International Copyright Law : International Copyright Law William Fisher
June 23, 2004 © 2004. All rights reserved.
The Sectors of Intellectual Property Law : The Sectors of Intellectual Property Law Patent
The Sectors of Intellectual Property Law : The Sectors of Intellectual Property Law Copyright Patent
The Sectors of Intellectual Property Law : The Sectors of Intellectual Property Law Copyright Patent Trademark &
Unfair Competition
The Sectors of Intellectual Property Law : The Sectors of Intellectual Property Law Copyright Patent Trademark &
Unfair Competition Right of
Publicity
The Sectors of Intellectual Property Law : The Sectors of Intellectual Property Law Copyright Patent Trademark &
Unfair Competition Right of
Publicity Trade
Secrets
Intellectual Property Protection for Industrial Designs : Intellectual Property Protection for Industrial Designs Copyright Patent Trademark &
Unfair Competition Right of
Publicity Trade
Secrets Copyrights
for Useful
Objects
Intellectual Property Protection for Industrial Designs : Intellectual Property Protection for Industrial Designs Copyright Patent Trademark &
Unfair Competition Right of
Publicity Trade
Secrets Design
Patents
Intellectual Property Protection for Industrial Designs : Intellectual Property Protection for Industrial Designs Copyright Patent Trademark &
Unfair Competition Right of
Publicity Trade
Secrets Trade Dress
Intellectual Property Protection for Industrial Designs : Intellectual Property Protection for Industrial Designs Copyright Patent Trademark &
Unfair Competition Right of
Publicity Trade
Secrets Copyrights
for Useful
Objects Design
Patents Trade Dress
The Sectors of Intellectual Property Law : The Sectors of Intellectual Property Law Copyright Patent Trademark &
Unfair Competition Right of
Publicity Trade
Secrets
Basic Copyright Law : Basic Copyright Law Long-term, medium protection for “original forms of expression”
“Original” = independently created + minimal degree of creativity (Feist)
“Original” does not require novelty, aesthetic merit, or truth
Examples of Things Protected by Copyright : Examples of Things Protected by Copyright literary works;
musical works;
dramatic works;
pantomimes and choreographic works;
pictorial, graphic, and sculptural works;
motion pictures and audiovisual works;
sound recordings;
architectural works;
compilations
computer programs
Idea/Expression Distinction : Idea/Expression Distinction Not copyrightable
Ideas
Facts
"truths of a science"
"methods of an art"
"system of bookkeeping"
generic plots
generic characters
research Copyrightable
Expression
detailed plots
distinctive characters
Statutory Entitlements : Statutory Entitlements (1) Reproduction
(2) Derivative Works
(3) First Distribution
(4) Public Performance
(5) Public Display
Proving Infringement : Proving Infringement Copying
Defendant’s admission
Evidence of access + similarities
“striking similarity”
common errors
“Improper Appropriation”
“substantial similarity of expression”
lay audience test
scenes a faire doctrine
Fair Use Doctrine : Fair Use Doctrine Sony v. Universal City Studios (1984) Supreme-Court Case Law
Compensation System for Network Broadcasts of Copyrighted Programs : Compensation System for Network Broadcasts of Copyrighted Programs Studios Hold copyrights
in movies & shows
Compensation System for Network Broadcasts of Copyrighted Programs : Compensation System for Network Broadcasts of Copyrighted Programs Networks Studios broadcast
licenses Hold copyrights
in movies & shows
Compensation System for Network Broadcasts of Copyrighted Programs : Compensation System for Network Broadcasts of Copyrighted Programs Networks Studios Public broadcast
licenses free programming
(with embedded ads)
Compensation System for Network Broadcasts of Copyrighted Programs : Compensation System for Network Broadcasts of Copyrighted Programs Networks Studios Advertisers Public higher prices
for products broadcast
licenses free programming
(with embedded ads)
Compensation System for Network Broadcasts of Copyrighted Programs : Compensation System for Network Broadcasts of Copyrighted Programs Networks Studios Advertisers Public price of ads higher prices
for products broadcast
licenses free programming
(with embedded ads)
Compensation System for Network Broadcasts of Copyrighted Programs : Compensation System for Network Broadcasts of Copyrighted Programs Networks Studios Advertisers Public price of ads higher prices
for products broadcast
licenses license fees free programming
(with embedded ads)
Compensation System for Network Broadcasts of Copyrighted Programs : Compensation System for Network Broadcasts of Copyrighted Programs Networks Studios Advertisers Public Sony price of ads higher prices
for products broadcast
licenses license fees free programming
(with embedded ads) cost of VCRs VCRs
Compensation System for Network Broadcasts of Copyrighted Programs : Compensation System for Network Broadcasts of Copyrighted Programs Networks Studios Advertisers Public Sony price of ads higher prices
for products broadcast
licenses license fees free programming
(with embedded ads) cost of VCRs VCRs
Compensation System for Network Broadcasts of Copyrighted Programs : Compensation System for Network Broadcasts of Copyrighted Programs Networks Studios Advertisers Public Sony price of ads higher prices
for products broadcast
licenses license fees free programming
(with embedded ads) cost of VCRs VCRs
Compensation System for Network Broadcasts of Copyrighted Programs : Compensation System for Network Broadcasts of Copyrighted Programs Networks Studios Advertisers Public Sony price of ads higher prices
for products broadcast
licenses license fees free programming
(with embedded ads) cost of VCRs VCRs
Compensation System for Network Broadcasts of Copyrighted Programs : Compensation System for Network Broadcasts of Copyrighted Programs Networks Studios Advertisers Public Sony price of ads higher prices
for products broadcast
licenses license fees free programming
(with embedded ads) cost of VCRs VCRs
Compensation System for Network Broadcasts of Copyrighted Programs : Compensation System for Network Broadcasts of Copyrighted Programs Networks Studios Advertisers Public Sony price of ads higher prices
for products broadcast
licenses license fees free programming
(with embedded ads) cost of VCRs VCRs ?
Fair Use Doctrine : Fair Use Doctrine Sony v. Universal City Studios (1984)
time shifting is fair use
manufacturing VCRs is not contributory copyright infringement
Harper & Row v. Nation Enterprises (1985)
reproducing juicy excerpts of Ford’s autobiography is not fair use
Campbell v. Acuff-Rose (1994)
rap parody of “Oh, Pretty Woman” is fair use Supreme-Court Case Law
Fair Use Doctrine : Fair Use Doctrine Purpose and Character of the Use
commercial use disfavored
transformative uses preferred
parody strongly preferred
propriety of defendant’s conduct relevant
Nature of the Copyrighted Work
fictional works/factual works
unpublished/published
Intensity of Copyright Protection : Intensity of Copyright Protection
Intensity of Copyright Protection : Intensity of Copyright Protection
Intensity of Copyright Protection : Intensity of Copyright Protection unpublished published
Intensity of Copyright Protection : Intensity of Copyright Protection unpublished published fiction fact
Fair Use Doctrine : Fair Use Doctrine Purpose and Character of the Use
commercial use disfavored
transformative uses preferred
parody strongly preferred
propriety of defendant’s conduct relevant
Nature of the Copyrighted Work
fictional works/factual works
unpublished/published
Amount and importance of the portion used
Impact on Potential Market
rival definitions of “potential market”
only substitution effects are cognizable
Topics : Topics Basic Copyright Law
International Copyright Agreements
Case Studies
Software Protection
Database Protection
Moral Rights
Topics : Topics Basic Copyright Law
International Copyright Agreements
Case Studies
Software Protection
Database Protection
Moral Rights
Major Agreements : Major Agreements (Potentially) Global Agreements:
Berne Convention (1886-1971)
Universal Copyright Convention (1952)
WIPO Copyright Treaty (1996)
TRIPS (1994)
Rome Convention (1961)
Regional Agreements
EC Directives
NAFTA (1992)
Bilateral Agreements
E.g., US/Germany – Atlas Films
Berne Convention -- chronology : Berne Convention -- chronology 1858-1885: Preliminary negotiation
1886: Original Berne Convention (10 countries)
1896: Paris Revision (13)
1908: Berlin Revision (18)
1914: Berne Revision (27)
1928: Rome Revision (36)
1948: Brussels Revision (37)
1967: Stockholm Revision (59)
1971: Paris Revision (63)
Berne Convention -- 1886 : Berne Convention -- 1886 National treatment
Signatories give citizens of other signatories same treatment as their own citizens
Except as to term of protection
Protected Works:
books; pamphlets; drama; music; design; painting; sculpture; maps; 3D works in geography and architecture
No protection for photos; political articles; news
Exclusive rights:
10-year translation right
10 countries
Berne Convention -- 1896 : Berne Convention -- 1896 National treatment
Signatories give citizens of other signatories same treatment as their own citizens
Except as to term of protection
Protected Works:
books; pamphlets; drama; music; design; painting; sculpture; maps; 3D works in geography and architecture
No protection for photos; political articles; news
Exclusive rights:
translation right for term of original work
13 countries
Berne Convention -- 1908 : Berne Convention -- 1908 National treatment
Signatories give citizens of other signatories same treatment as their own citizens
Except as to term of protection
No formalities as condition of protection
Protected Works:
books; pamphlets; drama; music; design; painting; sculpture; maps; 3D works in geography and architecture; photos; choreography; architecture
No protection for political articles; news
Exclusive rights:
translation right for term of original work; recording right for music; cinematograhic right
18 countries
Berne Convention -- 1914 : Berne Convention -- 1914 National treatment
Signatories give citizens of other signatories same treatment as their own citizens
Except as to term of protection
Discrimination against authors from non-member countries permitted
No formalities as condition of protection
Protected Works:
books; pamphlets; drama; music; design; painting; sculpture; maps; 3D works in geography and architecture; photos; choreography; architecture
No protection for political articles; news
Exclusive rights:
translation right for term of original work; recording right for music; cinematograhic right
27 countries
Berne Convention -- 1928 : Berne Convention -- 1928 National treatment
Signatories give citizens of other signatories same treatment as their own citizens
Except as to term of protection
Discrimination against authors from non-member countries permitted
No formalities as condition of protection
Protected Works:
books; pamphlets; drama; music; design; painting; sculpture; maps; 3D works in geography and architecture; photos; choreography; architecture; lectures
No protection for political articles; news
Exclusive rights:
translation right for term of original work; recording right for music; cinematograhic right; moral right; broadcasting right; adaptation right
36 countries
Berne Convention -- 1928 : Berne Convention -- 1928 National treatment
Signatories give citizens of other signatories same treatment as their own citizens
Except as to term of protection
Discrimination against authors from non-member countries permitted
No formalities as condition of protection
Protected Works:
books; pamphlets; drama; music; design; painting; sculpture; maps; 3D works in geography and architecture; photos; choreography; architecture; lectures
No protection for political articles; news
Exclusive rights:
translation right for term of original work; recording right for music; cinematograhic right; moral right; broadcasting right; adaptation right
36 countries
Varieties of “Moral Rights” : Varieties of “Moral Rights” Integrity
Attribution
Divulgation
Withdrawal
Droit de Suite
Article 6 bis of the Berne Convention: : Article 6 bis of the Berne Convention: “Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”
Berne Convention -- 1928 : Berne Convention -- 1928 National treatment
Signatories give citizens of other signatories same treatment as their own citizens
Except as to term of protection
Discrimination against authors from non-member countries permitted
No formalities as condition of protection
Protected Works:
books; pamphlets; drama; music; design; painting; sculpture; maps; 3D works in geography and architecture; photos; choreography; architecture; lectures
No protection for political articles; news
Exclusive rights:
translation right for term of original work; recording right for music; cinematograhic right; moral right; broadcasting right; adaptation right
36 countries
Berne Convention -- 1948 : Berne Convention -- 1948 National treatment
Signatories give citizens of other signatories same treatment as their own citizens
Discrimination against authors from non-member countries permitted
No formalities as condition of protection
Protected Works:
books; pamphlets; drama; music; design; painting; sculpture; maps; 3D works in geography and architecture; photos; choreography; architecture; lectures
No protection for political articles; news
Exclusive rights:
translation right for term of original work; recording right for music; cinematograhic right; moral right; broadcasting right (TV); adaptation right; public performance right; optional droit de suite
Minimum term: LOA + 50 years
37 countries
Berne Convention -- 1967 : Berne Convention -- 1967 National treatment
Signatories give citizens of other signatories same treatment as their own citizens
Discrimination against authors from non-member countries permitted
No formalities as condition of protection
Protected Works:
books; pamphlets; drama; music; design; painting; sculpture; maps; 3D works in geography and architecture; photos; choreography; architecture; lectures
No protection for political articles; news
Exclusive rights:
translation right for term of original work; recording right for music; cinematograhic right; moral right; broadcasting right (TV); adaptation right; public performance right; optional droit de suite
Minimum term: LOA + 50 years
Formation of WIPO
Stalemate on substance 59 countries
Berne Convention -- 1971 : Berne Convention -- 1971 National treatment
Signatories give citizens of other signatories same treatment as their own citizens
Discrimination against authors from non-member countries permitted
No formalities as condition of protection
Protected Works:
books; pamphlets; drama; music; design; painting; sculpture; maps; 3D works in geography and architecture; photos; choreography; architecture; lectures; folklore; legitimation system for films
No protection for political articles; news
Exclusive rights:
translation right for term of original work; recording right for music; cinematograhic right; moral right; broadcasting right (TV); adaptation right; public performance right; optional droit de suite; reproduction right
Minimum term: LOA + 50 years
Formation of WIPO
63 countries
Berne Convention -- 1979 : Berne Convention -- 1979 National treatment
Signatories give citizens of other signatories same treatment as their own citizens
Discrimination against authors from non-member countries permitted
No formalities as condition of protection
Protected Works:
books; pamphlets; drama; music; design; painting; sculpture; maps; 3D works in geography and architecture; photos; choreography; architecture; lectures; folklore; legitimation system for films
No protection for political articles; news
Exclusive rights:
translation right for term of original work; recording right for music; cinematograhic right; moral right; broadcasting right (TV); adaptation right; public performance right; optional droit de suite; reproduction right
Minimum term: LOA + 50 years
Formation of WIPO
63 countries
Berne Convention -- 1979 : Berne Convention -- 1979 National treatment
Signatories give citizens of other signatories same treatment as their own citizens
Discrimination against authors from non-member countries permitted
No formalities as condition of protection
Protected Works:
books; pamphlets; drama; music; design; painting; sculpture; maps; 3D works in geography and architecture; photos; choreography; architecture; lectures; folklore; legitimation system for films
No protection for political articles; news
Exclusive rights:
translation right for term of original work; recording right for music; cinematograhic right; moral right; broadcasting right (TV); adaptation right; public performance right; optional droit de suite; reproduction right
Minimum term: LOA + 50 years
Formation of WIPO
currently 150 countries http://www.wipo.org/treaties/ip/berne/index.html
Universal Copyright Convention (1952; revised 1971) : Universal Copyright Convention (1952; revised 1971) National Treatment principle
Members must provide “adequate and effective protection” for copyright
Formalities permitted as precondition for protection
Minimum term: LOA + 25
Exceptions permitted that do not “that do not conflict with the spirit and provisions of this Convention” 36 countries http://www2.unesco.org/clt-bv/html_eng/01universalcopy.htm
Rome Convention (1961) : Rome Convention (1961) National Treatment principle
Performers’ rights include: broadcast of a performance; fixation of a performance; reproduction of a fixation
Producers of phonograms have exclusive rights to reproduce them
Broadcasters have exclusive rights to fix or reproduce fixations of their broadcasts
Article 12: Performers and producers must be paid “equitable remuneration” when phonograms are broadcast
Minimum term: 20 years 40 countries
Rome Convention (1961) : Rome Convention (1961) National Treatment principle
Performers’ rights include: broadcast of a performance; fixation of a performance; reproduction of a fixation
Producers of phonograms have exclusive rights to reproduce them
Broadcasters have exclusive rights to fix or reproduce fixations of their broadcasts
Article 12: Performers and producers must be paid “equitable remuneration” when phonograms are broadcast
Minimum term: 20 years currently 76 countries http://www.wipo.org/treaties/ip/rome/
Other “Neighboring Rights” Agreements : Other “Neighboring Rights” Agreements Geneva Phonograms Convention (1971)
Brussels Satellite Convention (1974)
WIPO Performances and Phonograms Treaty (1996)
TRIPS -- Copyright : TRIPS -- Copyright Article 9:
Incorporate Berne Convention, Arts. 1-21, except 6bis
Idea/expression distinction
Article 10:
Computer programs protected (both source and object code)
Intellectually creative aspects of databases protected – not data itself currently 146 countries
TRIPS -- Copyright : TRIPS -- Copyright Article 11:
Authors of computer programs and films may authorize or forbid commercial rentals
Article 12:
Minimum terms for works not tied to LOA is 50 years
Article 13:
Exceptions shall be limited to cases that do not conflict with normal exploitation or unreasonably prejudice legitimate interests currently 146 countries
TRIPS -- Copyright : TRIPS -- Copyright Article 14:
Performers control fixation and broadcasts
Producers of phonograms control reproduction and commercial rentals
Broadcasters control fixation, reproduction, rebroadcasts
Performers and producers get minimum term of protection of 50 years
Exceptions permitted to extent of Rome Convention
currently 146 countries
Sore Spots in International Copyright Law : Sore Spots in International Copyright Law Authorship
Creativity
Duration
Useful Objects
Software
Public Performances
Neighboring Rights
Government documents
Fair Use
Moral Rights
Sore Spots in International Copyright Law : Sore Spots in International Copyright Law Authorship
Creativity
Duration
Useful Objects
Software
Public Performances
Neighboring Rights
Government documents
Fair Use
Moral Rights Territoriality Principle
Treatment of
“works for hire”;
Priority rules
Sore Spots in International Copyright Law : Sore Spots in International Copyright Law Authorship
Creativity
Duration
Useful Objects
Software
Public Performances
Neighboring Rights
Government documents
Fair Use
Moral Rights Feist (US)
Tele-Direct (Canada)
Schricker (Germany)
Sore Spots in International Copyright Law : Sore Spots in International Copyright Law Authorship
Creativity
Duration
Useful Objects
Software
Public Performances
Neighboring Rights
Government documents
Fair Use
Moral Rights Territoriality Principle
--Atlas Film (Germany)
UCC, art. IV
Berne, art. 7(8)
EC Term Directive
--LOA + 70
Sonny Bono
--LOA + 70; Eldred
Sore Spots in International Copyright Law : Sore Spots in International Copyright Law Authorship
Creativity
Duration
Useful Objects
Software
Public Performances
Neighboring Rights
Government documents
Fair Use
Moral Rights Utility Models;
Conceptual Separability;
Overlap with creativity
requirements
Sore Spots in International Copyright Law : Sore Spots in International Copyright Law Authorship
Creativity
Duration
Useful Objects
Software
Public Performances
Neighboring Rights
Government documents
Fair Use
Moral Rights Utility Models;
Conceptual Separability;
Overlap with creativity
requirements
Sore Spots in International Copyright Law : Sore Spots in International Copyright Law Authorship
Creativity
Duration
Useful Objects
Software
Public Performances
Neighboring Rights
Government documents
Fair Use
Moral Rights CONTU (US)
EC Software Directive
TRIPS Art. 10
Sore Spots in International Copyright Law : Sore Spots in International Copyright Law Authorship
Creativity
Duration
Useful Objects
Software
Public Performances
Neighboring Rights
Government documents
Fair Use
Moral Rights Berne Arts. 2, 11bis
Rome Art. 12;
1992 EC Directive;
DPRA & DMCA (US)
CARP (US)
Sore Spots in International Copyright Law : Sore Spots in International Copyright Law Authorship
Creativity
Duration
Useful Objects
Software
Public Performances
Neighboring Rights
Government documents
Fair Use
Moral Rights European blank-
tape systems;
Sound recordings
Sore Spots in International Copyright Law : Sore Spots in International Copyright Law Authorship
Creativity
Duration
Useful Objects
Software
Public Performances
Neighboring Rights
Government documents
Fair Use
Moral Rights Germany, Japan,
& US withhold ©
Great Britain: Crown
and Parliamentary
copyright
Sore Spots in International Copyright Law : Sore Spots in International Copyright Law Authorship
Creativity
Duration
Useful Objects
Software
Public Performances
Neighboring Rights
Government documents
Fair Use
Moral Rights Is TRIPs compatible
with US fair use?
Should TRIPs
mandate fair use?
Fair Use? : Fair Use? Berne Convention, Article 10
(1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.
(2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.
Fair Use? : Fair Use? Berne Convention, Article 10
(1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.
(2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.
Fair Use? : Fair Use? Berne Convention, Article 10bis
(1) It shall be a matter for legislation in the countries of the Union to permit the reproduction by the press, the broadcasting or the communication to the public by wire, of articles published in newspapers or periodicals on current economic, political or religious topics, and of broadcast works of the same character, in cases in which the reproduction, broadcasting or such communication thereof is not expressly reserved. Nevertheless, the source must always be clearly indicated; the legal consequences of a breach of this obligation shall be determined by the legislation of the country where protection is claimed.
(2) It shall also be a matter for legislation in the countries of the Union to determine the conditions under which, for the purpose of reporting current events by means of photography, cinematography, broadcasting or communication to the public by wire,literary or artistic works seen or heard in the course of the event may, to the extent justified by the informatory purpose, be reproduced and made available to the public.
Fair Use? : Fair Use? Berne Convention, Article 10bis
(1) It shall be a matter for legislation in the countries of the Union to permit the reproduction by the press, the broadcasting or the communication to the public by wire, of articles published in newspapers or periodicals on current economic, political or religious topics, and of broadcast works of the same character, in cases in which the reproduction, broadcasting or such communication thereof is not expressly reserved. Nevertheless, the source must always be clearly indicated; the legal consequences of a breach of this obligation shall be determined by the legislation of the country where protection is claimed.
(2) It shall also be a matter for legislation in the countries of the Union to determine the conditions under which, for the purpose of reporting current events by means of photography, cinematography, broadcasting or communication to the public by wire,literary or artistic works seen or heard in the course of the event may, to the extent justified by the informatory purpose, be reproduced and made available to the public.
Fair Use? : Fair Use? TRIPS, Article 13
Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.
Sore Spots in International Copyright Law : Sore Spots in International Copyright Law Authorship
Creativity
Duration
Useful Objects
Software
Public Performances
Neighboring Rights
Government documents
Fair Use
Moral Rights Is TRIPs compatible
With US fair use?
Should TRIPs
Mandate fair use?
Sore Spots in International Copyright Law : Sore Spots in International Copyright Law Authorship
Creativity
Duration
Useful Objects
Software
Public Performances
Neighboring Rights
Government documents
Fair Use
Moral Rights Issues include:
Duration;
Alienability;
Preconditions to
integrity right;
Responsibility
of heirs/devisees
Berne 6bis
TRIPS exclusion
Sore Spots in International Copyright Law : Sore Spots in International Copyright Law Authorship
Creativity
Duration
Useful Objects
Software
Public Performances
Neighboring Rights
Government documents
Fair Use
Moral Rights
Sore Spots in International Copyright Law : Sore Spots in International Copyright Law Authorship
Creativity
Duration
Useful Objects
Software
Public Performances
Neighboring Rights
Government documents
Fair Use
Moral Rights drive toward
harmonization
by selecting most
author-protective
option on each
issue
Possible Goals of International Copyright : Possible Goals of International Copyright Political Democracy (Netanel)
Economic Efficiency
Reducing barriers to free trade
Cultural Vitality
Semiotic democracy
Distributive Justice
Distribute justice across countries
Egalitarianism (economic democracy)
Respect artists’ rights
Respect natural rights
Universal Right to education
Dahl’s definition of Political Democracy : Dahl’s definition of Political Democracy Elected officials govern
Frequent and fair elections
Universal adult suffrage
Universal qualification for elective office
Freedom of expression
Available alternative sources of information
Freedom of association
Dahl’s definition of Political Democracy : Dahl’s definition of Political Democracy Elected officials govern
Frequent and fair elections
Universal adult suffrage
Universal qualification for elective office
Freedom of expression
Available alternative sources of information
Freedom of association
Possible Causal Connections : Possible Causal Connections Democracy-enhancing
Democracy-consolidating
Democracy-inducing
Possible Causal Connections : Possible Causal Connections Democracy-enhancing
Democracy-consolidating
Democracy-inducing Impact of Copyright
Foster free flow of information and diversity of expression
Promote independent sector of artists & publishers
Venerate individual innovation and expression
Possible Causal Connections : Possible Causal Connections Democracy-enhancing
Democracy-consolidating
Democracy-inducing Impact of Copyright
Foster free flow of information and diversity of expression
Promote independent sector of artists & publishers
Venerate individual innovation and expression ? ? ?
Embodiments of the “Democratic Entitlement” : Embodiments of the “Democratic Entitlement” ICCPR
ECHR
Charter of OAS
ACHR
African Charter on Human and People’s Rights
Charter of Paris
Moscow Document
International Covenant on Economic, Social and Cultural Rights (ICESCR)
Implications of the Democracy / Free Speech Principles : Implications of the Democracy / Free Speech Principles Compel countries not members of Berne or WTO to adopt copyright systems
Mandatory limits on copyright:
Temporal limits
Idea/fact/expression distinction
Some fair-use exceptions
Exception for transient, incidental reproduction
No prior restraints or punitive damages
Interpret Berne/TRIPS provisions
E.g., Art. 13
Permissible “cultural exceptions”
Legal Protection for Databases : Legal Protection for Databases
What is a Database? : What is a Database? WIPO Draft Treaty Definition: “‘database’ means a collection of independent works, data or other materials arranged in a systematic or methodical way and capable of being individually accessed by electronic or other means”
Examples:
nationwide telephone directory
compilation of financial data on companies
Lexis/Nexis compilation of public-domain materials
Possible Sources of Legal Protection : Possible Sources of Legal Protection Copyright
Misappropriation Doctrine
Contract
Sui Generis Legislation or Treaty
Encryption/Anti-“Black Box” Legislation
Trespass Doctrine
Branding – e.g., Lexis; Westlaw
Possible Sources of Legal Protection : Possible Sources of Legal Protection Copyright
Misappropriation Doctrine
Contract
Sui Generis Legislation or Treaty
Encryption/Anti-“Black Box” Legislation
Trespass Doctrine
Branding – e.g., Lexis; Westlaw
To secure copyright protection for a database, one must show: : To secure copyright protection for a database, one must show: DB is within subject matter coverage
DB is fixed in a tangible medium of expression
DB is sufficiently “original”
Feist problem
TRIPS Article 10(2)
Possible Sources of Legal Protection : Possible Sources of Legal Protection Copyright
Misappropriation Doctrine
Contract
Sui Generis Legislation or Treaty
Encryption/Anti-“Black Box” Legislation
Trespass Doctrine
Branding – e.g., Lexis; Westlaw
INS v. AP (1918) : INS v. AP (1918) Constriction
Cheney Bros. (CA2 1929)
Erie RR (1938)
NFL v. Del. (1977)
NBA (1997)
Alcatel (1999) Expansion
Radio broadcast cases (1932-1955)
Metropolitan Opera (NY 1950)
Pottstown News (PA 1963)
Bond Buyer (NY 1966)
Dow Jones (Ill 1983)
US Sporting Products (Tex 1993)
Lynch, Jones (NY 1998)
Internet “framing” cases?
Facts of NBA (1997) : Facts of NBA (1997) NBA game
Facts of NBA (1997) : Facts of NBA (1997) NBA game Live audience TV audience Radio Audience
Facts of NBA (1997) : Facts of NBA (1997) NBA game Live audience TV audience Radio Audience (STATS reporters) (STATS reporters)
Facts of NBA (1997) : Facts of NBA (1997) NBA game Live audience TV audience Radio Audience (STATS reporters) (STATS reporters) STATS computer
Facts of NBA (1997) : Facts of NBA (1997) NBA game Live audience TV audience Radio Audience (STATS reporters) (STATS reporters) STATS computer Satellite
Facts of NBA (1997) : Facts of NBA (1997) NBA game Live audience TV audience Radio Audience (STATS reporters) (STATS reporters) STATS computer Satellite Motorola pagers
Facts of NBA (1997) : Facts of NBA (1997) NBA game Live audience TV audience Radio Audience (STATS reporters) (STATS reporters) STATS computer Satellite Motorola pagers Users
NBA (CA2 1997) : NBA (CA2 1997) A “hot news” misappropriation claim survives preemption iff:
P generates or creates information at some cost
Information is highly time-sensitive
D “free rides” on P’s efforts
D competes directly with P
such free-riding would threaten the existence or quality of the service P provides
Possible Sources of Legal Protection : Possible Sources of Legal Protection Copyright
Misappropriation Doctrine
Contract
Sui Generis Legislation or Treaty
Encryption/Anti-“Black Box” Legislation
Trespass Doctrine
Branding – e.g., Lexis; Westlaw
Contract : Contract Use Restrictions in Ordinary Contracts or Licenses
Shrink-wrap licenses
ProCD
Excerpt from Martindale-Hubbell Website : Excerpt from Martindale-Hubbell Website "You are hereby granted a nonexclusive, nontransferable, limited license to view, reproduce, print, and distribute insignificant portions of materials retrieved from this Site provided (a) it is used only for informational, non-commercial purposes, (b) you do not remove or obscure the copyright notice or other notices. Except as expressly provided above, no part of this Site, including but not limited to materials retrieved therefrom and the underlying code, may be reproduced, republished, copied, transmitted, or distributed in any form or by any means. In no event shall materials from this Site be stored in any information storage and retrieval system without prior written permission Martindale-Hubbell."
Excerpt from Martindale-Hubbell Website : Excerpt from Martindale-Hubbell Website "You are hereby granted a nonexclusive, nontransferable, limited license to view, reproduce, print, and distribute insignificant portions of materials retrieved from this Site provided (a) it is used only for informational, non-commercial purposes, (b) you do not remove or obscure the copyright notice or other notices. Except as expressly provided above, no part of this Site, including but not limited to materials retrieved therefrom and the underlying code, may be reproduced, republished, copied, transmitted, or distributed in any form or by any means. In no event shall materials from this Site be stored in any information storage and retrieval system without prior written permission Martindale-Hubbell."
Limitations of Contractual Protection : Limitations of Contractual Protection Creator Purchaser contract with
valid restraints
on use and
alienation
Limitations of Contractual Protection : Limitations of Contractual Protection Creator Purchaser contract with
valid restraints
on use and
alienation Rival conveyance
without
restrictions
Limitations of Contractual Protection : Limitations of Contractual Protection Creator Purchaser contract with
valid restraints
on use and
alienation Rival conveyance
without
restrictions Public distribution
--e.g., over
internet
Limitations of Contractual Protection : Limitations of Contractual Protection Creator Purchaser contract with
valid restraints
on use and
alienation Rival conveyance
without
restrictions Public distribution
--e.g., over
internet breach of contract
(damages and injunction)
Limitations of Contractual Protection : Limitations of Contractual Protection Creator Purchaser contract with
valid restraints
on use and
alienation Rival conveyance
without
restrictions Public distribution
--e.g., over
internet claim for tortious interference
with contractual relations?
Limitations of Contractual Protection : Limitations of Contractual Protection Creator Purchaser contract with
valid restraints
on use and
alienation Rival conveyance
without
restrictions Public distribution
--e.g., over
internet No practical remedy
Possible Sources of Legal Protection : Possible Sources of Legal Protection Copyright
Misappropriation Doctrine
Contract
Sui Generis Legislation or Treaty
Encryption/Anti-“Black Box” Legislation
Trespass Doctrine
Branding – e.g., Lexis; Westlaw
Efforts to Secure Sui Generis Protection : Efforts to Secure Sui Generis Protection EC Directive 96/9
Federal legislation in the United States
EEC Directive 96/9 -- Coverage : EEC Directive 96/9 -- Coverage Applies to any “collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means."
Plaintiff must prove: “that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents”
EC Directive 96/9 -- Entitlements : EC Directive 96/9 -- Entitlements No unauthorized extraction or reutilization of any part of the database
EC Directive 96/9 -- Entitlements : EC Directive 96/9 -- Entitlements No unauthorized extraction or reutilization of any part of the database
EC Directive 96/9 -- Entitlements : EC Directive 96/9 -- Entitlements “Extraction” = “the permanent or temporary transfer of all or a substantial part of the contents of a database to another medium by any means or in any form”
“Reutilization” = “any form of making available to the public all or a substantial part of the contents of a database by the distribution of copies, by renting, by on-line or other forms of transmission.”
EC Directive 96/9 -- Entitlements : EC Directive 96/9 -- Entitlements No unauthorized extraction or reutilization of any part of the database
No first-sale doctrine
No compulsory licenses
EC Directive 96/9 -- Privileges : EC Directive 96/9 -- Privileges Copying of “insubstantial” portions for any purpose
unless it conflicts with the “normal exploitation” of the DB
Member states may permit extraction or reutilization for noncommercial teaching or scientific research if credit is given
Member states may permit extraction or reutilization of “substantial” portions for “private purposes”
EC Directive 96/9 -- Duration : EC Directive 96/9 -- Duration 15 years
additional 15 years each time the database is “substantially modified”
Proposals for American Sui-Generis Legislation : Proposals for American Sui-Generis Legislation 104th Congress: Database Investment and Intellectual Property Antipiracy Act of 1996
105th Congress: HR 2652 passed the House; S 2291 died in Senate
106th Congress: Two House bills pending:
HR 354: Collections of Information Antipiracy Act, introduced 1/19/99; approved by House Judiciary Comm.
HR 1858: Comsumer and Investor Access to Information Act of 1999, introduced 5/19/99
H.R. 354 : H.R. 354 Protected databases include: information that has been collected and has been organized for the purpose of bringing discrete items of information together in one place or through one source so that users may access them
specific exception for works of narrative literary prose, but inclusion of collections of such works
H.R. 1858 : H.R. 1858 Protected databases include: a collection of discrete items of information that have been collected and organized in a single place, or in such a way as to be accessible through a single source, through the investment of substantial monetary or other resources, for the purpose of providing access to those discrete items of information by users of the database.
However, a discrete section of a database that contains multiple discrete items of information may also be treated as a database.
H.R. 354 : H.R. 354 Information: facts, data, works of authorship or any other intangible material capable of being gathered and organized in a systematic way
specifically includes works of authorship in definition, but states that it does not provide any greater protection than copyright to works of authorship included in collections, other than a work that is itself a collection
H.R. 1858 : H.R. 1858 Information: facts, data, or any other intangible material capable of being collected or organized in a systematic way, with the exception of works of authorship
H.R. 354 : H.R. 354 Exclusions:
Government databases
real-time market information
computer programs
databases for facilitating digital online communications
H.R. 1858 : H.R. 1858 Exclusions:
Government databases
computer programs
databases to facilitate internet communications
Nonprotectable subject matter: individual ideas, facts, procedures, systems, methods of operation, concepts, principles or discoveries
Preexisting databases
Works of authorship
H.R. 354 : H.R. 354 Prohibitions:
Making available or extracting to make available all or a substantial part of a collection of information, causing material harm to the primary or related market for the product of the other party or a successor in interest
Extraction of a substantial part of a collection of information so as to cause material harm to the primary market
H.R. 354 : H.R. 354 Prohibitions:
Making available or extracting to make available all or a substantial part of a collection of information, causing material harm to the primary or related market for the product of the other party or a successor in interest
Extraction of a substantial part of a collection of information so as to cause material harm to the primary market
H.R. 354 : H.R. 354 Primary market: all markets in which the product is offered or in which the party derives or reasonably expects to derive direct or indirect revenue
Related market: [1] any market in which similar products are offered and in which the parties offering similar products derive or expect to derive direct or indirect revenue or [2] any market in which the protected party has taken demonstrable steps to offer a product within a short period of time and with the reasonable expectation to derive direct or indirect revenue
H.R. 1858 : H.R. 1858 Prohibition:
Distribution of duplicates: sale or distribution to the public of a database that is the duplicate of a database (substantially the same database made by extracting the information from the original) collected and organized by another person, in competition with that other database.
H.R. 1858 : H.R. 1858 Prohibition:
Distribution of duplicates: sale or distribution to the public of a database that is the duplicate of a database (substantially the same database made by extracting the information from the original) collected and organized by another person, in competition with that other database.
H.R. 1858 : H.R. 1858 In competition with: the duplicate database displaces substantial sales or licenses of the original database and significantly threatens the opportunity to recover a return on the investment in the collecting and organizing of the database
H.R. 354 : H.R. 354 Privileges:
Use of Individual items of information or insubstantial portions of the compilation
The lawful owner of a copy of the original collection may sell or transfer that copy
News reporting
Nonprofit educational, scientific or research purposes that do not materially harm the primary market
H.R. 354 : H.R. 354 Privileges:
Reasonable use for illustration, explanation, example, comment, criticism, teaching, research or analysis
commercial or nonprofit purpose
amount extracted appropriate to purpose
good faith
extent of incorporation into an independent work and degree of difference between independent and original works
development for and marketing in the same field as the original
H.R. 1858 : H.R. 1858 Privileges:
News reporting (except time-sensitive material collected by a news reporting entity when use is part of a consistent pattern of activity engaged in for the purpose of direct competition)
Scientific, educational or research purposes, if not a consistent pattern engaged in for the purposes of direct commercial competition
H.R. 354 : H.R. 354 Term: Protection of information ends 15 years after original collection was first offered in commerce, with no extension for later changes to collection; burden of proof is on plaintiff to show that portion of collection to be protected is no more than 15 years old
H.R. 1858 : H.R. 1858 Term: No term of protection specified
Lobbying for H.R. 354 : Lobbying for H.R. 354 Pro
NYSE
Real Estate Agents
AMA
EBay Anti
Chamber of Commerce
Consumers Union
Research Libraries
Charles Schwab
Yahoo
Possible Sources of Legal Protection : Possible Sources of Legal Protection Copyright
Misappropriation Doctrine
Contract
Sui Generis Legislation or Treaty
Encryption/Anti-“Black Box” Legislation
Trespass Doctrine
Branding – e.g., Lexis; Westlaw
Possible Sources of Legal Protection : Possible Sources of Legal Protection Copyright
Misappropriation Doctrine
Contract
Sui Generis Legislation or Treaty
Encryption/Anti-“Black Box” Legislation
Trespass Doctrine
Bidder’s Edge v. Ebay (May 2000)
Branding – e.g., Lexis; Westlaw
Possible Sources of Legal Protection : Possible Sources of Legal Protection Copyright
Misappropriation Doctrine
Contract
Sui Generis Legislation or Treaty
Encryption/Anti-“Black Box” Legislation
Trespass Doctrine
Bidder’s Edge v. Ebay (May 2000)
Branding – e.g., Lexis; Westlaw Wednesday
Possible Sources of Legal Protection : Possible Sources of Legal Protection Copyright
Misappropriation Doctrine
Contract
Sui Generis Legislation or Treaty
Encryption/Anti-“Black Box” Legislation
Trespass Doctrine
Branding – e.g., Lexis; Westlaw