Module 4:

Digital Content and Copyright

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Study Note:
This module should take you about 10 hours to complete.

Objectives

When you have completed this module you should be able to:

1. Define copyright in 50 words and provide 5 examples of works that are covered
by copyright law.

2. Describe digital content and provide examples of this content.

3. For given examples of digital content, identify associated copyright issues.

4. Explain peer-to-peer file sharing in 100 words.

5. Describe exceptions and limitations to copyright in a digital environment.

6. Provide an example of a case study that decides the debate on databases in the
United States.

7. Explain, in 100 words, how Europe protects databases.

8. Provide an example of a case study that demonstrates licensing models for

online copyright contents.

9. Explain, in 50 words, the main principles of digital rights management and

technological protection measures.

10. Explain, in 50 words, what is webcasting.

11. Explain, in 50 words, issues related to liability of Internet service providers.

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Introduction

Copyright is a legal term describing rights that creators have in their literary and artistic
works, and related rights are those rights that provide similar protection to, for example,
performing artists and broadcasters. Copyright and related rights are essential to human
creativity, by giving creators incentives in the form of recognition and fair economic rewards.
Under this system of rights, creators and other owners of rights are given legal protection
against unauthorized copying or piracy. This in turn helps increase access to and enhances
enjoyment of culture, knowledge, and entertainment all over the world.

This module on electronic commerce explains the types of subject matter that are protected
by copyright and related rights as well as the rights of copyright and related rights holders.
The original creators of works and their successors in title, have certain basic rights. They
generally hold the exclusive right to use or authorize others to use the subject matter on
agreed terms. The creator of a work can prohibit or authorize, for example, the reproduction
of his or her work in various forms, such as printed publication or sound recording. The
module addresses how copyright and related rights law applies to digital content. Content
on the Internet may be copied or distributed with a click of a mouse. How many times have
you visited a site to cut-and-paste information into your own document? Have you
downloaded digital music online in your computer without the authorization of the rights
holder? Technically, you have made a reproduction of material that may be protected by
copyright and/or related rights. Have you infringed intellectual property? You will soon find
out.

Emerging copyright issues in the digital age are also covered in this module. These include:
• linking and framing
o (is linking or framing online content permissible?);
• the MP3 phenomena
o (how does copyright affect online music?);
• exceptions and limitations
o (how can a balance be achieved between protection of rights and the public
interest in a digital environment?);
• protection of non-original databases
o (should intellectual property protection be given to individuals that create
online databases?);
• licensing models
o (the role of contract and legislation, the validity of shrink-wrap and click wrap
licenses, open source software and Creative Commons);
• digital rights management and technological protection measures
o (legal and technological issues); and
• liability of Internet service providers.

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What is covered by copyright and related rights?

As with all fields of intellectual property, copyright is concerned with protecting products of
the human intellect. The domain of copyright is the protection of literary and artistic works.
These include writings, music, works of the fine arts, such as paintings and sculptures, and
technology-based works, such as computer programs and electronic databases. A field of
rights related to copyright has rapidly developed over the last 50 years, called ‘related rights’.
These related rights grew up around copyrighted works, and provide similar, although often
more limited and of shorter duration, rights to: performing artists (such as actors and
musicians) in their performances; producers of sound recordings (for example, cassette
recordings and compact discs) in their recordings; broadcasting organizations in their radio
and television programs.

Note that copyright protects expressions of thoughts, and not ideas. So if you imagine a
story line, it is not protected, but when you express it in a synopsis or in, say, a short story,
the expression of the plot in that script will be protected. Still, other writers may build new
stories based on a similar story line as long as they do not copy from yours.

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What rights are protected by copyright and related
rights?

In the introduction to this course it was explained that the most important feature of property
is that the owner may use it exclusively, i.e., as she/he wishes, and that nobody else can
lawfully use it without the owner’s authorization. The phrase “as she/he wishes” does not, of
course, mean that she/he can use it regardless of the legally recognized rights and interests
of other members of society. For example, the owner of a car may use it “as she wishes,”
but this does not mean that she may drive her car recklessly and create danger to others, or
that she may disregard traffic regulations. Copyright and related rights is a branch of
intellectual property. The owner of copyright or related rights in protected digital content may
use the content as she/he wishes, and may prevent others from using it without her/his
authorization. Thus, the rights granted under national laws to the owner of copyright are
normally “exclusive rights”: to use the work or to authorize others to use the work, subject to
the legally recognized rights and interests of others. Related rights may be exclusive or non-
exclusive, e.g., subject to equitable remuneration, but are subject to the same legal rights of
others as copyright.

There are two types of rights under copyright: economic rights, which allow the owner of
rights to derive financial reward from the use of his works by others, and moral rights, which
allow the author to take certain actions to maintain the integrity of the work. Now listen to
the next audio segments and try to distinguish the various economic rights that are
described.

These economic rights can be divided into four main categories:

• Right of reproduction
• Rights of translation and adaptation
• Rights of public performance, broadcasting and communication to the public
• Droit de Suite
In addition to these rights there are moral rights.

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SAQ 1
What is a right of reproduction?

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SAQ 1 Answer

This is the most basic right since it forms the basis of most forms of exploitation of a work or
subject matter of related rights. Reproduction is in reality the copying of a work in any
manner or form. Examples are the copying of an article from a newspaper and its inclusion
in a book, the storage of a song on a CD-ROM, the recording of a dramatic work as a film,
the making of a three-dimensional work from a two-dimensional work, the downloading of a
picture from the Internet, etc. Whether the reproduction of a work is in material form or not is
irrelevant. Transient acts of reproduction, which however contain some form of
permanence, such as for example, the storage of a work in the RAM memory of a computer,
may also qualify as reproductions for the purposes of the Berne Convention. The
authorization of the owner of copyright or related rights, of course, renders all the above acts
permitted acts.

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Rights of translation and adaptation

The translation and adaptation rights can be regarded as separate rights although they
involve in some form or another the reproduction of pre-existing content. Translations of
works are usually from one language to another. An adaptation of a work is the adjustment
of a work, its rewriting or remodelling into another form in order for example to suit another
medium of communication. Examples are the adaptation of a novel into a film, the fixation of
a dramatico-musical work in a film, the adaptation of a poem into a prose work and so on.
By the term arrangement of musical works we essentially mean changes of keys or parts of
the orchestration. Other alterations include parodies, caricatures and other kind of ‘rewrites’
where the work is adapted in order to suit another purpose. Broadly speaking all these
alterations can be called adaptations.

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SAQ 2
What is a public performance?

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Click here for answer

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SAQ 2 Answer

Another way of communicating or disseminating digital content to the public is through public
performance. This way of dissemination is linked more to certain works than others. For
example, public performance is the main way of disseminating dramatic and musical works
although literary works can also be performed by way of recitation and artistic works by way
of exhibition or display. ‘Performance’ means any acoustic or visual presentation of the work
by any means or process, for example, by means of sound recordings, films, broadcasts or
cable programs protected by related rights. ‘Public’ does not necessarily mean the public at
large. It means a large number of people who do not qualify as family or closest social
acquaintances. Not all those people need to be present while the performance takes place.
It suffices that they have access to it, such as for example video showings in every room or a
hotel. Private performances are excluded altogether.

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Audio 1 Droit de Suite
This is a special right rather than a special category of rights. Droit de suite is the author’s
right to a share in the proceeds of subsequent sales of his original work (the original form in
which the work is embodied) given that this work is either an original work of art or an
original manuscript of a writer or a composer. This right presents a special case from two
points of view. First, it is left to the discretion of the Contracting States whether they will
introduce it into their national laws or not. Secondly, in contrast with other economic rights, it
is inalienable, that is, it remains with the author during his or her lifetime. After the author’s
death it can be exercised by the persons or institutions provided for in the national
legislation.

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SAQ 3
What exactly are moral rights?

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SAQ 3 Answer

The rights I have just mentioned are known as economic rights. Moral rights are different:
they are made up of two elements, the first being the right to claim the status of author of a
work, and to have that authorship recognized. If you have written a book, then you have a
right by law to have your name mentioned as its author and also to be named when the work
is used, at least within reasonable limits. We can’t expect a disc jockey in a discotheque to
announce the composer, lyric writer, arranger and so on for every record he plays; it doesn’t
go that far obviously, but if you play a work at a concert - a classical concert of modern
music - the composer would clearly be entitled to have his name mentioned in the program.
That would certainly be the practice for more important works such as those played in
theatres or concert halls; indeed for all works in principle, we must name the author. This is
also true of broadcasting in some cases, but not all the time. There again, the exact
weighing of the details is something that is dealt with in national law, often with reference to
practice or precedent.
The second moral right is the right of integrity, that is, the right to object to the work being
distorted or used in contexts that are prejudicial to the honour and reputation of the author.
The author can for example oppose the use of his work in a pornographic context, if the work
is not pornographic in itself. And he can oppose the distortion of the work in such a way that
its cultural or artistic integrity is adversely affected.

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What is digitization?

Digitization is the process of transforming data from analogue into digital form (that is binary
coded files – “0” and “1” for use in computers). Scanning photographic images, uploading a
music CD to your computer or iPod and converting text on paper into text in computer files,
are all examples of digitization. Examples of digital content include articles available on
online newspaper sites, MP3 music files and webcasting of Internet radio signals,
photographs of movie stars on celebrity fan sites, online pictures from art galleries and digital
museums, video clips on news sites and online books from Internet publishers.
Source: High-Tech Dictionary, available at
http://www.computeruser.com/resources/dictionary/definition.html?lookup=6430.

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SELF-ASSESSMENT QUESTION

SAQ 4
What are three examples of digital content?

Type your answer here

Click here for answer

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SAQ 4 Answer:

1) Online newspaper articles.

2) Photographs in online art galleries.

3) Video clips from online news sites.

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How does electronic commerce impact copyright
and related rights law?

Copyright and related rights protection extend to eligible digital content regardless of the
form in which it exists or the media on which it is expressed. Information that is protected by
copyright and related rights in analogue form continues to be protected when transformed
into digital form. For example, an e-mail message or an online document is protected by
copyright in the same manner as a hand-written, typed, or printed letter. Similarly, a book or
magazine article is protected by copyright regardless of whether the words are recorded in a
magnetic form on a computer disc, in an optical form on a CD-ROM disc, or printed on a
piece of paper.

As Thomas J. Smedinghoff, the author of “Online Law”, points out, it is almost impossible to
do anything online with copyrighted material without implicating one or more of the rights
under copyright and related rights. For example: when you view a Web page, you inevitably
make a copy of the text and images comprising the Internet Web page on your home
computer in order to display content on your screen. Consequently, you are making a
temporary or permanent copy and the web page owner is making a public display of
protected material. If you print the content on a laser printer or save it to disc or CD-ROM,
an additional copy is made. The website owner – in this case – may be engaged in
distribution of protected material. All three of these rights – copying, displaying, and
distributing – involve rights that are exclusively given to copyright owners under some
national laws. If website owners infringe – knowingly or unknowingly – any of these rights,
they may be legally responsible for any damages incurred by copyright or related rights
owners. It is therefore imperative to seek permission to use any protected material on one’s
website.

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What is the challenge of digital piracy?

Digital content may be copied, modified, and distributed all over the globe to more than half
a billion users connected to the Internet at virtually no cost, with the click of a mouse. This
click of the mouse transmission of music files led to the critical intellectual property debate
on online music distribution utilizing the MP3 file format.

MP3 is a file format that enables much improved compression of audio data, and is one of
the standards agreed upon by MPEG, the Motion Pictures Coding Expert Group. An
algorithm is employed to compress musical data enabling it to be transferred more easily
over the Internet while preserving sound quality. According to Harvard University, a song
that is three minutes long and would require about 32 megabytes of disk space in its original
form may be reduced via MP3 technology into a file of about 3 Megs. Instead of taking 2
hours, the song may be transmitted over the Internet with a 56k modem in a matter of
minutes and even less time with broadband access. Broadband availability has increased
rapidly in the past few years, and broadband penetration has reached 62% among Internet
users worldwide (“Face of the Web” Survey by Ipsos-Insight [2004]). By end 2011, there
were more than 1 billion mobile‐broadband subscriptions worldwide. The ITU has reported in
a 2011 study i that although developing countries are catching up in terms of 3G coverage,
huge disparities remain between mobile‐broadband penetration in the developing (8%) and
the developed world (51%).

Users today are able to store, download, upload, and transport great quantities of music in
the world. Many college students have virtual libraries that have been either copied into the
MP3 format from CDs (that they may or may not own) or downloaded directly from the
Internet. Users are also able to share music with virtually anyone by uploading it to the
Internet or sending it to friends world-wide via e-mail. Although online music fans and many
artists have received MP3 with much enthusiasm, copyright and related rights owners have
incurred losses due to unauthorized copying and distribution of their music. The International
Federation of the Phonographic Industry (IFPI) estimates that illegal music sales were
valued at US$4.5 billion in 2003, and in January 2005, there were 870 million copyright
infringing music files on the Internet. A RiSA report (Digital Music Statistics) on digital music
statistics estimates that approximately 3.6 million songs are illegally downloaded in South
Africa on a monthly basis which translates into R36 million monthly and R432 million annual
monetary losses. A PricewaterhouseCoopers Report (Entertainment and Media Outlook
Report (2010)) estimates that if the current trend continues the potential revenue loss due to
copyright infringement will be in excess of R500 million per year by 2014.

The film industry is also threatened by unauthorized exchange of movies. As bandwidth

expands and compression technology improves, piracy of larger files such as motion
pictures becomes easier.

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Linking and Framing

Linking of Copyright Information Online

It is not clear whether a simple link from one website to the home page of another website is
an infringement of copyright and related rights. In some court decisions in Belgium and the
United States of America, copyright infringement was found to result from the simple act of
linking, if the links facilitate further infringement or piracy. Often, no permission is required to
make a link to a site, either because the website owner has given an implied license to link
by posting his material on the Web, or because such linking may be considered as “fair use”
or “fair dealing” in countries where these doctrines apply.

On the other hand, other linking practices may raise problems. “Deep-linking” connects a
user directly to material on another site, bypassing that site’s home or front page, and may
amount to an infringement of copyright or related rights. The use of deep-links to retrieve
pages from the targeted site’s database may, in some jurisdictions including Europe, amount
to an infringement of rights in the database that contains the information. In the United
States, which does not provide specific legislation protecting databases, copyright owners
have found protection against deep-linking by relying upon legal protection against trespass,
breach of contract, and common law misappropriation.

Linking can also raise trademark infringement concerns if it explicitly or implicitly suggests an
association between the linking and the linked sites, and leads a user to believe that an non-
associated web page is affiliated, approved, or sponsored by the trademark owner.

Framing Online Content

Framing occurs when the user includes large parts of an original website content, which may
be copyright protected, framed by a different website, with a different URL, and possibly with
different logos and advertising. Framing may constitute copyright infringement, because a
copy of the material is made in the user’s computer memory.

Framing also raises trademark infringement concerns because of its potential to mislead or
confuse viewers as to the origin of the site and the goods and services it displays.

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Cases
A Danish court in Danish Newspaper Organization v Newsbooster ii held that “deep linking” is
a breach of copyright. The case was brought by the Danish Newspaper Organisation (DNO)
against the Newsbooster service, which linked to articles on 28 of the plaintiffs news
websites without going through their home pages. The court held that the newspaper articles
were copyrightable works. The court held as follows:
"The text collections of headlines and articles, which make up some Internet media,
are thus found to constitute databases enjoying copyright protection pursuant to
section 71 of the Danish Copyright Act. Under section 71(1) of the Act, the makers of
the databases, i.e. the Principals, have the exclusive right protected by the said
provision."

On liability for linking the court held that by means of its search engine, Newsbooster offers
its users regular relevant headlines with deep links to articles on Newsbooster’s website or in
Newsbooster’s electronic newsletters. These links need to be supplemented and updated on
a regular basis and consequently, Newsbooster’ s search engine needs to crawl the
websites of the Internet media frequently for the purpose of registering headlines and
establishing deep links in accordance with the search criteria defined by the users. As a
result, Newsbooster repeatedly and systematically reproduces and publishes the Principals’
headlines and articles. Newsbooster has a commercial interest in this business and this
activity is in conflict with section 71(2) of the Danish Copyright Act.

The court ruled that Newsbooster is prohibited from offering a search service with deep links
from the websites newsbooster.dk and newsbooster.com directly to the plaintiffs' news
articles; reproducing and publishing headlines from the Internet versions of newspaper
articles; distributing electronic newsletters with deep links directly to the newspaper articles;
and reproducing and distributing headlines from the newspapers. iii A similar ruling was
made in Copiepresse v Google Inc. iv

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What is peer-to-peer (P2P) file sharing?

Peer-to-peer (P2P) file sharing is an online activity where networks enable individual users
to share, search and download files, including music, text and film files, from each other. In
every case, the original user keeps a copy of the file, and there is no cost for downloading or
uploading files.

P2P networks enable millions of users to upload and share their music and film files via the
Internet, often infringing copyright in the works they trade. The first well-known P2P service
on the Internet was Napster, which came online in June 1999. Numerous P2P services
have since emerged, including Aimster, KaZaA ,Grokster (using the FastTrack network),
Limewire and Morpheus (using the Gnutella network) and BitTorrent. By 2005, P2P file
sharing accounted for 60% to 80% of all Internet traffic by volume. The total number of
users logged onto the major P2P networks at any one time is approximately 10 million users,
sharing over 10,000,000 GB (10 Petabytes) worth of data. [Source: CacheLogic.com]. This
authorized and unauthorized file sharing was also made possible by the simultaneous broad
commercialization of CD burners, portable MP3 players and rewritable DVD players.

The music industry in various countries has taken legal action to prevent widespread piracy
via the P2P networks. One of the first of these cases involved Napster. The downloading of
music by Napster users was found, in the case of A&M Records, Inc. v. Napster, Inc. to be a
direct infringement of copyright held by the recording companies. In addition to finding
Napster users liable for direct infringement, the court found that Napster itself, which
operated a centralized server, had engaged in contributory infringement, with actual and
constructive knowledge of the infringing activities, and vicarious copyright infringement,
because it had a direct financial interest in drawing users to its service as customers. It is
interesting that the music industry has since re-launched Napster as a legal subscription
service.

It has proven more difficult to regulate other P2P systems that do not use centralized servers
to process search requests and downloads, but enable each user’s computer to act as a
search engine. These systems include Gnutella, eDonkey, KaZaA, MusicCity, Morpheus
and Grokster. The recording industry has approached this problem by taking legal action
against individual users. So as to enable the identification of the users, one approach is to
require the Internet Service Provider (ISP) to divulge information from its records to identify
the user. In the USA, the DMCA provides a procedure by which ISPs can be subpoenaed to
release this information. The Recording Industry Association of America (RIAA) served
nearly 1000 DMCA subpoenas upon ISPs by December 2003,

However this practice has come under question in some jurisdictions, such as the District of
Columbia following the decision of the D.C. Circuit Court of Appeals in RIAA v. Verizon
Internet Services on December 19, 2003. The District Court in that case ruled that the RIAA
could not issue subpoenas to obtain the identity of Verizon subscribers allegedly trading
music files. Constitutional issues, such as consumer privacy, anonymous speech and due
process, have been raised with regard to this process, and there are different outcomes in
different jurisdictions as to whether ISPs should be required to release user information.

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The RIAA has also taken legal actions against music file-sharers directly – by April 2005, it
had sued a total of 11,552 individuals internationally.

At the same time, the music industry has launched numerous legal online music services
that follow either subscription, digital jukebox or pay per song models, using downloading or
streaming technologies and various technical security measures. By 2004, there were over
230 legal music sites, offering a legitimate music catalogue of over one million songs. In
2004, consumers downloaded over 200 million paid-for songs, in a market worth over
US$300 million. [Source: IFPI Digital Music Report 2005]

Digital channels now account for 29 percent of global music industry revenues [IFPI Report
2011]. One of the vital elements of the European music industry’s digital strategy is the
partnerships that record companies, ISPs and mobile operators have forged. New offerings,
such as the ‘cloud’ music ventures, offer a new generation of licensed services that grant
users access to music stored on remote servers for use on a wide array of devices.

The digital exploitation of music has developed significantly and apart from permanent
downloads the digital consumption of music models include:
• Limited Downloads or On Demand Services (the consumer’s use of the copy is in
some way restricted by associated technology i.e. makes a file unusable when a
subscription ends and/or an offering is streamed to the listener to enable him to listen
once, twice or a number of times during the period he subscribes to the
service.) This would typically include the Spotify model [www.spotify.com] and it is
regarded as a streaming service. A RingBackTone (RBT) service is also regarded as
the streaming of a sound recording as it is never downloaded.
• Special Webcasting (This is a service where the user can choose a stream of
music, usually from one source – an artist, a group/ensemble or the record of a
particular concert, for example.)
• Premium or Interactive Webcasting (the so-called ‘intermediate services’. This
form of webcasting includes such personalized services as LAUNCHcast and
Pandora in the UK.).
• Pure Webcasting (a stream of back to back music, the stream consisting of pre-
programmed music (non-interactive).

The following is a list of some of the Internet sites offering legal online music services:
• iTunes Music Store (Apple) - (http://www.apple.com/itunes)
• Rhapsody (Listen.com) – Digital Music Service (http://www.listen.com)
• MusicNet – (http://www.musicnet.com) – backed by RealNetworks, AOL Time
Warner, Bertelsmann and the EMI Group
• MusicNow (Full Audio) – (http://www.musicnow.fm)
• RealOne Music (Real Networks) – (http://www.realnetworks.com)

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 • Musicmatch – (http://www.musicmatch-jukebox.com) – in partnership with Dell, BMG,
EMI, Universal and Warner
• WindowsMedia.com (Microsoft) – (http://windowsmedia.com/mediaguide/music)
• Alliance Entertainment – (http://www.aent.com)
• Liquid Audio – (http://www.liquid.com)
• Loca Records (http://www.locarecords.com/index2.html) – distributes music free of
any copyright restrictions

MINC (Music Information on Neighboring-rights & Copyright; http://www.minc.gr.jp): Online

provider of music content in Japan based on cooperation among collective societies:
JASRAC (Japan Society for Rights of Authors, Composers and Publishers), Geidankyo
(Japan Council of Performers’ Organizations) and RIAJ (Recording Industry Association of
Japan)

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Exceptions and Limitations to Copyright and
Related Rights in the Digital Environment

The copyright and related rights system strikes a balance between protecting creators’
property rights and their exclusive right to control use of copies of their work, and the public
good in fair access to and use of such materials. National copyright and related rights laws
set out exceptions and limitations in order to maintain this balance. Under the “three-step
test”, as set out in the Berne Convention and TRIPS Agreement, exceptions are permitted
“in certain special cases” that “do not conflict with a normal exploitation” of the work and “do
not unreasonably prejudice the [owner’s] legitimate interests.”

However, this balance is under pressure in the digital era. The Internet has increased the
volume of copyright and related rights infringements causing significant economic damage to
right holders. Faced with this challenge, right holders may choose to use technological
protection measures to secure their rights and prevent unauthorized use and access.

In the physical world, users can access protected content for personal use without infringing
copyright or related rights, by borrowing a book from a library, for example. However, online,
each act of access involves an act of copying, because the simple act of viewing a website
requires the computer to make temporary local copies of the data in our computers’ random
access memory (RAM). Without appropriate limitations and exceptions to copyright, public
interest uses are not safeguarded.

The WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty
(WPPT) – collectively the ‘WIPO Internet Treaties’ - provide flexibility to individual countries
to develop exceptions and limitations that are appropriate to their particular circumstances.
The Treaties clarify that this test permits countries to extend existing exceptions and
limitations into the digital environment, or to add new ones, as appropriate.

In addition, the WIPO Treaties allow for exceptions and limitations to the prohibition they
contain against circumvention of technological protection measures. Though each national
or regional law has its own clauses for exceptions and limitations, most countries or regions
(European Union) that have implemented the treaties permit circumvention of technological
protection measures for the purpose of reverse engineering. For full discussion of these
issues, a “WIPO Study on Exceptions and Limitations of Copyright and Related Rights in the
Digital Environment”, prepared by Sam Ricketson, is available at
http://www.wipo.int/copyright/en/index.html.

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Protection of non-original databases

The economic value and importance of databases, as repositories for digital information,
have vastly increased in the digital environment, so there have been calls for an extension of
the scope of existing international protection for databases. Databases that are original by
virtue of the selection and arrangement of their contents are already protected under
copyright. But copyright does not protect databases that are not original, such as a
database that contains an entire universe of relevant facts and is therefore not selective, and
is arranged in a non-creative numerical or alphabetical way.

In addition, even those databases that do qualify for copyright protection may receive a very
narrow scope of protection, allowing competitors to take and market substantial portions of
the information they contain. Such databases often represent significant effort and
investment by their makers, and these investments are jeopardized by the ease and
inexpensiveness of copying them with today’s technologies.

In response to this problem, the European Community adopted the “E.U. Database
Directive” (European Union Directive 96/9/EC of March 11, 1996, on the Legal Protection of
Databases, available at
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:31996L0009). This Directive
requires its Member States to provide a separate sui generis form of protection for
databases, to be implemented by January 1998. On the other hand, concerns have been
raised that, if not carefully balanced, a new form of protection might result in a monopoly
position of information providers or otherwise be detrimental to the scientific, research and
education sectors. Many governments have indicated that further analysis is required of this
issue, and it continues to be considered by the WIPO Standing Committee on Copyright and
Related Rights. For further discussion of this issue, WIPO Studies on the Economic Impact
of Database Protection in Developing Countries and Countries in Transition, are available at
http://www.wipo.int/copyright/en/activities/databases.htm.

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Directive of the European Parliament and of the
Council on the protection of Databases ([1996] OJ
L77/20)

Introduction

The new sui generis right has been created to protect databases and operates irrespective
of whether the database, or any of its contents, attracts copyright protection. The new
database right has been defined as a property right and it is granted if there has been a
substantial investment in obtaining, verifying or presenting the contents of the database.
Once again this right does not interfere with any of the existing materials and the rights in
them. As this right in the database comes on top of any existing rights, its existence
rewards, and is conditional on, a substantial or sizeable investment either in collecting, in
verifying or in presenting the contents of the database. For example, the substantial
investment requirement will not be met by simply putting different works together on a single
support. The database right will not protect such a collection.

The first owner of the database right has been identified as the maker(s) of the database.
The maker of the database is in turn the person who takes the initiative in obtaining, verifying
or presenting the contents of the database and assumes the risk of investing in the
obtaining, verification or presentation. A database made by an employee in the course of his
or her employment will be considered to have been made by the employer, subject to any
agreement to the contrary.

What is a database?
It is first of all important to define the concept of a database that is used by the Directive of
the European Parliament if we are to understand what exactly the sui generis right will
protect.

The term ‘database’ has been defined by the Directive as a collection of independent works, data
or other materials, which are arranged in a systematic or methodical way, and are individually
accessible by electronic or other means.

In order to be protected under the sui generis right, what characteristics must a database
have?

First of all, a database must constitute a collection of independent material. In practice this
means that separate items that do not interact with each other are stored in a database.
Secondly, the works in a database can be works that are protected by copyright, as well as
non-copyrightable data or any other materials, including those in the public domain.

© WIPO/OMPI 26
Thirdly, the items in a database must be accessible on an individual basis. One must be
able to retrieve them individually.
Fourthly, both electronic and non-electronic collections or databases are included in the
scope of the definition.
Finally, the independent works in the database must be arranged in a systematic or
methodical way. Putting random information and items in a box will therefore not create a
database. But, on the other hand, it can be argued that a newspaper is a database, since
the articles in it (independent and individually accessible works) are arranged in a systematic
way (home news pages, overseas news page, sports page etc). This final requirement
creates specific problems in relation to electronic databases. Often the information is fed
into the system in a random way, while the software of the database organizes the
information afterwards. The physical storage of the information in the memory of the
computer (or on floppy disk, or on CD-ROM ) is not even necessarily in the same or another
systematic way. These collections may nevertheless meet the arrangement criterion. A
systematic or methodical arrangement exists and it is provided by an element of the
database itself.

© WIPO/OMPI 27
How is the sui generis right different from copyright
in a database?

The sui generis right under the EU Database Directive protects the content of the database.
It is concerned with the data that go into the database. These data are often not original in
the copyright sense. Copyright could therefore not be used in a reliable way to protect the
content of the database. On the other hand, copyright can be used to protect the structure
of the database. If the selection and/or the arrangement of the database are original
copyright protection will be available for that aspect of the database. Even so, this will apply
only to a limited number of databases and it will still leave the content of the database
unprotected against acts of extraction and re-utilization that do not interfere with the
structure of the database.
The database right exists for a 15-year term (Article 10).
The exceptions to the database right are not numerous and they are also narrower in scope
than their copyright counterparts. Some form of fair use or fair dealing exception exists, but
not for the purpose of criticism, review or news reporting.

There is also a qualification requirement that has to be met before the database right can be
granted (Article 11; Beneficiaries of protection under the sui generis right):
1. The right provided for in Article 7 [Object of protection] shall apply to database whose
makers or right holders are nationals of a Member State or who have their habitual
residence in the territory of the Community.
2. Paragraph 1 shall also apply to companies and firms formed in accordance with the law of
a Member State and having their registered office, central administration or principal place of
business within the Community; however, where such a company or firm has only its
registered office in the territory of the Community, its operations must be genuinely linked on
an ongoing basis with the economy of a Member State.
3. Agreements extending the right provided for in Article 7 to databases made in third
countries and falling outside the provisions of paragraphs 1 and 2 shall be concluded by the
Council acting on a proposal from the Commission. The term of any protection extended to
databases by virtue of that procedure shall not exceed that available pursuant to Article 10.

This right to control extraction and/or re-utilization is a clear example of a sui generis right
that operates in a copyright context to remedy some of the gaps or lacunas in the protection
offered by copyright.

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SAQ 5
Using the definition of a database given in the European Union Directive,
indicate which of the following are true statements:

1. A paper based filing system cannot be considered as a database

2. A film can be considered as a database as it is a collection of images and sounds joined
together
3. The works in a database can be works that are protected by copyright, as well as non-
copyrightable data or any other materials. Copyright protection for these items as such is not
required, and a database can contain a mixture of different items, e.g. a combination of
copyright works and other data.
4. The independent works etc must be arranged in a systematic or methodical way.

Type your answer here

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© WIPO/OMPI 29
SAQ 5 Answer

3 and 4 are true.

1 is false as the definition says specifically that both electronic and non-electronic collections
or databases are included in the scope of the definition.
2 is false, as the database has to be a collection of independent material. In a film the script,
music etc. interact to form the final work

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SAQ 6
Can you give an example of a typical infringement of this right?

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© WIPO/OMPI 31
SAQ 6 Answer

The owner of the database right is granted the right to object to the extraction or re-utilization
of all or a substantial part of the contents of the database. The right in the investment clearly
covers the use of the contents of the database. The right will be infringed by the
unauthorized extraction or re-utilization of all or a substantial part of the contents of the
database. The threshold of a substantial part of the contents of the database can be passed
through the repeated and systematic extraction or re-utilization of in-substantial parts of
these contents. A typical example of an infringement would consist of the taking out of a
substantial part of the contents of the database and their re-arrangement by computer into a
different organization and a prima facie different database.

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SAQ 7
What need did the EU seek to address by creating a sui generis database
right? Which need does it meet and when does it apply?

Type your answer here

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© WIPO/OMPI 33
SAQ 7 Answer

The creation of this sui generis right for databases was necessary because copyright was
not the appropriate instrument to protect non-original databases, which are nevertheless
valuable and have required a substantial investment. Electronic databases, in such a
situation are extremely vulnerable and it was felt that some form of protection was needed to
protect the valuable investment in these databases. The new database right has been
defined as a property right and it is granted if there has been a substantial investment in
obtaining, verifying or presenting the contents of the database.

© WIPO/OMPI 34
Certain experts will argue that the move towards more sui generis rights is inevitable, as
copyright is not able to protect the specific aspects of new technology works. Others will
argue against the creation of more sui generis rights. They argue that copyright is flexible
enough to offer adequate protection to most types of works and that sui generis regimes lack
the important asset of international coverage and applicability that copyright has. Whatever
the outcome of this debate may be, it is important to avoid the risk of over-protection. Ever
increasing protection can unduly restrict the freedom of the individual consumer to have
access to data and information, and further cultural developments may be blocked. Industry
may lobby forever for increasing protection, but this needs to be balanced with the interests
of individual consumers and society even if the latter are often not expressed as loudly as
the former. That balancing exercise is not an easy one, but it is one with which lawmakers in
the copyright field are already familiar for a long time.

© WIPO/OMPI 35
SAQ 8
What is the protection given to the maker of a database by the European Union
database directive and how long does it last?

Type your answer here

Click here for answer

© WIPO/OMPI 36
SAQ 8 Answer

The sui generis right protects in practice the content of the database. It is concerned with
the data that go into the database. These data are often not original in the copyright sense.
In practice the owner of the right (the maker in the first instance) can control the extraction or
re-utilization of all or substantial parts of the database.

The database right exists for a 15-year term. This term starts running from the end of the
calendar year in which the database was completed, but this rule is displaced if the database
is made available to the public before the end of that period. In that case the right expires 15
years from the end of the calendar year in which the database was first made available to
the public. A substantial change to the contents of the database that can be considered to
be a substantial new investment will lead to the grant of a new 15-year term of protection.

© WIPO/OMPI 37
Licensing Models for Online Copyright Content

It is likely that copyright and related rights holders will increasingly rely on licensing and
contracts, together with copyright law to manage their intellectual property. As content has
become more fluid and its means of delivery to users more variable, market offerings can
now be tailored to suit the particular needs of individual consumers, or groups of consumers,
sharing common requirements. A more diversified range of products is reflected in a
corresponding need for greater flexibility in the structure of legal relationships between
content providers, intermediaries and consumers. Contract law also allows greater flexibility
in managing these relationships.

Right holders of proprietary software often use shrink-wrap and click wrap licenses. Two
terms of shrink-wrap licenses are visible through the shrink-wrap boxes containing the
software program. By breaking the shrink-wrap, the buyer is deemed to agree to the terms
for using the software and a contract is formed. Some courts have held that shrink-wrap
licenses are unenforceable as contracts of adhesion, while other courts have considered
them valid. An adhesion contract is a bargain drafted unilaterally by a dominant party, and
presented as a final offer to a party with very little bargaining power. The terms are
generally presented as a pre-printed form to the weaker party, who lacks any real ability to
negotiate the terms. If an individual chooses to return the product, however, they are no
longer bound by the terms of the contract.

Intellectual property rights in software have traditionally been proprietary and protected by
copyright and, in some jurisdictions, patent law. On the other hand, the open source
movement in the software industry has adopted a different position towards asserting
intellectual property rights in software. Open source refers to the development of software
whose source code is publicly available in conformity with the certification standard issued
by the Open Source Initiative (OSI). The software, although usually copyright protected, is
distributed free of licensing restrictions and the developer encourages users to run, modify,
copy and distribute the software freely, so long as certain conditions are met, including that
the program’s source code remains publicly available and the holder of the source code
license does not collect royalties. The movement is designed to encourage collaborative
software development, to remove programming errors or bugs and promote derivative
works. (See IP Survey, para.73 at:. Survey at
http://www.wipo.int/copyright/en/ecommerce/ip_survey/ )

The open source business model is based on the copyright system as well as contract,
because copyright provides the legal infrastructure for open source software. Some such
software is distributed under the General Public License (GPL), which grants licensees the
freedom to reproduce the software under GPL conditions. Users of such software are bound
by the GPL.

Another licensing model has been developed by a collaborative effort known as Creative
Commons (CC) (http://creativecommons.org/). In 2002, CC released a set of copyright
licenses free for public use, that rely upon copyright for their enforcement like the GPL.
Unlike the GPL, however, Creative Commons licenses are not designed for software, but

© WIPO/OMPI 38
rather for other kinds of creative works: websites, scholarship, music, film, photography,
literature, courseware, etc. Creative Commons is working on a project to internationalize
Creative Commons licenses for jurisdictions around the world.

© WIPO/OMPI 39
What are digital rights management and
technological protection measures?

Rights holders are increasingly relying upon technology to provide protection for their
intellectual property in an online environment. The application of information technologies to
facilitate the exploitation of rights is commonly referred to as “digital rights management”
(DRM). DRM systems are aimed at enforcing certain usage rules in respect of the use of
content protected by intellectual property. Typically, these usage rules concern questions
such as who is entitled to access a work, at what price and on which terms. These terms
address questions such as whether a user is entitled to make any copies of the work (and, if
so, how many), for how long a user is entitled to access a work; whether a user can excerpt
the work or make changes to it; whether a user can access the work on one or on multiple
devices, etc. In effect, DRM systems aim to automate the process of licensing works and to
ensure that license terms are complied with.

The following elements are often associated with DRM systems: (i) identifiers, i.e., numbers
or codes permitting the unique identification of a piece of content (comparable to, for
example, the ISBN number for books); (ii) metadata, i.e., information about the piece of
content which may include, for example, the identity of the rights holder, the price for using
the work, and any other terms of use; and (iii) technological protection measures, i.e.,
systems designed to ensure that certain usage rules are complied with, in particular those
concerning access and copy control. Technological protection measures include: anti-copy
devices, access control, electronic envelopes, proprietary viewer software, encryption,
passwords, watermarking, fingerprinting (user authentication), metering and monitoring of
usage, and remuneration systems.

What are some of the examples of technological protection measures? Two examples of
technological protection measures are encryption and watermarking.

(1) Encryption, or cryptography, refers to the process of using software to encode plain
text information into cipher text, which can only be decoded by the intended recipients using
a key or password. The two main types are public-key encryption (asymmetric) and
symmetric encryption.

(2) A watermark is a pattern of digital data (bits) inserted into a digital image, audio or
video file that identifies the file’s copyright information (author, rights, etc.). The name
comes from the faintly visible watermarks imprinted on stationery that identify the
manufacturer of the stationery. The purpose of digital watermarks is to provide copyright
protection for intellectual property that’s in digital format.”
If you would like to read more about watermarks, refer to Webopedia at
http://www.webopedia.com/TERM/d/digital_watermark.html.

Further legal support for DRM systems is to be found in the WIPO Internet Treaties, i.e.
WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty

© WIPO/OMPI 40
(WPPT), in particular in their provisions on Obligations concerning Technological Measures
(Article 11 of the WCT and Article 18 of the WPPT) and Rights Management Information
(Article 12 of the WCT and Article 19 of the WPPT). Many countries or regions, including
WCT/WPPT contracting parties (such as Japan and United States of America) as well as
non contacting parties (such as Australia, European Union and some of its Member States),
have implemented these provisions of the WCT and WPPT.

For general explanation about DRM, see Jeffrey P. Cunard, Keith Hill and Chris Barlas,
“Current Developments in the Field of Digital Rights Management,” WIPO SCCR/10/2,
August 2003, available at
http://www.wipo.int/documents/en/meetings/2003/sccr/pdf/sccr_10_2.pdf.

© WIPO/OMPI 41
SAQ 9
What are two technological means of copyright protection?

Type your answer here

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© WIPO/OMPI 42
SAQ 9 Answer:

1) Encryption.

2) Watermarks.

© WIPO/OMPI 43
Webcasting

The Internet has evolved into an important complementary way of distributing content that is
protected by copyright or related rights through various free or subscription-based services.
Webcasting or Internet originated streaming, is a new model of content delivery providing
automated and personalized delivery of services. It generally refers to the streaming of
audio or video files on the Internet.

The host or source “streams” small packets of information over the Internet to the user, who
can access the content as it is received. The stream may be a real time (live) [transmission]
or it may be an archived file. The common underlying feature of all different types of
streaming, which distinguishes this method of transmission from downloads, is that, in the
case of streaming, files are not saved locally on the user’s machine. Internet originated
streaming is a “point to point” technical process. In other words, there is an individual
connection between each user and the source of the streamed content (a host).

Simulcasting refers to cases where broadcasters transmit their programs simultaneously and
unchanged over the Internet. In the case of Internet originated streaming, the content is
transmitted on the Internet only.

The WIPO Standing Committee on Copyright and Related Rights (SCCR) is currently
discussing a possible new international instrument that would, if adopted, update the
protection granted to broadcasting organizations bringing them in line with the realities of the
information age. The advent of new types of communications for radio and television
programs has made it necessary to review and upgrade existing international standards.

The inclusion of webcasting in the scope of protection of the proposed instrument has
caused debate both from industrialized and developing countries. Also a number of content
owners’ organizations have expressed their concerns, and have pointed at the very diverse
nature of webcasting operations, ranging from the very small and insignificant to important
commercial ventures. The difficulty in distinguishing between certain protected streaming
emanating from broadcasting organizations and individual-based streaming that could be
conducted without investment, on an amateur basis has been raised. It has also been
stressed that webcasting is still unknown in some countries as Internet access itself is very
limited. It was also pointed out, however, that webcasting is a new way of transmitting
content to consumers which requires significant investment and deserves protection in its
own right. In any case, the issue deserves a thorough analysis before any appropriate
decision can be made.

© WIPO/OMPI 44
Liability of Internet Service Providers and Internet
Intermediaries

Internet service providers (ISPs) may be subject to legal liability to copyright holders, insofar
as ISPs are involved when a work is transmitted across digital networks or made available
for public access online. Such liability could arise in one of two ways: (1) if the service
provider itself is found to have engaged in unauthorized acts of reproduction or
communication to the public, or (2) if it is held responsible for contributing to or making
possible the act of infringement by another. Unless ISPs are aware of the infringement,
ISPs do not incur direct liability for copyright infringement, in accordance with the WIPO
Copyright Treaty. However, because ISPs are in a position to control the distribution of
copyright works, ISPs are more likely to be held vicariously or secondarily liable for copyright
infringement.
In the course of enforcing their rights, copyright holders may request ISPs to disclose users’
personal or contact information. Thus, the ISP could also be subject to tortious liability vis-à-
vis the copyright holder on the basis of not having taken measures to prevent copyright
infringement, as well as legal liabilities vis à vis the user based on breach of contract and
tortious liability.

In addition, ISPs could incur non-legal penalties, such as administrative sanctions, or

damage to their commercial reputation and economic losses, if the ISPs allow illegal content
to remain on their systems or unreasonably interrupt their provision of services to users.

In order to continue to provide Internet services and remain commercially viable, in some
jurisdictions ISPs are provided to require a safe harbour against the dual risks involved when
they exercise judgment on whether; (1) to take down their clients’ contents and (2) to
disclose their customers’ identity and contact information. If these risks are not mitigated,
ISPs cannot function commercially and the future development of the Internet could be
jeopardized.

Because the Internet is a borderless medium and its markets are global, it is important that
compatible approaches to the issue of ISP liability be adopted around the world. It is not
necessary that the approaches be identical, since they may differ depending on the
particular circumstances and legal traditions in any given country. But they must be
interoperable if global networks and electronic commerce are to develop smoothly.

For these reasons, both the US and European Union have enacted safe harbours for ISPs to
shelter ISPs from the undue risks. The US DMCA establishes a detailed statutory safe
harbour rule (known as “notice and takedown” provisions). On the other hand, the EU E-
Commerce Directive does not prescribe detailed notice and takedown procedures and
leaves this issue to Member States to elaborate. The Directive encourages industry
stakeholders to develop their own frameworks for managing ISP liability.

© WIPO/OMPI 45
The notice and takedown procedures regulate the ISPs’ obligation to react appropriately
when informed about irregularities on websites hosted and/or made available by them.
Typically under such procedures, a complaint informs an ISP that it is hosting illegal content
(notice) and requests that the content in question be removed (takedown). These
procedures establish a “red-flag” test when ISPs have knowledge of users’ illegal activity and
thus are subject to contributory or vicarious liability. The standard to which they are held is
“actual knowledge of the infringement or awareness of facts or circumstances from which
infringing activity is apparent.” Once the ISP receives proper notification of the infringement,
the “red-flag” test is presumed to have been satisfied.

The notice and takedown system is not mandatory and court action remains an alternative.
Nevertheless, both copyright holders and ISPs have incentives to use the system; for
copyright holders, notice and takedown provides a faster and cheaper solution to enforcing
their rights, while from the ISPs’ perspective, a prompt response to the notification reduces
liability for infringement.

In addition to consideration of ISPs, issues of liability are increasingly being considered in

relation to other categories of “Internet intermediaries”. Although this term is largely
undefined, it may include online auction sites, portals and providers of software for peer-to-
peer file sharing. WIPO held a Seminar on Copyright and Internet Intermediaries on April
18, 2005, and the background papers describing this issue are available at
http://www.wipo.int/meetings/en/2005/wipo_iis/program.html.

© WIPO/OMPI 46
3 Strikes rule
In certain jurisdictions, such as France, the United Kingdom, Korea and New Zealand, a
system of graduated responses to infringes culminating in the suspension of access services
to individuals has been introduced. It is commonly known as the HADOPI system. HADOPI
is an acronym of the French government agency created to administer the system Haute
Autorite pour la Diffusion des Oeuvres et la Protection des Droits sur Internet (Law 2009-669
of June 12, 2009 on Promoting the Distribution and Protection of Creation on the Internet).

HADOPI was introduced during 2009 as a means to control and regulate internet access and
encourage compliance with copyright law. Billboard.biz reports that it is unknown how many
file sharers are getting warnings from France's new P2P infringement authority, but it is
reported that French labels are sending 25,000 complaints a day to Hadopi.

The Digital Economy Act of 2010 (DEA) regulates digital media and adopted measures to
curb the on-line infringement of copyright. The Act provides that Ofcom must take the
responsibility for putting in place the following:
 Technical measures- which may limit Internet access in any way, including
suspending it entirely.
 Appeals process - a tribunal providing for an independent appeal.
 An obligation on ISP’s and copyright owners- a fine of up to 250 000 Pounds
levied on those in contravention.
 Blocking Internet locations from which a substantial amount of material has been,
is being or is likely to be made available in infringement of copyright.
 Internet service providers in the UK are currently challenging the constitutionality
of certain provisions of this law.

In New Zealand, the Copyright (Infringing File Sharing) Amendment Act 2011 of New
Zealand amends the Copyright Act 1994 to provide owners of copyrighted works with a
chance to address peer-to-peer file sharing. This act came into force on 1 September 2011.
The ‘three strikes’ rule comes in the following form: a Detection notice; a Warning notice;
and an Enforcement notice. Penalties range from NZ $275 to NZ $15,000, and/or the
suspension of a user’s Internet account for up to 6 months (suspension is only expected to
come into force in 2013).

The holder of the Internet account (account holder) is liable, even if he or she was not the
person who broke the law and the penalty is paid to the copyright owner. The law will apply
to infringements on mobile networks from 1 October 2013.

© WIPO/OMPI 47
Summary Module 4 : Digital Content and Copyright

What is covered by copyright and related rights?

Copyright is a legal term describing rights that creators have in their literary and artistic
works. A field of rights related to copyright has rapidly developed over the last 50 years.
These related rights grew up around copyrighted works, and provide similar, although often
more limited and of shorter duration, rights to: performing artists (such as actors and
musicians) in their performances; producers of sound recordings (for example, cassette
recordings and compact discs) in their recordings; broadcasting organizations in their radio
and television programs. Copyright and related rights are essential to human creativity, by
giving creators incentives in the form of recognition and fair economic rewards. Under this
system of rights, creators and other owners of rights are given legal protection against
unauthorized copying or piracy. This in turn helps increase access to and enhances
enjoyment of culture, knowledge, and entertainment all over the world.

How does electronic commerce impact copyright and related rights law?

Copyright and related rights protection extends to eligible digital content regardless of the
form in which it exists or the media on which it is expressed. Information that is protected by
copyright in analogue form continues to be protected when transformed into digital form. For
example, an e-mail message or an online document is protected by copyright in the same
manner as a hand-written, typed, or printed letter. Similarly, a book or magazine article is
protected by copyright regardless of whether the words are recorded in a magnetic form on a
computer disc, in an optical form on a CD-ROM disc, or printed on a piece of paper.

As Thomas J. Smedinghoff, the author of “Online Law”, points out, it is almost impossible to
do anything online with copyrighted material without implicating one or more of the rights
under copyright and related rights. For example: when you view a Web page, you inevitably
make a copy of the text and images comprising the Internet Web page on your home
computer in order to display content on your screen. Consequently, you are making a
temporary or permanent copy and the Web page owner is making a public display of
protected material. If you print the content on a laser printer or save it to disc or CD-ROM,
an additional copy is made. The website owner – in this case – may be engaged in
distribution of protected material. All three of these rights – copying, displaying, and
distributing – involve rights that are exclusively given to copyright owners under some
national laws. If website owners infringe – knowingly or unknowingly – any of these rights,
they may be legally responsible for any damages incurred by copyright or related rights
owners. It is therefore imperative to seek permission to use any protected material on one’s
website.

The more that content is digitized, the more new copyright and related rights issues arise,
including linking and framing; peer-to-peer file sharing; protection of non-original databases;
online licensing models; digital rights management and technological protection measures;

© WIPO/OMPI 48
and the liability of Internet service providers. Traditional rules that set out exceptions and
limitations to copyright also face challenges. The copyright and related rights system is
constantly searching for new solutions to these challenges as they arise in a digital
environment.

Exception and Limitation to Copyright and Related Rights in the Digital Environment

National copyright and related rights laws set out exceptions and limitations in order to
maintain the balance between protecting creators’ property rights and their exclusive rights.
Under the “three-step test”, as set out in the Berne Convention and TRIPS Agreement,
exceptions are permitted “in certain special cases” that “do not conflict with a normal
exploitation” of the work and “do not unreasonably prejudice the [owner’s] legitimate
interests.” The WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms
Treaty (WPPT) – collectively the ‘WIPO Internet Treaties’ - provide flexibility to individual
countries to develop exceptions and limitations that are appropriate to their particular
circumstances.

Protection of non-digital databases

The economic value and importance of databases, as repositories for digital information,
have vastly increased in the digital environment, so there have been calls for an extension of
the scope of existing international protection for databases. In response, the European
Community adopted the “E.U. Database Directive” (European Union Directive 96/9/EC of
March 11, 1996, on the Legal Protection of Databases, available at http://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:31996L0009). This Directive requires its
Member States to provide a separate sui generis form of protection for databases. It also
provides for the definition of a database, and the conditions which give rise to protection.

Licensing Models for Online Copyright Content

It is likely that copyright and related rights holders will increasingly rely on licensing and
contracts, together with copyright law to manage their intellectual property. Traditionally,
intellectual property rights in software have been proprietary and protected by copyright and,
in some jurisdictions, patent law.
On the other hand, the open source movement in the software industry has adopted a
different position towards asserting intellectual property rights in software. Open source
refers to the development of software whose source code is publicly available in conformity
with the certification standard issued by the Open Source Initiative (OSI). Some such
software is distributed under the General Public License (GPL), which grants licensees the
freedom to reproduce the software under GPL conditions. Users of such software are bound
by the GPL.

© WIPO/OMPI 49
Another licensing model is the Creative Commons (CC) (http://creativecommons.org/). In
2002, CC released a set of copyright licenses free for public use, that rely upon copyright for
their enforcement like the GPL.

What are digital rights management and technological protection measures?

The application of information technologies to facilitate the exploitation of rights is commonly

referred to as “digital rights management” (DRM).

What is Webcasting and how does it affect intellectual property?

Webcasting or Internet originated streaming, is a new model of content delivery providing

automated and personalized delivery of services. It generally refers to the streaming of
audio or video files on the Internet. The advent of radically new types of communications for
radio and television programs and of content distribution over the Internet has made it
necessary to review and upgrade existing international standards.

The WIPO Standing Committee on Copyright and Related Rights (SCCR) is currently
discussing a possible new international instrument that would, if adopted, update the
protection granted to broadcasting organizations bringing them in line with the realities of the
information age. The inclusion of webcasting in the scope of protection has caused debate
both from industrialized and developing countries

What is the role of Internet Service Providers in protecting copyright and related
rights?

Internet service providers (ISPs) may be subject to legal liability to copyright holders, insofar
as ISPs are involved when a work is transmitted across digital networks or made available
for public access online. In the course of enforcing their rights, copyright holders may
request ISPs to disclose users’ personal or contact information. Because the Internet is a
borderless medium and its markets are global, it is important that compatible approaches to
the issue of ISP liability be adopted around the world. For these reasons, both the US and
European Union have enacted safe harbours for ISPs to shelter ISPs from the undue risks.

i
http://www.itu.int/ITU-D/ict/statistics/material/pdf/2011%20Statistical%20highlights_June_2012.pdf
ii
Danish Newspaper Publishers' Association v Newshooter.com; ApS Copenhagen Court, 24 June
2002; Court Journal No F1-8703/2002.
iii
The quotations from the court's ruling were obtained from "Translation of pages 29 - 42 of the ruling
made by the Bailiff’s Court on 5 July 2002 at http://www.newsbooster.com/?pg’ judge&lan’ eng)
accessed on 22 July 2007.
iv
Court of First Instance, Brussels, 5 September 2006. A copy of the decision is available at
http://www.chillingeffects.org/international/notice.cgi?action=image_7796 (as at 9 Oct 2006); Contra

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Algemeen Dagblad BV et al v Eureka Internetdiensten 2000 District Court of Rottendam) discussed
by Ebersöhn vol 11 Part II Juta's Business Law at 76.

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