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Authors Rights and
Related Rights
REGIONAL MASTER STUDIES IN CULTURAL POL ICY AND
MANAGEMENT
(INTERCULTURALISM AND MEDIATION IN THE BALKANS)
UNIVERSITY OF ARTS BELGRADE
Prof. Dr. Delia Mucica
November 2008
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What is copyr ight?
Intellectual Property
CopyrightAuthor Rights and
Related Rights
Industrial Property
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About Property
Property :
Exclusive right of the owner to use it as he/she
wishes and to forbid its use by anybody else
Material Property
Movable property
Immovable property Immaterial Property
Intel lectu al property
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In tel lectual Property
Intel lectu al property sh all includ e righ ts relat ing to :
literary, artistic and scientific works,
performances of performing artists, phonograms, and
broadcasts, inventions in all fields of human endeavour,
scientific discoveries,
industrial designs,
trademarks, service marks, and commercial names anddesignations,
protection against unfair competition,
and all other rights resulting from intellectual activity inthe industrial, scientific, literary or artistic fields.Convention Establishing the World Intellectual Property Organization (WIPO) of1967
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How are protected authors rights?
A system of international legally binding instruments
International standards of minimum protection
A UN organization responsible for administeringthese instruments and for developing new ones,
where necessary - WIPO
Dispute-Settlement Mechanisms
And
National Regulatory Systems
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Copyright - International Instruments
International Treaties concerning Copyright
International Treaties concerning Related
Rights
Trade-related Treaties and Regulations
EU Copyright Directives
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International Treaties
on Copyright
Berne Convention for the Protection of
Literary and Artistic Works, 1886 Universal Copyright Convention, 1952
TRIPS Agreement, 1994
WIPO Internet Treaty on Copyright, 1996
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Main Principles (Berne Convention)
National Treatment(foreign works as national)
Automatic Protection(no prior procedures)
Independent Protection(independent of the protection
in country of origin)
Minimum rights and minimum level of protectiongranted to authors
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A Little Bit of History (contd)
Thus, copyright, as a branch of law, has been widenedto cover related rights:
the r ights of interpreters and performers in theirown per formance
The r ights o f broadcasters in their own b roadcasts
The r ights o f phonogram producers in thei r ownrecord ings
The r ights o f videogram producers in their own f i rstf ixat ions
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A Little Bit of History (contd)
Copyright was extended to new works -software,multimedia, etc
Copyright was extended to cover new modes of
exploitation of works (reprography, broadcast, cableand satellite transmission and retransmission, Internetetc.)
Rights owners were also recognized new rights:
Lending r ight
Rental r igh t
Resale righ t
Making available righ t
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Berne Convention for the Protection of
Literary and Artistic Works
Purpose
to protect in an effective manner and in a way asun i form as pos sib le the rights o f autho rs in their
literary and artistic works
Adopted 1886
Revised:
Paris, 1896
Berlin, 1908
Rome, 1928
Brussels, 1948
Stockholm, 1967
Paris, 1971
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Universal Copyright Convention
Administered by UNESCO
Lower level of protection than in the Berne Convention
Specially designed for Third World countries and
communist countries
Extensive system of legal/compulsory licenses
Lost its purpose
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The TRIPS Agreement (WTO Agreement on
Trade Related Aspects o f Intel lectual Property
Rights)-1995 application of the basic principles of the trading system
and of other international legal instruments on intellectual
property;
protection of copyright by incorporation of the BerneConvention provisions, with the exception of those related
to moral rights, which the TRIPS Agreement does not
cover;
adequate enforcement of rights; dispute settlement mechanisms;
The basic pr inc ip lesof th e TRIPS Ag reement are:
the princ iple of national treatment and
the princip le of mos t-favou red-nation treatment.
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The TRIPS Agreement (Contd)
Cultural exception as derogatory (exception) from the
principle of free trade in cultural services
Cultural diversityand Cultural identityas
fundamental principles of cultural policies
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WIPO Copyright Treaty (WCT)
The Internet Treaty, 1996
Necessity to update copyright law for the digital
environment.
Two contrasting views: the except ions and l imi tat ions p rovided for in
the exist ing instrum ents can be carr ied
forward and extended in th e digi tal
envi ronment
the Berne Convent ion does not pro vide for ful l
co verage of the rights of communicat ion to the
pub l ic and d ist r ibut ion in th is new
environment.
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In ternat ional Instruments on Related
Rights
Rome Convention, 1961
Geneva Convention, 1971
Satellite Convention, 1974
WIPO Internet Treaty on Related
Rights, 1996
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Internat ional Convent ion for the Protect ion of
Performers, Producers of Phonog rams and
Broadcasting Organizat ions, 1961, Rome
Provides for protection of the neighbouring rights of:
Perform ers and in terpreters
Producers of phonograms
Broadcast ing organisat ions.
The safeguard clause - protection of copyright must inno way be affected by the protection of neighbouringrights
Formalities - P
Principles: National Treatmen t
Minimum Protect ion
jointly drafted by BIRPI (the predecessor organisation to
WIPO), UNESCO and the International Labour Office
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Geneva Convention,1971
Convention for the Protection of Producers of
Phonograms against Unauthorized Duplication of TheirPhonograms, 1971
addressed especially the phenomenon of piracyin
relation to phonograms - piracy agreement from 1971
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Satellite Convention, 1974
Convent ion relat ing to the Distr ibut ion of
Programme-carry ing Signals transm it ted by
Satel l i te, adopted at Bru ssels in 1974
Answers the need to provide protection for
broadcasting organisations for the distribution of
programme-carrying signals transmitted by satellite.
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Counci l of Europe Ins truments
European Convention on Transfrontier Television of1989 and its Amending Protocol of 1998.
European Convention relating to questions on Copyright
Law and Neighbouring Rights in the Framework ofTransfrontier Broadcasting by Satellite of 1994.
European Convention on the Legal Protection ofServices Based On, or Consisting Of, ConditionalAccess of 2000.
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EU Ins truments
A rigorous, effective system for the protection of
copyright and related rights is one of the main ways ofensuring that European cu ltural creativi ty and
produc t ion receive the necessary resou rces and of
safeguarding the independence and digni ty of
artistic creators and performers.
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EU Instruments (contd)
Council Directive 91/250/EEC of 14 May 1991 on the legalprotection of computer programs
Directive 2006/115/EC of the European Parliament and of theCouncil of 12 December 2006 on rental right and lending right andon certain rights related to copyright in the field of intellectualproperty (codified version) (former Council Directive 92/100/EEC of
19 November 1992 on rental right and lending rightand oncertain rights related to copyright in the field of intellectual property /repealed).
Council Directive 93/83/EEC of 27 September 1993 on thecoordination of certain rules concerning copyright and rights relatedto copyright applicable to satellite broadcasting and cableretransmission
Directive 2006/116/EC of the European Parliament and of theCouncil of 12 December 2006 on the term of protection of copyrightand certain related rights (codified version) (former Council Directive93/98/EEC of 29 October 1993 harmonizing the term of protectionof copyright and certain related rights - repealed).
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EU Instruments (contd)
Directive 96/9/EC of the European Parliament and of the Council of11 March 1996 on the legal protection of databases
Directive 2001/29/EC of the European Parliament and of theCouncil of 22 May 2001 on the harmonization of certain aspects ofcopyright and related rights in the information society
Directive 2001/84/EC of the European Parliament and of theCouncil of 27 September 2001 on the resale rightfor the benefit ofthe author of an original work of art
Directive 2004/48/EC of the European Parliament and of theCouncil on the enforcement of intellectual property right
Commission Recommendation 2005 on collective cross-bordermanagement of copyright and related rights for legitimate onlinemusic services
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What is protected by copyr igh t?
Literary, artistic and scientific works which areor ig inal expression sof an intellectual creation
Two conditions:Materializationof intellectual creation
Original i ty(not novelty)
Protects only creativity in the choice of words,
musical notes, colours and shapes, expressions -not ideas
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What is no t pro tected?
3 categories:
Do no t meet the cr i ter ia for pro tect ion:
mere facts, mere data
Ideas, methods of operation, procedures
Are protected by another body of LawIndustrialProperty Law
inventions, innovations, scientific discoveries, concepts
There is an overr id ing publ ic interestin their unhindereduse and circulation:
regulatory texts, official documents and their officialtranslations
official insignia, flags, anthems, decorations
currency notes and coins, payment instruments
court decisions and their official translations
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About the autho rs and thei r works
The author is a naturalperson
One authorind iv idual wo rk
Two or more co-authorsjo in t au thorsh ip:
Common workscollaborative works -
contributions can be identified and distinct rights canbe ascribed to each co-author for separateexploitation of each contribution, without prejudice tothe exploitation of the common work
Col lect ive worksno possibility to identify the
contribution of each co-author and to ascribe adistinct right to each for separate exploitation of eachcontribution (one may be the main author)
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Proo f of autho rship
Legal presumption of authorship in favour of the naturalperson whose name appear on the work in the usualmanner
Burden of proof in case of litigationplaintiff Proofby any means acceptable under national
legislation
NO COMPULSORY REGISTRATION
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What r igh ts has the author o f a pro tected
work?
Personal, exclusiverights of the author to authorize
and p reventthe use and exploitation of his/her work and
to derive benefitsfrom it
2 categories of rights:
Econom ic Rights
Moral Rights
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Moral Rights
The Berne Convention:
Paterni ty r igh t
to claim authorship of an intellectual work
to decide under what name the work will becommunicated to the public (own name, pen name,
anonymous)
to oppose to any person which might claim
authorship
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Moral Rights (contd)
Integr i ty Righ t
To object to any distortion, mutilation or other
modification of, or other derogatory action in relation
to, the said work
Which would be prejudicial to the honour or reputation
of the author
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Moral Rights (contd)
Not in the Berne Convention, but more and moreaccepted in national laws:
Disclosu re Righ t
The right to decide whether, when and howthework will be disclosed ( first public performance orcommunication to the public)
Withdrawal r igh t
The right to cease, withdraw from, any agreement
entered for the disclosure of the work, before itsdisclosure and with due compensation to thebeneficiary of the assignment of rights for expensesincurred
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More about moral r ights
Personal and exclusive rights of the author
Preserve the personal link between the author and
his/her work Not tradable or alienable
Usually lasting as long as the work exists (exceeding
duration of economic rights)
Cannot be the object of ex anterenunciation Violations are generally criminal offences
Means of redress: penal and civil liability
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Econom ic Rights
Personal and exclusive rights of the author whichallow him/her to derive f inancial
compensat ion/rewardfrom the use of his/her workby others by authorizing or preventing certain actsin relation to the work
Generally not saleable
Exercise of rights can be transferred
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What are the econom ic r igh ts of the
author?
Right of reprodu ct ion and related r ights
Reproduct ion - the most basic rightpreventing othersfrom making copies of the protected work
Distr ibut ion
Importat ion
Rental
Lending
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What are the econom ic r igh ts of the
author? (contd)
Righ ts of Publ ic performance, broadcast ing and
communicat ion to the pub l ic
Publ ic performance
In a place where the public is or can be present
In a place not open to the public but where asubstantial number of persons outside the normal
circle of a family and its closest social acquaintancesis present
Live performances
Public performances of reproductions
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What are the econom ic r ights o f the author?
(contd)
Broadcast ing
Transmission by wireless means for public reception
of sounds or of images and sounds
Radio, Television, Satellite
Communication to the publ ic
Distribution of a signal, by wire or wireless means
Equipment necessary for reception Cable, Movies
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What are the econom ic r igh ts of the
author? (contd)
Translat ion and Adaptat ion Rights
Translat ionexpression of a work in another language
Adaptat ion modification of a work
to c reate another work
to make i t sui table for d i f ferent co ndi t ion s o f
explo i tat ion
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What are the econom ic r igh ts of the
author? (contd)
Resale Righ t
Granted to authors of original work of art (painting,
sculpture, etc)
Interest in any public resale of his/her work, subsequent
to first transfer:
Collection of a certain sum of money
Right to know the location of work
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Going Digital
New technological means for
New uses
New forms Wider possibilities for infringement of protection
Solut ions?
New rights: the making avai lable to the publ ic
Legal protect ion and effect ive remedies
Technological pro tect ion
Collect ive management
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WIPO Treaty
Art. 11 adequate legal protection and effective legalremedies against the circumvention of effectivetechnological measures that are used by authors in
connection with the exercise of their rights under thisTreaty or the Berne Convention and that restrict acts, inrespect of their works, which are not authorized by theauthors concerned or permitted by law.
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The Making-Available Right
WIPO Treaties and Directive 2001/29/EC
Exclusive r ight of autho rs, performers, phonogram
producers (fi lm p roducers, broadcasters) toauthorize and prohibit any form of communication to
the public by wire or wireless means, including in such
a way that members of the public may access the
works or other protected material f rom a place and ata t ime indiv idu al ly chosen by them(on-demand
services)
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Protect ion of databases
Directive 96/9/EC of the European Parliament and
of the Council of 11 March 1996 on the legal
protection of databases Creates a su i generis exclusive right for
database makers irrespective of whether the
database in itself qualifies for traditional copyright
protection or not Protection of investments and furthering
development of digital environment
15 years
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Lim i tat ions on r ights
Particular acts of exploitation normally requiring theauthorization of rights owner, may, under specific
circumstances specified in the law, be done withoutauthorization
Such exceptions must comply with the three-stepstest(art. 9.2 Berne Convention):
In c ertain s pecial cases
Do no t con f l ic t wi th a normal explo i tat ion of the
work
Do not u nreasonably p rejudice the legi t imate
interests of th e autho r
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Lim i tat ions on r igh ts. What kind of uses?
Free uses
No authorization
No material
compensation
News co verage
Quotat ions
Educational purposes
Modif icat ions:
For private use
Parody and caricature
Consistent with the purpose of the
use intended and permitted by the
author
Test ing of fun ct ion ing of equipments
Copying by broadcaster for the
exercise of r igh ts granted
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Lim i tat ions on r igh ts.
What kind of uses? (contd)
Non-voluntarylicenses
No authorization
Materialcompensation
Private cop ying
Broadcast ing of
commercial phonograms
Communication to the
pub l ic in publ ic spaces
(dis cos, restaurants , ho tel
lobbies, buses, trains etc)
of commercialphonograms o r broadcast
programs
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Duration of rights
Generally
Berne Convention50 years
Directive 93/98/EEC70 years
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How can the authors exercise their exclusive
rights?
Economic rights may be transferredvia:
Ass ignments(transfer of a property right)
Licenses (transfer of the exercise of the right, for aspecific period and a specific purpose)
Licenses are:
exclus ive (may no t autho rize others)
non-exc lus ive ( may autho rize others) A license does not generally convey the right to
authorize others to carry out acts covered byeconomic rights
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Remunerat ions
Primary remunerat ion (for primary use authorized)
Secondary remunerat ions:
Royalties
Material compensations for certain uses: private
copying, public lending, mechanical reprography
etc.
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In f r ingement o f r igh ts
Violat ions of moral r ights
Vio lat ions of econom ic r ights
Remedies and sanctions:
Provided for in the law
Criminal liability
Civil liability Contractual liability
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Piracy
Simple piracy -unauthorised duplication of an original
recording for commercial gain without the consent of the
rights owner, in a different packaging than that of the
original; Counter fe i t ingcopying and packaging to resemble
the original as closely as possible
Boot legging -unauthorised recordings of live or
broadcast performances.
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Collective management of rights
Licensing may also take the form of collective
administration of rights
What rights?
Rights for which individual exercise is:
Impract icable(large number of works and/or large
number of users)
impossib le
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Remunerat ion sys tems
Based on cop yr igh t law and pr incip les(fair,
equitable remunerationaccording to actual use of
specific worktariffs negotiated between collecting
societies and users) Based on cultural regulation and policy
(levies, taxes, lump sums, budgetary allocations
etc.)
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Roles o f Governments
Inter-sectoral (integrative) policies
Regulation and Enforcement
Supervision of function of IP system (especially inrelation to TRIPS)
Facilitating the function of IP system:
Information
Education Awareness-raising
Collaboration with rights holders
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