1 Copyright and Internet: an introduction Bart Beuving May 26, 2009

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Copyright and Internet: an introduction

Bart Beuving

May 26, 2009

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PLEASE INTERRUPT ME !

(with more or less relevant questions)

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General outline

I Copyright

II Copyright and internet

III Copyright, internet and Digital Rights Management

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I -- Copyright

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Intellectual property domains

technology

commerce

culture

patent law

trademark law

copyright law

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(Elwood)

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But we are discussing copyright today, so..

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International treaties

The Berne Convention for the Protection of Literary and

Artistic Works (1886/1967)

The Agreement on Trade-Related Aspects of Intellectual

Property Rights (1994) TRIPS

The WIPO Copyright Treaty (1996)

National law

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EC Directives

91/250/EEC on the protection of computer programs

92/100/EEC on rental and lending rights

93/83/EEC on satellite broadcasting and cable retransmission

93/98/EEC harmonizing the term of protection

2001/29/EC on copyright in the information society

2001/84/EC on the resale right as to art works

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Subject matter of protection

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http://www.youtube.com/watch?v=GfoviQ5iz1o

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Literay and artistic works

books, writings, plays

musical compositions

choreography

drawings, paintings

sculptures, architecture

cinematographic works

photography

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Art. 2(1) of the Berne Convention

‘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, pamphlets and other writings;

lectures, addresses, sermons and other works of the same nature;

dramatic and dramatico-musical works;…

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choreographic works and entertainments in dumb show;

musical compositions with or without words;

cinematographic works to which are assimilated works expressed by a process analogous to cinematography;

works of drawing, painting, architecture, sculpture, engraving and lithography;…

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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.

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(in the Netherlands)

A product is copyrighted in the Netherlands if there is an expression that ´has its own original character and bears the personal stamp of the author´.

In other words: a work must be somewhat original.

Beautiful or ugly, good or bad, little effort or years of work: irrelevant!

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? - 1

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? – 2 Software

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The design (functionalities)

The Source code

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Art. 4 of the WIPO Copyright Treaty

‘Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression.’

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? – 3 Alterations

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? – 4 Derivative works

Marcel Duchamp

The Mona Lisa With a Moustache

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Specific rules (2(3) BC

‘Translations, adaptations, arrangements of music and

other alterations of a literary or artistic work shall be

protected as original works without prejudice to the

copyright in the original work.’

copyright 1: original work

copyright 2: altered version

(remember the music)

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? – 5 Conversations

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Exclusion from protection

no protection unless fixed in some material form (art.

2(2) BC: optional)

official texts of a legislative, administrative and legal

nature, and official translations of such texts (art. 2(4)

BC: optional)

news of the day and miscellaneous facts having the

character of mere items of press information (art. 2(8)

BC: mandatory)

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Copyright: why??!

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Incentive for the creation of works

Stimulation of creativity and investment

Enhanced possibility of amortization

‘Natural’ period of market exclusivity

_________(only) the advantage of being first in the market)

‘Extended’ period of market exclusivity

__________________________________________

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Reward for creative work

Feelings of rightness and justice

Rights of the author inherent in the ‘very nature of things’

Exclusive possibility of exploiration

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Engine of freedom of expression

Contribution to the independence of authors

Limiting the influence of patronage

Exclusion of censorship

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In other words …

It just ain’ t right…

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Author, what do you get? (minimum rights)

Two branches of rights:

Exploration rights - General right of reproduction (art. 9 (2) BC)- General right of communication to the public (art 8 WCT)

Moral rights - Claim authorship- Object to any distortion, mutilation, modification or other

derogatory action (art. 6bis BC)

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In more ‘digital words’…

(European Copyright Directive)

Exclusive right to reproduce (art. 2)

Exclusive right to make available to the public (art. 3)

Exclusive right to distribute (art. 4)

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The copyright balance

Some limitations

What about ideas?

Idea/expression dichotomy: copyright only protects the individual way of expressing ideas, not ideas as such (art. 2 WTC)

What about the term of protection?

Must be limited! (a.o. art. 7, 7 bis BC)

However…. What limitation in time do we know?

life of the author + 50 years (art. 7 BC) ….

Life of the author + 70 years (EU)

Life of the author + 70 years or 95 or even 120 years ! (USA)

The mickey mouse copyright act

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Copyright, how do you get it?!

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II Copyright and the internet: what about …

Main rule: online, the same rules apply

Meaning…??

Hyperlinks?- A surface (=‘regular’) link- Deeplink?- Framed link?

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Kranten.com (newspapers.com)

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Downloading?

Uploading?

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Torrents

Torrent is a small file (around few kilobytes) with the suffix .torrent, which contains all the information needed to download a file the torrent was made for. That means it contains file names, their sizes, where to download from and so on. You can get torrents for almost anything on lots of web sites and torrent search engines.

Copyright infringement?

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Copyright on a website

The main question: who is responsible?

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An example

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An Example, classified advertising website

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Duty of care? - Is the site aware of the problem?- What part is played by website owner? - Notice and takedown-procedure?

Which party has to incur costs? Preventive scanning / Supervision? (considerable costs)Providing names unlawfully acting persons?Obliged to collect names?

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A different perspective (?)

Free Culture – Lawrence Lessig

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Creative Commons, use of internet

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Credits:Cartoon concept en design: Neeru Paharia | Originele illustraties: Ryan JunellPhotos: Matt Haughey | Vertaling: Michiel de Lange | Opmaak: Geert Wissink

Op dit stripverhaal is een Creative Commons Licentie van toepassing

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Does it work? Yes, it does.

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III Copyright, internet and DRM

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Digitalisering en auteursrecht: grote voordelen

Digital (potential) great possibilities for producers distribution / long tail – Chris Anderson)

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Digitize and copyright: in practice

The Cut and Paste-problem (copyright is flushed out)

Solutions (?):- Hearts and minds- Technics DRM: what may a user do with a work?- Legal weaponry

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A. Hearts and minds

http://www.youtube.com/watch?v=zOBroA2NPNY

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http://www.youtube.com/watch?v=lS-PemhvXHc http://www.youtube.com/watch?v=lf9T_Hppqjk

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B. Technics: DRM

TTPCertificatsMetadata als a waterbrand Encryption…

What, who, where, how many times

“The answer to the machine is in the machine”

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Who are not happy with DRM

Consumers …

… but also hardware-producers

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pro DRM

Protection rightholder

Stimulating (digital) economy (that’s where IP rights are for, remember?)

Enables various (free) price fixing (‘lite’)

Ties the consumer to the provider

….

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C. Legal measures in order to enable effective DRM

Digital Rights Management (Digital Restriction Management)

Copyright Directive (art. 6)

“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 as provided for by law or the sui generis right provided for in Chapter III of Directive 96/9/EC.

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Copyright vs DRM - limitations

(European Copyright Directive)

Exclusive right to reproduce (art. 2)

Exclusive right to make available to the public (art. 3)

Exclusive right to distribute (art. 4)

Limitations- In time- Not protected by a copyright- Education exception- Caching exception- ‘Right’ to quote- Press exception

Circumvention technology vs limitations

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The end of DRM?

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Questions?

Bird & Bird is an international legal practice comprising Bird & Bird LLP and its affiliated businesses. www.twobirds.com

bart.beuving@twobirds.com

+31 (0)70 – 353 88 25