02 Copyright and Neighboring Rights

02 Copyright and Neighboring Rights
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Introduction
The Rights of Authors in General
Copyright = bundle of exclusive rts granted to authors Allows authors ability to authorize/control/prevent different uses of their works 2 Traditions of Copyright English (Public Good) -- Utilitarian Based on Society benefits from the usefulness of the work Limitation Trouble quantifying the incentive How much protection constitutes 'incentive' for different types of authors?
Continental European (For the Good of the Author) -- Author's Tradition / Natural Rights Natural Rights Based on Work = direct expression of author; it's a part of the author Moral Rights Neighboring rights/related rights Limitation Contradiction: under property theories, it's illegal e.g. to sell a body part; but if a work is a 'part' of the author, this theory contradicts the property theories
Treatment of Performances English System = performances receive same treatment/protection under Copyright law as literary/artistic works Continental European System = lesser treatment for performances than Copyright (i.e. performances receive protection under Neighboring rights)
International Agreements: TRIPS, Berne Convention, Rome Convention

Intro Copyright Laws of all countries within WTO are governed by: TRIPS Berne Convention Articles 1 - 21 Berne Convention (1886) Revisions Berne has been through 6 revisions (most recently in Paris, in 1971) Rules/Requirements Minimum standards for copyright laws
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National Treatment Got rid of "material reciprocity" - approach of extending protections if other countries also extended protections (through bilateral agreements) Background Formed in 1886 10 Countries: Belgium, France, Germany, Haiti, Italy, Liberia, Spain, Switzerland, Tunisia, and the UK The US and Japan were "unofficial obersvers" TRIPS Introduction TRIPS incorporated Berne and Rome + several new provisions Together, TRIPS + Berne are the central int'l agmts covering copyright Rules/Requirments National Treatment Minimum standards for Copyright Protection Sound Recordings/Broadcasts TRIPS covers/protects sound recordings/broadcasts (Berne does not) Rome Convention (1961) Requires National Treatment Minimum standards Protects Performers, Producers of Phonograms , and Broadcasting organizations Geneva Phonograms Convention and Brussels Satellite Broadcast Convention Less influential than Rome Protects Producers of phonograms Not as impt as it one was, largely because Members of Geneva are also members of TRIPS and Rome
Foreign Nationals Acquiring Copyrights and Neighboring Rights

Copyrights
Points of Attachment and National Treatment for Copyrights Who is Entitled to Protection by Berne? (Article 3 Berne) Authors who are Nationals of One of the Countries of the Union (Berne Nationals) Authors who are Not Nationals of one of the Countries of the Union (Foreign Nationals)
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Authors of cinematographic works, who are not Berne Nationals, IF the headquarters or habitual residence is in a Union country Authors of works of architecture, who are not Berne Nationals, IF the works are erected in a country of the Union Authors of other artistic works, who are not Berne Nationals, IF the works are incorporated in a building or other structure located in a country of the Union Who is NEVER Entitled to Protection by Berne? A Foreign (non-Union author) who first publishes the work on a non-Union country. However, in a rare case, the author's country could join Berne, and possibly get retroactive protection Which Works are Protected by Berne? (Article 3 Berne) Berne Nationals All of author's works, "whether published or not" NOTE: "Published" means published with author's consent Foreign Nationals
Author's works first published in a country of the Union, OR (Berne Art 3)
Author's works published "simultaneously" (i.e. within 30 days) in a country outside the union and a country of the Union (Berne Art 3), OR Author's cinematographic works, IF Author's HQ or habitual residence is in a Union country (Berne Art 4) Author's works of architecture, IF the work is erected in a country of the Union (Berne Art 4) Author's artistic works, IF the works are incorporated in a building or other structure located in a country of the Union
NOTE: If an author is not a national of one of the countries of the Union, but has habitual residence in a Union country, then the author is treated as a national of a Union country (i.e. that author's works, whether published or not, are protected by Berne)
What is the Point of Attachment (a.k.a. the Connecting Factor)?
i.e. the "Point of Attachment" is not a date -- it is a justification for the author receiving Copyright protection under Berne..
For Works in General (Berne Art 3) For Berne Nationals The Point of Attachment is the Author's Nationality
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Copyright Copyright attaches immediately upon "creation" of the work, whether published or unpublished (Berne Art 3(1)(1))
For Foreign Nationals The Point of Attachment is the Geographic Location of the Publication
Copyright attaches to works first published in the Union, (presumably on the date of first publication in the Union), OR
Copyright attaches to works "simultaneously published" in a Union Country and a Foreign Country "Simultaneously published" means that the work was published in a Union country, within 30 days of publication in a foreign country Therefore, the date of copyright protection must begin on the date of foreign publication (otherwise, if it were the Union publication date, the benefit of "simultaneous publication" wouldn't really exist) NOTE: Foreign Nationals who are habitual residents are treated as Berne Nationals, for copyright protection purposes For Cinematographic & Architectural works (Berne Art 4) Even if author is not a Berne natl, does not habitually reside in Union country, or has not first published in Union country: Cinematographic Works Non-Berne-National authors get PA if they have HQ or habitual residence in Union country
NOTE: This provision avoids any question about the nationality of a film production company (as opposed to the nationality of the writers, etc)
Architectural Works Non-Berne-National authors get protection if the work/building is located/built in Union country The erection or incorporation of a work in a Union country establishes a lasting connection w/ the Union country
NOTE: Together with the provisions in Berne Art, the Point of Attachment establishes national treatment The Backdoor to Berne If a Foreign author wants to establish a Point of Attachment under Berne, the author must "first
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or simultaneously" publish the work in a Union country. This provision enabled US authors (before the US joined Berne in 1989) to claim copyright protection in Berne countries, based on first publication of their works in a Berne country, or simultaneous publication of their works in a Berne country and the US. (e.g. publishing simultaneously in US and Canada, which was a Berne country) NOTE: Berne Article 56 & abuses of the "Back door" to Berne Art 6 allows Union countries to penalize non-Union countries that "fail to protect, in an adequate manner, the works of authors who are natls of Berne countries" TRIPS Incorporation TRIPS Article 9 incorporates Berne Articles 3 and 4. i.e. TRIPS extends these provisions to all WTO countries. Independent Treatment (Art 5(2)) -- p. 99 The treatment in other Berne countries (outside the country of origin) is independent of treatment in the country of origin e.g. The work does not have to be protected in its country of origin (of the work); it still gets protection in other Berne countries e.g. Formalities A work made in the US may get protection in other Berne countries, even if the author did not follow registration rules for US copyright So e.g. author did not get US , but author did have in Europe
Territoriality Berne only sets forth that an Author receives Copyright in each Member country. The details of the copyright are subject to the domestic law of each Member country (but Berne sets minimum standards, so there would be some common ground) Berne's Prohibition on Formalities Rule No Berne countries can impose formalities on foreign nationals of Berne Countries for their foreign works (Art 5(2)) (e.g. this is what enables the "Backdoor to Berne")
BUT "countries of origin" can impose formalities for work originating within their borders (Art 5(1) & Art 5(2)) Protection in the country of origin is governed by that country's law. If an author is not a national of the country of origin, he still enjoy's that country's laws (Berne Art 5(3)) Art 5(4) defines "country of origin" If work is first published in a Union country Country of origin is the Union country of 1st publication If work is published simultaneously in several Union countries
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Country of origin is the Union country whose ligeslation grants the shortest term of protection If work is published simultaneously in a country outside the Union and a Union country Country of origin is the Union country If work is unpublished, or first published in a country outside the Union, without simultanous publication in the Union; AND the author is a Foreign national: Country of origin is the country where the Author is national (provided that... (see p. 101))
This provision favors 'foreign countries' Berne Retroactivity Default Rule for International Treaties (Retroactivity) An international treaty is not intended to apply retroactively UNLESS it contains is an express indication to the contrary TRIPS Art. 70(3) follows the General Rule "No obligation to restore protection to subject matter which, on the date of application of this Agreement for the Member in question, has fallen into the public domain" Trips contains an express provision of Retroactivity Specifically for Copyright and Neighboring Rights TRIPS Art. 70(2) incorporates Art. 18(1) of Berne The Convention (protection) applies to all works which, at the moment of the Convention's coming to force, have not yet fallen into the public domain A country that newly joins Berne must extend copyright protection ('retroactively') to Future works from Union countries AND All existing foreign works from Union countries that are still under copyright protection in the country of origin (or at least not in the public domain there) NOTE: In some cases, this provision could mean that a County A, which newly joins Berne, could have to extend copyright protection to works that originated in countries other than Country A, but may have fallen into the public domain in Country A But the country gets to decide the conditions under which the retroactivity must apply Dam Things v. Russ Berrie (3d Cir 2002) (p. 107) (the Troll doll case) Facts Thomas Dam = woodcarver; citizen of Denmark created Troll dolls Dam had valid in Denmark There were different versions of the trolls 1950 "boy version" Failed to get US patent 1961 "Girl version"
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Got US patent Dam Failed to get US protection for either the boy or the girl version Dist Ct D.C. held that the trolls were in the public domain (because of procedural failings) Russ Berrie began to sell trolls manufactured by Dam Things' US licensee (called Royalty Design) Royalty Design went bankrupt; Berri started using Dam Things molds to manufacture trolls His company began to modify the trolls e.g. a Troll "pencil topper" to manufacturers in China Russ obtained 15 copyright registrations for trolls Dam Things claimed copyright infringement of its public domain troll NOTES: Dam says the 'work' in question is the P1 doll (the 'boy' doll, earlier -- 1950), which was first published in Denmark Russ says the 'work' in question is the 1960 doll (the one that was in the public domain), which was first published in the US (see p. 110) Dist Ct held "likelihood of infringement" Issue 1 Has in Dam Things' troll doll been restored? Rule 104A of US Copyright Act Automatic restoration of for an original work of authorship if: Wk not in pub dom in home country thru exp of term of protection, AND Wk IS in pub dom in US due to Non-compliance w/ formalities or Lack of subject matter (snd rec) or Lack of nat'l eligibility; AND Wk's author/rightsholder = national of an eligible country, AND (if published) the work was first published in an eligible country, but NOT simultaneously in the US NOTE This Implements Berne Retroactivity (see p. 109) But also, 104A provides some relief for "reliance parties" American authors who copied the restored works, while the works were still in the pub dom, have one year to sell the now-infringing works, after being given a "Notice
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of Intent to Enforce" the copyright, byt the author of the restored work Held Yes-ish -- 3d Cir agrees w/ Dist Ct, that Dam Things will likely be able to establish that P1 (the "boy" version) satisfies all 4 elements for restoration, including first publication in an elgible country The issue of copyright infringement should be decided on remand Analysis Dist Ct should have compared the relevant trolls against each other Russ does not contest that the P1 doll ('boy' version') was first published in Denmark. It argues that a different doll is the relevant troll
Ownership and Transfer of Copyrights Unlike points of attachment and national treatment, ownership is left largely unaddressed by international IP treaties Philosophies Continental European Philosphy Mostly, authors can only be PEOPLE e.g. France Authors (for Copyright) must be people, BUT Corporate Entities can be authors (for Copyright purposes) of Collective Works (e.g. newspapers) Most other countries' Philosophy People or Companies can be authors Who Owns Copyright? Art 5(1) Berne Countries are OBLIGATED to vest initial Copyright Ownership to the "Author" of the literary/artistic work What is an "Author?" Art 15 Berne "Author" = person whose name appears on the work "in the usual manner" Who Qualifies to Be Deemed "Author?" Countries are divided over treatment of corporate entities as "authors" and the employer/employee relship Some countries (e.g. Germany) say Employee = both author and owner Natural person licenses work to company (dictated by contract)) Ownership vests in the natural person who created the work
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(C)s can be LICENSED to companies, but companies cannot be owners Other countries (e.g. USA) say EmployER = author & owner Natural person receives rights from company, based on Works made for hire: for Wks made in the context of employment, vests in the COMPANY, and not necessarily the natural person The natural person who made the work might not even be considered the author Art 14bis Berne -> Authors of Cinematographic Works "Cinematographic works" are protected as original works. i.e. Authors of cinematographic works enjoy the same protection as the author of an original work Ownership of in cg works is a matter of national law (i.e. Berne does not set the rules) Art 15 Berne Ownership of cg works may be vested in corporate entities
Note on Neighboring Rights Rome establishes minimum standards for "performers", "producers of phonograms", and "broadcasting organizations" Enforcement of Copyright Protection/National Treatment
I'm not exactly sure where to put this case...

China--Measures Affecting the Protection and Enforcement of IP Rights Facts China law states that certain works that violate other parts of Chinese law will not be protected US Arg: Authors of such works do not enjoy the minimum rights that are "specially granted" by Berne, which violates Art 5(1) (National Treatment) China arg: "Shall not be protected" (in Art 4) means that the works may have , but cannot be published China also arg: TRIPS (as it incorporated Berne) does not affect the right of the Govt of each country to control the exhibition of works (Art 9.1 TRIPS (via Art 17 Berne)) Issue Under the standards set forth in Berne, can a country deny copyright protection based on the content of the work? Held China's law violates TRIPS Rule Berne Art 17: The sovereignty of Member Countries to exercise their rights to maintain 'Public Order'
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Art. 17 Berne:
The provision of this Convention cannot in any way affect the right of the Government of each country of the Union to permit, to control, or to prohibit, by legislation or regulation, the circulation, presentation, or exhibition of ANY work or production in regard to which the competent authority may find it necessary to exercise that right
Art. 9(1) TRIPS incorporates Art. 17 Berne Analysis WTO Panel found that China's Copyright Law, on its face, shows that it denies copyright protections to certain works, including those of WTO Member nationals, as the US claimed i.e. Panel found that China's law Art 4(1) is not just limiting the publication of wks that are contrary to Chinese law; but that it actually takes away the whole protection Art 17 Berne does NOT authorize the denial of all copyright protection in any work There are exclusive rights provided by Berne that countries CANNOT control Even though countries have right to control circulation, presentation, or exhibition does not mean countries can deny China's law did deny Note 3, p. 179 US motivation for this case is to protect its movies -- US wants the ability for US authors to enforce copyrights in China
Neighboring Rights
Berne Convention Does not speak directly to the rt of performers or their snd recording Berne countries have option to include performers' rts w/in the rubric of Which Law Governs Neighboring Rights? If Berne Country opts to include performers' rts in , Berne law applies If Berne Country opts NOT to include performer's rts If country is member of Rome Convention, Rome Convention law applies If country is NOT member of Rome Convention, domestic law applies
Rome Convention Note: The United States is NOT a member of the Rome Convention What Does Rome Convention Protect? Performance rights (i.e. rights "neighboring rights", or rights that are 'neighbors to' copyrights) National Treatment for Neighboring Rights is Provided to: (see p. 116) Performers: Actors, singers, musicians, dancers, and others who perform literary or artistic
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works Producers: Person who, or legal entity which, first fixes the sounds of a performance (or other sounds) Broadcast organizations Pt of Attachment for Performers (Art 4 Rome) Rule
Once a Point of Attachment exists, the person/entity entitled to protection under the Rome Convention is entitled to receive performance rights under the domestic laws of every contracting state to the Rome Convention
If Performance takes place in Rome Convention country: Performers establish a Pt of Attachment, regardless of nationality
(This is particularly useful for US performers, who get a backdoor to Rome protection, even though US is NOT a Rome Convention country).
If Performance takes place in non-Rome Convention country Performer can establishes a Pt of Attachment he/she can "piggyback" on the Producer (Rome Article 5); OR The Producer of the phonograms or recording of the performance is a Rome country national, AND The first fixation (of work) was made in a Rome country, AND The phonogram was first or simultaneously published in Rome country
NOTE: Countries may elect NOT to apply the criterion of publication or fixation (or require both -- up to them
Performer can establish a Pt of Attachment if he/she can "piggyback" on the Broadcast Organization (Rome Article 6) HQ of broadcasting org is in Rome Country, OR Transmission of broadcast was from a tx'er located in a Rome country
NOTE: Countries may elect to provide protection only if both conditions are met
Rationale: To create a system in which a performance fixed on a phonogram is always protected if the producer of the phonogram enjoys protection, and in which a transmitted performance (except for that fixed on a phonogram) is always protected if the broadcasting company enjoys protection Formalities
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TRIPS does not officially prohibit the imposition on formalities for obtaining neighboring rights However, most countries don't (Note 3, p. 125) Bruce Springsteen and his Band (Supreme Ct of Germany) (p. 122) FP Bruce Springsteen & his band gave a performance in the US (Los Angeles) US is NOT a Rome Convention member The concert was transmitted/broadcase live by numerous stns; including one in LA, and others from Rome Convention countries (Argentina, Brazil, Austria, Paraguya, and Uruguay). Def recorded the show & sold it in Germany Ptf Fontayne is a citizen of UK UK is a Rome country Dist ct allowed the infringement claim Ct of App denied the ptfs claims for infringement (saying there was no fault that would give rise to liability) Issue Does Fontayne have a Pt of Attachment for neighboring rights, under the Rome Convention? Does Fontayne, a UK citizen (Rome country) have rts because the transmission was broadcast by companies that are nationals of (or habitual residents of) Rome Convention countries? Rule: Rome Convention Use Art 6 (piggyback on broadcasters' pt of attachment) -- the performer gets national treatment if (a) the performance is not recorded on a phonogram, and (b) is transmitted by radio/television broadcast Not Art 5 (producers) -- no producers in this case Not Art 4 -- because performance didn't take place in a Rome country Held Fontayne did not have rights under Rome Art 6 i.e. look to the broadcast from which the recording was made Was the infringing recording from the broadcasting that provides rights (under Rome Art 6?) BUT Fontayne can get national treatment pursuant to Art 7(1) of the EEC Treaty (now Art 6(1) of the EC Treaty) as a natl member state of the European Union Analysis Ptfs argued that, even if the performance was only transmitted in one contracting state, the performing artists must be granted national treatment in Germany, whether
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or not the contested reproduction of the transmission derived from that transmission However, the court of appeals was correct -- Art 4(c) of the Rome convention only provides national treatment if the performance has been copied from the broadcast transmitted by the Rome country-based broadcaster Notes It seems like Ptf loses under Rome Convention, but could win under the EEC treaty like in the Phil Collins case Key differences btwn Rome/Berne Berne: Focus on nationality of author Rome: Focus on the place of performance Rights Conferred by Rome Convention Performers' Rights
Art 7 Rome / TRIPS Art 14(1) - Members must give performers the "possibility of preventing" prohibited acts: broadcasting w/o consent; fixation of an unfixed performance; reproduction Note: "Possibility of preventing" does not explicitly create an exclusive right Rome Art 12 - Performers are entitled to an "equitable remuneration" for public performances Note: The remuneration right has been an obstacle to the US joining the Rome Convention. US Copyright law does not recognize a right of public performance for sound recordings (except in the case of digital transmissions) Producers' Rights Art 10 Rome / TRIPS Art 14(2) - Producers may authorize or prohibit direct or indirect reproduction of their phonograms TRIPS Art 14(2) - Grants a rental right for producers (similar to the rental right for computer programs under TRIPS Art 11) Rome Art 12 - Producers are entitled to an "equitable remuneration" for public performances Broadcasting Organizations' Rights Art 13 Rome - Grants several exclusive rights against unauthorized rebroadcasting, fixation, and reproduction of their braodcasts
Subject Matter of Copyright Protection

Protected Works
What IS Protected by Copyright Expressions (TRIPS Art 9)
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Protects expressions only, not ideas, procedures, methods of operation, or mathematical concepts as such
"Expression" means "literary and artistic works." (Art 2bis).
"Literary and Artistic Works" includes every production in the literary, scientific, and artistic doman, whatever the form. Includes books, films, music, encyclopedias.. all types of stuff
Computer Programs (TRIPS Art 10)
Computer programs (source or object code) are protected as literary works (incorporates the Berne Convention 1971)
Compilations of Data (TRIPS Art 10)
Compilations of data, which by reason of the selection or arrangement of their contents constitute intellectual creation, are protected as compilations.
Graphical User Interfaces (GUIs) EU Law GUIs are not computer programs; not copyrightable as such BUT a GUI MAY be copyrighted if it is its author's "own intellectual creation"
What is NOT Protected by Copyright (TRIPS Art 9(2)) Ideas. e.g. an author who write a tragic novel about star-crossed lovers can claim copyright for the expression in the novel (i.e. the particular words used), but cannot get copyright for the basic idea of a tragic love tale
Fixation Requirements
Berne Convention leaves it up to Countries to decide whether they want to require fixation
Originality or Creativity Requirements

"Originality" is not mentioned in TRIPS or Berne
Both TRIPS and Berne require "intellectual creation", but only for compilations of data or for collections of works How much "intellectual creation" is needed? Feist Publications, Inc v. Rural Telephone Service Co (US 1991) (p. 133) Facts Rural = certified public utility that provides phone service to several communities in
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NW Kansas Rurla has phone svc monopoly Rural publishes an annually updated phone directory --> white pages list names, towns & phone #s of subscribers; yellow pages list Rural's biz subscribers alphabetically by category Rural collects its own phone subscriber data Feist = publishing co' specializing in area-wide phone dirs (covers larger range than Rural) Feist & Rural compete w/ each other for Yellow Pages advertising Feist isn't a phone co it pays for right to use phone listings from regional phone carriers Rural refused to license its listings to Feist Feist used white pages listings w/o Rural's consent 1309 of Feist's listings in its 1983 directory were identical to Rural's, including 4 fictitious listings that Rural had inserted to detect copying Issue Are telephone directory white pages subject to copyright protection? Held Rural loses. Rural had valid copyright, but The names, towns and telephone #s copied by Feist were not original to Rural; therefore, the data was NOT protected by the Act Rule To establish infringement, a ptf must prove 2 elements 1) Ownership of a valid copyright 2) Copying of constituent elements of the work that are original Facts are NOT able; Compilations ARE able The is limited to the particular selection or arrangement of the compilation; not to the facts themselves Copyright Act: protection requires more than a de minimis quantum of creativity 17 USC 101 does not protect a collection of facts that are selected, coordinated, and arranged in a way that "utterly lacks originality" Analysis In this case, the originality in the selection/arrangement was not creative It was just in alphabetical order, etc.. The lowest limit of originality CCH Canadian Ltd v. Law Society of Upper Canada (Sup Ct Canada, 2004) (p. 137) Facts CCH = legal publishing company (similar to Westlaw in the US)
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Law Society is a non-profit in Canada, which maintains the "Great Library", a collection of legal materials LS offers a photocopy service -- users can make their own copies of materials in the Great Library; users can also order custom photocopies of legal materials CCH sued for Copyright Infringement on 11 works Trial ct found that copyright existed in the works Ct of Appeal applied "sweat of the brow" -- found that because the works were more that 'mere copies', they were original LSUC appeals -- argues that the headnotes, case summary, topical index, and reported judicial decisions are not "original" w/in the meaning of the Copyright Act; therefore, not copyrightable Issue Does LSUC breach copyright by either (1) providing the custom photocopy service) or (2) maintaining self-service copiers and copies of the publisher's works? (1) Are the publishers' materials "original works" protected by copyright? (2) Did the Great Library authorize copyright infringement by running the copying service? Held The publishers' works are "original works" and protected by Copyright Law However, LSUC did not authorize infringement by maintaining self-service photocopiers in the Great Library for use by patrons Rule
In Canada, Copyright subsists in every original literary, dramatic, musical, and artistic work An "original" work: is one that originates from an author and is not copied from another work Must not be so trivial that it could be characterized as a purely mechanical exercise Must be the product of an author's 'skill and judgment'
While by definition, "creative works" will be "original" (and protected by copyright), creativity is not required to make a work "original"
Analysis (see CB p. 141) Copyright Protection The "Sweat of the brow" approach is too low a standard Too easy to obtain -- it extended protection in compilations beyond selection & arrangement, and to the facts themselves
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The American "creativity" standard of originality is too high Implies "novel" or "uniqueness" -- too strict (e.g. like for patents) Canadian court used "Creativity" standard: requires an exercise of "skill and judgment" Selection of headnotes required skill/judgment (e.g. summarizing legal principles and facts of the cases) Skill = acquired knowledge, experience, etc Judgment = discernment based on application of skill Case summaries also required skill/judgment (e.g. choosing which portions to extract, and how to arrange them in summary form) Topical Index and Reported Judicial Decisions also required skill & judgment Authorization of Infringement No evidence that the copiers were used in a manner inconsistent w/ Copyright law Note 2, p. 143 The Canadian court's understanding of Feist is somewhat inconsistent with the US court's holding in Feist Canadian ct seems to have simply re-stated the Feist principle e.g. Skill/Judgment vs Selection & Arrangement is roughly the same thing My opinion: The Canadian "Skill & Judgment" standard sounds like it requires more skill and more judgment than the US standard It "implies" expertise But I think the US stand of "Selection and Arrangement" works out the same It does not "imply" the same level of expertise The Canadian court says a "creativity" standard implies novelty and uniqueness I think the Canadian court misinterprets US copyright law based on Feist.. US does not actually require "creativity" as the Canadian the courts say it I think "Creativity" as the Canadians are calling it, is the same as "Skill & Judgment" in application
Special Case: Database Protection

Art. 10 TRIPS Protects Compilations of Data
Provides for protection to those compilation of data which by reason of selection or arrangement of their contents constitute intellectual creations
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The protection in TRIPS Art 10 does not extend to the data or material itself and shall be without prejudice to any copyright subsisting in the data or material itself i.e. TRIPS Art 10 is consistent with the Fact/expression dichotomy from Feist EU Directive Provides Special Protection to Compilations of Data in the Form of Databases The name of the EU Directive is EU Directive 96/9/EC EU Directive Art 3 - Copyright Mimics Art 10 TRIPS (Copyright Protection) Protects Databases, which by reason of selection/arrangements of data, constitute "the author's own intellectual creation" Does NOT Protect The underlying content (similar to Feist) EU Directive Art 5 - Exclusive Rights Grants author exclusive rights to carry out, or authorize:
Temporary/permanent reproduction by any means, and in any form, in whole or part,
Translation, adaptation, arrangement, and any other alteration, of the database
Any form of distribution to the public of the database, or of copies of the database
But Note: The "First Sale" in the European Community of a copy of the database, by the rightholder, or with his consent, shall exhaust the right to control resale of that copy within the Community
Ask Prof: Does a legitimate purchaser of a database still have to get authorization from the rightholder to sell his legitimatelyowned, used copy of the database? Or can the legitimate purchaser sell his used copy?
Any communication, display, or performance to the public
Any reproduction, distribution, communication, or performance to the public of any translated, adapted, or otherwise altered versions of the original database
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EU Directive Art 6 - Exceptions to Art 5 Rights
A lawful user of a database is allowed to perform any of the acts in Article 5 "for the purposes of access to the contents of the databases and normal use of the contents by the lawful user"
Does this mean that a lawful user can copy the underlying contents, willy nilly?
Countries MAY exempt four other uses: Reproduction of a non-electronic database, for private purposes Use for the sole purpose of illustration for teaching or scientific research. Two requirements for this usage: The source must be indicated The degree/substantiality of the usage may only be to the extent justified by the non-commercial purpose Use for the purpose of public security, or for the purposes of an administrative or judicial procedure; and Uses based on other exceptions to copyright traditionally authorized under national law EU Directive Art 7 - Sui generis database right
"Sui generis" right = a right for the maker of a database to prevent the extraction and/or re-utilization of the whole or of a substantial part. "Extraction" means the permanent or temporary transfer of all, or a substantial part, of the contents of a database to another medium, by any means, or in any form "Re-utilization" means "any form of making available to the public all, or a substantial part, of the contents of a database, by distributing copies, by renting, by on-line, or by other forms of transmission" Requirements for Protection To qualify for protection, the author must have made a "substantial investment" - both qualitatively and/or quantitatively - in the obtaining, verification or presentation of the content Term of Protection (see p. 147) 15 years, by default (In some cases, can be renewed indefinitely) Begins from the date of completion of the making of the database Expires 15 years from January 1 of the year following the completion of the database. (e.g. if DB complete on 10/1/2011, then, sui generis expires on 1/1/2017 Exceptions to Protection
EU Directive Art. 8: lawful users of a database that is made public can use insubstantial parts of the content (evaluated both qualitatively and quantitatively) for any
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purposes whatsoever However, repeated and systematic extractions and/or re-utilization of insubstantial parts ARE NOT permitted
EU Directive Art. 9: Countries MAY have the same exceptions to the sui generis right that Art. 6 of the EU Directive provides for copyrights in databases
EU Directive Art 11: The EU sui generis database right applies only to nationals, or habitual residents, of EU countries (i.e. does NOT apply to outsiders)
Who Qualifies for Sui Generis Protection Nationals or habitual residents of EU countries Businesses, if: its "registered office, central administration, or principal place of business is within the Community."
Note: If the business 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
Foreign nationals, only if The EU Council approves it (acting upon a proposal from the EU Commission), AND The foreign national's country has a reciprocal database right for EU nationals who habitually reside in that country (a.k.a. reciprocity)
Criticisms of EU Directive EU Directive protects facts -- the contents of the database EU Directive ignores important copyright distinction btwn "ideas" and "expression" Facts are not created; they are discovered Policy: Society has an interest in having access to facts The British Horseracing Board Ltd. v. William Hill Organization Ltd (ECJ 2004) (p. 150) Facts BHB is the governing authority for the British horse racing industry; maintains a large database. BHB works in conjunction with Weatherbys, maintained a DB of horse lineage (since 1973). Weatherbys performs several functions in compiling horse and race data:
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Registration of data concerning horses, and their owners, trainers, and jockeys. Compiling a list of running horses for each race occurring under BHBs oversight. (This occurs in a call center. A caller identifies himself, the code for the race he wants to enter, the horse who will run, and the horses owner.) Verifying qualifications (e.g. by having call operators speak with trainers/owners/etc) The cost of maintaining this database is estimated at 4 million pounds UK per year (a lot of money) Weatherbys recovers some of the costs by selling the information to bookmakers and other information services. The data is available to publishers, bookies, and to the public. William Hill is a bookmaker, which provides betting services through its offices throughout the UK. WH provides live coverage of horse races, as well as screens displaying race odds. At the time of the dispute both services were provided by Satellite Information Services (SIS); SIS received its horse racing information as a data feed from BHB. Issue Did WH violate BHB's sui generis rights? i.e. What constitutes substantial investment? Rule
EU Directive Art 7: DB can be protected by sui generis right to databases for which it can be shown that there has been qualitatively and/or quantitatively a substantial investment in the "obtaining, verification, or presentation of their contents" "investment in the obtaining of the contents" means substantial "investment in the verification of the contents" means Held BHB loses -- WH did NOT violate sui generis rights Analysis Investments in the creation of the data is NOT the same as investments the creation of the database Investments in the creation of THE DATABASE counts, but investments in the creation of the DATA does not count Definitions of "investements"
"Investment in the obtaining of the contents" refers to the resources used to seek out existing, independent materials, and collect them in the database. The term does NOT refer to the resources used for the creation as such of independent materials
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"Investment in the verification of contents" refers to the resources used to ensure the reliability of the contents of the DB, and to monitor the accuracy of contents during its operation. i.e. The "investments" to be considered are the ones that are independent of the resources used to actually create the contents of the DB Analysis of the Investments made in this case The resources used to make a list of horses in a race and to carry out checks to verify them do not constitute investment in the obtaining and verification of the contents of the database (based on the interpretations)
Investments in the selection of the horses admitted to run in the race relates to the creation of the data -- not to the creation of the database Cannot be taken into account for assessing substantial investment in the obtaining, verification, or presentation The process of entering a horse on a list for a race requires a number of checks as to the ID of the person making the entry, the characteristics of the horse, its classification, its owner, and jockey BUT cannot be taken into consideration -- that is investment in the creation of the data, not the database itself
Notes Selection/Arrangement Art 3 protects only the selection/arrangement WH did not copy selection/arrangement -- only took some data from database (arguably?) Data itself Art 7 protects the underlying data in the database WH took data Examples of "Substantial Investment" Cost of 'creating' data (e.g. the cost of conducting science experiments) does not count as a substantial "investment" But cost of 'getting' data (e.g. licensing, buying data from the company that did the experiments), in order to create a database that uses the data is a substantial investment in obtaining the data
Special Case: Folklore and Traditional Cultural Expression

Prof Notes Issues: Should be protected? Which form of protection?
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Copyright? Sui generis law? Mulpurrurru (1994)
WIPO Definition of "Folklore and Traditional Cultural Expression" Any tangible or intangible, or a combination thereof, forms of creativity in which culture an knowledge are embodied + Passage from one generation to another Issues Should be protected? (see p. 157) Practical problems Problems identifying authors Problems with originality Problems with fixation Policy Problems Problems with assigning property rights to cultural/spiritual stories, etc e.g. societies may treat works of art/stories/etc as property of the community e.g. Historical significance (of the whole community) (e.g. the culture didn't mean for the stories to be treated as property in the Western sense)
Arguments in Favor Provide economic gain for the society Create a marketplace for the culture's works Preserve/maintain the culture Indirectly by incentivizing the work of the culture Protect the culture from unfair misappropriation of that culture's works
Which form of protection? Copyright? Sui generis? Rationale Copyright in General Economic Incentive to creators to create works of art/authorship Milpurrurru v. Indofurn Pty Ltd (Some Australian Court) (p. 158) Facts The case involved reproduction of artistic works on carpets. Beechow Pty = Australian import co. Beechow carpets from Vietnam made in factories, under agreement with Beehcow.
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The carpets were copies of aboriginal artworks protected under copyright law in Australia Issue Were the subject to copyright protection? Held The court held that the unauthorized reproduction caused a breach of copyright. More importantly, customary Aboriginal laws were taken into account in quantifying the damages, which had been suffered. This decision demonstrated a sensitive and flexible approach of the court: Exemplary damages were awarded for culturally based harm, the court acknowledging cultural sensitivity. The Aboriginal custom of not using the names of deceased artists was respected. Lump-sum damages were awarded to enable Aboriginal clans to take account of collective ownership of the designs. Additional damages were also awarded for humiliation or insulting behavior to a particular cultural group. Rule Under Australian copyright law, the copyright owner has the right to prohibit importation of unauthorized copies of the copyrighted work. Analysis The court recognized the difficulty in applying the Western copyright regime to Indigenous peoples. This litigation brought to the fore the fact that the Western legal system and the Aboriginal customary laws are two conflicting legal systems. Aboriginal law emphasized group ownership and community involvement in decision-making, whereas the Anglo-Saxon legal system focuses on individual ownership and personal rights.
Exclusive Rights of Copyright (Economic)

Note: Berne does not define the meaning of "public" -- thus, "public" communications, displays, etc. are a matter of National Law See also notes on pp 171 - 174?
Reproduction (Copying) What about Dramatic, Dramatico-Musical, Musical, etc??? The book doesn't cover it...
Author's Rights in His/Her Own Literary and Artistic Works Authors of literary and artistic works protected by this Convention have the exclusive right of authorizing the reproduction of the works, in any manner or form (Berne Art 9) Author's Rights in Cinematographic Adaptations/Reproductions of His/Her Works
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Author has the exclusive right to authorize the cinematographic adaptation/reproduction of his own work, as well as the distribution of the adapted works (Berne Art 14(1)(i))
Distribution
Author's Rights in General Berne does not specifically recognize a right of distribution, because countries don't agree on rights Different Countries' Approaches Some countries (e.g. France) treat the right of distribution as part of the right of reproduction Some countries (e.g. USA) treat the right of distribution as a separate right Therefore, authors' rights are a matter of National law?? Authors Rights in Cinematographic Adaptations/Reproductions of His/Her Works Author has the exclusive right to authorize the distribution of cinematographic adaptations of his/her own work (Berne Art 14(1)(i))
Adaptation / Translation (Derivative Works)

Authors' Rights in Their Own Works Authors have the exclusive right to authorize adaptations, arrangements, and other alterations of their works (Berne Art 12) Authors have the exclusive right to authorize the translation of their works into other languages (Berne Art 8) Authors' Rights in Cinematographic Adaptations of Their Works
Authors have the exclusive right to authorize cinematographic adaptations of their works, which includes both the first cinematographic adaptation, AND any other adaptations of that cinematographic work (Berne Art 14(2)
Example: Say Author writes a novel. Screenwriter adapts the novel into a movie. Now, Playwright wants to adapt Screenwriter's movie into a play. Playwright needs to obtain authorization from both Author (the original author) AND Screenwriter (because Screenwriter has copyright in the movie adaptation of Author's novel)
Public Communication, Performance, and Broadcast (Public Performance)

General Intro Author has the exclusive right to authorize the dissemination of a copyrighted work, whether the dissemination is in tangible or intangible form (whaaat?) Authors' Rights in Dramatic, Dramatico-Musical, and Musical Works (e.g. opera, play, musical (play), or symphony) Authors have the exclusive right to authorize
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The public performance of their works by any means or process. (Berne Art 11), and
Any "further communication" of such performances to the public (Berne Art 11), and
Does this mean, e.g. the author has the right to authorize the TV broadcast of a recording of a stage play?
The public performance of, or any "further communications of" any version of the work translated in a different language (Berne Art 11)
Authors' Rights in Literary and Artistic Works Authors' Rights in Broadcasts of Their Work
Authors of literary AND artistic works shall enjoy the exclusive right of authorizing: (Berne Art 11bis)
The broadcasting of their works to the public by wireless means, and
any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one; and
the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work.
Compulsory Licenses May Be Possible
Countries are allowed to determine "the conditions under which" the rights under Art 11bis may be exercised (Berne Art 11bis)
Authors' Rights in Cinematographic Adaptations of Their Works
Authors have the exclusive right to authorize the "public performance and communication to the public by wire of the adapted/reproduced works"
Authors' Rights in Public Recitations of Their Works (Literary Works Only)
Authors have the exclusive right to authorize the public recitation of their work by any means or
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process, as well as any further communication of such recitation to the public (Berne Art 11ter)
Resale Right (Droit De Suite)

Authors have an inalienable right to recoup compensation for resales of the original works of art or manuscripts (Berne Art 14ter)
Here, "Original" means the first work of art/manuscript (after author's death, persons or institutions authorized by national legislation, may recoup) Note: the right is OPTIONAL for Berne Countries. The right in this article apply ONLY if the country permits
TRIPS Rental Rights

Intro: In addition to incorporating the rights contained in Berne, TRIPS adds rental rights for authors of computer programs and cinematographic works Authors' Rights in Computer Programs and Cinematographic Works Member countries shall provide authors (and their successors in title/ownership) the right to authorize or prohibit the commercial rental to the public of originals or copies of their copyrighted works (TRIPS Art 11) Exceptions To Rights in Computer Programs The author does not have authorize/prohibit rental if "the program itself is not the essential object of the rental" Exceptions to Rights in Cinematographic Works TRIPS does not require countries to grant rental authorization/prohibition rights to authors UNLESS such rental has led to widespread copying/piracy that materially impairs the author's exclusive reproduction rights in that country Authors' Rights in Other Types of Works
TRIPS does not specify. It is maybe up to Member countries to decide. (TRIPS only requires rental rights "In respect of at least computer programs and cinematographic works...")
Exceptions to Exclusive Rights

Berne Convention and TRIPS Agreement
Exceptions/Limitations to Right of Reproduction (in General) Both Berne (Art 9(2)) and TRIPS (Art 13)--> copyright exceptions The treaties only establish THAT there are exceptions They don't establish WHAT the actual exceptions are Countries set their own exceptions
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Berne/TRIPS recognizes differences in cultures -- different countries would want different types of exceptions Requirements Must be confined to "certain special cases" Must not conflict with a normal exploitation Must not unreasonably prejudice the legitimate interests of the author/right holder Note: Both Berne Art 9(2) and TRIPS Art 13 say the same thing here
Limitations on Reproduction Rights in Certain Types of Works
Note: We did not specifically study the exceptions under Berne Arts 2bis, 10, 10bis, 11bis, and 13). The actual agreement does not offer much detail, either -just that countries may decide to limit the Right of Reproduction related to certain types of works
Political Speeches; Speeches Made During Legal Proceedings; Reporting and broadcasting of publications (Berne Art 2bis) (i.e. Berne gives countries the discretion to exclude political speeches/legal proceedings, wholly or in part Quotations consistent with fair practice; Using works for illustration in teaching consistent with fair use (Berne Art 10) News-related exemptions (Berne Art 10bis) Compulsory licenses for public broadcasts and performances (Berne Art 11bis(2)) Compulsory licenses for the making "cover" recordings (Berne Art 13) Compulsory licenses to produce translations of copyrighted works (Berne Appendix) -- Only allowed for developing countries
Rome Convention
Rome Convention allows several specific exceptions to performers/producers/broadcast organizations' rights, such as for: "private use", "use of short excerpts in connection with the reporting of current events," and "uses solely for the purposes of teaching and scientific research
WTO Panel Report

United States - Section 110(5) of the US Copyright Act (WTO 2000) (p. 187) Facts US Copyright Act has provisions--the Homestyle and Business exceptions to Distribution rights--which limit the rights of copyright owners to prohibit distribution of certain works European Communities (EC) initiated a dispute settlement proceeding against the US Issue Did Sec 110(5) of US Copyright Act violate TRIPS? Sec 110(5) is the "homestyle use" exception, and the "business" exception (it's long.. see
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p. 187, FN6) Held Homestyle Use Exception (US Copyright Act 110(5)(A)) is consistent with TRIPS Art 9 Business Exemption (US Copyright Act 110(5)(B)) is NOT consistent with TRIPS Art 9 Panel recommends that US modify the Copyright Act to conform with TRIPS Rule TRIPS Requirements: Limitations on exclusive rights must be Must be confined to "Certain Special Cases" Must not conflict with the "normal exploitation of the work" Must not "unreasonably prejudice the legitimate interest" of the right holder Analysis "Certain Special Cases" (see p. 189) "Certain" means known and particularized, but not necessarily 'exact' "Special" means both quantitatively and qualitatively limited Analysis of Homestyle Exemption Certain? Yes Statute expresses the degree of clarity in definition required Statute does not need to specify specific equipment, but does sufficiently describe the KIND of equipment that qualifies Special? Yes The impact of the provision greatly limits the number of establishments (homes) that can qualify for the homestyle exemption There was a limitation on the type of works that the homestyle exemption applies to Analysis of Business Exemption Certain? Yes Provision specified particular definitions of what size of business could qualify; how many speakers it could play audio on; how many TVs it could display audio/video on Special? No Too many establishments qualify as "businesses" -- statutory limitation Note: This is where the Business Exemption fails. The court did not continue to analyze it "Not conflicting with normal exploitation of the work" Use conflicts w/ exploitation if it enters into economic competition w/ the ways the right holder normally extracts economic value from the right to that work, and deny them of significant or tangible commercial gains
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"Normal exploitation" means something less than full use of an exclusive right (p. 193) Homestyle Exemption Homestyle Use exception does not conflict w/ TRIPS Generally, rights holders do not license "dramatic" works (plays etc) for public communication/transmission (e.g. no Broadway on the radio). So it's not an issue Therefore, the homestyle exception, as limited to works other than nondramatic musical works in its revised form, would probably not rise to the level of economic or practical importance i.e. Homestyle Use exception to exclusive rights does not conflict w/ normal exploitation of works, w/in the meaning of TRIPS Art 13 In short, "normally", rights holders don't go after trhese types of institutions "Not unreasonably prejudice the legitimate interests of the right holder" "Prejudice to the legitimate interests of right holders" reaches an "unreasonable level" if an exception or limitation causes (or has the potential to cause" an unreasonable loss of income to the copyright owner Homestyle Exemption Small shop and restaurants are not the type of establishments where rights holders would attempt to do business by licening. They are small, and playing music is often incidental to their services. i.e. the public performance of e.g., music on the radio, does not increase revenue for the businesses, nor does it impair the copyright owners' ability to earn revenue from the music. Note: Points 2 and 3 overlap Note on the Applicable Law The WTO Panel was concerned with the US Copyright Act's conformance with Articles 11bis(1)(iii) and 11(1)(ii) of the Berne Convention, as they were incorporated into TRIPS Art 9.
Countries' Approaches to Copyright Exceptions

Specific, Enumerated Exceptions vs. General Exceptions Some copyright exceptions set forth in detail the specific activity that is exempted e.g. Argentina Advantages Easy to apply to disputes/legal analysis Disadvantages Not scaleable Most copyright exceptions set forth open-ended standards that require case-by-case analysis e.g. USA fair use standard (4-step test) Advantages
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Harder to apply to disputes/legal analysis Disadvantages More easily scaleable (e.g. to accommodate new technology)
Payment-Based vs. Free Uses Some copyright exceptions require payment to the copyright holders e.g. Germany has some copyright exceptions that require "equitable remuneration" to the author e.g. Some US "compulsory" licenses to the copyright holder, e.g. for the right to "cover" copyright-protected music Most copyright exceptions, amoung countries, follow are free What constitutes "Fair Compensation?" Padawan SL v. Sociedad General de Autores y Editores de Espana (SGAE) (European Ct of Justice 2010) (p. 199) Facts SGAE is a body which is responsible for the collective management of intellectual property rights in Spain. Padawan is a company that sells CD-Rs, CD-RWs, DVD-Rs and MP3 players. SGAE claimed payment from Padawan of the private copying levy provided for in Article 25 of the Spanish IP Law for 2002 to 2004. Padawan refused, saying that the application of that levy to digital media, indiscriminately and regardless of the purpose for which they were intended (private use or other professional or commercial activities), was incompatible with Directive 2001/29. In June 2007 the trial court upheld SGAEs claim and ordered Padawan to pay. Padawan appealed to the Audiencia Provincial de Barcelona Issue Does the indiscriminate application of the private copying levy (specifically w.r.t. digital reproduction equipment, devices, and media clearly intended for uses other than the production of private copies) comply with Directive 2001/29? Held No -- The indiscriminate application of the private copying levy to all types of digital reproduction equipment, devices, and media does NOT comply with Article 5(2)(b) of Directive 2001/29 Rule The concept of "fair compensation," described in the DIrective, is an autonomous concept of EU law, and must be interpreted uniformly throughout the EU Analysis Policy of EU Directive 2001/29 EU Directive 2001/29 is intended to harmonize certain aspects of the law on
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copyright and related rights in the information society, and to ensure that competition in the internal market is not distorted as a result of Member States' different legislation There is a necessary link btwn the application of the private copying levy to the digital reproduction equipment, devices, and media; and their use for private copying A system for financing fair compensation is compatible with the requirements of a 'fair balance' ONLY IF the digital reproduction equipment, devices, and media concerned are liable to be used for private copying, and therefore are likely to cause harm to the author of the protected work. Private Copies do not cause harm to author / "Fair Balance" However, where (as here) the equipment has been made available to natural persons for private purposes, it is unnecessary to show that they have in fact made private copies w/ the help of that equipment (thereby causing harm to the author) The people are righly presumed to be able to benefit fully from the functions associated with that equipment, including making private copies (in this way, the court maintains the "fair balance")
Moral Rights
Purpose
Moral rights are designed to protect the interests of the author in the paternity and integrity of the work (i.e. rights to control the modification, mutilation, destruction of the works)
Berne requires only 2 moral rights: Attribution and Integrity
Art. 6bis Berne explicitly GRANTS moral rights
The author shall have, even after the transfer of her economic rights, the right to: Claim authorship of the work (a.k.a Attribution) Object to any distortion, mutilation, other modification or derogatory action in relation to the work which would be prejudicial to his honor and reputation (a.k.a Integrity)
After the death of the author, the moral rights should last at least until expiration of the economic rights
Exception: if, at the time of ratification/accession to Berne, the country does not provide for protection
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after death, the countries MAY provide that some of the rights may cease after death
The means of redress shall left to the legislation of the country where protection is claimed
Art. 9 TRIPS specifically LEAVES OUT moral rights

"Members shall comply with Articles 1 through 21 of Berne" (which should include Art 6bis for moral rights... BUT
... Members shall not have rights or obligations under this agreement in respect of the rights conferred under Article 6bis of ... [Berne] or of the rights derived therefrom
Moral Rights and the Civil Law Countries

Berne Art 6bis only guarantees 2 moral rights: paternity and integrity In Civil Law countries, "moral right" also covers the divulgation and the right to repent or withdraw Two Theories of Moral Rights Dualist Theory Moral rights are treated separate from, and prior to, economic rights. Thus, moral rights must be treated under different legal rules France follows this system Monist Theory Moral rights and copyrights must be treated under a single set of legal rules Germany follows thsi system The Moral Rights Paternity Right (p. 218)
Paternity: right to be identified as author this must be asserted by authors (see Berne Art 6bis(1), casebook p. 214) Author can claim recognition of authorship by 3rd parties Negatively In a defensive way -- to prohibit 3rd party claims of authorship Positively To authorize how a work should bear the author's designation, and what designation should be used (e.g. real name, pseudonym) Even with a pseudonym, the author can disclose his real name, and claim paternity of the work Transfer/Waiver Some countries do not allow rt of paternity to be transferred in any case
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e.g. France Others allow a sliding scale
Integrity right
Integrity: Author's right to object to distortion, mutilation, or other modifications of the author's work (see Berne Art 6bis(2), casebook p. 214) Some countries do not allow any modification e.g. France Others allow some (w/in acceptable, reasonable limits -- determined by jurisdiction) Transfer/Waiver Some countries strictly stress inalienability of this right Others allow author to contract away, or to waive, integrity rights Divulgation right (a.k.a. right of disclosure) Right to be the first person to "disclose" or publish the work Right to repent or withdraw "Right of access to the sole or rare copy in another person's possession" Right to Prevent Destruction Art 6bis Berns does not discuss prohibition of destruction Presumably, each country may decide for itself whether or not to grant authors the right to prohibit destruction Transferability of Moral Rights Berne Art 6bis does not address whether rights can be freely transferred. Presumably, each country may decide for itself whether or not to allow authors to transfer their moral rights
Many countries (e.g. France/Germany) treat moral rights as inalienable during life, but transferable by will upon death (Because moral rights belong to the actual author -- the work is an extension of the person. You can't freely transfer 'a part of you' to someone else) Enforcement after death There is no unanimity as to whether pertuity of moral rights exists or should exist (see p. 216)
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In some countries: the legal successors of the author (his family members or other person as determined by laws) clearly have to enforce the moral rights, in "nomine auctoris" (i.e. the name of the author -- the successors must act in the author's interests, not in their own) (e.g. France) This is why the French court allowed Huston's heirs to win
Moral Rights in the United States

The US has resisted any formal recognition of moral rights for authors -- the US obtained the express exclusion of moral rights from incorporation into TRIPS Art 9 The US believes that federal and state laws outside of copyright approximate the moral rights of integrity and attribution required by Berne e.g. Lanham Act for misappropriation of marks; unfair competition; prevention of free riding/passing off; etc But US recognizes moral rights for a limited class of "works of visual art" under the Visual Artists Rights Act (VARA) VARA applies ONLY to a single copy of a "painting, drawing, print, or sculpture," or a "still photographic image produced for exhibition purposes only, or a limited edition of 200 copies or fewer of such works, signed and consecutively numbered by the author VARA does NOT apply to any works made for hire, motion pictures, and many others
Case Law
USA Treatment of Foreign Authors Gilliam v. American Broadcasting Companies, Inc. (2d Cir 1976) (p. 223) Facts MP = Monty Python Scriptwriters' agmt btwn MP & BBC says: Authorship MP = authors of various comedy shows (tv shows) BBC's rights BBC = final authority to make changes. BBC = only make "minor changes" w/o consultation w/ the writers BBC CANNOT to alter the program once it's been recorded Licensing BBC MAY license transmission of the tv programs in any overseas territory Time-Life (TL) got rts to distribute MP shows in US TL's rights Edit programs ONLY FOR "insertion of commercials, applicable censorship or governmental rules/regulations, and the like" ABC + TL
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Agreed to broadcast each MP program "in its entirety"
Issue Violation of integrity right? i.e. could BBC give ABC/TL rights to modify the works (esp when BBC did not itself have those rights)? Held Violation of moral rights -- MP wins injunction Rule
One who obtains the permission to produce a derivative work may not exceed the specific purpose for which permission was granted
Analysis MP = author, BBC = licensee Copyright remains w/ MP (bc MP = original author) Thus, BBC's use of work = limited by scriptwriter's agmt BBC was not entitled to make unilateral changes to the script, and was specifically prohibted from altering the recordings once made Also, regardless of ABC's rights to broadcast an edited program, the cuts made constituted an actionable mutilation of MP's original work Even though work is an authorized derivative work, it can still violate the author's rights in Article 43(a) of Lanham Act discusses "unfair competition" Note: Lanham Act usu. Applies to trademarks, but in this case, Invoked to prevent misrepresentation of an artist's work (unfair competition) Ct held: Lanham act = violated if a representation of a product, although technically true, creates a false impression of the product's origin Can be used even where no registered trademark is concerned Concurrence (in the result, but not in the judgment) No need for additional cause of action beyond copyright infringement Lanham Act does not come into play Does not deal w/ artistic integrity Use contract law If licensee violates contract, then hold breach of contract Notes No Moral Rights in US US does not formally recognize moral rights
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Not in law US even expressly EXCLUDES the incorporation of moral rights provided in Art 6bis of Berne into TRIPS Art 9 Moral Rights equivalents provided by other federal/state laws VARA (Visual Artists Rights Act) Provides moral rts for limited class of "works of visual art" (17 U.S.C. 106A) Sooo why not? (see p. 230 -- Who might be opposed to formally recognizing moral rights?) Who might be opposed to recognizing moral rights? Constitutional concerns Congressional power to enforce 1st Amendment -- freedom of speech Big corporations -- entertainment industry Piecewise moral rights codification allows uncertainty Uncertainty = more power for Corporations
Foreign Treatment of USA Authors Huston v. Socit Turner Entertainment (Cour de Cassation 1991) (p. 214) Facts Huston = director of movie in black & white, made in U.S. Original agmt said: Orig movie studio owns all copyrights to the movie Huston has no claim of authorship or moral rights in the movie Turner Entmt bought the to the movie; made a colorized version Huston's estate objected, and sued to stop the dissemination of the movie in France French ct of appeal rejected Ptf (Huston's heirs) Issue Violation of moral right of integrity? Held Ptf wins -- Distribution in France should be enjoined French Ct of appeals' decision overturned -- case remanded to Ct of Appeal i.e. follow moral right of integrity (by Ct of Cassation (highest ct of France) Rule
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French Copyright Law -- The integrity of a literary or artistic work in France must not be impaired. This applies independently of the state in which the work was first published
Analysis The court of appeals misinterpreted the copyright statute on moral rights The ct of appeal was also wrong in arguing that granting Moral rts law would supplant US law and the disregard of contracts made in the United States Notes: This case took place in 1991, 2 years after US joined Berne. Even so, it appears that France decided, independently, to honor the US author's moral rights because his heirs were acting "in nomine auctoris" (in his interests) French ct does not allow the transfer of moral rights Even if parties contract the moral rights away But the parties (i.e. Huston) contracted away the moral rights in the US So the heirs may continue the moral right?? Huston's estate sued here (i.e. Huston died) France = Dualistic view Moral rts can be enforced after economic rts expire Is this national treatment? Yes -- France's treatment of author is "at least as favorable" as the US (is that the correct way to read this?)
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