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COPYRIGHTS
What is covered by Copyright?
As with all fields of intellectual property copyright is concerned with protecting the work of the
human intellect
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These
include writings, music, and works of the fine arts, such as paintings and sculptures, and
technology-based works such as computer programs and electronic databases
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So if you imagine a
plot, this, as such, is not protected
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Different
writers may build stories based on a similar plot
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Hence, for
example, Shakespeare’s play Romeo and Juliet would be considered as a creative expression of
that plot
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The Berne Convention (1886), which is the oldest international convention governing
copyright, states the following in its Article 2: "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 or dramatico-musical works;
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; photographic works, to which are assimilated works expressed by a process
analogous to photography; works of applied art; illustrations, maps, plans, sketches and threedimensional works relative to geography, topography, architecture or science
...
]
Collections of literary or artistic works such as encyclopedias and anthologies which, by reason
of the selection and arrangement of their contents, constitute intellectual creations shall be
protected as such, without prejudice to the copyright in each of the works forming part of such
collections
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It should, however, be original
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In very general terms one may say that in countries belonging to the common law
tradition very little is required, other than that the work must not be a copy of another work and
that the author should have displayed a minimum amount of skill, labor and judgment in making
it
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A creative effort would be required
from the author that may go beyond mere skill, labor or judgment
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Such a list is not exhaustive
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” The expression “such as” opens the door to
creations other than the ones set out in the list
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What is meant by derivative works?
Another important feature of Article 2 of the Berne Convention is that it protects what is
commonly called “derivative works”
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Examples of derivative works include:
- translations of works into a different language;
- adaptations of works, such as making a film scenario based on a novel;
- arrangements of music, such as an orchestra version of a musical composition initially written
for piano;
- other alterations of works, for example an abridgement of a novel;
- compilations of literary and artistic works, such as encyclopedias and anthologies
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You would have to bear in mind that, before embarking in a derivative work, you must respect
the rights of the author of the initial work
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Making the translation without proper authorization would expose the
translator to the risk of being sued for copyright violation
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The two
concepts need to be taken in a very broad sense
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The key to this expression in fact is the word “works”
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So, if I have the idea of
painting “sunset over the sea”, anyone else can use the same idea, which is not protected
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What are the Rights Protected by Copyright?
In the introduction to this course it was explained that the most important feature of property is
that the owner may use it exclusively, i
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, as she/he wishes, and that nobody else can lawfully
use it without the owner's authorization
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For example, the owner of a car may use it "as she wishes," but this does not mean that
she may drive her car recklessly and create danger to others, nor that she may disregard traffic
regulations
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The owner of copyright in a protected
work may use the work as he wishes, and may prevent others from using it without his

authorization
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There are two types of rights under copyright: economic rights, which allow the owner
of rights to derive financial reward from the use of his works by others, and moral rights, which
allow the author to take certain actions to preserve the personal link between himself and the
work
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Traditionally and historically, the right of reproduction is the key, which
incidentally is reflected in the word copyright
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It covers the storage of
works in computer memories and of course the copying of computer programs on diskettes, CDROMS, CD- writeable ROMS and so on
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You perform a work
when you play a tune, for example, or when you act on stage, and over the year that right has
given rise to a number of other rights, such as the right of broadcasting and the right of
communication to the public, the latter being sometimes defined differently in various national
laws: broadcasting may actually form part of communication to the public, or they may be linked
parallel concepts, but typically all kinds of communication will be covered, broadcasting being
one, but cable distribution could be another, and Internet distribution another again Two were
mentioned and these were:
The right of reproduction – examples of this right were the right to authorize
photocopies, printed copies or copies of cassettes
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–
examples here were the right to perform the work e
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as a song and the rights to communicate
the work to the public and to broadcast it
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Right of Reproduction
The right of the owner of copyright to prevent others from making copies of his works is the
most basic right under copyright
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Likewise, the right of
a phonogram producer to manufacture and distribute compact discs (CDs) containing recorded
performances of musical works is based, in part, on the authorization given by the composers of
such works to reproduce their compositions in the recording
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Other
rights are recognized in national laws in addition to the basic right of reproduction
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The right of distribution is usually subject to
exhaustion upon first sale or other transfer of ownership of a copy, which is made with the
authorization of the rights owner
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However, as regards rental of such copies, an increasing number of national copyright
laws, as well as the TRIPS Agreement, have recognized a separate right for computer programs,
audiovisual works and phonograms
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Finally, some copyright laws include a right to control importation of copies as a
means of preventing erosion of the principle of territoriality of copyright; that is, the economic
interests of the copyright owner would be endangered if he could not exercise the rights of
reproduction and distribution on a territorial basis
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For example, many national laws traditionally allow
individuals to make single copies of works for private, personal and non-commercial purposes
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Rights of Public Performance, Broadcasting and Communication to the Public
Normally under national law, a public performance is considered as any performance of a work
at a place where the public is or can be present, or at a place not open to the public, but where a
substantial number of persons outside the normal circle of a family and its closest social
acquaintances is present
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Public
performance also includes performance by means of recordings; thus, musical works embodied
in phonograms are considered "publicly performed" when the phonograms are played over
amplification equipment in such places as discotheques, airplanes, and shopping malls
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When a work is communicated to the public, a signal is diffused by wire or cable,
which can be received only by persons who have access to equipment connected to the wire or
cable system
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Under some national laws, the exclusive right of the author or other owner of rights to authorize
broadcasting is replaced, in certain circumstances, by a right to equitable remuneration; although
such a limitation on the broadcasting right is less and less common
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Translation means the expression of a work in a language other than that

of the original version
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g
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Translations and adaptations are works protected by
copyright
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Economic rights of the type mentioned above can be
transferred or assigned to other owners usually for a sum of money or royalties depending on the
proposed usage of the work
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They always remain with the original author of the work
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Moral rights are different: they
are made up of two things, the first being the right of authorship
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It is basically the right to have
your name mentioned, for instance when the work is reproduced
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We can’t expect a disc jockey in a
discotheque to announce the composer, lyric writer, arranger and so on for every record he plays;
it doesn’t go that far obviously, but if you play a work at a concert – a classical concert of
modern music - the composer would clearly be entitled to have his name mentioned in the
program
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This is also
true of broadcasting in some cases, but not all the time
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Moral rights are the rights of respect, that is, the right to object to the work being
distorted or used in contexts that are prejudicial to the honor and literary and artistic reputation of
the author
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And he can oppose the distortion of the work in sucha way
that its cultural or artistic integrity is adversely affected
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You don’t have to do anything under the Berne Convention which
works on the principle of there being no formalities
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However, under some national legislation, notably in countries with common-law
traditions, the work does have to be fixed before it is protected
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You don’t even have to record it yourself: if you compose a melody, hum it casually in
the street and I manage to get it recorded, then it’s fixed
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The difference here is really not that important; it is basically a
question of the kind of proof you would need in a court in the very rare cases of works that are
not fixed in the normal way, such as ballet routines
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There could be a problem if you claimed that you had created a

ballet and that somebody had made a play of it
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” If it were not set down in some material form, proof
would be hard to provide
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So even if you think up a poem in your head, it’s protected
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Under
common law, on the other hand, you would have to have it fixed in some way, perhaps written
down or recorded on tape
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Some countries then impose formalities on their own citizens, which
they can do as the international conventions are concerned only with how foreign citizens are
treated
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These things are particularly important for American works
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Be that as it may, there is nevertheless
protection from the outset, so in fact it is not necessary to do anything, and that goes for all
Berne Convention countries
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Activities such as book
publishing, sound recording or film producing are usually undertaken by specialized business
organizations or companies, and not directly by the authors
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The compensation may take different forms, such as lump sum payments, or
royalties based on a percentage of revenues generated by the work
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For example, an
author of a novel written in English could sell to a publisher his reproduction and distribution
rights, as well as his translation rights and his adaptation rights in the novel
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Thus the author of a novel may assign or transfer his rights to publish and reproduce the novel
written originally in English to one publisher
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In addition he may assign the right to
adapt his novel into a film (or an opera or a play) to other persons
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Hence the copyright owner of a novel could assign to one

publisher the rights to publish the book in English, for a specific territory, say, the United States
of America, and for a period of 20 years
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The
combinations here are many and depend on the negotiations between the parties
As we have seen, assignments and transfers entail important consequences for the author
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He thus becomes the new owner of
such rights, for the agreed period of time and territory
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This is why many national copyright laws
contain provisions requiring that assignments be made in writing and signed by or on behalf of
the assignor, in order to be valid or effective
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How long does copyright protection actually last?
In principle, as long as the national law says, but the minimum requirement under the Berne
Convention is 50 years
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But there has been a tendency in recent years to prolong that protection
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There is thus a definite tendency to prolong protection from 50 to 70 years
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For example, for photographic works and works
of applied art, the minimum term of protection is 25 years after the making of the work
Limitations on Rights
Strictly speaking, the first limitation is the exclusion from copyright protection of certain
categories of works
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In
some (but not all) countries, moreover, the texts of laws, court and administrative decisions are
excluded from copyright protection
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There are two basic types of limitations in this category:
1) Free uses, which are acts of exploitation of works that may be carried out without
authorization and without an obligation to compensate the owner of rights for the use;
2) Non-voluntary licenses, under which the acts of exploitation may be carried out without
authorization, but with the obligation to compensate the owner of rights
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In respect of the right of
reproduction, the Berne Convention contains a general rule, rather than explicit detailed
limitations: Article 9(2) provides that member States may provide for free reproduction in

"certain special cases" where the acts do not conflict with a normal exploitation of the work and
do not unreasonably prejudice the legitimate interests of the author
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However, the ease and quality of this individual copying,
made possible by audio taping or videotaping and even more recent technological improvements,
has led some countries to narrow the scope of such provisions
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In addition to specific free uses enumerated in national laws, the laws of some countries
recognize the concept known as fair use or fair dealing, which allows use of works without the
authorization of the owner of rights, taking into account factors such as the following: the nature
and purpose of the use, including whether it is for commercial purposes; the nature of the work
used; the amount of the work used in relation to the work as a whole; and the likely effect of the
use on the potential commercial value of the work
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Such licenses are called "non-voluntary" because
they are authorized by the law and do not result from the exercise of the copyright owner's
exclusive right to authorize particular acts
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This was true in the
Berne Convention, which recognized two forms of non-voluntary licenses: firstly, to allow the
mechanical reproduction of musical works and secondly for broadcasting
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Whatever the situation in your country relating to copyright there will inevitably be
situations occurring where copyright is infringed so it is important to consider the types of
remedies the copyright owner can take
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The first is the galloping advances in the technological means
for creation and use (both authorized and unauthorized) of protected material, and in particular,
digital technology, which makes it possible to transmit and make perfect copies of any
"information" existing in digital form, including works protected by copyright, anywhere in the
world
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The TRIPS Agreement, which contains detailed provisions on the enforcement of rights, is
ample evidence of this new link between intellectual property and trade
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Conservatory or provisional measures have two purposes: first, to prevent infringements from
occurring, particularly to prevent the entry of infringing goods into the channels of commerce,
including entry of imported goods after clearance by customs; and second, to preserve relevant
evidence in regard to an alleged infringement
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In this way, the alleged infringer is prevented from relocating the suspected
infringing materials to avoid detection
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Civil remedies compensate the owner of rights for economic injury suffered because of the
infringement, usually in the form of monetary damages, and create an effective deterrent to
further infringement, often in the form of a judicial order to destroy the infringing goods and the
materials and implements which have been predominantly used for producing them; where there
is a danger that infringing acts may be continued, the court may also issue injunctions against
such acts, failure to comply with which would subject the infringer to payment of a fine
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The purpose of punishment is served by the imposition of substantial fines
and by sentences of imprisonment consistent with the level of penalties applied for crimes of
corresponding seriousness, particularly in cases of repeat offenses
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Measures to be taken at the border are different from the enforcement measures described so
far, in that they involve action by the customs authorities rather than by the judicial authorities
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The purpose of the
suspension into circulation is to provide the owner of rights a reasonable time to commence
judicial proceedings against the suspected infringer, without the risk that the alleged infringing
goods will disappear into circulation following customs clearance
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The final category of enforcement provisions, which has
achieved greater importance in the advent of digital technology, includes measures, remedies
and sanctions against abuses in respect of technical means
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Technical devices are also used to
prevent the reception of encrypted commercial television programs except with use of decoders
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The theory
behind provisions against abuse of such devices is that their manufacture, importation and

distribution should be considered infringements of copyright to be sanctioned in ways similar to
other violations
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It dates
back to 1886, but has been revised several times, typically at about 20-year intervals
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The Berne Convention deals with the protection of
copyright
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It lays down very important minimum protection standards that have to be met by national law,
although of course national law can go further – and establishes various other principles
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This is the Agreement on Trade- Related Aspects of
Intellectual Property Rights, which is one of the
Agreements that emerged from the Uruguay Round of trade negotiations and is
administered by the World Trade Organization
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In order to comply with the TRIPS Agreement,
countries have to comply with the provisions of the Berne Convention for a start, after which
there are a number of additional norms of protection that are introduced by the TRIPS
Agreement, most importantly regarding new types of creations (computer programs and original
databases) and new forms of exploitation (right of rental)
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What benefits are there for developing countries from copyright protection?
There are cultural, as well as economic benefits
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All developing countries have very strong artistic communities
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Nowadays literary and artistic works have become a very broad concept, including of course the
cultural part, the artistic community, but also the information technology industry, or more
specifically computer program industry
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But if as soon as one copy is out on the market, everybody is allowed to copy
it, then the earning potential is gone and there will be no incentive to create or further invest
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That’s one aspect
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This would,
however, be a somewhat shortsighted view
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First, if protection were to be limited only to
national works, foreign works would be allowed into the local market without any copyright
cost
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Of course, consumers may benefit from such low prices
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The dangerous
result is that consumers might turn their backs on nationally made products and buy foreign but
less expensive products
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Second, one cannot emphasize enough the gains that local artists and creators, whether in
developing countries or not, may derive from protection of their works abroad
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Nowadays, and thanks to modern means of communications, works are
listened to, or read, or seen, not only in the local community or country in which they have been
created, but also further afield
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Such a phenomenon can be observed frequently in the areas of
music, TV programs, software, film, books, etc
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And one has to be aware that an artist or a creator
from a particular country will not, in all likelihood, enjoy protection abroad, if foreign authors
and artists are not also themselves granted protection in his or her country
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The Berne Convention expansively listed 'literary and artistic works' so that “every production in
the literary, scientific and artistic domain, whatever may be the mode or form of expression”,
were included
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The owner of copyright in a protected work may use the work as
he wishes, and may prevent others from using it without his authorization
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There are two other types of rights covered under copyright: economic rights
and moral rights
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Moral rights will always remain
with the original holder no matter whether the economic rights have been transferred
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This is multimedia production and although there is no legal definition, there is a
consensus that the combination of sound, text, and images in digital format, which is made
accessible by a computer program is considered an original expression of authorship and is
therefore covered under the umbrella of copyright

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