IP Law Notes PDF

IP law intro lecture What is “Strategic Management of IP”? —Not just LEGAL protection YET protection of valuable intangible assets YET creation of value from intangible and valuable assets —IP: legal tools of ‘exclusion’ and ‘inclusion’ Learning objectives — Awareness that IP law supports the CCSs and cannot be neglected — Constraints and opportunities — Ability to identify legal issues — Capacity to dialogue with lawyers — Ability to integrate legal tools into business strategies Trademark law - class 3 and 4 A trademark is a sign capable of distinguishing goods or services produced or provided by one enterprise from those of other enterprises Conventional TMs: Word ™ Figurative ™ Composite ™ 3D ™ Colour, Smell, Sound ™ examples Harley-the sound Toblerone-the shape Lenux-the penguin symbol Telecom-the orange color Threads-the flowery smell There is a device able to register the chemical structure of a smell Trademarks Exclusive right for an IP (a right to control sth you have created) If i have the right to exclude I can decide whether people can use it or not and ask for a compensation The ways we use of our IP are many more than it was before IP law intro lecture Cultural and creative industries rely on use of content Intellectual property landscape aesthetic creations trade names, marks and signs industrial inventions design rights In fashion industry patents become more and more important (special technologies for fabric for example Intellectual Property Landscape Trade marks signal the origin of products to consumers Designs specify how products look Copyright traditionally relates to artistic creations, such as books, music, paintings, sculptures and films Patents protect technical inventions in all fields of technology Other types of IP rights and IP-related rights - geographical indication is a name or sign used on products which corresponds to a specific geographical location or origin - a sui generis database right recognises the investment that is made in compiling a database (no need for a creative aspect) - trade secrets protect information not generally known to the public, i.e. any confidential business information - Plant variety rights allow you to commercially use a new variety of a plant The notion of public domain does not fall within intellectual property Patent, copyright etc expires. ones IPrs expire, the ip falls into the public domain and become free for use, we should not ask for a permission Some pieces can never be protected, they are born unprotected Ides will never be under copyright What does not fall within Intellectual Property? The notion of public domain 1. Aspects of protected inventions, marks, and creations that IP law does not protect (FAIR USE; EXCEPTIONS and LIMITATIONS) 2. Non-protectable material IDEAS, FACTS, CERTAIN SIGNS/WORDS) IP law intro lecture 3. Inventions, marks, and creations for which IP law protection has expired (OUT-OF-IP WORKS) Idea is in the public domain, but the way we interpret it and express it is protected (essay on the plot of two lovers, who can not be together) Patent - inventions Copyright - creative works Both of them are intellectual rights What is a trademark? 1. Registered intellectual property right (you have to register it, you have copyright just for the fact you have to created it, you do not have to register copyright) 2. over a SIGN (or other elements) it should be clear what is the sign and what exactly can be sold under this sign 3. capable of DISTINGUISHING YOUR GOODS / SERVICES from other manufacturers, producers, sellers, i.e. other 'undertakings' 4. represented in a manner that enables the competent authorities and the public to determine the CLEAR AND PRECISE subject matter of the protection A registered intellectual property right National Intellectual Property Office - UIBM (L'Ufficio italiano brevetti e marchi); INPI (Institut national de la propriété industrielle) or others … European Union Intellectual Property Office - Alicante (Spain) - one registration for 27 Member States Sources of ™ protection EUTM - European Trade Mark Regulation - (EU) 2017 / 1001 - regarding the unitary title of an EU trademark National trademark systems - Directive approximating the laws of the Member States relating to trademarks - (EU) 2015/2436 - national trade mark systems exist in parallel to the EU trademark system Other national laws in the other non-EU countries Trademark Registration Treaty The functions of trademarks - main function IP law intro lecture 4. The functions of trademarks - main function "according to the settled case-law of the Court, the essential function of the trademark is to guarantee the identity of the origin of the marked product to the consumer or end user by enabling him, without any possibility of confusion, to distinguish the product or service from others that have another origin. (Judgment of 29/09/1998, C-39/97, Canon, EU:C: 1998:442, $ 28) If you sell your company you sell your trademark. It always goes with products. This idea of origins is nowadays less strong The functions of trade marks - other functions not only the essential function... but also its other functions, in particular that of guaranteeing the quality of the goods or services in question and those of communication, investment or advertising. (Judgment of 18/06/2009, C-487/07, L'Oréal, EU:C:2009:378, § 58-59; 23/03/2010, C-238/08, Google-Louis Vuitton, EU:C:2010:159) - quality - communication - investment - advertising Trademarks deliver a message. Positioning of brands. Requirements 1. Distinctiveness in relation to goods and services 2. Novelty->is the ™ confusingly similar to an earlier right? 3. Not misleading->when is a ™ deceptive 4. Not contrary to moral and public policy Public policy (jarvex and jarvax) Morality (racism, swearwords) Law (flags, emblems) The ultimate goal: your brand is so commonly used that it becomes the generic word for a product category Proving secondary meaning Direct evidence – Direct consumer testimony – Consumer survey Circumstantial evidence – Exclusivity, length and manner of use – Amount and manner of advertising – Amount of sales and number of customers IP law intro lecture – Established place in the market TMs are confusingly similar when: Or Assessing the likelihood of confusion Similarity of trademark: TMs have to be considered as a whole The «consumer» to take into account is «average» 3 criteria 1) Conceptual similarity 2) Visual similarity 3) Phonetical similarity Similarity of goods: Nature of goods, channel of distribution, Usual origin of goods and usual point of sale IP law intro lecture Duration 10 years, renewable Assessment of well-known TMs depends on: 1. Degree of knowledge and recognition of the brand within the relevant sector 2. Duration, extent and geographical area of any use of the mark 3. Record of successful enforcement of rights 4. Value associated with the mark A powerful tool to protect your business activity You acquire a trademark What is a design right? A registered IP right Limited protection-first 5 years (renewable for 5 times, so 25 years MAX) Protecting the appearance of products European Union Intellectual Property Office– Alicante (Spain)– one registration for 27 Member States What can be registered as a design? The appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colors, shape, texture and/or materials of the product itself and/or its ornamentation’author (creative work)->novelty, new, original Why is copyright granted? In civil law: because the work is an expression of the author’s personality (natural rights) In common law: in order to increase progress and culture (incentives) Who grants copyrights? Each country grants and recognizes copyright protection in its own territory Exceptions and limitations vary from one country to another (use of works such as architecture or sculpture located permanently in public places, aka freedom of panorama) IP law intro lecture Bilateral agreement->Berne convention (the principle of the formal reciprocity-a copyright owner will be treated as if he/she is a national of The EU started to adopt directives for the harmonization of national legislations to ensure the functioning of the internal market and realize the harmonization of main exclusive rights, exceptions and limitations -> it was enacted to adapt copyright legislation to tech developments, especially to the emergence of the digital environment What do we protect under copyright? Text, music lyrics, composition, movies (soundtracks), paintings, design works, photographs, architecture, choreography, plays, drawings, fictional characters, culinary presentations, tattoos, There could be a new form of art that requires attention that could be brought out in front of a court which could be protected under the argument of “as long as it is worth copying it is worth protecting” 5.0 Protective Works 1. Protectable expression (eligible work) 2. Originality Non-protectable ideas as protectable expressions It must be a result of a creative endeavour irrespective of its literary or artistic merit The form of expression must be an original creation of the author But how do we assess originality? ->Different thresholds in different countries ->no legal provision until the Software Directive in 1991 ->Harmonisation of the originality standard in the EU with cases of the EU Court of Justice Author’s own intellectual creation IP law intro lecture Free and Independent choices of the author of the work Labor alone is not enough - need for an intellectual contribution Still, it is not a quality question The work must be perceptibly expressed (in civil law countries) The work must be recorded in writing or otherwise (common law) (eg facial makeup) 1. Copyright registration 2. Moral rights 3. Fixation BENEFICIARIES Who is copyright granted to? - The author (in civil law: natural person) - In common law: natural and legal entities) Dividing line of authorship: - Collective works: separate and independent works (newspaper article) assembled in to a collection (example: a song, a videogame) - Joint work: joint authorship, meaning that each author is the owner of not only the part he or she created but the whole work – Common law countries addressed the challenges posed by collaborative production through the recognition of a work as ‘work for hire’ – Creative contributions are designated in contracts as part of employment and employees' work automatically belong to their employee. – Corporate authorship describes the capacity of a company to claim ownership of collectively produced creative works. INCEPTION 1. A conceives a work in his mind (no protection) 2. A externally expresses work (protection under civil law) or A fixes the work in some material form (protection in common law) 3. A goes to the copyright office or analogue and registers his/her work In civil law countries: registration is never for subsistence of copyright but only for evidence In the US: registration is a pre-requisite to bring copyright infringement Duration General rule: life of author + 70 years Collective works: 70 years after first publication Rights conferred by law What does copyright encompass? IP law intro lecture Economic rights->opportunity to control and participate in the benefits of the use of the works Exclusive rights and rights to fair remuneration; transferable Moral rights-> protection of author’s personality; Not transferable Economic rights: 1. Reproduction - exclusive right of authorizing the reproduction of these works in any manner or form 2. Distribution 3. Communication to the public Third parties can reproduce copyrighted materials for: Private copies, reviews, education ,parodies The problem of digital piracy the low cost of reproduction and distribution; the quality of digital copies (typically identical to the quality of the original work); increased availability of broadband technology; the availability of many new consumer devices that can process and store large amounts of digital data (PCs, laptops, MP3 players, ebook readers, smartphones the ubiquitous availability of source materials; the limited amount of legal alternatives; and the many editing possibilities offered by modern software. Distribution right - the right to control the dissemination of tangible copies Exhaustion of the right: the author’s distribution right is exhausted as regard that particular copy when distributed by the author or with their consent (eg second-hand books) Communication to the public Eg members of the public may access them from a place and at a time individually chosen by them (public reading of a book) Common law Utilitarian and labour theories; © as a market tool; Moral rights could hamper transactions: traditionally, their scope of protection in common-law countries is narrow; Authors are allowed to waive them. Civil law Personhood-right approach: © as an expression of author’s personality; In theory, moral rights are as important as economic rights. They are widely protected; Moral rights are personal rights, authors cannot waive them. IP law intro lecture Paternity right COPYRIGHT BASICS right to have the name on the work or to have the work published anonymously or pseudonymously; right to stop false attribution of the work; very important when all economic rights have been assigned. PLATFORM LAW Example: illegal music streaming, movies, e-books Phase 1-the starting point (the 90s) liability exemption vs e-commerce directive (notice and takedown in the US and EU) Phase 2-the automation of online monitoring -> voluntary filtering Phase 3-algorithmic copyright enforcement Phase 4-the DSA -> horizontal rules for platform liability The issue of platform liability -> users are v difficult to pursue The initial strategy was suing the infringers, users and/or facilitators Safe harbours are…limitations to liability ▷ USA: DMCA (1998), Sec. 512 “Online Copyright Infringement Liability Limitation Act” (OCILLA) limited liability (monetary) ▷ EU: E-Commerce Directive (2000/31/EC), sec. 4 “Liability of intermediary service providers” Internet intermediaries are exempted from (copyright) infringement if they comply with certain condition US: notice & takedown IP law intro lecture CopyrightX, PatentX on YouTube prof. Fischer Phase 2: the automation of online copyright Voluntary adoption of filtering systems Phase 3: 2019 Article 17 of CDSMD Article 17 of the CDSMD Licensing, or Filtering obligation (4, letter b) PLUS, in any event Automated notice and stay down (N&SD) (4, letter c) Very large online platforms’ obligations IP law intro lecture PLUS/PLUS/PLUS: analyse any systemic risk stemming from the use of their platforms and put in place effective content moderation mechanisms to address the identified risks (eg illegal content, privacy violations, etc); provide transparency on the main parameters of the decision-making algorithms used to offer content on their platforms (the rankings mechanism) and the options for the user to modify those parameters; establish a public repository on the online advertisements they served on their platforms in the past year; designate a dedicated compliance officer for DSA obligations; undergo an annual independent audit; provide access to the data necessary to monitor their compliance with the DSA to the competent authority and to some researchers. Related rights related rights- rights accorded to people/legal entities who present creative works to the public but are not considered authors what is protected? performances, sound recordings or phonograms Text fixation of films wireless broadcasting Performers - related right holders. You record my performance and use it? I am still the related right holder. You can not record my performance unless I agree to that. Economic rights: reproduction communication distribution Recording communication right to the public and related rights of the performer. Related right does not involve creativity. It’s about money for my performance. IP law intro lecture No acknowledgement that performances have any originality. Controversial… But the way you sing a song might be different from another singing the same song. Interpretation. During the renaissance performers were entertaining guests and they were paid just for one night. Should performers be granted copyright? Recorder - holds related rights. The one who makes people come to one room, play and sing. DVD recorder - you could record sth on TV Film producers were in horror - thought they lost their right as broadcasting Broadcaster would pay for broadcasting money, but you record and skip AD The business model would collapse Solution - producers of DVD recordings were obliged to pay tax Protection criteria bootlegging - the market of recordings of concerts (nobody was asking to do that, but they did it and sold copies) IP law intro lecture Performers: musicians, dancers, actors, singers Case law reflects what society thinks. For example, installation works at first were not considered as art. But then people start to accept them and the judge too. How long are related rights? German music producers were going to use their related right on bunch of sold classic music recordings. They lobbied that IP law intro lecture Radios have to communicate to collective societies what songs they distribute and pay for it. Fonogram producers they have to authorize the fixation. If they use a third party that fix everything arranged recorded productions: photographic, cinematographic, phonographic IP law intro lecture DJs - they do contribute creatively But hey haven’t been acknowledged anything (they are not that good at law) Labels do not take care of them not to take care about one more sphere Cinematographic production IP law intro lecture civil law: related rights common law: presumption of ownership of economic rights Who are authors of the film? Several of them: director, screenwrighter, sriptwrigter, composer (if the soundtrack is just composed for the film) in some countries also the actors. They sell, legally transfer the rights to a company distributor which actually buys them. All the rights are transferred to a film producer, who in civil law countries gets related rights. It gives you much more freedom. The fact of having many authors or a few authors in film productions, you have to remember emotional rights. If they are not happy how this contribution is being treated (eg film producers cuts sth, or the way they advertise). They can just intervene and say: you know what? You can oppose a film producer decision. You could use a claim for integrity right infringement (moral rights). You can try at least. That’s why it/s important not to have too many authors. Lecture 08.10 Platform law (intermediaries and content regulation) copyright infringing content unlawful content online: racist, incitement to terrorism, violent content, leaked content (in violation of data protection or in violation of rules of confidentiality), commercial content (misleading advertisement, adv for categories of goods that can not be sold, such as weapons) Who is responsible for that content? IP law intro lecture Digital services act - regulate how platforms should behave online Internet users infringe copyright or other content regulation -> the users are liable Platforms are facilitators of these infringements. If there were no platforms, there would be no infringements IP law intro lecture Safe harbours are to prevent piracy, but to enable websites and platforms to carry out their own activities IP law intro lecture if there is a claim, a platform immediately takes down the content copyright owner - sends a notice + proof of ownership copyright X (recorded course, can find it on youtube) Phase II: THE AUTOMATION OF ONLINE COPYRIGHT Monetize content uploaded by users - to share revenues from advertisement If you want to avoid this direct liability, you have to sign a licencing contract an make sure that your license is enforced. You make mandatory all the platform filter existence ARTICLE 17 Online content sharing service providers IP law intro lecture OPEN ISSUES A mix between primary and secondary liability for OCSSPs Notice and stay down Algorithmic copyright enforcement - AI fueled content recognition systems What about permitted uses? case in slides (go through on our own) ISSUE content moderation system if there are AI fueled, there are systems that we can’t really understand how it works, so we have to design thwm to make explainabl MUSIC COPYRIGHT The reason is that each piece of recorded music that has two sets of copyrights: 1. for the musical composition - the arrangement of notes and chords 2. for the sound recording - held by songwriters, composers and lyricists (lasts 70 years after the death of the last surviving author) The legal term for sound recording is phonogram. More precisely, the WIPO Performances and Phonograms Treaty defines a phonogram as a fixation of performance or other sounds or of the representation of sounds, except in the form of a fixation incorporated in an audiovisual work. This basic structure has given rise to 3 core music industries: 1. the recorded music industry (RMI)— focused on recording and distribution of music to consumers; 2. the music licensing industry (MLI)— primarily licensing compositions and arrangements to businesses; 3. the live music industry (LMI)— focused on producing and promoting live entertainment, such as concerts, tours, etc. Digital copyright infringements (often called “digital piracy”) flourish due to: the low cost of reproduction and distribution the quality of digital copies (which is typically identical to the quality of the original work) increased availability of broadband technology the availability of many new consumer devices that can process and store large amounts of digital data (PCs, laptops, MP3 players, ebook readers, smartphones,...). the ubiquitous availability of source materials. the limited amount of legal alternatives. and the many editing possibilities offered by modern softwares. IP law intro lecture Hence, despite the benefits, digital technology has created new copyright issues Users can easily share, modify, and redistribute content outside of the creator’s control. The vast usage, exchange and distribution of digital content have created a new reality for the conflicting interests of the content owner (rightholder) and of the user of the content to meet. Different interests at stake Rightholders want to fully commercially exploit the value of their content, maintain their rights as much as possible, increase infringement detection possibilities, and enhance control over their work through the use of technological measures. Conversely, content users want to freely interact with the digital environment and make a profitable use of the digital content at a minimum cost by exploiting the individual qualities of a digital work. Digital copyright: the basic rules 1. Authors and related rights owners can adopt electronic information which are legally protected. 2. Authors and related rights owners can adopt technological measures of protection which are in turn legally protected. 3. Economic rights of authors and related rights are extended to the Internet realm. Copyright infringement of Electronic Information 1. Electronic information are those metadata: identifying the work; identifying the right owners; conveying terms and conditions of use. 2. Removing (or modifying) electronic information is copyright infringement. 3. Trading content to which electronic information has been removed (or altered) is copyright infringement. GUEST SPEAKER FASHION LAW 12-13/11 Classical trade mark problems in fashion IP law intro lecture Free ride - the advantage is made of the designer reputation -> brand protection -> ™ Protection Fashion philosophy of ™: Identity -> Communication -> Value Letters as TMs Signs consisting of a letter of the alphabet can be registered as valid trademarks, provided that, as such, they are considered of weak distinctive character per se. In other words, “single letters or single numbers are not devoid of any distinctive character. However the distinctive character of single-letter trademarks may generally be more difficult to establish TMs as personal names: Eg Ralph Lauren, Calvin Klein etc What if the designer leaves the company? Register the ™ yourself and then license it to the company (ie you keep the ™ rights and you allow the company to use it through a contract) Wrap-Up Session Intellectual toolkit ▪ Trade marks - signal the origin of products to consumers ▪ Designs - specify how products look. ▪ Copyright - relates to creative works, such as books, music, paintings, etc. What is a trademark? ▪ a registered intellectual property right ▪ 3 elements: 1. over ANY SIGN: words (eg personal names) or designs, letters, numerals, colours, the shape of goods or of the packaging of goods, or sounds… 2. capable of DISTINGUISHING YOUR GOODS/SERVICES (from other manufacturers, producers, sellers). 3. capable of determining the CLEAR AND PRECISE subject matter of the protection. IP law intro lecture ▪ Important rules 1. Always assess the sign in relation to the goods and services. 2. From the point of view of the average consumer. Design Law The three frameworks operating in the EU 1. EU registered design right 2. EU unregistered design right 3. National registered design right ▪ What is a design? ▪ The appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation. ▪ 2 elements 1. Novelty 2. Individual character Whose point of view do we do the analysis from? ▪ The informed user ▪ Duration of design rights ▪ EU registered: 5 years from registration, renewable for max 25 years ▪ EU unregistered: 3 years from disclosure Copyright Law ▪ What is copyright law? ▪ Bundle of rights granted to the author of an original work for a limited period of time. ▪ What does copyright protect? 1. Protectable “expression” (eligible work); 2. Originality; Mock exam *question* Cristiano Flonaldo has been the best-known Spanish soccer player in the world for more than 15 years. His agent notices a TV advertising of a watch using the following claim: "Beta Flonaldo, the watch of champions. " A comic strip that reproduces the silhouette features of Cristiano Flonaldo's typical and famous exaltation (after scoring a goal) also appears in the commercial, and upon research, the agent discovers that Beta has registered the trademark "Cristiano Flonaldo" for watches in 2024. Cristiano Flonaldo asks if Beta has infringed his rights and if so which ones, also taking into account that, by the way, he has never registered "Cristiano Fonaldo" as a trademark 1. Right of Publicity and Personality Rights IP law intro lecture Issue: Beta Flonaldo is leveraging Cristiano Flonaldo’s identity (name, image, and persona) without consent for commercial gain. Analysis: ○ Cristiano Flonaldo, as a globally renowned soccer player, has a right of publicity or personality rights in many jurisdictions. These rights protect a person’s name, likeness, and persona from unauthorized commercial exploitation. ○ The use of "Cristiano Flonaldo" as a trademark and the depiction of his signature goal-scoring exultation in a comic strip could mislead viewers into believing Cristiano endorses the product, thus violating his personality rights. ○ Whether these rights are enforceable depends on the jurisdiction's recognition of personality rights, even without formal registration. 2. Trademark Law Beta’s Trademark Registration: ○ Beta registered "Cristiano Flonaldo" as a trademark for watches. Trademark law generally protects registered marks from unauthorized use by others in the same or similar markets. ○ However, the registration itself may be invalid if done in bad faith (e.g., intending to exploit Cristiano’s fame without permission). Many jurisdictions prohibit registering a mark that exploits a well-known individual’s name or identity without consent. Cristiano’s Lack of Trademark Registration: ○ While Cristiano never registered his name as a trademark, he may still have unregistered trademark rights (common law or otherwise) if he can demonstrate sufficient goodwill and recognition associated with his name. ○ Given his international fame, "Cristiano Flonaldo" likely qualifies as a well-known mark, which is protected under international treaties like the Paris Convention and the TRIPS Agreement, even without registration. 3. Passing Off Issue: The commercial might mislead the public into believing there’s an endorsement or association between Cristiano Flonaldo and Beta watches. Elements of Passing Off (common law jurisdictions): 1. Goodwill: Cristiano Flonaldo has substantial goodwill attached to his name and persona. IP law intro lecture 2. Misrepresentation: The use of his name and likeness in the commercial falsely implies endorsement. 3. Damage: Cristiano’s reputation or potential endorsement opportunities may suffer harm. 4. Copyright (if relevant) Issue: The comic strip depicting his exaltation may involve copyright considerations if the exultation is sufficiently original or artistic. However, copyright typically protects creative expressions, not gestures or poses. 5. Remedies Cristiano could seek: 1. Injunction to stop Beta from using his name and likeness. 2. Damages for unauthorized commercial use of his persona. 3. Invalidation of the trademark on grounds of bad faith or violation of personality rights. Naming rights - if you are famous you are the only person who can register your name, surname or nickname as a trademark Image Rights - unlawful exploitation and misrepresentation IP ToolKit Notes Chapter 1: Copyright Basics Definition and Purpose Copyright is a legal framework granting authors a "bundle of rights" over their creative works, allowing reproduction, distribution, and licensing. It's an automatic right effective upon expression or fixation of a work, requiring no registration in most jurisdictions. Protects the intangible creations of the mind as intellectual property (IP), distinct from physical property. Copyright laws aim to incentivize creativity, secure financial benefits, and safeguard the personality of creators. Scope and Criteria for Protection IP law intro lecture Covers literary, artistic, and derivative works such as books, music, films, software, and architecture. Protection depends on: ○ Expression, not ideas. ○ Originality, requiring creative effort. ○ Fixation, often mandatory in common law systems. Rights Conferred 1. Economic Rights: ○ Reproduction, distribution, communication to the public, and adaptation. ○ Transferable for financial benefit. 2. Moral Rights: ○ Include paternity (authorship attribution), integrity (work's respect), and divulgation (control over disclosure). ○ Non-transferable in civil law systems but waivable in some common law systems. Duration of Protection Typically, the author's life plus 70 years, with variations for anonymous works, collective works, and performers' rights. Territoriality and International Protection National laws govern copyright, but international treaties (e.g., Berne Convention, TRIPS) provide minimum standards. Regional systems, like the EU's directives, harmonize laws across member states. Chapter 2: Trade Marks (TM) Definition and Role A trade mark is a registered IP right protecting signs (e.g., logos, names) distinguishing goods/services of one entity from others. Acts as a badge of origin, quality assurance, and advertising tool. Eligible Signs and Requirements Conventional marks: Words, logos, and 3D shapes. Non-conventional marks: Colors, sounds, and smells. IP law intro lecture Criteria include distinctiveness, novelty, and compliance with public policy/morality. Functions 1. Origin: Identifying the source of goods/services. 2. Quality Assurance: Signaling reliability. 3. Communication/Advertising: Building brand reputation. Duration and Protection Initial protection lasts 10 years, renewable indefinitely. Well-known marks (e.g., Coca-Cola) enjoy extended protection beyond registered classes. Similarity and Confusion Likelihood of confusion arises from similar signs and goods/services, assessed based on: ○ Visual, phonetic, and conceptual similarity. ○ Consumer perception and market context. Chapter 3: Design Rights Definition and Scope Protects the appearance of a product, including lines, shapes, textures, and materials. Can be registered or unregistered, with distinct durations and protections. Eligibility Criteria 1. Novelty: The design must not be identical or closely resemble pre-existing designs. 2. Individual Character: The overall impression should differ significantly from prior designs. Registration and Enforcement Registered Designs: Offer up to 25 years of protection, renewable every five years. Unregistered Designs: Protect designs for three years from first public disclosure, focusing on preventing copying. Overlap with Related Rights IP law intro lecture Designs may coexist with copyright for creative aspects or trademarks for brand identifiers. Related Rights Definition Related rights (or neighboring rights) are rights granted to individuals or entities that contribute to the dissemination of creative works but are not considered the original authors. Examples include performers, producers of phonograms (sound recordings) and films, and broadcasting organizations. These rights complement copyright and aim to reward the roles these contributors play in bringing works to the public. Scope of Protection 1. Performances ○ Protects live and recorded performances by artists (e.g., musicians, actors, dancers). ○ Unauthorized recording of a performance (fixation) infringes on these rights, though imitation does not. 2. Sound Recordings (Phonograms) ○ Encompasses the fixation of music or other sounds. ○ Rights are typically held by producers, who manage and finance the recording process. 3. Cinematographic Works ○ Covers films and audiovisual productions. ○ Rights extend to producers and performers contributing to the work. 4. Broadcasts ○ Includes wireless transmissions, cable retransmissions, and streaming. ○ The rights are held by broadcasters to protect their signals and content. Protection Criteria Unlike copyright, related rights generally do not require originality. Fixation (e.g., recording) often serves as the primary criterion, especially in common law systems. Performances may be protected even without fixation in some civil law jurisdictions. IP law intro lecture Right Holders 1. Performers ○ Individuals performing works, such as actors or musicians. ○ They control the fixation and reproduction of their performances. 2. Phonogram Producers ○ Individuals or entities responsible for producing sound recordings. ○ Hold rights to reproduction, distribution, and communication to the public. 3. Film Producers ○ Those who finance and organize audiovisual productions. ○ Their rights are akin to phonogram producers in civil law jurisdictions. 4. Broadcasters ○ Entities originating transmissions or retransmissions. ○ They hold rights over their broadcast signals. Rights Granted Related rights encompass both exclusive rights and rights to remuneration: 1. Economic Rights ○ Authorization rights: Fixation, reproduction, distribution, and public communication. ○ Examples: Performers can authorize the recording of their performances. Producers can authorize reproductions of their recordings. ○ Remuneration Rights: Compensation for uses such as public performance or broadcasting. 2. Moral Rights (in some jurisdictions) ○ Performers may claim rights to attribution and protection against derogatory alterations. Duration of Protection Generally lasts 50 years, but extended to 70 years in the EU for certain categories: ○ Performances: From fixation or the year of the performance. ○ Phonograms: From fixation or first lawful communication. ○ Films: From fixation or first publication. ○ Broadcasts: From the year following the first transmission. IP law intro lecture Interaction with Copyright Related rights and copyright often coexist: ○ A musical performance might be protected by both the composer's copyright and the performer's related rights. ○ Producers and broadcasters have distinct rights tied to their organizational contributions. Recorded Productions and Stages Recorded Productions refer to creative works fixed in tangible forms (e.g., CDs, films). Three stages of production: 1. Pre-fixation: Selection or creation of content. 2. Fixation: Recording the work onto a medium. 3. Post-fixation: Creating physical or digital copies for dissemination. Summary of "Copyright Essentials" 1. Understanding Copyright Definition Copyright is an intellectual property right (IPR) that provides authors, artists, and creators protection over their literary, artistic, and scientific works. It serves as both recognition and potential economic reward for creators, encouraging cultural and creative endeavors. Scope of Protection Protected works include: ○ Literary works: Novels, poems, plays, and articles. ○ Software and databases. ○ Audiovisual works: Films, choreography, and music. ○ Artistic creations: Paintings, photographs, sculptures. ○ Functional and technical designs: Architecture, plans, and maps. International and Regional Framework Copyright is automatic in the EU and most Berne Convention signatory countries. No formal registration is required, though optional deposits can prove useful in disputes. IP law intro lecture Principles of the Berne Convention: ○ National Treatment: Equal protection across member states. ○ Automatic Protection: Without formalities. ○ Independence: Protection regardless of status in the work's country of origin. Types of Rights 1. Economic Rights: Allow financial benefit through: ○ Reproduction, distribution, and public communication. ○ Public performance and creating derivative works. 2. Moral Rights: Non-economic and non-transferable (in most jurisdictions), protecting: ○ Authorship: Right to attribution. ○ Integrity: Prevent deformation/mutilation harming the creator's honor. Duration of Protection Economic rights last: ○ Life of the author + 70 years (EU). ○ 70 years after publication for anonymous or pseudonymous works. ○ Audiovisual works: 70 years from the death of key contributors (e.g., principal director, screenplay writer). Moral rights may last indefinitely in some jurisdictions. 2. Neighbouring or Related Rights Definition and Scope Protects individuals/entities who disseminate creative works but are not the original authors, such as performers, producers, and broadcasters. Internationally governed by the Rome Convention, these rights are typically shorter in duration (EU: 50-70 years) and do not always require originality. Examples of related rights: ○ Performers: Rights over recordings of live performances. ○ Producers: Control over phonograms or audiovisual fixations. ○ Broadcasters: Protection of transmitted signals. 3. Copyright and SMEs Role of Copyright in Business IP law intro lecture SMEs can be copyright owners (e.g., corporate brochures, videos) or users (e.g., third-party materials for marketing). Key activities include: ○ Licensing: Granting permission to use works under defined terms (e.g., territory, time). ○ Assignment: Permanent transfer of copyright ownership, such as authors selling rights to publishers. Internet Use of Copyrighted Works Simply accessing or downloading content from the internet can infringe copyright if done without proper authorization. Linking to infringing content may also constitute copyright infringement in certain cases. 4. Copyright Infringement Definition Using copyrighted material without permission constitutes infringement. Remedies include: ○ Cease-and-desist letters: Initial notification to stop infringement. ○ Injunctions: Court orders prohibiting use. ○ Damages: Financial compensation for losses. Copyright Exceptions EU Member States may allow exceptions for specific uses, such as: ○ Private copying, library use, or ephemeral recordings. ○ Educational purposes, news reporting, and quotations. ○ Caricature, parody, and research. 5. Works in the Public Domain Definition Once copyright protection expires, works enter the public domain, becoming freely usable without requiring permission. Caution: ○ New reproductions or adaptations of public domain works may create new copyrights. ○ Photographs of public domain artworks may still be copyrighted. IP law intro lecture Conclusions and Best Practices for Businesses 1. Identify and manage copyright: Determine ownership of all business-related works. 2. Secure permissions: Ensure proper licensing or assignments for third-party materials. 3. Develop strategies: Establish protocols for infringement monitoring and rights management. 4. Stay informed: Train staff on copyright obligations and keep up-to-date with national regulations. Trademark Basics (Reading summary) Definition A trademark is any word, name, symbol, design, or combination thereof that identifies and distinguishes the goods or services of one party from others. Service marks function similarly but specifically distinguish services. Examples include logos (e.g., Nike Swoosh), slogans (e.g., The Ultimate Driving Machine), and even non-traditional marks like sounds, colors, and shapes. Types of Trademarks 1. Collective Marks: Indicate membership in a group (e.g., AAA for the American Automobile Association). 2. Certification Marks: Certify that products meet specific standards (e.g., CE for European conformity). Functions of a Trademark Source Indicator: Helps consumers identify the origin of goods or services. Quality Assurance: Signifies consistency in product or service quality. Legal Protection: Ensures the trademark owner benefits from their reputation and goodwill, preventing imitators from capitalizing on their success. Trademark Distinctiveness Trademarks are categorized based on their distinctiveness: IP law intro lecture 1. Fanciful/Coined Marks: Invented terms with no prior meaning (e.g., Kodak). 2. Arbitrary Marks: Common words unrelated to the goods or services (e.g., Apple for computers). 3. Suggestive Marks: Imply qualities or features (e.g., Airbus). 4. Descriptive Marks: Directly describe goods or services; require secondary meaning to be protected (e.g., Rich 'N Chips for cookies). 5. Generic Terms: Cannot be trademarks (e.g., "lawn mower"). Selecting and Registering a Trademark Choosing a Trademark Strong marks are distinctive and unrelated to the goods or services they represent. Conducting a trademark search is critical to avoid infringing on existing marks. Establishing Rights Rights are established through: ○ Use: Common law systems (e.g., U.S., UK) grant limited rights based on use. ○ Registration: Provides broader, nationwide protection in many countries. Registration Process Submit an application with: ○ Mark details (word, logo, etc.). ○ List of goods/services. ○ Filing fee. After examination for compliance and conflicts, marks are published for opposition. Registrations are renewable indefinitely, provided marks are in continuous use. Maintaining and Protecting Trademarks Proper Usage Use trademarks as adjectives, not nouns (e.g., Kleenex tissues). Avoid misuse that could lead to genericization (e.g., "escalator"). IP law intro lecture Abandonment Rights can be lost through non-use or improper licensing (e.g., "naked licensing"). International Protection Protection is territorial, but treaties like the Madrid Protocol allow single applications to cover multiple countries. Regional systems (e.g., EU's Community Trade Mark) simplify registration across member states. Comparison with Other IP Patents: Protect inventions; require registration; limited to 20 years. Copyrights: Protect original works of expression; arise automatically; last the author’s life + 70 years (EU). Trademarks: Protect source identifiers; can last indefinitely with proper use and renewal. Conclusion Trademarks are vital assets for businesses, safeguarding brand identity and ensuring market trust. Registration and diligent management are essential to maximize their value and prevent legal issues. For further guidance, consult resources like the International Trademark Association (INTA) or legal professionals specializing in trademark law. CREATIVE INDUSTRIES NOTES 1. Key Elements of Music Copyright Dual Copyrights in Music: 1. Musical Composition Copyright: Covers the arrangement of notes, melodies, and chords. Owned by songwriters, lyricists, and composers, managed by music publishers. Duration: 70 years post the last surviving author's death. 2. Sound Recording Copyright: Covers the specific recording (phonogram) of a musical work. Duration: Generally 50 years but IP law intro lecture extends to 70 years under specific conditions (e.g., public publication or availability). Phonogram Producers: Entities or individuals responsible for the first fixation of a performance or sound. They often transfer rights to record companies under contractual agreements. Related Rights: Include performers' and producers' rights, often managed via collective societies to collect and distribute royalties. 2. Digital Transformation and Challenges Role of Digital Technology: ○ Enables high data compression, fast transmission, and integration of content. ○ Expands digital content distribution through new platforms (e.g., wireless internet, eBooks, mobile apps). ○ Challenges traditional methods of music distribution (e.g., physical formats like CDs). Impact on Music Industry: ○ Disruption by platforms like Napster, which facilitated music sharing without proper rights holder compensation. ○ Decline in physical music distribution; major music companies now focus on redefining themselves for the digital era. Challenges with Digital Copyright: ○ Issues such as ease of reproduction, high-quality digital copies, and limited legal alternatives drive piracy. ○ Conflicting interests between rightholders (seeking control and exploitation of rights) and users (seeking low-cost, flexible access). 3. Digital Copyright and Legislative Responses WIPO Treaties (1996): Introduced foundational rules for copyright in the digital age. EU InfoSoc Directive (2001): Harmonized national copyright laws, addressed digital reproduction rights, and introduced exceptions for transient or incidental acts in lawful transmission processes. Digital Millennium Copyright Act (DMCA, 1998): ○ Strengthened protections against unauthorized access and prohibited circumvention of technological measures. Technological Protection Measures (TPMs): ○ Designed to restrict unauthorized acts using security technologies. IP law intro lecture ○ Circumvention and related activities (e.g., manufacturing circumvention devices) are prohibited. 4. Economic Rights Reproduction Right: ○ Covers direct, indirect, temporary, or permanent reproductions. ○ Includes storage and digitization of works as allowed by agreements like WCT. Judicial Interpretations: ○ Infopaq Case: Determined that even partial reproductions (e.g., 11-word extracts) can constitute copyright infringement if they express the author’s intellectual creation. ○ SCF v. Del Corso Case: Established limits on "communication to the public," exempting background music in private spaces from certain royalty payments. Reproduction Right (Article 2 of the Directive): Covers all acts of reproduction, whether: ○ Direct or indirect: Includes copies made via intermediaries (e.g., recordings or fixations communicated to the public). ○ Temporary or permanent: Addresses transient copies made during digital transmissions. ○ By any means and in any form: Encompasses reproductions across all formats and channels (e.g., digital or physical). ○ In whole or in part: Even reproductions of small excerpts, if original enough, may infringe copyright. SCF v. Del Corso Case: Context: A dentist played background music for patients in his private practice. SCF, a collective society, sought royalties, arguing this constituted "communication to the public." Court Ruling: ○ Playing music in this context did not qualify as "communication to the public" under Article 8(2) of Directive 92/100. ○ The activity was free of charge and incidental to the dentist’s practice, benefiting patients passively without their active choice. Outcome: The dentist was not liable for royalty payments, highlighting limitations in the scope of public communication rights. The exceptions ensure that users can engage with digital content (e.g., streaming or viewing web IP law intro lecture pages) without being subjected to infringement claims for technical, temporary acts of reproduction. 1. Trademark (TM) Issues in Fashion Classical Problems: ○ Counterfeiting: Imitating items to evoke the original brand (e.g., "Adidas" vs. "Abibas"), exploiting the brand's reputation. ○ Free Riding: Leveraging a well-known brand's image without proper authorization to benefit economically. Philosophy of Trademarks in Fashion: ○ Identity: Brands symbolize distinct identities. ○ Communication: TMs convey values and messages to consumers. ○ Value: They are intangible assets contributing to the brand's worth. Single-Letter Trademarks: ○ Single letters or numbers can be trademarks but often lack strong distinctive character unless uniquely presented (e.g., "R vs. R" case, EUIPO Opposition Decision B 2376641). Influencers: ○ The rising role of influencers complicates trademark use and brand association in marketing campaigns. 2. TMs as Personal Names Challenges: ○ Designers like Ralph Lauren and Calvin Klein often use their names as trademarks. ○ If a designer departs from their brand/company, they may face restrictions on using their own name if trademark rights are retained by the company. Advice for Designers: ○ Designers should register trademarks personally and license them to companies to retain control over their names. Legal Basis: ○ Article 14(1), EU Regulation 2017/1001: Prevents TM proprietors from prohibiting the use of natural person names in trade unless it violates earlier rights. ○ Articles 60(2) and 60(3): Allow invalidation of a trademark if it infringes prior rights, including personal names under EU or national law. 3. Copyright Protection in Fashion IP law intro lecture Originality Standard: ○ Defined as "the author's own intellectual creation" (Infopaq, 2009). ○ Must involve: Free and creative choices (FAPL, 2011). A personal touch from the author (Painer, 2013). Idea vs. Expression Dichotomy: ○ Copyright protects the expression (e.g., a design sketch), not the underlying idea (e.g., the concept of a dress). Case Study: Cofemel v. G-Star Raw (C-683/17): ○ Dispute: Cofemel allegedly copied G-Star Raw's t-shirt and jeans designs. ○ Defense: Claimed G-Star's designs were not artistic enough for copyright protection. ○ CJEU Ruling: Defined "work" as an autonomous EU law concept, requiring: 1. Originality: The author’s intellectual creation. 2. Precise and objective form: Avoids subjective interpretations. Artistic or aesthetic value is irrelevant; copyright depends on meeting the originality and objective form criteria. 4. Positional Trademarks Defined as trademarks related to the application of figurative or three-dimensional elements to a product's surface. Governed by the same articles under EU Regulation 2017/1001 as traditional trademarks. 5. Copyright Disputes in Fashion Case Study: KIKO vs. Wycon (1543/18): ○ KIKO accused Wycon of copying: Shop assistant uniforms. Website design. Concept store layouts. ○ Milan Court of Appeal Ruling: KIKO's store design was sufficiently original to be protected under copyright law. The court highlighted the creative coordination of colors, shapes, and lighting, which were not dictated by technical necessity. IP law intro lecture 1. Related Rights in the Audiovisual Sector Durations of Related Rights: ○ Performers: Rights last 50 years (70 in the EU) starting from: The year of performance fixation or live performance. ○ Phonogram Producers: 50 years (70 in the EU) from: The year of fixation or the first lawful communication/publication of the phonogram. ○ Film Producers: Similar timeline to phonogram producers. ○ Broadcasters: Rights last 50 years from the year following the first transmission. Economic Rights of Film Producers: ○ Civil Law Systems: Producers hold rights akin to phonogram producers. ○ Common Law Systems: Producers own authors’ economic rights via explicit or implicit transfer agreements. 2. Authors of Films Authorship Depends on Jurisdiction: ○ Civil Law Countries: Recognize multiple authors, such as: Scriptwriter. Scenario author. Music composer. Director. ○ UK (Common Law): The producer and principal director are joint authors under Section 9(2)(ab) of the CDPA. They exercise both creative and financial control over the film, while others contribute as employees. 3. Recorded Productions Definition: Creative works (still/moving images, sounds) fixed on a carrier. Main Categories: ○ Photographic. ○ Phonographic. ○ Cinematographic. Stages: ○ Pre-Fixation: Choosing/creating a subject. ○ Fixation: Recording the work. IP law intro lecture ○ Post-Fixation: Producing tangible manifestations (e.g., phonograms, films). Rights on Recorded Productions: ○ Creative Contributions: Protected by copyright. ○ Organizational Contributions: Protected by related rights. ○ Overlap: Final products may involve both copyright and related rights. 4. Role of Production Companies Typically hold all rights in a film and are responsible for: ○ Licensing. ○ Exploitation during distribution and exhibition. Development Phase: Involves clearing IP rights for: ○ Screenplays. ○ Artwork. ○ Trademarks within the film. ○ Music and depictions of personalities. ○ Adaptations (e.g., "inspired by a true story"). 5. Distribution and Exhibition Distribution Agreements: ○ Define terms between producers and distributors for commercial exploitation. ○ Cover: Primary Rights: Cinema. Secondary/Ancillary Rights: Video/DVD, pay-TV, free TV. ○ No standard deal; terms vary. Producer Strategy: ○ Producers often aim to retain minor rights that distributors lack expertise in exploiting (e.g., merchandising, streaming). 6. Additional IP-Related Areas Merchandising: ○ Involves copyright, trademark, and design laws. ○ Extends brand recognition via licensed products. Product Placement: IP law intro lecture ○ A critical area for revenue generation, regulated by various IP frameworks. Artificial Intelligence and Creativity Main Issues Explored: ○ Who is the author of AI-generated works? ○ Can AI-generated works qualify as original under copyright laws? Authorship Challenges 1. Designation Issue: ○ Can a non-human entity be recognized as an author? ○ Copyright law traditionally assumes human authorship, rooted in theories like: Utilitarianism: Creativity is incentivized for societal benefit. Locke’s Labor Theory: Ownership arises from human effort. Personality Rights: Creation reflects an individual’s personality. 2. Originality Issue: ○ Originality is defined as “the author’s own intellectual creation.” ○ This standard raises questions about whether AI-generated outputs, lacking personal intellectual contribution, meet this criterion. Case Study: Naruto v. Slater A U.S. court ruled that a monkey’s selfie couldn’t be copyrighted, as the law requires human authorship. Similar principles apply to AI; works created without human intervention are deemed public domain. Practical Problems with AI-Generated Works Public Domain Issues: ○ Lack of copyright can demotivate creators and programmers. ○ However, society benefits from freer access to such works. Potential Authorship Claims: ○ Programmer: They design the system enabling AI creativity. ○ User: They initiate the creative process. IP law intro lecture ○ Joint Authorship: Rare, as programmers and users often lack coordinated intent. Summary AI-generated works challenge the foundational principles of copyright law in the EU and U.S. As copyright relies on human-centric models, these works may default to the public domain, creating ambiguities and economic implications. Universal Music Group Overview Structure: Universal Music Group (UMG) is the leading global music company with subsidiaries such as Bravado (#1 in merchandising) and UMPG (top publishing company). Represents over 5000 artists across diverse genres, including pop, rock, jazz, and classical. Music Evolution and Digital Disruption Technological Drivers: ○ Streaming platforms, bundling with telcos, and devices like smart speakers have transformed how music is accessed and consumed. ○ Digitalization created new revenue streams, jobs, and organizational structures. Streaming Impact: ○ Streaming services now dominate the music business. ○ Disruptions include shifts in market share, playlist curation, and in-car streaming integration. Emerging Challenges NFTs and Copyright: ○ Non-fungible tokens (NFTs) often involve unauthorized use of copyrighted material, creating liability risks for both creators and buyers. ○ Highlights the need for clarity in copyright enforcement and licensing. AI and Music: IP law intro lecture ○ AI technologies challenge traditional copyright principles, especially around content ownership and licensing. ○ Key concerns: exploitation of creators' works without compensation and the necessity of maintaining transparency and reliability in AI systems. Key Takeaways The music industry must adapt to technological advancements while defending intellectual property. Legal frameworks need to prioritize creators' rights and ensure fair compensation, particularly in the face of disruptive technologies like AI and blockchain. Defending Creativity: Tackling the Value Gap The "value gap" highlights a significant challenge in the music industry caused by the discrepancy between the value digital platforms derive from music content and the compensation provided to artists, songwriters, and rights holders. What is the Value Gap? Definition: The "value gap" refers to the mismatch between revenues generated by digital platforms—especially those allowing user-generated content, like YouTube—and the money returned to the music industry. Statistics Highlighting the Issue (Pre-2019): ○ YouTube had over 800 million monthly music video viewers. ○ This number was 10 times greater than paying subscribers for music streaming services, demonstrating a monetization imbalance. Causes of the Value Gap 1. Inconsistent Online Liability Laws: ○ Some platforms claim they are not responsible for the content they distribute, exploiting legal loopholes to avoid paying music licensing fees. 2. Unfair Market Dynamics: ○ Platforms like YouTube leverage their scale and ad-supported models to negotiate lower licensing fees than subscription-based platforms. 3. Ineffective Enforcement: IP law intro lecture ○ The reliance on "notice-and-takedown" systems makes copyright enforcement reactive rather than preventative, allowing unlicensed use to proliferate. Efforts to Address the Value Gap 1. Legislative Measures: ○ EU Copyright Directive (2019): Introduced to harmonize copyright enforcement across EU member states. Article 13 (now Article 17) specifically mandates digital platforms to: Implement "effective content recognition systems" to block unauthorized copyrighted material. Take proactive steps to secure licenses for distributed content. This legislation seeks to balance interests among users, creators, and platforms while ensuring fair compensation for rights holders. 2. Industry Partnerships: ○ YouTube Deal: Improved content licensing agreements enhanced artist compensation and ensured better rights management. ○ Meta and TikTok Agreements: New licensing structures were established to adapt to evolving platforms and address modern "value gap" challenges in short-form video and social media spaces. Why the Value Gap Matters 1. Unfair Competition: Platforms avoiding licensing costs gain an unfair advantage over those that fully comply with copyright requirements. 2. Impact on Creators: Artists and rights holders face reduced earnings, discouraging creativity and investment in new works. 3. Market Integrity: The current reliance on reactive systems like notice-and-takedown fails to address systematic issues, allowing unlicensed content to proliferate. Platform Liability for Copyright Infringement Phase I (1990s): Liability Exemptions and Safe Harbors IP law intro lecture 1. Key Legal Frameworks: ○ USA: The Digital Millennium Copyright Act (DMCA, 1998), Section 512. ○ EU: The E-Commerce Directive (2000/31/EC). ○ Both laws introduced safe harbor provisions, exempting internet intermediaries from liability if they act expeditiously to remove infringing content once notified. 2. Notice-and-Takedown (NTD) System: ○ Rights holders notify platforms of infringing content. ○ Platforms take it down but may reinstate the content if the uploader files a counter-notice. 3. Challenges: ○ Reliance on manual notifications and reactive takedown mechanisms. ○ Increasing lobbying by ISPs to establish liability limits. Phase II (2000–2015): Automation and Voluntary Filtering 1. Emergence of Automated Systems: ○ Platforms began adopting filtering technologies voluntarily to address large-scale copyright infringement. ○ Example: YouTube’s Content ID, enabling rights holders to monitor, monetize, or block content. 2. Issues: ○ Over-reliance on automation led to wrongful takedowns, especially of transformative or fair-use content. ○ Critics highlighted the lack of transparency and accountability. Phase III (2019): Article 17 of the Copyright Directive (CDSMD) 1. Introduction of Article 17: ○ Platforms engaging in “content-sharing” are deemed to perform acts of communication, making them directly liable for unauthorized uploads. ○ Exceptions for certain platforms like Wikipedia and GitHub. 2. Obligations for Platforms: ○ Obtain licenses for copyrighted content. ○ Employ “best efforts” to ensure infringing content is unavailable (filtering). ○ Implement Notice-and-Stay-Down (NSD) systems, preventing re-uploads of flagged material. 3. Controversy and Litigation: ○ Poland challenged Article 17, arguing it infringed freedom of expression (Case C-401/19). IP law intro lecture ○ The CJEU upheld the article, emphasizing proportionality in content filtering. Phase IV (2022): Digital Services Act (DSA) 1. Purpose: ○ Update and harmonize rules on intermediary liability across the EU. ○ Retains safe harbor provisions but introduces additional due diligence obligations for platforms. 2. Key Provisions: ○ Transparency: Platforms must clearly disclose moderation policies and report content removal activities. ○ Trusted Flaggers: Notices from certified flaggers are prioritized. ○ Algorithms: Platforms must ensure transparency and user control over content-ranking algorithms. ○ Very Large Online Platforms (VLOPs): Subject to heightened obligations, including independent audits and systemic risk analysis. 3. Open Issues: ○ Striking a balance between liability and preserving free expression. ○ Effectiveness of automated systems in recognizing context for exceptions like parody or quotation. Chapter 36: The Problem of Platform Law from The Oxford Handbook of Global Legal Pluralism: Definition: "Platform law" refers to the private regulatory systems created by social media companies like Facebook and Twitter. These systems govern user behavior and content through: ○ Community Standards ○ Contractual Agreements (Terms of Service) ○ Technological Design ○ Ad Hoc Case Practices This privatized law often overrides or displaces national laws, creating a "one-size-fits-all" approach to governance. Concerns: These rules may reflect majority preferences, potentially marginalizing vulnerable groups, and lack transparency and accountability. Legal Pluralism and the Internet Pluralism Defined: The coexistence of multiple legal systems (e.g., customary law, international norms, and private regulations like platform law). IP law intro lecture Challenges: ○ Platforms implement globalized rules that ignore local norms. ○ Countries may impose restrictive laws, leading to "regulation by the most speech-restrictive jurisdictions" (e.g., Thailand’s lèse-majesté laws). Core Components of Platform Law 1. Contract Law: ○ Terms of Service outline user obligations and platform rights, often restricting user rights more than national laws. ○ Enforced globally with limited user negotiation or choice. 2. Substantive Law: ○ Community Standards dictate permissible behavior. ○ Decisions on content moderation are inconsistent and lack transparency, sometimes shaped by local controversies (e.g., Facebook’s revised hate speech policies after the Syrian refugee crisis). 3. Procedural Law: ○ Mechanisms for flagging, reviewing, and removing content are implemented, including: User or algorithmic flagging Appeal processes, which are often opaque and untimely. ○ Decision-making relies on moderators, whose interpretations may vary significantly. 4. Technical Law: ○ Platforms use algorithms to curate content, prioritizing posts based on user engagement. ○ Risks include the amplification of divisive content, filter bubbles, and reduced exposure to diverse perspectives. Critiques and Concerns 1. Homogenization: ○ Rules cater to the majority, potentially silencing marginalized voices (e.g., activists, educators, minorities). 2. Lack of Accountability: ○ Platforms operate beyond the oversight of national legal frameworks, limiting user recourse. 3. Bias and Inaccuracy: ○ User flagging and automated moderation often reflect biases, leading to wrongful takedowns. IP law intro lecture 4. High Exit Costs: ○ Users face barriers to leaving platforms due to network effects and lack of data portability. Proposals for Greater Autonomy and Pluralism 1. User Choice: ○ Platforms could allow users to select their preferred moderation standards or create "affinity communities" with tailored rules. ○ Examples include user-curated blocking lists and customizable content filters. 2. Transparency: ○ Platforms should provide detailed "case law" to explain moderation decisions and build trust. 3. Technological Design: ○ Tools like algorithmic filters could give users more control over their content exposure while addressing harmful speech. Objections to Increased Autonomy 1. Mandatory Rules: Certain content, such as child pornography or hate speech, requires platform-wide bans. 2. Content Bubbles: Personalized moderation may lead to ideological isolation. 3. Commercial Considerations: Platforms may resist autonomy to protect their brand and reduce liability. Conclusion Platform law reflects a shift from self-regulation to privatized governance. While current systems offer inadequate solutions, embracing user autonomy could balance pluralism, improve legitimacy, and enhance content moderation. CULTURAL INDUSTRIES NOTES Street Art 1. What is Street Art? Street art encompasses public artworks, often displayed in urban areas. It includes: IP law intro lecture Graffiti: Writing/painting words, names, or designs on surfaces (e.g., NYC’s tag culture in the 60s–70s). Street Poetry: Writing poetic or paradoxical phrases on walls. Advanced Techniques: Incorporates stencils, stickers, posters, mosaics, and sculptures (e.g., Banksy’s stencils). Historical Roots: Early inspirations include Mexican Muralism (1920s–30s), which emphasized civil and political messages. Street art developed from subcultures like hip-hop and skateboarding in the 1990s. 2. Street Art as a Cultural and Economic Commodity Often commodified through: ○ Sales in galleries. ○ Reproductions on products (e.g., clothing, mugs). ○ Use in advertisements, TV, and online media. Tension Between Public and Commercial Use: While originating as rebellious or illegal, street art is increasingly seen as a valuable cultural and economic asset. 3. Street Art as Copyright Subject Matter Street art is subject to copyright if specific criteria are met: 1. Protectable Expression: ○ Artworks must be reduced to material form and situated in public spaces. ○ Copyright law protects illegal works as long as originality and fixation criteria are satisfied. 2. Originality: ○ Standards vary by country: US/Canada: Minimal creativity required. EU: Expression must reflect the intellectual creation of the author (Infopaq case). ○ Simple tags or graffiti with generic words may lack sufficient originality, but unique styles (e.g., Banksy’s tags) could qualify. 3. Fixation: IP law intro lecture ○ In countries like the US, works must be fixed in a tangible medium. Street art’s ephemeral nature (e.g., fading or removal) complicates this, but photographic documentation may suffice. 4. Copyright Protection Economic Rights: ○ Artists can prevent reproduction, distribution, or public display without consent. ○ Example: H&M settled after using Jason “Revok” Williams’ street art in ads without permission. ○ Freedom of Panorama (FOP): In some jurisdictions (e.g., US, EU), public art reproduction may be allowed for non-commercial purposes. Moral Rights: ○ Include rights of attribution and integrity. ○ Artists can object to distortion or destruction that harms their reputation. ○ Examples: 5Pointz Case: $6.7 million awarded to artists after their works were destroyed in Queens, NY. Spanish Supreme Court upheld moral rights when removing a sculpture altered its intended meaning. 5. Trademark Issues in Street Art Banksy-Pest Control v. 24 Ore Cultura: ○ Banksy’s trademarks (e.g., "Girl with Balloon") were used in an exhibition without his permission. ○ Outcome: Descriptive use (e.g., posters and tickets) was deemed lawful. Unauthorized merchandising (e.g., stationery) constituted trademark infringement. 6. Complexities and Challenges Illegality vs. Copyright: ○ Copyright protects illegal works (e.g., graffiti without property owner consent), but this is separate from legal disputes over property rights. De-contextualization: IP law intro lecture ○ Removing or relocating street art from its original site may infringe moral rights in some jurisdictions (e.g., Spanish courts). Examples and Cases 1. Jade Berreau v. McDonald’s (2016): Claim against McDonald’s for using graffiti-inspired imagery without consent. 2. Reece v. Mark Ecko Unlimited (2011): Court acknowledged artistic value in graffiti tags, granting copyright to a stylized version of “DIP.” 3. 5Pointz Case (2018): Highlighted moral rights and recognized the cultural significance of outdoor graffiti. PUBLIC ART 1. Defining Public Art General Definition: Artworks staged in physical public spaces, often outdoors and accessible to everyone. Examples include: ○ Sculptures. ○ Paintings and mosaics. ○ Architectural works. ○ Contemporary forms like land art and installations. Characteristics: ○ Public accessibility. ○ Site specificity and interaction with surroundings. ○ Community involvement and public funding. ○ Often permanent but can also include temporary projects. Legal Definition: ○ Broad Meaning: Includes both public architectural works (functional structures) and public fine arts. ○ Narrow Meaning: Refers only to public fine arts with aesthetic dimensions. 2. Copyright Regimes in Public Art Traditional Copyright: Applied to fine arts, regardless of location. Architectural Copyright: IP law intro lecture ○ Historically debated due to the functional dimension of buildings. ○ Protects both the plans (corpus mysticum) and the built structure (corpus mechanicum). ○ Examples include protection under the Berne Convention (Art. 2) and the US Architectural Works Copyright Protection Act (1990). Freedom of Panorama (FOP): Allows reproductions (e.g., photos, paintings) of public art in certain jurisdictions. Variations: ○ US: Permits pictorial reproductions of public buildings but excludes works of visual arts. ○ EU: Optional and unharmonized; countries like France limit it while the UK allows broader applications. 3. Copyright Issues and Case Studies Key Issues: ○ Reproduction: Includes 2D (e.g., photos, paintings) and 3D (e.g., miniatures). ○ Public Interest: Balances cultural heritage preservation, accessibility, and authorship rights. Case Studies: 1. Radford v. Hallensteins Bros Ltd (NZ, 2007): ○ A retailer used photos of sculptures on T-shirts. ○ The court ruled it was permissible under FOP provisions, prioritizing public interest. 2. Buren et Drevet v. Lyon (FR, 2005): ○ Artists objected to the use of their fountains in postcards. ○ Court ruled against the artists, emphasizing the postcard's focus on the entire square, not the fountains. 3. Wangjing SOHO Project (China, 2011): ○ Zaha Hadid’s designs were allegedly copied for another project. ○ Highlighted gaps in architectural copyright enforcement in China. 4. Moral Rights in Public Art Key Rights: IP law intro lecture 1. Attribution: Recognizes authorship; requires proper identification on or near the work (e.g., UK CDPA 1988, Sec. 77). 2. Integrity: Protects works from distortion or derogatory treatment that harms the artist's reputation (Berne Convention, Art. 6bis). Case Studies: 1. Calatrava’s ZubiZuri Bridge (Spain, 2007): ○ An extension to the bridge was added without consent, leading to legal action. ○ Initial rulings favored public interest, but Calatrava later won €30,000 for moral rights violations. 2. Snow v. Eaton Centre Ltd (Canada, 1982): ○ A mall added red ribbons to a goose sculpture for Christmas. ○ Court sided with the artist, ruling the alteration violated integrity rights. 3. Berlin Hauptbahnhof (Germany, 2006): ○ Architect von Gerkan sued after design changes were made to the train station’s ceiling. ○ The court upheld moral rights, ordering the ceiling to be rebuilt. 5. Challenges in Digital and Temporary Public Art Digital Sharing: ○ Sharing photos of public art online (e.g., Instagram) may infringe copyright in jurisdictions without FOP for commercial use. ○ Influencer-driven platforms complicate enforcement. Temporary vs. Permanent Works: ○ Temporary installations like Christo’s “Running Fence” highlight the interplay of copyright, property law, and public permissions. Directive 790/2019 (EU): ○ Ensures public domain works remain accessible even after digitization, enhancing cultural heritage accessibility. CONTEMPORARY ART Conceptual Art (CA) Definition: ○ An art movement prominent from the mid-1960s to mid-1970s that emphasizes ideas over craftsmanship or execution. IP law intro lecture ○ Pioneered by figures like Pablo Picasso (Still Life with Chair Caning) and Marcel Duchamp (Fountain), introducing objets trouvés (found objects). ○ Sol LeWitt summarized it: “The idea becomes a machine that makes the art”. Characteristics: ○ Anti-formalistic: Opposes rigid definitions and prioritizes ideas. ○ Can take any form—performance, writing, or traditional mediums like sculpture. Copyright Challenges: 1. Idea/Expression Dichotomy: ○ Copyright protects the tangible expression of an idea, not the idea itself. ○ Example: Sol LeWitt’s works executed by assistants based on his instructions remain protected because the final pieces represent his ideas. 2. Legal Precedents: ○ Druet v. Cattelan (2024): Sculptor Druet argued for recognition as co-author of Maurizio Cattelan's conceptual works he executed. Paris Court ruled Cattelan the sole author, emphasizing conceptual control over physical creation. ○ Morford v. Cattelan (2023): U.S. court ruled that the idea behind Morford’s Banana and Orange was unprotected, as similarities with Cattelan’s Comedian pertained to unprotected ideas, not expression. 2. Conceptual Dematerialized Art (CDA) Overview: ○ Focuses entirely on ideas, often bypassing physical artworks. ○ Example: Felix Gonzalez-Torres’ Untitled (Portrait of Ross in L.A.) consists of instructions for displaying 175 pounds of candies, allowing curators and visitors to shape the experience. Legal Issues: ○ CDA often lacks copyright protection as it doesn’t meet tangible expression requirements. ○ Reliance on art-world norms: These social norms function as “pseudo-rights,” enabling artists to control and monetize works even without formal copyright protection. IP law intro lecture 3. Appropriation Art Definition: ○ Reuses pre-existing objects or images with minimal alteration, often re-contextualizing them to create new meanings. ○ Examples include Richard Prince’s Cowboys series (re-photographed Marlboro ads) and Canal Zone works (altered photographs by Patrick Cariou). Legal Cases: 1. Rogers v. Koons (1985): ○ Jeff Koons’ sculpture of puppies copied a photograph by Rogers. ○ Court rejected fair use defense, emphasizing direct copying rather than transformative use. 2. Cariou v. Prince (2009): ○ Prince altered Cariou’s photos, leading to copyright infringement claims. ○ Initial ruling favored Cariou, but the appellate court reversed, finding Prince’s work transformative. 3. Graham v. Prince (2015): ○ Prince used Graham’s Rastafarian Smoking a Joint without permission, reproducing it as a 4’x5’ print. ○ Court ruled against fair use due to minimal alterations and commercial exploitation. 4. Key Concepts in Copyright and Contemporary Art 1. Fair Use Doctrine: ○ Allows copying for purposes like criticism or parody, provided the use is transformative and doesn’t harm the market for the original work. 2. Authorship: ○ U.S. copyright law requires human authorship; works generated without significant human input (e.g., by machines or assistants) may lack protection. 3. Art-World Norms: ○ Function as informal enforcement mechanisms where legal rights are absent, enabling artists or foundations (e.g., Felix Gonzalez-Torres Foundation) to assert control over works. IP law intro lecture CURATION AND COPYRIGHT 1. The Changing Role of the Curator Historical Evolution: 1. Traditional curators (1890–1950s): Focused on preserving and displaying artifacts with limited creative freedom. 2. Post-1960s: Curatorship expanded to bridge art with public engagement, emphasizing creativity and interpretation. Modern Curators: 1. Act as mediators between artists, institutions, and audiences. 2. Responsible for arranging artworks, shaping visitor experiences, and providing context through diverse media (e.g., lectures, catalogs, digital content). Types of Curators: 1. Museum Curators: Develop interactive exhibitions and offer immersive experiences. 2. Independent Curators: Work outside institutions, often collaborating directly with artists. Example: Harald Szeemann’s When Attitudes Become Form (1969), a groundbreaking conceptual and post-minimalist exhibition. 2. Identifying the Curator’s Copyright Challenges in Legal Recognition: ○ Limited guidance in copyright law regarding curatorial practice. ○ Berne Convention protects “literary and artistic works,” but curated exhibitions are not explicitly listed. Subject Matter and Copyright Categories: 1. Protectable Elements: ○ Arrangement and design (placement of objects, lighting). ○ Can be seen as “artistic works” under national laws. ○ Example: French IP Code protects “arrangements of works of the mind.” 2. Classification Possibilities: ○ As Drawing or Sculpture: Courts have debated whether 3D exhibitions qualify as sculptures (e.g., Lucasfilm Ltd v. Ainsworthrejected props as sculptures). ○ As Compilation: IP law intro lecture Copyright can apply to curated collections if they meet originality and arrangement criteria (e.g., Art. 3 of Italian copyright law). 3. Case Law Key Examples: 1. Henri Langlois v. The State (1997, France): Langlois’ heirs successfully claimed moral rights over his film artifact exhibition. The court recognized it as an intellectual creation protected by copyright. 2. Peggy Guggenheim Cases (1992–2018): Her heirs argued her curated Venice collection was an intellectual work. Courts denied this, prioritizing the Foundation's control over modifications. 3. RTI v. Ruvido Produzioni Srl (2017, Italy): Italian Supreme Court recognized TV show formats as protectable under copyright, emphasizing originality and structural coherence. Analogous logic could apply to curated exhibitions. 4. Curatorship and Moral Rights Moral Rights for Curators: ○ Right to attribution: Recognition as the author of the exhibition. ○ Right to integrity: Protection against derogatory modifications. ○ Example: Germano Celant’s tribute exhibition to Szeemann implicitly acknowledged these rights by consulting his archives and family. 5. Contemporary Challenges Reinterpretation of Exhibitions: ○ Reviving historical exhibitions (e.g., When Attitudes Become Form in Venice, 2013) raises questions about curators’ intellectual property and moral rights. Legal Limitations: ○ Countries with closed copyright lists (e.g., UK, Australia) often exclude non-conventional works, requiring judicial creativity to classify curated exhibitions as protectable. IP law intro lecture “Public Architectural Art and Its Spirits of Instability” 1. Introduction to Public Architectural Art Definition: ○ Includes works situated in public spaces such as buildings, sculptures, monuments, and installations. ○ Public architectural art uniquely combines aesthetic and functional elements, distinguishing it from purely artistic works. Legal Complexity: ○ Balances cultural, economic, and public interests. ○ Faces challenges due to its dual nature as intellectual property (design, plans) and physical property (constructed buildings). 2. History and Legal Framework Architectural Copyright Evolution: ○ Recognized in the 1908 Berlin Revision of the Berne Convention. ○ Initially controversial due to the functional aspect of architecture. Current Legal Disparities: ○ U.S.: Limited scope under the 1990 Architectural Works Copyright Protection Act (AWCPA). Excludes bridges, mobile homes, and non-occupiable structures. ○ EU: National laws vary. Some countries extend protection to urban design (e.g., France), while others limit it to plans (e.g., UK). 3. Conflicting Interests in Public Architectural Art Balancing Interests: ○ Authors vs. Owners: Architects’ rights vs. property owners’ usage. ○ Public Interest vs. Private Rights: Ensuring public access while preserving creators' control. ○ Heritage vs. Urban Development: Protecting historical works while adapting to urban needs. Freedom of Panorama: ○ Allows public reproduction of architectural works (e.g., photographs). ○ Scope varies globally: Broadly applied in Australia and New Zealand. Restricted commercial use in parts of the EU (e.g., France). IP law intro lecture 4. Economic and Moral Rights Economic Rights: 1. Architectural Plans: ○ Protection of drawings and plans as graphic works. ○ Licensing agreements specify usage limits (e.g., single building vs. multiple copies). 2. Constructed Works: ○ Reproductions (e.g., photos, models) may require permission. ○ Public access often limits economic exploitation. Moral Rights: Attribution: Architects’ right to be credited. Integrity: Protection against derogatory alterations. ○ Example: Calatrava’s ZubiZuri Bridge in Bilbao. Extension added without the architect’s consent sparked a legal dispute resolved in favor of public utility. 5. Case Studies 1. Zaha Hadid’s Wangjing Soho Project (China): ○ Original design copied by local developers during construction. ○ Highlights global challenges of protecting architectural IP. 2. Radford v. Hallensteins (New Zealand): ○ Retailer used photos of public sculptures for T-shirts. ○ Court prioritized public interest over copyright claims. 3. Place des Terreaux (France): ○ Artists sued publishers for reproducing fountains in postcards without credit. ○ Court ruled in favor of public interest, focusing on the square as a whole. 6. Identity and Variability Cultural Identity: ○ Public architectural art reflects community, national, and individual identities. IP law intro lecture ○ Example: Post-Soviet removal of communist monuments to reshape national identity. Dynamic Legal Protection: ○ Varies by jurisdiction and shifts with societal values. ○ Copyright’s role increasingly integrates public interests alongside private rights. 7. Conclusion The article emphasizes the inherent instability of copyright in public architectural art due to conflicting interests and the evolving balance between private and public rights. Addressing these challenges requires nuanced legal frameworks that prioritize both creators’ protections and public accessibility. "Owning Nothingness: Between the Legal and Social Norms of the Art World" by Guy A. Rub: Overview The article explores the unique dynamics of conceptual art, where the primary value lies in ideas rather than tangible objects. Examines how legal frameworks often fail to account for such dematerialized works, leaving them in a state of "legal nothingness." Highlights how the art world's social norms fill this gap, creating pseudo-property rights that enable economic transactions and ongoing artist control. Conceptual Art and Legal Gaps 1. Definition and Context: ○ Conceptual art focuses on ideas rather than physical execution, often

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