Intellectual property domains culture copyright law commerce trademark law technology patent law

Contents
• international treaties
• subject matter of protection
• protection requirements
• term of protection
• first ownership

Important international treaties
• The Berne Convention for the Protection of
Literary and Artistic Works (1886/1967)
• The Agreement on Trade-Related Aspects of Intellectual Property Rights (1994)
• The WIPO Copyright Treaty (1996)

Literary and artistic works
• books, writings, plays
• musical compositions
• choreography
• drawings, paintings
• sculptures, architecture
• cinematographic works
• photography

Literary and artistic works
Pablo Picasso, Guernica (1937)

Literary and artistic works

Literary and artistic works

Literary and artistic works

Literary and artistic works

Literary and artistic works

Literary and artistic works

Literary and artistic works
Charles and Ray Eames,
Eames Lounge and Ottoman (1956)

Literary and artistic works

Literary and artistic works

Literary and artistic works

Art. 2(1) of the Berne Convention
‘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 and dramatico-musical works;…

Art. 2(1) of the Berne Convention
• 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;…

Art. 2(1) of the Berne Convention
• photographic works to which are assimilated works expressed by a process analogous to photography;
• works of applied art;…
• illustrations, maps, plans, sketches and threedimensional works relative to geography, topography, architecture or science.

Art. 4 of the WIPO Copyright Treaty
‘Computer programs are protected as literary works within the meaning of
Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression.’

Specific rules (art. 2(3) BC)
‘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.’
– copyright 1: original work
– copyright 2: altered version

Neighbouring rights
• performing artists
– fixations of performances
• phonogram producers
– with regard to phonograms
• film producers
– with regard to the original and copies of films
• broadcasting organizations
– fixations of broadcasts

Copyright clusters adaptation 1: translator
+ neighbouring rights adaptation 2: scenarist basis: copyright (author)

Exclusions from protection
‘Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.’
(Art. 2 WIPO Copyright Treaty)
= idea/expression dichotomy
• news of the day and miscellaneous facts having the character of mere items of press information (Art. 2(8) BC: mandatory)

Exclusions from protection
• official texts of a legislative, administrative and legal nature, and official translations of such texts (Art. 2(4) BC: optional)
• political speeches and speeches delivered in the course of legal proceedings
(Art. 2bis(1) BC: optional)
• no protection unless fixed in some material form (Art. 2(2) BC: optional)

Originality
• work = materialization of the author’s individual personality
• particular link between the author and the work
• copyright is automatically acquired through the very act of creation
• no formalities = no registration requirement

No registration required (art. 5(2) BC)
‘The enjoyment and the exercise of [the rights which the respective laws of Union countries grant to their nationals, as well as the rights specially granted by the
Convention] shall not be subject to any formality;...’

Originality test not harmonized
• test may differ from country to country
• protection to be determined on the basis of the applicable national law
‘Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals…’
(Art. 5(1) BC = national treatment)

Art. 7 BC
• ‘The term of protection [...] shall be the life of the author and fifty years after his death.’
– in many countries: 70 years post mortem
• cinematographic works
– making available + 50 years (optional)
• anonymous or pseudonymous works
– making available + 50 years
• photographic works, works of applied art
– making of the work + 25 years (minimum)

Joint authorship (art. 7bis BC)
‘...also apply in the case of a work of joint authorship, provided that the terms measured from the death of the author shall be calculated from the death of the last surviving author.’

Photographic works (art. 9 WCT)
‘In respect of photographic works, the
Contracting Parties shall not apply the provisions of Article 7(4) of the Berne
Convention.’
= regular term of protection instead of making of the work + 25 years

First ownership not harmonized
• Berne Convention refers to the
“author” without defining it
• standard solution: natural person creating a work is the first owner
• national law may provide for other rules in certain cases
– employer’s copyright
– work for hire doctrine

Application of general principles
‘Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals…’
(Art. 5(1) BC = national treatment)
• lex loci protectionis vs. lex originis
• contractual choice of the applicable law advisable

Transfer of ownership first ownership assignment possible?

Art. 6bis(1) BC
‘Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work…’
• waiver of moral rights in several national systems (common law vs. civil law)
• contracts about the exercising of moral rights null and void?

Impact on transfer of exploitation rights?
author always keeps moral rights exploitation rights may be assignable

Dualistic vs. monistic theory

Contents
• minimum rights
• the copyright balance
• use permitted by law

Two branches of rights exploitation rights moral rights
• general right of • claim authorship reproduction • object to any
(art. 9(2) BC) distortion, mutilation,
• general right of modification or other communication derogatory action
(art. 8 WCT)

Art. 9 BC: Reproduction
‘Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.’
(para. 1)
‘Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.’
(para. 3)

Public performance rights
• public performance (art. 11(1)(i) BC)
• public recitation (art. 11ter(1)(i) BC)
• public communication by loudspeaker
(art. 11bis(1)(iii) BC)
• standard constellation:
– fixed place, fixed time

Right of communication to the public
Arts. 11(1)(ii),
11bis(1)(i) and (ii),
11ter(1)(ii), 14(1)(ii),
14bis(1) BC

Art. 8 WCT: Communication to the public
‘…the exclusive right of authorizing any communication to the public of their works, by wire or wireless means…’
• standard constellation:
– flexible place, fixed time
– example: broadcasting (art. 11bis BC)

Art. 8 WCT: Communication to the public
‘…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.’
• making available online:
– flexible place, flexible time

Further examples of rights…
• translation (art. 8 BC)
• adaptation (art. 12 BC)
• cinematographic adaptation, reproduction, distribution, public performance and public communication (art. 14 BC)
• right to an interest in resales
(‘droit de suite’, art. 14ter BC)

Right of distribution (art. 6(1) WCT)
‘Authors of literary and artistic works shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfer of ownership.’
But: exhaustion of the right after the first sale is left to the discretion of Contracting Parties
(art. 6(2) WCT)

Right of rental (art. 7(1) WCT)
‘Authors of
(i) computer programs;
(ii) cinematographic works; and
(iii) works embodied in phonograms, as determined in the national law of Contracting Parties, shall enjoy the exclusive right of authorizing commercial rental to the public of the originals or copies of their works.’

Limitations
• idea/expression dichotomy: copyright only protects the individual way of expressing ideas, not ideas as such (art. 2 WCT)
• limited term of protection
(arts. 7, 7bis BC, art. 9 WCT)
• use permitted by law, serving social, cultural and economic ends

Legal traditions
Anglo-America
• fair use doctrine
• open factors
• case-by-case approach (judge)
• flexibility
• quick reactions to new developments
Continental Europe
• statutory limitations
• fixed requirements
• closed catalogue of limitations (legislator)
• legal certainty
• slow reactions to new developments

Specific international limitations
• quotations, press summaries (art. 10(1) BC)
• articles on current topics (art. 10bis(1) BC)
• lectures, addresses, works of the same nature delivered in public (art. 2bis(2) BC)
• reporting of current events (art. 10bis(2) BC)
• illustrations for teaching (art. 10(2) BC)

Underlying rationale
• freedom of expression
• freedom of information
• dissemination of information
• cultural participation
• equal chances in the information society
(no ‘digital divide’)

But also regulation of industry practice
• compulsory licenses concerning broadcasting, and wireless or loudspeaker communications (art. 11bis(2) BC)
• ephemeral recordings made by broadcasting organizations (art. 11bis(3) BC)

Openended international ‘three-step test’
• ‘It shall be a matter for legislation in the countries of the Union to permit the reproduction of [literary and artistic] works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.’ (art. 9(2) BC)
= socalled ‘three-step test’

Criteria of the three-step test
• certain special case
– specific form of use, limited number of beneficiaries
– room for considering policy justification?
• no conflict with a normal exploitation
– currently exploited and potential future markets
– room for normative considerations?
• no unreasonable prejudice to legitimate interests
– refined proportionality test
– reduction to reasonable level by providing for the payment of equitable remuneration

The three-step test family
Article 9(2) BC
Article 13 TRIPS
Article 10 WCT

Art. 13 TRIPS
• ‘Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.’
= three-step test becomes general yardstick for the permissibility of national limitations

Impact of the three-step test on specific limitations specific international limitations scope of the three-step test

Impact of the three-step test on specific limitations specific international limitations scope of the three-step test

Agreed Statement Concerning Art. 10 WCT
‘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.’

contact: m.r.f.senftleben@vu.nl

Technological measures (art. 11 WCT)
‘…effective technological measures that are used by authors in connection with the exercise of their rights […] and that restrict acts […] which are not authorized by the authors or permitted by law.’
• protected against circumvention
• exemption of permitted use realistic?

Ideal world – feasible in practice? scope of copyright
= scope of protection of technological measures

Rights management information (art. 12 WCT)
‘…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…’
• protected against removal or altering
• facilitation of e-commerce
• likely to be accepted by consumers?

The role of digital rights management
• artificial extension of copyright?
• a threat to copyright’s balance?
• successful business model?
limitations contracts technological measures