Transcript Copyright - Senftleben - VU

TRIPS and IP-Related Matters
Mauritius, 5 March 2014
Mauritius Copyright
Legislation and TRIPS
Prof. Dr. Martin Senftleben
VU University Amsterdam
International Framework
TRIPS
Agreement
WIPO
Copyright
Treaty
Beijing
Treaty
Marrakesh
Treaty
Contents
• protection requirements
• term of protection
• minimum rights
• limitations and exceptions
• technological measures
• neighbouring rights
Protection requirements
Literary and artistic works
Pablo Picasso, Guernica (1937)
Literary and artistic works
Literary and artistic works
Literary and artistic works
Literary and artistic works
Literary and artistic works
Literary and artistic works
Literary and artistic works
Charles and Ray Eames,
Eames Lounge and Ottoman (1956)
Literary and artistic works
Literary and artistic works
Literary and artistic works
No registration required
‘The enjoyment and the exercise of [the
rights which the respective laws of Union
countries grant to their nationals, as well
as the rights specially granted by the
Convention] shall not be subject to any
formality;...’ (Art. 5(2) BC)
But originality
• work = materialization of the author’s
individual personality
• particular link between the author and
the work
• copyright is automatically acquired
through the very act of creation
• originality test = central threshold for
determining eligibility for protection
High level of creativity required?
trademark, trade name
and geographical
indications law
protection against
unfair competition
patent and
industrial designs
law
copyright
Or skill and labour sufficient?
trademark, trade name
and geographical
indications law
copyright
protection against
unfair competition
patent and
industrial designs
law
Term of protection
Art. 7 BC
• ‘The term of protection [...] shall be the life
of the author and fifty years after his death.’
– in many countries: 70 years post mortem
• cinematographic works
– making available + 50 years (optional)
• anonymous or pseudonymous works
– making available + 50 years
• photographic works, works of applied art
– making of the work + 25 years (minimum)
Joint authorship (art. 7bis BC)
‘...also apply in the case of a work of joint
authorship, provided that the terms
measured from the death of the author
shall be calculated from the death of the
last surviving author.’
Photographic works (art. 9 WCT)
‘In respect of photographic works, the
Contracting Parties shall not apply the
provisions of Article 7(4) of the Berne
Convention.’
= regular term of protection instead of
making of the work + 25 years
Minimum rights
Two branches of rights
exploitation rights
moral rights
• general right of
reproduction
(art. 9(2) BC)
• claim authorship
• general right of
communication
to the public
(art. 8 WCT)
• object to any
distortion, mutilation,
modification or other
derogatory action
(art. 6bis BC)
Art. 9 BC: Reproduction
‘Authors of literary and artistic works
protected by this Convention shall have
the exclusive right of authorizing the
reproduction of these works, in any
manner or form.’ (para. 1)
‘Any sound or visual recording shall be
considered as a reproduction for the
purposes of this Convention.’ (para. 3)
Right of distribution (art. 6(1) WCT)
‘Authors of literary and artistic works shall
enjoy the exclusive right of authorizing the
making available to the public of the original
and copies of their works through sale or
other transfer of ownership.’
But: exhaustion of the right after the first sale
is left to the discretion of Contracting Parties
(art. 6(2) WCT)
Right of rental (art. 7(1) WCT)
‘Authors of
(i) computer programs;
(ii) cinematographic works; and
(iii) works embodied in phonograms, as determined
in the national law of Contracting Parties,
shall enjoy the exclusive right of authorizing
commercial rental to the public of the
originals or copies of their works.’
Further examples of rights…
• translation (art. 8 BC)
• adaptation (art. 12 BC)
• cinematographic adaptation, reproduction,
distribution, public performance and public
communication (art. 14 BC)
• right to an interest in resales
(‘droit de suite’, art. 14ter BC)
Public performance rights
• public performance (art. 11(1)(i) BC)
• public recitation (art. 11ter(1)(i) BC)
• public communication by loudspeaker
(art. 11bis(1)(iii) BC)
• standard constellation:
– fixed place, fixed time
Right of communication to the public
Arts. 11(1)(ii),
11bis(1)(i) and (ii),
11ter(1)(ii), 14(1)(ii),
14bis(1) BC
Art. 8 WCT
Art. 8 WCT: Communication to the public
‘…the exclusive right of authorizing any
communication to the public of their works,
by wire or wireless means…’
• standard constellation:
– flexible place, fixed time
– example: broadcasting (art. 11bis BC)
Art. 8 WCT: Communication to the public
‘…including the making available to the public
of their works in such a way that members of
the public may access these works from a
place and at a time individually chosen by
them.’
• making available online:
– flexible place, flexible time
Conceptual contours
primary
acts
secondary
acts
© Bird & Bird
Subject matter |
Pa
Limitations and
exceptions
Underlying rationales
• freedom of expression
• freedom of information
• dissemination of information
• education and cultural participation
• equal chances in the information society
(no ‘digital divide’)
Legal traditions
Anglo-America
Continental Europe
• fair use doctrine
• statutory limitations
• open factors
• fixed requirements
• case-by-case
• closed catalogue of
approach (judge)
limitations (legislator)
• flexibility
• legal certainty
• quick reactions to
• slow reactions to
new developments
new developments
Specific international limitations
• quotations, press summaries (art. 10(1) BC)
• articles on current topics (art. 10bis(1) BC)
• lectures, addresses, works of the same
nature delivered in public (art. 2bis(2) BC)
• reporting of current events (art. 10bis(2) BC)
• illustrations for teaching (art. 10(2) BC)
Specific international limitations
• compulsory licenses concerning
broadcasting, and wireless or loudspeaker
communications (art. 11bis(2) BC)
• ephemeral recordings made by broadcasting
organizations (art. 11bis(3) BC)
Marrakesh Treaty
‘Contracting Parties shall provide in their national
copyright laws for a limitation or exception to the
right of reproduction, the right of distribution, and
the right of making available to the public as
provided by the WIPO Copyright Treaty (WCT), to
facilitate the availability of works in accessible
format copies for beneficiary persons. The
limitation or exception provided in national law
should permit changes needed to make the work
accessible in the alternative format.’ (Art. 4(1)(a))
Marrakesh Treaty
‘Contracting Parties shall provide that if an
accessible format copy is made under a limitation
or exception or pursuant to operation of law, that
accessible format copy may be distributed or
made available by an authorized entity to a
beneficiary person or an authorized entity in
another Contracting Party.’ (Art. 5(1))
• importation in other Contracting Parties
made possible by Art. 6
Open-ended international limitation
‘It shall be a matter for legislation in the countries of
the Union to permit the reproduction of [literary and
artistic] works
in certain special cases, provided
that such reproduction does not conflict with a
normal exploitation of the work and does not
unreasonably prejudice the legitimate interests of
the author.’ (art. 9(2) BC)
= so-called ‘three-step test’
Three-step test family
Article 9(2) BC
Article 13 TRIPS
Article 10 WCT
Agreed Statement on Art. 10 WCT
‘It is understood that the provisions of Article 10 permit
Contracting Parties to carry forward and appropriately
extend into the digital environment limitations and
exceptions in their national laws which have been
considered acceptable under the Berne Convention.
Similarly, these provisions should be understood to
permit Contracting Parties to devise new exceptions
and limitations that are appropriate in the digital
network environment.’
Title of the presentation
Technological measures
Technological measures
‘…effective technological measures that are
used by authors in connection with the
exercise of their rights […] and that restrict
acts […] which are not authorized by the
authors or permitted by law.’ (Art. 11 WCT)
• protected against circumvention
Rights management information
‘…information which identifies the work,
the author of the work, the owner of any
right in the work, or information about the
terms and conditions of use of the work…’
(Art. 12 WCT)
• protected against removal or altering
• facilitation of e-commerce
Ideal world – feasible in practice?
scope of
copyright
=
scope of
protection of
technological
measures
Neighbouring rights
Neighbouring rights
• performing artists
– fixations of performances, including
audiovisual fixations (Beijing Treaty)
• phonogram producers
– with regard to phonograms
• film producers
– with regard to the original and copies of films
• broadcasting organizations
– fixations of broadcasts
Copyright clusters
adaptation 1:
translator
+ neighbouring
rights
adaptation 2:
scenarist
basis: copyright (author)
The end.
contact: [email protected]