Copyright Fundamentals
Dr. Mira T. Sundara Rajan, DPhil (Oxon.)
Honorary Member, Magdalen College, Oxford
formerly the Canada Research Chair in IP Law
Email: mira.ts@gmail.com
Copyright Fundamentals
Section Outline
(1) Territoriality and Sources of Law
(2) Automatic Protection (vs. Registration)
(3)“Originality”
(4)“Fixation” (Idea vs. Expression)
(5) Disclosure (First Publication)
(6)“Authorization”
(7)“Reproduction” & Communication to the Public
(8) Fair Use (“Limitations and Exceptions”)
(9) Economic vs. Moral Rights
Territoriality & Sources of Law
domestic legislation - enforced through courts (and police and
customs...)
international treaties - general principles respected by all
members of treaties
enacted in domestic law - harmonized across jurisdictions
“enforcement”? => public and private international law
Berne Convention & TRIPs Agreement (WTO)
Copyright Statutes
copyright = “exclusively” statutory law
historical reasons - Millar v. Taylor (1769), Donaldson v.
Beckett (1775)
BUT non-statutory residue - U.S. - tort, consumer protection,
etc.
contrast with TM
Automatic Protection – Berne
Convention
Berne Convention for the Protection of Literary and
Artistic Works (1886,...1971, 1979)
Article 5 (2) The enjoyment and the exercise of these
rights shall not be subject to any formality; ...
http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo00
1.html#P109_16834
U.N. Declaration of Human Rights
(G.A. Res. 217 A (III),10 Dec. 1948)
Article 27
(1) Everyone has the right freely to participate in the cultural life of
the community, to enjoy the arts and to share in scientific
advancement and its benefits.
(2) Everyone has the right to the protection of the moral and
material interests resulting from any scientific, literary or artistic
production of which he is the author.
http://daccess-ddsny.un.org/doc/RESOLUTION/GEN/NR0/043/88/IMG/NR004388
.pdf?OpenElement
U.S. Constitution, Article I, § 8, Clause 8 –
Copyright Clause – “Limited Monopoly”
To promote the progress of science and useful arts, by
securing for limited times to authors and inventors the
exclusive right to their respective writings and
discoveries;...
Copyright Term Extension Act (“Sonny Bono”)
Eldred v. Ashcroft, 537 U.S. 186 (2003).
Threshold Requirements for
Copyright Protection
copyright subject-matter
threshold requirements:
originality
fixation – or, the “idea-expression dichotomy”
Categories of Protection –
Copyright “Subject-Matter”
literary, dramatic, musical and artistic works (“LDMA”)
but these words have come to signify something very
specialized - eg. computer programs
different approaches: closed and open list definitions...
Copyright Subject-Matter:
Some Examples
Berne Convention – Article 2
(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, such as books,
pamphlets and other writings; lectures, addresses, sermons and
other works of the same nature; dramatic or dramatico-musical
works; choreographic works and entertainments in dumb show;
musical compositions with or without words; cinematographic
works to which are assimilated works expressed by a process
analogous to cinematography; works of drawing, painting,
architecture, sculpture, engraving and lithography; photographic
works to which are assimilated works expressed by a process
analogous to photography; works of applied art; illustrations,
maps, plans, sketches and three-dimensional works relative to
geography, topography, architecture or science.
United States s.102, U.S. Copyright Act
Subject matter of copyright: In general
Copyright protection subsists, in accordance with this title, in original works of authorship fixed
in any tangible medium of expression, now known or later developed, from which they can be
perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine
or device. Works of authorship include the following categories:
literary works;
musical works, including any accompanying words;
dramatic works, including any accompanying music;
pantomimes and choreographic works;
pictorial, graphic, and sculptural works;
motion pictures and other audiovisual works;
sound recordings; and
architectural works.
UK Copyright, Designs & Patents Act 1988 –
includes both closed and open definitions
•
3.—(1) In this Part—
•
"literary work" means any work, other than a dramatic or musical work, which is
written, spoken or sung, and accordingly includes—
•
(a) a table or compilation, and
•
(b) a computer program;
•
"dramatic work" includes a work of dance or mime; and
•
"musical work" means a work consisting of music, exclusive of any words or action
intended to be sung, spoken or performed with the music.
•
...
4.—(1) In this Part "artistic work" means—
•
(a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality,
•
(b) a work of architecture being a building or a model for a building, or
•
(c) a work of artistic craftsmanship.
Databases in the UK CDPA
1988
Section 3A
•
Databases
•
(1) In this Part “database” means a collection of independent works, data or
other materials which—
•
(a) are arranged in a systematic or methodical way, and
•
(b) are individually accessible by electronic or other means.
•
(2) For the purposes of this Part a literary work consisting of a database is
original if, and only if, by reason of the selection or arrangement of the contents
of the database the database constitutes the author’s own intellectual creation.
Germany - Copyright Law
Article 1: Authors of literary, scientific and artistic works shall
enjoy protection for their works in accordance with this Law
Article 2 (2): Personal intellectual creations alone shall
constitute works within the meaning of this Act.
France - Intellectual Property Code
Art L. 112-1: The provisions of this Code protect the rights of
authors in all works of the mind, whatever may be the type,
form of expression, quality or purpose of the work.
Art. L. 112-2: Notably, the following are considered works of
the mind within the meaning of this Code...
Originality
Originality – “Sweat of the Brow” vs.
“Creativity”
UK: “sweat of the brow” – University of London v. University of
Tutorial Press (1916), Kenrick v. Lawrence (1890, Fine Arts
Copyright Act 1862)
Continental Europe: “creativity”
United States: Feist Publications (U.S.S.C., 1991)
Canada: CCH (2004) – “skill and judgement” – indirectly
follows NAFTA harmonization (Tele-Direct FCA, 1996)
India: Eastern Book Co. – follows CCH in India
Fixation
Berne Convention – Article 2
(2) 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.
TRIPs Agreement
• Article 9
Relation to the Berne Convention
• 1. Members shall comply with Articles 1 through 21 of the
Berne Convention (1971) and the Appendix thereto. However,
Members shall not have rights or obligations under this
Agreement in respect of the rights conferred under Article 6bis
of that Convention or of the rights derived therefrom.
• 2. Copyright protection shall extend to expressions and not to
ideas, procedures, methods of operation or mathematical
concepts as such.
Designers’ Guild v. Russell Williams Textiles (Ltd.)
[H.L., 2001].
“Copyright law protects foxes better than hedgehogs.”
[hedgehog photo by Jörg Hempel, Wikimedia Commons]
COPYRIGHT
“Moral” Rights
Economic Rights
Attribution
Integrity
Disclosure
Reputation
Author’s Rights
disclosure (first publication)
“authorization” of use of the work
right of communication to the public (WIPO)
the “reproduction” right (“right to copy)
“Users’ Rights” (Fair Use/Fair
Dealing)
digitization (eg. of news archives, Tasini, Robertson)
format shifting (eg. of music from CD to iPod)
“mash-ups”: Bridgeport Music, Inc. v. Dimension Films, 410
F.3d 792 (6th Cir. 2005): “Get a license or do not sample. We
do not see this as stifling creativity in any significant way.”
educational use (formerly “private” use)
parody
6 Steps
to Resolving a Copyright Problem
(1)Is it a [copyright-able] work? – LDMA
(2)Does it meet the criteria for protection under the domestic Copyright
Act? – originality& fixation
Text
(3)Who owns the copyright in the work? Author or another
person/corporation, etc. authorized by him/her?
(4)Is the work still within the copyright term?
(5)Has there been an infringing act?
(6)Does the person committing the act have a defense under the
Copyright Act? = exception, fair use/dealing
Copyright Fundamentals
Mira T. Sundara Rajan
Email: mira.ts@gmail.com