Q

Which articles relate to article 3 of the world copyright treaty and what does it mean

A
  • ‘Contracting Parties shall apply mutatis mutandis the provisions of
    Articles 2 to 6 of the Berne Convention in respect of the protection provided
    for in this Treaty’
  • Article 3 often reiterates that the protection provided under the WCT does not replace or affect the protection of copyright under the Berne Convention. Essentially, it ensures that the protections and rights afforded by the Berne Convention remain in force and are complemented by the WCT, especially in the context of the digital environment.
28
Q

what is the principle of national treatment for copyright protection

A

Authors from countries that are part of the Berne Convention (members of the Union) must be given the same rights in each of the other member countries as those countries give to their own authors.

29
Q

what are the minimum rights

A

In the context of copyright law, exploitation rights and moral rights represent two fundamental categories of rights that authors and creators have over their works. These rights serve different purposes but together ensure that creators can control the use of their works and maintain their personal connection to them.

30
Q

what are exploitation rights

A

Exploitation rights, also known as economic rights, allow the creator to commercially benefit from their work. These rights are usually assignable, licensable, and transferable, meaning that the creator can sell or license them to others.
- article 9(1) berne - right of reproduction
- article 8 WCT - general right of communication to the public

31
Q

what are moral rights

A

Moral rights are aimed at protecting the personal and reputational relationship between the creator and their work. Unlike exploitation rights, moral rights are generally non-transferable and persist even after the economic rights have been sold or licensed.
- article 6 Berne - 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, which would be prejudicial to his honor or reputation

32
Q

what is the reproduction right under the WCT

A

the exceptions under the Berne Convention article 9, fully apply to the digitial world.
- the storage of a protected work in digitial form in an electronic medium constitutes a reproduction within the meaning of article 9 of the Berne Convention.

33
Q

what are public performance rights

A

Article 11 Berne Convention
-deals with the rights related to dramatic, musical, and literary works, focusing on public performance and broadcasting.

  1. Authors have the exclusive right to authorize the public performance of their works, such as plays, musical compositions, and readings of literary works.
    2.
34
Q

which WCT article covers right of communication to the public

A

article 8 - authors of literary and
artistic works shall enjoy the exclusive right of authorizing any communication
to the public of their works, by wire or wireless means, 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

35
Q

what is the right of translation

A

article 8 berne - Authors of literary and artistic works protected by this Convention shall enjoy the exclusive right of
making and of authorizing the translation of their works throughout the term of protection of their rights in
the original works.

36
Q

what is right of adaptation

A

Authors of literary or artistic works shall enjoy the exclusive right of authorizing adaptations,
arrangements and other alterations of their works.

37
Q

what is the right of distribution

A

article 6(1) WCT
-exclusive right to make the first copy available. after the first sale this right is exhausted - second hand market is then allowed.

38
Q

What is the right of rental

A

article 7 (1) WCT
- authors of computer programs, cinematographic works and works embodied in phonograms, as determined in the national law of contracting parties. shall enjoy exclusive right of commercial rental to the public of originals.

39
Q

what is the inspiration system in copyright

A

works are inspired between previous works, creating a domain of cultural expression, this means sufficient protection is needed but also room to allow for the innovation.

40
Q

does copyright protect ideas

A

no, protects the way of expressing it, not the idea itself - article 2 WCT

41
Q

what are the some specific international limitations on restriction

A

it is a matter of domestic legislation to allow the following ;
Article 10 Berne -
1. Quotations from Published Works
2. Use of Works for Teaching

42
Q

what is the underlying rationale behind specific things that are allowed to do under article 10 berne

A
  • freedom of expression, freedom of informaiton, cultural participation, and equal chances in information society
43
Q

what is the 3 step test for permitting reproduction of works in certain cases

A
  1. special
  2. reproduction doesn’t conflict with normal exploitation of the work and
  3. does not unreasonably prejudice the legitimate interests of the author

ARTICLE 9(2) Berne

44
Q

which other articles also states the 3 step test for copyright

A

Article 13 TRIPS
article 10 WCT

45
Q

what does special case mean

A

specific form of use and limited number of beneficiaries

46
Q

within the copyright 3 step test where is there room for consideration

A

special cases = room for considering policy justification

no conflict with normal exploitation = room for normative considerations

47
Q

what does conflict with a normal exploitation mean

A

look at the current markets that are exploited and the potential future markets that could be exploited

48
Q

what does the no unreasonable prejudice to legitimate interests mean

A

proportionality test
1. check if there is harm to interests and whether based on proportionality it is still allowed.

can be cured by equitable remuneration

49
Q

what is the copyright case

A
  • American case
  • section within the US copyright case which was assessed for compatibility with article 13 of TRIPS
  1. Business exemption - essentially allows the amplification of music broadcasts, without an authorization and a payment of a fee, by food service and drinking establishments and by retail establishments,
  2. homestyle exemption - allows small restaurants and retail outlets to amplify music broadcasts without an authorization of the right holders and without the payment of a fee, provided that they use only homestyle equipment
50
Q

how would you assess whether the business exemption is compatible with the Berne Convention and TRIPS

A
  1. is it special
  2. does it conflict with the normal exploitation (look at current and future markets)
  3. does it unreasonably prejudice legitimate interests of right holders
51
Q

use the 3 step test to analyse compatibility of business exemption

A
  1. special = narrow
    - it is not a narrow scope as food and drinking establishments are not narrow in their scope.
  2. normal exploitation. - Half of retail establishments are eligible to benefit from the exemptions which constitutes major potential source of royalties
  3. unreasonable prejudice - even if an exception does not interfere with normal exploitation, it still should not harm the copyright holder’s interests in a way that is unjustified or excessive. This step requires a balancing of interests, considering both the rights of copyright holders and the public interest in accessing and using copyrighted materials. - not really public interest in accessing it

business exemption does not comply and does not receive rights

52
Q

use the 3 step test to analyse compatibility of homestyle exemption

A
  1. special = narrow
    much smaller umber and can be seen as special case
  2. normal exploitation. - small % of retail establishments means that doesn’t have much impact
  3. unreasonable prejudice - even if an exception does not interfere with normal exploitation, it still should not harm the copyright holder’s interests in a way that is unjustified or excessive. No unreasonable prejudice

homestyle exemption does not conflict

IP law (5 decks)

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