Marcelo Di Pietro
WIPO

Legal concept describing rights related to intangible goods or creations of human mind.
Relation with elements of information embodied in tangible goods, separate of property rights in tangible goods.
Unlimited number of copies may exist simultaneously.
Intangibles / tangibles goods
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What’s the copyright system ?
Legal system which regulates the interests (economic and moral) of authors and other right-holders (in the exploitation of their creative works) and the users (free access to information and knowledge)
Expectations created by technological impact

Economic and moral rights
Exceptions
Right to stop the use or exploitation of an intangible good
Public domain
Treaties Territoriality
Limited in time

History of protection of artistic and literary works
Ancient world
Written books since V century B.D
Dramatic Musical performances
Art
Intellectual creation was regulated by common property rules
Patronage / Teaching
Privileged artisants

History of protection of artistic and literary works
Gutemberg ´s movable type printing press XV century
First large-scale mechanical production (McLuhan)
System of Privileges for printers and booksellers (feudal)
Republic of Venice in 1469 – Giovanni da Spira
Royal Privilege in 1557 in London
In favour Stationer’s Company
Perpetual right
Queen Anne’s Statute (1709) England
Right of copy for the author
Dramatic copyright Act in 1833 England

History of protection of artistic and literary works
US First law 1790 protection for books, maps and maritime charts.
Term of 14 years, renewable.
France
Revolution abolished all privileges in 1789
1791 Performing rights for authors of dramatic works
1793Protecion of authors of artistic, literary ad musical works

History of protection of artistic and literary works
Statute of Anne:
…the author of any book already printed, or other persons who had purchased copy or copies of any book, in order to print or reprint the same, shall have the sole right and liberty of printing such books”
Decree 1793:
Les auteurs d’écrits en tout genre, les compositeurs, les peintres et dessinateurs qui font graver des tableaus jouiront leur vie entière du droit exclusive de vendre, faire vendre, distribuer leur ouvrages dans le territoire…

History of protection of artistic and literary works
Universal Declaration of Human Rights of 1948
Everyone has the right freely to participate in the cultural life of community, to enjoy the arts and share in scientific advancement and its benefits.
Everyone has the right to the protection of moral and material interests resulting from any scientific, literary and artistic production of which he is the author.

Author oriented/market oriented
Subject matter of protection
Originality/fixation
Concept of author
Natural and moral persons
Moral rights
Economic rights/limitations

Potential to constrain ability to communicate, to develop ideas, to study, to research, to develop new ideas
Interaction with cultural goods
Possible constraint to creativity and innovation
Time duration

Why protecting?
Natural rights justification:
Product that emanates from the author’s mind
Expression of author’s personality, reflecting its unique nature as an individual.
To every cow its calf
Natural right over the products of their labour, and the productions of their intellectual labour (Locke)
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Why protecting copyright?
Reward:
Fair to reward and author for the effort in creating a work a making available to the public.
Reward is and end in itself and not a means.
When do we deserve a reward? What kind of reward?

Why protecting copyright?
Incentives based approaches:
Utilitarian approach based on what is more beneficial for the society
Society grants a limited temporal right in exchange of dissemination
Avoid free-riding in creative market

Why protecting copyright?
Neoclassic Economic Approach
Protection of anything of value
Maximizing wealth
Allocating efficiency
IP allows optimal exploitation of creative goods.

Why protecting copyright?
Democratic paradigm: (the use o f market institutions to enhance the democratic character of civil society)
Promotes creation and distribution of information and educational resources.
Enhances civil participation through the ritgh balance between ownership and access
Supports plurality, independence and generate autonomous contributions to our autonomous discourse

Multilateral level
WIPO
World Trade Organization (WTO)
Union for Protection of Plant Varieties (UPOV)
Food and Agriculture Organization (FAO)
World Health Organization (WHO)
Convention on biodiversity (CBD)
International Telecommunications Union (ITU)
UN Framework Convention for Climate Change (UNFCCC)
UNESCO
UN Industrial Development Organization (UNIDO)
…

Copyright
Berne Convention (1886) (1967/1971)
Universal Convention (1951)
TRIPS Agreement (1994)
WIPO Treaty on Copyright (WCT) 1996
Free Trade Agreements
Related Rights
Rome Convention (1961)
WIPO Performances and Phonograms Treaty (WPPT) 1996
TRIPS Agreement (1994)
Free Trade Agreements
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Analogic
Bern Convention (1886) (1967/1971)
Rome Convention (1961)
TRIPS Agreement (1994)
Digital
WIPO Treaty on Copyright (WCT) 1996
WIPO Performances and Phonograms Treaty (WPPT)
1996
Free Trade Agreements
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24 multilateral treaties (à la carte)
No control of norms
Types of treaties
Other international instruments
– Joint recommendations et cetera…

Allow to stop non authorized parties to exploit a protected work through copy or communication to the public
Economic and moral rights
Limited duration
No formalities
Worldwide protection
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National treatment
Minimum protection
Law of the country where protection is claimed
Independence of law of country of origin
Dispute settlement under general rules of public international law
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Nationality
Headquarters or domicile
Place of first publication (within 30 days)
Place where physically situated
Place of performance/recording
Place of transmission

Every production in the literary, scientific and artistic domain, whatever may be the mode or for or its expression.
Ideas are not protected
Work must be original
Fixation may be required by national law
Public policy considerations for not giving protection?
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Relationship between the author and the work.
Threshold: exclude trivial work
Labor, skill and effort.
Sweat of the brow
Own Intellectual contribution
New works/derivative works
Computer generated works
Photographs

Protected Works
(1) 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,
(2) such as books, pamphlets and other writings;
(3) lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works;
(4) choreographic works and entertainments in dumb show;
(5) musical compositions with or without words;
(6) cinematographic works to which are assimilated works expressed by a process analogous to cinematography;
(7) works of drawing, painting, architecture, sculpture, engraving and lithography;
(8) photographic works to which are assimilated works expressed by a process analogous to photography;
(9) works of applied art;
(10)illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

Protected Works
It shall, however, be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.
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.
It shall be a matter for legislation in the countries of the Union to determine the protection to be granted to official texts of a legislative, administrative and legal nature, and to official translations of such texts.

Protected works
(5) 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.
(6) ...
(7) ...
(8) The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information.

Reproduction or copy
Translation, adaptation
Public performance/recital
Broadcasting and other communication to the public
Resale right
Moral rights (authorship and integrity)
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minimum rights to claim authorship (paternity right) to object to any distortion, mutilation or other modification (right to integrity of the work) any derogatory action in relation to the work which would be prejudicial to author’s honor or reputation.
duration at least until the expiry of the economic rights

General term: at least 50 years after the death of the author principle of reciprocity: application of the duration of the country of protectionbut not longer than the duration in the country of origin, if not expressly provided different in the domestic law of the country of protection

Exceptions and limitations, to what?
Legal protection of literary and artistic works whatever may be the mode or forms of its expression
Legal protection
Prior authorization of rightholder
Compulsory licences / remuneration right
Prior authorization + remuneration to rightholder
Permitted uses
Fair use
Fair dealing
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Optional for member states
(subject of national law)
One is mandatory (art. 10)
Right of quotation
No international harmonization in the field of E&L
Kind of exceptions express - implied general - specific

Subject matter not protected
Ideas, theories, data
Procedures,
News of the day and press information (2.8)
Subject matter that may not be protected
Official texts, (legal, adminstrative) (2.4)
Political speeches delivered in legal procedings (2 bis,1)
Public interest (17) –no related to protection but to circulation, performance, exhibition and broadcasting
Time limitation

Quotation right (10.1)
Use for teaching purposes (10.2)
Use of articles in newspaper and periodicals (10. Bis 1)
Use of works in reporting current events (10 bis, 2)
Reporting of lectures, addresses and other similar works (2 bis, 2)
Ephemeral recordings of broadcast works (11 bis, 3)

Minor reservations related to performing, broadcasting, recording, cinematographic rights arts. 11, 11bis, 11 ter.
14.
Translation right (art. 8)
Humanitarian reasons (reproduction for visually impaired)
Public interest in relation with a market dominant position/anti trust practices

Before Stockholm (1967) and Paris (1971) Acts there was no general provision of the reproduction right.
¿Was it an implicit right ?
Recognized in national laws
National features of the national laws
“Broad formula” to encompass current and future E&L
The general principle does not affect special provisions of arts. 10,
10 bis and 2 (bis)2.

National law may provide for exceptions and limitations in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder

Recording of musical works Art. 13.1
Broadcasting of works 11 bis, 1 and 2
Special Appendix in relation to Developing countries
Private copy?

Provides for compulsory licences for translation and reproduction of works that may be requested by developing countries
In force since 1971
Cuba, Korea (DR), Jordan, Oman, Bangladesh,
Philipines , Arab Emirates, Mongolia, Thailand,
Syria, Sudan.

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protection of related rights three groups of beneficiaries performers producers of phonograms broadcasting organisations contracting parties 88 (no USA) administered by WIPO

Perfomers: actors, singers, musicians, dancers. Persons who act, sings, deliver, declaim, play or perform a literary or artistic work.
Phonogram: aural fixation of sounds of a performance
Broadcasting: transmission by wireless means for public recepcion of sounds/images

principle of national treatment subject to the protection guaranteed and limitations provided by the Convention principle of minimum rights principle of non-affection the copyright / author’s right
(no provision of the Convention may be interpreted as prejudicing such protection) principle of the country of protection

Protected Persons and Protected Subject Matters performers if the performance takes place in the CS if the performance is incorporated in the protected phonogram unfixed performance is carried by a protected broadcast producers of phonograms if the producer is national of the CS if the fixation is made in the CS the first publication was made in CS (30 days) broadcasting organisations if the headquarter is in the CS if the broadcast is transmitted from the CS

performers right to prevent broadcasting, fixation, reproduction right to remuneration for communication to the public of the commercially published phonograms phonogram producers exclusive reproduction right right to remuneration for communication to the public of the commercially published phonograms broadcasting organisations rebroadcasting fixation reproduction

Duration 25 years
E&L Berne + private use, reporting, ephemeral fixation, teaching and research.
Actors are mentioned but their rights not treated
No moral rights

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National Treatment
Most Favored Nation Treatment
Exhaustion of IP rights
Anticompetitive practices
Detailed enforcement provisions
Dispute settlement mechanism
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Incorporated substantive provisions of Berne,
(art 1-21) except moral rights (art. 6 bis)
“Copyright protection shall extend to expressions and no to ideas, procedures, methods of operation, or mathematical concepts as such”
Computer programs as literary works (source or object code)
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Rental rights for computer programs and cinematographic works
Compilations of data or other materia, whether in machine readable form or other form, which by reason of the selection or arrangement of their contens constitute intellectual creations and shall be protected as such.

Art... 40
Some licensing practices or conditions pertaining to IPRs which restrain compettition may have adverse effects on trade and may impede the transfer and dissemination of technology.
Members may specify licensing practices that may constitute of an abuse of IPRs having an adverse on competition in the relevant market.

Rome Berne
1961
1967-1971
1975 1990
” guided development "
WCT
TRIPS
WPPT
1994 1996
From the 70’s
Internet boom
Reprography
, videotechnology, cassettes and compact discs, satellite broadcasting, software, databases, cable television.

Knowledge
Past 20 years - enormous changes in knowledge generation and the global economy.
Knowledge has become a major input to production. No just the traditional factors of production, like capital, labour and land but also Innovation.
IP provides the legal framework for trading intellectual assets

Massive access to information
Changes in expectations and behaviour of consumers
New players and stakeholders
New possible right holders
Technological protection measures
Multiterritorial explotation of works

WIPO Copyright Treaty (WCT) entry into force March 6, 2002
WIPO Performances and Phonograms Treaty (WPPT) entry into force May 20, 2002 ensure that rightholders control dissemination of protected material over Internet, including right to make available ‘on demand’

Right of Reproduction
Rights Management
Information
Rights for transmissions in interactive digital networks
Technological
Measures of Protection
Limitations and
Exceptions

Provisions TRIPS not included in previous WIPO treaties
Provisions not related to the digital agenda
Provisions related to the digital agenda

Provisions not related to the digital agenda
National treatment (Bern and Trips)
Differences between WCT y WPPT
Application in time (13 WCT and 22.1 WPPT). No retroactive.
Exception for performer’s moral rights
Protection for 50 years since the end of year of fixation (17 WPPT)
50 years since end of year of publication of phonogram
No formalities for protection
Enforcement procedures (14 WCT and 23 WPPT)

Distribution right (6 WCT / 8 and 12 WPPT)
Exhaustion of rights
Extension term of protection of photographic works (9
WCT)
Moral rights for performers (5 WPPT)

protection of expression (2 WCT) computer programs (4 WCT) date bases (5 WCT)
50 years of protection for performances and phonograms
(17 WPPT) rental right (7 WCT - 9 and 13 WPPT)
- Computer programs
- Cinematographic works
- Phonograms

WPPT includes definitions
Acts of reproduction of works and objects (digital storage)
Agreed statement (1 WCT- 7 WPPT)
Applicability of art. 9 (right of reproduction) Bern
Convention
Storage in digital form in electronic medium constitutes a reproduction within the meaning of art. 9 of Bern
Convention

Agreed statements concerning Article 1(4) : The reproduction right, as set out in Article 9 of the Berne
Convention, and the exceptions permitted thereunder, fully apply in the digital environment, in particular to the use of works in digital form. It is understood that the storage of a protected work in digital form in an electronic medium constitutes a reproduction within the meaning of Article 9 of the Berne Convention
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Article 5
Temporary acts of reproduction referred to in Article 2, which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable:
(a) a transmission in a network between third parties by an intermediary, or
(b) a lawful use of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2.

Right to authorize or prohibit all reproductions of their works , in any manner or form, permanent or temporary
(including storage in electronic form)
Exception: any temporary reproduction, without an independent economic impact, that is integral and essential part od a technological process and with the only objective of allow a legal transmission in a network
(chili)

Issues
What’s the right involved?
Communiction to the public
Electronic distribution sui generis
Concept of public

Without prejudice to the provisions of Articles 11(1)(ii) ,
11 bis (1)(i) and (ii) , 11 ter (1)(ii) , 14(1)(ii) and 14 bis (1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.
9
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National (general-specific)
Regional
European Union (DIS)
Multilateral
Internet treaties (WCT-WPPT)
Bilateral
FTAs

Content Provider
Provider of services in line
(Hosting)
WEB pages
E-mail
Chat services
Search engines
UGC…
Access provider (link to networks)
Network provider (telecomunicaton infrastructure)

Agreed statements concerning Article 8 : It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or the
Berne Convention. It is further understood that nothing in
Article 8 precludes a Contracting Party from applying
Article 11 bis (2) .
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EU Directive: Horizontal criteria (no juts IP infringement)
Safe harbors:
No liability:
Mere transmiters / No intervention, No origin,no selection, no upload.
No impide que se le puedan ordenar medidas cautelares para poner fin o impedir a una infracción.
Proveedores de servicios tienen limitada la responsabilidad en tanto no tengan conocimiento efectivo de la ilicitud del contenido. Deben responder apropiadamente desde que tienen conocimiento. Sistemas jurídicos y técnicos para poner fin a la relación. Servicios de notificación y puesta fuera de línea y plazo para la presentación de una acción judicial.

Application of the three step test to rights of WCT and Berne rights
It is understood that the provisions of Article 10 permit Contracting
Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne
Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment.
It is also understood that Article 10(2) neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention
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Device to restrict access or uses of the protected content non authorized by the right holder
Measures for Access
Measures to restrict the exercise of rights (Anticopy)
Measures related to management of information

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 under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.
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Article 12
Obligations concerning Rights Management
Information
(1) Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty or the Berne Convention:
(i) to remove or alter any electronic rights management information without authority;
(ii) to distribute, import for distribution, broadcast or communicate to the public, without authority, works or copies of works knowing that electronic rights management information has been removed or altered without authority.
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(2) As used in this Article, “rights management information” means information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public.
11
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