Digital rights: have you checked the license? (Spread Humanism Online Project, Sept.2021)

Avv. Simone Aliprandi, Ph.D. – Progetto Copyleft-Italia.it / Array
www.copyleft-italia.it – www.aliprandi.org – www.array.eu
____________________________________
Humanists International & UAAR Giovani
(“Spread Humanism Online” Project) – 23 Sept. 2021
Digital rights: have you checked the license?
(webinar 1.5)
Teacher: Simone Aliprandi (Ph.D., Attorney at Law)

Avv. Simone Aliprandi, Ph.D. – Copyright-Italia.it / Array Law Firm
www.copyright-italia.it – www.aliprandi.org – www.array.eu
●
born in 1979
●
2003: university degree in Law (J.D.)
●
2007: professional qualification as
an Italian attorney at law
●
2008: (second) university degree in
Public administration studies (M.A.)
●
2012: doctorate in Information Society (Ph.D.)
●
2018: advanced specialization course in
Data protecion and data governance
●
2021: advanced specialization course in
Coding for lawyers and legal tech
●
since 2019: contract professor for ISIA Firenze
●
author of some books (essays and manuals)
“Spread Humanism Online” Project, 23 Sept. 2021 – Digital rights: have you checked the license? (webinar 1.5)
about me

PART 1
INTRODUCTION:
HISTORY AND SCENARIO

terminological premise
Copyright vs Author’s right vs Intellectual Property
Copyright (= the right of making copies) → it appears in 1709 in
the Statute of Anne, first legislative act on this matter
Author’s right (French: Droit d'auteur) → it appears in 1791 in
a legislative act of the French Republic after the Revolution
Intellectual property → a category of property related to
intangible creations of the human intellect;
it includes copyrights, patents, trademarks, and trade secrets.

international regulatory sources
• Berne Convention for the Protection of Literary and Artistic
Works→ first version: 1886; last amendment: 1979 [see text]
• Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPS) → signed in 1994; effective since 1995 [see text]
• WIPO Copyright Treaty (WCT)
→ signed in 1996; effective since 2002 [see text]
• EU Directive 2001 n. 29 (harmonisation of certain aspects of
copyright and related rights in the information society) → [see text]
• EU Directive 2019 n. 790 (copyright and related rights in the
Digital Single Market)→ [see text]

intellectual property as a fundamental right
Universal Declaration of Human Rights, Art. 27
Everyone has the right freely to participate in the cultural
Life of the community, to enjoy the arts and to share in
scientific advancement and its benefits.
Everyone has the right to the protection of the moral and
material interests resulting from any scientific, literary or
artistic production of which he is the author.

COPYRIGHT: TWO DIFFERENT POINTS OF VIEW
point of view of
the rights owner
point of view of
the user
©

the original spirit of intellectual property
Statute of Queen Anne: first Copyright Act in UK (A.D. 1709)
The complete title of the statute 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”.

USA Constitution, Section 8 (A.D. 1787)
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.

TRIPs, Art. 7 (Objectives)
The protection and enforcement of intellectual property rights
should contribute to the promotion of technological innovation
and to the transfer and dissemination of technology, to the
mutual advantage of producers and users of technological
knowledge and in a manner conducive to social and economic
welfare, and to a balance of rights and obligations.

PART 2
FUNDAMENTALS
OF COPYRIGHT

what is copyright about?
Berne Convention, Art. 1 (Establishment of a Union)
The countries to which this Convention applies constitute
a Union for the protection of the rights of authors
in their literary and artistic works.

(more precisely)
Berne Convention, Art. 2 (Protected works)
1. The expression “literary and artistic works” shall include every
production in the literary, scientific and artistic domain, whatever may
be the mode or form of its expression, such as:
●
books, pamphlets and other writings;
●
lectures, addresses, sermons and other works of the same nature;
●
dramatic or dramatico-musical works;
●
choreographic works and entertainments in dumb show;
●
musical compositions with or without words;
...

(more precisely)
[continues] Berne Convention, Art. 2 (Protected works)
●
cinematographic works to which are assimilated works expressed
by a process analogous to cinematography;
●
works of drawing, painting, architecture, sculpture, engraving and
lithography;
●
photographic works to which are assimilated works expressed by a
process analogous to photography;
●
works of applied art;
●
illustrations, maps, plans, sketches and three-dimensional works
relative to geography, topography, architecture or science.

(more precisely)
TRIPs established also that:
●
Computer programs must be regarded as "literary works" under
copyright law and receive the same terms of protection;
●
Compilations of data or other material, whether in machine
readable or other form, which by reason of the selection or
arrangement of their contents constitute intellectual creations
shall be protected as such.

(derivative works)
Berne Convention, Art. 2, Par. 3
Translations, adaptations, arrangements of music
and other alterations of a literary or artistic work
shall be protected as original works without prejudice
to the copyright in the original work.

(collections)
Berne Convention, Art. 2, Par. 5
Collections of literary or artistic works such as
encyclopaedias and anthologies which, by reason of
the selection and arrangement of their contents,
constitute intellectual creations shall be protected as such,
without prejudice to the copyright in each of the works
forming part of such collections.

what is copyright NOT about?
TRIPs – Art. 9, n. 2
Copyright protection shall extend to expressions
and not to ideas, procedures, methods of operation
or mathematical concepts as such.

how can an author get copyright
on his own creations?
[try to answer]

how can an author get copyright
on his own creations?
He doesn't have to do anything in particular;
the right is acquired "automatically" with the
creation of the work (provided that the work
has a minimum level of novelty and
originality).

Normally, it is sufficient to have
a proof of temporal anteriority.
(e.g. putting a time stamp into the file)
how can an author prove
the authorship of his work
(and therefore the ownership of the rights)??

copyright or rights? A classification of rights
Moral (author’s) rights = inalienable and interminable rights linked
to the personality and reputation of the author
→ e.g. right to be mentioned, right to prohibit modifications
that damage author's reputation (Berne Convention, Art. 6 bis)
[note: they do not exist in some countries, like USA]
Economic (author’s) rights = exclusive rights that allow authors
to obtain remuneration for (and control) the uses of their works
Related rights (or neighbouring rights) = rights on activities that are
related to the creation of intellectual works (fundamental activities
for the dissemination and use of the works carried out by subjects
other than the authors)
→ e.g. music/cinema producers; performers (actors, singers)

COPYRIGHT = CLOSED BY DEFAULT
general rule
copyright
exception
free use
expiry of
the terms
of protection
©
© CC
established
by law
fair use (USA)
or specific
exceptions
determined
by the rights
owner
public domain

PART 3
NO COPYRIGHT AND
PUBLIC DOMAIN

general rule
copyright
exception
free use
expiry of
the terms
of protection
©
© CC
established
by law
fair use (USA)
or specific
exceptions
determined
by the rights
owner
public domain

NO RIGHTS
RESERVED
PUBLIC
DOMAIN
FREE USE
(with no conditions)
= =
©

more precisely… when can a creative work
be considered in the public domain?
case 1 → when the law expressly establishes it
(public domain by law)
case 2 → when all rights on the work expire
(“all rights” means all author’s rights + all neighbouring rights)
case 3 → when the copyright owner declares (publicly / irrevocably)
to renounce the exercise of his rights (e.g.: CC Zero)
NO RIGHTS
RESERVED
PUBLIC
DOMAIN
FREE USE
(with no conditions)
= =

when does copyright expire?
Here we have different rules according to the various applicable
legislation. As a general rule, we can say:
European Union
→ author’s rights lasts for 70 years after the author's death
→ neighbouring rights for music productions last for
70 years after the recording
USA
same as EU but...
→ for an anonymous work, a pseudonymous work, or a work
made for hire, the copyright 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.

PART 4
FAIR USE AND
CASES OF FREE USE

the fair use theory (United States)
US Code, Title 17, Chapter 1, § 107
[…] The fair use of a copyrighted work, including such use by
reproduction in copies or phonorecords or by any other means
specified by that section, for purposes such as criticism,
comment, news reporting, teaching (including multiple copies
for classroom use), scholarship, or research, is not an
infringement of copyright.
[continues]

the fair use theory (United States)
US Code, Title 17, Chapter 1, § 107
In determining whether the use made of a work in any particular case
is a fair use the factors to be considered shall include —
(1)the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
educational purposes;
(2)the nature of the copyrighted work;
(3)the amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and
(4)the effect of the use upon the potential market for or value
of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair
use if such finding is made upon consideration of all the above factors.

Fair dealing cases and copyright exeptions
They are specific cases (expressly indicated by law)
in which a work still protected by copyright can be used
without asking the owner's permission.
We can say, ideally, that they are "free areas" in which
copyright takes a step back in favor of other
more important interests to be protected.

Fair dealing and copyright exeptions:
most important examples
●
News reporting and press review
●
Some cases of reproduction for personal use
(e.g. photocopy of a portion of a book)
●
Some uses for educational purposes
●
Books lending offered by public libraries
●
Some uses by public libraries or public archives
●
Some uses made by disabled persons

PART 5
LICENSING AND
OPEN LICENSING

first of all… what is a license?
Etymology → Latin verb “licére” means “to authorize”.
Definition → A license is an official permission to do, use,
or own something (as well as the document of that
permission). A license is granted by a party (licensor) to
another party (licensee) as an element of an agreement
between those parties. [Wikipedia]
Normally this document defines both the permissions
granted and the conditions imposed to use the work.
so we can say→ license = permissions + conditions

look at the title of this webinar…
“have you checked the license?”
simply means
“are you sure you have permission
(to use the work)?”

proprietary license vs free/open license
photo by Nathan Gibbs | license CC by-nc-sa | source www.flickr.com/photos/nathangibbs/4855872454
forbidden...
forbidden...
forbidden...
forbidden...
permitted...
permitted...
permitted...
permitted...
forbidden...
permitted...

50 shades of... open

Creative Commons: an introductory video
watch the video here: https://creativecommons.org/about/videos/get-creative/

six (+ one) Creative Commons licenses
Attribution
Attribution – Share Alike
Attribution – No Derivatives
Attribution – Non commercial
Attribution – Non commercial – Share Alike
Attribution – Non commercial – No Derivatives
CC Zero
+ FREEDOM
+ RESTRICTIONS

image
by
Foter
–
license:
CC
BY-SA
–
source:
http://foter.com/blog/how-to-attribute-creative-commons-photos/

How to find creative work released
under Creative Commons licenses
You can use the search
engine created on purpose
by Creative Commons →
http://search.creativecommons.org/
Or you can also use Google Advanced Search (with
the appropriate filters) → www.google.com/advanced_search

come on, follow me!
di Simone Aliprandi
• Twitter: @simonealiprandi
https://twitter.com/simonealiprandi
• Facebook page:
www.facebook.com/simone.aliprandi.page/
• LinkedIn:
https://it.linkedin.com/in/aliprandi/

thanks for your attention
these slides are licensed under a
Creative Commons Attribution – Share Alike 4.0

Digital rights: have you checked the license? (Spread Humanism Online Project, Sept.2021)

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