Authors Rights and Related Rights

Prof. Dr. Delia Mucica

November 2008
REGIONAL MASTER STUDIES IN CULTURAL POLICY AND MANAGEMENT (INTERCULTURALISM AND MEDIATION IN THE BALKANS) UNIVERSITY OF ARTS BELGRADE

What is copyright?

Intellectual Property

Copyright Author Rights and Related Rights

Industrial Property

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 Intellectual property

Intellectual Property
Intellectual property shall include rights relating 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 and designations, protection against unfair competition, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
Convention Establishing the World Intellectual Property Organization (WIPO) of 1967

Aims of intellectual property protection

recognition of the moral and economic rights of creators over their creations and the implementation of a regulatory system to protect these rights; establishment of the rights of the public in relation to their access to those creations; expression of public policies of promotion and support of creativity, of its dissemination and application encouragement of fair trading which in turn would contribute to economic and social development.

Why protect intellectual property?

Creativity fundamental human right Expressions of creativity expressions of the personality of the creator Creator has ownership/proprietary rights over the expressions of his/her creativity intellectual property As owner, creator should decide on the uses of his/her works As owner, creator should benefit from the use of his/her works by third parties

How are protected authors rights?

A system of international legally binding instruments International standards of minimum protection A UN organization responsible for administering these instruments and for developing new ones, where necessary - WIPO Dispute-Settlement Mechanisms And National Regulatory Systems

Territoriality and national treatment

Protection is governed by domestic law and is extended only within the territory of the country If author is not a national of the country of origin of protected work, he/she shall enjoy the same rights as national authors if countries are Parties to the Convention Country of origin of the work country where first communication to the public took place (movies headquarters or habitual residence of producer)

Copyright - International Instruments

International Treaties concerning Copyright International Treaties concerning Related Rights Trade-related Treaties and Regulations EU Copyright Directives

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

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 protection granted to authors

A Little Bit of History

Copyright initially covered literature, music and fine arts The two major waves of technological developments that followed the adoption of Berne Convention in 1886 have: widened the perspective on creativity in relation to the new means of public communication, of dissemination of the creative works led to the appearance of new uses and industries and to the need for their protection led to the repositioning of the relations between authors, interpreters and performers, and the business led to the need for protection of interpreters and performers led to the need for protection of the producers (broadcasters, producers of phonograms and of videograms)

A Little Bit of History (contd)

Thus, copyright, as a branch of law, has been widened to cover related rights: the rights of interpreters and performers in their own performance The rights of broadcasters in their own broadcasts The rights of phonogram producers in their own recordings The rights of videogram producers in their own first fixations

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, cable and satellite transmission and retransmission, Internet etc.) Rights owners were also recognized new rights: Lending right Rental right Resale right Making available right

Berne Convention for the Protection of Literary and Artistic Works

Purpose to protect in an effective manner and in a way as uniform as possible the rights of authors in their literary and artistic works Adopted 1886 Revised: Paris, 1896 Berlin, 1908 Rome, 1928 Brussels, 1948 Stockholm, 1967 Paris, 1971

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

The TRIPS Agreement (WTO Agreement on Trade Related Aspects of Intellectual 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 Berne Convention 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 principles of the TRIPS Agreement are: the principle of national treatment and the principle of most-favoured-nation treatment.

The TRIPS Agreement (Contd)

Cultural exception as derogatory (exception) from the principle of free trade in cultural services

Cultural diversity and Cultural identity as fundamental principles of cultural policies

WIPO Copyright Treaty (WCT) The Internet Treaty, 1996

Necessity to update copyright law for the digital environment. Two contrasting views: the exceptions and limitations provided for in the existing instruments can be carried forward and extended in the digital environment the Berne Convention does not provide for full coverage of the rights of communication to the public and distribution in this new environment.

International Instruments on Related Rights

Rome Convention, 1961 Geneva Convention, 1971 Satellite Convention, 1974 WIPO Internet Treaty on Related Rights, 1996

International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, 1961, Rome Provides for protection of the neighbouring rights of: Performers and interpreters Producers of phonograms Broadcasting organisations. The safeguard clause - protection of copyright must in no way be affected by the protection of neighbouring rights Formalities - P Principles: National Treatment Minimum Protection jointly drafted by BIRPI (the predecessor organisation to WIPO), UNESCO and the International Labour Office

Geneva Convention,1971

Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of Their Phonograms, 1971 addressed especially the phenomenon of piracy in relation to phonograms - piracy agreement from 1971

Satellite Convention, 1974

Convention relating to the Distribution of Programme-carrying Signals transmitted by Satellite, adopted at Brussels in 1974 Answers the need to provide protection for broadcasting organisations for the distribution of programme-carrying signals transmitted by satellite.

WIPO Internet Treaty on Related Rights, 1996

WIPO Performances and Phonograms Treaty Addresses the issues of protecting related rights of interpreters and performers and of phonogram producers in the digital environment Emphasizes technological measures of protection Does not cover rights of broadcasting organizations

Council of Europe Instruments

European Convention on Transfrontier Television of 1989 and its Amending Protocol of 1998. European Convention relating to questions on Copyright Law and Neighbouring Rights in the Framework of Transfrontier Broadcasting by Satellite of 1994. European Convention on the Legal Protection of Services Based On, or Consisting Of, Conditional Access of 2000.

EU Instruments

A rigorous, effective system for the protection of copyright and related rights is one of the main ways of ensuring that European cultural creativity and production receive the necessary resources and of safeguarding the independence and dignity of artistic creators and performers.

EU Instruments (contd)

Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (codified version) (former Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property / repealed). Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (codified version) (former Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights - repealed).

EU Instruments (contd)

Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art Directive 2004/48/EC of the European Parliament and of the Council on the enforcement of intellectual property right Commission Recommendation 2005 on collective cross-border management of copyright and related rights for legitimate online music services

What is protected by copyright?

Literary, artistic and scientific works which are original expressions of an intellectual creation Two conditions: Materialization of intellectual creation Originality (not novelty) Protects only creativity in the choice of words, musical notes, colours and shapes, expressions not ideas

Works protected
literary and artistic works include every production

in the literary, scientific and artistic domain, whatever may be the mode or form of its expression; derived works include translations, adaptations, arrangements of music and other alterations of a literary or artistic work, without prejudice to the copyright in the original work anthologies, collections, etc., if by selection and arrangement they constitute intellectual creations, without prejudice to the copyright in the original work NO JUDGEMENT ON ARTISTIC VALUE

What is not protected?

3 categories: Do not meet the criteria for protection: mere facts, mere data Ideas, methods of operation, procedures Are protected by another body of Law Industrial Property Law inventions, innovations, scientific discoveries, concepts There is an overriding public interest in their unhindered use and circulation: regulatory texts, official documents and their official translations official insignia, flags, anthems, decorations currency notes and coins, payment instruments court decisions and their official translations

About the authors and their works

The author is a natural person One author individual work Two or more co-authors joint authorship: Common works collaborative works contributions can be identified and distinct rights can be ascribed to each co-author for separate exploitation of each contribution, without prejudice to the exploitation of the common work Collective works no possibility to identify the contribution of each co-author and to ascribe a distinct right to each for separate exploitation of each contribution (one may be the main author)

Proof of authorship

Legal presumption of authorship in favour of the natural person whose name appear on the work in the usual manner Burden of proof in case of litigation plaintiff Proof by any means acceptable under national legislation
NO COMPULSORY REGISTRATION

What rights has the author of a protected work?

Personal, exclusive rights of the author to authorize and prevent the use and exploitation of his/her work and to derive benefits from it 2 categories of rights: Economic Rights Moral Rights

Moral Rights
The Berne Convention: Paternity right to claim authorship of an intellectual work to decide under what name the work will be communicated to the public (own name, pen name, anonymous) to oppose to any person which might claim authorship

Moral Rights (contd)

Integrity Right 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

Moral Rights (contd)

Not in the Berne Convention, but more and more accepted in national laws: Disclosure Right The right to decide whether, when and how the work will be disclosed ( first public performance or communication to the public) Withdrawal right The right to cease, withdraw from, any agreement entered for the disclosure of the work, before its disclosure and with due compensation to the beneficiary of the assignment of rights for expenses incurred

More about moral rights

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 ante renunciation Violations are generally criminal offences Means of redress: penal and civil liability

Economic Rights

Personal and exclusive rights of the author which allow him/her to derive financial compensation/reward from the use of his/her work by others by authorizing or preventing certain acts in relation to the work Generally not saleable Exercise of rights can be transferred

What are the economic rights of the author?

Right of reproduction and related rights Reproduction - the most basic right preventing others from making copies of the protected work Distribution Importation Rental Lending

What are the economic rights of the author? (contd)

Rights of Public performance, broadcasting and communication to the public Public performance In a place where the public is or can be present In a place not open to the public but where a substantial number of persons outside the normal circle of a family and its closest social acquaintances is present Live performances Public performances of reproductions

What are the economic rights of the author? (contd)

Broadcasting Transmission by wireless means for public reception of sounds or of images and sounds Radio, Television, Satellite Communication to the public Distribution of a signal, by wire or wireless means Equipment necessary for reception Cable, Movies

What are the economic rights of the author? (contd)

Translation and Adaptation Rights Translation expression of a work in another language Adaptation modification of a work to create another work to make it suitable for different conditions of exploitation

What are the economic rights of the author? (contd)

Resale Right 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

Going Digital

New technological means for New uses New forms Wider possibilities for infringement of protection Solutions? New rights: the making available to the public Legal protection and effective remedies Technological protection Collective management

WIPO Treaty
Art. 11 adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

The Making-Available Right

WIPO Treaties and Directive 2001/29/EC Exclusive right of authors, performers, phonogram producers (film producers, broadcasters) to authorize 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 from a place and at a time individually chosen by them (on-demand services)

Protection 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 sui 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

Limitations on rights

Particular acts of exploitation normally requiring the authorization of rights owner, may, under specific circumstances specified in the law, be done without authorization Such exceptions must comply with the three-steps test (art. 9.2 Berne Convention): In certain special cases Do not conflict with a normal exploitation of the work Do not unreasonably prejudice the legitimate interests of the author

Limitations on rights (contd)

Use of protected work is permitted without authors authorization if: Work is already lawfully made available to the public Use does not prejudice the normal exploitation of the work Use does not unreasonably prejudice the rights holders FAIR USE

Limitations on rights. What kind of uses?

Free uses

No authorization No material compensation

News coverage Quotations Educational purposes Modifications: For private use Parody and caricature Consistent with the purpose of the use intended and permitted by the author Testing of functioning of equipments Copying by broadcaster for the exercise of rights granted

Limitations on rights. What kind of uses? (contd)

Non-voluntary licenses

No authorization Material compensation

Private copying Broadcasting of commercial phonograms Communication to the public in public spaces (discos, restaurants, hotel lobbies, buses, trains etc) of commercial phonograms or broadcast programs

Duration of rights
Generally

Berne Convention 50 years Directive 93/98/EEC 70 years

How can the authors exercise their exclusive rights?

Economic rights may be transferred via: Assignments (transfer of a property right) Licenses (transfer of the exercise of the right, for a specific period and a specific purpose) Licenses are: exclusive (may not authorize others) non-exclusive ( may authorize others) A license does not generally convey the right to authorize others to carry out acts covered by economic rights

Remunerations

Primary remuneration (for primary use authorized) Secondary remunerations: Royalties Material compensations for certain uses: private copying, public lending, mechanical reprography etc.

Infringement of rights

Violations of moral rights Violations of economic rights

Remedies and sanctions: Provided for in the law Criminal liability Civil liability Contractual liability

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; Counterfeiting copying and packaging to resemble the original as closely as possible Bootlegging -unauthorised recordings of live or
broadcast performances.

Collective management of rights

Licensing may also take the form of collective administration of rights What rights? Rights for which individual exercise is: Impracticable (large number of works and/or large number of users) impossible

Remuneration systems

Based on copyright law and principles (fair, equitable remuneration according to actual use of specific work tariffs negotiated between collecting societies and users) Based on cultural regulation and policy (levies, taxes, lump sums, budgetary allocations etc.)

Roles of Governments

Inter-sectoral (integrative) policies Regulation and Enforcement Supervision of function of IP system (especially in relation to TRIPS) Facilitating the function of IP system: Information Education Awareness-raising Collaboration with rights holders