Transcript Slide 1

International Protection of
Copyright and Related
Rights
Marcelo Di Pietro
WIPO
2
What’s intellectual property?
Legal concept describing rights related to intangible
goods or creations of human mind.
Relation with elements of information embodied in
tangible goods, separate of property rights in
tangible goods.
Unlimited number of copies may exist
simultaneously.
Intangibles / tangibles goods
What’s the copyright system?
Legal system which regulates the interests (economic and moral)
of authors and other right-holders (in the exploitation of their creative
works)
and the users (free access to information and knowledge)
Expectations created by technological impact
Some legal features of Intellectual Property
Economic and moral rights
Exceptions
Right to stop the use or
exploitation of an
intangible good
Public domain
Territoriality
Treaties
Limited in time
History of protection of artistic and
literary works
History of protection of artistic and literary works
Ancient world
Written books since V century B.D
Dramatic Musical performances
Art
Intellectual creation was regulated by common property
rules
Patronage / Teaching
Privileged artisants
History of protection of artistic and literary works
Gutemberg´s movable type printing press XV century
First large-scale mechanical production (McLuhan)
System of Privileges for printers and booksellers (feudal)
Republic of Venice in 1469 – Giovanni da Spira
Royal Privilege in 1557 in London
In favour Stationer’s Company
Perpetual right
Queen Anne’s Statute (1709) England
Right of copy for the author
Dramatic copyright Act in 1833 England
History of protection of artistic and literary works
US First law 1790 protection for books, maps and maritime
charts.
Term of 14 years, renewable.
France
Revolution abolished all privileges in 1789
1791 Performing rights for authors of dramatic works
1793Protecion of authors of artistic, literary ad musical
works
History of protection of artistic and literary works
Statute of Anne:
…the author of any book already printed, or other persons
who had purchased copy or copies of any book, in order to
print or reprint the same, shall have the sole right and liberty
of printing such books”
Decree 1793:
Les auteurs d’écrits en tout genre, les compositeurs, les
peintres et dessinateurs qui font graver des tableaus
jouiront leur vie entière du droit exclusive de vendre, faire
vendre, distribuer leur ouvrages dans le territoire…
History of protection of artistic and literary works
Universal Declaration of Human Rights of 1948
Everyone has the right freely to participate in the cultural life
of community, to enjoy the arts and share in scientific
advancement and its benefits.
Everyone has the right to the protection of moral and
material interests resulting from any scientific, literary and
artistic production of which he is the author.
Any difference between the
common law-copyright system
and the civil law-author’s right
system?
Authors right / Copyright
Author oriented/market oriented
Subject matter of protection
Originality/fixation
Concept of author
Natural and moral persons
Moral rights
Economic rights/limitations
Why protecting literary and
artistic works?
Why and how protecting?
Potential to constrain ability to communicate, to develop
ideas, to study, to research, to develop new ideas
Interaction with cultural goods
Possible constraint to creativity and innovation
Time duration
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Why protecting?
Natural rights justification:
Product that emanates from the author’s mind
Expression of author’s personality, reflecting its unique nature
as an individual.
To every cow its calf
Natural right over the products of their labour, and the
productions of their intellectual labour (Locke)
Why protecting copyright?
Reward:
Fair to reward and author for the effort in creating a work a
making available to the public.
Reward is and end in itself and not a means.
When do we deserve a reward? What kind of reward?
Why protecting copyright?
Incentives based approaches:
Utilitarian approach based on what is more beneficial for the
society
Society grants a limited temporal right in exchange of
dissemination
Avoid free-riding in creative market
Why protecting copyright?
Neoclassic Economic Approach
Protection of anything of value
Maximizing wealth
Allocating efficiency
IP allows optimal exploitation of creative goods.
Why protecting copyright?
Democratic paradigm: (the use o f market institutions to
enhance the democratic character of civil society)
Promotes creation and distribution of information and
educational resources.
Enhances civil participation through the ritgh balance
between ownership and access
Supports plurality, independence and generate autonomous
contributions to our autonomous discourse
International Dimension
of IP Law
Global IP Governance Architecture
Multilateral level
WIPO
World Trade Organization (WTO)
Union for Protection of Plant Varieties (UPOV)
Food and Agriculture Organization (FAO)
World Health Organization (WHO)
Convention on biodiversity (CBD)
International Telecommunications Union (ITU)
UN Framework Convention for Climate Change (UNFCCC)
UNESCO
UN Industrial Development Organization (UNIDO)
…
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Sources of IP norms
Copyright
Berne Convention (1886) (1967/1971)
Universal Convention (1951)
TRIPS Agreement (1994)
WIPO Treaty on Copyright (WCT) 1996
Free Trade Agreements
Related Rights
Rome Convention (1961)
WIPO Performances and Phonograms Treaty (WPPT) 1996
TRIPS Agreement (1994)
Free Trade Agreements
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Sources of norms
Analogic
Bern Convention (1886) (1967/1971)
Rome Convention (1961)
TRIPS Agreement (1994)
Digital
WIPO Treaty on Copyright (WCT) 1996
WIPO Performances and Phonograms Treaty (WPPT)
1996
Free Trade Agreements
Development of legal norms in WIPO
24 multilateral treaties (à la carte)
No control of norms
Types of treaties
Other international instruments
– Joint recommendations et cetera…
The Berne Convention for the
protection of literary and
artistic works
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General principles
Allow to stop non authorized parties to exploit a
protected work through copy or communication to
the public
Economic and moral rights
Limited duration
No formalities
Worldwide protection
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General principles
National treatment
Minimum protection
Law of the country where protection is claimed
Independence of law of country of origin
Dispute settlement under general rules of public
international law
Points of Attachment
Nationality
Headquarters or domicile
Place of first publication (within 30 days)
Place where physically situated
Place of performance/recording
Place of transmission
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Protectable subject matter
Every production in the literary, scientific and artistic
domain, whatever may be the mode or for or its
expression.
Ideas are not protected
Work must be original
Fixation may be required by national law
Public policy considerations for not giving protection?
Originality
Relationship between the author and the work.
Threshold: exclude trivial work
Labor, skill and effort.
Sweat of the brow
Own Intellectual contribution
New works/derivative works
Computer generated works
Photographs
Protected Works
(1) The expression “literary and artistic works” shall include every
production in the literary, scientific and artistic domain, whatever may be
the mode or form of its expression,
(2) such as books, pamphlets and other writings;
(3) lectures, addresses, sermons and other works of the same nature;
dramatic or dramatico-musical works;
(4) choreographic works and entertainments in dumb show;
(5) musical compositions with or without words;
(6) cinematographic works to which are assimilated works expressed by a
process analogous to cinematography;
(7) works of drawing, painting, architecture, sculpture, engraving and
lithography;
(8) photographic works to which are assimilated works expressed by a
process analogous to photography;
(9) works of applied art;
(10)illustrations, maps, plans, sketches and three-dimensional works
relative to geography, topography, architecture or science.
Protected Works
It shall, however, be a matter for legislation in the countries of the Union to
prescribe that works in general or any specified categories of works
shall not be protected unless they have been fixed in some material
form.
Translations, adaptations, arrangements of music and other alterations of
a literary or artistic work shall be protected as original works without
prejudice to the copyright in the original work.
It shall be a matter for legislation in the countries of the Union to
determine the protection to be granted to official texts of a legislative,
administrative and legal nature, and to official translations of such texts.
Protected works
(5) Collections of literary or artistic works such as encyclopaedias
and anthologies which, by reason of the selection and
arrangement of their contents, constitute intellectual creations
shall be protected as such, without prejudice to the copyright in
each of the works forming part of such collections.
(6) ...
(7) ...
(8) The protection of this Convention shall not apply to news of the
day or to miscellaneous facts having the character of mere items
of press information.
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Economic Rights
Reproduction or copy
Translation, adaptation
Public performance/recital
Broadcasting and other communication to the public
Resale right
Moral rights (authorship and integrity)
Moral Rights
minimum rights
to claim authorship (paternity right)
to object to any distortion, mutilation or other modification (right
to integrity of the work) any derogatory action in relation to the
work which would be prejudicial to author’s honor or reputation.
duration
at least until the expiry of the economic rights
Duration of Economic Rights
General term: at least 50 years after the death of the
author
principle of reciprocity:
application of the duration of the country of
protectionbut not longer than the duration in the
country of origin, if not expressly provided
different in the domestic law of the country of
protection
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Limitations and Exceptions
Exceptions and limitations, to what?
Legal protection of literary and artistic works whatever may be the
mode or forms of its expression
Legal protection
Prior authorization of rightholder
Compulsory licences / remuneration right
Prior authorization + remuneration to rightholder
Permitted uses
Fair use
Fair dealing
Nature of exceptions
Optional for member states
(subject of national law)
One is mandatory (art. 10)
Right of quotation
No international harmonization in the field of E&L
Kind of exceptions
express - implied
general - specific
Limits to protection
Subject matter not protected
Ideas, theories, data
Procedures,
News of the day and press information (2.8)
Subject matter that may not be protected
Official texts, (legal, adminstrative) (2.4)
Political speeches delivered in legal procedings (2
bis,1)
Public interest (17) –no related to protection but to
circulation, performance, exhibition and broadcasting
Time limitation
Berne: exceptions
Quotation right (10.1)
Use for teaching purposes (10.2)
Use of articles in newspaper and periodicals (10. Bis 1)
Use of works in reporting current events (10 bis, 2)
Reporting of lectures, addresses and other similar
works (2 bis, 2)
Ephemeral recordings of broadcast works (11 bis, 3)
Implied exceptions:
Minor reservations related to performing, broadcasting,
recording, cinematographic rights arts. 11, 11bis, 11 ter.
14.
Translation right (art. 8)
Humanitarian reasons (reproduction for visually impaired)
Public interest in relation with a market dominant
position/anti trust practices
Three step test: History
Before Stockholm (1967) and Paris (1971) Acts there was no
general provision of the reproduction right.
¿Was it an implicit right ?
Recognized in national laws
National features of the national laws
“Broad formula” to encompass current and future E&L
The general principle does not affect special provisions of arts. 10,
10 bis and 2 (bis)2.
Art. 9
National law may provide for exceptions and limitations
in certain special cases
which do not conflict with a normal exploitation of the
work or other subject-matter
and do not unreasonably prejudice the legitimate
interests of the rightholder
Compulsory licenses
Recording of musical works Art. 13.1
Broadcasting of works 11 bis, 1 and 2
Special Appendix in relation to Developing countries
Private copy?
Compulsory licenses in relation to developing
countrie Appendix to Paris Act (1)
Provides for compulsory licences for translation and
reproduction of works that may be requested by
developing countries
In force since 1971
Cuba, Korea (DR), Jordan, Oman, Bangladesh,
Philipines , Arab Emirates, Mongolia, Thailand,
Syria, Sudan.
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International Convention for the Protection of
Performers, Producers of Phonograms and
Broadcasting Organisations
(Rome Convention)
Rome Convention – General
protection of related rights
three groups of beneficiaries
performers
producers of phonograms
broadcasting organisations
contracting parties 88 (no USA)
administered by WIPO
Right holders protected
Perfomers: actors, singers, musicians, dancers. Persons
who act, sings, deliver, declaim, play or perform a literary or
artistic work.
Phonogram: aural fixation of sounds of a performance
Broadcasting: transmission by wireless means for public
recepcion of sounds/images
General
principle of national treatment subject to the protection
guaranteed and limitations provided by the Convention
principle of minimum rights
principle of non-affection the copyright / author’s right
(no provision of the Convention may be interpreted as
prejudicing such protection)
principle of the country of protection
Protected Persons and Protected Subject Matters
performers
if the performance takes place in the CS
if the performance is incorporated in the protected phonogram
unfixed performance is carried by a protected broadcast
producers of phonograms
if the producer is national of the CS
if the fixation is made in the CS
the first publication was made in CS (30 days)
broadcasting organisations
if the headquarter is in the CS
if the broadcast is transmitted from the CS
Minimum Rights
performers
right to prevent broadcasting, fixation, reproduction
right to remuneration for communication to the public of the
commercially published phonograms
phonogram producers
exclusive reproduction right
right to remuneration for communication to the public of the
commercially published phonograms
broadcasting organisations
rebroadcasting
fixation
reproduction
Rome Convention
Duration 25 years
E&L Berne + private use, reporting, ephemeral fixation,
teaching and research.
Actors are mentioned but their rights not treated
No moral rights
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Agreement on the Trade Related
Aspects of Intellectual Property Rights
(TRIPS)
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TRIPS Agreement
National Treatment
Most Favored Nation Treatment
Exhaustion of IP rights
Anticompetitive practices
Detailed enforcement provisions
Dispute settlement mechanism
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TRIPS Agreement
Incorporated substantive provisions of Berne,
(art 1-21) except moral rights (art. 6 bis)
“Copyright protection shall extend to expressions and no to
ideas, procedures, methods of operation, or
mathematical concepts as such”
Computer programs as literary works (source or object
code)
Rental rights for computer programs and cinematographic
works
Compilations of data or other materia, whether in
machine readable form or other form, which by reason
of the selection or arrangement of their contens
constitute intellectual creations and shall be protected
as such.
Anti-competitive practices in contractual licences
Art... 40
Some licensing practices or conditions pertaining to IPRs
which restrain compettition may have adverse effects on
trade and may impede the transfer and dissemination of
technology.
Members may specify licensing practices that may constitute of
an abuse of IPRs having an adverse on competition in the
relevant market.
Technological Development and
International Treaties
WCT
WPPT
TRIPS
Rome Berne
1961
1967-1971
From the 70’s
1975
1990
”guided development"
1994 1996
Internet boom
Reprography, videotechnology, cassettes and compact discs,
satellite broadcasting, software, databases, cable television.
Changing landscape
Knowledge
Past 20 years - enormous changes in knowledge generation
and the global economy.
Knowledge has become a major input to production. No just
the traditional factors of production, like capital, labour and
land but also Innovation.
IP provides the legal framework for trading intellectual
assets
Technological impact
Massive access to information
Changes in expectations and behaviour of consumers
New players and stakeholders
New possible right holders
Technological protection measures
Multiterritorial explotation of works
WIPO Internet Treaties (December 1996)
WIPO Copyright Treaty (WCT)
entry into force March 6, 2002
WIPO Performances and Phonograms Treaty (WPPT)
entry into force May 20, 2002
ensure that rightholders control dissemination of protected
material over Internet, including right to make available ‘on
demand’
WIPO Internet Treaties
Right of Reproduction
Rights Management
Information
Digital Agenda
Technological
Measures
of Protection
Rights for
transmissions
in interactive
digital networks
Limitations and
Exceptions
Content of the treaties
Provisions TRIPS not included in previous WIPO treaties
Provisions not related to the digital agenda
Provisions related to the digital agenda
Provisions not related to the digital agenda
National treatment (Bern and Trips)
Differences between WCT y WPPT
Application in time (13 WCT and 22.1 WPPT). No
retroactive.
Exception for performer’s moral rights
Protection for 50 years since the end of year of
fixation (17 WPPT)
50 years since end of year of publication of
phonogram
No formalities for protection
Enforcement procedures (14 WCT and 23 WPPT)
Provisions not related to digital agenda
Distribution right (6 WCT / 8 and 12 WPPT)
Exhaustion of rights
Extension term of protection of photographic works (9
WCT)
Moral rights for performers (5 WPPT)
Provisions included in TRIPS
protection of expression (2 WCT)
computer programs (4 WCT)
date bases (5 WCT)
50 years of protection for performances and phonograms
(17 WPPT)
rental right (7 WCT - 9 and 13 WPPT)
- Computer programs
- Cinematographic works
- Phonograms
Digital Agenda (1)
WPPT includes definitions
Acts of reproduction of works and objects (digital storage)
Agreed statement (1 WCT- 7 WPPT)
Applicability of art. 9 (right of reproduction) Bern
Convention
Storage in digital form in electronic medium constitutes
a reproduction within the meaning of art. 9 of Bern
Convention
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Reproduction right
Agreed statements concerning Article 1(4): The
reproduction right, as set out in Article 9 of the Berne
Convention, and the exceptions permitted thereunder,
fully apply in the digital environment, in particular to the
use of works in digital form. It is understood that the
storage of a protected work in digital form in an
electronic medium constitutes a reproduction within the
meaning of Article 9 of the Berne Convention
Information Society Directive (EU) (2001)
Article 5
Temporary acts of reproduction referred to in Article 2, which
are transient or incidental [and] an integral and essential part
of a technological process and whose sole purpose is to
enable:
(a) a transmission in a network between third parties by an
intermediary, or
(b) a lawful use
of a work or other subject-matter to be made, and which have
no independent economic significance, shall be exempted
from the reproduction right provided for in Article 2.
Digital reproduction - FTA
Right to authorize or prohibit all reproductions of their
works , in any manner or form, permanent or temporary
(including storage in electronic form)
Exception: any temporary reproduction, without an
independent economic impact, that is integral and
essential part od a technological process and with the
only objective of allow a legal transmission in a network
(chili)
Digital
Transmissions
Interactive transmissions
Issues
What’s the right involved?
Communiction to the public
Electronic distribution
sui generis
Concept of public
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Right of communication and making available to
the public
Without prejudice to the provisions of Articles 11(1)(ii),
11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of
the Berne Convention, authors of literary and artistic
works shall enjoy the exclusive right of authorizing any
communication to the public of their works, by wire or
wireless means, 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.9
Internet Service
Providers
ISP liability National (general-specific)
Regional
European Union (DIS)
Multilateral
Internet treaties (WCT-WPPT)
Bilateral
FTAs
ISP services
Content Provider
Provider of services in line
(Hosting)
WEB pages
E-mail
Chat services
Search engines
UGC…
Access provider (link to networks)
Network provider (telecomunicaton infrastructure)
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Internet Service Providers
Agreed statements concerning Article 8 : It is understood
that the mere provision of physical facilities for enabling or
making a communication does not in itself amount to
communication within the meaning of this Treaty or the
Berne Convention. It is further understood that nothing in
Article 8 precludes a Contracting Party from applying
Article 11bis(2) .
EU Directive: Horizontal criteria (no juts IP infringement)
Safe harbors:
No liability:
Mere transmiters / No intervention, No origin,no selection, no upload.
No impide que se le puedan ordenar medidas cautelares para poner fin o
impedir a una infracción.
Proveedores de servicios tienen limitada la responsabilidad en tanto no
tengan conocimiento efectivo de la ilicitud del contenido. Deben
responder apropiadamente desde que tienen conocimiento. Sistemas
jurídicos y técnicos para poner fin a la relación. Servicios de notificación y
puesta fuera de línea y plazo para la presentación de una acción judicial.
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Exceptions and limitations
Application of the three step test to rights of WCT and Berne rights
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.
It is also understood that Article 10(2) neither reduces nor extends
the scope of applicability of the limitations and exceptions
permitted by the Berne Convention
Technological Measures of
protection (MTP)
Technological Measures of protection (MTP)
Device to restrict access or uses of the protected content
non authorized by the right holder
Measures for Access
Measures to restrict the exercise of rights (Anticopy)
Measures related to management of information
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Obligations concerning Technological Measures
Article 11
Contracting Parties shall provide 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.
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Article 12
Obligations concerning Rights Management
Information
(1) Contracting Parties shall provide adequate and effective legal
remedies against any person knowingly performing any of the
following acts knowing, or with respect to civil remedies having
reasonable grounds to know, that it will induce, enable, facilitate
or conceal an infringement of any right covered by this Treaty or
the Berne Convention:
(i) to remove or alter any electronic rights management information
without authority;
(ii) to distribute, import for distribution, broadcast or communicate to
the public, without authority, works or copies of works knowing
that electronic rights management information has been removed
or altered without authority.
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Obligations concerning Rights Management
Information
(2) As used in this Article, “rights management
information” means 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, and any numbers or codes that
represent such information, when any of these items of
information is attached to a copy of a work or appears
in connection with the communication of a work to the
public.11