copyright law Flashcards
say smth about the three theories justifying copyright
1) utilitarian theory, connected to progress and market failure
2) personality theory, hegel and author’s own creation
3) labour theory, locke, entitled to the fruit of your labour
important points to clarify at the beginning
1) pro&cons
2) exclusive right
3) copyright protects intangible goods
4) work - medium distinction
5) fixation of work
6) inspiration - derivation distinction
7) ideas have to be sufficiently elaborated
8) presumption of authoriship
9) absence of formalities
definition of work
ECJ:
1) original in the sense of author’s own intellectual creation
2) expression of author’s own intellectual creation
3) identifiable with sufficient objectivity and precision
In the CJEU view, a «work» is an original expression of the author’s mind which is identifiable with sufficient precision and objectivity.
OUR MORE COMPLETE DEFINITION:
1) product of the mind
2) expression of author’s own intellectual creation
3) belonging to a relevant domain (art, science, literature)
4) conveying a message
idea/expression dichotomy
expression has:
1) internal form
2) external form
–> both are protected by copyright
link originality and creativity
Copyright protection is granted only for «original» or «creative» works.
Originality = author’s own intellectual creation = reflection of the personality of the author = expression of free and creative choices ORIGINALITY = EXPRESSION OF FREE AND CREATIVE CHOICES.
No originality when:
a) there is no creative freedom (or the freedom is very limited): e.g. necessitated or standard form
b) the author does not use the creative freedom that he has
originality -> quantum and novelty
No rule concerning the quantum of originality, but still, the threshold of originality for copyright protection is not particularly high.
Novelty: Let’s distinguish between:
a) objective novelty (something never existed before)
b) subjective novelty (something never existed as far as the subject knows)
-> Copyright law takes a subjective approach to novelty
collective and join works
A “collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.
Basic assumption: you are able to identify and distinguish the different creative contributions.
A “joint work” is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.
- separate and independent > collective work
- inseparable or interdependent > joint work
works created by employees and AI
EMPLOYEES
<> no general int’l rules, a few rules at the EU level, national rules may vary considerably
AI
As far as works generated by Artificial Intelligence are concerned, it is still unclear:
if copyright can be claimed on them
who would be the author
who would be the owner of the copyright
We can distinguish btw 2 very different theoretical cases
1) an Ai is an extremely intelligent tool.
2) an AI is able to create independently from my creative choice. Here the free and creative choice is made by the machine, not by the human.
2 specific legal problems:
1) Human-contribution argument
2) how to guarantee a right to software that is not human?
MORAL RIGHTS
1) R of first publication / disclosure
2) R of paternity / attribution
(negative and positive dimensions)
3) R of integrity
2 aspects
a) objective (mutilation, modification, distortion, derogation)
+
b) subjective (prejudice to honour or reputation)
4) R of withdrawal
ECONOMIC RIGTHS
COPY-RELATED RIGHTS
a) reproduction (direct/ indirect copy)
b) distribution (principle of exhaustion - tangible -> distribution, intangible -> communication)
c) rental (direct/ indirect economic advantage)
d) lending (no direct/ indirect economic advantage)
NON-COPY-RELATED RIGHTS
a) pubilc displaying
b) communication to the public (linking and framing)
OTHER RIGHTS
a) modification, elaboration, transformation
duration economic rights
a) general rule
b) anonymous /pseudonymous works
c) collective works
d) joint works
Linking and framing
LINKING
a) general rule
b) from illegal sources
c) indirect linking
d) not linking but
FRAMING
a) general rule
b) TPMs circumvention
exceptions and limitations intro
- function
- different among them
- difference with limits
- exceptional rules? (general Vs exceptional) (1) as important rights; 2) authorship-oriented exceptions aka same purposes)
the international three-step test
FIRST STEP: Certain Special Cases
- a limitation or exception in national legislation should be clearly defined and should be narrow in its scope and reach”
- no general rule
SECOND STEP: conflict with a normal exploitation of the work
- if uses, that in principle are covered by that right but exempted under the exception or limitation, enter into economic competition with the ways that right holders normally extract economic value from that right to the work (i.e., the copyright) and thereby deprive them of significant or tangible commercial gains
THIRD STEP: unreasonable prejudice to the legitimate interests of right holders
-causes or has the potential to cause an unreasonable loss of income to the copyright owner.
- analysing the concept of unreasonable prejudice in light of the relevance of the interested of the users.
Application of exceptions and limitations to the digital environment
extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention
One-copy-one-user condition if you, as a library measure buys one digital copy of that book, you can only allow one person at the time to read that book.
If it mimics the frictions of classic lending, then it does not conflict with a normal exploitation of the work.
