basic principles of international copyright la law (barton... · 23 limitations on exclusive rights...

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Basic Principles of International Copyright Law

WIPO Workshop on Intellectual Property

Prof. Barton BeebeNew York University School of Law

WIPO Coordination OfficeNew York

February 23, 2010

Presentation Outline

I Why is Intellectual Property Important?I. Why is Intellectual Property Important?II. Sources of International Copyright LawIII. The “Subject Matter” of Copyright ProtectionIV. Criteria for Eligibility for Copyright ProtectionV. The Term of Copyright ProtectionVI. Exclusive Rights Provided by Copyright Lawg y py gVII. Limitations on Exclusive Rights

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The Economic Importance of “Intellectual” Property

Source: Wired Magazine, Sept. 2001

The Economic Importance of “Intellectual” Property

DEMATERIALIZATIONDEMATERIALIZATION

Source: Wired Magazine, Sept. 2001

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MacBook Air (2008)Colossus Mark II (1944)

( )

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Sources of International Copyright Law

• Berne Convention for the Protection of Literary• Berne Convention for the Protection of Literary and Artistic Works (1886)

• Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) (“TRIPS”)

• WIPO Copyright Treaty (1996)• WIPO Performances and Phonograms Treaty g y

(1996)

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• Agreement on Trade-Related Aspects of Intellectual Property Rights (1994)


(1996)

Berne Convention for the Protection of Literary and Artistic Works (1886)

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Berne Convention for the Protection of Literary and Artistic Works (1886)

• Berne Convention for the Protection of Literary


• Berne Convention for the Protection of Literary and Artistic Works (1886)



(1996)

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(1996)

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(1996)

EU Copyright Law

• Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs

• 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 propertyC il Di ti 93/98/EEC f 29 O t b 1993 h i i th t f t ti• Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights

• Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases

• Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access

• Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in theon the harmonisation of certain aspects of copyright and related rights in the information society (the “EU Copyright Directive”)

• 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 of 29 April 2004 on measures and procedures to ensure the enforcement of intellectual property rights

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U.S. Copyright Law

• U.S. Copyright Act of 1976, as amended

The “Subject Matter” of Copyright Protection

• “Literary and artistic works” (Berne Art. 1)• “Every production in the literary scientific andEvery production in the literary, scientific and

artistic domain, whatever may be the mode or form of its expression” (Berne Art. 2)

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Berne Art. 1




Berne Art. 2(1)

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• Literary works• Musical worksMusical works• Pictorial works• Maps and technical

drawings• Sculptural works• Photographic works• Audiovisual works• Choreography• Computer programs• Sound recordings• Databases


• Literary works• Musical works

• Books• NovelsMusical works

• Pictorial works• Maps and technical

drawings• Sculptural works• Photographic works• Audiovisual works

Novels• Shorts stories• Poems• Plays• Articles in newspapers,

magazines, journals• Lectures

• Choreography• Computer programs• Sound recordings• Databases

• Advertising Copy

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• Books• NovelsMusical works



Novels• Shorts stories• Poems• Plays• Articles in newspapers,

magazines, journals• Lectures


• Advertising Copy• Computer programs

(WIPO Copyright Treaty Art. 4)



• Songs• ChorusesMusical works



Choruses• Symphonies• Operas• Musicals


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• Drawings• PaintingsMusical works



Paintings• Etchings• Lithographs




• architectural plans• blueprintsMusical works



blueprints• diagrams• electrical and mechanical

drawings


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• Sculptures• Architectural worksMusical works



Architectural works• Designs, “applied art”




• Motion pictures• Television showsMusical works



Television shows• Instructional videos


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• Literary works• Musical worksMusical works• Pictorial works• Maps and technical

drawings• Sculptural works• Photographic works• Audiovisual works• Choreography• Computer programs• Sound recordings• Databases



• Not the music, words or sounds, but the recordingMusical works



sounds, but the recordingof the music, words, or sounds


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• WIPO Copyright Treaty, Art. 5Musical works



Art. 5• Directive 96/9/EC of the

European Parliament and of the Council on the legal protection of databases (1996)



• Literary works• Musical works • WIPO PerformancesMusical works• Pictorial works• Maps and technical


• WIPO Performances and Phonograms Treaty (1996)

• Choreography• Computer programs• Sound recordings• Databases• Performances

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Copyright Law Does Not Protect:

“Copyright protection shall extend toshall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.” (TRIPS Art. 9(2))

Idea/expression dichotomy


“Copyright protection shall extend to

A story about:

an orphan

an orphan who attends a wizard school

an orphan who attends a wizard schooland has two friends, one a girl, the othera boy

shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.” (TRIPS Art. 9(2))

an orphan who attends a wizard schooland has two friends, one a very clever girl,the other a somewhat befuddled boy

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Idea/expression dichotomy


“Copyright protection shall extend toshall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.” (TRIPS Art. 9(2))

General idea of story

Literal, word for word expression in novel

Specific characters, plot elements

Requirements for Eligibility

• The work must be “original” expression: the author must have independently created theauthor must have independently created the work

• The work must be “fixed” (required by some countries, optional under Berne Art. 2(2))

• Notice?– The “©” is not necessary: “The enjoyment and y j y

the exercise of these rights shall not be subject to any formality” (Berne Art. 5(2)).

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Term of Copyright Protection

• Berne Minimum: life of the author plus 50 years (Berne Art 5(1))(Berne Art. 5(1))– In practice, life of the author plus 70 years

(e.g., EC Term Directive, Art. 1(1); U.S. Copyright Act of 1976, Section 302 )

• Duration of related rights:– Performers’ rights: 50 years from date of g y

fixation/publication– Sound recordings and motion pictures: 50

years from date of fixation/publication

Exclusive Rights Provided byCopyright Law

• Reproduction right• Adaptation rightAdaptation right• Distribution right• Performance right• Display right• Moral rights

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• Reproduction right• Adaptation right

The right to authorize/prevent the making ofAdaptation right

• Distribution right• Performance right• Display right• Moral rights

prevent the making ofcopies of the work



The right to authorize/prevent the making ofAdaptation right


prevent the making ofadaptations:

– novel to screenplay– translation– change in medium

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• The “first sale” right: the distribution right isAdaptation right


distribution right is typically “exhausted” after first sale

• Rental right– Sound recordings– Computer programs– Motion pictures



The right to authorize/prevent others from publiclyAdaptation right


prevent others from publiclyperforming, broadcasting,transmitting the work

– on stage– on television– on radio– over the internet

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The right to authorize/prevent others from publiclyAdaptation right


prevent others from publiclydisplaying the work

– on television– over the internet



• Right of integrity• Right of attributionAdaptation right


Right of attribution• Right of disclosure/

withdrawal

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Limitations on Exclusive Rights

• Berne/TRIPS Three-Step Test

• “Members shall confine limitations and exceptionsTest

• Fair Use• Compulsory Licenses

limitations and exceptions to exclusive rights to certain special caseswhich do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.”

--TRIPS, Art. 13



• quotation for purposes of criticism or reviewTest


criticism or review• reproduction in news

reporting• reproduction for

educational purposes• use for purposes of

caricature or parody

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• quotation for purposes of criticism or reviewTest


criticism or review• reproduction in news

reporting• reproduction for

educational purposes• use for purposes of

caricature or parody

U.S. Four Factor analysis• Purpose and character of

defendant’s useNature of plaintiff’s work• Nature of plaintiff s work

• Amount and substantiality of defendant’s taking

• Effect on value of or market for plaintiff’s work

Article 5, EU Copyright Directive

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Examples• “Fair compensation”Test


Fair compensation under EC Directive on copyright and the information society

• U.S. “mechanical license”

Further information: http://www.wipo.int/copyright

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