Copyrights Flashcards
What does copyright protect
original creations of the human mind or the author’s own intellectual creation
what are related rights
not original creations of human mind, but considered valuable to merit protection
Examples of related rights
performances, phonograms producers, first fixation of films, broadcasting organizations, photographic pictures, databases producers
Natural Rights Policy argument
a person that has created a work should be able to exploit it
Utilitarian Approach
reward (monetary and recognition), incentive to create more work
Neoliberal economics
private ownership and control is better when there is free market transactions
Democratic policy argument
better to have ownership in the author than the Government hire people and own the work. Issues of freedom of expression.
Personality argument
this is specific to copyright, because it has moral rights. The ability to control how the work is used.
Artistic arguments
freedom of expression and moral rights
Moral Right definition
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
Where do Moral rights come from?
the Berne convention
Where does protection of copyright come from?
protection of FRs in EU Charter for FRs, and ECHR protection of property
What does copyright protect
protect the expression of and not ideas, procedures, methods of operation or mathematical concepts
Copyright requirements in photographs
- originality, 2. free and creative choices, 3. stamped by the author’s personal touch
What law governs photos in copyright
National Law
What constitutes original in a photograph
it must reflect the author’s personality through free and creative choices
What constitutes free and creative choices
Examples are choosing background, poses, lighting, framing, angles, atmosphere. etc.
Term of Protection for Non-Original Photos
depends on national law. Ex. Sweden 50 years after photo taken, Italy 20 years after photo taken
Term of protection for copyrights
life of author + 70 years
Copyright in Sports
Sport event can’t be intellectual creations when the event is subject to rules, leaving no room for creative freedom
Is information original?
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
Is there originality in technical considerations
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
Berne Convention protected works definition
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
Can the taste of a food product be copyrighted?
No because you can’t pin it down with precision and objectivity
Fixation
requirement in US, not a requirement in the EU or civil law countries
Term of protection: performance
50 years from performance or 70 years from publication or communication
Term of protection: first fixation of films
70 years after death of last principal director, screen play author, dialogue author or composer
Term of protection: phonograms
50 years after making or 70 years after first publication/making available
Term of protection: broadcasts
50 years after first transmission
Term of protection: database
15 years from date of completion
Definition of Author
There is no actual definition of an author, but it is the person whose intellectual creation is expressed. Must be a human.
Author/Owner of database
natural person or group of persons who create the database
Author/Owner Software
natural or legal persons eligible under national copyright legislation as applied to literary works
Author/Owner Cinematographic or audiovisual works
principal director of work
What type of rights attaches to EU copyright
economic and moral rights
What are economic rights
reproduction rights; dissemination to the public: distribution and communication, includes public performance; licensing and sale
What are moral rights
reputation/integrity and paternity (name)
Moral Rights in the EU
in EU moral rights aren’t harmonized, not every country needs to have them. these rights are dependent on national law
Moral Rights in TRIPS
moral rights are not included in the TRIPS agreement
Moral Rights in Berne Convention
the convention does provide for moral rights, this is where the definition of moral rights in copyright come from
Exceptions to coyright
exhaustive list of exceptions included in article 5 of the InfoSoc Directive. Mandatory and non-mandatory exceptions
What is copyrightable in computer programs
source and object code, preparatory design work leading to development of a computer program, GUIs
What is a reproduction in the digital environment?
storage of a protected work in digital form in an electronic medium constitutes a reproduction
Article 2 InfoSoc Directive Reproduction provides …
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
How many words constitutes “in-part”
There is no definite answer, 11 or more words is in part, but less than 11 is debatable
Reproduction of fragments
Article 2 of the Copyright directive is interpreted as meaning that a reproduction right extends to transient fragments
Copyright in change of medium
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
Reproduction of sound samples
Taking and reproducing a sound sample is considered a reproduction “in part”
Does transferring a sound sample from another phonogram constitute copying?
no, it doesn’t constitute copying because it doesn’t reproduce all or substantially all of the phonogram
What is distribution to the public
the exclusive right to authorize or prohibit any form of distribution to the public by sale or otherwise
When does exhaustion occur?
distribution right is exhausted after the first sale or other transfer of ownership in the Community by the right holder or with his consent
What is exhaustion?
original owner no longer has the exclusive right to control further sales or distribution of that particular copy
What does works does exhaustion apply to?
distribution right applies to tangible objects
Does exhaustion apply to an alteration of medium?
the doctrine does not apply when a transformation through alteration of medium places the work on the market in a new form
exhaustion in computer program/software
computer program rights are exhausted if the copyright holder has authorized the downloading and right to use that copy for an unlimited period
most important moral right
Paternity right. the right to be recognized as a contributor or author of the work
term of moral rights on copyright works
moral rights last forever, unlike economic rights
What is communication to the public
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
What is the public
an indeterminate number of potential recipients and implies, a fairly large number of persons
Cumulative effect in communication
Must take into account the number of persons who have access to the same work at the same time or successively
Does linking material require authorization?
No, if the work remains accessible in its original form and there is no new public.
What is a new public in the context of linking material
this refers to an audience that was not targeted or anticipated by the copyright holder in the original communication to the public
what constitutes a new public?
If the work is behind a paywall or access is restricted and the person linking provides the work accessible to a wider public
linking to illegal content can constitute copyright infringement if
the linker pursues financial gain, or knew or should have reasonably known the content was illegal
due diligence in linking
under a duty to verify the legality of the content if acting in a commercial capacity
good faith defense in linking
non-commercial linkers may avoid liability if they are unaware of the content’s illegal nature
Issue in Cordoba case
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?
Cordoba: Act of Communication
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
Cordoba: No exhaustion of rights
Copyright holders retain the exclusive right to authorize or prohibit each subsequent act of communication to the public, regardless of prior instances of availability
Article 14 CDSM works in the public domain
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
Freedom of Panorama
MS may provide for exceptions or limitations to the rights for works of architecture or sculpture which are located permanently in public places
is making available to the public harmonized?
No
Test for copyright in AI-assisted work
- production in literary, scientific, or artistic domain, 2. human intellectual effort, 3. originality/creativity (creative choices), 4. expression
“Three-Step” Test
- 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?
Key considerations of the three-step test
Necessity; proportionality; interpretation
Mandatory Limitation
Temporary acts of reproduction
Why are temporary acts of reproduction a mandatory limitation
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
Examples of non-mandatory limitations or exceptions
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.
Parody Exception
parody must constitute an expression of humor or mockery.
How to assess parody and copyright protection
balance right of persons vs freedom of expression
private copying
only allowed if it is from a legally acquired source
New limitations to copyright in directive 2019/790
- 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
Internet service providers role in copyright
there is no general obligation to monitor, and MS can’t impose a general obligation to monitor
Hosting Directive on service providers
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
Criminal remedies for copyright infringement
Not harmonized throughout Countries. May include imprisonment, monetary fines, seizure, forfeiture, destruction of infringed goods
Civil remedies for copyright infringement
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
Related Rights
Performances
Phonograms producers
Producers of first fixation of films
Broadcasting organizations
Photographic pictures
Database producers
Article 9 TRIPS
Copyright protection is for expressions not ideas. And relation to the Berne convention. Members shall comply with Article 1-21 of Berne convention.
Article 10 TRIPS
copyright protection for computer programs and compilation of data as literary works
Article 12 TRIPS
When term of protection is not based on lifespan of author it must be no less than 50 years
Article 13 TRIPS
Members have limitations and exceptions to copyright for special cases that don’t conflict with normal exploitation
Article 6 TRIPS
doesn’t discuss exhaustion
Article 1 TRIPS
Members can but aren’t required to provide more protection than in the agreement
Article 3 TRIPS
National treatment of rights
Article 4 TRIPS
Most favored nation
Article 7 TRIPS
objectives for protection and enforcement for the promotion of technological innovation
Article 8 TRIPS
principles. Members may adopt necessary measures to protect public health, public interest, socio-economic development, and prevent abuse of IP rights by right holders
Article 5 TRIPS
public health agreement. Compulsory licensing allowed for patents
Paris Convention Article 1: Design
refers to protection, but no definition of design
Paris Convention Article 5: Design
Protection for designs in all countries of the Union
Paris Convention Article 4: Design
priority is 6 months
TRIPS art 25
protection of independently created industrial designs that are new or original.
Trips art 26
protection at least 10 years for designs
Requirement for Design
novelty and individual character
Novelty in Designs
no identical design has been made available to the public
what is made available to the public for designs
not reasonably known in the normal course of business to the sectors concerned
what is individual character
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.
statutory limitations for designs
exhaustion, use prior to filing, non-commercial or private uses, experimental purposes, reproductions for teaching or citations
