Law, Science & Technology: Copyright & related rights (1 of 2) - History & developments - Legal sources - Copyright harmonization - Subject matter - Concept of originality - Exhaustion + case study Slide 5: Push and pull relation between technology and copyright Slide 6: 1450 Invention of printing press Slide 8: Statute of Ann (1710) Slide 12: Copyright US Constitution (1790) Slide 13: The Pirate Publisher Slide 15: 20th century, cassette, video tape, CDs, Napster, The Pirate Bay, Popcorn Time Slide 22: The battle of copyright (free culture, corporate capitalism, public domain) Slide 23: Legal sources (sauces) Slide 25: Berne convention (1886) Slide 28: Three step test Slide 29: Universal Copyright Convention (1952) Slide 30: Rome convention (1961) Slide 32: TRIPS - Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) Slide 35: WIPO Internet Treaties (1996) Slide 36: EU Copyright Law Slide 39: Road to harmonization (Regulations, Directives, CJEU practice...) (...) Digital Copyright, Digital Agenda by EU Commission, Digital Single Market, Originality, CRM Directive, InfoSoc Directive, Directive 2001/29, Directive 2014/26/EU, UsedSoft, Painer, Football Dataco, SAS Institute, Google Adwords, Svensson, Links and copyright, Caching and copyright, ...

1. Copyright
Law, Science & Technology in the Information Society
Second session 8.9.2014
(Basic Module - 1 of 2)

2. Warm up
What is protected by intellectual property (and why)?
What IPRs exist and what are their differences?
What tool(s) of harmonization are available in the EU?

3. History & developments
Legal sources
Subject matter
Concept of originality
Copyright harmonisation
Exhaustion + case study

4. Balance of
interests
Subject matter
Scope of
protection

5. Technology + copyright

6. Printing press
1450

7. Invention of printing press by Johannes
Gutenberg (around 1450)
16th century “privileges”: monopoly power for
the English printers’ collective organisation
(Stationers’ Company) - ended in 1694
Printing press
1450

8. Statute of Ann
1710
1450
1694

9. (…) may it please your Majesty that it
may be enacted (…) that the author of
any book or books already composed,
and not printed and published, or that
shall hereafter be composed (…) shall
have the sole liberty of printing and
reprinting such book and books for the
term of fourteen years, to commence
from the day of the first publishing the
same, and no longer (…)
Statute of Ann

10. Author focused (rewarding creative
rather than mercantile talent)
New time limit on copyright (14 years
+ 14 years when first term expired)
Statute of Ann

11. World's 1st
copyright
statute
“An Act for the
Encouragement of
Learning, by
vesting the Copies
of Printed Books in
the Authors or
purchasers of such
Copies, during the
Times therein
mentioned”

12. Copyright US Constitution
1790
1450
1694
1710
“To promote the Progress of Science and useful Arts, by
securing for limited Times to Authors the exclusive Right
to their Writings”

14. “During the nineteenth century anyone was free in the United
States to reprint a foreign publication, and yet American
publishers found it profitable to make arrangements with
English authors. Evidence before the 1876-8 Commission shows
that English authors sometimes received more from the sale of
their books by American publishers, where they had no
copyright, than from their royalties in [England]” where they
did have copyright."
"
Arnold Plant [1934] "The Economic Aspects of Copyright in Books," Economica, 167-195

15. 20th century
1450
1694
1710

16. 20th century
1450
1694
1710
1960’s

17. 20th century
1450
1694
1710
1960’s
1970’s

18. 20th century
1450
1694
1710
1960’s
1970’s
1980’s

19. 20th century
1450
1694
1710
1960’s
1970’s
1980’s
1999

20. 20th century
1450
1694
1710
1960’s
1970’s
1980’s
1999
2003

21. 20th century
1450
1694
1710
1960’s
1970’s
1980’s
1999
2003
2014

23. Legal
* Sources, not sauces.

24. 1886
1450
1694
1710
1961
1994
1996
Berne
Convention
Rome
Convention
TRIPS
WIPO Internet
Treaties
* By no means exhaustive
1820’s
Bilateral
treaties

25. Berne 1886

26. Coverage: Literary and artistic works
Sets minimum standard of protection
Requires to protect the copyright on works from other
signatory countries in the same way it protects the
copyright of its own nationals.
1st multi-lateral copyright treaty
10 states signed in 1886 (NB: US only “observer”)
Berne Convention

27. Exclusive rights for authors
• to make reproductions
• to perform / recite the work in public
• to translate the work
• to make adaptations and arrangements of the work
• to communicate the work to the public / broadcast
Certain moral rights (attribution and integrity)
Exceptions (reproduction right): the 3 steps test
Berne Convention

28. Further exceptions only…
Certain
special cases
No conflict
with normal
exploitation
Not un-
reasonably
prejudice
the interest
of the rights
holder
See e.g. Art. 9.2 Berne (reproduction right only) & Art. 13 TRIPS
ifa
Berne Convention

29. today of little importance; most states have joined
Berne…
Universal Copyright Convention
(1952)

30. Rome 1961

31. Closes gaps left by the Berne Convention
“neighbouring rights” (“droits voisins”)
Protection of performers, producers of sound
recordings, broadcasters and publishers…
Rome Convention

32. TRIPS 1994
* Agreement on Trade-Related Aspects of Intellectual Property Rights

33. Perceived problem: large-scale copying of books, records & films.
Berne “inadequate” – no mechanisms to ensure compliance…
TRIPS governs extent of protection and enforcement of IPRs
(not restricted to copyright). Minimum protection based on the
Berne and Rome conventions.
TRIPS

34. Copyright specific “Berne plus” features:
• Confirms that protection extents to expressions – not ideas
(Art. 9.2)
• Length of protection – 50 years (Art. 12)
• ALL limitations/exceptions have to comply with 3-step test
(Art. 13)
• Protection of performers, producers and broadcasters
• Computer programs protected as “literary works”
• Protection for databases (if they constitute intellectual
creations)
TRIPS

35. Berne couldn’t be updated (hello, digital agenda)
WIPO Copyright Treaty (WCT)
WIPO Performances and Phonograms Treaty (WPPT)
WIPO Internet Treaties (1996)
Implemented via Directives in
EU and DMCA in US

36. EU Copyright Law?

37. 1886
“Community legislation should be restricted to what is needed to
carry out the tasks of the Community. Many issues of copyright
law do not need to be subject of action at Community level”
1988
1450
1694
1710
1961
Green Paper on Copyright and the Challenge of Technology (1988) COM/88/172

38. 1886
Present state of community law “characterised by a lack of
harmonisation or approximation of legislation governing the
protection of literary and artistic property”
1989
1450
1694
1710
1961
CJEU in 1989 (EMI v. Patricia C-341/87, para. 11)

39. Road to harmonization?

40. Roads to harmonization?

41. Roads to harmonization?
(Regulation, Directives, CJEU practice…)

42. Roads to harmonization?
(Regulation, Directives, CJEU practice…)
What may challenges be?

43. Roads to harmonization?
(Regulation, Directives, CJEU practice…)
What may challenges be?
(Legal traditions / Different concepts of use / More or less
protection / Means of harmonization / Speed of adaption /
Reception of new technologies…)

44. Roads to harmonization?
(Regulation, Directives, CJEU practice…)
What may challenges be?
(Legal traditions / Different concepts of use / More or less
protection / Means of harmonization / Speed of adaption /
Reception of new technologies…)
What do you see as the benefits / deficiencies of
these different roads to copyright ?

45. Term of Protection (2011/77/EU)
InfoSoc (2001/29)
Orphan Works (2012/28/EU)
Civil enforcement (2004/48/EC)

46. ProtectionofDatabases(96/9/EC)
SatelliteandCableRetransm.(93/83/EC)
RentalandLendingRights(2006/115/EC)
ProtectionofComputerPrograms(2009/24/EC)
Resaleright(2001/84/EC)
Term of Protection (2011/77/EU)
InfoSoc (2001/29)
Orphan Works (2012/28/EU)
Civil enforcement (2004/48/EC)
CollectiveRightsMgmt(2014/26/EU)

47. But: substantial harmonization by way of several
(mostly vertical) Directives (EU acquis)
+ =
Bundle of national laws

48. How would you describe the road taken and why do you
think that has been chosen?

49. How would you describe the road taken and why do you
think that has been chosen?
Why relatively late?

50. How would you describe the road taken and why do you
think that has been chosen?
Why relatively late?
(e.g. due to language barriers and differing cultural traditions
cross-border exploitation of copyrighted works was not of major
economic importance… changed with the advent of new subject
matters (computer programs, databases) and new communication
technologies (internet).

51. What subject matter does cover?"

52. What subject matter does cover?"
And who is protected?

63. Cover: Mr. Brainwash
Label: Warner Bros. Records

68. Art. 2 Berne Convention (Protected Works)
1. “Literary and artistic works”; 2. Possible requirement of fixation; 3.
Derivative works; 4. Official texts; 5. Collections; 6. Obligation to
protect; beneficiaries of protection; 7. Works of applied art and
industrial designs; 8. News
(1) The expression “literary and artistic works” shall include every
production in the literary, scientific and artistic domain, whatever
may be the mode or form of its expression, such as books, (…)
works of drawing, painting, architecture, sculpture, engraving and
lithography; photographic works to which are assimilated works
expressed by a process analogous to photography; works of applied
art; illustrations, maps, plans, sketches and three-dimensional
works relative to geography, topography, architecture or science.

69. “Creative works” / cultural products
Artistic, literary, dramatic, musical, photographical and
cinematographic works; maps and technical drawings; computer
programs and databases (see e.g. Art. 2 Berne)
Expanded considerably since earliest concern with printed works…
Only expression of copyrighted work, not idea or facts
Any work?
• Irrespective of literary or artistic merit
• Originality of work? (more later!)
Subject matter

70. Work (the author)
Communicate +
making available to the public
Distribute
Berne Convention
“Literary and artistic works”
Translations, adaptations and
arrangements
Collections
Fixation (protection of investment)
Making available to the public
Distribute
Rome Convention
Broadcasting
Phonograms
Databases
Performances
Copyright
Related Rights

71. Acquisition of rights?
Arises automatically (No formalities/registration, see Art. 5(2) Berne)
Time limited rights
• Duration: International min. author’s life +50 years (EU 70 years)
• Related rights mostly shorter (70, 50, 25 years, calculated from the
date of first publication)
Based on principle of territoriality
(one and the same work protected by different laws in different
countries)

72. Two particularities
• Limitations/exceptions: Boundaries on the exclusive rights
(defenses to infringements, limitations to control by copyright holder)
play a much greater role in copyright law than in other IPRs
• Numerous mass transactions: Collecting societies grant blanket
licenses for the repertoire of the works for which the authors have
transferred their rights to the respective society
* Among many other.

74. Patent
20 years

75. Patent
20 years
Utility model
≈ 10 years

76. Patent
20 years
Copyright
✝+ 70 years
Utility model
≈ 10 years

77. Patent
20 years
Copyright
✝+ 70 years
Design
Up to 25 years
Utility model
≈ 10 years

78. Patent
20 years
Copyright
✝+ 70 years
Trademark
Design
Up to 25 years
Utility model
≈ 10 years
...

79. Droit d‘auteur
Moral/author rights
“Emanation of personality”
Natural rights of the author,
prevails in most countries

80. Droit d‘auteur
Copyright approach
Moral/author rights
“Emanation of personality”
Natural rights of the author,
prevails in most countries
Economic/entrepreneurial rights
“Fruit of his labour”
prevails in common law countries

81. “Copyright and related rights play an important role in this
context as they protect and stimulate the development and
marketing of new products and services and the creation and
exploitation of their creative content.”
Recital 2 of Directive 2001/29/EC

82. Concept of originality
“Up to now, the notion of originality has not been addressed in
Community legislation in a systematic manner (…) Member States
remain free to determine what level of originality a work must
possess for granting it copyright protection.”
Commission Staff Working Paper SEC(2004),995

83. Infopaq (C-5/08) [text excerpts]
Author’s own intellectual creation is the yardstick for all works protected by
copyright under the InfoSoc Directive (see para. 37)

84. Infopaq (C-5/08) [text excerpts]
Author’s own intellectual creation is the yardstick for all works protected by
copyright under the InfoSoc Directive (see para. 37)
Painer (C-145/10) [photographic works]
An intellectual creation is deemed to be author’s own if it reflects his or her
personality (see para. 88)
The creation is the author’s own when the author in conjunction with the creation
of his/her work has been able to express his/her creative ability by making free
and creative choices. (see para. 92)

85. Infopaq (C-5/08) [text excerpts]
Author’s own intellectual creation is the yardstick for all works protected by
copyright under the InfoSoc Directive (see para. 37)
Painer (C-145/10) [photographic works]
An intellectual creation is deemed to be author’s own if it reflects his or her
personality (see para. 88)
The creation is the author’s own when the author in conjunction with the creation
of his/her work has been able to express his/her creative ability by making free
and creative choices. (see para. 92)
Football Dataco (C-604/10) [database]
Mere intellectual effort and skill of creating database not relevant in copyright
assessment. Does it express any originality in the selection or arrangement of
data? (see para. 42)

86. Infopaq (C-5/08) [text excerpts]
Author’s own intellectual creation is the yardstick for all works protected by
copyright under the InfoSoc Directive (see para. 37)
Painer (C-145/10) [photographic works]
An intellectual creation is deemed to be author’s own if it reflects his or her
personality (see para. 88)
The creation is the author’s own when the author in conjunction with the creation
of his/her work has been able to express his/her creative ability by making free
and creative choices. (see para. 92)
Football Dataco (C-604/10) [database]
Mere intellectual effort and skill of creating database not relevant in copyright
assessment. Does it express any originality in the selection or arrangement of
data? (see para. 42)
SAS Institute (C-406/10) [computer program/user manual]
Author may only through the choice, sequence and combination of words, (…)
express creativity in an original manner (see para. 67)

87. CJEU & originality criterion*
(1) The creation is the author‘s own original creation.
(2) The creation reflects his/her personality.
(3) The author, in conjunction with the creation of his/her work,
has been able to express his/her creative ability by making
free and creative choices and thus stamping his/her
‘personal touch’ on the work.
*thusfar

88. Question of whether a work meets the requirement to be
protected by copyright is not subject to a national test but
an EU concept…?
Case law extending harmonization to what is agreed…
(namely Originality, Work, Ownership, Designs)
“Harmonization by stealth”?
Lionel Bently

89. Exhaustion

90. snippets

91. Introduction to copyright & legal framework
EU copyright harmonization
Subject matter
Originality
Case study: Exhaustion (and software)
flashback

92. Even more copyright!
Rights, Limitations and Exceptions (InfoSoc)
Enforcement
Human Rights
Licensing (Online, open data, creative commons…)
Presentation: TPMs (Nintendo v. PC Box C-355/12)
upcoming

93. Credits / attribution
Push pull by Robert S. Donovan from Flickr (CC BY-NC 2.0)
The Battle of Copyright 2011 by Christopher Dombres from Flickr (CC BY 2.0)
Kyle Canyon Road by N i c o l a from Flickr (CC BY 2.0)
Captain Copyright (captaincopyright.ca)
Sand Castle by Adeel Anwer from Flickr (CC BY-ND 2.0)
Lego by Jake Dunham from The Noun Project
Stop sign by Jaap Knevel from The Noun Project
People by Wilson Joseph from The Noun Project
Search by hunotika from The Noun Project
Gondola by Patricia Ross from The Noun Project
Identification Badge by Michela Tannoia from The Noun Project
Person by Cristina Gallego from The Noun Project
Infinity by im icons from The Noun Project
Biopic by Yi Chen from The Noun Project
Copyright by Stefan Parnarov from The Noun Project
Icon by Acider C Balandrano from The Noun Project
VHS Tape by Loic Poivet from The Noun Project
Europe Flag by Pham Thi Dieu Linh from The Noun Project
Storm Trooper by ARudmann from The Noun Project
Ketchup by Taylor Medlin from The Noun Project
Coat of Arms by Martin Vanco from The Noun Project
Meditation by Pavel Nikandrov from The Noun Project
Globe by Chris Tucker from The Noun Project
Pirate by Anne Caroline Bittencourt Gonçalves from The Noun Project
Stopwatch by Nick Holroyd from The Noun Project
Printing Press by Mike Wirth from The Noun Project
Police by Luis Prado from The Noun Project
CD by José Manuel from The Noun Project
Chair by Jardson A. from The Noun Project
Emperor by Simon Child from The Noun Project
Pharaoh by Simon Child from The Noun Project
Cassette by mathies janssen from The Noun Project
Music–Boxes 2 by sweetmusic_27 on Flickr CC BY-SA 2.0
Wall for sounds by Memphis CVB on Flickr CC-BY
One direction 185 by Fiona McKinlay on Flickr CC-BY-SA 2.0