IP law I: Fundamental principles and copyrights Flashcards
Describe IP law
Intellectual property law deals with the question of affording legal protection to a number of practically and financially very important assets, viz. to literary, artistic, technical, etc. works as well as to trade marks and other trade symbols
The most important Acts are the Copyright Act (literary, artistic, etc. works), the Patents Act (inventions) and the Trade Marks Act (trade symbols in the form of trade marks)
Disregarding the fact that the works mentioned all may be said to be of intellectual and intangible nature, the primary feature combining them in a special area of law is the fact that the legislation makes universal use of an exclusive rights construction: the person producing the work (the author, the inventor, etc.) is, in certain respects, granted the exclusive right to use the work
Definition of Copyright
A copyright refers to the exclusive right of the original creator(s) of literary or artistic works to copy, distribute, present, or perform that work, or assign rights in relation to that work to someone else.
Legal definition (Scope of protection)
What qualifies for protection?
Copyright protection is provided by the provisions in Consolidated Act No. 587 of 20 June 2008 on Copyright
Pursuant to s. 1(1) of the Act, literary and artistic works shall be protected, irrespective of whether the work in question takes the form of oral or written fiction or non-fiction, of a musical or dramatic work, of cinematographic or photograph work, of works of fine art, works of architecture or works of ap- plied art or any other form
The traditional approach here has been to focus on the originality, quality and quantity of the works
S. 1(1) presumes that copyright is to be accorded to the person who “brings into existence” a work of the nature mentioned
In this connection, it is important to notice that copyright – unlike, e.g., the patents right – is not a priority right (“first come, first served”)
The requirement as to originality is thus not a requirement that the work should be “novel” in an objective sense
Quantitative restrictions are only of practical importance in connection with linguistic works
Creation
Copyright is acquired upon the bringing into existence (“the creation”) of the work in question
In the event that there is more than one author and the individual efforts cannot be separated so as to constitute individual works, the copy- right is afforded to all of the persons in joint authorship, cf. s. 6 of the Act
In the case of a computer programme which is produced by an employee during the course of his employment or in performance of the instructions of the employer, it is provided by a specific rule in s. 59 of the Act that the copyright shall be accorded to the undertaking, unless agreement to the contrary has been made, cf. s. 53(4). Such transfer of copyright is final and complete
The “who” of copyrights
The role of contract (within copyrights)
In principle, it is the creator (natural person) who enjoys the copyright, although joint authorship is possible.
Within employment? Copyright in principle assigned to the employee, subject to use by the employer in the organizational needs of the employer. In practice often subject to specific provisions in the employment contract to the effect that copyrights are assigned to the employer (also customs of trade)
BUT! Where a computer program is created by an employee in the execution of his duties or following the instructions given by his employer the copyright in such a computer program shall pass to the employer (Company)
The Assignment of copyrights (Videregivelse af copyrights)
Quality requirement
The ‘quality’ requirement has been imposed on a limited category of creations with a functional purpose. In that sense originality as to its purpose must rise above the ordinary and must be the result of labour and intellectual activity.
This is motivated by the general need / desire for competition.
But, not applied to:
* Pure art
* Computer programmes
–> EU Directive on legal protection computer programmes precludes further requirements beyond originality.
Duration of Copyright
Copyright normally expires 70 years after the death of the author, cf. s. 63(1)
In cases of joint authorship, duration is measured by the death of the last of the joint authors
A special rule applies in respect of films, cf. the second sentence of subsection 1.
THE ‘POST-COPY’ COPYRIGHT
Talk about Exhaustion (Consume/use) OF RIGHTS
Once a copy is assigned legally, it can be sold on but not rented out in the EEA area.
Computer pogrammes in digital format may not be further distributed without the consent of the copyright holder.
Generally, copyright holder loses exclusive right of further distribution of copies through sale or lending.
When the author has exercised his right of reproduction, and when copies later – e.g. by sale – are distributed to the general public, a practical question of paramount importance arises, viz. the question as to the relationship between the rights of the author and the owner of the copy in respect of the original work and the copy, respectively
In respect of the right of distribution, the general starting point of the Act, cf. s. 19(1), is that a copy of a work – irrespective of its nature – may be distributed, provided that it is sold or in any other way assigned to others with the consent of the author
It follows from the above that it is of decisive im- portance whether transfer of ownership to the copy has taken place, i.e. licensing or lending does not provide grounds for free and unlimited right to further distribution
The starting point is modified in several respects. Under s. 19(2), it shall apply to all works, except from works of architecture and applied art, that although lawful assignment has taken place, no (further) distribution shall be undertaken by means of licensing without the consent of the author
In respect of copies of cinematographic works and of computer programmes in digitised form, (further) distribution without the consent of the author shall also, as a principal rule, be prohibited, cf. s. 19(3)
The question of exhaustion of the right of presentation is treated in s. 20 of the Act.
Where a work has been published or if a copy of a work of art has been transferred to other parties by the author, the published or transferred copies may be exhibited in public under subsection 1 of the said provision
“Published” is defined in s. 8(2) as meaning the placing on the market of cop- ies of the work or distribution thereof to the general public in any other such way with the consent of the author
THE INTERNATIONAL DIMENSION
Copies legally marketed within the EEA (European Economic Area) can be further distributed through sale or lending without the consent of the author.
Copies legally marketed outside the EEA (UK?) can be distributed through renting and lending. Distribtion through sale require consent of the copyright holder.
Beware of parallel imports. If you import copies that are legally marketed in the US, you cannot further distribute copies without the consent of the copyright holder. EVEN IF THE COPYRIGHT HOLDER IS DANISH.
Talk about the copying right
The application of computer technology allows for a lot a copying of materials protected by copyright of a purely temporary and elusive nature – e.g. automatic copying in the cache of the computer applied in connection with browsing on the Internet
In respect of the private right of copying, s. 12(1) sets forth that anyone is entitled to make or have made, for private purposes, single copies of works which have been made public if this is not done for commercial purposes, but such copies must not be used for any other purpose
Production of copies of musical works or films by means of facilities – such as coin-operated copiers – made available to the public, e.g. in libraries, is prohibited
The same applies for literary works if the technical equipment has been provided for commercial purposes, cf. s. 12(5)
Presumably, the most important, in practice, of the situations mentioned here pertains to computer programmes
On databases s. 12(2)(iv) provides that the provision of subsection 1 does not confer the right to make copies in digital form of such bases when the production is made on the basis of a reproduction of the database in a digital form
However, a person with a right to use a database is always authorised to perform such acts as are necessary to obtain access to the base contents and make normal use of such contents, cf. s. 36(2), cf. subsection 3. The provision does not confer a right to make back-up copies
One last limitation of practical importance in s. 12(2) provides that the right to make copies relates to production of copies in digital form of works other than computer programmes and databases, cf. s. 12(2)(v)
The limitation is less extensive than the foregoing in that such copying is permitted if the production relates only to single specimens and it is effected only for the personal use of the producer and his household
This may be of importance in particular in relation to copying (“burning”) of music CDs
Under s. 75b of the Copyright Act it is unlawful to market or for commercial purposes possess means the only purpose of which is to facilitate unlawful removal or circumvention of technical devices applied to protect a computer programme (e.g. copy bars)
The right to quote
From s. 22(1) of the Act appears that it is permitted to quote from a published work as long as such quoting is made in accordance with proper usage and to an extent required for the purpose
In principle, the provision covers all types of work. Quotation is the same as a direct rendering – in fragmentary form – of the work in question
In contrast, the summary constitutes a freer and therefore usually adapted reference to a work or parts of such work
The requirement for “proper usage” means in particular that the quote must be loyal and within reasonable limits. If the work is used publicly, the source must be indicated, cf. s. 11(2)
What does De minimis mean?
In relation to the law, the term ‘de minimis’ is taken from the extended latin phrase ‘de minimis non curat lex’, which translates to ‘the law cares not for small things’. De minimis is a legal principle which allows for matters that are small scale or of insufficient importance to be exempted from a rule or requirement. It can be used by the courts as an exclusionary tool to dismiss trivial matters from litigation.
Contracts often include de minimis provisions as preventative measures to limit the applicability of restrictions within a contract where a party’s failure to observe such restrictions only leads to a negligible or insignificant consequence. They can also be used to set a threshold for bringing claims under warranties, as a trigger for the right to recover a loss or damage under an indemnity or a right of reimbursement under expenses provisions.
