DL101-Module2-Copyright PDF

© World Intellectual Property Organization, 2019 1 of 48  Table of Contents Table of Contents............................................................................................................................................

© World Intellectual Property Organization, 2019 1 of 48  Table of Contents Table of Contents............................................................................................................................................................ 2 Module Introduction....................................................................................................................................................... 4 Module Overview and Learning Outcomes............................................................................................................................. 4 Module Structure..................................................................................................................................................................... 5 What is covered by Copyright?............................................................................................................................................... 6 Copyright According to the Berne Convention....................................................................................................................... 7 Knowledge Nugget: What is protected by Copyright laws?................................................................................................... 9 Check Your Learning 1........................................................................................................................................................... 10 Topic 1: Rights Protected by Copyright.......................................................................................................................... 11 Topic Overview...................................................................................................................................................................... 11 What are the types of rights protected by Copyright?......................................................................................................... 12 Check Your Learning 2........................................................................................................................................................... 14 Right of Reproduction............................................................................................................................................................ 15 Rights of Public Performance, Broadcasting and Communication to the Public and Making Available............................. 17 Rights of Translation and Adaptation.................................................................................................................................... 18 Check Your Learning 3........................................................................................................................................................... 19 Topic 2: Acquisition, Transfer & Protection of Copyright................................................................................................ 20 Acquisition of Copyright........................................................................................................................................................ 20 Check Your Learning 4........................................................................................................................................................... 22 Transfer of Copyright............................................................................................................................................................. 23 Knowledge Nugget: Protection of Copyright........................................................................................................................ 25 Check Your Learning 5........................................................................................................................................................... 26 Benefits from Copyright Protection for Developing Countries............................................................................................ 27 Check Your Learning 6........................................................................................................................................................... 28 Topic 3: Limitations and Exceptions to Rights................................................................................................................ 29 Types of Limitations............................................................................................................................................................... 29 Types of Limitations: Free Uses............................................................................................................................................. 30 Types of Limitations: Non-Voluntary Licenses...................................................................................................................... 31 Topic 4: Enforcement of Rights...................................................................................................................................... 32 Driving Factors....................................................................................................................................................................... 32 Enforcement Provisions......................................................................................................................................................... 33 Topic 5: International Agreements Concerning Copyright.............................................................................................. 36 © World Intellectual Property Organization, 2019 2 of 48  Main International Agreements in the Copyright Field........................................................................................................ 36 Check Your Learning 7........................................................................................................................................................... 39 Module Summary.......................................................................................................................................................... 40 Module Quiz.................................................................................................................................................................. 41 Question Set........................................................................................................................................................................... 41 Answer Key................................................................................................................................................................... 44 Check Your Learning.............................................................................................................................................................. 44 Module Quiz........................................................................................................................................................................... 46 Module Resources......................................................................................................................................................... 47 Video Tutorial................................................................................................................................................................ 48 End of Module 2: Copyright........................................................................................................................................... 48 © World Intellectual Property Organization, 2019 3 of 48  Module Introduction Module Overview and Learning Outcomes This module explains the types of things that are protected under the heading of copyright, the rights that a copyright owner has and how they can be used for commercial advantage. Much of the law concerning copyright is similar in all the countries that have signed multilateral conventions and trade agreements. However, for a definitive answer to any copyright question, your own country's laws should be consulted. The module explains the remedies that copyright owners may pursue against any abuse of their rights. Again these remedies are available in most countries but you should consult your national law to be sure of the situation in your country. Developing countries stand to benefit from copyright protection as is also explained. You will see and hear reference to the Berne Convention, the WIPO Copyright Treaty (WCT), The Marrakesh Treaty and the Agreement on Trade Related Aspects of Intellectual Property (TRIPS Agreement) as all three are of relevance to copyright. Indeed they are explained in some detail in this module. © World Intellectual Property Organization, 2019 4 of 48  Module Structure This module is divided into five topics. You are required to complete the topics sequentially in order to best meet the module learning outcomes. © World Intellectual Property Organization, 2019 5 of 48  What is covered by Copyright? As with all fields of intellectual property copyright is concerned with protecting the work of the human intellect. The domain of copyright is the protection of literary and artistic works. These include writings, music, and works of the fine arts, such as paintings and sculptures, and technology-based works such as computer programs and electronic databases. Note that copyright protects works, that is the expression of thoughts, and not ideas. So if you imagine a plot, this, as such, is not protected. For example, a plot consisting of a story about young men and women falling in love despite family and caste obstacles would not be protected. Different writers may build stories based on a similar plot. But when you express it in a synopsis or in, say, a short story, or a play, the expression of the plot in that story will be protected. Hence, for example, Shakespeare’s play Romeo and Juliet would be considered as a creative expression of that plot. Still, other writers may build new stories based on a similar plot. There is no requirement that the literary and artistic work should be good or have artistic merit. It should, however, be original. The exact meaning of this requirement varies from country to country, and it is often determined by case law. In very general terms one may say that in countries belonging to the common law tradition very little is required, other than that the work must not be a copy of another work and that the author should have displayed a minimum amount of skill, labor and judgement in making it. In countries belonging to the civil law tradition, the requirement is often stronger, for example that the work must bear the stamp of the author's personality. A creative effort would be required from the author that may go beyond mere skill, labor or judgement. © World Intellectual Property Organization, 2019 6 of 48  Copyright According to the Berne Convention The Berne Convention (1886), which is the oldest international convention governing copyright, states the following in its Article 2. © World Intellectual Property Organization, 2019 7 of 48 © World Intellectual Property Organization, 2019 8 of 48  Knowledge Nugget: What is protected by Copyright laws? Copyright protects literary and artistic works, as the title of the Berne Convention states. The two concepts need to be taken in a very broad sense. The term literary, for example, does not mean just novels, poems or short stories: it could cover the maintenance manual of a car, or even things that are written but not supposed to be understood by the average human being, such as computer programs. The key to this expression in fact is the word “works”. What we mean by that is that expression, human expression, is the determining factor. So, if I have the idea of painting “sunset over the sea”, anyone else can use the same idea, which is not protected. But when I actually produce my painting of “sunset over the sea” the painting itself is my expression, and that is protected. © World Intellectual Property Organization, 2019 9 of 48  Check Your Learning 1 © World Intellectual Property Organization, 2019 10 of 48  Topic 1: Rights Protected by Copyright Topic Overview Copyright is a branch of intellectual property. The owner of copyright in a protected work may use the work as he or she wishes, and may prevent others from using it without his authorization. Thus, the rights granted under national laws to the owner of copyright in a protected work are normally "exclusive rights": to use the work or to authorize others to use the work, subject to the legally recognized rights and interests of others. The phrase "as she or he wishes" does not, of course, mean that the owner can use it regardless of the legally recognized rights and interests of other members of society. © World Intellectual Property Organization, 2019 11 of 48  What are the types of rights protected by Copyright? There are two types of rights under copyright: economic rights, which allow the owner of rights to derive financial reward from the use of his works by others. They can be transferred or assigned to other owners usually for a sum of money or royalties depending on the proposed usage of the work. However, in many jurisdictions the second type of rights, moral rights, can never be transferred. They always remain with the original author of the work, even if the economic rights are transferred or assigned. Economic rights include the right of reproduction, rights of public performance, broadcasting and Communication to the public and making available and the rights of translation and adaptation. Moral rights include the right of attribution, the right of paternity and the right of integrity. Each of the above economic and moral rights are described in the following sections. © World Intellectual Property Organization, 2019 12 of 48 © World Intellectual Property Organization, 2019 13 of 48  Check Your Learning 2 © World Intellectual Property Organization, 2019 14 of 48  Right of Reproduction Therefore, the right to control the act of reproduction is the legal basis for many forms of exploitation of protected works. Other rights are recognized in national laws in addition to the basic right of reproduction such as the right to authorize distribution, rights of rentals, and right to control Importation. These are described below. © World Intellectual Property Organization, 2019 15 of 48 © World Intellectual Property Organization, 2019 16 of 48  Rights of Public Performance, Broadcasting and Communication to the Public and Making Available On the basis of the right of public performance, the author or other owner of copyright may authorize live performances of a work, such as the presentation of a play in a theater or an orchestra performance of a symphony in a concert hall. Public performance also includes performance by means of recordings; thus, musical works embodied in phonograms are considered “publicly performed” when the phonograms are played over amplification equipment in such places as discotheques, airplanes, and shopping malls. Under the Berne Convention, the right of broadcasting covers the emission by wireless means for members of the public within range of the signal, whose equipment allows reception of sounds or of images and sounds, whether by radio, television, or satellite. When a work is communicated to the public pursuant to the Berne Convention, a signal is diffused by wire or cable, which can be received only by persons who have access to equipment connected to the wire or cable system. The WCT extends the right of communication to the public to cover the ability to authorize the making available to the public of works through on-demand, interactive communication via the Internet. In some national laws making available is named specifically as a separate right, while other countries cover the concept through communication to the public or distribution. Under the Berne Convention, owners of copyright have the exclusive right of authorizing public performance, broadcasting and communication to the public of their works. Under some national laws, the exclusive right of the author or other owner of rights to authorize broadcasting is replaced, in certain circumstances, by a right to equitable remuneration, although such a limitation on the broadcasting right is less and less common. © World Intellectual Property Organization, 2019 17 of 48  Rights of Translation and Adaptation The acts of translating or adapting a work protected by copyright also require the authorization of the owner of rights. For example, by adapting an instructional textbook originally prepared for higher education into an instructional textbook intended for students at a lower level. Translations and adaptations are works protected by copyright. Therefore, in order to reproduce and publish a translation or adaptation, authorization must be obtained from both the owner of the copyright in the original work and the owner of copyright in the translation or adaptation. © World Intellectual Property Organization, 2019 18 of 48  Check Your Learning 3 © World Intellectual Property Organization, 2019 19 of 48  Topic 2: Acquisition, Transfer & Protection of Copyright Acquisition of Copyright You should now be aware of the types of literary and artistic works that are covered by copyright and the types of rights that a copyright owner has, and you may naturally be wondering how the author of such a work obtains copyright for the work. © World Intellectual Property Organization, 2019 20 of 48 © World Intellectual Property Organization, 2019 21 of 48  Check Your Learning 4 © World Intellectual Property Organization, 2019 22 of 48  Transfer of Copyright Many creative works protected by copyright require financial investment and professional skills for their production and further dissemination especially by mass distribution. Activities such as book publishing, and sound recording or film producing, are usually undertaken by specialized business organizations or companies, and not directly by the authors. Usually, authors and creators transfer their rights to these companies by way of contractual agreements, in return for compensation. The compensation may take different forms, such as lump sum payments, or royalties based on a percentage of revenues generated by the work. In some countries, the copyright law provides that moral rights are not transferable, at least during the life of the author, although they may frequently go to heirs upon the death of the original author. © World Intellectual Property Organization, 2019 23 of 48 © World Intellectual Property Organization, 2019 24 of 48  Knowledge Nugget: Protection of Copyright How long does copyright protection last? In principle, as long as the national law says, but the minimum requirement under the Berne Convention is 50 years. The term is calculated from the end of year of the author’s death which is more practical: you don’t have to enquire into the day the author died, you only need to know the year. But there has been a tendency in recent years to prolong that protection at the national level. In the European Union and for countries of the European Economic Area, the term is now 70 years from the end of year in which the author died. This term has been adopted for at least some categories of works by many countries including the Republic of Korea, Nigeria, Oman, the United States, Costa Rica, and Australia. There is thus a definite tendency to prolong protection from 50 to 70 years. Some countries provide for an even longer copyright duration in some cases, including Mexico (life plus 100 years) and Cote d’Ivoire (life plus 99 years). Please note however that there are cases where in the Berne Convention the minimum requirement is less than 50 years postmortem. For example, for photographic works and works of applied art, the minimum term of protection is 25 years after the making of the work. In some cases the TRIPS Agreement and the WCT provide for longer minimum copyright terms than the Berne Convention. © World Intellectual Property Organization, 2019 25 of 48  Check Your Learning 5 © World Intellectual Property Organization, 2019 26 of 48  Benefits from Copyright Protection for Developing Countries What are the benefits from copyright protection for developing countries? There are: All developing countries have very strong artistic communities. There are no people on earth who are not creative, but if there is no copyright protection, the artistic community will not be able to earn money from their efforts, let alone make a living from their art. Nowadays literary and artistic works have become a very broad concept, including of course what was traditionally viewed as the cultural part, the artistic community, but also the information technology industry, the video gaming industry, or more specifically the computer programming industry. A large amount of money might be invested in making a computer program, a film or a television program. But if as soon as one copy is out on the market, everybody can copy it, then the earning potential is gone and there will be no incentive to create or further invest. Creativity will, hence, be discouraged instead of being stimulated and national cultural output would be adversely affected. A response to this could be to say that local works should be protected, while no protection should be afforded to foreign works, because then money would go out of the country, which developing countries can ill afford. This would, however, be a somewhat shortsighted view. There are some solid arguments that could be stated in favor of international protection of works. 1. First, if protection were to be limited only to national works, foreign works would be allowed into the local market without any copyright cost. They would be sold at cut prices. Of course, consumers may benefit from such low prices. But this practice could detrimentally affect the sale of locally made products, which would have to compete with works of foreign origin distributed at a more attractive price. The dangerous result is that consumers might turn their backs on nationally made products and buy foreign but less expensive products. National culture, whether it is the music, or book or other industry may, therefore, suffer. 2. Second, one cannot emphasize enough the potential gains that local artists and creators, whether in developing countries or not, may derive from protection of their works abroad. Local markets may be limited and there is a need to derive revenues from cultural products that are exported and marketed outside. Nowadays, and thanks to modern means of communications, works are listened to, or read, or seen, not only in the local community or country in which they have been created, but also further afield. So much so, that in some instances, the income generated from the exploitation of a work on foreign soil may exceed substantially the revenues that are reaped from its national exploitation. Such a phenomenon can be observed frequently in the areas of music, TV programs, software, movies, books, etc. Protection abroad, in foreign markets, is, thus, extremely important for authors and creators. People concerned with developing copyright policy should be aware that an artist or a creator from a particular country will not, in all likelihood, enjoy protection abroad, if foreign authors and artists are not also themselves granted protection in his or her country. © World Intellectual Property Organization, 2019 27 of 48  Check Your Learning 6 © World Intellectual Property Organization, 2019 28 of 48  Topic 3: Limitations and Exceptions to Rights Types of Limitations Example: A work of choreography would only be protected once the movements were written down in dance notation or recorded on videotape. There are two basic types of limitations in this category: Free uses and non-voluntary licenses. © World Intellectual Property Organization, 2019 29 of 48  Types of Limitations: Free Uses In respect of the right of reproduction, the Berne Convention contains a general rule, rather than explicit detailed limitations: Article 9(2) provides that member States may provide for free reproduction in "certain special cases" where the acts do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author. This is known as the “three-step test.” As noted previously, numerous laws contain provisions allowing reproduction of a work exclusively for the personal, private and non-commercial use of individuals. However, the ease and quality of this individual copying, made possible by audiotaping or videotaping and even more recent technological improvements allowing digital copies of the same quality as the original, has led some countries to narrow the scope of such provisions or to consider doing so. Certain legal systems allow copying but incorporate a mechanism for payment to owners of rights for the prejudice to their economic interests, through a fee imposed on sales of blank media and / or recording devices. © World Intellectual Property Organization, 2019 30 of 48  Types of Limitations: Non-Voluntary Licenses Non-voluntary licenses allow use of works in certain circumstances without the authorization of the owner of rights, but require, by operation of law, that compensation be paid in respect of the use. Such licenses are called "non-voluntary" because they are authorized by the law and do not result from the exercise of the copyright owner's exclusive right to authorize particular acts. Non-voluntary licenses were usually created in circumstances where a new technology for the dissemination of works to the public had emerged, and where the national legislature feared that owners of rights would prevent the development of the new technology by refusing to authorize use of works. This was true in the Berne Convention, which recognized two forms of non-voluntary licenses: for the mechanical reproduction of musical works and for broadcasting. However, that the justification for non-voluntary licenses is increasingly called into question, on the grounds that effective alternatives now exist for making works available to the public based on authorizations given by the owners of rights, including in the form of collective administration of rights. The newest multilateral copyright treaty is the Marrakesh Treaty, the text of which was adopted in 2013. Select the Marrakesh Treaty box to learn more about it and its approach to exceptions and limitations. © World Intellectual Property Organization, 2019 31 of 48  Topic 4: Enforcement of Rights Driving Factors The Berne Convention and the WIPO Copyright Treaty contain few provisions concerning enforcement of rights, but the evolution of new national and international enforcement standards has been dramatic in recent years, due to two principal factors. This makes it possible to transmit and make perfect copies of any "information" existing in digital form, including works protected by copyright, anywhere in the world. Simply put, trade in products embodying intellectual property rights is now a booming, worldwide business. The TRIPS Agreement, which contains detailed provisions on the enforcement of rights, is ample evidence of this link between intellectual property and trade. © World Intellectual Property Organization, 2019 32 of 48  Enforcement Provisions The information presented on this screen identifies and summarizes some of the enforcement provisions found in recent national legislation, which may be divided into the following categories: conservatory or provisional measures; civil remedies; criminal sanctions; measures to be taken at the border; and measures, remedies and sanctions against abuses in respect of technical devices. © World Intellectual Property Organization, 2019 33 of 48 © World Intellectual Property Organization, 2019 34 of 48 © World Intellectual Property Organization, 2019 35 of 48  Topic 5: International Agreements Concerning Copyright Main International Agreements in the Copyright Field What are two of the main international conventions or treaties that govern the area of copyright? The Berne Convention for the Protection of Literary and Artistic Works and the TRIPS agreement are the two main international conventions or treaties that govern the area of copyright. In this slide you will learn more about that and about the WIPO Copyright Treaty and the Marrakesh Treaty. © World Intellectual Property Organization, 2019 36 of 48 © World Intellectual Property Organization, 2019 37 of 48 © World Intellectual Property Organization, 2019 38 of 48  Check Your Learning 7 © World Intellectual Property Organization, 2019 39 of 48  Module Summary This module has addressed the general structure of copyright law and has provided an overview of the 'literary and artistic works' protected by copyright; These include writings, music, and works of the fine arts, such as paintings and sculptures, and technology-based works such as computer programs and electronic databases. E module then went on to explain the rights granted to the owner of copyright. There are two types of rights under copyright: economic rights, which allow the owner of rights to derive financial reward from the use of his works by others, and moral rights, which allow the author to take certain actions to preserve the personal link between himself and the work Copyright ownership on its own brings no reward to the owner. It is only though the use of this right that money can be made. This can be done for example by licensing reproduction or transferring the copyright for a financial reward. The module explained that the duration of protection is as long as the national law says, but the minimum requirement under the Berne Convention is for most works 50 years. The term is calculated from the end of year of the author’s death. But there has been a tendency in recent years to prolong that protection at the national level. There are cases where in the Berne Convention the minimum requirement is less than 50 years postmortem. For example, for photographic works and works of applied art, the minimum term of protection is 25 years after the making of the work. In some cases, the TRIPS Agreement and the WCT provide for longer minimum copyright terms than the Berne Convention. As part of the balance between the rights IP rights holders and benefit to a wider society there are certain limitations to the holder’s rights. There are two basic types of limitations: Free uses, which are acts of exploitation of works that may be carried out without authorization and without an obligation to compensate the owner of rights for the use and; Non-voluntary licenses, under which the acts of exploitation may be carried out without authorization, but with the obligation to compensate the owner of rights. The Berne Convention and the WCT contain few provisions concerning enforcement of rights, but the evolution of new national and international enforcement standards has been dramatic in recent years. These include: Conservatory or provisional measures Civil remedies Criminal sanctions Criminal sanctions Measures at the border The main international agreements concerning copyright mentioned in the module are the Berne Convention, WIPO Copyright Treaty (WCT), TRIPs and the Marrakesh Treaty. The module argued that there is a link between copyright protection and cultural and economic benefits, including the development of local artists and creators. In the next module you will study a closely related IP area called Related Rights these are given to performers and other that are involved in bringing copyrighted works to the public. © World Intellectual Property Organization, 2019 40 of 48  Module Quiz Question Set © World Intellectual Property Organization, 2019 41 of 48 © World Intellectual Property Organization, 2019 42 of 48 © World Intellectual Property Organization, 2019 43 of 48  Answer Key Check Your Learning ID No Check Your Learning Questions and Model Answers Question: What important intellectual work, which was mentioned by the speaker, was not included in the list of "literary and artistic works", of the Berne Convention? 1 Question: Which two of the following statements concerning the rights protected by copyright are FALSE? 2 Question: Suppose you have become a pre-eminent artist by virtue of an internationally acclaimed piece of art known as a tribute to the conservation of nature and later you find that it is being used, in a denigrating fashion without your permission, by a political group generally supporting genetically modified organisms. What could you do? 3 © World Intellectual Property Organization, 2019 44 of 48  4 Question: Imagine that you are a national of one of the countries that has signed the Berne Convention and you create a literary work. What steps must you take to get a copyright on your work? Question: What is the minimum duration of copyright protection under the Berne Convention? What trend has been observed internationally with respect to copyright duration? 5 Question: How would you explain to a trainer that produces a course using a PowerPoint presentation that there would be better off if the national copyright law meant they had to pay for the PowerPoint software? 6 Question: What is covered under the ‘WCT’? 7 © World Intellectual Property Organization, 2019 45 of 48  Module Quiz Question Question Correct Answer/s Number 1 Copyright protects only the original idea, not the original expression of b. False that idea. 2 The minimum duration of copyright as specified under the Berne b. 50 years from the end of the Convention is: year in which the author dies. 3 A trademark, which has not been registered, is only covered under c. Moral rights trademark protection if: 4 All of the following are covered by possible limitations or exceptions c. Taking a copy of a visual image from the rights, except which one? from an Internet Website that you want to use within your new commercial Website. 5 Given that an infringer has been selling within your own country a. Seek in civil court an action for (Country A) her domestically-produced illegitimate copies of your economic injury against the Number One selling song, which one of the following four choices would infringer. normally be your first action taken for enforcement of your copyright? 6 Which one of the following does not qualify as a public performance? b. A musical work being played by the composer in front of her family at an all-family gathering of 50 people. 7 You have developed an idea for a new system of financial record- c. A non-profit Internet Website keeping, you can become rich. This idea is so simple, all you have to do is offers free downloads of your to express that idea by writing a book, which protects you through book. copyright. Success comes to you; millions buy and read the book. Then start the problems. From the following list choose which one of the problems is the single infringement you may pursue. 8 A right of distribution is granted under the law of your country. In a a. It is a copy of the book that you second hand bookshop, you find a copy of a novel written by you which signed for an admirer at a is now out of print. In which case can you normally NOT take action promotion arrangement when the against the shop owner for infringing your distribution right? book was published. © World Intellectual Property Organization, 2019 46 of 48  Module Resources Legislative Texts Name Hyperlink Berne Convention for the Protection of Literary and https://www.wipo.int/treaties/en/ip/berne/ Artistic Works Agreement on Trade-Related Aspects of Intellectual https://www.wto.org/english/tratop_e/trips_e/trips_e.h Property Rights (TRIPS) tm WIPO Performances and Phonograms Treaty (WPPT) https://www.wipo.int/treaties/en/ip/wppt/ WIPO Copyright Treaty (WCT) https://www.wipo.int/treaties/en/ip/wct/ Marrakesh Treaty to Facilitate Access to Published https://www.wipo.int/treaties/en/ip/marrakesh/ Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Studies and Guides Name Hyperlink Guide to the Copyright and Related Rights Treaties https://www.wipo.int/edocs/pubdocs/en/copyright/891 Administered by WIPO and Glossary of Copyright and /wipo_pub_891.pdf Related Rights Terms WIPO Scoping Study on Copyright and Related Rights https://www.wipo.int/edocs/mdocs/mdocs/en/cdip_4/cdi and the Public Domain, Séverine Dusollier, 2010. p_4_3_rev_study_inf_1.pdf © World Intellectual Property Organization, 2019 47 of 48  Video Tutorial Copyright Part I: International Treaty Framework and Copyright Part II: Copyright Treaties - Berne Convention, Copyright Concepts WCT, Marrakesh The following video, by Michelle Woods introduces The following video, by Michelle Woods provides an copyright, and the international copyright framework. overview of the following copyright treaties: the Bern Convention, the WIPO Copyright Treaty and the Marrakesh Visually Impaired Persons (VIP) Treaty. https://vimeo.com/user2977389/review/366930679/f3f https://vimeo.com/user2977389/review/366930942/58c e5b0e88 436874e End of Module 2: Copyright © World Intellectual Property Organization, 2019 48 of 48