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Intellectual Property > Copyrights > Flashcards

Copyrights Flashcards

1
Q

What does copyright protect

A

original creations of the human mind or the author’s own intellectual creation

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2
Q

what are related rights

A

not original creations of human mind, but considered valuable to merit protection

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3
Q

Examples of related rights

A

performances, phonograms producers, first fixation of films, broadcasting organizations, photographic pictures, databases producers

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4
Q

Natural Rights Policy argument

A

a person that has created a work should be able to exploit it

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5
Q

Utilitarian Approach

A

reward (monetary and recognition), incentive to create more work

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6
Q

Neoliberal economics

A

private ownership and control is better when there is free market transactions

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7
Q

Democratic policy argument

A

better to have ownership in the author than the Government hire people and own the work. Issues of freedom of expression.

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8
Q

Personality argument

A

this is specific to copyright, because it has moral rights. The ability to control how the work is used.

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9
Q

Artistic arguments

A

freedom of expression and moral rights

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10
Q

Moral Right definition

A

right to claim authorship of the work and the right to object to any mutilation, deformation or other modification of, or other derogatory action in relation to, the work that would be prejudicial to the author’s honor or reputation

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11
Q

Where do Moral rights come from?

A

the Berne convention

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12
Q

Where does protection of copyright come from?

A

protection of FRs in EU Charter for FRs, and ECHR protection of property

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13
Q

What does copyright protect

A

protect the expression of and not ideas, procedures, methods of operation or mathematical concepts

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14
Q

Copyright requirements in photographs

A
  1. originality, 2. free and creative choices, 3. stamped by the author’s personal touch
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15
Q

What law governs photos in copyright

A

National Law

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16
Q

What constitutes original in a photograph

A

it must reflect the author’s personality through free and creative choices

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17
Q

What constitutes free and creative choices

A

Examples are choosing background, poses, lighting, framing, angles, atmosphere. etc.

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18
Q

Term of Protection for Non-Original Photos

A

depends on national law. Ex. Sweden 50 years after photo taken, Italy 20 years after photo taken

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19
Q

Term of protection for copyrights

A

life of author + 70 years

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20
Q

Copyright in Sports

A

Sport event can’t be intellectual creations when the event is subject to rules, leaving no room for creative freedom

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21
Q

Is information original?

A

informative documents that are entirely characterized by their technical function are not original and can’t be an expression of creativity or a product of intellectual creation

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22
Q

Is there originality in technical considerations

A

subject matter may satisfy originality requirement for copyright protection even if it is realized through technical considerations that have not prevented author’s personality and expression of free and creative choices

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23
Q

Berne Convention protected works definition

A

expression of literary and artistic works shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression

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24
Q

Can the taste of a food product be copyrighted?

A

No because you can’t pin it down with precision and objectivity

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25
Q

Fixation

A

requirement in US, not a requirement in the EU or civil law countries

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26
Q

Term of protection: performance

A

50 years from performance or 70 years from publication or communication

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27
Q

Term of protection: first fixation of films

A

70 years after death of last principal director, screen play author, dialogue author or composer

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28
Q

Term of protection: phonograms

A

50 years after making or 70 years after first publication/making available

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29
Q

Term of protection: broadcasts

A

50 years after first transmission

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30
Q

Term of protection: database

A

15 years from date of completion

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31
Q

Definition of Author

A

There is no actual definition of an author, but it is the person whose intellectual creation is expressed. Must be a human.

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32
Q

Author/Owner of database

A

natural person or group of persons who create the database

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33
Q

Author/Owner Software

A

natural or legal persons eligible under national copyright legislation as applied to literary works

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34
Q

Author/Owner Cinematographic or audiovisual works

A

principal director of work

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35
Q

What type of rights attaches to EU copyright

A

economic and moral rights

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36
Q

What are economic rights

A

reproduction rights; dissemination to the public: distribution and communication, includes public performance; licensing and sale

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37
Q

What are moral rights

A

reputation/integrity and paternity (name)

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38
Q

Moral Rights in the EU

A

in EU moral rights aren’t harmonized, not every country needs to have them. these rights are dependent on national law

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39
Q

Moral Rights in TRIPS

A

moral rights are not included in the TRIPS agreement

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40
Q

Moral Rights in Berne Convention

A

the convention does provide for moral rights, this is where the definition of moral rights in copyright come from

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41
Q

Exceptions to coyright

A

exhaustive list of exceptions included in article 5 of the InfoSoc Directive. Mandatory and non-mandatory exceptions

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42
Q

What is copyrightable in computer programs

A

source and object code, preparatory design work leading to development of a computer program, GUIs

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43
Q

What is a reproduction in the digital environment?

A

storage of a protected work in digital form in an electronic medium constitutes a reproduction

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44
Q

Article 2 InfoSoc Directive Reproduction provides …

A

MS shall provide for exclusive rights to authorize or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part

45
Q

How many words constitutes “in-part”

A

There is no definite answer, 11 or more words is in part, but less than 11 is debatable

46
Q

Reproduction of fragments

A

Article 2 of the Copyright directive is interpreted as meaning that a reproduction right extends to transient fragments

47
Q

Copyright in change of medium

A

A change in medium is a creation of a new object incorporating the image of the protected work, but an alteration which provides a result close to the original is still considered a reproduction

48
Q

Reproduction of sound samples

A

Taking and reproducing a sound sample is considered a reproduction “in part”

49
Q

Does transferring a sound sample from another phonogram constitute copying?

A

no, it doesn’t constitute copying because it doesn’t reproduce all or substantially all of the phonogram

50
Q

What is distribution to the public

A

the exclusive right to authorize or prohibit any form of distribution to the public by sale or otherwise

51
Q

When does exhaustion occur?

A

distribution right is exhausted after the first sale or other transfer of ownership in the Community by the right holder or with his consent

52
Q

What is exhaustion?

A

original owner no longer has the exclusive right to control further sales or distribution of that particular copy

53
Q

What does works does exhaustion apply to?

A

distribution right applies to tangible objects

54
Q

Does exhaustion apply to an alteration of medium?

A

the doctrine does not apply when a transformation through alteration of medium places the work on the market in a new form

55
Q

exhaustion in computer program/software

A

computer program rights are exhausted if the copyright holder has authorized the downloading and right to use that copy for an unlimited period

56
Q

most important moral right

A

Paternity right. the right to be recognized as a contributor or author of the work

57
Q

term of moral rights on copyright works

A

moral rights last forever, unlike economic rights

58
Q

What is communication to the public

A

by wire or wireless means, making available to the public in such a way that members of the public may access it from a place at any time they chose

59
Q

What is the public

A

an indeterminate number of potential recipients and implies, a fairly large number of persons

60
Q

Cumulative effect in communication

A

Must take into account the number of persons who have access to the same work at the same time or successively

61
Q

Does linking material require authorization?

A

No, if the work remains accessible in its original form and there is no new public.

62
Q

What is a new public in the context of linking material

A

this refers to an audience that was not targeted or anticipated by the copyright holder in the original communication to the public

63
Q

what constitutes a new public?

A

If the work is behind a paywall or access is restricted and the person linking provides the work accessible to a wider public

64
Q

linking to illegal content can constitute copyright infringement if

A

the linker pursues financial gain, or knew or should have reasonably known the content was illegal

65
Q

due diligence in linking

A

under a duty to verify the legality of the content if acting in a commercial capacity

66
Q

good faith defense in linking

A

non-commercial linkers may avoid liability if they are unaware of the content’s illegal nature

67
Q

Issue in Cordoba case

A

Does posting a photo on a website after copying it from another website onto a private server, constitutes an act of communication to the public?

68
Q

Cordoba: Act of Communication

A

posting a photo copied from another website onto a private server and then uploading it onto a different website qualifies as an act of communication to the public

69
Q

Cordoba: No exhaustion of rights

A

Copyright holders retain the exclusive right to authorize or prohibit each subsequent act of communication to the public, regardless of prior instances of availability

70
Q

Article 14 CDSM works in the public domain

A

when the term of protection has expired, any material resulting from an act of reproduction is not subject to copyright or related rights unless the material resulting from the reproduction is a new original work

71
Q

Freedom of Panorama

A

MS may provide for exceptions or limitations to the rights for works of architecture or sculpture which are located permanently in public places

72
Q

is making available to the public harmonized?

A

No

73
Q

Test for copyright in AI-assisted work

A
  1. production in literary, scientific, or artistic domain, 2. human intellectual effort, 3. originality/creativity (creative choices), 4. expression
74
Q

“Three-Step” Test

A
  1. does the use fall within a narrowly defined and legitimate statutory exception? 2. Does the use conflict with the normal exploitation of the work or subject matter? 3. does the use unreasonably prejudice the legitimate interests of the right holder?
75
Q

Key considerations of the three-step test

A

Necessity; proportionality; interpretation

76
Q

Mandatory Limitation

A

Temporary acts of reproduction

77
Q

Why are temporary acts of reproduction a mandatory limitation

A

Transient or incidental is an integral and essential part of a technological process which enables (a) a transmission in a network between third parties, (b) a lawful use which has no independent economic significance

78
Q

Examples of non-mandatory limitations or exceptions

A

photographic reproductions on paper, reproductions for private use, specific reproductions by libraries, archives, museums, ephemeral recordings by broadcasting organizations, reproductions of broadcast made by social institutions.

79
Q

Parody Exception

A

parody must constitute an expression of humor or mockery.

80
Q

How to assess parody and copyright protection

A

balance right of persons vs freedom of expression

81
Q

private copying

A

only allowed if it is from a legally acquired source

82
Q

New limitations to copyright in directive 2019/790

A
  1. text and data mining for scientific research, 2. text and data mining, 3. digital and cross-border teaching activities, 4. preservation of cultural heritage, 5. contractual provisions contrary to the former are unenforceable
83
Q

Internet service providers role in copyright

A

there is no general obligation to monitor, and MS can’t impose a general obligation to monitor

84
Q

Hosting Directive on service providers

A

MS shall ensure that a service provider is not liable to information stored at the request of a recipient, on condition that: (1) provider doesn’t have actual knowledge; or (2) once provider has the knowledge acts expeditiously to remove or to disable access to the information

85
Q

Criminal remedies for copyright infringement

A

Not harmonized throughout Countries. May include imprisonment, monetary fines, seizure, forfeiture, destruction of infringed goods

86
Q

Civil remedies for copyright infringement

A

harmonized throughout. Includes damages, injunction on penalty of a fine, interlocutory injunction, order to provide information, infringement investigation, compensation for appropriate measures to disseminate information about the judgment

87
Q

Related Rights

A

Performances
Phonograms producers
Producers of first fixation of films
Broadcasting organizations
Photographic pictures
Database producers

88
Q

Article 9 TRIPS

A

Copyright protection is for expressions not ideas. And relation to the Berne convention. Members shall comply with Article 1-21 of Berne convention.

89
Q

Article 10 TRIPS

A

copyright protection for computer programs and compilation of data as literary works

90
Q

Article 12 TRIPS

A

When term of protection is not based on lifespan of author it must be no less than 50 years

91
Q

Article 13 TRIPS

A

Members have limitations and exceptions to copyright for special cases that don’t conflict with normal exploitation

92
Q

Article 6 TRIPS

A

doesn’t discuss exhaustion

93
Q

Article 1 TRIPS

A

Members can but aren’t required to provide more protection than in the agreement

94
Q

Article 3 TRIPS

A

National treatment of rights

95
Q

Article 4 TRIPS

A

Most favored nation

96
Q

Article 7 TRIPS

A

objectives for protection and enforcement for the promotion of technological innovation

97
Q

Article 8 TRIPS

A

principles. Members may adopt necessary measures to protect public health, public interest, socio-economic development, and prevent abuse of IP rights by right holders

98
Q

Article 5 TRIPS

A

public health agreement. Compulsory licensing allowed for patents

99
Q

Paris Convention Article 1: Design

A

refers to protection, but no definition of design

100
Q

Paris Convention Article 5: Design

A

Protection for designs in all countries of the Union

101
Q

Paris Convention Article 4: Design

A

priority is 6 months

102
Q

TRIPS art 25

A

protection of independently created industrial designs that are new or original.

103
Q

Trips art 26

A

protection at least 10 years for designs

104
Q

Requirement for Design

A

novelty and individual character

105
Q

Novelty in Designs

A

no identical design has been made available to the public

106
Q

what is made available to the public for designs

A

not reasonably known in the normal course of business to the sectors concerned

107
Q

what is individual character

A

overall impression it produces on the informed user differs from overall impression produced by other designs available to the public. Requires a degree of freedom from the designer.

108
Q

statutory limitations for designs

A

exhaustion, use prior to filing, non-commercial or private uses, experimental purposes, reproductions for teaching or citations

109
Q
A

Intellectual Property (6 decks)

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