Copyright Law

First Edition, 2012

ISBN 978-81-323-3530-6

© All rights reserved.

Published by: University Publications 4735/22 Prakashdeep Bldg, Ansari Road, Darya Ganj, Delhi - 110002 Email: [email protected] 

Table of Contents Chapter 1 - Australian Copyright Law Chapter 2 - Canadian Copyright Law Chapter 3 - Copyright Law of the European Union Chapter 4 - French Copyright Law Chapter 5 - Japanese Copyright Law Chapter 6 - Philippine Copyright Law Chapter 7 - Copyright in Russia Chapter 8 - Spanish Copyright Law Chapter 9 - Copyright Law of the United Kingdom Chapter 10 - United States Copyright Law Chapter 11 - Hong Kong Copyright Law & German Copyright Law Chapter 12 - Irish, Jordanian & Dutch Copyright Law Chapter 13 - Swiss Copyright Law & Indian Copyright Law Chapter 14 - Copyright Law of New Zealand & South Africa

Chapter- 1

Australian Copyright Law

Australian copyright law defines the legally enforceable rights of creators of creative and artistic works under Australian law. The scope of copyright in Australia is defined in the Australian Copyright Act 1968 (as amended), which applies the national law throughout Australia. Designs may be covered by the Copyright Act (as sculptures or drawings) as well as by the Design Act. The Australian legislation is based on the authority of section 51(xviii) of the Australian Constitution. Copyright law in Australia is federal law and established by the Australian Parliament. Historically, Australian copyright law followed British copyright law, but now also reflects international standards found in the Berne Convention for the Protection of Literary and Artistic Works, other International copyright agreements and multilateral treaties, and more recently, the U.S.-Australia Free Trade Agreement.

History Australian copyright law has historically been influenced by British copyright law and International copyright agreements. In turn Australian copyright law has influence copyright law in British and the Commonwealth. Australian copyright law originates in British copyright law and which was established by the British parliament through the Australian Courts Act 1928. The British Statute of Anne 1709, which awarded copyright protection to books, acted as a blueprint for the extension of copyright to new types of subject matter in the 18th and 19th Century. When copyright law was introduced into Australia in 1928 British copyright law had been extended beyond literary property to include engravings and sculptures. Over the course of the 19th century it was extended to other works, including paintings, drawings and photographs. Prior to Australia's federation in 1900, a number of Australian Colonies, later states, had enacted copyright laws. In part this was done to mitigate the inadequacy of the protection afforded to Australian authors by British copyright law. The state laws continued to apply

after the federal Commonwealth of Australia was established in 1900. The laws operated in concurrency with the British copyright law that was in force in the colonies. The Australian Constitution gives the federal parliament power to make laws relating to copyright and intellectual property, concurrently with the states. Section 51(xviii) of the Commonwealth Constitution provides that "the Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to, inter alia, copyright, patents of inventions and designs, and trademarks". As a immediate consequence copyright law was no longer established at state level, but by the federal parliament. The first federal Australian copyright law was the Copyright Act 1905. It was a departure from British copyright law, but the subsequent Copyright Act 1912 applied the British Copyright Act 1911 to Australia from 1 July 1912. The British 1911 Act formed the basis of the British imperial copyright system. The Australia 1912 Act was its adoption in Australia. The Copyright Act 1911 made important changes in copyright law and practice. The 1911 Act abolished common law copyright in unpublished works, hence completing the process that begun with the 1774 House of Lords decision in Donaldson v Beckett, which held that copyright was a creature of statute. The imperial copyright system continued until 1968. During that time, the scope of the system (by changes in the UK Act) was expanded to include architecture, sound recordings and motion pictures.

Copyright Act 1968 In Australia, the Copyright Act 1911 (UK) remained in force until the Copyright Act 1912 (AU) was replaced by the Copyright Act 1968, which came into force on 1 May 1969. The 1968 Act remains in force today, with numerous amendments. The 1968 Act was passed into law in response to recommendations of the Spicer Committee, which had been appointed by the Australian Attorney-General in 1958 to review the 1912 Act to see what changes were necessary for Australia to ratify the Brussels Act of the Berne Convention for the Protection of Literary and Artistic Works. The adoption of the 1968 Act was also underlined by the collapse of the imperial system after the passage of the new British Copyright Act 1956. The 1968 Act has been modified on a number of occasions. The first major review occurred in 1974 when the Whitlam Government appointed the Copyright Law Committee, chaired by Justice Franki, to examine the impact of reprographic reproduction on copyright law in Australia. The committee was also asked to examine the impact of photocopying and "to recommend any alterations to the Australian copyright law to effect a proper balance of interest between owners of copyright and the users of copyright material in respect of reprographic reproduction." During its deliberation the Franki Committee observed that because Australia was a net importer of copyrighted works it should be careful to not adopt too radical solutions. The Franki Committee recommended, amongst others, the adoption of a statutory licensing scheme. When commencing its review the Committee stated that the primary purpose of copyright law was:

"...to give to the author of a creative work his just reward for the benefit he has bestowed on the community and also to encourage the making of further creative works. On the other hand, as copyright in the nature of a monopoly, the law should ensure, as far as possible, that the rights conferred are not abused and that study, research and education are not unduly hampered."

Copyright Law Review Committee (CLRC) The 1980s and 1990s saw a range of inquiries into many aspects of copyright law. A key driver for those reviews was the establishment of the Copyright Law Review Committee (CLRC) in 1983 as an advisory body for copyright reform. The CLRC was disbanded in 2005 by the Australian government after it had produced a number of reports. Notable reports include: The meaning of Publication in the Copyright Act (1984), Use of Copyright materials by Churches (1985), Performers' Protection (1987), Moral Rights (1988), Report of Journalists' Copyright (1994), Computer Software Protection (1994), Simplification of the Copyright Act: Part 1 (1998), Simplification of the Copyright Act: Part 2 (1999), Jurisdiction and Procedures of the Copyright Tribunal (2002), Copyright and Contract (2002) and Crown Copyright (2005). The CLRC also published reports on specific areas of copyright, including Highways to Change: Copyright in the New Communications Environment: report by the Copyright Convergence Group on technological advancement and the ability of legislation to cope with change (1994), Stopping the Rip-Offs: intellectual Property Protection for Aboriginal & Torres Strait Islander Peoples (1994), the Simpson Report 1995, long title Review of Australian Copyright Collecting Societies, the Bently and Sherman Report 1995, long title Performers' Rights: Options for Reform, The Janke Report 1999, long title Our Culture, Our Future, and the Ergas Report 2000, long title Report on Intellectual Property legislation under Competition Principles Agreement.

Copyright Amendment Act 2006 The Copyright Amendment Act 2006 made changes required by the US-Australia Free Trade Agreement. In particular, it strengthened anti-circumvention laws, for the first time making it illegal in Australia to circumvent technical measures used by copyright owners to protect access to their works, and expanding the measures which count as technological protection measures which may not be circumvented. Like the FTA language, the new anti-circumvention law is closely modeled on the US DMCA, although it is not identical. The Act also introduced a series of new exceptions into Australian copyright law. The most well known are the private copying exceptions, which follow on from proposals by former Attorney-General Philip Ruddock to allow people to record most television or radio program at home to watch at a later time with family or friends, and to 'format-shift' their music (make copies from CDs onto personal computers and portable music players such as iPods). Unlike some countries in Europe, or Canada, there is no fee or license paid on players to compensate copyright owners for these private copies, although the exceptions are narrowly defined, and do not allow, for example, making copies for

friends or family. The Act also introduced a copyright exception allowing parody and satire, and an exception to allow certain non-commercial use by public sector institutions like universities, schools, art galleries, and archives, provided that an Australian court decides an exception would be consistent with the Berne three-step test. The other notable change made by the Act was to expand the provisions concerning criminal copyright infringement. The Act introduced strict liability offences for some copyright infringements, and a system of 'Infringement Notices' (on the spot fines). The stated aim of these provisions is to make copyright easier to enforce, particularly against commercial infringers. After concerns from user groups and a Senate Committee, many strict liability offences that would have applied to non-commercial acts were removed from the final bill. A discussion of the Act and its changes by the Senate Standing Committee on Legal and Constitutional Affairs is available here.

Protected subject matter, exclusive rights and infringement Australian copyright law has been influenced significantly by the structure of English law, in addition to the Berne Convention and other international copyright treaties. Thus there is an exhaustive set of types of material protected, and an exhaustive set of exclusive rights. In terms of the types of material, Australian law confers rights in works, also known as "Part III Works" (after the Part of the Act dealing with this): namely, literary works, musical works, artistic works, and dramatic works. It also confers rights in "other subject matter" (Part IV Subject Matter), which cover the kinds of material protected in some countries by 'neighbouring rights': sound recordings, films, broadcasts, and published editions. To be protected, material must fall into one of these exclusive categories. The rights in Part IV subject matters are more limited, because infringement requires exact copying of the actual subject matter (sound-alikes or remakes are not covered). In terms of the exclusive rights, different kinds of subject matter have different rights. Owners of copyright in works have rights to reproduce, publish (meaning publish for the first time), perform, and adapt the work, and communicate it to the public (including broadcast, or communicate by making available online). The rights of owners of copyright in artistic works are more limited (there is no right to control public display of artistic works). Owners of copyright in other subject matter have the exclusive right to make copies, to communicate them to the public, and to cause them to be heard/seen in public. Infringement occurs where a person does an act falling within the copyright owner's exclusive rights, without the authorisation of the copyright owner (assuming that one of the exceptions does not apply).

Duration of copyright Prior to the U.S.-Australia Free Trade Agreement, Australia used a "plus 50" rule for determining when a work will enter the public domain. Put simply, a "work" (i.e. a literary, dramatic, musical or artistic work) entered the public domain 50 years following the year of the creator's death, with exceptions. With the signing of the FTA in early 2005, copyright should now be understood as "plus 70", in line with the European Union and other regions. The extension to "plus 70" was not applied to Crown-owned copyrights. Similar to the foreign reciprocity clause in the European Union copyright law, the "plus 70" rule is not retroactive. In short, this can be interpreted as:  

Any work that was published in the lifetime of the author who died in 1956 or earlier, is out of copyright. Any work that was published in the lifetime of the author who died after 1956, will be out of copyright seventy (70) years after the author's death.

Also any work that was published after the death of the author, will be out of copyright seventy (70) years after the year of first publication. Unpublished works hold copyright indefinitely. Photographs, sound recordings, films, and anonymous/pseudonymous works are copyright for seventy (70) years from their first publication. Television and sound broadcasts are copyright for only fifty years after the year of their first broadcast (though the material contained in the broadcast may be separately copyrighted). Most other works are also dated from the first publication/broadcast/performance where this occurred after the author's death. The period of seventy (70) years is counted from the end of the relevant calendar year. The United States Sonny Bono Copyright Term Extension Act (1998) defines an entirely different rule based on the year of first publication in the US: generally, anything published before 1923 is public domain. An interesting consequence of this for the Internet is that a work may be public domain in the US but not in Australia, or vice versa. It is important to note that except for the works falling under the "Rule of the shorter term", copyright does not depend on the country of origin, the country of publication, or the nationality the author. A work published in the US by a British author may still be public domain in Australia if the author died more than seventy (70) years ago or died before 1955. The duration of copyright has been criticized as a perversion of its purpose - copyright is intended to provide creators with financial incentive to create content, but the copyright does not expire until decades after the creator has died, limiting its use in derived works.

Fair dealing and other exceptions The main exceptions to copyright infringement in Australia come under the general hearing fair dealing. Fair dealing is comparable to the United States' fair use, is a use of a work specifically recognised as not being a copyright violation. However, unlike fair use, in order to be a fair dealing under Australian law a use must fall within one of range of specific purposes. These purposes vary by type of work, but the possibilities are:     

review or criticism research or study news-reporting judicial proceedings or professional legal advice parody or satire (added by the Copyright Amendment Bill 2006)

In order for a certain use to be a fair dealing, it must fall within one of these purposes and must also be 'fair'. What is fair will depend on all the circumstances, including the nature of the work, the nature of the use and the effect of the use on any commercial market for the work. Fair dealing is not the same as fair use, a term which is generally used in relation to the US's open ended exception, which allows any use (regardless of purpose) as long as it is 'fair'. This has, for example, been interpreted by US courts to allow for reasonable personal use of works, e.g. media-shifting, which would not necessarily be permitted under Australia's fair dealing laws. Australian copyright law does, however, have a number of additional specific exceptions which permit uses which may fall outside of both fair dealing and fair use. For example, a number of exceptions exist which permit specific uses of computer software. In late 2006, Australia added several 'private copying' exceptions. It is no longer an infringement of copyright to record a broadcast to watch or listen at a more convenient time (s 111), or to make a copy of a sound recording for private and domestic use (e.g., copy onto an iPod) (s 109A), or make a copy of a literary work, magazine, or newspaper article for private use (43C). Australia also has:   

a special division of exceptions applying to computer programs (for interoperability, security testing, normal use); a special division of exceptions applying to artworks in public places (to allow photography, incidental filming etc.); statutory (i.e. compulsory) licenses that allow use by schools, universities, and others on payment of a license fee set either by agreement or by the Copyright Tribunal (see below).

Because Australian copyright law recognises temporary copies stored in computer memory as 'reproductions' falling within the copyright owner's exclusive rights, there are

also various exceptions for temporary copies made in the ordinary course of use or communication of digital copies of works.

Moral rights In 2000, moral rights were recognised in Australian copyright legislation. Only individuals may exercise moral rights. The moral rights provided under Australian law now are: 

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A right of attribution o the right to be clearly and reasonably prominently identified as the author, in any reasonable form o the right to avoid false attribution, where the work is falsely presented as being another's work Integrity of authorship o the right to not have the work treated in a derogatory manner (this is a right to protect the honour and reputation of the author)

Automatic resale rights (royalty payments to the author on subsequent resales of the original and reproductions) are not covered by Australian legislation. To the disappointment of artists' groups, the Australian government quietly announced its intention not to pursue resale rights (droit de suite) in 2006. There are also proposals in Australia for the recognition of "Indigenous communal moral rights", aimed at assisting indigenous people to protect the integrity and sanctity of indigenous culture. A draft bill was circulated to a limited set of stakeholders in 2003; since then the Bill has been listed as one the government planned to pass, but has yet to be introduced. From mid-2007, performers have also been granted moral rights in recordings of their performances, similar, but not identical, to the moral rights granted to authors. These were introduced as a result of Australia's ratification of the WIPO Performances and Phonograms Treaty, which was required by the Australia's free trade agreement with Singapore, and the Australia-United States Free Trade Agreement.

Ownership of copyright Copyright is free and automatic upon creation of the work. In general, the first owner of copyright will be the author (for literary, musical, dramatic and artistic works) or producer (for sound recordings and films) or broadcaster (for broadcasts). Under Australian law, where an employee is the author, the first owner of copyright is the employer (this is slightly different to the US works-made-for-hire doctrine: in Australia, duration of copyright is still measured by the lifetime of the employee author). In 20042005, Australia also introduced some complicated provisions that give performers part

ownership rights in sound recordings, and directors some limited ownership rights in relation to films. A copyright notice (©) is not required on a work to gain copyright, but only the copyright owner is entitled to place a notice. It is useful in publishing the date of first publication and the owner. Where a copyright notice is used, the onus in infringement proceedings is on the defendant to show that copyright does not subsist or is not owned by the person stated in the notice.

Government-owned copyright The Australian Commonwealth and State governments routinely own copyright in Australia. While this could be seen as being due to the concept of the Crown being traditionally paramount rather than the people, it is more influenced by the then British Commonwealth acting as a copyright policy-making body in the 1950s, which was the basis of the 1968 Copyright Act. The Australian government does not infringe copyright if its actions (or those of an authorised person) are for the government. A "relevant collecting society" may sample government copies and charge the government. The State governments follow different practices in regard to licensing, fees and waivers. The Australian Attorney-General's Copyright Law Review Committee completed a large review of Crown Copyright in April 2005. In summary, the Committee recommended that the Crown be treated like any other employer (i.e., owner of material produced by its employees), and that for certain materials (legislation, government reports, commissions of inquiry reports) either copyright be removed, or a generous and generalised license be granted for re-use. As of early 2007, several governments appear to be considering the use of open licenses modelled along the lines of the Creative Commons model. Copyrights owned by the Crown in Australia have different durations to publicly held copyrights, as below: Published literary, dramatic or musical works (includes published official records) Unpublished literary, dramatic, musical works Artistic works Photographs taken before 1 May 1969 Photographs taken after 1 May 1969

50 years after the end of the year in which the work is first published Copyright subsists indefinitely 50 years from the end of the year when made 50 years from the end of the year when made 50 years from end of year of first publication

Composite copyright Material can contain multiple copyrights, that are not diminished by their combination or mingling. For example, each portion of a television broadcast is treated separately, such as the visual images, soundtrack, and any scripts.

Copyright Tribunal The Copyright Tribunal was established under the Copyright Act 1968, and has certain powers relating to royalties and licensing. It receives operational support from the Federal Court of Australia. It has been suggested that it is somewhat more sympathetic to rights owner interests rather than user interests; for instance, by ruling to increase royalty rates under the Part VB Educational Statutory licence without a submission to this effect from either party in c.2003. This would normally be considered unusual in a common law adversarial system.

Collecting Societies A number of copyright collecting societies operate in Australia. Collecting societies are established to collect royalties for uses of copyright material on behalf of authors and copyright owners: they assist to overcome the significant transaction costs that would face individual creators in monitoring, enforcing, and licensing their rights. A notable feature of some of the Australian collecting societies is that some are 'declared' to be the society with the function of being the sole collector of royalties under the statutory licenses. The collecting societies in Australia are:    

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Australasian Mechanical Copyright Owners Society Ltd (AMCOS): represents music publishers and writers from for rights in the reproduction of musical works; Australian Performing Rights Association (APRA): collects royalties for the owners of copyright in musical works for the performance of their musical works; Christian Copyright Licensing International (CCLI) Copyright Agency Limited (CAL): collects royalties for the reproduction of printed material, and in particular, administers the statutory licenses that allow educational institutions to copy and communicate printed material; Phonographic Performance Company of Australia Ltd (PPCA): collects royalties for performers for the broadcast, communication or public playing of recorded music; Screenrights: set up in 1990 to administer statutory licenses that let educational institutions copy from TV and radio for teaching; Visual Arts Copyright Collecting Agency (VISCOPY): licenses the copyright in artistic works.

Timeline of Australian copyright law

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1869 - First colonial copyright statute is passed in Victoria. South Australia, New South Wales and Western Australia enact similar laws in 1878, 1879 and 1895 respectively. 1901 - Federation of Australia. The Federal Parliament, pursuant to section 51(xviii) of the Australian Constitution, is granted the power to make laws with respect to "Copyrights, patents of inventions and designs, and trade marks." 1905 - Copyright Act 1905 (Cth) is passed. 1912 - Copyright Act 1912 (Cth) is passed. Pursuant to section 8 of that Act, the entire Copyright Act 1911 (Imp), passed by the Parliament of the United Kingdom, is enacted into the law of Australia. 1958 - In Copyright Owners Reproduction Society v E.M.I. (Australia) the High Court of Australia finds that the new UK copyright statute, the Copyright Act 1956, does not apply in Australia and the 1911 Imperial Act remains law. 1959 - The Committee to Consider What Alterations Are Desirable in the Copyright Law of the Commonwealth (Spicer Committee) delivers its final report. It recommends that the majority of provisions appearing in the Copyright Act 1956 (UK) should be adopted). However, another eight years passes before a new Australian statute is introduced. 1966 - Dr David Malangi Daymirringu's mortuary rites story bark painting was used by the Reserve Bank of Australia on the one dollar note without his permission. Compensation and credit were later supplied. 1968 - Copyright Act 1968 (Cth) is enacted. It repealed the 1912 and the accompanying 1911 statutes. 1973, 1976, 1977, 1979, 1980, 1981, 1982, 1983 - various amendments 1984 Amendment, defined computer program in the Copyright Act 1985, 1986, 1987, 1988 - various amendments 1989 - Copyright Amendment Act 1989 (repealed) o Levy introduced on blank tapes 1991, 1992 - various amendments 1992 - Autodesk Inc. v. Dyason (1992) 173 CLR 330 F.C. 92/001 o The High Court of Australia supported that the reproduction of a lookup table in an EPROM in a third-party hardware lock was an infringement of a literary work. 1993 amendment 1993 - Australian Tape Manufacturers Association Ltd And Others v. The Commonwealth Of Australia (1993) 176 CLR 480 FC 93/004 o The High Court struck down the 1989 levy as, essentially, badly located and unfair tax law and not a royalty. 1994 (3x) - various amendments 14 August 1997 - Telstra Corporation Limited v Australasian Performing Right Association Limited, 14 August 1997, FC 97/035, S 89/1996 o The High Court of Australia found that music-on-hold transmitted by Telstra was a copyright infringement 1998 (3x), and 1999 (2x) - various amendments 2000 - Copyright Amendment (Digital Agenda) Act 2000 - Copyright Amendment (Moral Rights) Act

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2001 - Law and Justice Legislation Amendment (Application of Criminal Code) Act 26 July 2002 - Kabushiki Kaisha Sony Computer Entertainment v Stevens [2002] FCA 906 (26 July 2002) o Federal Court decides that mod chips for Sony game consoles do not contravene copyright, due to representations from the Australian Competition and Consumer Commission (ACCC) as amicus curiae. 2003 - Copyright Amendment (Parallel Importation) Act o Made some provisions for parallel importing, affecting the 'grey market'. 2003 - Designs (Consequential Amendments) Act November 2003 - Three Australian students received criminal convictions for copyright infringement, receiving a mix of suspended sentences, a fine, and community service. 7 February 2004 - KaZaA's Sharman Networks and Brilliant Digital Entertainment in Australia were raided for copyright violations using Anton Piller orders, along with the University of NSW, University of Queensland, Monash University, Telstra BigPond and three Sydney Internet service providers. The investigation was backed by Universal, EMI, BMG, Festival Mushroom Records, Sony and Warner Music. 8 February 2004 - Australia and the United States agree the text for a bilateral free trade agreement (AUSFTA). The copyright-related parts of the Intellectual Property Chapter were: o Longer duration of copyright o Agreed standards for: copyright protection, copyright infringement, remedies and penalties o WIPO Internet Treaties to be implemented by "entry into force" of the FTA o Fast-tracking copyright owners engagement with Internet Service Providers and subscribers to deal with allegedly infringing copyright material on the Internet o Tighter controls on circumventing technological protection of copyright material, with a possibility of public submissions o Tougher on unauthorised satellite Pay-TV signal decoding 9 February 2004 - Australia and the United States sign the FTA. August 2004 - US FTA Implementation Act passes Senate, with amendments. References to documents and commentary. November 2004 - KaZaA case starts in Federal Court. December 2004 - Copyright Legislation Amendment Act passes, affecting parallel importing, temporary copies and Internet Service Providers' liability for taking down alleged infringing material. 1 January 2005 - The U.S.-Australia Free Trade Agreement (FTA) officially comes into force. September 2005 - Federal Court of Australia finds Kazaa liable for copyright infringement and hands down judgment in favour of Universal Music Australia Pty Ltd.

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December 2006 - Copyright Amendment Act 2006 (Cth) is passed. Effective January 2007, the Act (a) strengthens criminal infringement provisions, (b) adds new exceptions including for parody or satire, and private copying, (c) strengthens anti-circumvention law to make it more like the US Digital Millennium Copyright Act (as required by the Australia-US FTA), and (d) makes some changes to provisions affecting libraries and educational institutions.

Chapter- 2

Canadian Copyright Law

Canadian copyright law governs the legally enforceable rights to creative and artistic works under the laws of Canada. Canada passed its first colonial copyright statute in 1832 but was subject to imperial copyright law established by Britain until 1921. Current copyright law is established by the Copyright Act of Canada which was first passed in 1921 and substantially amended in 1988 and 1997. All powers to legislate copyright law are in the jurisdiction of the federal government by virtue of section 91(23) of the Constitution Act 1867.

History Colonial copyright law It is unclear to what extent British copyright law, or imperial law, starting with the 1709 Statute of Anne applied to then colonies including Canada. The first Canadian colonial copyright statute was the 1832 Copyright Act, long title “An Act for the Protection of Copy Rights”, passed by the Parliament of the Province of Lower Canada, granting copyright to residence of the Province. The 1832 Copyright Act was short, and declared ambitions to encourage emergence of a literary and artistic nation and to encourage literature, bookshops and the local press. After the Provinces of Upper and Lower Canada (Ontario and Quebec) were reunified to form the Province of Canada, the 1832 Copyright Act was repealed and with minor changes enacted as the 1841 Copyright Act, long title “An Act for the Protection of Copy Right in this Province”. The 1841 Copyright Act only granted copyright in books, maps, charts, musical compositions, prints, cuts and engravings. Copyright was only awarded if it was registered and a copy of the work deposited in the office of the registrar of the province before publication. The author or creator was required to be resident in the province in order to obtain copyright under the Act, though the Act was unclear on whether the work needed to have been first published in the Province. The objective of the colonial copyright statutes was to encourage the printing of books in Canada, though this was not

made explicit to avoid conflict with imperial copyright law, which was primarily designed to protect English publishers. Britain forcefully demanded guarantees that British and Irish subject were eligible for protection under Canadian colonial copyright law in the same way residence of the Canadian colony were. One year after Canada passed its colonial law on copyright, the UK Parliament passed a new imperial statute on copyright, the Copyright Act 1842. The statute explicitly applied to “all Parts of the United Kingdom of Great Britain and Ireland, the Islands of Jersey and Guernsey, all Parts of the East and West India, and all the Colonies, Settlements, and Possessions of the Crown which now are or thereafter may be acquired”. Any book published in London would therefore be protected by copyright law in the entire British Empire, including Canada, which was a young British colony. The imperial Copyright Act 1842 had an immediate impact on Canada and became infamous because it effectively prohibited the importation and sale of reprints of any book under British copyright printed in other countries. Previously Canada had mostly imported books from the United States, but it was now unlawful for Canadian merchants to engage in this trade. Instead merchants were required to import books under British copyright from printers in Britain, though British market prices were unaffordable for most residents of Canada. As British publishers systematically refused to license books for printing to Canadian printers, the Canadian Government questioned the responsible self-government arrangement. In a provocative move Canada passed “An Act to extend the Provincial Copyright Act to Persons Resident in the United Kingdom” in 1847, granting British authors protection only if their works had been printed and published in the Province of Canada. The 1841 and 1847 statutes were subject to minor revision in 1859 and the requirement for the works to be printed in Canada, buried in the text, was later noticed and denounced by the imperial British Government.

Artilce published in The New York Times June 1897 - "Music Pirates in Canada: American Publishers Say They Are Suffering by Copyright Violations There – Steps Taken for Redress. "Canadian pirates” is what the music dealers call publishing houses across the line who are flooding this country, they say, with spurious editions of the latest copyrighted popular songs. They use the mails to reach purchasers, so members of the American Music Publishers’ Association assert, and as a result the legitimate music publishing business of the United States has fallen off 50 per cent in the past twelve months.” The British North America Act 1867 became Canada’s first constitution and granted the Federal Government power to legislate on matters such as copyright and patents. In 1868 the Canadian Federal Parliament passed “An Act respecting Copyrights” re-establishing the publication requirements of the 1847 statute, prompting demand from the British

Government that Canada should revise its laws so as to respect imperial copyright law. Under imperial copyright London printers had a monopoly and attracted most authors from the colonies to first publish with them because imperial copyright law granted protection in all colonies. London printers refused Canadian printers the license to print books first published in London and authors had little incentive to first publish in Canada, as colonial copyright law only granted protection in Canada. The Canadian Federal Government thought to further strengthen the Canadian print industry with a 1872 bill that would have introduced a projected licensing scheme that allowed for a reprinting of books under foreign copyright in exchange for a fixed royalty. The British Government opposed the bill and it never received Royal Assent. In order to encourage the local printing and publishing industry Canada made a number of diplomatic and legislative efforts to limit the effects of the imperial Copyright Act 1842. In a compromise arrangement Canada passed the Copyright Act 1875 granting British authors protection under Canadian copyright law if they reprinted or republished their works in Canada. It received Royal Assent the same year and was subsequently amended in 1889, 1890, 1891, 1895, 1900 and 1906. The requirement of reprint and republication was always maintained. The Copyright Act 1921 eventually removed copyright from control of the UK Parliament.

The Copyright Act of Canada The first Copyright Act of Canada was passed in 1922 which came into force in 1924. Though Canada was no longer subject to imperial copyright law, it was closely modelled on the UK Copyright Act 1911. Until 1988 the Copyright Act of Canada saw only minor amendments while the Federal Government engaged in a number of studies on copyright reform. New technological developments and the emergence of computers, photocopiers and recording devices led to a recognition that copyright law needed to be updated. Between 1954 and 1960 the Royal Commission on Patents, Copyright, and Industrial Design, known as the Ilsley Commission, published a series of reports. Its brief was "to enquire as to whether federal legislation relating in any way to patents of invention, industrial designs, copyright and trademarks affords reasonable incentive to invention and research, to the development of literary and artistic talents, to creativeness, and to making available to the Canadian public scientific, technical, literary and artistic creations and other adaptations, applications and uses, in a manner and on terms adequately safeguarding the paramount public interest." In 1977 the Canadian department of Consumer and Corporate Affairs (now Industry Canada) published the Keyes-Brunet Report, a working paper with the full title "Copyright in Canada: Proposals for Revision of the Law". In 1984 the Federal Government published "From Gutenberg to Telidon: A White Paper on Copyright" and in 1985 the House of Commons' Standing Committee on Communications and Culture published "A Charter of Rights for Creators - Report of the Subcommittee on the Revision of Copyright".

Reform: Phase one 1988

Eventually a copyright reform process was initiated in two phases: Phase one was started in 1988 and saw several amendments to the original Copyright Act of Canada of 1922. Computer programs were included as works protected under copyright, the extend of moral rights was clarified, the provision for a compulsory license for the reproduction of musical works was removed, new licensing arrangements were established for orphan works in cases where the copyright owner could, and rules were enacted on the formation of copyright collecting societies and their supervision by a reformed Copyright Board of Canada.

Reform: Phase two 1997 Phase two of the reform took place in 1997 and saw the Copyright Act of Canada amended with a new remuneration right for producers and performers of sound recordings when their work was broadcast or publicly performed by radio stations and public places such as bars. A levy was introduced on blank audio tapes used for private copying and exclusive book distributors were granted protection in Canada. New copyright exceptions were introduced for non profit educational institutions, libraries, museums, broadcasters, and people with disability, allowing them to copy copyrighted works in specific circumstances without the permission of the copyright owner or the need to pay royalties. Damages payable for copyright infringement and the power to grant injunctions were increased, and the 1997 reforms introduced a mandatory review of the Copyright Act of Canada.

Bills to amend the Copyright Act In June 2005, the government introduced Bill C-60 to amend the Copyright Act. The bill was never passed into law as Parliament was dissolved after a motion of non-confidence was passed in November 2005. In Summer 2008, the government introduced Bill C-61 in their continuing effort to update the Copyright Act, with many similarities to the previous Bill C-60 and the American DMCA. The bill dies before it passed into law when the Conservative government called an election in September 2008. On June 2, 2010, Bill C32 was tabled.

Sources of law Like most other common law countries there are no inherent rights to works, performances, or sound recording at the common law. Copyright exists solely in statute. According to section 91(23) of the Constitution Act, 1867 the federal government is granted exclusive power to enact laws related to copyright. The evolution of copyright in Canada has been guided by international treaties signed by Canada that try to unify copyright laws across the globe. Canada is a party to the Berne Convention for the Protection of Literary and Artistic Works of 1886 and has signed but not yet ratified both the WIPO Copyright Treaty of 1996 and the WIPO Performances and Phonograms Treaty of 1996

Copyright Act of Canada Copyright Act of Canada is Canada's federal statute governing copyright law in Canada. The Copyright Act of Canada which was first passed in 1921 and substantially amended in 1988 and 1997. In 2005 a attempt to amend the Canadian Copyright Act was made but Bill C-60 did not pass into law before Parliament was dissolved in November 2005. A further attempt was made in 2008 but Bill C-61 did not pass into law before an election was called in September 2008. Bill C-32 was tabled in June 2010.

The original Canadian Copyright Act The first Copyright Act of Canada was passed in 1922 which came into force in 1924. Though Canada was no longer subject to imperial copyright law, it was closely modelled on the UK Copyright Act 1911. Until 1988 the Copyright Act of Canada saw only minor amendments while the Federal Government engaged in a number of studies on copyright reform. New technological developments and the emergence of computers, photocopiers and recording devices led to a recognition that copyright law needed to be updated. Between 1954 and 1960 the Royal Commission on Patents, Copyright, and Industrial Design, known as the Ilsley Commission, published a series of reports. Its brief was "to enquire as to whether federal legislation relating in any way to patents of invention, industrial designs, copyright and trademarks affords reasonable incentive to invention and research, to the development of literary and artistic talents, to creativeness, and to making available to the Canadian public scientific, technical, literary and artistic creations and other adaptations, applications and uses, in a manner and on terms adequately safeguarding the paramount public interest."

Reform in 1988 and 1997 In 1977 the Canadian department of Consumer and Corporate Affairs published the Keyes-Brunet Report, a working paper with the full title "Copyright in Canada: Proposals for Revision of the Law". In 1984 the Federal Government published "From Gutenberg to Telidon: A White Paper on Copyright" and in 1985 the House of Commons' Standing Committee on Communications and Culture published "A Charter of Rights for Creators - Report of the Subcommittee on the Revision of Copyright". A copyright reform process was initiated in two phases: Phase one was started in 1988 and saw several amendments to the original Copyright Act of Canada of 1922. Computer programs were included as works protected under copyright, the extend of moral rights was clarified, the provision for a compulsory license for the reproduction of musical works was removed, new licensing arrangements were established for orphan works in cases where the copyright owner could, and rules were enacted on the formation of copyright collecting societies and their supervision by a reformed Copyright Board of Canada. Phase two of the reform took place in 1997 and saw the Copyright Act of Canada amended with a new remuneration right for producers and performers of sound recordings when their work was broadcast or publicly performed by radio stations and

public places such as bars. A private copying levy was introduced on blank audio tapes used for private copying and exclusive book distributors were granted protection in Canada. New copyright exceptions were introduced for non profit educational institutions, libraries, museums, broadcasters, and people with disability, allowing them to copy copyrighted works in specific circumstances without the permission of the copyright owner or the need to pay royalties. Damages payable for copyright infringement and the power to grant injunctions were increased, and the 1997 reforms introduced a mandatory review of the Copyright Act of Canada.

Bills to amend the Copyright Act Bill C-60 In June 2005, the government introduced Bill C-60 to amend the Copyright Act. Among the major changes proposed to the Act include:   

The removal of the photographer exception allowing them to gain de facto authorship to anything they photograph. Extends moral rights to performers of other people's works. Allows for infringement of copyright by circumventing rights management schemes when it is for the purpose of violating another right.

The bill was never passed into law as Parliament was dissolved after a motion of nonconfidence was passed in November 2005.

Bill C-61 In Summer 2008, the government introduced Bill C-61 in their continuing effort to update the Copyright Act, with numerous similarities to the previous Bill C-60 and the American DMCA. Industry Minister Jim Prentice introduced the bill to improve compliance with WIPO treaties. It was heavily criticized and praised by conflicting sides, of being too harsh and setting up "police states", to being needed copyright reform. The bill died on the table due to the September 7, 2008 election call. The bill died before it passed into law when the Conservative government called an election in September 2008.

Bill C-32 On June 2nd, 2010, Bill C-32 was tabled by federal Industry Minister Tony Clement, full title An Act to Amend the Copyright Act. While many aspects of the bill have changed from Bill C-61, those portions regarding legal protection of technological protection measures remain fundamentally unchanged. These measures have been criticised by consumer groups, including the Consumers Council of Canada, the Public Interest Advocacy Centre, Option consommateurs and Union des consommateurs; via the Canadian Consumer Initiative, they sent a letter to Heritage Minister James Moore, who had stated in the House of Commons that consumer interests were represented by the

Canadian Chamber of Commerce, noting that the Canadian Chamber of Commerce "is a business lobby group that in no way represents consumer interests, and in fact opposes the position of consumer groups on copyright policy".

Provisions of the Copyright Act of Canada Rights granted Copyright grants the sole and exclusive right to create and recreate a work whether wholly or substantially. It also includes the sole rights to:      

   



publish the work if unpublished perform the work in public to produce, reproduce, perform or publish any translation of the work, in the case of a dramatic work, to convert it into a novel or other non-dramatic work, in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise, in the case of a literary, dramatic or musical work, to make any sound recording, cinematograph film or other contrivance by means of which the work may be mechanically reproduced or performed, in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly present the work as a cinematographic work, in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication, to present at a public exhibition, for a purpose other than sale or hire, an artistic work created after June 7, 1988, other than a map, chart or plan, in the case of a computer program that can be reproduced in the ordinary course of its use, other than by a reproduction during its execution in conjunction with a machine, device or computer, to rent out the computer program, and in the case of a musical work, to rent out a sound recording in which the work is embodied,

and to authorize any such acts.

Originality The Act provides protection for all "original literary, dramatic, musical and artistic" works. Close attention has been paid to the use of the word "original". It has been well established that the foremost requirement for the subsistence of copyright is that the work be original. The CCH Canadian case re-evaluated the meaning of "original" and found that for a work to be original it must be the result of the exercise of "skill and judgment". More specifically: skill, meaning the "use of one's knowledge, developed aptitude or practiced ability in producing work", and judgment, meaning the "use of one's capacity for

discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work". Nevertheless, originality does not require any novelty or creativity. It does require intellectual effort beyond mere mechanical exercise. The determination of originality on the basis presented in CCH Canadian depends on the facts. For a large part, it depends on degree to which the work originated from the author. Many factors are considered, The medium or form used is significant. Whether it comprises elements that are in the public domain or not, whether it the ordering of data or facts, or whether the form is pedestrian or novel. Mere selection is generally not enough. As well, it is significant to consider whether there are any artistic elements to it.

Fixation Copyright provides the protection of expression of ideas. This entails that there must be a form, or "fixation", to the expression. It is fixation that distinguishes an expression from an idea. In Canadian Admiral Corp. v. Rediffusion, the court considered fixation: "for copyright to exists in a 'work' it must be expressed to some extent at least in some material form, capable of identification and having a more or less permanent endurance." In this case, the court found that there was insufficient fixation in the live broadcast of a sports event. Any sort of broadcast, telecast, or display of a spectacle on its own is not sufficient to be fixed. At the least, it must be simultaneously recorded in some fashion to be fixed. To the possible exception of choreographed works, there is a requirement that the work be recorded in a relatively permanent form. Typing a note into a computer screen may be sufficiently permanent. Some cases have shown that unstructured speech or other spontaneous or improvised creations, such as a sports game, cannot contain copyright.

Exclusion Both facts and ideas are by their very nature uncopyrightable. This will often create difficulties when it becomes necessary to separate the idea from the expression as well as in the separation of fact from the arranging and use of those facts. Where the distinction between idea and expression becomes obscured the Courts often take a precautionary view that it cannot be copyrighted so as to avoid preventing others from expressing the same idea. Minor designs that are largely ornamental or functional are excluded as well. For example, coloured blocks used as tools in an educational program are excluded.

Ownership The copyright of an artist's work is owned directly by the artist in most cases with the exception of engravings, photographs, portraits, and works created in the course of employment. Furthermore, these rights can be alienated through assignment and licenses.

An artist's moral rights, however, are inalienable and stay with the artist their entire lives. As with copyrights, moral rights are inheritable.

Government works Section 12 of the Copyright Act reserves copyright for all works produced by the government for a period of 50 years following the end of the calendar year when the work has been performed. In addition, the Copyright Act applies to government works, but "without prejudice to any rights or privileges of the Crown".

Music Recordings The music industry created a loophole in Canadian copyright laws when it asked for a levy on blank audio media. Since 1999, these private copying levies on blank audio recording media (such as audio cassettes, CDs and CD-Rs) have raised millions of dollars for songwriters, recording artists, music publishers and record companies. In exchange, and subject to certain exceptions, the act of copying music onto an audio recording medium for the private use of the person who makes the copy does not constitute copyright infringement. Also, the statutory private copying provision is silent as to whether the person doing the private copying must also be the owner of the music being copied. Some argue that the private copying levy legalized copying in the digital age, to the consternation of the music industry. However, Canadian courts have not extended the definition of "audio recording medium" to exempt music copied onto computer hard drives, digital audio recorders (such as iPods or MP3 players), or other types of permanently embedded memory.

Foreign works Section 5 of the Copyright Act applies the act to all for British subjects and residents, as well as citizens, residents, and corporations of Berne convention countries.

Copyright terms According to s. 6 of the Act the copyright of a work lasts the life of the author plus 50 years from the end of the calendar year of death. For joint authors, the copyright of a work lasts the life of the author who dies last, plus 50 years from the end of the calendar year of that death. According to s. 9(2), the duration of foreign works generally follow the Rule of the shorter term except in the case of NAFTA countries (i.e. USA and Mexico). Works from NAFTA countries follow the Canadian duration rule.

Unknown or Anonymous Authors

Where the identity of the author is unknown (if the author is anonymous or pseudonymous) then the copyright lasts for either 50 years from the publication of the work or 75 years from the making of the work, whichever is shorter. However, if author’s identity becomes commonly known during this time, the term provided in section 6 applies. The act also makes provisions for posthumous works.

Orphaned works The act established licensing arrangement for works where the copyright owner can not be located.

Photographs There is a separate provision for the author of photographs. According to s. 10 of the Act, the author of the photograph is the person or corporation who was either 1) the owner of the initial negative or other plate at the time when that negative or other plate was made, or 2) was the owner of the initial photograph at the time when that photograph was made, where there was no negative or other plate. In contemporary terms, this means that the author of a photograph is usually the person who owns the film in the film camera, or whoever owns the digital camera. Where the author is a person or a corporation whose majority shareholder is the photographer, s. 6 applies, and the term of copyright for the photograph is the life of the author plus 50 years from end of the calendar year of death. Where the author is a corporation, the term of copyright for the photograph is the making of the initial negative or initial photograph, plus 50 years. There is also separate provision for the copyright ownership of photographs. In particular, unless a contract exists to the contrary, the copyright of any engraving, photograph or portrait is owned by the person who ordered the work once payment is made. The copyright is owned by the author until payment is made. This only applies to works that were "made for valuable consideration".

Penalties According to section 34(4) of the copyright act, specific penalties will be decided by the court. Section 35(1) states that an infringer is liable for the financial gain made through infringement, and "such damages to the owner of the copyright as the owner has suffered due to the infringement" A copyright holder can instead elect to protect his/her copyright under section 38, which allows for "a sum of not less than $500 or more than $20,000 as the court considers just." There are three categories of remedies to copyright infringement. They are Border, Civil, and Criminal. Border enables Customs to detain infringing materials at the border. Civil

allows the copyright holder to take direct action against a person or company who violates his or her rights. Criminal is used when it is too costly to sue or to stop or try to dissuade people from committing the act again.

Chapter- 3

Copyright Law of the European Union

The copyright law of the European Union has arisen in an attempt to harmonise the differing copyright laws of European Union member states. It consists of a number of Directives, which the member states are obliged to enact into their national laws, and by the judgments of the Court of Justice of the European Union, that is the European Court of Justice and the General Court (formerly known as the Court of First Instance). Attempts to harmonise copyright law in Europe (and beyond) can be dated to the signature of the Berne Convention for the Protection of Literary and Artistic Works on 9 September 1886: all European Union Member States are signatories of the Berne Convention, and compliance with its dispositions is now obligatory before accession. The first major step taken by the European Economic Community to harmonise copyright laws came with the decision to apply common standard for the copyright protection of computer programs, enacted in the directive on the legal protection of computer programs (91/250/EEC) in 1991. A common term of copyright protection, 70 years post mortem auctoris (from the death of the author) was agreed in 1993 as the directive harmonizing the term of protection of copyright and certain related rights (93/98/EEC). The implementation of directives on copyright has been rather more controversial than for many other subjects, as can be seen by the six judgments for non-transposition of the EU Copyright Directive (2001/29/EC). Traditionally, copyright laws vary considerably between Member States, particularly between common law jurisdictions (Cyprus, Ireland, Malta and the United Kingdom) and civil law countries. Changes in copyright law have also become linked to protests against the World Trade Organization and globalization in general.

Sources of law European Union treaties

The first judgments of the European Court of Justice covering copyright were made under the non-discrimination provision of Article 6 EC (formerly Art. 7), and under the provisions of Article 36 which allows for restrictions on trade between Member States if justified by the protection of industrial and commercial property (including copyright). The directives were made under the internal market provisions of the treaties, notably Article 95 EC (formerly Art. 100a)

Protected rights The following rights are protected by European Union law: 

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 

 

right of reproduction for authors, performers, producers of phonograms and films and broadcasting organisations (Art. 7, D. 92/100/EEC, replaced by Art. 2, D. 2001/29/EC: also Art. 14 TRIPS, Arts. 7 & 11 WPPT); right of communication to the public for authors, performers, producers of phonograms and films and broadcasting organisations (Art. 3, D. 2001/29/EC: also Art. 10 TRIPS, Art. 8 WCT and Arts. 6, 10 & 14 WPPT); right of distribution for authors (Art. 4, D. 2001/29/EC) and for performers, producers of phonograms and films and broadcasting organisations (Art. 9, D. 92/100/EEC: also Art. 10 TRIPS, Art. 6 WCT and Arts. 8 & 12 WPPT); right of fixation for performers and broadcasting organisations (Art. 6, D. 92/100/EEC: also Art. 14 TRIPS and Art. 6 WPPT); right of rental and/or lending for authors, performers, producers of phonograms and films (Art. 2, D. 92/100/EEC: also Art. 11 TRIPS, Art. 7 WCT and Arts. 9 & 13 WPPT), with an associated right of equitable remuneration for lending and/or rental for authors and performers (Art. 4, D. 92/100/EEC); right of broadcasting for performers, producers of phonograms and broadcasting organisations (Art. 8, D. 92/100/EEC: also Art. 6 WPPT). right of communication to the public by satellite for authors, performers, producers of phonograms and broadcasting organisations (Arts. 2, 4, D. 93/83/EEC)

The rights of reproduction, distribution and rental for authors of computer programs are specified in Art. 4, D. 91/250/EEC (also Art. 11 TRIPS). Moral rights are usually considered to be a matter for the national laws of the Member States, although some countries classify some of the above rights, especially the right of communication to the public, among the moral rights of the author rather than under his rights of exploitation.

Duration of protection The rights of authors are protected within their lifetime and for seventy years after their death (Art. 1, D. 93/98/EEC): this includes the resale rights of artists (Art. 8, D. 2001/84/EC). For films and other audiovisual works, the seventy year period applies from the last death among the following people, whether or not they are considered to be

authors of the work by the national law of the Member State: the principal director (who is always considered to be an author of the audiovisual work), the author of the screenplay, the author of the dialogue and the composer of music specifically created for use in the cinematographic or audiovisual work (Art. 2, D. 93/98/EEC). The rights of performers last for fifty years from the distribution or communication of the performance, or for fifty years from the performance itself if it had never been communicated to the public during this period (Art. 3(1), D. 93/98/EEC). The rights of phonogram producers last for fifty years after publication of the phonogram, or for fifty years after its communication to the public if it had never been published during that period, or for fifty years after its creation if it had never been communicated to the public (Art. 3(2), D. 93/98/EEC, as modified by Art. 11(2), D. 2001/29/EC). The rights of film producers last for fifty years after the communication of the film to the public, or for fifty years after its creation if it had never been communicated to the public during that period (Art. 3(3), D. 93/98/EEC). The rights of broadcasting organisations last for fifty years after the first transmission of a broadcast (Art. 3(4), D. 93/98/EEC). The European Commission proposed this be extended to 95 years and following this suggestion the European Parliament passed legislation to increase the term to 70 years. Where a work enjoyed a longer period of protection under national law on 1 July 1995, its period of protection is not shortened. Otherwise, these terms of protection apply to all works which were protected in a Member State of the European Economic Area on 1 July 1995 (Art. 10, D. 93/98/EEC). This provision had the effect of restoring the copyrights in certain works which had entered the public domain in countries which shorter copyright terms. The EU Copyright Directive [2001/29/EC, Art. 11(2)] modified the term of protection of phonograms, calculating from the date of publication instead of from an earlier date of communication to the public, but did not restore the protection of phonograms which had entered the public domain under the former rules (Art. 3(2), D. 93/98/EEC, as modified). All periods of protection run until 31 December of the year in which they expire.

Resale right The directive on the resale right for the benefit of the author of an original work of art (2001/84/EC) created a right for the creators of works of art to participate in the proceeds of the resale of their work. This right, which is sometime known by its French name droit de suite, is personal to the artist and can only be transferred by inheritance. It is calculated as a proportion of the resale price (net of tax), which varies between 4 or 5 percent for the portion of the resale price up to EUR 50,000 and 0.25% for the portion of the resale price above EUR 500,000. The total royalty is limited at EUR 12,500, equivalent to a resale price of EUR 2,000,000. Member States may choose to exempt sales of less than EUR 3000 from royalty. Works of art which are covered by this resale right are "works of graphic or plastic art such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs, provided they are made by the artist herself or himself or are copies which have been made in limited numbers by the artist or under his or her authority."

Database rights The directive on the legal protection of databases (96/9/EC) created a sui generis protection for databases which do not meet the criterion of originality for copyright protection. It is specifically intended to protect "the investment of considerable human, technical and financial resources" in creating databases (para. 7 of the preamble), whereas the copyright laws of many Member States specifically exclude effort and labour from the criteria for copyright protection. To qualify, the database must show "qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents" [Art. 7(1)]. Their creators have the right "to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database." This is taken to include the repeated extraction of insubstantial parts of the contents if this conflicts with the normal exploitation of the database or unreasonably prejudices the legitimate interests of the creator of the database [Art. 7(5)]. Member States may limit this right in the following cases (Art. 9):   

extraction for private use from a non-electronic database; extraction for the purposes of teaching or research, to the extent justified by the non-commercial purpose; extraction and/or reutilization for the purposes of public security or an administrative or judicial procedure.

Database rights last for fifteen years from  

the "completion" of the database, that is to say the point at which the criterion of substantial investment is fulfilled, or from the date at which the database is made available to the public,whichever is the later. The protection period runs until 31 December of the year in which it expires. If there is a "substantial change" in the database which would be qualified as a "substantial new investment", a new protection period is granted for the resulting database (Art. 10).

Limitations Temporary copying which is the result of the transmission of a work or of its legal use is not covered by the exclusive right of reproduction (Art. 5(1), D. 2001/29/EC). Member states can implement other limitations from the list in Article 5, D. 2001/29/EC, or retain limitations which were already in force on 22 June 2001. Permitted limitations are: 

paper reproductions by photocopying or similar methods, except of sheet music, if there is compensation for rightsholders;

                 

reproductions made for private and non-commercial use if there is compensation for rightholders; reproductions by public libraries, educational institutions or archives for noncommercial use; preservation of recordings of broadcasts in official archives; reproductions of broadcasts by social, non-commercial institutions such as hospitals and prisons, if there is compensation to rightholders; use for illustration for teaching or scientific research, to the extent justified by the non-commercial purpose; uses directly related to a disability, to the extent justified by the disability; press reviews and news reporting; quotations for the purposes of criticism or review; uses for the purposes of public security or in administrative, parliamentary or judicial proceedings; uses of political speeches and extracts of public lectures, to the extent justified by public information; uses during religious or official celebrations; uses of works, such as architecture or sculpture, which are located permanently in public places; incidental inclusion in another work; use for the advertisement of the public exhibition or sale of art; caricature, parody or pastiche; use in connection with the demonstration or repair of equipment; use of a protected work (e.g., plans) for the reconstruction of a building; communication of works to the public within the premises of public libraries, educational institutions, museums or archives.

No new limitations may come into force after 22 June 2001 except those in the above list (Art. 5(3)(o), D. 2001/29/EC). Limitations may only be applied in "certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder" (Art. 5(5), D. 2001/29/EC: also Art. 13 TRIPS, Art. 10 WCT and Art. 16 WPPT). However it was agreed at the time of drafting the WIPO Copyright and Performances and Phonograms Treaties that this wording "neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention."

Protection of rights The directive on the enforcement of intellectual property rights (2004/48/EC)

Chapter- 4

French Copyright Law

The droit d'auteur (or French copyright law) developed in the eighteenth century at the same time as copyright developed in the United Kingdom. Based on the "right of the author" (droit d'auteur) instead of on "copyright", its philosophy and terminology are different from those used in copyright law in common law jurisdictions. It has been very influential in the development of copyright laws in other civil law jurisdictions, and in the development of international copyright law such as the Berne Convention. French copyright law is defined in the Code de la propriété intellectuelle, which implements European copyright law (directives). Unless otherwise stated, references to individual articles are to the Code de la propriété intellectuelle. Two distinct sets of rights are defined:  

Proprietary rights (droits patrimoniaux) Moral rights (droits moraux)

The controversial DADVSI act is due to reform French copyright law in Spring 2006. This law, voted by the French Parliament on June 30, 2006, implements the 2001 EU Copyright Directive; however, there existed considerable differences of opinion as to how to implement the directive, in many respects. On 8 December 2005 the Tribunal de grande instance de Paris concluded that file sharing through peer-to-peer was not a crime. The judgment was based on the right to "private copy" described in the Intellectual Property Code which includes the use of digital media. On 7 March 2006, however, the National Assembly passed the DADVSI Act which implemented - with some modifications - the 2001 European Union Copyright directive. The DADVSI act makes peer-to-peer sharing of copyrighted works an offense. It does, however, allow for sharing of private copies of tape recording and other media.

History The concept of "right of the author", which differs from Anglo-American copyright, finds its roots in the practice of printing patents and royal privileges, which first appeared in the 16th century and became common in the 17th century . Rather than the author, the privilege concerned the publication of their works. The first privilege granted in France was given by Henri II in 1551 to Guillaume Morlay, his luth player . Through this system of royal privileges, the King granted monopolies to specific editors, and implemented a system of censorship. Privileges were then very short (3 to 10 years), after which the work entered the public domain . The Moulins ordinance of 1566, first piece of legislation to impose to librarians and editors the request of a printing patent, did not make any mention of authors. Despite this regime which privileged editors on authors, some of the latter succeeded in obtaining privileges for their works. During the Muret Affair, in 1568, the lawyer Marion pleaded for a complete and unrestricted right of property of the author on his work, and intellectual property thus entered the French jurisprudence. In the same time, the practice of percentage remuneration given to authors became common during the 17th century. Authors of dramatic plays, such as Corneille, started to defend their rights, as when a play was published, any troupe could play it without paying anything to its creator. The King thus arbitrated between the rival interests of editors and creators, giving his preference to the former. In 1761, a court decision granted to Jean de La Fontaine's granddaughters the right of ownership of La Fontaine's work, legitimized by the right of inheritance. In 1777, two other court decisions limited the publisher's right, which was restricted to the life-time of the author . Following the abolition of privileges on the night of 4 August 1789, during the French Revolution, the National Convention enacted new legislation on the matter . A draft law was proposed by the Abbé Sieyès, which, although allegedly inspired by Condorcet's pamphlet titled Fragments sur la liberté de la presse (Fragments on liberty of the press, 1776), aimed at struggling against the spread of licentious ideas by imposing responsibility of their diffusion on authors, publishers and librarians . Sieyès and Condorcet also advanced the idea of "limited privilege," against perpetual privileges, thus preparing the inclusion in the public domain of the works of Racine, Molière, Rousseau, Voltaire, etc. According to Anne Latournerie, "The first revolutionary attempt to provide to authors a legal recognition of their rights on their texts was therefore not the search of a freedom for authors, but rather the exigency of a responsibility. " Finally, after a controversy concerning dramatic authors, and their rebellion, led by Beaumarchais, these tentatives resulted in the July 19, 1793 Chénier Act. The July 14, 1866 Act extends the rights until fifty years after the death of the author.

Debates continued through-out the 19th century, opposing in particular Lamartine to Proudhon, and the inter-war period. During the Popular Front, the Minister of National Education and of the Beaux-Arts, Jean Zay, proposed as soon as August 1936 a draft law, based on a new philosophy which did not consider the author as an "owner" (propriétaire), but as an "intellectual worker" (travailleur intellectuel). Jean Zay voluntarilly located himself in the continuation of Alfred de Vigny, Augustin-Charles Renouard and Proudhon , and defended the "spiritual interest of the collectivity" . Article 21 of his draft divided the 50 years post-mortem protection period into two different phases, one of 10 years and the other of 40 years which established a sort of legal licence suppressing the right of exclusivity granted to a specific editor . Zay's draft project was particularly opposed by the editor Bernard Grasset, who defended the right of the editor as a "creator of value" , while many writers, including Jules Romains and the president of the Société des Gens de Lettres, Jean Vignaud, supported Zay's draft . The draft did not succeed, however, in being voted before the end of the legislature in 1939. New discussions were engaged during the Vichy regime, initiated by a corporatist organism , presided by three jurists, François Hepp, René Dommange, and Paul Lerebours-Pigeonnières . Both Hepp and Dommange had been at the forefront of the battle against Jean Zay's draft law during the Popular Front . During the Fourth Republic, 13 years of debate modernized the law by the March 11, 1957 Act, which was in continuity with the Vichy proposals — a continuity proudly highlighted by François Hepp . A Commission had been created in August 1944, presided by the jurist Jean Escarra, who had co-signed in 1937 an essay with François Hepp and Jean Reault, published by Grasset, which harshly criticized Jean Zay's draft project . In 1997, a court decision outlawed the publication on the Internet of Raymond Queneau's Hundred Thousand Billion Poems, an interactive poem or sort of machine to produce poems . The court decided that the son of Queneau and the Gallimard editions possessed an exclusive and moral right on this poem, thus outlawing any publication of it on the Internet and possibility for the reader to play Queneau's interactive game of poem construction . In March 2006, the controversial DADVSI Act, which implements - including modifications - the 2001 EU Copyright directive is voted by the National Parliament .

Protected works The criterion for protection of a work under French copyright law is that it be an œuvre de l'esprit, a work of the mind (Art. L112-1). Hence there must be a human intellectual contribution to the work. A list of types of work which are protected is given in Art. L112-2: this list (taken from the Berne Convention) is not limitative. The copyright protection of computer programs was, and to some extent still is, the subject of much debate in France. Patent protection was first excluded by Loi n°68-1 du 2

janvier 1968 sur les brevets d'invention and defined in copyright by Loi n°85-660 du 3 juillet 1985 relative aux droits d'auteur et aux droits des artistes-interprètes, des producteurs de phonogrammes et de vidéogrammes et des entreprises de communication audiovisuelle . The legal position was resolved by the transposition of May 14, 1991 EU Directive into French law: computer programs and any associated preparatory works qualify for copyright protection in France as in other European Union jurisdictions. Databases are protected by a related sui generis right. The term "author" is used to designate the original creator(s) of any type of protected work, e.g., the artist, photographer, director, architect, etc. Where the author cannot be identified, e.g., for anonymous works and collective works, the copyright is exercised by the original publisher.

Proprietary rights The proprietary rights of the author allow him or her to exploit the work for financial gain. The author has the right to authorize the reproduction of the work (droit de reproduction) and to allow its public performance (droit de représentation): he or she may also prevent the reproduction or public performance. The author may transfer his or her proprietary rights to a third party.

Duration of proprietary rights The general rule is that the proprietary rights of the author last for seventy (70) years after his or her death (Art. L123-1), or for one hundred (100) years after the author's death if the author is declared to have died on active service (Mort pour la France) (Art. L12310). The author is deemed to have died on 31 December of the year of death. Before February 2007, the periods of World War I and World War II were not taken into account for the determination of the expiry date of proprietary rights, with peculiar ways of counting these (Arts. L123-8 & L123-9). These exceptions applied to works published before and during the wars, and must be added whatever the date of the author's death. These extensions were removed (for non-musical works) by the Court of Cassation (Supreme Court) in February 2007 . They still have to be added to the 70 years delay for musical works, because of a 1985 law. For collaborative works, the date of death of the last collaborator serves as the reference point for the 70 year post mortem auctoris period (Art. L123-2). Audiovisual works are treated similarly, although the list of collaborators is defined by the law: scriptwriter, lyricist, composer, director. Proprietary rights in pseudonymous, anonymous or collective works last for seventy (70) years after the date of publication (Art. L123-3).

For phonographic works, the proprietary rights last for fifty (50) years after the date of recording. In addition, posthumous works are copyrighted 25 years from the year of publication.

Copyright management societies As in other countries, there are a number of societies which collectively manage the licensing of different types of work and the collection of royalties on behalf of copyright holders. These societies typically operate as associations, and are regulated by the Code de la propriété intellectuelle (Arts. L321-1 to L321-13) and the Ministry of Culture. The most important are:    

Centre Français d'Exploitation du droit de copie (CFC) Sacem ADAGP SACD

Moral rights French copyright law treats a protected work as an extension of the personality of the author which is protected by a certain number of moral rights. In general, the author has the right to "the respect of his name, of his status as author, and of his work" (Art. L1211). The following rights are usually recognised:    



right of publication (droit de divulgation): the author is the sole judge as to when the work may be first made available to the public (Art. L121-2). right of attribution (droit de paternité): the author has the right to insist that his name and his authorship are clearly stated. right to the respect of the work (droit au respect de l'intégrité de l'oeuvre): the author can prevent any modification to the work. right of withdrawal (droit de retrait et de repentir): the author can prevent further reproduction, distribution or representation in return for compensation paid to the distributor of the work for the damage done to him (Art. L121-4). right to protection of honour and reputation (droit à s'opposer à toute atteinte préjudiciable à l'honneur et à la réputation).

The moral rights of the author may conflict with the property rights of the owner of the work, for example an architect who tries to prevent modifications to a building he designed. Such conflicts are resolved on a case by case basis, and recent jurisprudence has led to a weakening of certain moral rights (notably the right to the respect of the work). The moral rights are inalienable, perpetual and inviolable. They pass to the author's heirs or executor on the author's death, but may not be otherwise transferred or sold under any circumstances, by either the author or his legal successors. Any agreement to waive an

author's moral rights is null and void, although the author cannot be forced to protect his work.

The public domain under French copyright law A work enters the public domain (domaine public) once the proprietary rights over it have expired. It may then be used without charge, so long as the moral rights of the author are respected. Notably, the name of the author and the original title of the work must be cited.

Exceptions Art. L122-5 defines the exceptions to French copyright law, which are relatively restricted. Once a work has been published, the author cannot prevent: 1. Private family performances. 2. Copies for the private and personal use of the copier. This provision does not apply to works of art, computer programs (where a single safeguard copy is allowed, Art. L122-6-1-II) and databases. 3. In cases where the name of the author and the source are clearly indicated, a) Analyses and short citations justified by the critical, polemical, scientific or pedagogical nature of the work. b) Press reviews. c) Diffusion of public speeches as current news. d) Reproductions of works of art in catalogues for auctions in France (subject to regulatory restrictions). 4. Parody, pastiche and caricature, "taking into account the usage of the genre". 5. Acts necessary to access a database within the limits of the agreed use. There is no specific provision for government works or laws: the copyright is normally held by the relevant public body.

Penal measures Contrary to the position in most Common Law jurisdictions, the breach of proprietary rights is a criminal offense in France: contrefaçon (Arts. L335-2 to L335-4). This attracts a fine of up to 300,000 Euros (approx. US$375,150, or £247,100 as of July 2010) and a term of up to three (3) years imprisonment. These penalties are increased to a fine of up to €500,000 and a term of up to five (5) years imprisonment if the offense is committed in an organized group (bande organisée). There is no distinction between the breach of French copyright and the breach of foreign copyright, though the breach must occur in France to be punishable. The import of infringing copies into France, and the distribution

of such copies, are punished under the same provisions and are subject to the same penalties.

Relation to international copyright law Under Art. 55 of the Constitution of 1958, a ratified treaty is superior to French domestic law. Hence the conflict of laws provisions of the Berne Convention will be used in determining the applicability of the French Code de la propriété intellectuelle.

Chapter- 5

Japanese Copyright Law

Japanese copyright laws consist of two parts: "Author's Rights", and "Neighboring Rights", and as such, "copyright" is a convenient collective term rather than a single concept in Japan.

Author's rights Applicability Japanese copyright law protects all works "in which thoughts or sentiments are expressed in a creative way, and which falls within the literary, scientific, artistic or musical domain". The laws automatically provide the following rights, without the need for formal declaration or registration.

Moral rights   

Divulgence: The author can choose when and how a work will be made available to the public. Authorship: The author can choose how his authorship is represented in the work (e.g., under pseudonym or anonymity). Integrity: The author can control the modification of a work.

"Moral rights" are non-transferable. They remain with the author until they expire (see below). Although moral rights themselves cannot be waived, the exercise of moral rights is often waived by contract in certain situations, such as when an employee or contractor creates a derivative work of her/his employer's or principal's product.TL+SG In such a situation, the moral rights would technically remain with the creator, but the creator would be potentially liable for breach of contract if he attempts to exercise those rights.

Economic rights

 



Reproduction: The author can control the reproduction of a work, including photography, recording, downloading, and the like. Communication: The author can control how a work is to be transmitted, communicated, broadcast, performed, exhibited, etc., including how copies of the work are to be distributed. Adaptation: The author can control the adaptation of a work through translation, dramatization, cinematization, and the creation of derivative works in general.

Unlike moral rights, economic rights can be freely transferred or relinquished. If the author transfers his economic rights to another, the holder of the economic rights becomes the "copyright holder", but the author retains authorship.

Neighboring rights "Neighboring rights" refer to the rights of performers, broadcasters, and other individuals who do not author works, but play an important role in communicating them to the public.

Performers' rights Performers generally have two non-transferable moral rights:  

authorship, or control over how they are named in connection with the work; and integrity, or control over the alteration of a performance, in a manner that would prejudice the performer's reputation.

Live performers have the transferable economic rights of fixation (control over recording), making available (control over publication in interactive media such as the internet), and diffusion (control over diffusion by wire or broadcast). Fixed aural performers have the transferable economic rights of fixation and making available, as well as transfer of ownership, and rental. They can also demand remuneration if their work is broadcast or diffused by wire.

Phonogram producers' rights Phonogram producers have the same economic rights as fixed aural performers, but do not have any moral rights.

Broadcasters' and wire diffusers' rights Broadcasters and wire diffusers have the transferable economic rights of fixation, reproduction, making available, and retransmission. Television broadcasters also have a right to control photography of their broadcasts.

Exceptions 





 

  

Artistic works: Artistic works located in public places can be reproduced freely by photograph, film, etc. However, except for architecture, the author's permission must be obtained before publicly exhibiting their work, and commercial reproductions of artistic works are not permitted without the author's permission. Educational use: Teachers at non-profit educational institutions are permitted to reproduce copyrighted works for the purpose of teaching, as long as such reproduction does not infringe on the interests of the author. For example, a teacher may duplicate a television program or audio recording, but may not distribute copies of educational software without express permission. Works can also be reproduced in examinations at educational institutions, but the author must be remunerated if the exam is performed for-profit. News: Unless a newspaper or wire service article specifically states that it cannot be reproduced, free reproduction is permitted. Normally, copyrighted materials can also be reproduced to the extent necessary for reporting of current events (this extends to printed matter, film, and photographs). Non-profit performance: Works can be performed or exhibited freely if the performer is not remunerated, and the audience is not charged an admission fee. Political speeches: Political speeches and government proceedings can be freely reproduced, except when the intent of the reproduction is to create an anthology of the author's works. Publication for the blind: Braille and audio versions of printed materials may be reproduced freely for the purpose of lending, but not for commercial use. Quotation: Works may be quoted freely, as long as the quotation does not exceed what is justified for its purpose. Software: Software can be reproduced for personal use.

If one of the above exceptions to reproduce a work publicly is used, the person reproducing the work must cite its source.

Public domain Hence, even when some materials are said to be "in the public domain" there can be some use restrictions. In that case, the term copyright-free is sometimes used instead. Many pre-1953 Japanese and non-Japanese films are considered to be in the public domain in Japan.

Length of protection Works authored by an individual, under his own name or a known pseudonym, are protected for fifty years following the individual's death. Works authored anonymously or under an unknown pseudonym, as well as works authored by corporations, where the individual author or authors are unknown, are protected for fifty years following

publication. Japan is considering extending the duration of protection to seventy years to be more in line with the United States and other nations. Cinematographic works are protected for seventy years following publication (or seventy years following creation, if the work is not published). This update was made in 2004 to be more consistent with other nations around the world, as the previous term was fifty years. However, in 2006 the Tokyo District Court said that the 2004 law cannot be applied retroactively, so that all cinematographic works published (or created, if not published) before 1953 are now public domain. However, in 2007 the Tokyo District Court ruled that for works (in particular from Akira Kurosawa) released before and in 1970 copyright protection is extended until 38 years after the original copyright holder's death. Neighboring rights apply for fifty years after the work is performed, transmitted, or put on sale. Works authored by, or transferred to, residents of countries which were Allied Powers in World War II, before the effectuation of the San Francisco Peace Treaty, are given some prolonged protection by an exemption law. This extension compensates for the unprotected period in World War II, and varies with the country of the author or the copyright holder in the wartime. The prolongation is normally by 3,794 days (including Australia, Canada, France, United Kingdom, and the United States), but some countries ratified later, and have longer wartime (the longest is 4,413 days for Lebanon).

Recent movement Copy-protected CDs Very soon, CDs will be copy-protected in Japan. Avex and Warner Music, Japan have already sold copy-protected CDs [The Japan Times Online, 21 December 2002; ibid. 3 April 2002]. Steven McClure, journalist for The Japan Times Online, and author of the latter, quoted article comments on this evolution with skepticism. He states: "Many people, though, say copy-protected (or copy-controlled) CDs go against the concept of "fair use" — which means the user should be able to make copies of entertainment software as long as they're for personal use. One problem, of course, is defining just where personal use ends and illegitimate copying begins" [The Japan Times Online, 3 April 2002]. "And what about the copy-once system — a system that allows you to record television programs only once — which is now in a test phase in Japan, but will probably be used in the near future by several broadcasting companies?" [The Japan Times Online, 21 February 2002].

Copyright-protected CDs on CD-ROMs Once implemented, it may become impossible to play copyright-protected CDs on the CD-ROM drive of a computer.

Compensation system for digital private recording In 1992, the "Compensation System for Digital Private Recording" was introduced. According to this system, those who make digital sound or visual recordings for personal use should pay compensation to the copyright owners. This compensation is added in advance to the prices of specified digital recording equipment (DAT, DCC, MD, CD-R, CD-RW), and specified recording media (DVCR, D-VHS, MVDISC, DVD-RW, DVDRAM) (Japan Copyright Office 2001, 17; ibid. 24). The compensation is collected and distributed by SARAH (Society for the Administration of Remuneration for Audio Home Recording) and SARVH (Society for the Administration of Remuneration for Video Home Recording). The users of this equipment and media have to pay a fee, or "compensation", so that they can use the described materials for copying the copyright-protected works. The public domain is not directly threatened, but in an indirect way, it becomes more difficult (expensive) to reproduce works for personal use.

Downloadable tunes for mobile phones The only way to get these downloadable tunes is by creating a sort of user account on a provider's website, and agreeing with a click-wrap contract that allows a user to download a certain number of tunes for a fixed payment. This kind of system is in fact a kind of trusted system, although we may not be aware of it. Mamoru Kato, a JASRAC executive, said during a press conference after having set new fees for downloadable tunes (in cooperation with the Network Music Rights Conference), that "the(se) new agreements will help enlighten Internet users, many of whom believe music can freely be copied from the Net. We have to teach them that you should not use other people's assets for free, by opening up a legal window for them to use" (The Japan Times Online, 18 August 2000). In other words, the clever user who tries to free-ride on the original genius of the creator of this or that tune has to be educated, and forced to participate in a trusted system in order to obtain the desired tunes. No one has so far mentioned about either fair use or the reach of the public domain. The above examples show that if trusted systems (and look-alikes) intend to play an important role in the future without intruding on anonymity, etc., one will have to incorporate these values as gaps in the architecture of these trusted systems. It is, however, doubtful whether this will happen.

Right of communication to the public In 1997, the Japanese Copyright Law was updated to expand the coverage of the author's "right of communication to the public" (established in 1986 under the name of Rights of Broadcasting and Wire Transmission) to the stage of making it transmittable. The objects of the right of communication to the public are the activities of connecting a server to a network, and the activities of transmission (Fujiwara 1999, 98).

The Copyright Law defines the concepts, "public transmission" (Copyright Law, Article 2, paragraph 1 (7-2)), and "interactive transmission" (Copyright Law, Article 2, paragraph 1 (9-4)): 



"Public transmission" means "the transmission of radio communication or wiretelecommunication intended for direct reception by the public". In order to deal with the new context of the Internet, the (already existing) concept of interactive transmission (websites, video-on-demand, etc.) made a theoretical move, and is now considered as residing under public transmission (besides wire diffusion and broadcasting) (Japan Copyright Office 2001, 30). Interactive transmission stands for "the public transmission made automatically in response to a request from the public" (read: in response to a click with the mouse on a hyperlink).

Besides these two definitions, Article 23 (1) of the Copyright Law provides that "(t)he author shall have the exclusive right to make the public transmission of his or her work (including the making transmittable of his or her work in the case of the interactive transmission)". This can be considered an expansion of the right of public transmission of authors to the preceding stage of making transmittable, available (Fujiwara 1999, 98-99; Japan Copyright Office 2001, 31), and even of a right of making transmittable that goes further than the WIPO Copyright Treaty (Ficsor 2002, 506). Apart from this, and in order to comply with the WIPO Performances and Phonograms Treaty, a right of making transmittable was also granted to performers and phonogram producers. The scope here is especially to regulate the internet broadcasting of live performances (Fujiwara 1999, 98; Japan Copyright Office 2001, 31). At first sight, one should say that the law was adapted to the new possibilities, the Internet provides — uploading content to a server, and accessing context through the means of hyperlinks. Indeed, as the difference between simultaneous and nonsimultaneous receptions fades (The Japanese Multimedia Report (Ficsor 2002, 198)), it seems to make sense to expand the right of public transmission of authors also to the stage of making transmittable (read: "uploading of content to a server that is accessible by the public"). But on the other hand, when we look at it from the viewpoint of the public domain, the wider reach of the concept of communication to the public means a big limitation of the reach of this public domain. This is not a discourse against "copyright protection". Indeed, in a lot of cases, copyright protection seems to work as a system, and creates an incentive to produce. We only should be aware that the current transformations in the legislation concerning intellectual property rights — in Japan and in other countries — is moving very fast, and do not seem to take into account all facets of the story, nor remember the very basic goal of copyright, which is "to contribute to the development of culture". While copyright protection is an urgent task, excessive protection that allows for no copying "may damage the functioning of society that thrives on impartiality and imitation" (The Japan Times Online, 21 February 2002).

Copyright management business law In November 2000, the "Copyright Management Business Law" (4.2.2.3) was enacted. Its main purpose is to facilitate the establishment of new copyright management businesses, in order to "respond to the development of digital technologies and communication networks" (Japan Copyright Office 2001, 27). In general, we can say that this law will facilitate the rise of copyright management businesses, and possibly create a further limitation to the reach of the public domain. In its book, "Copyright System in Japan", the title of this section is "(t)o secure the effectiveness of rights by utilizing new technologies" (Japan Copyright Office 2001, 32). This shows clearly that the Japanese government considers software to be a tool for enforcing copyright legislation. Not mentioned, however, is the possible negative sideeffects concerning fair use (limitation on rights), or the reach of the public domain. Under the section (in the same book) pertaining to the "(r)egulation of the circumvention of technological measures such as copy protection, etc.", it is stated that "transfer to the public (of) the ownership of, and manufacture, etc. of, the devices to circumvent technological measures (e.g. copy protection), which prevent copying of videogram (sic) or music CD without authorization, are regulated by the (sic) criminal penalty" (Japan Copyright Office 2001, 32). It is quite clear that with this regulation, it becomes impossible to circumvent the copyright-protection of intellectual property in the context of fair use. This means that when a CD, etc. is copyright-protected, there is not only technically no space for fair use, but also from the legislative side, there is no support for copying in the context of fair use. The "(r)egulation of the alteration etc. of the rights management information" section strengthens the first regulation by saying that it is forbidden to remove rights management information attached to the work. However, it is to be said that this provision, and such, does not seem to limit immediately the reach of the public domain. Mentioning the source, etc. of the quoted material is generally considered as appropriate.

Right of transfer of ownership As stated by the Japan Copyright Office, the "right of transfer of ownership" was established in 1999, in order to enrich the rights of authors. This means that authors, performers and phonogram producers can exercise their right concerning the transfer of the ownership of the original, or copies of the work, at the first legal transfer. After this, the right will be extinguished (Japan Copyright Office 2001, 32). This new ruling can be considered as a contribution to the recent strengthening of author-centered regimes.

Right of presentation Another aspect of the 1999 amendment to the Japanese Copyright Law was the so called extension of the "right of presentation". Previously, this right was only granted to cinematographic work (Japan Copyright Office 2001, 32). After the amendment, it was

extended to all kind of works, reaffirming at the same time, exactly as in the right of transfer of ownership, the importance of the notion of the author.

Chapter- 6

Philippine Copyright Law

Philippine copyright law is enshrined in the Intellectual Property Code of the Philippines, officially known as Republic Act No. 8293. The law is partly based on United States copyright law and the principles of the Berne Convention for the Protection of Literary and Artistic Works. Unlike many other copyright laws, Philippine copyright laws also protect patents, trademarks, and other forms of intellectual property. There are also other laws that protect copyrights: the Optical Media Act (which protects music, movies, computer programs, and video games) is an example of such. The law is enforced through a body established by the law: the Intellectual Property Office, or IPO, and its various branches. Copyright implementation is done with the coordination of the IPO and the Copyright Division of the National Library of the Philippines.

Classes The Intellectual Property Code splits works that may be copyrighted into 17 classes, listed from A to Q. While all the classes listed are specifically for copyrighted material, trademarks and other forms of intellectual property, depending on what it is, are covered as well. Patents do not have a category.       

A: Literature (books, pamphlets, etc.) B: Periodicals (newspapers, tabloids, magazines, etc.) C: Public speeches and other public speaking works (speeches, lectures, sermons, etc.) D: Letters E: Television or movie scripts, choreography, and entertainment in shows F: Musical works (lyrics, songs, song arrangements, etc.) G: Art products (drawings, paintings. sculptures, etc.)

         

H: Ornamental designs and other forms of applied art (not necessarily industrial designs) I: Geographical, topographical, architectural, and scientific works (maps, charts, plans, etc.) J: Scientific and technical drawings K: Photographs and cinematographic works made in a process similar to photography L: Audio-visual works and cinematographic works made in a process similar to making audio-visual works M: Pictures used in advertising (includes logos) N: Computer programs O: Other works not covered in classes A-N of a literary, scholarly, scientific, or artistic nature P: Sound recordings Q: Broadcasts

Fair use Section 185 of the Intellectual Property Code provides for fair use of copyrighted material. The criteria for fair use is almost identical to the fair use doctrine in United States copyright law, with the exception that even unpublished works qualify as fair use under Philippine copyright law.

Moral rights Moral rights, which can be exercised by any copyright holders (individuals, corporations, etc.), are enshrined in Chapter 10 of the Intellectual Property Code. However, Section 193 of the code (which is also in Chapter 10), which also outlines a copyright holder's moral rights, makes these rights independent of economic rights outlined in Section 177 of the code. Under Philippine copyright law, moral rights are relatively expansive on the behalf of the copyright holder, which are listed below: 



Attribution o The right to be prominently displayed as the creator of the copyrighted material, in any form practical to the work o The right to change or even withhold the work from circulation Integrity of ownership o The right to object to any alteration detrimental to the name of the creator of the material o The right to restraining the use of the creator's name in a work not of his making

Copyright holders are not allowed to be forced to create or publish his or her works already published, as that could be classified as a breach of contract. However, the copyright holder could also be held liable for breach of contract. The Intellectual Property Code also permits the waiver of moral rights in most cases, but does not allow it if the following situations occur:  

If the creator's name will be used to damage the reputation of another person If the creator's name will be used to give credit to something he or she did not make

Moral rights are automatically waived in collective works unless the copyright holders expressly reserve their moral rights. Also, if no objections have been made during the time a copyright holder waives his or her moral rights or even if moral rights were waived unconditionally, works altered or even destroyed would not constitute as a violation of moral rights. In the Philippines, the term of moral rights, unless they were waived, is the same as the term of copyright of a literary work (lifetime plus 50 years). Violation of moral rights may also be contested as a violation of the Civil Code. Any damages collected under the Civil Code shall be given to the copyright holder, or if the holder is already dead, be put in a trust account to be given to the copyright holder's heirs. If the heirs defaulted, the damages go to the government.

Ownership of copyright As the country is a party to the Berne Convention, Philippine copyright law expressly gives copyright ownership to the copyright holder automatically for creative works which fit in one of the categories.

Government copyright Government copyright under Philippine copyright law is established in Section 176 and its subsections. Under the section, all official Philippine texts of a "legislative, administrative, or judicial nature" or any official translation of those kinds of texts may not be copyrighted and are in the public domain. Aside from government documents, no work of the Philippine government, as well as the works of government-owned and/or controlled corporations, can be copyrighted (images, documents, and the like). However, prior approval is needed if a government work will be used for making a profit (most notably the Philippine constitution). There are exceptions to the rule: the author of any public speaking works may have the works compiled, published, and copyrighted, and the government is permitted to receive and hold copyrights it received as a gift or assigned. However, such copyrights may not be shortened or annulled without prior consent of the copyright holder.

Composite copyright There are no provisions in Philippine copyright law on the issue of composite copyrights. However, composite copyrights are permitted usually in the form of split copyrights, where each part of a work is copyrighted (works best for audio-visual works, sound recordings, and cinematographic works).

Legal action on copyright infringement The Intellectual Property Code gives the power of mediating copyright problems (before, during, and after the copyright application process) to a bureau of the Intellectual Property Office known as the Bureau of Legal Affairs, as covered by Section 10 of the code. This body is empowered with the following functions:   

Hear objections on items being applied for copyright Address copyright violations where damages are no less than 200,000 pesos Give the following penalties for copyright violations: o Issue cease and desist orders which have a fixed time where the copyright violator must stop violating the copyright being infringed o Accept voluntary orders of compliance or discontinuance as ordered by the Director of Legal Affairs which must consist of the following:  Assurance to comply with the intellectual property law violated  Assurance to refrain from unlawful activity on the case being investigated  Assurance to refund, replace, recall, or repair defective products  Assurance to reimburse the complainant (usually the copyright holder) of all charges, fees, and payments related to the case o Seizure of the products that have been subject to infringement o Forfeiture of all paraphernalia and properties (whether real or personal) involved with the infringement o Imposition of administrative of fines no less than 5,000 pesos but no more than 150,000 pesos. For every day of continued violation, a fine of 1,000 pesos is imposed. o Cancellation of any document (permit, registration, etc.) attributed to the product at the discretion of the Director of Legal Affairs o Withholding of any document pending approval of the Bureau from the respondent (the copyright violator) o Assessment of damages o Censorship of the product o Other penalties in line with Executive Order 983 (1983)

Chapter- 7

Copyright in Russia

Copyright in Russia developed originally along the same lines as in Western European countries. A first copyright statute dated back to 1828, and in 1857, a general copyright term of fifty years was instituted. The copyright law of 1911 was inspired by Western laws of the continental European tradition. One noteworthy exception in Russian copyright law was the "freedom of translation"—any work could be freely translated into another language. Under the Soviet regime, the copyright law was changed to conform more to Socialist ideology and economics. The duration of copyright was reduced, first to 25 years from the first publication of a work and then in 1928 to 15 years after the author's death, before it was increased again to 25 years p.m.a. in 1973, when the USSR joined the Universal Copyright Convention. After the demise of the Soviet Union, the Russian Federation at first took over the last Soviet legislation from 1991, which hadn't even become effective anymore in the USSR. In 1993, a new, modernized copyright law of Russia entered in force, which was in-line with the leading international copyright treaties. As part of a project to develop a new Civil Code of Russia, the copyright law was completely rewritten and integrated into the Civil Code in 2006, with the new provisions becoming effective on January 1, 2008. On an international level, the Soviets pursued until the late 1960s an isolationist policy. While the Tsars had concluded several short-lived bilateral copyright treaties with Western nations, the Soviet Union had no external copyright relations at all until 1967, when it concluded a first bilateral treaty with Hungary. A major change occurred in 1973, when the USSR joined the Universal Copyright Convention. Subsequently, more bilateral treaties were concluded, amongst them two with Western countries (Austria and Sweden). After its foundation as an independent successor state of the USSR, the Russian Federation joined the Berne Convention in 1995. The negotiations about the adherence of Russia to the World Trade Organization (WTO) led to several amendments of the Russian copyright law in order to meet the adherence requirements.

History of domestic copyright legislation The origins of copyright Copyright—the idea that an author of a work has rights on the uses and the reproduction of the work— originated in the field of literature. With the inventions of the printing press and of movable type, copies of literary works could be made quicker and cheaper than before, and the works could be disseminated more widely. But the unrestricted rivalry amongst print shops led quickly to the dissemination of competing and unauthorized editions of various works, which diminished prospects of any payment, or even entailed loss, for the authors, editors, and printers of the original issue, and thus discouraged further undertaking. European rulers also quickly realized that the granting of legal monopolies on wide distribution of printed works could be employed for political purposes—not only by themselves, but also by their opponents. The printing business was soon regulated through printing prerogatives granted by the rulers to print shops, authorizing them to print certain works and giving them a monopoly on these works. Such monopolies not only served as a market regulator but also as a censorship device, as they could be revoked if the printed works were not to the liking of the ruler.

The development of copyright in Russia followed the same lines as in Western Europe, only about a century later. The first printing press was installed in Moscow in the late 1550s with the support of Tsar Ivan IV; the first dated book was printed there in 1564. Printing was strictly controlled by the Tsars and remained reserved mostly for religious works. Tsar Peter the Great was the first to grant printing privileges for printing secular works in Russian to a few select printers, both from Russia and from abroad. Under Peter's reign, the print production in Russia rose tremendously, but except for the printers of the Orthodox Church, most print shops remained state owned. The first printing privilege granted to a private (and non-Russian) printer for the printing of literature in foreign languages was granted by Catherine II of Russia in 1771 to a printer in St. Petersburg. At the same time, a decree also installed censorship measures for the control of foreign-language works. The first private press with the right to print in Russian was founded in 1776, and in 1783, Russian printed works were also subjected to censorship. The events of the French revolution led Catherine to have most private print shops closed down again; and her successor Paul I prohibited in 1808 the importation of foreign books again.

Copyright in Tsarist Russia The printing prerogatives granted until then were rights accorded to the printers, not to the authors of a work. The first copyright provisions in a modern sense as rights an author has over uses of his work appeared in the reign of Alexander I, when he issued on April 22, 1828 a "Statute on censorship" (Ustav o tsenzure; Russian: Устав о цензуре) that contained five articles on copyright. This law granted authors or translators the exclusive rights to reproduce, publish, and distribute their works, and recognized their right to be paid for uses or reproductions of their works. Copyright was automatic and was vested in the author or translator upon the creation of the work and without any need for a registration. The law defined a copyright term of the lifetime of the author plus 25 years

(25 years p.m.a.—Latin: post mortem auctoris). It also defined a "freedom of translation": any work was free to be translated without the consent of its author, and the translator got a new copyright on the translation. Copyright was extinguished if the work didn't meet the censorship regulations (i.e., was censored). On February 4, 1830, a decree modified these provisions slightly. It defined that the copyright term was extended by additional ten years to 35 years p.m.a. if a work was republished in the last five years of the original 25-year term. In 1845, the Council of State extended copyright to cover also music, and in 1846, works of the visual arts became subject to copyright. Two major changes occurred in 1857. Upon a request by the widow of Aleksandr Pushkin, the Council of State extended the copyright term from 25 to 50 years p.m.a. The same year, it also extended copyright to cover works of foreign authors that were first published on the territory of Russia. An imperial decree in 1897 tasked a commission to revise the copyright law. After nine years of work, a draft that was based on the Copyright law of Germany of 1901 was presented to the Duma in 1906. After lengthy proceedings, the new law was passed in 1909 and finally approved by Tsar Nicholas II on March 20, 1911. For the first time, copyright was expressed truly independently from censorship regulations. Censorship was not linked anymore in any way to the existence or the exercise of copyrights on a work. The 1911 copyright contained 75 articles in seven chapters. It granted copyright to works of Russian subjects and to works by foreigners that were first published on Russian territory. Unpublished foreign works were also copyrighted. Foreign works first published abroad could be freely translated and then published, but publishing such a foreign work in the original language or performing music composed by foreigners abroad was only allowed with the consent of the foreign copyright holder. Copyright covered literary, musical, dramatic, artistic, and photographic works. The new law recognized the moral rights of paternity (attribution right) and integrity of the work. Authors were granted the exclusive rights to reproduce, publish, and distribute a work, to perform dramatic and musical works in public, to record a musical work, and to produce a novel from a dramatic work or vice versa. These rights were automatic, came into existence upon the creation of the work, and were not subject to any formalities.

Copyright in the Soviet Union After the October Revolution, the Tsarist copyright law from 1911 remained initially in force, although it was partly invalidated by numerous decrees. The copyright term was reduced from 50 years p.m.a. to the lifetime of an author. Many works were nationalized, first only works of deceased authors, but later also works of still living authors. The nationalizations of the publishing houses restricted the possibilities of authors to publish their works, effectively restricting their exclusive rights.

On January 30, 1925, the Central Executive Committee passed a new copyright law. These "Fundamentals of Copyright Law" were replaced already three years later, on May 16, 1928, by a second version that then remained in effect essentially unchanged for thirty years. In 1961, the copyright law was incorporated into the Civil Law. On December 8, 1961, the Supreme Soviet of the USSR passed the Fundamentals of Civil Legislation, which entered in force on May 1, 1962. Chapter IV of these Fundamentals contained the eleven articles that constituted the copyright law. In the Soviet legislation, these union-wide Fundamentals (Osnovy; Основы) were only a binding framework; the individual republics of the Soviet Union then had to implement the provisions of the Fundamentals in their own republic laws. Although these different versions of the law differed in some details, the basic characteristics of Soviet copyright remained more or less constant throughout these revisions, and also across the various republics' laws. Copyright was granted on the creative works of Soviet citizens, whether published or unpublished. Foreign works were copyrighted only if they were first published in the USSR or, if unpublished, existed in objective form on the territory of the USSR. Copyright was automatic and came into existence upon the creation of the work; no formalities were required (with the exception of photographs, which were only copyrighted if they bore the name of the studio or the photographer, the address, and the year ). Authors were granted the personal rights to attribution and to the integrity of the work; these rights were perpetual and linked to the author (they could not be inherited); they were enforced after the author's death by the VUOAP (see below). Furthermore, the law recognized the rights of an author to reproduce, publish, and disseminate a work, and to be remunerated for uses of his work. Until 1961, these rights were nominally "exclusive" rights of the author, but the common view of Soviet legal theorists and the actual practices had always maintained that an author actually did not enjoy exclusive publishing rights on his works and could not publish his works himself, but was only entitled to receive remuneration if the official bodies approved the publication of a work. Consequently, the 1961 Fundamentals did no longer call these rights "exclusive". The general copyright term changed with each revision of the law. The 1925 Fundamentals had defined that copyrights subsisted for 25 years since the first publication of a work. In 1928, this was changed to the lifetime of the author plus 15 years (15 years p.m.a.). The 1961 Fundamentals reduced this to the lifetime of the author, but allowed individual republics to devise their own rules. The Fundamentals also made mention of the inheritance of copyrights. The Russian SFSR defined in its chapter IV of the 1964 RSFSR Civil Code a copyright term of 15 years p.m.a. The copyrights of an author were limited by a broad array of uses allowed without the author's consent that were defined not to be copyright infringements. The law provided for "free uses" and also for compulsory licenses. Free uses of a work allowed anyone to use a published, copyrighted work without the original author's consent and without the payment of royalties, while compulsory licenses were those cases where the use was also allowed without the author's consent, but only if royalties were paid. Both the free uses

and the compulsory licenses were subject only to the proper attribution of the author. The state also reserved the right to execute a compulsory purchase of the copyrights on a work. This provision was rarely applied, usually to prevent an "excessive unearned income" of the heirs of the author of a successful work. Amongst the free uses, Soviet copyright continued to grant the freedom of translation. Any work could be translated without the author's consent, and the translator was granted a separate and independent copyright on the translation. With the entry in force of the 1961 Fundamentals, translators were required to maintain the meaning and the integrity of the original work. Copyrights were non-transferable under Soviet law. Authors could only grant a publisher a time-limited right to use a work through mandatory author's contracts defined by the state. These contracts were limited to at most five years, the intended use of the work had to be clearly spelled out, and if the publisher accepted the delivered work, he was obliged to actually publish it within at most two years. The contract also specified the remuneration the author was entitled to. The allowed range of the amount of royalties was prescribed in governmental remuneration schedules. Individual republics of the USSR were free to devise their own rules for standard publication contracts and royalty tariffs. A union-wide collecting society called the "All-Union Administration for the Protection of Copyrights" (VUOAP – Vsesoiuznoe upravlenie po ochrane avtorskich prav; Всесоюзное управление по охране авторских прав, ВУОАП) was founded in the 1930s to centralize all collection and payments of royalties. The exercise of copyright in the Soviet Union was subject to the rules of censorship and the literary controls, the press legislation, the laws on printing, publishing, and selling, and Party directives. In general, only authors of "socially useful" works were granted full copyrights; on "useless works" such as Church hymns no economic rights could be enforced; and authors of undesirable works faced administrative, or social, or even penal sanctions. As a way to bypass this governmental control for literary works samizdat developed: the non-commercial dissemination of works in chain-letter fashion through carbon-copies produced by readers on their typewriters. Many samizdat works were considered to be "anti-Soviet agitation" by the authorities and the authors were prosecuted under article 58(10) (later articles 70 and 190(1)) of the RSFSR Criminal Code or corresponding provisions of the other republics' penal laws. In 1973, the USSR joined the Universal Copyright Convention (UCC), ending its selfimposed isolation (but also its independence) in copyright matters. The treaty entered in force with respect the USSR on May 27, 1973. Foreign works published after that date outside of the USSR became copyrighted in the Soviet Union if the author was a national of any other signatory country of the UCC or if the work was first published in any other UCC country, and vice versa: Soviet works published after this date became copyrighted in other UCC countries. The Soviet Union had to adapt its copyright laws to meet the requirements of the UCC. It did so by increasing the copyright term to 25 years p.m.a. and by abolishing the freedom of translation: translations henceforth were subject to the consent of the author of the original work. In exchange, two new free uses were included

in the law in 1973, one of which was a very broad free use permission allowing newspapers to reproduce any published report or scientific, artistic, literary, or oral work; either in the original or as a translation. The VUOAP was replaced by a new agency, the "All-Union Agency on Copyrights" (VAAP – Vsesoiuznoe agentstvo po avtorskim pravam; Всесоюзное агентство по авторским правам, ВААП). The VAAP took over the VUOAP's function as a collecting society, but additionally held the state monopoly on foreign trade in copyrights. All licensing contracts with foreign publishers had to be concluded through VAAP; authors and Soviet publishers were forbidden to negotiate directly with foreign publishers. The monopoly of the VAAP was abolished in 1989. Also during Perestroika, a work group was formed with the task to adapt the Soviet copyright law to a market economy. These efforts culminated in the passing of a profoundly revised copyright law on March 31, 1991. This new law was a radical break with the previous Socialist practice. Author's rights were exclusive again, the copyright term was increased to 50 years p.m.a., neighbouring rights were introduced for the first time in Soviet legislation, and the free uses were reduced considerably and defined much narrower. Compulsory licenses were abolished altogether. The initial copyright owner in a work in all cases was the natural person who created the work; the copyright of legal entities no longer existed. The provisions of the 1991 Fundamentals, which were scheduled to enter in force on January 1, 1992, never became effective in the Soviet Union, as the USSR was dissolved before that date.

Copyright in the Russian Federation In Russia, the Supreme Soviet of the Russian Federation passed a decree that made the USSR 1991 Fundamentals effective in Russia from August 3, 1992 on, insofar as these Fundamentals contradicted neither the Constitution of the Russian Federation nor other legislative acts of Russia passed after June 12, 1990. Section IV of the 1991 Fundamentals was in effect for exactly one year until the new Copyright law of the Russian Federation entered in force on August 3, 1993. The Copyright Law of 1993 The copyright law of 1993 was inspired by WIPO model laws and in some of its provisions heavily drew upon the formulations of the Conventions of Berne and Rome. The main innovations were much more detailed regulations on neighbouring rights, the adaptation of the law to new technologies, an expansion of contractual freedom, and provisions on collecting societies. Like its predecessors, the new law granted copyrights on creative works that existed in some objective form. This objective form needed not be tangible, any form by which the work could be perceived by others sufficed, including an oral form. Mere ideas that had not been externalized were excluded from copyright, as were simple facts and instructions and such. Also excluded from copyright were official documents, state

symbols (including money), and folklore; this also covered the symbols of local or municipal authorities. Computer programs were copyrighted as literary works, databases as collective works. Copyrights were not subject to any formalities and arose upon the creation of a work. The rights were always vested in the natural person who had created the work; legal entities could no longer be original copyright owners. As before, the law covered all works first published on the territory of the Russian Federation, as well as unpublished works that existed there in an objective form, regardless of the nationality of the author. Works of Russian citizens, whether published or unpublished, were also covered. On other works first published in a foreign country, or, if unpublished, existed in objective form only abroad, the law specified they were subject to copyright in Russia according to the provisions of the international treaties the Russian Federation was a member of. If a work was published within thirty days in a foreign country and in Russia, it was considered to have been first published in Russia. (Article 5 of the law, which laid down these definitions, was modified in 2004 by law no. 72-FL. ) Following the continental European tradition of author's rights, the law recognized moral and economic (patrimonial) rights. A special right of the author to remuneration was no longer mentioned: it was not needed anymore since the author's rights were exclusive and authors could freely negotiate contracts. On contracts, the law provided that only the rights explicitly mentioned in a contract were transferred, and that the new rights holder could sub-license these rights to a third party only if the contract explicitly provided for this. Furthermore contracts were not allowed to cover the future works of an author. The neighbouring rights, introduced for the first time in the 1991 Fundamentals, were much expanded and clarified in the 1993 copyright law. The law covered performances, phonograms, and broadcasts (including cable broadcasts). Visual fixations (videograms) were not covered. Neighbouring rights were, like the copyrights, automatic and not subject to formalities except the observance of any rights of the authors (or performers) of the works performed, recorded, or broadcast. Performers were granted the moral rights to attribution and to the integrity of the work. The exclusive economic rights comprised the rights to (re-)perform a performance, including a right to be remunerated for any reuses of a performance, and the rights to reproduction, recording, distribution, broadcasts, and rebroadcasts of a performance, a phonogram, or a broadcast. Phonogram producers were even granted an exclusive right to adaptations of their recordings, a provision that goes even beyond the WIPO Performances and Phonograms Treaty. The 1993 law covered phonograms first published in Russia or created by a Russian person or company, broadcasts of broadcasting organizations having their legal residence in Russia, and performances of Russian artists, as wells as performances first performed in Russia, and also performances recorded or broadcast in Russia, if the record or broadcast was covered by the law. The law specified a copyright term of fifty years, applicable to all kinds of works. Works of known authors were copyrighted until 50 years after the author's death (50 years p.m.a.). Anonymous or pseudonymous works were copyrighted until fifty years after the

first publication, unless the identity of the author became known during that time and the term of 50 years p.m.a. thus applied. For works with several authors, the copyright term was calculated from the death of the longest-living of the co-authors. For authors who had worked during or fought in the Great Patriotic War, the duration of copyrights was extended by four years. For posthumously published works, copyrights were defined to last until fifty years after the publication, and for posthumously rehabilitated authors, the fifty-year term began running at the date of the rehabilitation. All terms were to be calculated from January 1 following the date the fact occurred that caused the term to begin running. The moral rights to authorship, name, and integrity of the work were defined to be perpetual. Concerning the neighbouring rights, the term of protection was fifty years since the original performance or broadcast. For phonograms, the term was fifty years since the first publication, or fifty years since the fixation of the phonogram if not published within that time. Similar rules as for copyright concerning posthumously published works or authors who had lived during the Great Patriotic War or who were posthumously rehabilitated existed also for the neighbouring rights. The 1993 copyright law contained a list of allowed free uses of copyrighted works, similar to may other countries' laws. Free uses only related to limitations on the patrimonial rights of an author on a work; his moral rights remained untouched. Any free use was subject to the condition that it did not impede an author's legitimate rights and did not harm the normal exploitation of a work. The free uses contained provisions on reproductions made purely for personal uses and on archival copies (backups), as well as quotation rights, and provisions on news reporting (including a provision allowing the reproduction of previously published news reports in other newspapers or broadcasts.) Implementation Act for the Copyright Law of 1993 The implementation act for the new copyright law, law no. 5352-1 of July 9, 1993, stated that the copyright provisions from the 1991 Fundamentals were invalidated. It also stated that the new copyright law applied to all works on which the 50-year term for copyrights and neighbouring rights had not yet elapsed in 1993. Subsequently, a discussion amongst copyright specialists erupted about whether this made the law applied retroactively, restoring copyrights on works on which the shorter copyright terms from the Soviet-era had already expired or which had not been copyrighted at all under Soviet law. The question was resolved definitively only in 2006, when the Supreme Court of the Russian Federation confirmed the retroactivity of the 1993 law, explaining that it placed even works under copyright again if their old, Soviet 25-year term had already expired. For the neighbouring rights, which hadn't existed in Soviet times, the law granted those rights retroactively. The 1993 copyright law thus rendered the old Soviet legislation largely obsolete in Russia; it remained applicable only to copyright violations that had occurred before August 3, 1993.

Amendments of the 1993 law On July 19, 1995, Federal Law 110-FL changed the copyright law, strengthening the measures for protecting copyrights against infringements. Law 110-FL also made corresponding amendments in the Criminal Code of the Russian Federation and in related laws. Three years later, a governmental decree clarified that for Soviet films, the director and other persons identified by the 1993 law as authors were indeed to be considered the authors and entitled to royalties for uses of these films, and not, as had been the case under the old Soviet law, the film studios. On August 8, 2004, the copyright law of Russia was amended by federal law no. 72-FL, by which the general copyright term was extended from 50 to 70 years. This term extension applied only to works that were still copyrighted in Russia in 2004. The same law also modified the provisions on the copyright of foreign works. It added an article 5(4) to the law that defined that a foreign work was eligible to copyright in Russia if its copyright had not expired in the source country and it had not fallen into the public domain in Russia through the expiry of its copyright term. Other provisions of law 72-FL amended the 1993 copyright law of Russia in several areas, especially concerning neighbouring rights, to make the legislation compliant with the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Part IV of the Russian Civil Code Since its foundation as an independent successor state of the former Soviet Union, the Russian Federation had been engaged in a large legislative project of developing a new Civil Code, which was also to encompass the intellectual property laws. Several drafts for new chapters on intellectual property rights including copyrights were prepared, but the matter proved so difficult that this legislation was postponend several times. The draft of the new intellectual property legislation was heavily criticized for being too unclear and for conflicting with Russia's international obligations, and also for introducing several untested novelties. Finally, the new intellectual property laws were included in part IV of the Russian Civil Code as articles 1225 to 1551. Part IV was signed into law as Federal Law no. 230-FL by Vladimir Putin on December 18, 2006. The implementation act (Federal Law no. 231-FL) was signed on the same day; it declared part IV of the Civil Code to enter in force on January 1, 2008 with the effect of invalidating and replacing all previous intellectual property legislation. Part IV of the Civil Code was a comprehensive intellectual property legislation. It contained the copyright law proper in chapters 70 (authors' rights) and 71 (neighbouring rights); chapter 69 contained general provisions also applicable to copyright. Other chapters dealt with patent law (chapter 72), the protection of breeders' rights (ch. 73), of integrated circuits (mask works; ch. 74), of trade secrets (know-how; ch. 75), and also of trade marks, brands, and geographical indications (ch. 76). Chapter 77 detailed rules for technological applications, in particular those developed on a federal budget. Among the novelties introduced by this new legislation in the area of copyrights were a publication right (a copyright granted to the publisher of a previously unpublished, no longer

copyrighted work; with a period of 25 years from the publication), and the definition of two kinds of contracts: one for copyright transfers, and licenses for granting usage rights. The new law was given retroactive effect by the implementation act, which also specified that the 70-year copyright term was applicable to all works on which the copyright had not expired yet on January 1, 1993, instead of on January 1, 2004, as had been the case until then. Russia had committed in a trade agreement with the U.S. in November 2006 to ensure that new legislation, including part IV of the Civil Code, would be fully TRIPS compliant, even if such legislation was passed before an eventual accession of Russia to the WTO.

International copyright relations International copyright treaties International copyright is based on national treatment: signatory countries of a treaty are obliged to grant copyright on foreign works according to their own national laws. In the field of "classic" copyright (or author's rights), three main treaties exist:  The Berne Convention (BC) dates to 1886 and was amended several times. It defined the minimal rights of those who produced creative scientific, literary, and artistic works, prescribing a general minimum duration of copyright of 50 years p.m.a.  The Universal Copyright Convention (UCC) was adopted in 1952 (and revised in 1971) as a less stringent alternative to the BC for countries who considered the BC too demanding. If a country signed both the UCC and the BC, the BC had precedence in dealings with other BC countries.  The WIPO Copyright Treaty (WCT) of 1996 became effective in 2002. It was an extension of the BC covering computer programs and databases. In the field of neighbouring rights, two important treaties are:  The Rome Convention of 1961 was the equivalent to the BC for performers, phonogram producers, and broadcasting institutions.  The WIPO Performances and Phonograms Treaty (WPPT) of 1996 entered in force in 2002. It was an update on the Rome Convention. Additionally, the TRIPS agreement from 1994 defined minimum standards for the protection of intellectual property rights for WTO member countries.

Tsarist Russia and the USSR had a history of near-isolation concerning international copyright relations. Under the Tsars, only a few bilateral copyright treaties with other nations were concluded; these treaties moreover were weak and of short duration. Under Western pressure, Russia planned to join the Berne Convention in the early 20th century, but that was, according to Stoyanovitch, prevented by the outbreak of World War I. The treaties from Tsarist times had all run out by end of the war.

International copyright relations of the USSR After the October Revolution, the Soviet Union had no international copyright relations until 1967, when a first treaty with Hungary was concluded. A second treaty with Bulgaria followed 1971. In 1973, the USSR then joined the Universal Copyright Convention (UCC), establishing copyright relations with Western countries. With the accession of the Soviet Union to the UCC, Soviet works published on or after May 27, 1973 became eligible to copyright in all other signatory countries of the UCC. Conversely, foreign works became copyrighted in the Soviet Union by virtue of the UCC if they were published on or after May 27, 1973 and the publication occurred in a UCC country or the author was a citizen of a UCC country. More bilateral treaties followed, with the German Democratic Republic (effective November 21, 1973), with Poland (October 4, 1974), and with Czechoslovakia (March 18, 1975). The 1967 treaty with Hungary had already been prolonged in 1971 and was again renewed in 1977, the treaty with Bulgaria was renewed in 1975. In 1981, the first bilateral treaty with a Western country was signed: the copyright treaty with Austria entered in force on December 16, 1981. On May 30, 1985, a treaty with Cuba followed, and in 1986 the second treaty with a Western country was concluded with Sweden. All these post-UCC treaties went beyond the provisions of the UCC because they were applied retroactively and explicitly applied also to works published before the USSR had joined the UCC and that were still copyrighted in their source country in 1973. (The treaty with Austria was amended to cover such pre-1973 works in 1989.) On April 19, 1989, another copyright treaty with Madagascar was concluded. The treaty with the German Democratic Republic was rescinded by the USSR on June 2, 1991, following confusions about its continued applicability after the German reunification. On October 20, 1988, the USSR acceded to the Brussels Convention about measures against the unauthorized (re-)distribution of satellite transmissions. The treaty became effective for Russia from January 20, 1989 on.

International copyright relations of Russia When the Soviet Union was dissolved, Russia as the largest successor state adopted all international obligations of the former USSR, including its membership to the UCC. Consequently, Russia was henceforth considered a member of the UCC (in the 1952 Geneva text) since the date of the adherence of the USSR to that treaty, i.e., since May 27, 1973. The membership of the USSR in the Brussels Convention was equally continued by the Russian Federation as from December 25, 1991. On June 25, 1993, Russia and Armenia signed a treaty on the mutual protection of copyrights. To clarify the copyright situation amongst the states that had made up the former Soviet Union, the CIS nations agreed on a cooperation agreement in the field of copyrights on September 24, 1993. This "Moscow agreement" declared that all signatory countries considered themselves bound by the UCC as of the date the USSR had joined and would confirm this state with the UNESCO, which administered the UCC. The treaty

also defined that the treaty states would apply the UCC amongst themselves, also for works published before May 27, 1973 if those works had been copyrighted before this date according to the national laws of the successor states. The intent of the Moscow agreement was to avoid that older Soviet works became copyrighted in only some of the successor states, but would become part of the public domain in some of the others. The 1993 Moscow agreement entered in force in Russia on May 6, 1995. Also in 1993, Russia and Switzerland concluded a trade agreement in which they granted each other most-favoured-nation status concerning intellectual property rights. This treaty entered in force on July 1, 1995. A comprehensive trade treaty with the European Union that was signed on June 24, 1994, contained similar provisions regarding intellectual property. The intellectual property part of that treaty entered in force on February 1, 1996. On November 3, 1994, the Russian government announced that the country would join three international treaties in the field of copyrights: the 1971 Paris version of the UCC including its annexes, the Geneva Phonograms Convention on unauthorized duplication and parallel import of phonograms, and the Berne Convention. The accession documents to all three treaties were deposited on December 9, 1994. The UCC (Paris 1971 version) became effective for Russia on March 9, 1995. The Geneva Convention entered in force with respect to Russia on March 13, 1995 and was not retroactive: it covered only phonograms recorded after that date. Berne Convention The Berne Convention also became effective for Russia on March 13, 1995. Russian or Soviet works that were copyrighted on that date became copyrighted in all other Berne Countries on that date. In its declaration of accession, Russia made a reservation regarding article 18 of the Berne Convention, stating that the treaty "shall not extend to the works which, at the date of entry into force of the said Convention in respect of the Russian Federation, are already in the public domain in its territory." This statement effectively denied the retroactivity of the Berne Convention for foreign works within Russia. This was of some importance because of the issue of foreign works published before May 27, 1973, when the USSR had joined the UCC. Such works had never been eligible to copyright in the Soviet Union or in Russia. Under §18(2) of the Berne Convention, they should have become copyrighted in 1995 because that article only exempted works that once were copyrighted, but on which that copyright already had expired, which didn't apply to pre1973 foreign works in Russia. The reservation made by Russia used a slightly different phrasing, just stating that works that were in the public domain in Russia in 1995 would not be reprotected. As pre-1973 foreign works were not copyrighted at all and thus in the public domain in Russia in 1995, such foreign works remained in the public domain in Russia.

Russian scholars have disputed this retroactivity issue at length. Gavrilov, for instance, who had argued for the Russian reservation to the Berne Convention, kept defending it, while others disagreed. Maggs and Sergeyev, for instance, pointed out in 2000 that the reservation was inadmissible under article 30(1) of the Berne Convention; Podshibikhin and Leontiev agreed in 2002. The modification of the copyright law through law 72-FL in 2004 refuelled the discussion, because this law added a new paragraph 4 to article 5 of the 1993 copyright law which clearly stated under which conditions foreign works were copyrighted in Russia, using a wording that corresponded in essence to articles 18(1) and 18(2) of the Berne Convention. Although law 72-FL indeed was intended to rescind the non-retroactivity reservation, thereby restoring copyrights on pre-1973 foreign works, the common practice in Russia continued treating pre-1973 foreign works as uncopyrighted. Other treaties In 2003, Russia also joined the Rome Convention, the analogue of the Berne Convention for neighbouring rights. The adherence of Russia to the Rome Convention became effective on May 26, 2003. The Rome convention covered performances, phonograms, and broadcasts. The Rome Convention is non-retroactive and applies only to phonograms created after and to performances or broadcasts that occurred after a country jointed the convention (article 20). Until 2006, Russia had joined neither the WIPO Copyright Treaty nor the WIPO Performances and Phonograms Treaty. Its application to enter General Agreement on Tariffs and Trade (GATT) and to become a World Trade Organization (WTO) member was postponed in 2001; negotiations were still ongoing in 2006. If and when Russia should become a WTO member, it would need to rescind its non-retroactivity reservation regarding the Berne Convention. Indeed Russia agreed in November 2006 to ensure that its new intellectual property legislation in part IV of the Civil Code, which was scheduled to enter in force on January 1, 2008, was fully TRIPS compliant.

Copyright on foreign works in the USSR and in Russia Prior to the accession of the Soviet Union to the UCC, only works by foreign authors that were first published in the USSR and unpublished works of foreign authors that existed in an objective form on the territory of the USSR were eligible to copyright. When the USSR joined the UCC in 1973 and the treaty entered in force with respect to the USSR on May 27, 1973, foreign works first published on or after that date outside of the USSR became copyrighted in the Soviet Union if  

the author was a national of any other signatory country of the UCC, irrespective of where this publication occurred, or if the work was first published in any other UCC country, regardless of the nationality of the author.

In addition to the UCC, the bilateral treaties the USSR concluded with several countries, amongst them also two Western countries, made works of nationals of these countries

eligible for copyright in the Soviet Union, even works published before May 27, 1973. In the case of Austria, Poland, and Sweden, this even applied to any work first published there, irrespective of the nationality of the author. Since its accession to the Berne Convention in 1995, the following foreign works were copyrighted in Russia: 

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Soviet works published in the Russian SFSR, as well as works of authors who became citizens of the Russian federation after the demise of the USSR became subject to the copyright law of the Russian Federation of 1993 (and its amendments) due to the strict territoriality of copyright law. Soviet works that were first published in one of the other fourteen republics of the USSR and created by authors who did not become nationals of the Russian Federation were subject to the Russian copyright law per the Moscow agreement. Works by nationals of countries that adhered to the Berne Convention, but not to the UCC, or works published in such a country, became eligible to copyright in Russia if they were published on or after March 13, 1995, the date the Berne Convention became effective with respect to Russia. Works of nationals of UCC countries, or works first published in such a country (regardless of the author's nationality), were subject to copyright in Russia if the works were first published on or after May 27, 1973. Because of the Russian reservation concerning the retroactivity of the Berne Convention, this applied whether or not the UCC country had also signed the Berne Convention. Pre-1973 works of nationals of one of the countries the USSR or Russia concluded bilateral treaties with were subject to copyright in Russia insofar as these treaties remained effective. This concerned works of nationals of Austria, Armenia, Bulgaria, Cuba, the Czech Republic, Hungary, Madagascar, Poland, Slovakia, and Sweden, regardless of the place of first publication. It also applied generally to works first published in Austria, Poland, or Sweden, regardless of the author's nationality, as the bilateral treaties with these states explicitly stated so.

Copyright on Soviet and Russian works in other countries Even before the accession of the Soviet Union to the UCC in 1973, some Soviet works were copyrighted in some other countries. One well-known case concerned the actions of the four Soviet composers Shostakovich, Khachaturian, Prokofiev, and Myaskovsky against the movie company 20th Century Fox. While the U.S. courts dismissed their case in Shostakovich v. Twentieth Century-Fox, the French Court of Cassation in 1959 ruled that that works of foreign authors were entitled to copyright in France, and that the works of these four Soviet composers were thus copyrighted in France. It found their moral rights violated and ordered the film to be confiscated. Another way by which Soviet works could become copyrighted outside of the Soviet Union was the smuggling of manuscripts out of the USSR to have the work first published abroad. This practice, known as tamizdat in the Soviet Union, could result in serious repercussions for the authors in the USSR, but was still employed as one of the

few ways the governmental censorship could be bypassed. As a side effect, tamizdat works were granted copyright in the foreign country of first publication. If that country was a signatory of the UCC or the Berne Convention, the work was also granted copyright in all other signatories of these treaties, because they both extended copyright to works of citizens of non-member states, if these works were first published in a member state. A very famous case of a tamizdat publication was Boris Pasternak's novel Doctor Zhivago, which, after it had been refused by Soviet publishers, was first published in an Italian translation in Italy in 1957. Because Italy was a member of both the UCC and the Berne Convention, the work was entitled to full copyright in all other member states of these two conventions. Early Soviet authors sometimes benefited from international copyright on their works just naturally. Maxim Gorky and Sergei Prokofiev, for instance, both had lived for some time abroad and published works in other countries that were members of the Berne Convention. These works of theirs were copyrighted in all other signatory countries of the Berne Convention. After the case of Doctor Zhivago, Soviet publishers became more aware of this possibility to have Soviet works covered by the Berne Convention. Soviet state organizations began to arrange for (simultaneous) first publication of some Soviet works in a country of the Berne Convention. For instance, Mikhail Sholokov's novel They Fought for Their Country was officially first published in Italy. When the Soviet Union joined to the UCC, all Soviet works published on or after May 27, 1973 became eligible to copyright in all other signatory countries of the UCC. This state persisted until the dissolution of the USSR. When the USSR disintegrated, so did its copyright law. The split into fifteen independent states translated into a split into fifteen independent copyright laws, each with its own jurisdiction defined by the territory of the new successor state of the Soviet Union. Through the Moscow agreement, Soviet works first published in the RSFSR, which were thus subject to the Russian law, became eligible for copyright is all other CIS nations, even if they had been published before 1973. With the accession of Russia to the Berne Convention, Soviet and Russian works that were copyrighted in Russia in 1995 became copyrighted outside of Russia. By virtue of the retroactivity of the Russian copyright law of 1993, this also included many pre-1973 Soviet works. In the United States, these works became copyrighted on January 1, 1996, the effective date of the U.S. Uruguay Round Agreements Act, if they were still copyrighted in Russia on that date. In the countries that had bilateral treaties with the USSR, pre-1973 Soviet works (from any of the fifteen SSRs) were copyrighted even before.

Chapter- 8

Spanish Copyright Law

Spanish copyright law governs copyright (Spanish: derechos de autor), that is the rights of authors of literary, artistic or scientific works, in Spain. It was first instituted by the Law of 10 January 1879, and, in its origins, was influenced by French copyright law and by the movement led by Émile Zola for the international protection of literary and artistic works. As of 2006, the principal dispositions are contained in Book One of the Intellectual Property Law of 11 November 1987 as modified. A consolidated version of this law was approved by Royal Legislative Decree 1/1996 of 12 April 1996: unless otherwise stated, all references are to this law.

Protected works The conception of a "protected work" (objeto de propiedad intelectual) in Spain (contained in Title II, Chapter 2) is generalist, and covers (art. 10.1) "all original literary, artistic or scientific creations expressed in any medium or support", including:         

books, pamphlets, writings, addresses, lectures, judicial reports (informes forenses) and other works of the same nature; musical compositions with or without words; dramatic and dramatico-musical works, choreographies, mime and theatrical works in general cinematographic works and any other audiovisual works;* sculptures; drawings, paintings, engravings, lithographies; cartoons and comics; their preparatory work and any other physical works; projects, plans, models and designs of architectural and engineering works; graphs, maps and pictures relating to topography, geography and science in general; photographs and analogous works; computer programs.*

Cinematographic works, other audiovisual works and computer programs are subject to slightly different treatment from other types of work. The title of a work is also protected so far as it is original (art. 10.2). Derived works are protected alongside the protection of the original work (art. 11), and include: 1. 2. 3. 4. 5.

translations and adaptations; revisions, updates and notes; compilations, abstracts and extracts; musical arrangements; any other transformation of a work.

Collections of works (e.g. anthologies) and other collections of data which, by reason of the selection or arrangement of the contents, constitute intellectual creations are also protected (art. 12) Works are protected by "the sole fact of their creation" (art. 1), regardless of the nationality of the author or the place of publication. Corporate persons can only be authors of collective works (arts. 4.2, 8).

Exceptions Article 13 provides that the following official works are not covered by copyright protection:    

Laws and reglementary dispositions (disposiciones legales o reglamentarias), either approved or awaiting approval (y sus correspondientes proyectos) Court judgements (resoluciones de los órganos jurisdiccionales) Acts, agreements, deliberations and rulings of public bodies (actos, acuerdos, deliberaciones y dictámenes de los organismos públicos) Official translations of any of the above (las traducciones oficiales de todos los textos anteriores)

Images are only concerned by this exception to copyright protection when they form an integral part of any of the above, for example the diagrams in a patent: otherwise the copyright is held by the author of the image (e.g. the photographer).

Rights of exploitation (Derechos de explotación) The author has the exclusive right to exploit the work in any way or form, subject to the legal limitations on the exclusivity, and notably the rights of reproduction, distribution, public communication and transformation (art. 17). The author may transfer any or all of these rights to another person, although such a transfer cannot prevent the author from producing a collection (partial or complete) of his/her works (art. 22). Any agreement to transfer rights of exploitation must be made in writing (art. 45): it cannot cover the totality of the future works of an author (art. 43.3), cannot require the author not to produce works in the future (art. 43.4) and cannot cover forms of distribution which do

not exist at the time of the agreement (art. 43.5). Such an agreement must normally guarantee the author a reasonable share of the income derived from the exploitation of the work (art. 46.1, 47), although a fixed-sum payment is allowed in certain cases (art. 46.2). The different rights of exploitation are independent of one another (art. 23). The authors of works of plastic art have the right to 3% of the resale price of their works when the resale price is greater than or equal to 300,000 pesetas (1,807 euros): this right cannot be renounced or transferred during the lifetime of the author (art. 24).

Duration of the rights of exploitation The main dispositions concerning the duration of copyright are contained in Title III, Chapter 1, as modified. In general, copyright protection in Spain lasts for the life of the author plus seventy years (art. 26). Collective works are protected for seventy years following publication (art. 28.2), as are pseudonymous and anonymous works unless the identity of the author becomes known (art. 27.2). It always assigns copyright to the author and he or she is not allowed to disclaim it. Posthumous works are protected for seventy years following publication provided they are published within seventy years of the death of the author. All of these time periods are calculated starting from 1 January following death or publication (art. 30).

Copyright management societies As in other countries, there are a number of societies which collectively manage the licensing of different types of work and the collection of royalties on behalf of copyright holders. These societies (entidades de gestión) are governed by Title IV of Book Three of the Intellectual Property Law (arts. 142–152, renumbered as arts. 147–157 by the Ley 5/1998), which provides for their authorisation by the Ministry of Culture. The largest such copyright management society is the Sociedad General de Autores y Editores (SGAE), which was established by law in 1941 as the Sociedad General de Autores de España and which had a de facto monopoly on the collective management of copyright royalties before the passage of the 1987 Intellectual Property Law.

Moral rights (Derecho moral) The moral rights of the author, contained in Chapter 3, Section 1, of Title II, go beyond the minimum requirements of the Berne Convention. They are enumerated in article 14: 1. the right to decide whether the work should be published and in what form; 2. the right to publish the work under his/her real name, pseudonymously or anonymously; 3. the right to be identified as the author of the work 4. the right to insist on the respect of the integrity of the work and to prevent any distortion, modification, alteration or derogatory action in relation to the work which would be prejudicial to his/her legitimate interests or reputation;

5. the right to modify the work in the respect of the rights of third parties and of the protection of "Works of Cultural Interest" (Bienes de Interés Cultural) 6. the right to withdraw the work from commercial exploitation, due to a change of his/her intellectual or moral convictions, with compensation to the holders of the rights of exploitation. If the author later decides to re-undertake the exploitation of his/their work he/she will have to offer preferably the corresponding rights to the former rights holder and in conditions reasonably similar to the previous ones. 7. the right to access to the single copy or a rare copy of the work in order to exercise any of the other rights. This right does not include the right to displace the work, and must be exercised with the minimum of inconvenience to the legal owner of the copy and with compensation for any prejudice. The right to the respect of the integrity of the work is limited in the case of computer programs, where the author cannot object to the production of future versions or derived works except with a specific agreement to that effect (art. 98). The author of a work cannot renounce his/her moral rights, nor transfer them to another person during his/her lifetime.

Duration of moral rights The rights to be identified as author and to the respect of the integrity of the work are perpetual, and may be exercised after the author's death by his/her executors, heirs or (by default) by the State (arts. 15, 16). The rights to modify the work and to withdraw the work from commercial exploitation may only be exercised by the author during his/her lifetime (this is implicit in the wording of 5º and 6º of art. 14).

Cinematographic and other audiovisual works The special rules concerning audiovisual works are contained in Title VI of Book One. The authors of an audiovisual work are considered to be (art. 87):   

the director; the authors of the scenario or adaptation and of the dialogue; the composers of any music created specifically for the work.

The authors are presumed to grant an exclusive licence to the producer, unless there is an agreement to the contrary, coving the reproduction, communication to the public and distribution of the work (art. 88): this is the opposite of the case for other types of work, where the licence is assumed to be non-exclusive unless there is a provision to the contrary (art. 48). The authors may only exercise their moral rights with relation to the final version of the work (art. 93).

Computer programs

The special rules concerning computer programs are contained in Title VII of Book One: through successive modifications, they are now very close to the rules for other types of work. Article 96 gives a definition of "computer program", and reiterates the criteria for copyright protection: the work is only protected to the extent that it is the author's own intellectual creation, and the ideas and principles underlying any of the elements of the program, including those underlying its interfaces, are not protected by copyright (under certain circumstances, they may be protectable by patent law). An employer is assumed to have an exclusive grant of the rights of exploitation of computer programs written by employees in the course of their work (art. 97.4). Article 100 lists the following specific limitations of the rights of exploitation of a computer program, insofar as the following are permitted:     

reproduction and transformation necessary for the use of the program; creation of a back-up copy; observation, study and verification of the ideas and principles underlying the program; modification to produce successive versions by the holder of the rights of exploitation; modification to ensure interoperability with an independently-created program.

The term of protection in computer programs is the same as that for other types of work (art. 98).

Related rights (Otros derechos de propiedad intelectual) A number of "related" rights are detailed in Book Two of the Intellectual Property Law: these are similar in form to the rights of Book One, but may not directly concern the author of the work. They are independent of the rights of the author of the work: this is especially important for photographs and audiovisual works, which are automatically protected by related rights regardless of their copyright status but which may also enjoy the greater protection provided by copyright. The limitations to copyright protection also apply to these related rights (art. 132).

Rights of performers A performer is any person who "presents, sings, reads, recites, interprets or exercutes a work in any form," including the stage director and the conductor of an orchestra (art. 105). Performers have the exclusive rights to authorize:   

the recording and/or reproduction of the performance (arts. 106, 107); the communication of the performance to the public (art. 108); the distribution of recordings or reproductions of the performance (art. 109).

These rights last for fifty years from either the date of the performance or the date of publication of a recording of the performance, whichever is the later (art. 112). The period of protection runs to 31 December of the relevant year. Performers also have the

moral right to have their name associated with their performances, and to object to distortion or mutilation of their performances: these moral rights last for the life of the performaer and for twenty years after his or her death.

Rights of producers of sound recordings The person who makes a sound recording has the exclusive right to authorize the reproduction, the communication to the public and the distribution of that recording (arts. 114–117). These rights last for fifty years after the date of the recording or the date of publication, whichever is the later, and run to 31 December of the relevant year (art. 119). Corporate persons can be the holders of these rights if the recording was first made under their "initiative and responsibility".

Rights of producers of audiovisual recordings An "audiovisual recording" (grabación audiovisual) is any recording of a scene or sequence of images, with or without sound, whether or not it counts as an "audiovisual work" (obra audiovisual) (art. 120): an example would be the images from a security camera. The person who takes the "initiative and responsibility" to make such a recording has the exclusive right to authorize its reproduction, communication to the public and distribution (arts. 121–123). These rights extend to photographs taken during the production of an audiovisual recording (art. 124), and last for fifty years after the production of the recording or its publication, whichever is the later, running to 31 December of the relevant year (art. 125). They are independent of the copyright in the audiovisual work. Corporate persons can be the holders of these rights. All rights fall under Jurisdiction of local law

Rights of broadcasting organisations Broadcasting organisations have the exclusive right to authorise (art. 126):     

the recording of their broadcasts in any form; the reproduction of their broadcasts in any form; the retransmission of their broadcasts; the communication of the broadcasts to a paying public. the distribution of recordings of their broadcasts.

These rights last for fifty years from the date of broadcast, running to 31 December of the relevant year (art. 127).

Database rights The sui generis protection of databases was instituted by the Law 5/1998 of 6 March 1998 incorporating Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the Legal Protection of Databases. The provisions are contained in Title VIII of Book Two (arts. 133–137 under the revised numbering), but are not included

in the 1996 consolidated version of the Intellectual Property Law. Database rights specifically protect the "substantial investment" in the form of "finance, time, energy or effort", assessed "either qualitatively or quantitatively", which was necessary to create the database (art. 133.1). The maker of the database, who may be a corporate person, can prevent a user from extracting "all or a substantial portion, evaluated qualitatively or quantitatively," of the contents of the database, either through a single access or through multiple accesses (art. 133). The user may not do anything which "conflicts with the normal exploitation of the database" or which "unreasonably prejudices the legitimate interests of the maker of the database" (art. 134) There are (limited) exceptions for the private use of nonelectronic databases, for teaching and research and for public security and for administrative or judicial procedures (art. 135). Database rights last for fifteen years from the completion of the database or from its publication, whichever is the later, although "substantial changes" to the database start a new period of protection: the protection runs to 31 December of the relevant year (art. 136). Database rights are independent of any copyright which might exist in the database or its contents (art. 137); for example, a database which relied on a subjective choice of material could qualify for copyright as a compilation, and a database of copyrighted works does not override the copyright existing on individual entries.

Limitations The main limitations to the exclusive rights of exploitation are contained in Title III, Chapter 2. The summary below does not follow the order of this chapter and the headings given below have no legal basis or force.

Right to the private copying and home playing The law explicitly allows to make private copies of copyrighted work without the author's consent for published works if the copy is not for commercial use. To compensate authors, the law establishes a compensatory tax associated with certain recording media (CDs, DVDs, cassettes), managed through societies of authors and editors (as SGAE and CEDRO). Such private copies of a protected work must be made for the private use (not collective, nor lucrative) of the copier (2�º of art. 31): the author is compensated by a tax on the means of reproduction (e.g. photocopiers, blank cassettes) determined at article 25. However, computer programs can not be copied except for a backup copy (art. 99.2): they can be modified for the sole use of the person performing the modification (art. 99.4). Any work can be played in a "strictly home" environment (art. 20.1) without the author's consent. The moral rights of the author can only be exercised in the respect of the rights of owners of copies of the work or of rights to its exploitation, as detailed in article 14.

Some consumer's associations and specialized lawyers contend that the current legislation allows file sharing (as with p2p networks) as this is not for profit and is for private use. Additionally, the Penal Code explicitly requires the intention of commercial profit in order to commit a crime against the Intellectual Property.

Right to receive and to impart information Lectures, addresses, judicial proceedings and other works of the same nature may be reproduced or communicated for the sole purpose of reporting on current events (art. 33.2). The proceedings of parliament and of public corporations may be reproduced or communicated for any purpose (art. 33.2). Works of news reporting may be reproduced in other news media, with identification of the author and remuneration (art. 33.1). Any work which can be seen or heard may be reproduced, distributed and publicly communicated for the purpose of, and only to the extent necessary for, providing information thereof in the context of reporting on current events (art. 34).

Use for education and research Museums, libraries and similar public or cultural institutions may make reproductions of works for the purposes of research (art. 37). "Fragments" of written, sound or audiovisual works or "isolated" plastic, photographic, figurative or analogous works may be included in another original work for the purposes of teaching or research (fines docentes o de investigación) if the following conditions are met (art. 32):    

the source work has been published; it is included for citation or for analysis, commentary or critical judgement; it is included with a citation of the source and the name of the author; it is only included to the extent justified by the purposes of teaching or research.

Press reviews and collections are expressly covered by the provisions of article 32.

Public policy limitations Works may be reproduced for judicial and administrative actions (1º of art. 31). Musical works may be performed at official public ceremonies and religious services, if these are free of charge to the public and if the musicians are not specifically paid for performing the protected works (art. 38). Transcription of works may be made into Braille or another medium specific for the use of the blind, provided that the use of the copies is nonlucrative (3º of art. 31). The executors or heirs of a deceased author can be forced to publish the works which remained unpublished during the author's lifetime if their refusal to do so is judged contrary to article 44 of the Constitution (art. 40, Intellectual Property Law).

Other limitations

Works which are permanently situated in parks, streets, squares or public routes may be reproduced in paintings, drawings, photographs and by audiovisual means (art. 35). Parodies of a work are permitted without the consent of the original author provided that there is no risk of confusion with the original work and that no damage is caused (ni se infiera un daño) to the original work or to its author (art. 39).

Public domain A work enters the public domain at the expiration of its term of protection. However, the rights to be identified as the author and to the respect for the integrity of the work are perpetual (art. 41), and must be respected even for works in the public domain.

Mediation and arbitration The 1987 Intellectual Property Law established the Comisión Mediadora y Arbitral de la Propiedad Intelectual ("Intellectual Property Mediation and Arbitration Commission") under the auspices of the Ministry of Culture (art. 153, renumbered as art. 158 by Ley 5/1998). Its role is to mediate between cable distributors (widespread and numerous in Spain) and rights holders; and to arbitrate between copyright management societies and those who use their repertoires.

Other Spanish laws  

Ley orgánica 6/1987 Ley 20/1992, del 7 de julio, de modificación de la Ley 22/1987, de 11 de noviembre, de Propiedad Intelectual (this law is included in the consolidated version of the Intellectual Property Law)

Transposition of European Union directives Directive

Transposition into Spanish law Ley 16/1993, de 23 de diciembre, de Council Directive 91/250/EEC incorporación al Derecho español de la of 14 May 1991 on the legal Directiva 91/250/CEE, de 14 de mayo, sobre protection of computer programs la protección jurídica de programas de ordenador Council Directive 92/100/EEC Ley 43/1994, de 30 de diciembre, de of 19 November 1992 on rental incorporación al Derecho español de la right and lending right and on Directiva 92/100/CEE, de 19 de noviembre, certain rights related to copyright sobre derechos de alquiler y préstamo y otros in the field of intellectual derechos afines a los derechos de autor en el property ámbito de la propiedad intelectual

Ley 27/1995, de 11 de octubre, de incorporación al Derecho español de la Directiva 93/98/CEE, del Consejo, de 29 de octubre, relativa a la armonización del plazo de protección del derecho de autor y de determinados derechos afines Ley 28/1995, de 11 de octubre, de Council Directive 93/83/EEC of incorporación al Derecho español de la 27 September 1993 on the Directiva 93/83/CEE, del Consejo, de 27 de coordination of certain rules septiembre, sobre coordinación de concerning copyright and rights determinadas disposiciones relativas a los related to copyright applicable to derechos de autor y derechos afines a los satellite broadcasting and cable derechos de autor en el ámbito de la retransmission radiodifusión vía satélite y de la distribución por cable Ley 5/1998, de 6 de marzo, de incorporación Directive 96/9/EC of the al Derecho español de la Directiva 96/9/CE, European Parliament and of the del Parlamento Europeo y del Consejo, de 11 Council of 11 March 1996 on the de marzo, sobre la protección jurídica de legal protection of databases bases de datos

Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights

The first four of these laws are included in the consolidated version of the Intellectual Property Law.

International copyright relations Spain is a signatory to the following international copyright treaties, which have direct force under Spanish law.    

Berne Convention for the Protection of Literary and Artistic Works 5 December 1887; Paris Act 10 October 1974 (for the substantive clauses arts. 1–21) Universal Copyright Convention: Geneva Act 16 September 1955; Paris Act 10 July 1974 Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms 24 August 1974 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 1st January 1995

Spain has also signed, but as of September 2006 not yet ratified, the WIPO Copyright Treaty.

Copyright relations with the United States Works by Spanish authors became eligible for U.S. copyright by a Presidential Proclamation of 10 July 1895 under the authority of The Chase Act of 1891, later

section 9(b) of the Copyright Act of 1909. All Spanish works which had not entered the public domain in Spain through expiry of their copyright protection, that is all works first published in Spain by authors who are living or who died on or after 1st January 1926, were automatically accorded U.S. copyrights (if they were not already protected in the U.S.) on 1st January 1996 by the Uruguay Round Agreements Act of 1994: these U.S. copyrights run for 95 years from the date of publication (regardless of the Spanish copyright term) for works first published before 1st January 1978 and for collective or anonymous works, and for the life of the author plus seventy years (identical to the Spanish copyright term) for other works.

Chapter- 9

Copyright Law of the United Kingdom

The copyright law of the United Kingdom governs the legally enforceable rights to creative and artistic works under the laws of the United Kingdom (UK). Modern copyright law originated in the UK with the 1709 Statute of Anne, the first copyright statute. Its full title was "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". The UK is a common law country and copyright law is subject to statutory law as well as case law. The Copyright, Designs and Patents Act 1988 (as amended) is the basis of current copyright law in the UK (i.e. Northern Ireland, Wales, England, and Scotland). It came into force on 1 August 1989, save for some minor provisions that were brought into force in 1990 and 1991. A number of amendments have been made to implement various EU directives. Essentially, the 1988 Act and amendment establishes that copyright in most works lasts until 70 years after the death of the creator if known, otherwise 70 years after the work was created or published (fifty years for computer-generated works).

History Stationers' Company

The Stationers' Company Mark

First page of John Milton's 1644 edition of Areopagitica, in it he argued forcefully against the Licensing Order of 1643, noting that such censorship had never been a part of classical Greek and Roman society. The origins of copyright law in most European countries lies in efforts by governments to regulate and control the output of printers. The technology of printing was invented and widely established in the 15th and 16th centuries. Before the printing press a writing, once created, could only be physically multiplied by the highly laborious and error-prone process of manual copying out. Printing allowed for multiple exact copies of a work, leading to a more rapid and widespread circulation of ideas and information. Works of dissent and criticism could also circulate rapidly and as a consequence, governments established controls over printers across Europe, requiring them to have official licences to trade and produce books. The licenses typically gave printers the exclusive right to print particular works for a fixed period of years, and enabled the printer to prevent others from printing the same work during that period. The licenses could only grant rights to print in the territory of the state that had granted them, but they did usually prohibit the import of foreign printing. In England the printers, known as stationers, formed a collective organisation, the Stationers' Company. In the 16th century the Stationers' Company was given the power to require all lawfully printed books to be entered into its register. Only members of the Stationers' Company could enter books into the register. This meant that the Stationers' Company achieved a dominant position over publishing in 17th century England (no equivalent arrangement formed in Scotland and Ireland). But the monopoly, granted to the Stationers' Company through the Licensing Act 1662, came to an end when parliament decided to not renew the Act after it lapsed in May 1695.

The Statute of Anne, the Copyright Act 1709

The Statute of Anne came into force in 1710 In 1707 the parliaments of England and Scotland were united as a result of the AngloScottish Union. The new parliament was able to change the laws in both countries and an important early piece of legislation was the Copyright Act of 1709, also known as the Statute of Anne, after Queen Anne. The act came into force in 1710 and was the first copyright statute. Its full title was "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".

Draft bill The draft bill of the Statute of Anne underwent considerable changes during its passage through the House of Parliament, with the House of Lords making the most significant

amendments. The original draft bill was only six clauses long and drew heavily on the Licensing Act 1662. It forbade the printing, reprinting or import of any book which “any author shall hereafter compose or write” or which any bookseller or printer purchased or acquired from the author, subject to financial penalties. The first draft bill also required registration with the Stationers' Company prior to publication, as well as requiring a deposit of the book for the King’s Library and that of Oxford and Cambridge. The draft bill furthermore proposed a system of controlling the cost of books published at “too high or unreasonable” a price. According to the draft bill anyone was free to import and sell any “classics” originally printed “beyond the seas”. The draft bill’s preamble and first section placed the emphasis on the “copy of a book” as a clearly recognisable form of property, equal in status to any other tangible or estate. The original draft bill did not propose any limits to the term of protection of such property. The draft bill’s title and preamble were subject to significant change, both were reduced in length and confined to the “encouragement of learned men to compose and write useful books". In exchange for the continuous production of books, the draft bill was amended to offer the “sole right and liberty of printing”, ie the right to copy or reproduce. The idea of perpetual rights was dropped and a limited copyright term introduced.

Substance of the act The long title of the Statute of Anne, as passed by parliament, was "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". The coming into force of the Statute of Anne in April 1710 marked a historic moment in the development of copyright law. As the world's first copyright statute it granted publishers of a book legal protection of 14 years with the commencement of the statute. It also granted 21 years of protection for any book already in print. The 14 year copyright term could be renewed for another 14 if the author was still alive after the first term expired. The statute determined that the "copy" was the "sole liberty of printing and reprinting" a book and this liberty could be infringed by any person who printed, reprinted or imported the book without consent. Those infringing copyright had to pay a fine of one penny for every sheet of the book, one moiety of which went to the author, the other to the Crown. In today’s terms this was a considerable fine. In addition the book in question was to be destroyed. Leaving in place the existing system of registration, the statute specified that action against infringement could only be brought if the title had been entered in the register at the Stationers' Company before publication. The formal requirements of registration enabled users to locate the owners of copyrighted works. The requirement for copies of published books to be deposited in university libraries ensured that there was public access to copyrighted works.

Authors rights The statute was the first to recognise the legal right of authorship, but it did not provide a coherent understanding of authorship or authors' rights. While the statute established the

author as legal owner, and so providing the basis for the development of authors' copyright, it also provided a 21 year copyright term to books already in print. At the end of the 21 years granted by the statute the concept of literary property was still a booksellers' rather than an author' concern, as most authors continued to sell their works outright to booksellers. Given that the statute primarily intended to encourage public learning and to regulate the book trade, any benefits for authors in the statute were incidental. Throughout the 18th century, at the encouragement of the booksellers, rather than the authors, an understanding emerged that copyright originated in author's rights to the product of his labour. Thus it was argued that the primary purpose of copyright was to protect authors' rights, not the policy goal of encouraging public learning.

Justification for copyright Compared with the 15 years following the non-renewal of the Stationers' Company's monopoly, when there was no legal protection available to the book trade, the statute provided London booksellers with relative security. Booksellers had lobbied parliament as the statute was drafted and the statute did provide a property in books to bring stability to the book trade. But it also introduced measures designed to ensure that no monopolistic abuse could be established in the book trade. The Statute of Anne had a much broader social focus and remit than the monopoly granted to the Stationers' Company. The statute was concerned with the reading public, the continued production of useful literature, and the advancement and spread of education. The central plank of the statute is a social quid pro quo; to encourage "learned men to compose and write useful books" the statute guaranteed the finite right to print and reprint those works. It established a pragmatic bargain involving authors, the booksellers and the public. The Statute of Anne ended the old system whereby only literature that met the censorship standards administers by the booksellers could appear in print. The statute furthermore created a public domain for literature, as previously all literature belonged to the booksellers forever.

Battle of the booksellers When the statutory copyright term provided for by the Statute of Anne began to expire in 1731 London booksellers fought to defend their dominant position by seeking injunctions from the Court of Chancery for works by authors that fell outside the statute's protection. At the same time the London booksellers lobbied parliament to extend the copyright term provided by the Statute of Anne. Eventually, in a case known as Midwinter v. Hamilton (1743-1748), the London booksellers turned to common law and started a 30 year period known as the battle of the booksellers. The battle of the booksellers saw London booksellers locking horns with the newly emerging Scottish book trade over the right to reprint works falling outside the protection of the Statute of Anne. The Scottish booksellers argued that no common law copyright existed in an author's work. The London booksellers argued that the Statute of Anne only supplemented and supported a pre-existing common law copyright. The dispute was argued out in a number of notable cases, including Millar v. Kincaid (1749-1751) and Tonson v. Collins (1761-1762). An

anonymous pamphleteer protested against the lobbying of the booksellers for an extension of the copyright term set by the Statute of Anne in 1735, writing: "I see no reason for granting a further term now, which will not hold as well for granting it again and again, as often as the old ones expire... it will in effect be establishing a perpetual monopoly, a thing deservedly odious in the eye of the law; it will be a great cramp to trade, a discouragement to learning, no benefit to authors, but a general tax on the public; and all this only to increase the private gain of booksellers." The question of whether copyright term is limited or perpetual is of central importance to the understanding of copyright. The Statute of Anne was primarily legislation to regulate the book trade, intended to separate rights in copies from censorship. While its rational was not to protect authors, the statute thought to encourage public learning and providing a structure to the book trade that would limit the Stationers' Company's economic monopoly.

Donaldson v Beckett When Donaldson v Beckett reached the House of Lords in 1774 only one Lord, Lord Lyttelton, spoke in favour of common law copyright. Lord Camden was most strident in his rejection of the common law copyright, warning the Lords that should they vote in favour of common law copyright, effectively a perpetual copyright, "all our learning will be locked up in the hands of the Tonsons and the Lintots of the age". Moreover he warned that booksellers would then set upon books whatever price they pleased "till the public became as much their slaves, as their own hackney compilers are". He declared that "Knowledge and science are not things to be bound in such cobweb chains." In its ruling the House of Lords established that copyright was a "creature of statute", and that the rights and responsibilities in copyright were determined by legislation. There is however still disagreement over whether the House of Lords affirmed the existence of common law copyright before it was superseded by the Statute of Anne. The Lords had traditionally been hostile to the booksellers' monopoly and were aware of how the doctrine of common law copyright, promoted by the booksellers, was used to support their case for a perpetual copyright. The Lords clearly voted against perpetual copyright, and eventually an understanding was established whereby authors had a pre-existing common law copyright over their work, but that with the Statute of Anne parliament had limited these natural rights in order to strike a more appropriate balance between the interests of the author and the wider social good. According to Patterson and Livingston there remains confusion about the nature of copyright ever since. Copyright has come to be viewed as a natural law right of the author as well as the statutory grant of a limited monopoly. One theory holds that copyright's origin occurs at the creation of a work, the other that it origin exists only through the copyright statute. Donaldson v Beckett had a fundamental influence on the development of copyright law during the subsequent centuries. The case highlighted the conflict between common law and statutory law. In Jedderys v Boosey, Pollock CB stated that: "Copyright is altogether

an artificial right, not naturally an unnecessarily arising out of the social rules that ought to prevail amongst mankind, but a creature of municipal laws of each country, to be enjoyed for such time under such regulations as laws of each state may direct."

19th Century extension of copyright In the 200 years following the Statute of Anne UK copyright law was developed through piecemeal legislation, which gradually increased the types of work protected by copyright. Technologic developments provided a continuous impetus to the extension of copyright during the 19th Century. Developments in printing allowed for an increasing number of works to be printed easily and cost effectively. In parallel creative works acquired a growing commercial value, with copyright becoming an asset that was worth protecting. The Copyright Act 1814 gave the author the sole right to print a work for 28 years from the first day of publication, and if the author was still alive when the term expired, the right of publication could be extended for the rest if the author's life. The duration of copyright was increased again with the Copyright Act 1842 to the life of the author plus 7 years, or 42 years from the first date of publication, whichever was longer. Posthumously published works were provided with a 42 year copyright term. Registration at the Stationers Hall was no longer compulsory, though it was still a precondition for bringing any action on the grounds of copyright infringement. The performance of dramatic work was classed as restricted under the Copyright Act 1833, also known as Bulmer Lyttons Act. The act established the exclusive right of public performance for 28 years, which could be extended to the life of the author. The Copyright Act 1842 established a similar protection for the performance of music works, and the copyright term provided was extended to the level of protection offered to literary works. The type of works protected was extended considerably, but the different statutes had not created a unified system. In 1875 a Royal Commission was formed to address the problem of disjointed copyright law. It published its report in 1878, finding that: "The law is wholly destitute in any sort of arrangement, incomplete, often obscure, and even when it is intelligible upon long study, it is in many parts so ill-expressed that noone who does not give such study to it can expect to understand it."

Berne Convention In 1886 the first international treaty of copyright law was established, the Berne Convention for the Protection of Literary and Artistic Works. As a multilateral agreement the Berne Convention established reciprocal copyright protection in member states so long as the author is connected with a member state or the works was first published in a member state. The UK signed the Berne Convention and passed the International Copyright Act 1886 for Great Britain in order to fulfil the obligations to foreign authors

that arose upon the UK ratifying the Berne Convention on September 1887. The Berne Convention was first revised in 1908 and a Committee was appointed to Parliament on necessary changes to UK law as a result of the provision. The Committee recommended for the existing Copyright Act to be revised, leading to the Copyright Act 1911.

The Copyright Act 1911 In the two centuries after the Statute of Anne of 1709, which afforded copyright protection to books, other works were afforded copyright protection either through case law, as in the case of music, or through Acts of Parliament, as in the case of engravings, paintings, drawings and photographs. The Copyright Act 1911 attempted to consolidate the various branches of existing acts into a coherent system and abolish common law copyright. The Copyright Act 1911 consolidated previous copyright statutes, such as the Engraving Copyright Act 1734 and the Fine Arts Copyright Act 1862. Apart from minor exceptions the Copyright Act 1911 repeals all previous copyright legislation and established a single statute for all copyrighted work. It abbolished the need for registration at the Stationers' Hall and provided that copyright is established upon the creation of a work. However, the Copyright Act 1911 was brought into force at different times in the Commonwealth, hence entry at Stationers' Hall continued to be required in some Commonwealth countries for years after 1911. The Act also stated that copyright arose in the act of creation, not the act of publishing. The UK implemented the Berne Convention in the 1911 Act, which abolished the common law copyright in unpublished works and responded to technological developments by conferring copyright on a new type of works not mentioned in the Berne Convention, namely sound recordings. The scope of copyright was further widened and producers of sound recordings were granted the exclusive right to prevent other reproducing their recordings, or playing them in public. The act provided that the copyright in literary, dramatic and music works could be infringed by the making of a film or other mechanical performance incorporating the copyrighted works.

The Copyright Act 1956 The Copyright Act 1956 was passed in order to bring UK copyright law in line with international copyright law and technological developments.

The Copyright, Designs and Patents Act 1988 The latest UK copyright act is the Copyright, Designs and Patents Act 1988, which includes copyright, as well as patents and registered designs.

Criticisms and proposed changes A 2006 survey carried out for the National Consumer Council indicated that over half of British adults infringe copyright law by copying music CDs, with 59% stating a belief

that copying for personal use is legal. In 2006 The Institute for Public Policy Research called for a "public right to copy". In December 2006 Gowers Review of Intellectual Property was published, and the government began a public consultation period on proposals to legalise personal copying. In January 2008 the government proposed changes to copyright law that would legalise format shifting for personal use under some limited circumstances. British Copyright law has been criticised as needlessly strict and out of date by consumer advocacy groups. In a 2009 study Consumers International found it the least consumerfriendly from all 16 countries whose laws they examined, due to the aforementioned illegality of copying purely for personal benefit.

Orphan works An orphan work is a work which is under copyright protection but it is difficult or impossible to contact the copyright owner. The original creator may be unknown, or where the creator is known it is unknown who represents them. In 2008 the Libraries and Archives Copyright Alliance provided the following example of orphan works in the UK: A common example... in libraries as well as archives... is documentary photographs. The vast majority of documentary photographs have no identification of the author or the press agency or something of that sort; you simply have a photograph of a city street which lots of people want to print but there is no way of identifying the rightsholder. According to the British Academy orphan works posed a considerable problem for academic researchers, particularly in the humanities and social sciences. The British Academy in 2008 stated that it believes that the majority of copyright works has little commercial value after a few years from publication because the material was out of print, or sales were negligible or not significant. It described the orphan works problem as "unsurprising, since if a copyright remains valuable the holder has a strong incentive to make him or herself known, while if the copyright has little value the holder has no real incentive even to respond to enquiries." The Gowers Review of Intellectual Property, published in December 2006 recommended an copyright exceptions based solution which would allow the publication of a work if the author could not be ascertained by reasonable enquiry. A 2007 report by the UK Intellectual Property Office, the 2007 IPO Review, recommended that the UK Copyright Tribunal should be responsible for granting licenses for the use of orphan works.

Chapter- 10

United States Copyright Law

United States copyright law governs the legally enforceable rights of creative and artistic works under the laws of the United States. Copyright law in the United States is part of federal law, and is authorized by the U.S. Constitution. The power to enact copyright law is granted in Article I, Section 8, Clause 8, also known as the Copyright Clause, which states: The Congress shall have Power [. . .] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. This clause forms the basis for U.S. copyright law ("Science", "Authors", "Writings") and patent law ("useful Arts", "Inventors", "Discoveries"), and includes the limited terms (or durations) allowed for copyrights and patents ("limited Times"), as well as the items they may protect ("exclusive Right to their respective Writings and Discoveries"). In the U.S., registrations of claims of copyright, recordation of copyright transfers, and other administrative aspects of copyright are the responsibility of the United States Copyright Office, a part of the Library of Congress.

History

The Copyright Act of 1790 in the Columbian Centinel, full title "An act for the encouragement of learning by securing the copies of maps, charts, and books, to the authors and proprietors of such copies, during the times therein mentioned" The U.S. Congress first exercised its power to enact copyright legislation with the Copyright Act of 1790. The Act secured an author the exclusive right to publish and vend "maps, charts and books" for a term of 14 years, with the right of renewal for one additional 14 year term if the author was still alive. The act did not regulate other kinds of writings, such as musical compositions or newspapers and specifically noted that it did not prohibit copying the works of foreign authors. The vast majority of writings were

never registered — between 1790 and 1799, of approximately 13,000 titles published in the United States, only 556 works were registered. Copyright law has been modified many times since to encompass new technologies such as music recording, to extend the duration of protection, and to make other changes. U.S. courts have interpreted this clause of the Constitution to say that the ultimate purpose of copyrights is to encourage the production of creative works for the public benefit, and that therefore the interests of the public are primary over the interests of the author when the two conflict. These rulings have since been formalized into fair use laws and decisions. Certain attempts by copyright owners to restrict uses beyond the rights provided for by copyright law may also subject them to the copyright misuse doctrine, preventing enforcement against infringers. Key laws regulating U.S. copyrights and their key effects include:     

    

Copyright Act of 1790 - established U.S. copyright with term of 14 years with 14year renewal Copyright Act of 1831 - extended the term to 28 years with 14-year renewal Copyright Act of 1909 - extended term to 28 years with 28-year renewal Universal Copyright Convention - ratified by the U.S. in 1954, and again in 1971, this treaty was developed by UNESCO as an alternative to the Berne Convention Copyright Act of 1976 - extended term to either 75 years or life of author plus 50 years; extended federal copyright to unpublished works; preempted state copyright laws; codified much copyright doctrine that had originated in case law Berne Convention Implementation Act of 1988 - established copyrights of U.S. works in Berne Convention countries Copyright Renewal Act of 1992 - removed the requirement for renewal Uruguay Round Agreements Act (URAA) of 1994 - restored U.S. copyright for certain foreign works Sonny Bono Copyright Term Extension Act of 1998 - extended terms to 95/120 years or life plus 70 years Digital Millennium Copyright Act of 1998 - criminalized some cases of copyright infringement

Key international agreements affecting U.S. copyright law include:   

Berne Convention for the Protection of Literary and Artistic Works Universal Copyright Convention Agreement on Trade-Related Aspects of Intellectual Property Rights

The United States became a Berne Convention signatory in 1988, and the treaty entered into force with respect to the U.S. on March 1, 1989. The U.S. is also a party to TRIPS, which itself requires compliance with Berne provisions, and is enforceable under the WTO dispute resolution process. To meet the treaty requirements, protections were extended to architecture (where previously only building plans were protected from copying, not buildings, though currently the law makes exception for reproduction of

buildings in photographs or paintings if they are ordinarily visible from a public place), and certain moral rights of visual artists.

Early US copyright law The British Statute of Anne did not apply to the American colonies, although some scholars have asserted otherwise. The colonies' economy was largely agrarian, hence copyright law was not a priority, resulting in only three private copyright acts being passed in America prior to 1783. Two of the acts were limited to seven years, the other was limited to a term of five years. In 1783 several authors' petitions persuaded the Continental Congress "that nothing is more properly a man's own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius and to promote useful discoveries." But under the Articles of Confederation, the Continental Congress had no authority to issue copyright, instead it passed a resolution encouraging the States to "secure to the authors or publishers of any new book not hitherto printed... the copy right of such books for a certain time not less than fourteen years from the first publication; and to secure to the said authors, if they shall survive the term first mentioned,... the copy right of such books for another term of time no less than fourteen years. Three states had already enacted copyright statutes in 1783 prior to the Continental Congress resolution, and in the subsequent three years all of the remaining states except Delaware passed a copyright statute. Seven of the States followed the Statute of Anne and the Continental Congress' resolution by providing two fourteen year terms. The five remaining States granted copyright for single terms of fourteen, twenty and twenty one years, with no right of renewal. At the Constitutional Convention 1787 both James Madison of Virginia and Charles Pinckney of South Carolina submitted proposals that would allow Congress the power to grant copyright for a limited time. These proposals are the origin of the Copyright Clause in the United States Constitution, which allows the granting of copyright and patents for a limited time to serve a utilitarian function, namely "to promote the progress of science and useful arts". The first federal copyright act, the Copyright Act of 1790 granted copyright for a term of "fourteen years from the time of recording the title thereof", with a right of renewal for another fourteen years if the author survived to the end of the first term. The act covered not only books, but also maps and charts. With exception of the provision on maps and charts the Copyright Act of 1790 is copied almost verbatim from the Statute of Anne. At the time works only received protection under federal statutory copyright if the statutory formalities, such as a proper copyright notice, were satisfied. If this was not the case the work immediately entered into the public domain. In 1834 the Supreme Court ruled in Wheaton v. Peters, a case similar to the British Donaldson v Beckett of 1774, that although the author of an unpublished work had a common law right to control the first publication of that work, the author did not have a common law right to control reproduction following the first publication of the work.

Copyright did not apply to slaves, Native Americans or women. Women had no legal rights to intellectual property; neither did slaves, as both the slave and his work were the property of the farmer who owned them.

Federal law Historically, copyright protection was provided by a dual system under both federal and state laws. Federal law provided what was commonly called "statutory copyright" and the laws of each state would provide what was called "common-law copyright," even though many states have statutes governing copyright as well. Roughly speaking, the old "statutory copyright" protected works that were registered and the old "common-law copyright" protected works that were not. In 1976 Congress abolished most state copyrights through preemption of state copyright law. The federal preemption provision is codified at 17 U.S.C. § 301(a), which states, in relevant parts: On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright ... in works of authorship that ... come within the subject matter of copyright ... are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State. The preemption is complete insofar as works fall within the federal copyright statute. A work that falls generally within the subject matter of copyright (such as, a writing) must either qualify to be protected under federal law, or it cannot be protected at all. State law cannot provide protection for a work that federal law does not protect. It covers enforcement too. A person accused of copyright infringement cannot be prosecuted in state courts. State copyright law is not preempted by nonprotected works. For example, those that have "not been fixed in any tangible medium of expression are not covered." "Examples would include choreography that has never been filmed or notated, an extemporaneous speech, original works of authorship communicated solely through conversations or live broadcasts, a dramatic sketch or musical composition improvised or developed from memory and without being recorded or written down."

Purpose of copyright The purpose of copyright law is "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Current copyright law has expanded coverage to include the idea of stimulating the creation of as many works of art, literature, music, and other works of authorship. The goal is to promote Progress of Science and (as we would say today) engineering and manufacturing as much as possible, per the constitution, as well works of art, literature, music, and other works of authorship, in order to benefit the

public. The United States recognizes no absolute, natural right in an author to prevent others from copying or otherwise exploiting his work. The copyright laws give authors limited property rights in their works, but for the ultimate purpose of benefiting the public by encouraging the creation and dissemination of more works. The author's interest is secondary to that of the public. As is the case with other intellectual property doctrines, copyright law attempts to reach an optimal balance between the potential conflicting public interests of: 1. Encouraging creativity by giving exclusive property rights in creations 2. Giving the public the freest possible access to works of authorship and the ideas they encompass. The balance in copyright is drawn by limiting property rights to the author's particular method of expressing an idea or information. Copyright never gives rights in the idea being expressed, or in facts or other elements of the public domain which an author may incorporate into his work. Others are free to express the same idea as the author did, or use the same facts, as long as they do not copy the author's original way of expressing the ideas or facts. In addition, even those rights granted in the author's expression are limited in duration and are subject to certain exceptions permitting public use under limited circumstances.

Works subject to copyright law The United States copyright law protects "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Copyright law includes the following types of works          

Literary Musical Dramatic Pantomimes and choreographic works Pictorial, graphic, and sculptural works Audiovisual works Sound recordings Derivative works Compilations Architectural works

Idea/expression dichotomy An important limitation on the scope of copyright protection is the idea/expression dichotomy: While copyright law protects the expression of an idea, it does not protect the idea itself.

The distinction between "idea" and "expression" is a fundamental part of U.S. law, but it is not always clear. From the 1976 Copyright Act (17 U.S.C. § 102): In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. A paper describing a political theory, for example, is copyrightable; it may not be reproduced by anyone else without the author's permission. But the theory itself (which is an idea rather than a specific expression) is not copyrightable. Another author is free to describe the same theory in his or her own words without violating copyright law, and in fact need not even give credit to the original author (although failing to do so may be considered plagiarism, an ethical transgression). Courts disagree on how much of the story and characters of a copyrighted novel or film should be considered copyrightable expression.

Compilations and the sweat of the brow doctrine Facts are considered synonymous to "ideas" or "discoveries" under this law and are not copyrightable. By extension, a compilation of facts is also unable to be copyrighted. However, § 103 of the Copyright Act allows for the protection of "compilations," provided there is a "creative" or "original" act involved in such a compilation, such as in the selection (deciding which things to include or exclude), and arrangement (how they are shown and in what order). The protection is limited only to the selection and arrangement, not to the facts themselves, which may be freely copied. The Supreme Court decision in Feist v. Rural further made clear the requirements that a compilation be original in its composition, in denying protection to telephone "white pages". The Feist court rejected what was known as the "sweat of the brow" doctrine, in ruling that no matter how much work was necessary to create a compilation, a nonselective collection of facts ordered in a non-creative way is not subject to copyright protection.

Useful articles If a pictorial, graphic or sculptural work is a "useful article", it is copyrighted only if its aesthetic features are separable from its utilitarian features. A useful article is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. They must be separable from the functional aspect to be copyrighted. There are several different tests available for conceptual separability. The first, the Primary Use test, asks how is the thing primarily used: art or function? The second, the Marketable as Art test, asks can the article be sold as art, whether functional or not. This test does not have much backing, as almost anything can be sold as art. The third test,

Temporal Displacement, asks could an individual conceptualize the article as art without conceptualizing functionality at the same time. Finally, the Denicola test says that copyrightability should ultimately depend on the extent to which the work reflects the artistic expression inhibited by functional consideration. If something came to have a pleasing shape because there were functional considerations, the artistic aspect was constrained by those concerns.

Definition of "copy" Several important rights under United States copyright law exist only for “copies” of works—material objects in which the work is embodied. Section 106(1) prohibits the reproduction only of copies of works, and section 106(3) prohibits the distribution only of copies of works. Thus, as the Ninth Circuit held in the Perfect 10 case, a link (even a deep link or inline link) to an image does not involve reproduction of a copy of the image by the person on whose Web page the link appears. An instruction to a browser to jump to a URL is not a reproduction or distribution of a copy of what is at the referenced URL. Furthermore, a three-dimensional counterpart of a two-dimensional drawing is usually not a “copy” of the drawing, under United States copyright law. Thus, the copyright in a drawing of the approach to the Triboro Bridge is not infringed when the bridge approach is built. On the other hand, however, because the essence of what is protected in a cartoon is captured by a doll depicting the cartoon figure, courts have repeatedly held unauthorized dolls to infringe the copyright in the underlying cartoons.

Works by the federal government 17 U.S.C. § 105 withholds copyright from most publications produced by the United States Government, and its agents or employees while in their employment. All such work is therefore in the public domain in some sense. The specific language is as follows: Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise. The intent of the section is to place in the public domain all work of the United States Government, which is defined in 17 U.S.C. § 101 as work prepared by an officer or employee of the United States Government as part of that person's official duties. In most cases, contractors are not employees. The government may restrict access to works it has produced through other mechanisms. For instance, confidential or secret materials are not protected by copyright, but are restricted by other applicable laws. However, even in case of non-secret materials there are specific prohibitions against automatic access to work otherwise covered under 17 U.S.C. § 105 for commercial purposes.

Federal and state laws are not copyrighted Federal statutes are in the public domain and no copyright attaches to them. The same is true of court decisions. It is not difficult to see the motivations behind this: The citizens are the authors of the law, and therefore its owners, regardless of who actually drafts the provisions, because the law derives its authority from the consent of the public, expressed through the democratic process. (State of Georgia v Harrison Co, 548 F Supp 110, 114 (ND Ga 1982)) Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments. (Compendium II: Copyright Office Practices section 206.01 Paragraph 3.6 at 14 February 2006) In the United States the exclusion of legislation from the scope of copyright laws dates to 1834, when the Supreme Court interpreted the first federal copyright laws and held that "no reporter has or can have any copyright in the written opinions delivered by this Court". In the same case it was argued – and accepted by the Court – that "it would be absurd, for a legislature to claim the copyright; and no one else can do it, for they are the authors, and cause them to be published without copyright … Statutes were never copyrighted." Further, "it is the bounden duty of government to promulgate its statutes in print". "[A]ll countries ... subject to the sovereignty of the laws" hold the promulgation of the laws, from whatever source, "as essential as their existence." "If either statutes or decisions could be made private property, it would be in the power of an individual to shut out the light by which we guide our actions." (Wheaton v. Peters, 33 US (8 Pet) 591, 668 (1834)) That the public interest is the primary determinant is clear from Banks v Manchester (128 US 244, 9 S Ct 36 (1888)). In this the United States Supreme Court denied a copyright to a court reporter in opinions of the Ohio Supreme Court, on the grounds that "There has always been a judicial consensus, from the time of the decision in the case of Wheaton v. Peters, that no copyright could, under the statutes passed by Congress, be secured in the products of the labor done by judicial officers in the discharge of their judicial duties. The whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all, whether it is a declaration of unwritten law, or an interpretation of a constitution or statute." The law, as thus (widely) defined, is in the public domain, and therefore not amenable to copyright. In Howell v Miller, (91 F 129 (1898)) Justice Harlan denied an injunction sought for the compiler of Michigan statutes, holding that "no one can obtain the exclusive right to publish the laws of the state in a book prepared by him." The question of formal ownership of the text of laws and decisions is perhaps secondary to the question of the dissemination of the law.

Exclusive rights There are five basic rights protected by copyright, sometimes called the five "pillars" of copyright. The owner of copyright has the exclusive right to do and to authorize others to do the following:    



To reproduce the work in copies or phonorecords; To prepare derivative works based upon the work; To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending; To publicly perform the work, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, and sound recordings by means of digital audio transmission; To publicly display the work, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work.

A violation of any of the exclusive rights of the copyright holder is said to be a copyright infringement.

First owner of copyright The author of a work is the initial owner of the copyright in it, and may exploit the work himself or transfer some or all the rights conferred by the copyright to others. The author generally is the person who conceives of the copyrightable expression and fixes it or causes it to be fixed in a tangible form. Exceptions and special cases in determining the author are: 

Works for hire. If a work is made "for hire" within the meaning of the Copyright Act, the employer or commissioning party, who paid for the work and took the economic risk of it, is deemed the author for copyright purposes and is the initial owner of the copyright. Any other work done by that writer on his own without compensation and without using company resources usually is owned by the writer (though employers often try to claim ownership of such work). The circumstances under which a work may be found to be a work for hire are: 

Work prepared by an employee within the scope of his employment. In Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), the Supreme Court held that the term "employee" in this context should be interpreted according to common law agency principles. If the person doing the work is an "employee" within the meaning of the common law, and the work was done within the scope of his employment (whether the work is the kind he was employed to prepare; whether the preparation takes place primarily within the employer's time and place specifications; and whether the work was activated, at least in part, by a purpose to serve the employer), then the work is a work for hire and the employer is the

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initial owner of the copyright, rather than the employee who actually conceived and fixed the expression. Specially ordered or commissioned works. Works created by independent contractors (rather than employees) can be deemed works for hire only if two conditions are satisfied. First, the work must fit into one of these categories: a contribution to a collective work, part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation, an instructional text, a test, answer material for a test, or an atlas. Second, the parties must expressly agree in a written, signed instrument that the work will be considered a work made for hire.

Ownership of copyright in a joint work. The authors of a joint work are co-owners of a single copyright in the work. A joint work is "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or independent parts of a unitary whole." Ownership of copyright in a collective work: A collective work is a collection of independent, separately copyrightable works of authorship, such as a newspaper, magazine, or encyclopedia. In the absence of an express assignment of copyright, the author of each individual work in the collection retains copyright in that work. The compiler, or author of the collection, owns copyright in the expression he or she contributed, which is primarily the selection and arrangement of the separate contributions, but may include such things as a preface, advertisements, etc., that the collective author created.

Transfers and licenses Three types of transfers exist for copyrighted works.   

Assignment Exclusive License Non-exclusive License

The first two, assignment and exclusive licenses, require the transfer to be in writing. Nonexclusive licenses need not be in writing and they may be implied by the circumstances. Transfers of copyright always involve one or more of the exclusive rights of copyright. For instance, a license may provide a right to perform a work, but not to reproduce it or to prepare a derivative work (adaptation right). The terms of the license is governed by the applicable contract law, however there is substantial academic debate about to what extent the Copyright Act preempts state contract law principles. An author, after transferring a copyright, can terminate the transfer under certain circumstances. This right to terminate the transfer is absolute and cannot be waived.

Procedures Registration of copyright

Newspaper advert: “United States and Foreign Copyright. Patents and Trade-Marks A Copyright will protect you from Pirates. And make you a fortune. If you have a play, sketch, photo, act, song or book that is worth anything, you should copyright it. Don’t take chances when you can secure our services at small cost. Send for our special offer to inventors before applying for a patent, it will pay you. Handbook on patents sent free. We advise if patentable or not. Free. We incorporate stock companies. Small fee. Consult us. Wormelle & Van Mater, Managers, Columbia Copyright & Patent Co. Inc, Washington, D.C." While copyright in the United States automatically attaches upon the creation of an original work of authorship, registration with the Copyright Office puts a copyright holder in a better position if litigation arises over the copyright. A copyright holder desiring to register his or her copyright should do the following: 1. Obtain and complete appropriate form. 2. Prepare clear rendition of material being submitted for copyright 3. Send both documents to U.S. Copyright Office in Washington, D.C.

Registration of copyright refers to the act of registering the work with the United States Copyright Office, which is an office of the Library of Congress. As the United States has joined the Berne Convention, registration is no longer necessary to provide copyright protection. However, registration is still necessary to obtain statutory damages in case of infringement. Copyright Act § 407 provides that the owner of copyright in a published or unpublished work may, at any time during the copyright, register the work with the Copyright Office. The purpose of the registration provisions is to create as comprehensive a record of U.S. copyright claims as is possible. To register, the registrant must complete an application form and send it, along with the filing fee and copies or phonorecords of the work, to the Copyright Office. The Copyright Office reviews applications for obvious errors or lack of copyrightable subject matter, and then issues a certificate of registration. Registration as a prerequisite to claim of moral rights violation: it's not necessary for any author to register prior to bringing suit for violation of the rights of attribution or integrity in a work of visual art, pursuant to Copyright Act § 106A.

Deposit requirement The United States Copyright Office requires that applicants for registration must deposit with that office copies of the work for which protection is sought. This requirement serves two purposes. First, if an action arises from the infringement of the work, the owner may prove that the material that is infringed is exactly the same material for which the owner has secured a registration. Second, this requirement assists the Library of Congress in building its collection of works. The Copyright Office has authority to make some exceptions to this rule by regulation, and has done so. Failure to comply with the deposit requirement, as modified by Copyright Office regulations, is punishable by fine, but does not result in forfeiture of copyright. Deposits can be made electronically through the eCO Online System.

Subject matter jurisdiction The United States district courts have exclusive subject-matter jurisdiction over copyright cases.

Copyright notices Prior to 1989, use of a copyright notice — consisting of the copyright symbol (©, the letter C inside a circle), the abbreviation "Copr.", or the word "Copyright", followed by the year of the first publication of the work and the name of the copyright holder — was

part of United States statutory requirements. Several years may be noted if the work has gone through substantial revisions. The proper copyright notice for sound recordings of musical or other audio works is a sound recording copyright symbol (℗, the letter P inside a circle), which indicates a sound recording copyright. Similarly, the phrase All rights reserved was once required to assert copyright. In 1989, the U.S. enacted the Berne Convention Implementation Act, amending the 1976 Copyright Act to conform to most of the provisions of the Berne Convention. As a result, the use of copyright notices has become optional to claim copyright, because the Berne Convention makes copyright automatic. However, the lack of notice of copyright using these marks may have consequences in terms of reduced damages in an infringement lawsuit — using notices of this form may reduce the likelihood of a defense of "innocent infringement" being successful.

Duration of copyright Works created in or after 1978 are extended copyright protection for a term defined in 17 U.S.C. § 302. With the passage of the Sonny Bono Copyright Term Extension Act, these works are granted copyright protection for a term ending 70 years after the death of the author. If the work was a work for hire (e.g., those created by a corporation) then copyright persists for 120 years after creation or 95 years after publication, whichever is shorter.

Expansion of U.S. copyright term

The § 302 term above also applies to works created before 1978 that were not yet published or registered prior to 1978, with the exception that such copyrights would not expire before 2003. Prior to 1978, works had to be published or registered to receive copyright protection. Upon the effective date of the 1976 Act (January 1, 1978) this requirement was removed and these works received protection despite having not been published or registered. However, Congress intended to provide an incentive for these authors to publish their unpublished works. To provide that incentive, these works, if published before 2003, will not have their protection expire before 2048. Works published or registered before 1978 currently have a maximum copyright duration of 95 years from the date of publication, if copyright was renewed during the 28th year following publication (such renewal was made automatic by the Copyright Renewal Act of 1992; prior to this the copyright would expire after 28 years if not renewed). The date of death of the author is not a factor in the copyright term of such works. All copyrightable works published in the United States before 1923 are in the public domain; works created before 1978 but not published until recently may be protected until 2047. For works that received their copyright before 1978, a renewal had to be filed in the work's 28th year with the Library of Congress Copyright Office for its term of protection to be extended. The need for renewal was eliminated by the Copyright Renewal Act of 1992, but works that had already entered the public domain by nonrenewal did not regain copyright protection. Therefore, works published before 1964 that were not renewed are in the public domain. With rare exception (such as very old works first published after 2002), no additional copyrights will expire (thus entering the public domain) until at least 2019 due to changes in the applicable laws. Before 1972, sound recordings were not subject to federal copyright, but copying was nonetheless regulated under various state torts and statutes, some of which had no duration limit. The Sound Recording Amendment of 1971 extended federal copyright to recordings fixed on or after February 15, 1972 (the effective date of the act), and declared that recordings fixed before that date would remain subject to state or common law copyright. The Copyright Act of 1976 maintained this until February 15, 2047, which was subsequently extended by the Sonny Bono Copyright Term Extension Act to the same date in 2067. As a result, no sound recording can reliably be considered in the public domain in the United States before that date, even if the recording was in existence before 1923 and even if it originated in another country where it has entered the public domain.

Limitations on copyright and defenses US copyright law includes numerous defenses, exceptions, and limitations. These protect both the boundary with the free expression guarantees of the First Amendment and establish carve-outs to address specific situations. Some of the most important include:

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Subject matter limitations and the "idea/expression dichotomy". Copyright applies only to certain subject matter, codified within 17 USC 102. Works that are not "original works of authorship fixed in any tangible medium of expression" are not subject to copyright. 17 U.S.C. § 102(b) codifies that copyright protection does not extend to ideas, procedures, processes, systems, etc. Facts may not be copyrighted. This doctrine was explored in some detail in the Feist case discussed above. The "fair use" exception is codified at 17 U.S.C. § 107, and states that "the fair use of a copyrighted work ... is not an infringement of copyright." The section lists four factors that must be assessed to determine whether a particular use is fair. The first sale doctrine is codified at 17 U.S.C. § 109, and limits the rights of copyright holders to control the distribution and display of copies of their works. The owner of a particular copy is entitled to "sell or otherwise dispose of the possession of that copy" and to "display the copy publicly ... to viewers present at the place where the copy is located." The "good faith" defense (Section 504(c)(2)) protects educational institutions, libraries, archives, and public broadcasters, by permitting the court to limit statutory damages to only $200 if they reasonably believed their infringement was a fair use under 17 U.S.C. § 107. 17 U.S.C. § 108 and § 110-122 include specific exemptions for types of works and particular entities, such as libraries (§ 108), public broadcasters (§ 110 and § 118), braille (§ 121), software backup copies (§ 117), "cover license" permitting sound recording covers (§ 115), and jukebox compulsory licenses (§ 116). Section 512 ("OCILLA", passed as part of the DMCA in 1998) provides a contingent "safe harbor" for online service providers from secondary liability for their users' copy infringements.

Parodies Although a parody can be considered a derivative work under United States Copyright Law, and thus within the exclusive rights of the copyright owner, it may qualify for the "fair use" exception to the exclusive rights, which is codified at 17 U.S.C. § 107. Parodic works are not automatically fair use of the material parodied, however. The Supreme Court of the United States stated that parody "is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works." That commentary function provides some justification for use of the older work; in contrast, a satire (which is not targeted at the work borrowed from) does not require use of the original work to make its point.

Provisions for the handicapped There is specific statutory provision for reproduction of material for the blind or other persons with disabilities. Specific legislation permits the reproduction of copyright works in Braille, audio, electronic, Web-Braille, or other necessary formats. The program is

administered by the National Library Service for the Blind and Physically Handicapped (NLS).

Infringement Infringement is defined in 17 U.S.C. § 501. Infringement requires   

a protected work that the defendant copied the protected work that the defendant's copying of the protected work was an infringement

If a work is not protectable it cannot be infringed upon. For instance, spoken conversations that are unrecorded ("fixed in a tangible medium of expression") are not protectable. Similarly, if two individuals both create a story that by pure coincidence is nearly identical, but each without knowledge of the other, there is no infringement since there is no copying. Typically this is referred to as the defense of independent creation; however, technically this is not a defense since without copying there is not an infringement to begin with. Even if a defendant copied protected works that act might be permissible under one of the defenses or limitations. Fair use is one such defense. Quoting from a book in a review might be a copying of protected material, however this copying may well be permissible under 17 U.S.C. § 107. The fair use factors are described below.

Government infringement The U.S. government, its agencies and officials, and corporations owned or controlled by it, are subject to suit for copyright infringement. All infringement claims against the U.S. that did not arise in a foreign country must be filed with the United States Court of Federal Claims within three years of the infringing action. Claims filed in the wrong court are dismissed for lack of subject-matter jurisdiction. The government and its agencies are also authorized to settle the infringement claims out of court.

Relief available for infringement A copyright owner whose exclusive rights have been infringed may pursue relief. There is no "copyright police" that enforces copyright without the copyright owner taking action. For example, the FBI investigates cases of criminal infringement (mostly audio and video products), but even then, it does not do so on its own, only on cases where a complaint is received from the copyright holder. The FBI has its own guidelines on which cases to investigate. Ownership of copyright US law requires a copyright holder to establish ownership of a valid copyright and the copying of constituent elements of the work that are original. Assuming the plaintiff proves ownership of a valid copyright, the holder must then establish both actual copying

and improper appropriation of the work. The burden lies with the plaintiff to establish these three elements in what is known as the prima facie case for infringement.Copyright owners are required to actively enforce rights. A plaintiff establishes ownership by authorship (by the plaintiff itself or by one who assigned rights to the plaintiff) of (1) an original work of authorship that is (2) fixed in a tangible medium (e.g. a book or musical recording). Registration is not required for copyright itself, but in most cases is a jurisdictional requirement to bring the suit. Registration is also useful because it gives rise to the presumption of a valid copyright, and eliminates the innocent infringement defense, and (if timely made) it allows the plaintiff to elect statutory damages, and to be eligible for a possible award of attorney fees. Works that are not sufficiently original, or which constitute facts, a method or process cannot enjoy copy protection. U.S. Courts do not recognize the "sweat of the brow" doctrine, which originally allowed protection for those who labored to collect and organize facts. To combat this, business which assemble databases of information have relied on contract law where copyright law offers no protection. For a work to be original, it must possess a "modicum of creativity", which is a "low threshold" although some creativity must exist. Copyright protects the fixed expression of ideas, but not the ideas themselves. (Ideas are protected by patents). Nevertheless, an expression must exist in a fixed tangible medium. A movie script writer who discusses a plot idea which has not yet been written would not be protected if another heard his idea and wrote a screenplay himself. Whether RAM constitutes a "fixed medium" is a contentious issue in copyright litigation because of the transitory nature of RAM. A plaintiff establishes actual copying with direct or indirect evidence. Direct evidence is satisfied either by a defendant's admission to copying or the testimony of witnesses who observed the defendant in the act. More commonly, a plaintiff relies on circumstantial or indirect evidence. A court will infer copying by a showing of a "striking similarity" between the copyrighted work and the alleged copy, along with a showing of both access and use of that access. A plaintiff may establish access by proof of distribution over a large geographical area, or by eyewitness testimony that the defendant owned a copy of the protected work. Access alone is not sufficient to establish infringement. The plaintiff must show a similarity between the two works, and the degree of similarity will affect the probability that illicit copying in fact occurred in the court's eyes. Even then, the plaintiff must show that the copying amounted to improper appropriation. Indeed, the US Supreme Court has held that not all copying constitutes infringement and a showing of misappropriation is necessary. Misappropriation A copyrighted work may contain elements which are not copyrightable, such as facts, ideas, themes, or content in the public domain. A plaintiff alleging misappropriation must

first demonstrate that what the defendant appropriated from the copyrighted work was protectible. Second, a plaintiff must show that the intended audience will recognize substantial similarities between the two works. The intended audience may be the general public, or a specialized field. The degree of similarity necessary for a court to find misappropriation is not easily defined. Indeed, "the test for infringement of a copyright is of necessity vague." Two methods are used to determine if unlawful appropriation has occurred: the subtractive method and the totality method. The subtractive method, also known as the "abstraction/subtraction approach" seeks to analyze what parts of a copyrighted work are protectible and which are not. The unprotected elements are subtracted and the fact finder then determines whether substantial similarities exist in the protectible expression which remains. For instance, if the copyright holder for West Side Story alleged infringement, the elements of that musical borrowed from Romeo and Juliet would be subtracted before comparing it to the allegedly infringing work because Romeo and Juliet exists in the public domain. The totality method, also known as the "total concept and feel" approach takes the work as a whole with all elements included when determining if a substantial similarity exists. The individual elements of the alleged infringing work may by themselves be substantially different from their corresponding part in the copyrighted work, but nevertheless taken together be a clear misappropriation of copyrightable material. Modern courts may sometimes use both methods in its analysis of misappropriation. In other instances, one method may find misappropriation while the other would not, making misappropriation a contentious topic in infringement litigation. Civil remedies Barring investigation by law enforcement, therefore, a copyright holder must file a lawsuit in federal court to pursue his or her remedies. These remedies fall into two general categories: Injunctions and damages. Injunctions: Copyright Act § 502 authorizes courts to grant both preliminary and permanent injunctions against copyright infringement and against violations of the author's rights of attribution and integrity in works of visual art. There are also provisions for impounding allegedly infringing copies, phonorecords, and other materials used to infringe, and for their ultimate destruction upon a final judgment of infringement. Damages and/or profits: Section § 504 of the 1976 Act gives the copyright owner/author a choice of recovering: (1) their actual damages and any additional profits of the defendant; or (2) statutory damages. Equitable relief

Both temporary and permanent injunctions are available to prevent or restrain infringement of a copyright. Where the infringer is the government, however, injunctions are not available and the copyright holder can only seek monetary damages. One form of equitable relief that is available in copyright cases is a seizure order. At any time during the lawsuit, the court may order the impoundment of any and all copies of the infringing products. The seizure order may include materials used to produce such copies, such as master tapes, film negatives, printing plates, etc. Items that are impounded during the course of the lawsuit can, if the plaintiff wins, be ordered destroyed as part of the final decree. Monetary damages

A copyright holder can also seek monetary damages. Injunctions and damages are not mutually exclusive. One can have injunctions and no damages, or damages and no injunctions, or both injunctions and damages. There are two types of damages: actual damages and profits, or statutory damages. United States law permits both equitable (injunction) and monetary damages. The copyright owner may recover the profits he or she would have earned absent the infringement(actual damages) and any profits the infringer might have made as a result of the infringement but that are not already considered in calculating actual damages. In addition, under certain conditions, the infringing goods may be impounded and destroyed, and the copyright owner's costs costs and reasonable attorney's fees may also be part of the remedies awarded by the court. To recover actual damages, the plaintiff or, more often, a suitable expert witness, must prove to the court that, in the absence of the infringement, the copyright owner would have been able to make additional sales, perhaps been able to charge higher prices on all sales of the infringed work, and that this would have resulted in profits given the owner's cost structure. In some cases, the copyright owner may not have commercially exploited the infringed work, but the infringer may have profited from it. In these circumstances, the copyright owner can recover those profits. Alternatively and at the copyright owner's election, if the work's copyright was registered within three months of publication or before the infringement, an infringer can be liable for statutory damages Statutory damages can be awarded by the court within the range of $750 to $30,000, but this can be lowered if the infringement is deemed inadvertent, or increased significantly if the infringement is willful. Statutory damages are available as an alternative to actual damages and profits. This is sometimes preferable if actual damages and profits are either too small, or too difficult to prove, or both. There are, however, situations where statutory damages are not available. 17 U.S.C. § 412 provides:  

Statutory damages are not available if the work is unpublished and the infringement began before the effective date of its registration. Statutory damages are not available if the work is published but the infringement commenced after the first publication and before the effective date of its

registration, unless registration is made within three months after the first publication. Statutory damages are calculated per work infringed. Statutory damages range from a few hundred dollars to hundreds of thousands:  

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Statutory damages range from $750 per work to $150,000 per work In case of “innocent infringement”, the range is $200 to $150,000 per work. "Innocent" is a technical term. In particular, if the work carries a copyright notice, the infringer cannot claim innocence. In case of “willful infringement” (again, “willful” is a technical term), the range is $750 to $300,000 per work.

Damages in copyright cases can be very high. In Lowry’s Reports, Inc. v. Legg Mason Inc., a 2003 lawsuit between a publisher of stock analysis newsletters against a company that buys one copy of the newsletters and makes multiple copies for use in-house, the jury awarded damages - actual damages for some newsletters and statutory damages for other newsletters - totaling $20 million. During the course of the lawsuit, the copyright holder can ask the court for both, in the alternative. However, at the end of the case, they are mutually exclusive: Only one can be awarded and not the other. Attorney’s fees

Cost and attorney fees: Copyright Act § 505 permits courts, in their discretion, to award costs against either party and to award reasonable attorney fees to the prevailing party. The court may (but is not required to) award to the "prevailing party" reasonable attorney’s fees. This applies to both the winning plaintiff (right holder) and the winning defendant (accused infringer). However, attorney’s fees award is not available against the government. Like statutory damages, attorney’s fees are not available if the work infringed is not registered at the time of infringement. Criminal penalties In addition to the civil remedies, the Copyright Act provides for criminal prosecution in some cases of willful copyright infringement. There are also criminal sanctions for fraudulent copyright notice, fraudulent removal of copyright notice, and false representations in applications for copyright registration. The Digital Millennium Copyright Act imposes criminal sanctions for certain acts of circumvention and interference with copyright management information. There are not criminal sanctions for violating the rights of attribution and integrity held by the author of a work of visual art. Criminal penalties for copyright infringement include:

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A fine of not more than $500,000 or imprisonment for not more than five years, or both, for the first offense. A fine of not more than $1 million and imprisonment for not more than 10 years, or both, for repeated offenses.

Nonprofit libraries, archives, education institutions and public broadcasting entities are exempt from criminal prosecution. Felony penalties for first offenses begin at seven copies for audiovisual works, and one hundred copies for sound recordings.

Public domain Works are in the public domain if they are not covered by intellectual property rights, such as copyright, at all, or if the intellectual property rights to the works has expired. At most, copyright terms end 120 years after creation in the United States, but they may end or have already ended sooner in certain situations. Although it is held under Feist v. Rural that Congress does not have the power to re-copyright works that have fallen into the public domain, re-copyrighting has happened: "After World War I and after World War II, there were special amendments to the Copyright Act to permit for a limited time and under certain conditions the recapture of works that might have fallen into the public domain, principally by aliens of countries with which we had been at war." Works published with notice of copyright or registered in unpublished form in the years 1964 through 1977 automatically had their copyrights renewed for a second term. Works published with notice of copyright or registered in unpublished form on or after January 1, 1923, and prior to January 1, 1964, had to be renewed during the 28th year of their first term of copyright to maintain copyright for a full 95-year term. With the exception of maps, music, and movies, the vast majority of works published in the United States before 1964 were never renewed for a second copyright term. Works "prepared by an officer or employee of the U.S. government as part of that person's official duties" are automatically in the public domain by law. Examples include military journalism, federal court opinions (but not necessarily state court opinions), congressional committee reports, and census data. However, works created by a contractor for the government are still subject to copyright. Even public domain documents may have their availability limited by laws limiting the spread of classified information. The claim that "pre-1923 works are in the public domain" is correct only for published works; unpublished works are under federal copyright for at least the life of the author plus 70 years. For a work made for hire, the copyright in a work created before 1978, but not theretofore in the public domain or registered for copyright, subsists from January 1, 1978, and endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first. If the work was created before 1978 but first published 1978–2002, the federal copyright will not expire before 2047.

Until the Berne Convention Implementation Act of 1988, the lack of a proper copyright notice would place an otherwise copyrightable work into the public domain, although for works published between January 1, 1978 and February 28, 1989, this could be prevented by registering the work with the Library of Congress within five years of publication. After March 1, 1989, an author's copyright in a work begins when it is fixed in a tangible form; neither publication nor registration is required, and a lack of a copyright notice does not place the work into the public domain.

Examples In the United States, the images of Alfred Hitchcock's film Rear Window (1954) entered into the public domain in 1974, because the copyright holder failed to file a renewal application with the Copyright Office during the 28th year after the film's release or publication. However in 1993, Republic Pictures utilized the 1990 United States Supreme Court ruling in Stewart v. Abend to enforce its claim of copyright because the film was a derivative work of a short story that was under a separate, existing copyright, to which Republic owned the film adaptation rights, effectively regaining control of the work in its complete form. Charles Chaplin re-edited and scored his 1925 film The Gold Rush for reissue in 1942. Subsequently, the 1925 version fell into the public domain when Chaplin's company failed to renew its copyright in 1953, although the 1942 version is still under US copyright. The distributor of the cult film Night of the Living Dead, after changing the film's title at the last moment before release in 1968, failed to include a proper copyright notice in the new titles, thereby immediately putting the film into the public domain after its release. This provision of US copyright law was revised with the United States Copyright Act of 1976, which allowed such negligence to be remedied within five years of publication.

Orphan works The "orphan works" problem arose in the United States with the enactment of the Copyright Act of 1976, which eliminated the need to register copyrighted works, instead declaring that all "original works of authorship fixed in any tangible medium of expression" fall into copyright status. The elimination of registration also eliminated a central recording location to track and identify copyright-holders. Consequently, potential users of copyrighted works, e.g., filmmakers or biographers, must assume that many works they might use are copyrighted. Where the planned use would not be otherwise permitted by law (for example, by fair use), they must themselves individually investigate the copyright status of each work they plan to use. With no central database of copyrightholders, identifying and contacting copyright-holders can sometimes be difficult; those works that fall into this category may be considered "orphaned".

Chapter- 11

Hong Kong Copyright Law & German Copyright Law

Hong Kong copyright law Copyright law in Hong Kong to a great extent follows the English model. The Basic Law of Hong Kong, its constitutional document, guarantees a high degree of autonomy and continuation of laws previously in force after its reunification with Mainland China. Hong Kong therefore continues to maintain a separate intellectual property regime from Mainland China. Article 139 and 140 of the Basic Law specifically deal with the protection of copyright in Hong Kong. Article 139 The Government of the Hong Kong Special Administrative Region shall, on its own, formulate policies on science and technology and protect by law achievements in scientific and technological research, patents, discoveries and inventions. The Government of the Hong Kong Special Administrative Region shall, on its own, decide on the he scientific and technological standards and specifications applicable in Hong Kong. Article 140 The Government of the Hong Kong Special Administrative Region shall, on its own, formulate policies on culture and protect by law the achievements and the lawful rights and interests of authors in their literary and artistic creation.

Open-Qualification System Apart from general substantive criteria, for Copyright to subsist in a work, the statutory requirements with respect to qualification for copyright protection in s 177 must be met (Copyright Ordinance s 2(3)). Hong Kong has broad copyright protection thanks to its open-qualification system under Copyright Ordinance ss177(1)(a), 177(1)(b) and 178. It means that no requirements of nationality or other status of the author, or of the work's place of first publication need to

be satisfied before a work is eligible for protection. Works transmitted over Internet, radio, televisions are all protection (ss26 and 177(1)(c)). Nonetheless, Copyright Ordinance s 180(1) allows the Chief Executive to deny or limit copyright protection for works originating in non-reciprocating jurisdictions.

The Copyright Ordinance The Copyright Ordinance (Cap 528), which became effective on 27 June 1997, is Hong Kong's first purely local copyright law. However, the Copyright Act 1956 of the United Kingdom will continue to apply to the protection of copyright of works created before 27 June 1997.

Categories of Copyright Works Copyright Ordinance (Cap 528) s 2(i)(a) protects 9 categories of copyrighted works:         

literary works dramatic works musical works artistic works sound recordings films broadcasts cable programmes typographical arrangement of published editions

Creation of Copyright Copyright comes into existence at the same time as the creation: there is no formality of registration in Hong Kong.

Criteria of Claiming Copyright Protection In order to successfully claim for copyright protection, 3 criteria must be satisfied: (1) the subject matter must be a 'work'; (2) the work must fall within 1 of the 9 categories stated in s.2(1) of the Hong Kong Copyright Ordinance; and (3) the work must be original if the subject matter is a literary, dramatic, musical or artistic work.

Duration of Copyright S.17 to 21 of the Copyright Ordinance deal with the duration of copyright works. The author of the work is deemed to be the person who creates the work (with exceptions for commissioned works and employee works). S.17(1) to (5) states that the duration of

copyright of literary, dramatic, musical and artistic works is the life of the author plus 50 years, or 50 years from the end of the year in which the work was first created or made available to the public if the identity of the author is not known. Except for typographical arrangement of published editions, the duration of copyright in other works is also 50 years from certain events specified in the Copyright Ordinance. The duration of copyright in typographical arrangement of published editions is 25 years from the year of first publication, according to S.21 of the Copyright Ordinance.

Moral Rights The Hong Kong Copyright Ordinance Pt II Div IV (ss 89-100) recognizes the following two types of moral rights ("droit d'auteur") in favour of the author, director or commissioner of the work regardless of whether he is the owner of the copyright: (i) Right to be identified as author or director (Copyright Ordinance s 89); and (ii) Right to object to derogatory treatment of work Copyright Ordinance s 92.

Controversies in Criminalising the Copying of Materials Controversial changes criminalising the copying of materials in the course of trade were introduced in 2000: insofar as they affect printed matter, these were quickly suspended following an outcry from educational groups and consumer groups. The suspension, provided in the Copyright (Suspension of Amendments) Ordinance 2001, will expire on 31 July 2004. Hong Kong is currently unique in the common law world for treating copying infringing materials differently between printed and non-printed materials.

Administration of Copyright Laws Copyright laws are administered by the Intellectual Property Department of the Hong Kong Government.

German copyright law German copyright law or Deutsches Urheberrecht is codified in the Gesetz über Urheberrecht und verwandte Schutzrechte (also referred to as Urhebergesetz or Urheberrechtsgesetz and abbreviated UrhG).

Protection requirements

Court decisions have set vastly different standards for the eligibility of works of applied art on the one hand and other types of work on the other, especially fine art. While the barrier is usually very low for fine art and protection is granted even for minimal creativity (dubbed "kleine Münze",literally "small coin" or "small change"), there are extremely high standards for applied art to be reached for it to achieve copyright protection. This is so because Geschmacksmuster (design patents) and Schriftzeichengesetz (typeface patents) are seen as lex specialis for applied art such that the threshold of originality must not be assumed low for them. This has been confirmed by courts several times, especially for logos, but also for earrings.

Copyright transfer The Urhebergesetz is a "droit d'auteur" or "monistic" style copyright law. As such there is a special emphasis on the relation between the work and its actual author. The copyright is perceived as an aspect of the author's general personality right and as a general rule is therefore inalienable. This also means that there is no corporate copyright in Germany and the fundamental rights cannot be transferred except by heritage.

Licenses While exclusive licenses are almost as powerful as copyright transfer, the author always retains some rights to the work, including the right to prevent defacing and to be identified as the author. Employment agreements are frequently construed as granting the employer an exclusive license to any works created by the employee within the scope of his obligations. For computer software, the copyright act expressly provides that all economic usage rights (as opposed to personality rights) belong to the employer. A recent amendment of the Urhebergesetz (sec. 31a, included in 2008) has created the possibility to grant licenses for "unknown uses", i.e. permit use of works in media not known at the time the license is granted. This had not previously been possible, so that even "unrestricted" licenses granted before the mid-1990s did not (and could not) include the right to use the work on the internet, which created considerable practical problems.

EU Directive Germany has implemented the EU Copyright Directive 93/98/EEC. Parts of the Directive were based on German copyright law in the first place, e.g. the duration of copyright term: German copyright law had previously granted protection for 70 years after the death of the author, which was the longest term of all EU member states; before 1965 it was life plus eighty years.

History

According to historian Eckhard Höffner the 1710 introduction of copyright law in England and later in France acted as a barrier to economic progress for over a century, while Germany prospered in the same time frame due to the lack of copyright laws. Höffner argues that copyright laws allowed British publishers to print books in limited quantities for high prices.

Chapter- 12

Irish, Jordanian & Dutch Copyright Law

Irish copyright law Copyright law of the Republic of Ireland is applicable to most typical copyright situations (films, sound recordings books etc.) and includes a provision for "fair dealing", similar to that of United Kingdom copyright law.

History Irish copyright law is subject to EU directive 2001/29/EC - Harmonisation of certain aspects of copyright and related rights in the information society, most of the provisions of which were transposed into Irish law under the Copyright and Related Rights Act 2000. Irish copyright law was brought into further compliance with the EU directive by the amendment act European Communities (Copyright and Related Rights) Regulations 2004. The 2000 Act repeals much earlier Irish copyright law, but not all. Related acts are referenced in section 10 of the 2000 Act, and these may also be accessed online in the Irish Statute Book. Until 93/98/EEC the term of copyright protection on a work was the life of the author and 50 years after death. From the foundation of the State to 1927, when the first Irish copyright law was passed, there were lacunae in Irish copyright law.

Duration

Broadly, Irish copyright applies to books for seventy years from the end of the year of death of the author, editor or creator. The term for films is also seventy years, but the expiry conditions are more complex. Where a work is created in the course of employment, copyright vests, without agreement otherwise, in the employer, but term of copyright is still based on the author's life. Notwithstanding the ownership of the copyright, where the employer is a newspaper or periodical, the author may use the work freely for any purpose other than publication in another newspaper or periodical. Where a work is genuinely anonymous or pseudonymous, copyright expires seventy years from the end of the year of creation.

Recordings, broadcast and cable programmes Sound recordings, and broadcast and cable programmes, are protected for fifty years from first transmission.

Typographical arrangements The arrangement of a publication is protected for fifty years.

Government copyright Any work created by any officer or employee of the Irish Government or State is protected by Government copyright, which is regulated somewhat differently from general Irish copyright law, and which lasts fifty years from the end of the year in which the work is created.

Oireachtas (Parliamentary) copyright Any Bill or Act of the Oireachtas is protected by Oireachtas copyright for fifty years from the end of the year in which is was made available lawfully to the public. Any work made by or under the direction of a House or Houses of the Oireachtas enjoys similar protection, the copyright vesting in the relevant House, or Houses jointly.

DVD / video copyright Despite most DVDs' and video cassettes' copyright warnings in Ireland claiming that performance in schools is prohibited, Irish copyright law has a provision that showing "for the purposes of instruction" (i.e. for educational purposes) does not constitute infringement of the copyright of the work.

General expiry

A work whose copyright term is not calculated from the author's death and which is not lawfully made available to the public within 70 years of creation, loses copyright protection.

Copyright libraries The publisher of any publication in Ireland must deliver within one month of publication copies of the work to the National Library of Ireland, the British Library, and the Libraries of Trinity College Dublin, DCU, UL, and of the four constituent universities of the National University of Ireland; the bodies in question do not need to request such copies. Where such a publication is a serial work, a copy of every issue must be provided. In addition, the libraries of the Universities of Oxford and Cambridge, and the National Libraries of Scotland and Wales, may require copies to be provided to them. All of the named bodies may also require an electronic copy of the work, which must be provided.

Jordanian copyright law The Jordanian Copyright Law and its Amendment No. (22) for the year 1992 is based on the Berne Convention for the Protection of Literary and Artistic Works and does not contain a definition of copyright; however in Article (3) it clearly states that the law offers legal protection to any kind of original work in literature, art and science regardless of the value or purpose of the work.

Copyright registration In Jordan copyright automatically attaches upon the creation of an original work of authorship, however registration / deposit with the National Library of the Jordanian Ministry of Culture puts a copyright holder in a better position if litigation arises over the copyright. A copyright holder desiring to register his/her copyright should: 1. Obtain and complete the appropriate form(s). 2. Prepare clear renditions of material being submitted for copyright. 3. If relevant, obtain any necessary forfeit documents from persons who contributed to the work. 4. Deposit the work at the National Library. Each work is issued a depository number, and no official fees are required.

Copyright duration

Copyright protection begins when a work is actually created and fixed in a tangible form. For the majority of cases the duration of a copyright is for the life of the copyright owner plus fifty years following his/her death. There are two categories of exceptions to the standard duration of life plus fifty years, however. 1. The author of a work only enjoys copyright protection for fifty years from the date the work was created in the following circumstances o the author or right holder is a corporation, or other type of legal entity that grants some of the same rights as those that apply to natural persons o the work is a cinema or television production o the work is published for the first time after the death of the author o the work is published under a pseudonym. In this case, if the work's author reveals his/her identity within the protection period then the copyright duration is extended until 50 years following the author's death. 2. Photographs and applied arts enjoy only a twenty-five year protection period, commencing on the date of their creation. When the protection period expires the work enters into the public domain, making it legal for all to use.

Copyright holder An author or creator is the copyright holder for any work they publish that is attributed to them, whether or not copyright is clearly stated in the work or by any other means. If an employee creates, during employment, a work related to the activities or business of the employer, or by using the material placed under their disposal to arrive at the work, then the copyright shall be that of the employer unless agreed otherwise in writing.

Copyright exceptions Works that have entered into the public domain have no copyright protection. Also some works have what is referred to as a copylife license, meaning that the author has granted everyone permission to freely use and improve upon the work. Also if the exploitation of the work is for educational purposes or for personal use, then in such cases the use of the work will be legal and therefore not qualified as an infringement. Laws, regulations and court judgments, news items and reports do not carry a copyright. The Minister of Culture holds the copyright for works that fall into the category of national heritage and is charged with preventing misuse of such works while at the same time allowing public access to those works.

Rights Associated with Copyright

The rights that attach to copyright can be classified into economic rights and moral rights. Moral rights can not be sold or surrendered and require that the work be attributed to its author. In contrast, economic rights may be assigned by the author as they wish provided the assignment is in writing and unequivocally states the right at issue, its scope, purpose, place and term. Conversely, the law nullified any action taken by the author/copyright holder in their collective future thought product. A copyright holder's exclusive rights grant the holder the freedom to exercise the rights associated with copyright, and require others to obtain the consent of the copyright holder before exercising those rights. Several exclusive rights attach to the copyright holder, including       

the right to publish and produce copies or reproductions of the work and to sell those copies (including electronic copies) the right to make amendments to the work (to improve or change the work) the right to create derivative works (works that adapt the original work) the right to perform or display the work publicly the right to sell or assign these rights to others the right to withdraw the work from circulation the right to challenge any infringement of the work

An infringement on a copyright typically occurs when one or more of the copyright holder’s rights are utilized by others without the authorization of the copyright holder.

Compulsory licensing The Jordanian Minister of Culture has the right to assign a nonexclusive, non-assignable license to Jordanian nationals for either of two purposes: 1. translation and publication of a foreign work to the Arabic language, provided that no such translation was made by the author within three years form the work's initial publication 2. publication of a work for sale at a lower or equal price as similar works offered for sale in Jordan Compulsory licensing is only granted for uses tied to education, and in all cases the author of the original work remains entitled to just compensation.

Copyright protection Authors/copyright holders whose copyrights have been infringed have the right to receive just compensation. When determining such compensation the courts take a number of

elements into account such as the author’s cultural standing, the value of the work as such, the value of the work in the market place and the extent to which the infringing party has profited from the exploitation of the work. In addition the author (or the heirs or legal successors) may request that the courts take measures to:    

halt the infringement confiscate the infringing work, its reproductions, copies or any other material used in the reproduction destroy the work’s reproductions or copies. confiscate the revenues resulting from the copyright infringement

In instances of counterfeiting or the utilization of an author’s exclusive right without authorization, the infringing party may be subject to criminal penalties in the form of imprisonment for a period not less than three months and not more than three years and a fine not less than one thousand Jordanian Dinars and not more that three thousand Jordanian Dinars.

Dutch copyright law Dutch copyright law (called Auteursrecht) grants exclusive rights to the author of a work of literature, science or art. It was originally intended to cover books, but today it applies to many other materials including films, recorded music and visual art. Auteursrecht includes exclusive publishing rights and allows the author to make and sell copies of their work. It also includes the exclusive right to make products derived from the copyrighted work and to publicly display the work (or to grant permission to do so). This is normally recorded in a license contract between someone who has created a copyrighted work and someone who wishes to use that work. Unlike patents, which grant monopolierecht ("monopoly right") on inventions, copyrights only apply to specific creative manifestations of one or more ideas. Copyrights, however, can be bought and sold. Generally, the owner of a copy of a copyrighted product can do with the copy as they please, even without actual ownership of the copyright, provided no copies are made and the product is not modified. Those who acquire modified copies from the copyright holder are also bound by these limitations. There are some limits on what the owner of a copy can do with it. For example, public displays of the creative work are regarded as a form of copying. However, both Dutch and Belgian law allow for citaatrecht (quotation right). This allows the use of portions of

a copyrighted work under a strict set of conditions. Quotation rights are more limited and demarcated than the concept of fair use.

Difference between copyright and 'auteursrechten' Aside from those mentioned above, there are a few legal differences between auteursrechten and copyrights. One noticeable difference is that auteursrechten grants more rights to employees over intellectual and other property created at work. Artists and musicians (not just the company with distribution rights) are also granted the right of resale, which means they are entitled to a royalty each time a copy of the work is published or exhibited. This is known as naburige rechten (literally "neighboring rights"). Auteursrechten, like the French idea of "droits d'auteur", implies not only legal but also moral rights. An author is theoretically given, in addition to the right of ownership, the right to be recognized for the work rather than being criticized for it. Regardless of whether property rights are allocated to the publisher or to the author, the author retains this moral right.

History Historically, governments issued monopolierechten (monopoly-rights) to publishers for the sale of printed work. Great Britain was the first to change this in 1710 with the Statute of Anne, which recognized that authors, not publishers, should be the rightful claimant. It also entailed protection for buyers of printed work in that publishers were no longer allowed to control the use of sold works. Furthermore, it limited exclusive rights to 28 years, after which the work or works would be released to the public domain. The Berne Convention in 1886 first settled the recognition of copyrights between sovereign nations. Under the Berne Convention the right of ownership (eigendomsrecht in Dutch) was automatically granted to every creative work. The author no longer needed to register the work, and was not required to apply for copyright coverage. The Berne Convention is still in effect today. When a work is finished (defined as being written or recorded on a physical medium), the author automatically receives all exclusive rights for that work as well as derivatives, unless and until the author explicitly renounces those rights or the copyright expires. The expiration time differs from country to country, but according to the Berne Convention the minimum time is the lifetime of the author plus 50 years. In the Netherlands the term is 70 years after the death of the author.

National laws and treaties Copyright laws differ between countries. However, there are several international treaties concerning copyright, including:

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The Berne Convention, 1886 The Universal Copyright Convention, 1952 The WIPO Copyright Treaty, 1996 The WIPO Performances and Phonograms Treaty, 1996 The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) (which manages the rights concerning trade in intellectual property)

There are also many other treaties that settle specific parts of copyright. Examples are the European Directive on Copyright Protection of Software (Europese Richtlijn op de Auteursrechtelijke Bescherming van Software) and the European Directive on Neighboring Rights (Europese Richtlijn op de Naburige Rechten).

Misconceptions There are many misconceptions about copyright laws in the Netherlands.   

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Trademarks and patents, not copyrights, govern names and inventions. Although copyright infringement is often compared to theft, when something is stolen the owner no longer has access to the stolen property. Copyright is granted automatically in countries such as the Netherlands that have signed the Berne Convention, meaning as soon as a person creates a work, it is covered by copyright. This means that technically it is not necessary to include copyright indicators such as "copyright © 2006." (However, such indicators are generally included for the sake of clarity.) The word "copyright" has no legal meaning in the Netherlands. Thus the phrase "op dit werk berust copyright" ("this work is covered by copyright") has no legal meaning. The correct phrase is "dit werk is auteursrechtelijk beschermd." The symbol © also has no legal meaning in the Netherlands. Anyone who has made a creative work has a copyright. An underexposed, badly composed picture of the Eiffel Tower on a personal homepage is just as covered as a two meter tall print of a perfect photograph of the same tower by a professional photographer. Copyright is only granted to creative, original works. The creator of the work must have used some creativity or a certain creative decision must have been made. Creativity is a relative term, however, as this is a legal, not aesthetic, standard. Passport photographs are an example of works that are not covered by copyright because they are produced in a standard way. Passport photographs are covered by portretrecht (portrait right). An author can transfer a copyright to someone else using securitisatie, at which point the author receives the current value of future copyright revenues at the time of public presentation. Copyright lasts for a finite time, specifically 70 years after the death of the author. When a copyright expires the work become part of the public domain. An author also can prematurely renounce a copyright. Expiration or termination of the copyright does not automatically mean the work can be freely copied and

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published. For example, portrait rights of the person depicted may still apply to portraits. The author of a work always retains certain rights, even if the copyright is transferred or renounced: the right of the author to be mentioned in, on or near the work is the best example. These rights are called moral rights. These rights also last until 70 years after the death of the author.

Works of the government and laws and court rulings In principle all works communicated to the public by or on behalf of the public authorities (government) are not copyright protected in the Netherlands, unless the copyright has been reserved explicitly, either in a general manner by law, decree or ordinance, or in a specific case by a notice on the work itself or at the communication to the public. In the Netherlands there is no copyright at all on the text of laws and court rulings; these governmental works can be accessed at all times by anyone for any purpose. However, some publishers of legal texts and court rulings do claim copyrights on the form in which they present the texts.

Chapter- 13

Swiss Copyright Law & Indian Copyright Law

Swiss copyright law The copyright law of Switzerland is based on the concept of "author's rights" (Urheberrecht in German, droit d'auteur in French), which is similar to the French copyright law, instead of the concept of Copyright used in common law jurisdictions. The current copyright law of Switzerland is the Swiss Federal Copyright Act of 1992, which dates from October 9, 1992 and has only seen minor revisions since then. In October 2007, a revision was approved in order to implement the WIPO Copyright Treaty in the act, a process started in 2004 with the release by the Swiss Federal Council of a draft project. Copyrights in Swiss law last for 70 years after the death of the author (50 years after the death of the author for computer programs). All "works" in the sense of the law, i.e. "creations of the mind, literary or artistic, that have an individual character" are automatically protected by copyright, irrespective of whether copyright is asserted or not, but provided that it passes the threshold of originality necessary to constitute a protected work. In the case of photographs, the level of protection has been defined in two decisions of the Swiss Federal Supreme Court, the “Bob Marley” case (2003) and the “Meili” case (2004). Certain documents are specifically excluded from benefiting from copyright protection in Switzerland; they are mostly official documents, such as laws or ordinances, or pieces of currency, but patents or patent applications are also excluded from protection. These exceptions are covered in detail below.

History Although first theoretic publications about copyright in Switzerland date back to 1738, the topic remained unregulated by law until the 19th century. The first copyright

legislation in Switzerland was introduced during the times of the French occupation in the Napoleonic era. Geneva, which joined the Swiss Confederacy in 1815, kept the French legislation (a law that dated to 1793) and thus became the first canton to have a copyright law. The first copyright law developed locally in Switzerland was that of the canton of Ticino, which became effective on March 20, 1835. In the canton of Solothurn, a copyright law entered in force in 1847. The first constitution of Switzerland of 1848 left copyright issues to the cantons; only in the revised constitution of 1874 did copyright become an issue of federal legislation. The first federal copyright law in Switzerland was passed by the Swiss parliament on April 23, 1883 and entered in force on January 1, 1884. Two years later, Switzerland was a founding member of the Berne Convention for the Protection of Literary and Artistic Works, which became effective on December 5, 1887. A first revision of the law occurred in 1922. The new law was passed by parliament on December 7, 1922 and entered in force on July 1, 1923. It extended the duration of copyright to 30 years after the (last surviving) author's death (30 years p.m.a). This extension was retroactive (§62 of the 1922 law) and even placed works under copyright again if the copyright granted under the previous law had already expired. Anonymous or pseudonymous works were copyrighted for 30 years since they had been made known to the public, unless the author's identity was acknowledged within that time, in which case 30 years p.m.a. applied again. Works that became known to the public only after the death of the author were copyrighted until the shorter of 50 years after the death of the author or 30 years since they became known. The law covered works of the literature and the arts, including scientific works, maps, and photographs. In 1955, a revision of the 1922 law extended the copyright term from 30 to 50 years. This extension was not retroactive and applied only to works that were still copyrighted in 1955. Already three years later, work on an omnibus revision of the law was begun, but it took more than 30 years to complete this project until in 1992 a new copyright law was passed. It entered in force on July 1, 1993 and extended the copyright term again nonretroactively to 70 years. In 2004, another revision of the Swiss copyright law was begun with the goal of making the law compliant with the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). It was finally approved by both chambers of the Swiss parliament on October 5, 2007. At the same time, the parliament also ratified the Swiss adherence to the WCT and the WPPT. The revised law entered in force on July 1, 2008.

Duration of protection Copyright protection for most protected works expires 70 years after the death of the author under Swiss law, the only exception being computer programs, which are protected for 50 years after the death of the author. The protection also expires if the

death must be assumed. The date of death of the last author is relevant in cases of coauthorship, unless the contributions are separable. The 50 or 70 years of protection are counted starting at the end of the year when the author (or last author) died. Works of unknown authors enter the public domain 70 years after the date of publication (even if the author is identified once the protection has ended). Swiss law also protects performers' rights; the duration of protection is 50 years, starting from the end of the year when the work was performed. As a result of the non-retroactive revision of 1992, when the 50-year copyright term was extended to 70 years, works that were already in the public domain in 1993, when the new law started being applied, do not benefit from renewed protection; therefore, all works made by authors deceased in 1942 or before are in the public domain in Switzerland.

Official documents The following are ineligible for copyright by law:    

laws, decrees, international treaties or other official acts decisions, protocols or reports by public authorities pieces of currency patents or patent applications

It follows that photographs taken from or of these documents are also in the public domain. However:  

a photograph of an official document may constitute a protected work of its own if the photograph is sufficiently original (see below); a photograph taken from an official document may have been copyrighted by someone other than the state and been reproduced with permission in the official document.

Lack of originality

In the Bob Marley decision, a photograph of Bob Marley by a spectator was deemed to have enough character to be protectable by Swiss law.

Likewise in the Melli decision, a photograph of Christoph Meili was deemed not to have an individual character. Only "works" in the sense of the law, i.e. "creations of the mind, literary or artistic, that have an individual character", are protected by copyright. What exactly individuality (also referred to as originality) means for photographs has long been a focus of dispute. In its 2003 Marley decision, the Federal Supreme Court found that the picture at issue (shot by a spectator with a handheld camera) had the required individual character by virtue of the aesthetic appeal of the picture, combined with the orientation of the picture's components and the distribution of light and shadow. It also found that it was a "creation of the mind" by being shot at a specific time during the singer's movement on the stage. Accordingly, the Court held that the picture was protected by copyright. In its 2004 Meili decision, the Court found that the picture at issue, shot by a reporter to document Christoph Meili with the files he had taken from his employer, lacked individual character. It found that the scope of conceptual and technical possibilities was not exploited, and that the photograph did not distinguish itself in any way from what was common use. For lack of an individual expression of thought, therefore, the Court held that the image was not copyrighted. Legal scholarship has attempted to summarise the Federal Supreme Court's jurisprudence on the threshold of originality as follows:

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Images where only the object, but not the photograph, is individual are not protected, as e.g. in art catalogue photographs. Of course, the copyright status of the object depicted, e.g. a painting, must be considered independently. "Merely" illustrative and portrait images also tend not to be protected, at least if the composition, post-processing etc. show no individual expression of thought. Images are not protected per se because their object is famous or they attract great attention (e.g. the Zapruder pictures of the Kennedy assassination). On the other hand, an image can be a "snapshot" and still be protected as an individual work. The impression is given that the mere aesthetic appeal of a photograph may contribute to its originality.

Indian copyright law Indian copyright law is governed by the Indian Copyright Act, 1957. Copyright Law in the country was governed by the Copyright Act of 1914,which was essentially the extension of the British Copyright Act, 1911 to India,and borrowed extensively from the new Copyright Act of the United Kingdom of 1956.Now Indian Copyright is governed by the Indian Copyright Act,1957 . The Indian Copyright Act today is compliant with most international conventions and treaties in the field of copyrights.India is a member of the Berne Convention of 1886 (as modified at Paris in 1971), the Universal Copyright Convention of 1951 and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement of 1995. Though India is not a member of the Rome Convention of 1961, WIPO Copyrights Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT),the Copyright Act is compliant with it.

Copyright Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. There could be slight variations in the composition of the rights depending on the work.

Indian work "Indian work" means a literary, dramatic or musical work,

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The author of which is a citizen of India; or Which is first published in India; or The author of which, in the case of an unpublished work is, at the time of the making of the work, a citizen of India.

Descriptions of work 

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Artistic work - An artistic work means o A painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality; o A work of architecture; and o Any other work of artistic craftsmanship. Musical work o "Musical work" means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music. A musical work need not be written down to enjoy copyright protection. Sound recording o "Sound recording" means a recording of sounds from which sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced. A phonogram and a CDROM are sound recordings. Cinematograph film o "Cinematograph film" means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and "cinematograph" shall be construed as including any work produced by any process analogous to cinematography including video films. Government work - "Government work" means a work which is made or published by or under the direction or control of o The government or any department of the government o Any legislature in India, and o Any court, tribunal or other judicial authority in India.

An author     

In the case of a literary or dramatic work the author, i.e., the person who creates the work In the case of a musical work, the composer. In the case of a cinematograph film, the producer. In the case of a sound recording, the producer. In the case of a photograph, the photographer.

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In the case of a computer generated work, the person who causes the work to be created.

Duration of copyright    

Literary dramatic, sixty years from the beginning of the musical and calendar year next following the year in artistic works (other than which the author dies. a photograph)

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Anonymous and pseudonymous works Posthumous work Photographs Cinematograph films sixty years from the beginning of the Sound records calendar year next following the year in Government work which the work is first published. Public undertakings work International organisations work

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Rights of Broadcasting Organisation and of Performers 

Broadcast reproduction right

The broadcast reproduction right shall subsist until twenty-five years from the beginning of thecalendar year next following the year in which the broadcast is made. 

Performer’s right

The performer's right shall subsist until fifty years from the beginning of the calendar year next following the year in which the performance is made.

Fair dealing A fair dealing with a literary, dramatic, musical or artistic work (not being a computerprogramme) for the purposes of   

private use, including research; Criticism or review, whether of that work or of any other work. as part of the activities of a club or similar organisation which is not established or conducted for profit.

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An amateur club or society, if the performance is given to a non-paying audience, or for the benefit of a religious institution; Reporting current events. o In a newspaper, magazine or similar periodical, or o by broadcast or in a cinematograph film or by means of photographs. The reproduction in a newspaper, magazine or other periodical of o An article on current economic,political, social or religious topics. o A report of a lecture delivered in public. The making of not more than three copies of a book .

Government works Although Government works are copyrighted,The reproduction or publication of following works not copy protected.   

Act of a Legislature. Report of a committee, commission, council, board or other like body appointed by the Government. Judgement or order of a court, tribunal or other judicial authority

Chapter- 14

Copyright Law of New Zealand & South Africa

Copyright law of New Zealand The Copyright law of New Zealand is covered by the Copyright Act 1994 and subsequent amendments. It is administered by Intellectual Property Policy Unit of the Ministry of Economic Development (MED). New Zealand is party to several international copyright agreements, including the TRIPS Agreement 1994, the Berne Convention 1928 and the Universal Copyright Convention 1952.

Scope of copyright Copyright law grants the owner of the copyright exclusive rights to certain restricted acts, which include the following.     

copying the work publishing, issuing or selling copies to the public performing, playing or showing the work in public broadcasting the work making any work derived or adapted from the copyright work.

Copyright works Copyright automatically applies (no registration required) to original works in the following categories. 

Literary works (novels, poems, song lyrics, computer programmes, compilations of data)

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Dramatic works (scripts for films or plays) Artistic works (paintings, plans, maps, photographs, sculptures, models, buildings) Musical works (scores and arrangements) Sound recordings (of musical, literary or dramatic works) Films Broadcasts (radio, TV, cable) Typographical arrangement of published editions (this exists independent of copyright in the published work, if any).

Copyright does not apply to certain government works, such as Acts of Parliament, Regulations, Parliamentary debates, Court judgements and reports of Select Committees, Royal Commissions, Commissions of Inquiry, etc.

Copyright term The copyright term is largely consistent with other countries, and varies with category of the work.      

Literary, dramatic, musical and artistic works; 50 years from the death of the author Artistic works industrially applied; 16 years from when the work is applied Artistic craftsmanship industrially applied; 25 years from when the work is applied Sound recordings and films; 50 years from when it is available to the public Broadcasts and cable; 50 years from broadcast Typographical arrangements; 25 years from first publishing.

Exclusions and Fair Dealing The Act allows for certain permitted acts to be exempted from copyright restrictions.      

Fair dealing; for purpose of criticism, review, news reporting, research, private study. certain educational purposes time shifting of TV programmes for viewing at a later time format shifting of music back up of computer programmes making copies in Braille.

Moral rights The copyright act also provides moral rights for the author. These attach to the author, and are not transferred by contract as economic rights can be. Moral rights give the author the right;

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to be identified as the author (right of attribution) to object to derogatory treatment of the work (right of integrity) to not have work falsely attributed to them.

New Technologies Amendments In 2001, the MED initiated a major review of copyright law, in light of new technologies, such as media in digital form and communications via the internet. Law changes were enacted in 2008, most notably the Copyright (New Technologies) Amendment Act . These changes were influenced by media corporations and aligned organisations (such as RIANZ, APRA, Artists Alliance, NZSA, AIPA, NZIPP, etc.) but opposed by New Zealand Artists, technology specialists, ISPs, businesses, media commentators, librarians and members of the public. The nature of the law changes has attracted attention internationally. The New Zealand Prime Minister, John Key, stated that the stronger copyright laws, including the controversial section 92a, were required for New Zealand to be able to negotiate a free trade agreement with America. In February 2010, a bill repealing s92a was introduced to parliament, replacing it with a three notice regime. The bill also provides for the Copyright Tribunal to hear complaints and award penalties of up to $15,000.

South African copyright law South African copyright law governs copyright, the right to control the use and distribution of artistic and creative works, in the Republic of South Africa. It is embodied in the Copyright Act, 1978 and its various amendment acts, and administered by the Companies and Intellectual Property Registration Office in the Department of Trade and Industry. South Africa is a party to the Berne Convention and the TRIPS Agreement. It has signed, but not ratified, the WIPO Copyright Treaty.

History Initially, after the creation of the Union of South Africa in 1910, the copyright laws of the four formerly-independent provinces continued unchanged. In 1916 Parliament enacted the Patents, Designs, Trade Marks and Copyright Act, 1916, which repealed the various provincial laws and incorporated the British Imperial Copyright Act 1911 into South

African law. In 1928, along with the other British dominions, South Africa became a party to the Berne Convention in its own right. South Africa having become a republic in 1961, Parliament enacted its own copyright law, separate from that of the United Kingdom, in the Copyright Act, 1965. Nonetheless, this act was largely based on the British Copyright Act 1956. In 1978 it was replaced by the Copyright Act, 1978, which (as amended) remains in force. The 1978 Act draws both from British law and from the text of the Berne Convention. It has been amended several times, most notably in 1992 to make computer programs a distinct class of protected work, and in 1997 to bring it into line with the TRIPS agreement.

Eligibility for copyright The Copyright Act defines nine classes of work that are eligible by copyright:         

literary works - including novels, poems, plays, film scripts, textbooks, articles, encyclopaedias, reports, speeches, etc. musical works - excluding words sung with the music artistic works - including paintings, sculptures, drawings, photographs, architectural works, works of craftsmanship, etc. cinematograph films - in any medium, including film, tape or digital data sound recordings - in any medium, but excluding film soundtracks broadcasts - signals transmitted by radio waves and intended for public reception programme-carrying signals - signals representing audio and/or video and transmitted via satellite published editions - particular typographical arrangements of literary or musical works computer programs - instructions, in any medium, that direct the operation of a computer

For a work to be eligible for copyright, it must be original, and it must have been written down or recorded in some way (except for broadcasts and programme-carrying signals, which must have been broadcast or transmitted, respectively). "Originality" requires the work to have been produced by the exercise of skill and effort by the author(s). As in all Berne Convention countries, copyright is automatic and does not require registration. The Copyright Act automatically protects works created by South Africans or in South Africa. It also permits the Minister of Trade and Industry to extend the same protection to works created in, or by residents of, other countries; such protection has been extended to all Berne Convention countries.

Copyright term For literary, musical and artistic works, except for photographs, the copyright term in South Africa is fifty years from the end of the year of the author's death, or fifty years

from publication if it is first published after the author's death. For photographs, films and computer programs, the term is fifty years from first publication, or fifty years from creation if not published within fifty years. For sound recordings, broadcasts, programme-carrying signals and published editions, it is fifty years from first publication or transmission. Anonymous works are protected for the shorter of fifty years from first publication and fifty years from the year when it is reasonable to presume the author is dead. For works with multiple authors, the fifty years from death are calculated from the death of the last author to die. Government works are protected for fifty years from first publication.