Introduction Flashcards
What is copyright law?
The subject of copyright law is human creativity. Copyright is a set of exclusive rights that belong, initially at least, to the
author or authors of “a work” such as novel, a movie, or a piece of music. Copyright does not protect every aspect
work, it only protects original expression.
What was the Stationers Guild, and what did they do?
In England, the member of the Stationers Guild were the only ones allowed to print books, and only books that the Licensing Act of 1662 had approved (non- heretical, treasonable, blasphemous books). By convention, the members of the Stationers Guild agreed that the first member to enter a
literary title in the Stationers’ Register would have exclusive and perpetual rights to publish it. The Stationers Guild was
essentially a cartel of London publishers and booksellers. Within this group it was common to
view the ‘copy’ as a form of property, it was treated as an exclusive right and was a thing to be
owned, traded, and used as collateral for loans. The Licensing Acts lasted until almost the end 17th century in England but they were
eventually allowed to expire, thus bringing the de jure printing monopoly of the Stationers
Guild to an end.
How is it called the first copyright act?
The Statute of Anne, of 1710. It placed control of new works of authorship into the hands of
authors themselves. Books published before the Statute
were granted twenty-one years of protection under the new law. The authors of books
published after the Statute of Anne took effect were entitled to an initial term of 14 years,
renewable for a second term of the same length if the author was still alive when the first term
ended. The statute did not explicitly address translations, incomplete copying or the unauthorized
creation of sequels. The Statute of Anne also contained a provision whereby booksellers who
charged “high and unreasonable” prices could be called into account and potentially fined.
Explain the case Millar v. Taylor, of 1769.
The majority of Court of King’s Bench held that copyright existed as both a
statutory and a common-law right. The majority held that when statutory copyright ended, the
booksellers’ common law copyright assigned from the author would continue, forever. Justice Yates, dissenting, agreed that
authors had a right to control the first publication of their manuscripts, but no more.
Explain the case Donaldson c. Becket, of 1774.
In 1771 a London bookseller and publisher by the name of Thomas Becket sought an
injunction from the court of Chancery to prevent the Scottish bookseller Alexander
Donaldson from printing the The Seasons by the poet James Thomson who had died in 1748.
The rights conferred on The Seasons by the Statute of Anne had long since expired, thus the
basis of the publisher’s claim was a right at common law beyond the mere right of first
publication. What matters,
however, is that in stating the law of the case in Donaldson v. Becket, Lord Chancellor Apsley
explicitly denied the existence of any common law right, and it was thus this position that
carried the day. The British House of Lords held that copyright in published works was not perpetual but was subject to statutory limits.
Ecxplain the utilitarian v. natural rights justification of copyright.
The Anglo-American view of
copyright law is utilitarian, as expressed in the Statute of Anne, in the UK, and in the Constitution of the USA. Also in the decision of the case Sony v. Universal City Studios, the Justice said that this limitation “is intended to
motivate the creative activity of authors and inventors by the provision of a special
reward…”
The European approach to copyright does not ignore utilitarian arguments, but its
foundational concern is with recognition of the rights of the author as a “person”. As opposed
to the common-law tradition, the civil-law tradition of Continental Europe is characterized by
stronger emphasis on the personality elements of authorship.
What was Kant’s view on copyright? Explain his rights-based account of copyright.
We find the
clearest expression of a purely rights-based account of copyright in the work of Kant. He addressed the issue of “book piracy” in an article of 1785 entitled “On the
wrongfulness of unauthorized reprinting”. Kant’s argument for the wrongfulness of unauthorised reprinting of books relies on the notion
of book as speech to the public. The author, thus, speaks through the publisher to the public, and the
publisher is entitled to act as intermediary between the author and the public only “in virtue
of a mandate (mandatum) that the author gives to him to that effect”. The unauthorised
reprinter also speaks in the name of the author, but he does so without having a mandate to
this effect. As a consequence he
commits a twofold wrong: against the legitimate publisher – as he deprives him of the profits
he could have derived from the execution of the author’s mandate; and against the author
himself – since he undertakes a business in his name (namely, speaking to the public) without
and against his consent.
The Kantian argument is beyond the dichotomy “utilitarian v natural rights”: the author’s right is not a property
right at all, but rather a right to communicate with the public via the intermediation of a
publisher.
What’s the difference between copyright and property?
In property case exclusion and the
correlative duty not to intrude serve as placeholders for more fundamental interests; whereas
in copyright, the fundamental interest is the duty not to copy original expression.
What is the international architecture of copyright law?
Bilateral agreements, Regional treaties or instruments/Regional trade agreements (TFEU), Multilateral Treaties (Berne Convention, TRIPs [Trade-Related Aspects of Intellectual Property], WCT)
List some key multilateral treaties related to copyright.
Berne Convention for the protection of literary and artistic works (1886)
Rome Convention for the protection of performers, producers of phonograms and
broadcasting organisations (
TRIPs Agreement (1994)
Sec. 1 (art. 9 14)
WIPO
Copyright Treaty (
WIPO Performances and Phonograms Treaty (1996)
Explain briefly the Berne Convention.
Copyright law has been the subject of far-reaching international agreements since the Berne
Convention of 1886. It was revised 8 times (last time in 1971). The first Berne Convention was a significant development in first the internationalization on
intellectual property. Prior to the Berne Convention, countries either didn’t recognize the
copyrights of foreign nationals, or they did so based on bilateral agreements of reciprocity.
The Berne convention adopted the principle of national treatment whereby each country
agrees to treat foreigners at least as well as it treats its own nationals, regardless of the level of
protection offered in a foreign country. The Berne Convention also adopted certain minimum
standards.
Remarkably, the United States stayed outside of the Berne Convention until 1989. Initially, the
United States refused to enforce foreign copyrights as part of a deliberate industrial policy that
prioritized the education of a fast-growing population over the rights of authors in faraway
countries. However, even after the United States became an important producer of literature,
music, film, and television it was reluctant to accede to the Berne Convention because United
States law predicated copyright protection on compliance with formalities – including
publication with a copyright notice, registration with the copyright office and deposit with the
library of congress. Insistence on these formalities was strictly prohibited under the Berne
Convention.
Three key principles:
1. National treatment
or non discrimination;
no interference with domestic legislations; non
discrimination of foreign authors
2. Substantive minimum standards of protection => to be applied to any author who is national of a member country
3. No formalities
Explain the TRIPs Agreements
the TRIPs agreement (1994) incorporates by reference articles 1 to 21
of the Berne Convention (Paris 1971) and its Appendix. The TRIPs Agreement also contains
its own minimum standards for copyright which both overlap with and extend the Berne
Convention. The TRIPs Agreement and the Berne Convention both contain some general guidance as to the rights of the copyright owner. However, it is important to recognize that these
international agreements are not self-executing, at least not in the United States and in the
European Union. The rights of the copyright owner in a particular country only exist by virtue
of that country’s domestic legislation.
Unlike the Berne Convention, TRIPS requires member countries to provide effective
sanctions for violations of copyrights. In addition, it creates a dispute resolution
mechanism by which WTO member countries can force other members to comply
with their treaty obligations →“Berne with Teeth”
Explain the TRIPs Agreements
the TRIPs agreement (1994) incorporates by reference articles 1 to 21
of the Berne Convention (Paris 1971) and its Appendix. The TRIPs Agreement also contains
its own minimum standards for copyright which both overlap with and extend the Berne
Convention. The TRIPs Agreement and the Berne Convention both contain some general guidance as to the rights of the copyright owner. However, it is important to recognize that these
international agreements are not self-executing, at least not in the United States and in the
European Union. The rights of the copyright owner in a particular country only exist by virtue
of that country’s domestic legislation.
Unlike the Berne Convention, TRIPS requires member countries to provide effective
sanctions for violations of copyrights. In addition, it creates a dispute resolution
mechanism by which WTO member countries can force other members to comply
with their treaty obligations →“Berne with Teeth”
What is art 2 of the Berne convention about?
The expression “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, such as……
Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work.
Collections of literary or artistic works such as encyclopaedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections.
What does the TRIPs say about computer programs and compilation data?
- Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).
- Compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself.
