Copyright in Europe

Copyright in Europe
Antonella De Robbio
Centro di Ateneo per le Biblioteche
Università di Padova - Italy
Palmer School of Library and
Information Science,
Long Island University, New York
of Intellectual property
Copyright does not protect ideas, but only their expression in
a particular creation. This requirement enables to reconcile
the interests of both creators and society, by preserving the
free movement of ideas.
The idea to create a guide explaining the main principles of
copyright can not be protected by copyright. The expression
of this idea into the particular form of the guide can be
protected by copyright.
Copyright protects the form given to an idea, it is the
envelope not the essence.
It is a formal asset, a social agreement based on consensus.
Closed ideas = no innovation
Time = protection (70 years)
Space: originallity concept
Concetto spazio/tempo espresso da Jack Balkin
The two sides of IP
• Intellectual Property protects the different types of
intellectual creations.
• It is usually divided into two parts:
– industrial property (Paris Convention,1883)
– literary and artistic property (Berna Convention, 1886)
• Industrial property comprises mainly of trademark law,
designs and models and patent law. Patent law protects
new inventions, whereas trademark law protects signs
used in commerce to distinguish the origin of goods or
services. Designs and models protects the new design of
an utilitarian object.
• Literary and artistic property comprises mainly of
Not only copyright
There are different normative systems which regulate IP
Copyright is only one and is different for each country: US, UK,
Canada, Japan etc.
US Copyright is based on Common Law and Fair Use
European system is based on the right of author which
originates from Roman Right (paternity right)
Ex socialist Countries are changing their laws
Some Arabic countries are regulated byTeological systems
China adopted International treatises but its traditional culture is
based on art of the copy as the transmission channel of
Africa bases its culture on oral communication, so copyright is
perceived as something colonial
Difference between formal
systems and legal systems
• We need to focus on the context
• The system reflects traditions and cultures of each
country (economic, social and historical issues)
• We cannot use copyright terms solely to define
other rights: in EU we use copyright terms to
define economic rights
• The different systems are harmonized by WIPO
activity and regulated by international treatises
(TRIPs) and by the Universal Convention of Berna
Right over the Information versus
Right to the information
• In Europe the droit d’auteur system is
oriented to protect the author (personal
• In the US copyright system the moral
rights are lighter: copy-right = user right
to make a copy of the work
Balancing the two
fundamental rights
• Copyright with author rights and
connected rights
• Right to access to information
• Libraries have an important role in this
balancing act
• In the EU there are some problems about
the Directive on lending: the law requires
payment for such right!
Harmonization levels: the three boxes
 international context: treatises, agreements and
conventions in order to harmonize the difference
between national systems. WIPO activities.
 EU context: there are seven EU Directive focused on
copyright matters.
 last level: the national context
 adoption of EU Directives and International dispositions
(sometimes in conflict) in order to create a new legislative
enviroment and new legal tools
 modifications coming from national and internal front (often
crazy ideas about payment of rights to some commercial
WIPO World Intellectual Property
 A 1967 Convention sought to encourage creative activity by establishing WIPO to
promote the protection of intellectual property.
 The mission was expanded in 1974, when WIPO became part of the United
Nations, under an agreement that asked WIPO to take "appropriate action to
promote creative intellectual activity," and facilitate the transfer of technology to
developing countries, "in order to accelerate economic, social and cultural
 Berne Convention for the Protection of Literary and Artistic Works
 art. 9 Berne Convetion defines reproduction right (analogic and digital
 1996 WIPO Copyright Treaty
– WIPO Performances and Phonograms Treaty (recent)
• As an intergovernmental organization, however, WIPO embraced a culture of
creating and expanding monopoly privileges, often without regard to
The continuous expansion of these privileges and their enforcement mechanisms
has led to grave social and economic costs, and has hampered and threatened
other important systems of creativity and innovation
Geneva Declaration on the Future of the WIPO
• WIPO must change
• WIPO needs to enable its members to
understand the real economic and social
consequences of excessive intellectual property
protections, and the importance of striking a
balance between the public domain and
competition on the one hand, and the realm of
property rights on the other.
• WIPO must also express a more balanced view
of the relative benefits of harmonization and
diversity, and seek to impose global conformity
only when it truly benefits all of humanity.
European context
• "Green Paper on Copyright and the
Challenge of technology“
• the White Papers in answer to Green
• EU actions are based on three concepts:
– Information Society
– Learning Society
– Knowledge Society
The seven European Directives
Council Directive 91/250/EEC of 14 May 1991 on the legal
protection of computer programs
Council Directive 92/100/EEC of 19 November 1992 on rental
right and lending right and on certain rights related to
copyright in the field of intellectual property
Council Directive 93/83/EEC of 27 September 1993 on the
coordination of certain rules concerning copyright and rights
related to copyright applicable to satellite broadcasting and
cable retransmission (communication and diffusion rights)
Council Directive 93/98/EEC of 29 October 1993 harmonizing
the term of protection of copyright and certain related rights
Directive 96/9/EC of the European Parliament and of the
Council of 11 March 1996 on the legal protection of
The seven European Directives
6. Directive 2001/29/EC of the European Parliament and of the
Council of 22 May 2001 on the harmonisation of certain
aspects of copyright and related rights in the information
7. Directive 2001/84/EC of the European Parliament and of the
Council of 27 September 2001 on the resale right for the
benefit of the author of an original work of art
The Sixth Directive
• Directive 2001/29/EC of the European Parliament and of the
Council of 22 May 2001 on the harmonization of certain aspects
of copyright and related rights in the information society
• Harmonization between physical and digital work
• Not moral rights
• Only three economic rights:
Reproduction rights
Distribution right
Right to communicate to public
• It introduces the fair payment but without fair use (that’s not
good for the European regime which is based on exceptions)
• It foresees about 20 exceptions, but each State member can
adopt them or not (that’s wrong!)
• Ephemeral copy is foreseen
Copyright protection
• No formality :
– to enjoy copyright protection, no formality (registration...) is
required. Copyright protection is granted from the sole fact
of the creation of the work.
• Usefulness of mentions to enable author identification
enabling (like the "© Copyright Name of author" mention)
– the COPYRIGHT mention is absolutely not mandatory to
enjoy copyright protection. However, it is very useful in case of
dispute since it can constitute presumption of rights ownership.
• Usefulness of the registration of copyrighted works :
• in the same way, the registration of works (ISBN, for instance),
which is not mandatory at all, can be very helpful to prove a
disputed creation.
Unprotected Works
• Some types of creations are not protected by copyright.
• Some creations do not meet copyright protection
requirements :
ideas ;
information as itself ;
mathematical theories ;
algorithms ;
works which are not original ;
• Other creations can no longer enjoy copyright protection
since their protection term has expired (in principle, 70
years after the death of the author).
• Finally, some creations are outside the scope of
copyright. This is often the case for political speeches or
court decisions.
The dualism of droit d’auteur
• Moral right
• Economic rights
• Italy, France, Germany have similar
• The UK has a law based on copyright,
slightly different from US (influence of EU
context) (fair dealing)
• ex Russian countries are adopting EU laws
The moral rights
• paternity: the author has a paternity right which
enables him to have his name on the work.
• integrity: which enables the author to refuse any
modification to the work (or its context) or any re-use
of it.
• moral rights aim at protecting creator's personality
which is expressed through the work.
• Moral rights do not have a harmonized term: in some
countries (France), moral rights are perpetual,
whereas in others, they expire at the same time as
economic rights.
• Moral rights can not be transferred.
• The author always remains the owner of the moral
Economic rights
Exclusive rights
public representation
diffusion (distance means)
right to communicate to the public (TV, broadcasting)
distribution (market)
publication inside a collective work
Economic rights
• Economic rights aim to enable the author to take some
revenue from the exploitation of his work.
• The author has the exclusive right to reproduce and
communicate his work to the public.
• Reproduction right allows the author to reproduce, in
whole or in part, his work, in whatever medium and in any
form. Any reproduction of a copyrighted work requires the
prior consent of its author.
• The Right to communicate the work to the public covers
any direct communication of the work to the public,
without any material embodiment (concert, television,
webcasting). The prior consent of the author is required.
• Economic rights expire in principle 70 years after the
author’s death.
• Economic rights may be transferred.
Limitations and exceptions
Different exceptions exist for each different right
Following the recent laws (internal and European) there is no further free usage
In respect of research (and other activities contributing to social, cultural or individual
benefits), not every form of use requires the authorization of the right holder.
Legislation in all Member States provides for such statutory limitations.
As a general overview, limitations in the Member States' copyright law which are
relevant for science and research activities concern mainly:
scientific use
library and archive use
educational use / teaching
private use
users with handicap
Limitations don’t require authorization but payment of a forfait quote is necessary
Database copyright protection
• Dual approach:
– original creations: moral rights – author’s right
– sui generis right for non-creative works
• Copyright in the database selection or arrangement
exists for those databases which constitute their authors'
own intellectual creation.
• EU law is very different from US copyright (lack of
harmonization between them)
• The general term of protection is fifteen years from the
date the database publication or manufacture.
• Sui generis right is a connected right
Digital library and copyright
• The electronic copyright is the main issue in
building digital libraries
• Three important rights are involved:
– reproduction right
– right of communication to public (diffusion)
– distribution right
• In Europe – diritto d’autore – two permissions
are needed from:
– publisher (in case of right cession)
– author (one or more) about moral rights
In Italy
• Legge 22 aprile 1941 n. 633, "Protezione del
diritto d'autore e di altri diritti connessi al suo
recently amended by
– Legge 18 agosto 2000 n. 248, "Nuove
norme di tutela del diritto di autore”
– The Sixth Directive
• Civil Code: art. 2575-2583
• Berne Convention
Italian activities
• Copyright on national front
SIAE and Publishers association negotiation
VAT matters on e-journals and db
Adoption of Creative Commons licences
Survey of Italian Publishing policies (Italian
• Copyright on EU front
– Copyright Policies and Agreements: implementing
the Zwolle Principles
– University Copyright Policies (previously on
national CRUI front)
Control of the contents and IP
The three layers or places cited by Larry Lessig:
Physical, logical and about content
HydePark Corner
• Physical: the park
• Logical: individual
• content: speeches to
the people
• Physical: hardware
level (machine)
• Logical: Protocol,
use, ...
• Content: free
circulation of
contents on the web
My page on copyright