Delia Mucica - Copyright

8/13/2019 Delia Mucica - Copyright

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Authors Rights and

Related Rights

REGIONAL MASTER STUDIES IN CULTURAL POL ICY AND

MANAGEMENT

(INTERCULTURALISM AND MEDIATION IN THE BALKANS)

UNIVERSITY OF ARTS BELGRADE

Prof. Dr. Delia Mucica

November 2008


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What is copyr ight?

Intellectual Property

CopyrightAuthor Rights and

Related Rights

Industrial Property


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About Property

Property :

Exclusive right of the owner to use it as he/she

wishes and to forbid its use by anybody else

Material Property

Movable property

Immovable property Immaterial Property

Intel lectu al property


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In tel lectual Property

Intel lectu al property sh all includ e righ ts relat ing to :

literary, artistic and scientific works,

performances of performing artists, phonograms, and

broadcasts, inventions in all fields of human endeavour,

scientific discoveries,

industrial designs,

trademarks, service marks, and commercial names anddesignations,

protection against unfair competition,

and all other rights resulting from intellectual activity inthe industrial, scientific, literary or artistic fields.Convention Establishing the World Intellectual Property Organization (WIPO) of1967


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How are protected authors rights?

A system of international legally binding instruments

International standards of minimum protection

A UN organization responsible for administeringthese instruments and for developing new ones,

where necessary - WIPO

Dispute-Settlement Mechanisms

And

National Regulatory Systems


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Copyright - International Instruments

International Treaties concerning Copyright

International Treaties concerning Related

Rights

Trade-related Treaties and Regulations

EU Copyright Directives


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International Treaties

on Copyright

Berne Convention for the Protection of

Literary and Artistic Works, 1886 Universal Copyright Convention, 1952

TRIPS Agreement, 1994

WIPO Internet Treaty on Copyright, 1996


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Main Principles (Berne Convention)

National Treatment(foreign works as national)

Automatic Protection(no prior procedures)

Independent Protection(independent of the protection

in country of origin)

Minimum rights and minimum level of protectiongranted to authors


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A Little Bit of History (contd)

Thus, copyright, as a branch of law, has been widenedto cover related rights:

the r ights of interpreters and performers in theirown per formance

The r ights o f broadcasters in their own b roadcasts

The r ights o f phonogram producers in thei r ownrecord ings

The r ights o f videogram producers in their own f i rstf ixat ions


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A Little Bit of History (contd)

Copyright was extended to new works -software,multimedia, etc

Copyright was extended to cover new modes of

exploitation of works (reprography, broadcast, cableand satellite transmission and retransmission, Internetetc.)

Rights owners were also recognized new rights:

Lending r ight

Rental r igh t

Resale righ t

Making available righ t


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Berne Convention for the Protection of

Literary and Artistic Works

Purpose

to protect in an effective manner and in a way asun i form as pos sib le the rights o f autho rs in their

literary and artistic works

Adopted 1886

Revised:

Paris, 1896

Berlin, 1908

Rome, 1928

Brussels, 1948

Stockholm, 1967

Paris, 1971


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Universal Copyright Convention

Administered by UNESCO

Lower level of protection than in the Berne Convention

Specially designed for Third World countries and

communist countries

Extensive system of legal/compulsory licenses

Lost its purpose


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The TRIPS Agreement (WTO Agreement on

Trade Related Aspects o f Intel lectual Property

Rights)-1995 application of the basic principles of the trading system

and of other international legal instruments on intellectual

property;

protection of copyright by incorporation of the BerneConvention provisions, with the exception of those related

to moral rights, which the TRIPS Agreement does not

cover;

adequate enforcement of rights; dispute settlement mechanisms;

The basic pr inc ip lesof th e TRIPS Ag reement are:

the princ iple of national treatment and

the princip le of mos t-favou red-nation treatment.


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The TRIPS Agreement (Contd)

Cultural exception as derogatory (exception) from the

principle of free trade in cultural services

Cultural diversityand Cultural identityas

fundamental principles of cultural policies


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WIPO Copyright Treaty (WCT)

The Internet Treaty, 1996

Necessity to update copyright law for the digital

environment.

Two contrasting views: the except ions and l imi tat ions p rovided for in

the exist ing instrum ents can be carr ied

forward and extended in th e digi tal

envi ronment

the Berne Convent ion does not pro vide for ful l

co verage of the rights of communicat ion to the

pub l ic and d ist r ibut ion in th is new

environment.


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In ternat ional Instruments on Related

Rights

Rome Convention, 1961

Geneva Convention, 1971

Satellite Convention, 1974

WIPO Internet Treaty on Related

Rights, 1996


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Internat ional Convent ion for the Protect ion of

Performers, Producers of Phonog rams and

Broadcasting Organizat ions, 1961, Rome

Provides for protection of the neighbouring rights of:

Perform ers and in terpreters

Producers of phonograms

Broadcast ing organisat ions.

The safeguard clause - protection of copyright must inno way be affected by the protection of neighbouringrights

Formalities - P

Principles: National Treatmen t

Minimum Protect ion

jointly drafted by BIRPI (the predecessor organisation to

WIPO), UNESCO and the International Labour Office


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Geneva Convention,1971

Convention for the Protection of Producers of

Phonograms against Unauthorized Duplication of TheirPhonograms, 1971

addressed especially the phenomenon of piracyin

relation to phonograms - piracy agreement from 1971


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Satellite Convention, 1974

Convent ion relat ing to the Distr ibut ion of

Programme-carry ing Signals transm it ted by

Satel l i te, adopted at Bru ssels in 1974

Answers the need to provide protection for

broadcasting organisations for the distribution of

programme-carrying signals transmitted by satellite.


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Counci l of Europe Ins truments

European Convention on Transfrontier Television of1989 and its Amending Protocol of 1998.

European Convention relating to questions on Copyright

Law and Neighbouring Rights in the Framework ofTransfrontier Broadcasting by Satellite of 1994.

European Convention on the Legal Protection ofServices Based On, or Consisting Of, ConditionalAccess of 2000.


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EU Ins truments

A rigorous, effective system for the protection of

copyright and related rights is one of the main ways ofensuring that European cu ltural creativi ty and

produc t ion receive the necessary resou rces and of

safeguarding the independence and digni ty of

artistic creators and performers.


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EU Instruments (contd)

Council Directive 91/250/EEC of 14 May 1991 on the legalprotection of computer programs

Directive 2006/115/EC of the European Parliament and of theCouncil of 12 December 2006 on rental right and lending right andon certain rights related to copyright in the field of intellectualproperty (codified version) (former Council Directive 92/100/EEC of

19 November 1992 on rental right and lending rightand oncertain rights related to copyright in the field of intellectual property /repealed).

Council Directive 93/83/EEC of 27 September 1993 on thecoordination of certain rules concerning copyright and rights relatedto copyright applicable to satellite broadcasting and cableretransmission

Directive 2006/116/EC of the European Parliament and of theCouncil of 12 December 2006 on the term of protection of copyrightand certain related rights (codified version) (former Council Directive93/98/EEC of 29 October 1993 harmonizing the term of protectionof copyright and certain related rights - repealed).


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EU Instruments (contd)

Directive 96/9/EC of the European Parliament and of the Council of11 March 1996 on the legal protection of databases

Directive 2001/29/EC of the European Parliament and of theCouncil of 22 May 2001 on the harmonization of certain aspects ofcopyright and related rights in the information society

Directive 2001/84/EC of the European Parliament and of theCouncil of 27 September 2001 on the resale rightfor the benefit ofthe author of an original work of art

Directive 2004/48/EC of the European Parliament and of theCouncil on the enforcement of intellectual property right

Commission Recommendation 2005 on collective cross-bordermanagement of copyright and related rights for legitimate onlinemusic services


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What is protected by copyr igh t?

Literary, artistic and scientific works which areor ig inal expression sof an intellectual creation

Two conditions:Materializationof intellectual creation

Original i ty(not novelty)

Protects only creativity in the choice of words,

musical notes, colours and shapes, expressions -not ideas


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What is no t pro tected?

3 categories:

Do no t meet the cr i ter ia for pro tect ion:

mere facts, mere data

Ideas, methods of operation, procedures

Are protected by another body of LawIndustrialProperty Law

inventions, innovations, scientific discoveries, concepts

There is an overr id ing publ ic interestin their unhindereduse and circulation:

regulatory texts, official documents and their officialtranslations

official insignia, flags, anthems, decorations

currency notes and coins, payment instruments

court decisions and their official translations


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About the autho rs and thei r works

The author is a naturalperson

One authorind iv idual wo rk

Two or more co-authorsjo in t au thorsh ip:

Common workscollaborative works -

contributions can be identified and distinct rights canbe ascribed to each co-author for separateexploitation of each contribution, without prejudice tothe exploitation of the common work

Col lect ive worksno possibility to identify the

contribution of each co-author and to ascribe adistinct right to each for separate exploitation of eachcontribution (one may be the main author)


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Proo f of autho rship

Legal presumption of authorship in favour of the naturalperson whose name appear on the work in the usualmanner

Burden of proof in case of litigationplaintiff Proofby any means acceptable under national

legislation

NO COMPULSORY REGISTRATION


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What r igh ts has the author o f a pro tected

work?

Personal, exclusiverights of the author to authorize

and p reventthe use and exploitation of his/her work and

to derive benefitsfrom it

2 categories of rights:

Econom ic Rights

Moral Rights


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Moral Rights

The Berne Convention:

Paterni ty r igh t

to claim authorship of an intellectual work

to decide under what name the work will becommunicated to the public (own name, pen name,

anonymous)

to oppose to any person which might claim

authorship


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Moral Rights (contd)

Integr i ty Righ t

To object to any distortion, mutilation or other

modification of, or other derogatory action in relation

to, the said work

Which would be prejudicial to the honour or reputation

of the author


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Moral Rights (contd)

Not in the Berne Convention, but more and moreaccepted in national laws:

Disclosu re Righ t

The right to decide whether, when and howthework will be disclosed ( first public performance orcommunication to the public)

Withdrawal r igh t

The right to cease, withdraw from, any agreement

entered for the disclosure of the work, before itsdisclosure and with due compensation to thebeneficiary of the assignment of rights for expensesincurred


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More about moral r ights

Personal and exclusive rights of the author

Preserve the personal link between the author and

his/her work Not tradable or alienable

Usually lasting as long as the work exists (exceeding

duration of economic rights)

Cannot be the object of ex anterenunciation Violations are generally criminal offences

Means of redress: penal and civil liability


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Econom ic Rights

Personal and exclusive rights of the author whichallow him/her to derive f inancial

compensat ion/rewardfrom the use of his/her workby others by authorizing or preventing certain actsin relation to the work

Generally not saleable

Exercise of rights can be transferred


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What are the econom ic r igh ts of the

author?

Right of reprodu ct ion and related r ights

Reproduct ion - the most basic rightpreventing othersfrom making copies of the protected work

Distr ibut ion

Importat ion

Rental

Lending


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author? (contd)

Righ ts of Publ ic performance, broadcast ing and

communicat ion to the pub l ic

Publ ic performance

In a place where the public is or can be present

In a place not open to the public but where asubstantial number of persons outside the normal

circle of a family and its closest social acquaintancesis present

Live performances

Public performances of reproductions


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What are the econom ic r ights o f the author?

(contd)

Broadcast ing

Transmission by wireless means for public reception

of sounds or of images and sounds

Radio, Television, Satellite

Communication to the publ ic

Distribution of a signal, by wire or wireless means

Equipment necessary for reception Cable, Movies


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author? (contd)

Translat ion and Adaptat ion Rights

Translat ionexpression of a work in another language

Adaptat ion modification of a work

to c reate another work

to make i t sui table for d i f ferent co ndi t ion s o f

explo i tat ion


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author? (contd)

Resale Righ t

Granted to authors of original work of art (painting,

sculpture, etc)

Interest in any public resale of his/her work, subsequent

to first transfer:

Collection of a certain sum of money

Right to know the location of work


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Going Digital

New technological means for

New uses

New forms Wider possibilities for infringement of protection

Solut ions?

New rights: the making avai lable to the publ ic

Legal protect ion and effect ive remedies

Technological pro tect ion

Collect ive management


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WIPO Treaty

Art. 11 adequate legal protection and effective legalremedies against the circumvention of effectivetechnological measures that are used by authors in

connection with the exercise of their rights under thisTreaty or the Berne Convention and that restrict acts, inrespect of their works, which are not authorized by theauthors concerned or permitted by law.


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The Making-Available Right

WIPO Treaties and Directive 2001/29/EC

Exclusive r ight of autho rs, performers, phonogram

producers (fi lm p roducers, broadcasters) toauthorize and prohibit any form of communication to

the public by wire or wireless means, including in such

a way that members of the public may access the

works or other protected material f rom a place and ata t ime indiv idu al ly chosen by them(on-demand

services)


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Protect ion of databases

Directive 96/9/EC of the European Parliament and

of the Council of 11 March 1996 on the legal

protection of databases Creates a su i generis exclusive right for

database makers irrespective of whether the

database in itself qualifies for traditional copyright

protection or not Protection of investments and furthering

development of digital environment

15 years


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Lim i tat ions on r ights

Particular acts of exploitation normally requiring theauthorization of rights owner, may, under specific

circumstances specified in the law, be done withoutauthorization

Such exceptions must comply with the three-stepstest(art. 9.2 Berne Convention):

In c ertain s pecial cases

Do no t con f l ic t wi th a normal explo i tat ion of the

work

Do not u nreasonably p rejudice the legi t imate

interests of th e autho r


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Lim i tat ions on r igh ts. What kind of uses?

Free uses

No authorization

No material

compensation

News co verage

Quotat ions

Educational purposes

Modif icat ions:

For private use

Parody and caricature

Consistent with the purpose of the

use intended and permitted by the

author

Test ing of fun ct ion ing of equipments

Copying by broadcaster for the

exercise of r igh ts granted


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Lim i tat ions on r igh ts.

What kind of uses? (contd)

Non-voluntarylicenses

No authorization

Materialcompensation

Private cop ying

Broadcast ing of

commercial phonograms

Communication to the

pub l ic in publ ic spaces

(dis cos, restaurants , ho tel

lobbies, buses, trains etc)

of commercialphonograms o r broadcast

programs


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Duration of rights

Generally

Berne Convention50 years

Directive 93/98/EEC70 years


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How can the authors exercise their exclusive

rights?

Economic rights may be transferredvia:

Ass ignments(transfer of a property right)

Licenses (transfer of the exercise of the right, for aspecific period and a specific purpose)

Licenses are:

exclus ive (may no t autho rize others)

non-exc lus ive ( may autho rize others) A license does not generally convey the right to

authorize others to carry out acts covered byeconomic rights


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Remunerat ions

Primary remunerat ion (for primary use authorized)

Secondary remunerat ions:

Royalties

Material compensations for certain uses: private

copying, public lending, mechanical reprography

etc.


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In f r ingement o f r igh ts

Violat ions of moral r ights

Vio lat ions of econom ic r ights

Remedies and sanctions:

Provided for in the law

Criminal liability

Civil liability Contractual liability


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Piracy

Simple piracy -unauthorised duplication of an original

recording for commercial gain without the consent of the

rights owner, in a different packaging than that of the

original; Counter fe i t ingcopying and packaging to resemble

the original as closely as possible

Boot legging -unauthorised recordings of live or

broadcast performances.


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Collective management of rights

Licensing may also take the form of collective

administration of rights

What rights?

Rights for which individual exercise is:

Impract icable(large number of works and/or large

number of users)

impossib le


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Remunerat ion sys tems

Based on cop yr igh t law and pr incip les(fair,

equitable remunerationaccording to actual use of

specific worktariffs negotiated between collecting

societies and users) Based on cultural regulation and policy

(levies, taxes, lump sums, budgetary allocations

etc.)


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Roles o f Governments

Inter-sectoral (integrative) policies

Regulation and Enforcement

Supervision of function of IP system (especially inrelation to TRIPS)

Facilitating the function of IP system:

Information

Education Awareness-raising

Collaboration with rights holders

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