COPYRIGHT Flashcards
What is copyright, and what does it protect?
Copyright protects the form of expression (e.g., arrangement of words, notes, colors) but not the ideas themselves. it protects intellectual creation (creations of human mind)
Applies to mass communication forms like books, broadcasts, films, and digital systems.
Protects both physical works (e.g., books, paintings) and non-physical ones (e.g., music, poems before written).
Aims to prevent unauthorized copying and reward creativity.
What is the purpose of copyright, and how does it benefit society?
Encourages intellectual creativity and enriches national culture.
Supports economic, social, and cultural progress by protecting creators and auxiliaries (e.g., performers, broadcasters).
Helps developing countries preserve cultural heritage and access educational materials.
Boosts industries like publishing and entertainment while fostering innovation.
What challenges does copyright face, and how can it adapt to modern needs?
Challenges: Implementation issues, lack of resources, and unequal access to creative works.
Governments can aid by funding textbooks, expanding libraries, and supporting training.
Modern copyright must balance creators’ rewards with public interest, ensuring accessibility and innovation.
A strong system promotes widespread knowledge and cultural advancement.
What is the scope and nature of subject matter eligible for copyright protection?
The subject matter includes all original intellectual creations in the literary, scientific, and artistic domains, regardless of their mode or form of expression. For protection:
The work must be an original creation of the author.
The ideas themselves do not need to be novel, but the expressed form must be unique.
Quality, purpose, or public opinion of the work does not affect its eligibility.
Examples include literary works (novels, poems), artistic works (paintings, sculptures), musical compositions, technical guides, maps, and even computer programs.
What are the economic and moral rights granted to copyright owners, and how do they differ?
Economic Rights:
The exclusive right to authorize or prohibit actions like reproduction, distribution, public performance, broadcasting, and adaptation of the work.
These rights allow authors to monetize their creations and are transferrable or assignable.
Moral Rights:
The right to claim authorship and maintain integrity of the work, preventing distortions or alterations harmful to the author’s reputation.
These rights are independent of economic rights and often remain with the author even after transferring economic rights.
How does copyright law address the right of reproduction and its related rights?
The right of reproduction allows the copyright owner to control the copying of their work in any form (printed, digital, recorded). Key aspects include:
It forms the legal basis for distributing works like books, music, or digital media.
Related rights include distribution (limited by the exhaustion principle upon first sale), rental rights (to prevent unauthorized copying of rented works like DVDs or software), and importation rights (to preserve territorial distribution agreements).
Technological advancements, such as digital copying and satellite broadcasting, have led to expanded protections to address new forms of reproduction and distribution.
What are Related Rights, and how do they differ from copyright?
Related Rights, also known as neighboring rights, protect those who assist intellectual creators in disseminating works to the public. Unlike copyright, which protects the original creator’s work, Related Rights safeguard:
Performers: Rights to prevent unauthorized use of their performances (e.g., actors, musicians).
Producers of Phonograms: Rights to control reproduction and distribution of phonograms.
Broadcasting Organizations: Rights to authorize or prohibit the rebroadcasting and fixation of their programs.
These rights recognize the contributions of intermediaries in making works accessible while addressing challenges like technological reproduction and piracy.
Why was the protection of Related Rights considered necessary, and how did it develop?
The need for Related Rights arose due to technological advancements that enabled performances, phonograms, and broadcasts to be reproduced and distributed widely without consent. Key developments include:
The rise of phonographs, radio, and television reduced live performances, creating “technological unemployment” for performers.
Producers of phonograms faced piracy and sought protection against unauthorized duplication and distribution.
Broadcasting organizations required safeguards against retransmission and unauthorized use of their programs.
The Rome Convention (1961) marked an international effort to establish these protections, encouraging countries to draft relevant laws.
How do technological advancements impact the protection of performers and producers of phonograms?
Enabling the fixation and reproduction of performances on materials like records, tapes, and CDs, reducing the demand for live performances.
Facilitating widespread piracy through easy duplication and distribution, which undercuts the income of creators and producers.
Encouraging the need for international agreements, like the Rome Convention, to standardize protections against unauthorized use.
These developments necessitated legal frameworks to address the economic and cultural challenges posed by evolving technology.
How do Related Rights contribute to cultural and economic development, particularly in developing countries?
Cultural Preservation: Protect artists and performers who perpetuate oral traditions and folklore, ensuring their contributions are recognized and safeguarded.
Economic Impact: Support the growth of tertiary industries, such as phonogram production and broadcasting, which disseminate national culture domestically and internationally.
Revenue Generation: Enable countries to earn revenue through cultural exports and protect their interests in broadcasting and reproduction of artistic works.
This protection enhances the global presence of developing nations’ cultural products while securing economic benefits.
Who is generally the initial owner of copyright in a work, and what are some exceptions to this rule?
The initial owner of copyright is usually the author who created the work. However, exceptions exist, such as when an author is employed to create the work; in this case, the employer may own the copyright. These exceptions are governed by national law.
What are moral rights in copyright, and how do they differ from other rights in terms of transferability?
Moral rights always belong to the author, regardless of who owns the copyright. Unlike economic rights, moral rights cannot be assigned. Economic rights, however, can be transferred to another person or entity through assignment or licensing. Licensing allows others to use the rights while the original owner retains copyright, often achieving similar practical effects as assignment.
What are the temporal and geographic limitations on copyright protection?
Temporal Limitation: Copyright lasts for a specific duration, typically the author’s lifetime plus at least 50 years after their death (or longer in some jurisdictions), ensuring economic benefits for successors and safeguarding investments.
Geographic Limitation: Copyright laws are country-specific, meaning protection only applies within the jurisdiction where the law is enforced. International conventions, like the Berne Convention, mitigate these geographic issues by harmonizing protections.
What is piracy, and how does it affect creators, consumers, and governments?
Definition: Piracy involves unauthorized reproduction or distribution of copyrighted works for commercial gain.
Effects on Creators: It undermines their ability to earn moral and economic rewards, reducing incentives for new creations.
Effects on Consumers: While pirated products are cheaper, they are often inferior in quality and harm long-term access to innovative works.
Effects on Governments: Piracy reduces tax revenues, potentially diminishing public arts funding and cultural development.
What remedies are available for copyright infringement?
Civil Remedies:
Cease infringement (court order).
Reparatory actions (e.g., public rectification or damages).
Penal Remedies:
Fines or imprisonment (varies by jurisdiction).
Seizure:
Infringing copies, proceeds, and implements used in the infringement can be seized.
What is an Anton Piller order, and why is it significant for combating piracy?
A court order allowing premises inspection to collect evidence of copyright infringement, granted ex parte (without the defendant’s knowledge).
Features:
Prevents destruction of evidence by surprise.
Grants access to documents (e.g., invoices, sales data).
Often paired with an injunction against altering evidence.
Safeguards: Requires proof of serious harm and care in execution (e.g., no forced entry).
What final remedies can a copyright owner seek after proving infringement?
Perpetual Injunction: Stops further infringement permanently.
Damages: Compensates the copyright owner to restore their financial position.
Additional damages for deliberate, flagrant infringements with financial gain.
Destruction Orders: Requires infringing copies to be destroyed.
What is the relationship between cultural heritage and traditional cultural expressions (TCEs)?
Cultural Heritage: Represents a community’s identity, linking the past, present, and future.
TCEs: Living expressions, constantly recreated through innovation within traditional frameworks.
Economic Role: TCEs serve as sources of creativity for industries, such as entertainment, fashion, and design.
Preservation Challenges: TCEs face threats from global commerce, cultural uniformity, and misappropriation.
What are the concerns regarding the protection of traditional cultural expressions (TCEs)?
Unauthorized Use: Reproduction and commercialization of TCEs without sharing economic benefits.
Cultural Insensitivity: TCEs used in offensive or degrading ways.
Misleading Use: False claims of authenticity or origin, undermining the reputation of TCEs.
Attribution Issues: Failure to acknowledge the source of TCEs, impacting their cultural significance.
Need for Protection: Intellectual property laws, especially copyright, are not always sufficient to safeguard TCEs.
How are traditional cultural expressions (TCEs) defined, and what examples exist?
Definition: TCEs are elements of traditional artistic heritage that represent the identity of a community.
Examples:
Verbal: Folk tales, poetry, riddles.
Musical: Folk songs, instrumental music.
Performative: Folk dances, plays, rituals.
Tangible: Art, crafts, musical instruments, architectural forms.
Tangible & Intangible: Many TCEs combine both, e.g., African-American quilts (tangible) and the music/dance of Mardi Gras (intangible).
What was the main outcome of the 1967 Stockholm Diplomatic Conference regarding the protection of folklore under the Berne Convention?
The 1967 Stockholm Diplomatic Conference aimed to introduce copyright protection for folklore at the international level. It included Article 15(4), which provided a framework for the protection of unpublished works, including folklore, where the author’s identity is unknown. India was the only country to designate a competent authority for such protection.
What is the significance of the Tunis Model Law on Copyright for Developing Countries?
The Tunis Model Law, adopted in 1976, was created to help developing countries comply with the Berne Convention’s copyright rules. It provides specific protection for works of national folklore, which do not need to be fixed in material form and are protected indefinitely.
What were the key findings of the WIPO fact-finding missions regarding the intellectual property needs of Indigenous and traditional communities?
WIPO’s fact-finding missions (1998-1999) identified several needs of Indigenous and traditional communities, including intellectual property protection for economic development, preventing unwanted use of cultural heritage, and blocking third-party intellectual property rights over traditional cultural expressions (TCEs). Communities often seek both positive and defensive protection strategies.
How do several states provide legal protection for Traditional Cultural Expressions (TCEs)?
Several states offer legal protection for Traditional Cultural Expressions (TCEs), often within national copyright laws.
Some countries treat TCEs as a form of copyright work, applying traditional copyright rules.
Other countries, like Panama and the Philippines, have created distinct sui generis legislation for TCEs, offering collective and perpetual protection.
What challenges do countries face in implementing legal protection for TCEs?
Despite the legal frameworks, many countries face challenges in effectively implementing TCE protection.
Legal, conceptual, and infrastructural difficulties hinder the practical application of laws.
Some countries have requested updated guidelines to improve national legal frameworks for TCEs
What are the main debates surrounding the “public domain” status of cultural heritage in intellectual property law?
There is debate about whether the “public domain” status of cultural heritage offers the best opportunities for creativity and preservation.
Some argue that intellectual property protection should extend to TCEs in the public domain, while others believe it should remain in the public domain to foster innovation.
WIPO is developing resources, such as guides and case studies, to assist nations in protecting TCEs and is exploring policies for enhanced protection.
What are some of the justifications for copyright law?
Copyright law is justified by natural rights, reward, incentive, neoliberal economics, democracy, personality, and artistic arguments
What is the relationship between intellectual property and fundamental human rights?
Intellectual property is protected as a fundamental right. Article 17 of the UDHR states that everyone has the right to own property, and Article 27 includes the right to protection of the moral and material interests resulting from artistic or scientific works. The EU Charter of Fundamental Rights also states that intellectual property shall be protected
How does originality apply to photographs?
A photograph is considered original if the photographer made free and creative choices in its production, including in the background, the subject’s pose and the lighting, the framing, the angle of view and the atmosphere
What is the general duration of copyright protection for a literary or artistic work?
The general term of protection is 70 years after the author’s death
What is protected by copyright in computer programs and how is it limited?
Source code, object code, and preparatory design work are protected. However, functionality, programming language, and data format are not
What determines copyright protection for a Graphic User Interface (GUI)?
A GUI is protected if it is the author’s own intellectual creation, based on its specific arrangement and configuration. Technical function alone does not qualify for protection
What are the limitations on copyright for AI-generated works?
Copyright does not protect works dictated by technical constraints that eliminate creative freedom, or outputs created without human intervention
What are the various ways to protect AI systems?
AI systems can be protected through copyright, database protection, patents, designs, trade secrets, and contracts
What is the scope of the Reproduction Right?
Authors have the exclusive right to authorize any reproduction of their work, including digital storage. Reproduction of parts of a work is treated the same as the whole, provided those parts are an expression of the author’s intellectual creation. Transient fragments are also covered
What are the key aspects of the Distribution Right?
Authors have the exclusive right to authorize distribution, which is not exhausted after the first sale, except for tangible objects. For software, a sale occurs when a license is transferred and the original copy must be made unusable upon resale. E-books are covered by “communication to the public
What is “communication to the public” and what does it include?
It is the right to authorize or prohibit any communication of a work, and includes making works available so that people can access them from a place and time of their choosing. This includes any transmission of protected works, and transmitting works to a new public, including via hotels and public houses
How do hyperlinks and photos relate to “communication to the public?”
Hyperlinks to content that was initially communicated with the copyright holder’s consent do not constitute a new communication. However, posting a photo on a website that was copied from another site is a form of communication to the public
What are the key exceptions to copyright?
When visual art is in the public domain, reproductions are not subject to copyright unless they are original in their own right. “Freedom of Panorama” allows exceptions for works such as architecture and sculptures in public places. Additionally, Rental and Lending rights are distinct, and not exhausted upon sale
What are some of the issues concerning copyright and AI-generated works?
There is no clear definition of author for AI-generated works. Questions arise around how to address moral rights and term of protection. A potential test for AI-assisted work considers if it has a creative expression arising from human intellectual effort
What is the three-step test in copyright law?
A test to determine if an exception or limitation to copyright can be applied. It assesses: 1) if the use is covered by a legitimate purpose; 2) if the use exceeds what’s necessary; and 3) if the use is proportionate, balancing IP rights and other interests
What are mandatory exceptions in the InfoSoc Directive?
Exceptions that all member states must recognize. A key example is temporary acts of reproduction that are part of a technological process and have no independent economic significance
What is the significance of Article 5.1 regarding temporary acts of reproduction?
It exempts certain temporary reproductions from copyright restrictions, specifically those that are transient, incidental, and an essential part of a technological process, such as network transmissions or enabling lawful use, as long as they have no independent economic significance
What are some optional limitations to economic rights in Article 5.2 of the InfoSoc Directive?
Member states may choose to allow for exceptions such as reproductions for private use, by libraries, or ephemeral recordings by broadcasting organizations
What is the definition of parody in EU law?
It’s an autonomous concept of EU law, characterized by evoking an existing work while being noticeably different and expressing humor or mockery. It does not need to be original beyond these differences
What is the rule regarding private copying?
Private copying is only allowed if the source was lawfully acquired and should include fair compensation to the rightsholder
What are the rules around Text and Data Mining (TDM) according to the CDSM directive?
TDM is allowed for scientific research by research organizations and cultural heritage institutions with lawful access. There’s also a broader exception for TDM, provided that rightsholders haven’t expressly reserved their rights
What are the transparency requirements for generative AI according to the EU AI Act?
Generative AI must disclose content is AI-generated, prevent the generation of illegal content, and publish summaries of copyrighted data used for training
What is the liability of online content-sharing service providers under the CDSM directive?
These providers are liable for unauthorized acts of communication of copyrighted material unless they have made best efforts to obtain authorization, ensure unavailability of notified content, and act expeditiously to remove infringing content. This liability is an exception to the general “hosting” liability exemption
What are the limitations on monitoring obligations for internet service providers?
ISPs have no general obligation to monitor the information they transmit or store. However, they are expected to act on specific knowledge of illegal activity or information. Also, they cannot be forced to implement costly filtering systems that would undermine fundamental rights of users
