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MIP Copyright > Week 11 > Flashcards

Week 11 Flashcards

Copyright as a transferable right: contracts. Management system of copyright: license and transfer of rights. Collective management in copyright system.

1
Q

Infringement checklist:

A
  1. Protection subject matter
  2. Exclusive rights (should be infringed)
  3. Limitations/exceptions
  4. Execution of rights
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2
Q

Step 1: protection subject matter

A

idea/expression dichotomy
originality /creativity
fixation

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3
Q

Exclusivity principle = infringement?

A

positive right: to (do) something with/towards/against work

negative rightL to exclude anyone from (doing) something with/towards/against work

do = to reproduce work, to communicate it to the public, to distribute, to rent/lend

infringement cases: economic rights and moral rights.

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4
Q

Limitations/exceptions

A

limitations list in the EU law/ fair use clause in the US
(fair dealing in the UK)

CJEU: Deckmyn case
abuse/misuse of rights

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5
Q

The TPM: prevention instead of execution

A

Ch, Clark: the answer to the machine is in the machine (Hague conference, 1997)

art. 11 WCT: Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights (…) in respect of their works, which are not authorized by the authors concerned or permitted by law.

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6
Q

The TPM: prevention instead of execution

A

art. 6.1 InfoSoc: Member States shall provide adequate legal protection against the circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective.

art 6.3 InfoSoc: 3. For the purposes of this Directive, the expression “technological measures” means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject-matter, which are not authorised by the right holder of any copyright or any right related to copyright as provided for by law.

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7
Q

What is the essence of well functioning intellectual property system?

A

Providing for appropriate remedies and efficient judicial system in the framework of which infringements can be prosecuted.

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8
Q

Are notions on infringement and the counterfeiting or piracy clearly separated?

A

No.

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9
Q

Write an infringement checklist.

A
  1. Protection subject matter
  2. Exclusive rights that should be infringed
  3. Check limitations or exceptions which are actually applicable to this case
  4. Execution of rights
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10
Q

What are the main issues concerning protection subject matter?

A
  1. The idea/expression dichotomy
  2. The fixation
  3. Originality requirements
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11
Q

Who decides if additional requirements should be introduced regarding fixation?

A

Member states.

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12
Q

Were there different arguments regarding the fixation requirement?

A

Yes.

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13
Q

What does article 3 of the Bern Convention contain?

A

It contains fairly detailed rules which do not leave a lot of discretion to the member states.

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14
Q

What determines the precise qualification requirements?

A

The law of the protecting country.

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15
Q

What are the approaches of the originality requirement?

A

The objective and subjective approach.

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16
Q

What is important to know once copyright has been created?

A

It is important to know what the content of exclusive rights might be involved in the infringement case.

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17
Q

With what is this issue linked?

A

It is strictly linked with the decision to grant copyright as it determines what exactly is being granted.

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18
Q

Under which law should the above mentioned issue be decided?

A

Under the same applicable law.

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19
Q

Does the Bern Convention define the scope of protection in a rigid way?

A

No.

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20
Q

What is set by the Bern Convention?

A

A minimum standard.

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21
Q

What is generally accepted regarding the copyright holder?

A

It is generally accepted that the copyright holder has the exclusive right to reproduce the work and make public representation of his work.

22
Q

What do we have to prove in each infringement case?

A

We have to prove our rights in this case, that our copyright has an exclusivity.

23
Q

Is the exclusive principle effective against third parties?

A

Yes.

24
Q

What is a positive right?

A

A right to do something, exercise something.

25
Q

What kind of right is a copyright?

A

A right to do something towards, against or with work.

26
Q

On what principle are based negative rights?

A

On a principle: ‘’ I have a right to exclude others from doing something towards my work, against my work or with my work.’’

27
Q

What kind of rights is the majority of copyrights?

A

Negative rights with the purpose to exclude third parties.

28
Q

What is infringed in a plagiarism case?

A

Right of reproduction and right to authorship.

29
Q

Does infringement concern also moral rights beside economic rights?

A

Yes.

30
Q

How many forms can infringement have?

A

Two different forms of construction.

31
Q

What is the first form of construction of the infringement?

A

Primary liability or direct infringement.

32
Q

What is primary liability?

A

It is a construction which is based on the principle that my infringer behaved like me, like a right holder.

33
Q

What is the second form of construction of the infringement?

A

Second liability or second indirect infringement.

34
Q

What is second liability?

A

It is based on the principle that me alone did nothing towards work, I encourage someone to do something against work without prior authorization of author. It is something a little bit tricky.

35
Q

Give an example for second liability.

A

For example, i helped someone to infringe copyright.

36
Q

Do limitations in the EU differ from the fair use clause in common law countries?

A

Yes.

37
Q

What is the precise scope of rights granted to?

A

To determine when these exceptions are taken into account.

38
Q

What role do exceptions play?

A

A role as defense against copyright infringement.

39
Q

What did the Court of Justice held in the Dickman case?

A

It held that not only the limitation should be concerned but also some other interests or right holder might help us define or might help us decide whether or not there is an infringement occurred.

40
Q

Is prevention sometimes better than execution of rights?

A

Yes.

41
Q

What has the WIPO copyright treaty regarding protection?

A

A very famous protection of technological protection measures.

42
Q

When were prevention possibilities first invented?

A

In the 20th century.

43
Q

When was internet piracy an increasing problem?

A

In the 20th century.

44
Q

What did Charles Clark invent?

A

He invented an idea or introduced an idea concept in doing some conference in Prague and he mentioned a key sentence that is today used against copyrights monopoly against the institution of technological protection measures. The sentence was: ‘’ The answer of the machine is in the machine’’.

45
Q

How many cases do we have to take into consideration about technological protection measures?

A

Two.

46
Q

What is the first case about technological protection measures?

A

The first one is that the protection of TPM applies in the event of circumvention of those technological measures in order to disseminate work online so in order to do some infringement.

47
Q

What is a typical protection on the forefront?

A

Sales.

48
Q

What is the second case about technological protection measures?

A

The protection of TPM applies also in the event of circumvention of measures in order to do some private copies of works by the user. It’s an action that the right holder has not previously authorized, at least that follows from exact meaning of works which are not authorized by the rights holder.

49
Q

Give an example for the second case about technological protection measures.

A

In case i buy an e-book and this e-book has implemented some technological protection measure that protect from any circumvention of the copy. And then i would like to make a 2nd copy or back up copy for my second reader, then to do so i need to convent this technological protection measure.

50
Q

What is a mandatory provision for member states of EU?

A

To implement it on international order.

51
Q

What does EU provide to member states as well?

A

It provides non mandatory provision that enables the member state to consider fair use exception possibilities from the protection of technological protection measures.

MIP Copyright (15 decks)

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