Intellectual Property Law in the Information Society
Copyright and Related Rights
Jarle Roar Sæbø
Four fundamental concepts of copyright
Intellectual creations - originality
Only the expression of ideas – not the idea
No procedural requirements
Parallel creations
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What is intellectual property law?
Intellectual property – The non-tangible products/creations over which someone
holds such IPR
Intellectual property rights (“IPR”): The right to decide if and how certain nontangible products/creations are used
Intellectual property law: The set of laws that grants intellectual property rights
Example: The trademark is your intellectual property, and the right
you have prohibit your competitors from using the trademark is part
of your intellectual property rights, and the Trademark Act is the
intellectual property law that governs this.
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IPR Overview
What are the things you should look for when learning about a type of IPR?
• Sources of Law
• Subject matter
• The conditions
• The rights granted, and the exceptions
• Registered or not?
• Term of protection
If you truly understand the answers to these questions, you have a pretty good grip on basic IPR.
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History of Copyright
The printing press invented and made available in 15th and 16th century
State and church needed to control dissemination of texts
Legislation required that publishers had licenses, which provided an exclusive rights
International market evolved during the 19th Century
Triggered a need for mutual recognition of foreigner´s rights
Negotiations over this led to the Berne Convention in 1886
Berne convention revised several times, latest revision in 1971
Development in ICT created new problems and new legislation
TRIPS Agreement in 1994 (Articles 9-13)
WIPO Copyright Treaty (WCT) in (1996)
EU Copyright Directive (EUCD) in 2001
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The build-up
Berne Convention
TRIPS
WPC
National Legislation
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The Member
States
EUCD
You and
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Fundamental Concepts
The challenge of studying copyright law in an international aspect
The exclusive rights granted to copyright holder
• Economic rights: Reproducing, making available to the public, rentals etc.
• Moral rights: Right to be named, protection against defaming
The exclusions to exclusive rights
• Various exclusions for different reasons: Example: BC Article 2bis(1)
Public Domain
Derivative works
Related rights
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Conditions for protection
Procedural conditions: None (BC article 5.2). No registration. No need to use ©.
Material has to be of relevant subject matter
Requirement of ”originality” or that it manifests ”intellectual creations”
• Establishes a threshold that needs to be met
• Threshold is not high; all software of commercial significant will be in scope
Requirement of fixation
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What is fixation?
This requirement is probably of (very?) limited practical importance
No requirement in international legislation
BC article 2.2 leaves this to member state´s discretion
Why Copyright
Anglo-american or Common Law approach
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Emphasises the economic role of copyright
Secure a possibility for creators to benefit from their work
The rights granted by copyright is an incentive to create
“…socially beneficial activities are made economically worthwhile”
Continental European or Civil Law Approach
• Copyrights stems from the personality rights of the creator
• Rests on a moral idea more than on economic principles
• However, in real life…?
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International regulatory framework
Berne Convention for the protection of literary and artistic works (BC) (1886)
• Latest revision in Paris 1971
• 164 contracting parties
Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) (1994)
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Deals with different kinds of IPR
Part 2, Section 1 on Copyright is closely related to the Berne Convention
Requires software to be in scope for copyright (article 10)
Rental rights in software and films
WIPO Copyright Treaty (WCT) (1996)
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Closely related to the Berne Convention
Clarifying that copyright only protects expression of ideas, never the ideas themselves
Introduces protection for databases
Addresses software, films, music etc.
Adjusted to the technological development
Universal Copyright Convention (UCC) (1952)
• Berne convention light?
• Less significant due to most members also adopting TRIPS
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EU regulatory framework
Computer Program Directive
(1991)
Directive 2009/24/EC
Rental and Lending Directive
(1992)
Directive 2006/115/EC
Term Directive
(1993)
Directive 2006/116/EC
Satellite and Cable Directive
(1993)
Directive 93/83/EEC
Database Directive
(1996)
Directive 96/9/EC
Infosoc Directive (EUCD)
(2001)
Directive 2001/29/EC
Resale Directive
(2001)
Directive 2001/84/EC
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Berne Convention for the protection of literary and artistic works
Establishes minimum protection; scope, time etc.
Provides some mandatory and some optional exceptions
Minimum level of protection that members state shall grant the creators
Minimum time period of life + 50 years.
Member states shall grant foreigners the same protection as it grants own citizens
Focus on author as key figure in copyright law
Exceptions to the copyright holder´s exclusive rights
• BC establishes certain exceptions, i.a. the quotation right in clause 10(1)
• BC allows, within certain limits, member states to establish other exceptions, i.a. 10(2):
“to permit the reproduction of such works in certain special cases, provided that such
reproduction does not conflict with a normal exploitation of the work and does not
unreasonably prejudice the legitimate interests of the author”
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What is protected?
Berne Convention article 1 and 2
TRIPS Articles 10 and WCT Article 4 and 5
• Includes computer programs and compilations of data (databases)
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TRIPS Agreement (1994) Articles 9-13
Main trigger: International trade
TRIPS = Trade-related Aspects of Intellectual Property Rights
Membership in World Trade Organization requires compliance with TRIPS
Regulates copyright, trademarks, designs, patents and more.
Section 1 (article 9 through 14) is copyright
Closely related to the Berne Convention, see i.a. article 10
Obligation to participate under the Berne Convention, except article 6bis
Article 10 on computer programs and databases
Provide rental rights in at least computer programs and films
Provisions on duration of copyright
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WIPO Copyright Treaty (WCT) (1996)
Main trigger: Technological development, specially Internet
Berne Convention article 20 regulates “Special Agreements” between members
WCT is such “Special Agreement”.
WCT is in some respects a repetition of clauses from TRIPS.
Article 2 states that copyright protection extends to expressions and not to ideas,
procedures, methods of operation or mathematical concepts as such
Article 4 and 5 repeats TRIPS on computer programs and databases
The protection of Digital Rights Protection/Management Systems
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Term Directive (2006/116/EC)
Main trigger: The need to have internationally harmonized rules on the term of
copyright protection
Provides rules on
• the term of various groups of copyright protected material
• the way to calculate the start and end of the term
Literary or artistic work, cinematographic or audiovisual works and photographs:
70 years from the death of the author/director etc.
Special regulation on pseudonymous works, related rights, pseudonymous works
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Exclusive rights – The Economic Rights
Reproductions (BC 9 and 14, EUCD article 2)
• Whole or in part
• Similarity caused by copying (= accidental similarities are no copyright infringement)
• Similarity assessment will often be extremely easy, but may some times be a challenge
• You need to possess the alleged copy to do the comparison (uncertainty caused by lack of evidence)
• You may find some but not many similarities (uncertainty caused by legal ambiguity)
• Some words on software
• Source code and object code
• Word on streaming
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Distribution and exhaustion – EUCD 4
Exclusive right to distribute to the public
Exhaustion of that right
What it means in practice
Case C-128/11 – UsedSoft vs Oracle
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Public Domain and Exceptions
The principle of public domain
• Certain material are in a copyright-free zone
• Example: Unoriginal artistic work, material for which copyright has expired
The principle of exceptions
• EUCD Article 5
• Certain acts that otherwise would be a copyright infringement, are allowed by rules
establishing exceptions to the exclusive rights of the copyright holder
• Example: Quotations, copies for private use, i.a. recording a television show
The idea underlying the exceptions
• Some interests outweigh the copyright holder´s interests, such as public debate,
criticism, research, teaching etc.
• Copyright should not be used to quench public debate, hence the exception on the right
to quote copyright protected material
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Copyright exceptions in the Berne Convention
Article 10
Certain Free Uses of Works:
(1) It shall be permissible to make quotations from a work which has already
been lawfully made available to the public, provided that their making is
compatible with fair practice, and their extent does not exceed that justified by
the purpose, including quotations from newspaper articles and periodicals in the
form of press summaries.
(2) It shall be a matter for legislation in the countries of the Union, and for special
agreements existing or to be concluded between them, to permit the utilization,
to the extent justified by the purpose, of literary or artistic works by way of
illustration in publications, broadcasts or sound or visual recordings for teaching,
provided such utilization is compatible with fair practice.
(3) Where use is made of works in accordance with the preceding paragraphs of
this Article, mention shall be made of the source, and of the name of the author if
it appears thereon.
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Berne Convention – Three-step-test
Article 9
Right of Reproduction
(1) Authors of literary and artistic works protected by this Convention shall have
the exclusive right of authorizing the reproduction of these works, in any manner
or form.
(2) It shall be a matter for legislation in the countries of the Union to permit the
reproduction of such works in certain special cases, provided that such
reproduction does not conflict with a normal exploitation of the work and does not
unreasonably prejudice the legitimate interests of the author.
(3) Any sound or visual recording shall be considered as a reproduction for the
purposes of this Convention.
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Protection of DRM
WPC article 11 and 12 and EUCD Chapter III
Member States shall provide adequate legal protection against the circumvention
of any effective technological measures, which the person concerned carries out
in the knowledge, or with reasonable grounds to know, that he or she is pursuing
that objective.
"technological measures" means any technology, device or component that, in the
normal course of its operation, is designed to prevent or restrict acts, in respect
of works or other subject-matter, which are not authorised by the rightholder of
any copyright or any right related to copyright.
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Protection of DRM, cont
The TPM´s interference on the exceptions and public domain
• Copyright legislation attempts to strike a balance between (a) copyright holder´s
interests, and (b) the users or society at large – by way of exceptions to the exclusive
rights of the copyright holder
• TPM is to a large extent used to effectively prohibit acts that are allowed according to the
exceptions, and then it disturb the balance that copyright legislation attempts to strike
Example: TPM that stops you from making copies for your own private use of
music you have bought online. TPM stops you from quoting a piece of music.
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IPR in the information society
No kind of IPR is untouched by digital technologies
Development brings new creations for which the creator wants IPR protection
Development brings new ways to infringe on the rights of the IPR holder
New ways to do business and earn money may affect and skew the balance
P2P networks: File sharing, infringing copyright
Search engines: Trademark exploitation
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Digital challenges - intermediaries
One of the greatest tensions in international IPR law is raised by the following
question: In what cases are the intermediaries responsible for IPR breach
The various forms of intermediaries
Why is that question so important to IPR holders?
Why is the question so important to the ISPs?
Why is the question so important to society?
What legal sources do we have?
Lillian Ewans, Strathclyde University will lecture on "The Role and Responsibility of
Internet Intermediaries in the Field of Copyright and Related Rights".
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Jarle Roar Sæbø
+47 95 22 0068
[email protected]