Economic rights

Question 1

Monistic approach

Answer 1

both moral and economic rights roots from one subject matter, therefore it is impossible to see them as different and independent parts of the system;

consequence: economic and moral rights ought to be considered together,
transfer of rights is problematic
thus, a transfer of rights is usually considered as a constitutive act

Question 2

Dualistic system

Answer 2

oral and economic rights covers different interests (a theory of interest was introduced by R. Ihering), therefore it is necessery to construct different, independent solutions to manage them;
consequence: moral rights infringement does not necessarily mean economic rights infringement,
transfer of rights possible,
transfer of rights has a declaratory character.

Question 3

Economic rights in the Berne Convention

Answer 3

1. making a collection of speeches, addresses and or other similar works (article 2bis(3))
2. translation (article 8)
3. reproduction in any manner or form (article 9(1))
4. public performance of dramatic, dramatico-musical and musical works by any manner or means (article 11(1)(i))
5. communication to the public of performances (article 11(1)(ii))
6. broadcasting and any communication to the public by any means of wireless diffusion of signs, sounds or images (article 11bis(1)(i))
7. communication to the public by wire of broadcasts and rebroadcasts (article 11bis(1)(ii))
8. public communication of broadcasts by loudspeakers or other analogous instruments (article 11bis(1)(iii))
9. public recitation of literary works (article 11ter(1)(i))
10. public communication of recitations of literary works (article 11ter(1)(ii))
11. public recitation and public communication of translations of literary works (article 11ter(2))
12. adaptation, arrangement and other alterations (article 12)
13. cinematographic adaptation (article 14(1)(i))
14. distribution of cinematographic adaptations and reproductions of works (article 14(1)(i))
15. public performance and communication to the public by wire of cinematographic adaptations and reproductions (article 14(1)(ii))
16. the resale right (droit de suite) in original works of art and original manuscripts of writers and composers (article 14ter)

Question 4

Main categories of economic rights

Answer 4

Right of reproduction
Rights of translation and adaptation
Rights of public performance, broadcasting and communication to the public
Resale right (Droit de Suite)

Question 5

Right of reproduction

Answer 5

any activity that results in a multiplication of work

Question 6

Rights of translation and adaptation

Answer 6

may be regarded as separate rights although they could be also involved in some form the reproduction of a pre-existing work.

Question 7

Public performance

Answer 7

any acoustic or visual presentation of the work for those who are present at the place of the performance

Question 8

Broadcasting

Answer 8

transmissions of sounds or images by electromagnetic waves

Question 9

Cablecasting

Answer 9

distribution by wire or cable to members of the public which have access to equipment connected to the wire or cable system

Question 10

Umbrella solution

Answer 10

the BC and TRIPS Agreement

constructed as the right to make work available to the public and the right to communication to the public,

covers all Internet uses

often referred not explicitly by the CJEU

Question 11

Communication to the public under WCT

Answer 11

Any way of communication to the public is covered, be it by wireless means or by wire. It covers above all demand services, where an user initiates contact and gets access to the work at a place and time chosen by him or her.

Question 12

Art 6 WCT

Answer 12

Case of right of distribution

Question 13

Art 7 WCT

Answer 13

Case of right of rental

Question 14

Art 8 WCT

Answer 14

Communication to the public

Question 15

Basic framework of EU economic rights

Answer 15

InfoSoc Directive

Rental and Lending Directive

Resale Right Directive

Satellite and Cable Directive

Software / Database Directives

Question 16

InfoSoc Directive (2001/29)

Answer 16

reproduction rights
communication to the public
distribution rights
rental rights

Question 17

Communication to the public

Answer 17

any activity that allows the public get acquainted with the content of work

Question 18

Distribution rights

Answer 18

any legal action that constitutes a transfer of property of a work exemplar

Question 19

Rental rights

Answer 19

any other legal action that is not transfer of property

Question 20

Peek & Cloppenburg KG v Cassina SpA, C-456/06

Answer 20

The CJEU rejected a broad interpretation of distribution, taking the view that the phrase ‘or otherwise’ was limited to situations in which ownership of the goods was transferred. The concept of distribution to the public, otherwise than through sale, of the original of a work or a copy thereof, for the purpose of the InfoSoc Directive, applies only where there is a transfer of the ownership of that object. As a result, neither granting to the public the right to use reproductions of a work protected by copyright nor exhibiting to the public those reproductions without actually granting a right to use them can constitute such a form of distribution.

Question 21

Dimensione Direct Sales Srl, Michele Labianca v. Knoll International SpA, C-516/13

Answer 21

the CJEU held that the distribution right mentioned in the InfoSoc directive must be interpreted as meaning that it allows a holder of an exclusive right to distribute a protected work to prevent an offer for sale or a targeted advertisement of the original or a copy of that work, even if it is not established that that advertisement gave rise to the purchase of the protected work by an EU buyer, in so far as that advertisement invites consumers of the Member State in which that work is protected by copyright to purchase it.