Related Copyright Rights Flashcards
Phonogram
“the fixation of the sounds of a performance or of other sounds, or if a representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work”. ONLY A FIXATION OF SOUNDS
Rights of producers of phonograms
The right of reproduction (right to authorise or prohibit the direct or indirect reproduction of their phonograms)
The right of distribution
Rental rights
The right to remuneration for the broadcasting and communication of a work to the public
The right of making phonograms available to the public
WPPT term of protection for producers of phonograms
Minimum protection of 50 years for producers of phonograms:
• starting from the end of the year in which the phonogram was published, or
• running from the end of the year in which the fixation was made if a phonogram was not published within 50 years of fixation
In the EU the rights of producers of phonograms shall expire 50 years after fixation is made, however:
- If the phonograms has been lawfully published within this period, the said rights shall expire 70 years from the date of the first lawful publication
- if no lawful publication has taken place within 50 years of the fixation being made, and if the phonogram has been lawfully communicated to the public within this period, the said rights shall expire 70 years from the date of the first lawful communication to the public
Provision of WIPO Performances and the Phonograms Treaty (WPPT) that apply to both performers and producers of phonograms:
Exceptions and limitations
Formalities
Technical measures
Rights management information.
Broadcasters Rights under the Rome Convention
- the rebroadcasting of their broadcasts
- the fixation of their broadcasts
- the reproduction of unauthorised fixations
- the communication to the public of their television broadcasts of such communication is made in places accessible to the public against payment of an entrance fee
RIGHTS EXPIRE 20 YEARS AFTER THE END OF CALENDAR YEAR IN WHICH A BROADCAST TOOK PLACE
EU rights of broadcasters
Cover broadcasts that are transmitted by wire or over the air, including by cable or satellite.
Right of distribution
Right to make a broadcast available to the public in such a way that members of the public can access the fixation of the broadcast from a place and at a time individually chosen by them
Rights of film producers
The producers of the first fixations of films are granted 4 rights with respect to the original and copies of their films:
- the right of reproduction
- rental and lending rights
- the right of distribution
- the right of making available to the public
Rights to first publications of previously unpublished works
Article 4 of the Copyright Term Directive:
The related right to previously unpublished works in the EU is granted when such a work is published as a tangible copy only.
The term of protection of such rights shall be 25 years from the time when the work was first lawfully published or lawfully communicated to the public.
Rights to critical and scientific publications
Article 5 of the Copyright Term Directive
Member States May protect critical and scientific publications of which have come into the public domain. The maximum term of protection of such rights shall be 30 years from the time when the publication was first lawfully published.
Rights to photographs lacking originality
Art 6 Copyright Term Directive
Photographs which are original in the sense that they are the author’s own intellectual creation shall be protected in accordance with Article 1. No other criteria shall be applied to determine their eligibility for protection. Member States May provide for the protection of other photographs.
Types of agreements concluded for the exploitation of a copyright by a third party
- economic rights transfer agreements (assignment contracts) - author relinquishes rights and third party acquires them
- licenses - authorise the use of a work in certain ways by a third party without transferring the copyright
Copyleft clause
Typical for open licenses but not mandatory. It ensures that the work will continue to be disseminated under the same license.
Scope of license/ assignment agreement
- can take place in the case of a work that has not yet been created
- copyright is divisible, which means that it can be assigned in parts
- May be concluded for a limited time and cover a specific territory
- in some countries, when transferring the totality of an author’s economic rights, it may be required to list the scope of assigned/ licensed rights
Collecting societies ( collective management organisations)
Exercise the copyright in the name and on behalf of the authors: grant licenses, collect royalties and distribute these among its members after deducting administration costs. Normally one per specific type of work and per country - operate on a country-by-country basis but can conclude mutual representation agreements.
The user of works may deal only with one body and obtain a blanket licence that will allow using any song included in society’s repertoire
Purpose of related rights
Protect the legal interests of certain persons or organisations that contribute to making works available to the public or that add personal, technical or organisational skill to the exploitation of the work.
International standard of protection for related rights is determined by 3 international treaties
1) The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations 1961
2) TRIPS Agreement 1994
3) The WIPO Performances and Phonograms Treaty (WPPT) 1996
Definition of a perfomer
Any persons who act, sing, deliver, declaim, play in, interpret or otherwise perform literary or artistic works or expressions of folklore without payment
Economic rights of performers - WPPT grants min 50 years of production whilst EU grants 70 years
The rights granted to performers under the Rome Convention, WPPT and TRIPS are:
- right to authorise the fixation of a performance (in the case of an unfixed performance)
- Right to authorise the broadcasting order communication to the public of life performances (in the case of an unfixed performance)
- Right to authorise reproduction of fixations of performances (in the case of a fixed performance)
- The right of distribution (in the case of a fixed performance)
- The rental rights to hardcopies of the performance (along with EU lending rights) (in the case of a fixed performance)
- The right to remuneration for the broadcasting and communication to the public of the performances based on the phonogram (in the case of a fixed performance)
- The right of make a fixed performance available to the public
Moral rights of performers
- The right of paternity which gives the performer the right to claim to be identified as the performer of a performance
- The right of integrity which gives the performer the right to object to any distortion, mutilation or other modification of the performance that would be prejudicial to their reputation
Transfer of economic rights is an issue that is regulated differently in different countries.
There is little in the way of standardised regulation at the international level.
When concluding a contract it is important to comply with the regulations of the country in which that contract is concluded, especially with:
civil law (rules concerning declaration of will, the form of an agreement) and copyright law
two basic types of agreements (contracts) concluded for the exploitation of a copyright by a third party are
economic rights transfer agreements (assignment contracts),
licenses
National regulations provide a specific mandatory form for copyright agreements.
In many countries assignment contracts and exclusive licenses must be recorded in writing
An assignment or a licence can take place in the case of a work that has not yet been created.
True
Copyright is divisible
Can be assigned in parts
In some countries, when transferring the totality of an author’s economic rights it may be required
to specify (to list) the scope of assigned/licensed rights.
Open licence
allow right holders to share their works and even to allow others to produce derivative works on the basis of their works. Open licenses are normally for free and are available to anyone who wants one.
Copyright assignment and licenses agreements may be concluded for a limited time and cover a specific territory.
True
Collecting societies (collective management organisations)
exercising copyright in the name and on behalf of authors; they grant licences, collect royalties, and distribute these among its members after deducting administration costs.
Collective management organisations operate on a country-by-country basis
however they conclude mutual representation agreements amongst themselves.
The user of works, e.g. a radio station, may deal only with one body
may obtain a blanket licence that will allow using any song or piece of music work included in the society’s repertoire
Rights granted in the case of a fixed performance
Right to authorise reproduction of fixations of performances
Right of distribution
Rental rights to hardcopies of the performance (along with EU lending rights)
Right to remuneration for the broadcasting and communication to the public of the performances based on the phonogram
Right of make a fixed performance available to the public
Rights granted in the case of an unfixed performance
Right to authorise the fixation of a performance
Right to authorise the broadcasting order communication to the public of life performances
Producer
person or the legal entity which first fixes sounds of the performance or these other sounds.
Protection for three basic entities under RRs
- Performers
- producers of phonograms
- Broadcasting organisations
In the EU, rights of broadcasters
PROTECTED FOR 50 YEARS FROM THE FIRST TRANSMISSION OF A BROADCAST
