Week 3 Flashcards
Protection subject matter. Work as an object of art and as an object of legal protective norms. Fixation. Originality versus creativity. Jurisprudence of the CJEU in regard to protection subject matter.
What is subsidiarity principle ?
1
What is proportionality principle ?
1
What EU Copyright law do you know?
- InfoSoc 2001
- Rental and Lending Right 2006
- Resale Right 2001
- Satellite and Cable Directive 1993
- Software Directives 2009 + 1991
- Enforcement/IPRED 2004
- Database 1996
- Term Directives 2006 + 2011
- Orphan Works 2012
- CRM/Collective Management 2014 impl. of the Marrakech Treaty (13.9.2017)
- Probably also: Digital Single Market (still in consultation)
what are the universal copyright requirements ?
- Idea/expression dichotomy
- Fixation principle
- Originality requirement
What is Idea/expression dichotomy?
Case Moreau v Vincent
is an elementary principle of copyright law that an author has no copyright in ideas but only in his expression of them. The ideas are public property, the literary work his own. Every one may freely adopt and use the ideas but no one may copy his literary work without his consent.
Case Nichols v Universal Pictures
- both works presented more or less similar plot
abstraction test:
What is the difficulty of
1
Case Stowe v Thomas
- Uncle Tom’s Cabin was translated into German Without prior consent
- The court held:
Case Baigent v Random House (UK)
- The Holy Blood and the Holy Grail are plaintiffs
- The plaintiffs claimed to be a historical book with a Central Theme
- The defendant (publisher of Dan Brown’s book: the Da Vinci Code) publish a fictional book
- Dan Brown admitted to read the plaintiffs book in his research (however: not to copyright’s infringement)
- Similarities to be found: between the “Central Theme”of the plaintiffs and fictional plot of the Da Vinci Code.
The Court Held: the line between idea and expression is to enable a fair balance to be struck between protecting the rights of the author and allowing literary development
in the appeal: solely the form or manner in which ideas were expressed are protected
Literary copyright does not give rights that enable persons to monopolise historical research or knowledge
Case Rogers v Koons
1
Case Levola Hengelo application
1
What are the requirements for the copyright protection of the taste of a food product?
1
What is stated in the Green Paper in regard of copyright?
European Commission intervention in the realm of copyright was required to be based on four fundamental concerns of the community now perceived as the EU.
What are the four fundamental concerns stated in the Green Paper?
- the need to create a single community market for copyright goods and services.
- the need to improve the competitiveness of the economy and copyright goods and services in the community.
- the need to protect intellectual creation and investment produced in the community against unfair exploitation by users in non-member states.
- the need to limit the restrictive effects of copyright on competition especially in technology related areas such as a computer software and industrial design.
Which six areas did the Commission identify in the Green Paper where immediate action was required?
- piracy enforcement
- audiovisual
- home coping distribution
- right exhaustion and rental rights
- computer programs
- databases and multilateral and bilateral external relations.
What is not covered by a competence of the EU legislator?
The moral rights system, the personal protection of author.
What is established in article 17 of the Charter of Fundamental Rights?
That the intellectual property shall be protected.
Are there different translations of the article 17 of the Charter of Fundamental Rights?
Yes.
Which articles are the legal basis for EU’s competences?
Articles 114. and 115. of the Treaty on the Functioning of EU.
How many directives and amendments provides the EU’s legislator on the basis of articles 114 and 115 of the Treaty on the Functioning of EU?
Eleven directives with two amendments.
How many cases regarding copyright are in the Court of Justice?
More than 90.
Are there any general provisions concerning copyright rules in the EU?
No.
What is the InfoSoc directive?
A quite general directive concerning exclusivity principle, scope of exclusive rights and enforcement measurements.
Is a Fair Use clause provided in the EU’s legislation?
No.
What is the heart to the copyright spine?
Protection subject matter.
What is the first question concerning protection subject matter?
How to build a new work protected under copyright legal system.
Despite the national differences in legislation can we still provide some universal requirements and assertions regarding the protection subject matter in copyright?
Yes.
What is the basic principle concerning protection subject matter in copyright?
The basic principle is the idea of expression dichotomy and it is the most ambiguous, sometimes also arbitrary, principle, but of great importance for corporately legal system.
What are the consequences of the basic principle concerning protection subject matter in copyright?
- the fixation requirement
- originality requirement
What is the idea expression dichotomy?
The most important principle that lies on the foundations of the copyright legal system.
What is the background of the idea expression dichotomy?
The idea should remain free for society, as free as the air. It cannot be monopolized to have an idea.
What did the Justice Hand commented in case Nichols vs. Universal Pictures?
That the distinction between ideas and expression will seem arbitrarily.
What provides the distinction between ideas and expressions?
It provides a way of reconciling two competing interests; the interest in rewarding ingenuity and the interest in allowing the public to benefit from new works by order authors on the same subject depending on what the purpose of copyright is so that the distinction between the unprotected idea and protected form of expression ought to be drawn.
