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Copyright
Law, Science & Technology in the Information Society
Second session 8.9.2014
(Basic Module - 1 of 2)	
  
Warm up

What is protected by intellectual property (and why)?
What IPRs exist and what are their differences?
What tool(s) of harmonization are available in the EU?
History & developments
Legal sources
Subject matter
Concept of originality
Copyright harmonisation
Exhaustion + case study
Balance of 




interests
Subject matter
Scope of 




protection
Technology + copyright
Printing press
1450
Invention of printing press by Johannes
Gutenberg (around 1450)

16th century “privileges”: monopoly power for
the English printers’ collective organisation
(Stationers’ Company) - ended in 1694

Printing press
1450
Statute of Ann
1710
1450
 1694
(…) may it please your Majesty that it
may be enacted (…) that the author of
any book or books already composed,
and not printed and published, or that
shall hereafter be composed (…) shall
have the sole liberty of printing and
reprinting such book and books for the
term of fourteen years, to commence
from the day of the first publishing the
same, and no longer (…)
Statute of Ann
Author focused (rewarding creative
rather than mercantile talent)

New time limit on copyright (14 years
+ 14 years when first term expired)
Statute of Ann
World's 1st
copyright
statute
“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”
Copyright US Constitution
1790
1450
 1694
 1710
“To promote the Progress of Science and useful Arts, by
securing for limited Times to Authors the exclusive Right
to their Writings”
“During the nineteenth century anyone was free in the United
States to reprint a foreign publication, and yet American
publishers found it profitable to make arrangements with
English authors. Evidence before the 1876-8 Commission shows
that English authors sometimes received more from the sale of
their books by American publishers, where they had no
copyright, than from their royalties in [England]” where they
did have copyright."
"
Arnold Plant [1934] "The Economic Aspects of Copyright in Books," Economica, 167-195
20th century
1450
 1694
 1710
20th century
1450
 1694
 1710
1960’s
20th century
1450
 1694
 1710
1960’s
 1970’s
20th century
1450
 1694
 1710
1960’s
 1970’s
 1980’s
20th century
1450
 1694
 1710
1960’s
 1970’s
 1980’s
 1999
20th century
1450
 1694
 1710
1960’s
 1970’s
 1980’s
 1999
 2003
20th century
1450
 1694
 1710
1960’s
 1970’s
 1980’s
 1999
 2003
 2014
Legal
* Sources, not sauces.
1886
1450
 1694
 1710
1961
1994
1996
Berne
Convention
Rome
Convention
TRIPS
WIPO Internet
Treaties
* By no means exhaustive
1820’s
Bilateral
treaties
Berne 1886
Coverage: Literary and artistic works
Sets minimum standard of protection

Requires to protect the copyright on works from other
signatory countries in the same way it protects the
copyright of its own nationals.
1st multi-lateral copyright treaty
10 states signed in 1886 (NB: US only “observer”)
Berne Convention
Exclusive rights for authors

•  to make reproductions
•  to perform / recite the work in public
•  to translate the work
•  to make adaptations and arrangements of the work
•  to communicate the work to the public / broadcast

Certain moral rights (attribution and integrity)

Exceptions (reproduction right): the 3 steps test
Berne Convention
Further exceptions only…
Certain
special cases
No conflict
with normal
exploitation
Not un-
reasonably
prejudice
the interest
of the rights
holder
See e.g. Art. 9.2 Berne (reproduction right only) & Art. 13 TRIPS	
  
ifa
Berne Convention
today of little importance; most states have joined
Berne…
Universal Copyright Convention
(1952)
Rome 1961
Closes gaps left by the Berne Convention

“neighbouring rights” (“droits voisins”)
Protection of performers, producers of sound
recordings, broadcasters and publishers…

Rome Convention
TRIPS 1994
* Agreement on Trade-Related Aspects of Intellectual Property Rights	
  
Perceived problem: large-scale copying of books, records & films. 
Berne “inadequate” – no mechanisms to ensure compliance… 

TRIPS governs extent of protection and enforcement of IPRs
(not restricted to copyright). Minimum protection based on the
Berne and Rome conventions.

TRIPS
Copyright specific “Berne plus” features:

•  Confirms that protection extents to expressions – not ideas
(Art. 9.2)
•  Length of protection – 50 years (Art. 12)
•  ALL limitations/exceptions have to comply with 3-step test
(Art. 13)
•  Protection of performers, producers and broadcasters
•  Computer programs protected as “literary works”
•  Protection for databases (if they constitute intellectual
creations)
TRIPS
Berne couldn’t be updated (hello, digital agenda)


WIPO Copyright Treaty (WCT)

WIPO Performances and Phonograms Treaty (WPPT)


WIPO Internet Treaties (1996)
Implemented via Directives in
EU and DMCA in US
EU Copyright Law?
1886
“Community legislation should be restricted to what is needed to
carry out the tasks of the Community. Many issues of copyright
law do not need to be subject of action at Community level”

1988
1450
 1694
 1710
 1961
Green Paper on Copyright and the Challenge of Technology (1988) COM/88/172
1886
Present state of community law “characterised by a lack of
harmonisation or approximation of legislation governing the
protection of literary and artistic property”

1989
1450
 1694
 1710
 1961
CJEU in 1989 (EMI v. Patricia C-341/87, para. 11)
Road to harmonization?
Roads to harmonization?
Roads to harmonization?
(Regulation, Directives, CJEU practice…)
Roads to harmonization?
(Regulation, Directives, CJEU practice…)
What may challenges be?
Roads to harmonization?
(Regulation, Directives, CJEU practice…)
What may challenges be?
(Legal traditions / Different concepts of use / More or less
protection / Means of harmonization / Speed of adaption /
Reception of new technologies…)
Roads to harmonization?
(Regulation, Directives, CJEU practice…)
What may challenges be?
(Legal traditions / Different concepts of use / More or less
protection / Means of harmonization / Speed of adaption /
Reception of new technologies…)

What do you see as the benefits / deficiencies of
these different roads to copyright ?
Term of Protection (2011/77/EU)
InfoSoc (2001/29)
Orphan Works (2012/28/EU) 
Civil enforcement (2004/48/EC)
ProtectionofDatabases(96/9/EC)
SatelliteandCableRetransm.(93/83/EC)
RentalandLendingRights(2006/115/EC)
ProtectionofComputerPrograms(2009/24/EC)
Resaleright(2001/84/EC)
Term of Protection (2011/77/EU)
InfoSoc (2001/29)
Orphan Works (2012/28/EU) 
Civil enforcement (2004/48/EC) 
CollectiveRightsMgmt(2014/26/EU)
But: substantial harmonization by way of several
(mostly vertical) Directives (EU acquis)
+ =
 Bundle of national laws
How would you describe the road taken and why do you
think that has been chosen?
How would you describe the road taken and why do you
think that has been chosen?


Why relatively late?
How would you describe the road taken and why do you
think that has been chosen?


Why relatively late?
(e.g. due to language barriers and differing cultural traditions
cross-border exploitation of copyrighted works was not of major
economic importance… changed with the advent of new subject
matters (computer programs, databases) and new communication
technologies (internet).
What subject matter does cover?"
What subject matter does cover?"

And who is protected?
Cover: Mr. Brainwash
Label: Warner Bros. Records
Art. 2 Berne Convention (Protected Works)
1. “Literary and artistic works”; 2. Possible requirement of fixation; 3.
Derivative works; 4. Official texts; 5. Collections; 6. Obligation to
protect; beneficiaries of protection; 7. Works of applied art and
industrial designs; 8. News

(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, (…)
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.
“Creative works” / cultural products
Artistic, literary, dramatic, musical, photographical and
cinematographic works; maps and technical drawings; computer
programs and databases (see e.g. Art. 2 Berne)
Expanded considerably since earliest concern with printed works…
Only expression of copyrighted work, not idea or facts

Any work?
•  Irrespective of literary or artistic merit 
•  Originality of work? (more later!)
Subject matter
Work (the author)

Communicate +
making available to the public
Distribute


Berne Convention

“Literary and artistic works”
Translations, adaptations and 
arrangements
Collections


Fixation (protection of investment)

Making available to the public
Distribute



Rome Convention

Broadcasting
Phonograms
Databases
Performances



Copyright
 Related Rights
Acquisition of rights? 
Arises automatically (No formalities/registration, see Art. 5(2) Berne)

Time limited rights 
•  Duration: International min. author’s life +50 years (EU 70 years)
•  Related rights mostly shorter (70, 50, 25 years, calculated from the
date of first publication)

Based on principle of territoriality 
(one and the same work protected by different laws in different
countries)
Two particularities
•  Limitations/exceptions: Boundaries on the exclusive rights
(defenses to infringements, limitations to control by copyright holder)
play a much greater role in copyright law than in other IPRs
•  Numerous mass transactions: Collecting societies grant blanket
licenses for the repertoire of the works for which the authors have
transferred their rights to the respective society



* Among many other.	
  
Patent
 20 years
Patent
 20 years
Utility model
 ≈ 10 years
Patent
 20 years
Copyright
 ✝+ 70 years 
Utility model
 ≈ 10 years
Patent
 20 years
Copyright
 ✝+ 70 years 
Design
 Up to 25 years
Utility model
 ≈ 10 years
Patent
 20 years
Copyright
 ✝+ 70 years 
Trademark
Design
 Up to 25 years
Utility model
 ≈ 10 years
...
Droit d‘auteur 
Moral/author rights
“Emanation of personality”

Natural rights of the author,
prevails in most countries
Droit d‘auteur 
 Copyright approach 
Moral/author rights
“Emanation of personality”

Natural rights of the author,
prevails in most countries
Economic/entrepreneurial rights
“Fruit of his labour”

prevails in common law countries
“Copyright and related rights play an important role in this
context as they protect and stimulate the development and
marketing of new products and services and the creation and
exploitation of their creative content.”
Recital 2 of Directive 2001/29/EC
Concept of originality
“Up to now, the notion of originality has not been addressed in
Community legislation in a systematic manner (…) Member States
remain free to determine what level of originality a work must
possess for granting it copyright protection.”
Commission Staff Working Paper SEC(2004),995
Infopaq (C-5/08) [text excerpts]
Author’s own intellectual creation is the yardstick for all works protected by
copyright under the InfoSoc Directive (see para. 37)
Infopaq (C-5/08) [text excerpts]
Author’s own intellectual creation is the yardstick for all works protected by
copyright under the InfoSoc Directive (see para. 37)

Painer (C-145/10) [photographic works]
An intellectual creation is deemed to be author’s own if it reflects his or her
personality (see para. 88) 
The creation is the author’s own when the author in conjunction with the creation
of his/her work has been able to express his/her creative ability by making free
and creative choices. (see para. 92)
Infopaq (C-5/08) [text excerpts]
Author’s own intellectual creation is the yardstick for all works protected by
copyright under the InfoSoc Directive (see para. 37)

Painer (C-145/10) [photographic works]
An intellectual creation is deemed to be author’s own if it reflects his or her
personality (see para. 88) 
The creation is the author’s own when the author in conjunction with the creation
of his/her work has been able to express his/her creative ability by making free
and creative choices. (see para. 92)

Football Dataco (C-604/10) [database]
Mere intellectual effort and skill of creating database not relevant in copyright
assessment. Does it express any originality in the selection or arrangement of
data? (see para. 42)
Infopaq (C-5/08) [text excerpts]
Author’s own intellectual creation is the yardstick for all works protected by
copyright under the InfoSoc Directive (see para. 37)

Painer (C-145/10) [photographic works]
An intellectual creation is deemed to be author’s own if it reflects his or her
personality (see para. 88) 
The creation is the author’s own when the author in conjunction with the creation
of his/her work has been able to express his/her creative ability by making free
and creative choices. (see para. 92)

Football Dataco (C-604/10) [database]
Mere intellectual effort and skill of creating database not relevant in copyright
assessment. Does it express any originality in the selection or arrangement of
data? (see para. 42)

SAS Institute (C-406/10) [computer program/user manual]
Author may only through the choice, sequence and combination of words, (…)
express creativity in an original manner (see para. 67)
CJEU & originality criterion*

(1) The creation is the author‘s own original creation.
(2) The creation reflects his/her personality.
(3) The author, in conjunction with the creation of his/her work,
has been able to express his/her creative ability by making
free and creative choices and thus stamping his/her
‘personal touch’ on the work.
*thusfar
Question of whether a work meets the requirement to be
protected by copyright is not subject to a national test but
an EU concept…?
Case law extending harmonization to what is agreed…
(namely Originality, Work, Ownership, Designs)


“Harmonization by stealth”? 
Lionel Bently
Exhaustion
snippets
Introduction to copyright & legal framework

EU copyright harmonization

Subject matter

Originality

Case study: Exhaustion (and software)
flashback
Even more copyright!
Rights, Limitations and Exceptions (InfoSoc)
Enforcement
Human Rights
Licensing (Online, open data, creative commons…)
Presentation: TPMs (Nintendo v. PC Box C-355/12)
upcoming
Credits / attribution
Push pull by Robert S. Donovan from Flickr (CC BY-NC 2.0)
The Battle of Copyright 2011 by Christopher Dombres from Flickr (CC BY 2.0)
Kyle Canyon Road by N i c o l a from Flickr (CC BY 2.0)
Captain Copyright (captaincopyright.ca)
Sand Castle by Adeel Anwer from Flickr (CC BY-ND 2.0)
Lego by Jake Dunham from The Noun Project
Stop sign by Jaap Knevel from The Noun Project
People by Wilson Joseph from The Noun Project
Search by hunotika from The Noun Project
Gondola by Patricia Ross from The Noun Project
Identification Badge by Michela Tannoia from The Noun Project
Person by Cristina Gallego from The Noun Project
Infinity by im icons from The Noun Project
Biopic by Yi Chen from The Noun Project
Copyright by Stefan Parnarov from The Noun Project
Icon by Acider C Balandrano from The Noun Project
VHS Tape by Loic Poivet from The Noun Project
Europe Flag by Pham Thi Dieu Linh from The Noun Project
Storm Trooper by ARudmann from The Noun Project
Ketchup by Taylor Medlin from The Noun Project
Coat of Arms by Martin Vanco from The Noun Project
Meditation by Pavel Nikandrov from The Noun Project
Globe by Chris Tucker from The Noun Project
Pirate by Anne Caroline Bittencourt Gonçalves from The Noun Project
Stopwatch by Nick Holroyd from The Noun Project
Printing Press by Mike Wirth from The Noun Project
Police by Luis Prado from The Noun Project
CD by José Manuel from The Noun Project
Chair by Jardson A. from The Noun Project
Emperor by Simon Child from The Noun Project
Pharaoh by Simon Child from The Noun Project
Cassette by mathies janssen from The Noun Project
Music–Boxes 2 by sweetmusic_27 on Flickr CC BY-SA 2.0
Wall for sounds by Memphis CVB on Flickr CC-BY
One direction 185 by Fiona McKinlay on Flickr CC-BY-SA 2.0

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Copyright & related rights (1 of 2)

  • 1. Copyright Law, Science & Technology in the Information Society Second session 8.9.2014 (Basic Module - 1 of 2)  
  • 2. Warm up What is protected by intellectual property (and why)? What IPRs exist and what are their differences? What tool(s) of harmonization are available in the EU?
  • 3. History & developments Legal sources Subject matter Concept of originality Copyright harmonisation Exhaustion + case study
  • 4. Balance of interests Subject matter Scope of protection
  • 7. Invention of printing press by Johannes Gutenberg (around 1450) 16th century “privileges”: monopoly power for the English printers’ collective organisation (Stationers’ Company) - ended in 1694 Printing press 1450
  • 9. (…) may it please your Majesty that it may be enacted (…) that the author of any book or books already composed, and not printed and published, or that shall hereafter be composed (…) shall have the sole liberty of printing and reprinting such book and books for the term of fourteen years, to commence from the day of the first publishing the same, and no longer (…) Statute of Ann
  • 10. Author focused (rewarding creative rather than mercantile talent) New time limit on copyright (14 years + 14 years when first term expired) Statute of Ann
  • 11. World's 1st copyright statute “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”
  • 12. Copyright US Constitution 1790 1450 1694 1710 “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors the exclusive Right to their Writings”
  • 13.
  • 14. “During the nineteenth century anyone was free in the United States to reprint a foreign publication, and yet American publishers found it profitable to make arrangements with English authors. Evidence before the 1876-8 Commission shows that English authors sometimes received more from the sale of their books by American publishers, where they had no copyright, than from their royalties in [England]” where they did have copyright." " Arnold Plant [1934] "The Economic Aspects of Copyright in Books," Economica, 167-195
  • 16. 20th century 1450 1694 1710 1960’s
  • 17. 20th century 1450 1694 1710 1960’s 1970’s
  • 18. 20th century 1450 1694 1710 1960’s 1970’s 1980’s
  • 19. 20th century 1450 1694 1710 1960’s 1970’s 1980’s 1999
  • 20. 20th century 1450 1694 1710 1960’s 1970’s 1980’s 1999 2003
  • 21. 20th century 1450 1694 1710 1960’s 1970’s 1980’s 1999 2003 2014
  • 22.
  • 24. 1886 1450 1694 1710 1961 1994 1996 Berne Convention Rome Convention TRIPS WIPO Internet Treaties * By no means exhaustive 1820’s Bilateral treaties
  • 26. Coverage: Literary and artistic works Sets minimum standard of protection Requires to protect the copyright on works from other signatory countries in the same way it protects the copyright of its own nationals. 1st multi-lateral copyright treaty 10 states signed in 1886 (NB: US only “observer”) Berne Convention
  • 27. Exclusive rights for authors •  to make reproductions •  to perform / recite the work in public •  to translate the work •  to make adaptations and arrangements of the work •  to communicate the work to the public / broadcast Certain moral rights (attribution and integrity) Exceptions (reproduction right): the 3 steps test Berne Convention
  • 28. Further exceptions only… Certain special cases No conflict with normal exploitation Not un- reasonably prejudice the interest of the rights holder See e.g. Art. 9.2 Berne (reproduction right only) & Art. 13 TRIPS   ifa Berne Convention
  • 29. today of little importance; most states have joined Berne… Universal Copyright Convention (1952)
  • 31. Closes gaps left by the Berne Convention “neighbouring rights” (“droits voisins”) Protection of performers, producers of sound recordings, broadcasters and publishers… Rome Convention
  • 32. TRIPS 1994 * Agreement on Trade-Related Aspects of Intellectual Property Rights  
  • 33. Perceived problem: large-scale copying of books, records & films. Berne “inadequate” – no mechanisms to ensure compliance… TRIPS governs extent of protection and enforcement of IPRs (not restricted to copyright). Minimum protection based on the Berne and Rome conventions. TRIPS
  • 34. Copyright specific “Berne plus” features: •  Confirms that protection extents to expressions – not ideas (Art. 9.2) •  Length of protection – 50 years (Art. 12) •  ALL limitations/exceptions have to comply with 3-step test (Art. 13) •  Protection of performers, producers and broadcasters •  Computer programs protected as “literary works” •  Protection for databases (if they constitute intellectual creations) TRIPS
  • 35. Berne couldn’t be updated (hello, digital agenda) WIPO Copyright Treaty (WCT) WIPO Performances and Phonograms Treaty (WPPT) WIPO Internet Treaties (1996) Implemented via Directives in EU and DMCA in US
  • 37. 1886 “Community legislation should be restricted to what is needed to carry out the tasks of the Community. Many issues of copyright law do not need to be subject of action at Community level” 1988 1450 1694 1710 1961 Green Paper on Copyright and the Challenge of Technology (1988) COM/88/172
  • 38. 1886 Present state of community law “characterised by a lack of harmonisation or approximation of legislation governing the protection of literary and artistic property” 1989 1450 1694 1710 1961 CJEU in 1989 (EMI v. Patricia C-341/87, para. 11)
  • 41. Roads to harmonization? (Regulation, Directives, CJEU practice…)
  • 42. Roads to harmonization? (Regulation, Directives, CJEU practice…) What may challenges be?
  • 43. Roads to harmonization? (Regulation, Directives, CJEU practice…) What may challenges be? (Legal traditions / Different concepts of use / More or less protection / Means of harmonization / Speed of adaption / Reception of new technologies…)
  • 44. Roads to harmonization? (Regulation, Directives, CJEU practice…) What may challenges be? (Legal traditions / Different concepts of use / More or less protection / Means of harmonization / Speed of adaption / Reception of new technologies…) What do you see as the benefits / deficiencies of these different roads to copyright ?
  • 45. Term of Protection (2011/77/EU) InfoSoc (2001/29) Orphan Works (2012/28/EU) Civil enforcement (2004/48/EC)
  • 47. But: substantial harmonization by way of several (mostly vertical) Directives (EU acquis) + = Bundle of national laws
  • 48. How would you describe the road taken and why do you think that has been chosen?
  • 49. How would you describe the road taken and why do you think that has been chosen? Why relatively late?
  • 50. How would you describe the road taken and why do you think that has been chosen? Why relatively late? (e.g. due to language barriers and differing cultural traditions cross-border exploitation of copyrighted works was not of major economic importance… changed with the advent of new subject matters (computer programs, databases) and new communication technologies (internet).
  • 51. What subject matter does cover?"
  • 52. What subject matter does cover?" And who is protected?
  • 53.
  • 54.
  • 55.
  • 56.
  • 57.
  • 58.
  • 59.
  • 60.
  • 61.
  • 62.
  • 63. Cover: Mr. Brainwash Label: Warner Bros. Records
  • 64.
  • 65.
  • 66.
  • 67.
  • 68. Art. 2 Berne Convention (Protected Works) 1. “Literary and artistic works”; 2. Possible requirement of fixation; 3. Derivative works; 4. Official texts; 5. Collections; 6. Obligation to protect; beneficiaries of protection; 7. Works of applied art and industrial designs; 8. News (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, (…) 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.
  • 69. “Creative works” / cultural products Artistic, literary, dramatic, musical, photographical and cinematographic works; maps and technical drawings; computer programs and databases (see e.g. Art. 2 Berne) Expanded considerably since earliest concern with printed works… Only expression of copyrighted work, not idea or facts Any work? •  Irrespective of literary or artistic merit •  Originality of work? (more later!) Subject matter
  • 70. Work (the author) Communicate + making available to the public Distribute Berne Convention “Literary and artistic works” Translations, adaptations and arrangements Collections Fixation (protection of investment) Making available to the public Distribute Rome Convention Broadcasting Phonograms Databases Performances Copyright Related Rights
  • 71. Acquisition of rights? Arises automatically (No formalities/registration, see Art. 5(2) Berne) Time limited rights •  Duration: International min. author’s life +50 years (EU 70 years) •  Related rights mostly shorter (70, 50, 25 years, calculated from the date of first publication) Based on principle of territoriality (one and the same work protected by different laws in different countries)
  • 72. Two particularities •  Limitations/exceptions: Boundaries on the exclusive rights (defenses to infringements, limitations to control by copyright holder) play a much greater role in copyright law than in other IPRs •  Numerous mass transactions: Collecting societies grant blanket licenses for the repertoire of the works for which the authors have transferred their rights to the respective society * Among many other.  
  • 73.
  • 75. Patent 20 years Utility model ≈ 10 years
  • 76. Patent 20 years Copyright ✝+ 70 years Utility model ≈ 10 years
  • 77. Patent 20 years Copyright ✝+ 70 years Design Up to 25 years Utility model ≈ 10 years
  • 78. Patent 20 years Copyright ✝+ 70 years Trademark Design Up to 25 years Utility model ≈ 10 years ...
  • 79. Droit d‘auteur Moral/author rights “Emanation of personality” Natural rights of the author, prevails in most countries
  • 80. Droit d‘auteur Copyright approach Moral/author rights “Emanation of personality” Natural rights of the author, prevails in most countries Economic/entrepreneurial rights “Fruit of his labour” prevails in common law countries
  • 81. “Copyright and related rights play an important role in this context as they protect and stimulate the development and marketing of new products and services and the creation and exploitation of their creative content.” Recital 2 of Directive 2001/29/EC
  • 82. Concept of originality “Up to now, the notion of originality has not been addressed in Community legislation in a systematic manner (…) Member States remain free to determine what level of originality a work must possess for granting it copyright protection.” Commission Staff Working Paper SEC(2004),995
  • 83. Infopaq (C-5/08) [text excerpts] Author’s own intellectual creation is the yardstick for all works protected by copyright under the InfoSoc Directive (see para. 37)
  • 84. Infopaq (C-5/08) [text excerpts] Author’s own intellectual creation is the yardstick for all works protected by copyright under the InfoSoc Directive (see para. 37) Painer (C-145/10) [photographic works] An intellectual creation is deemed to be author’s own if it reflects his or her personality (see para. 88) The creation is the author’s own when the author in conjunction with the creation of his/her work has been able to express his/her creative ability by making free and creative choices. (see para. 92)
  • 85. Infopaq (C-5/08) [text excerpts] Author’s own intellectual creation is the yardstick for all works protected by copyright under the InfoSoc Directive (see para. 37) Painer (C-145/10) [photographic works] An intellectual creation is deemed to be author’s own if it reflects his or her personality (see para. 88) The creation is the author’s own when the author in conjunction with the creation of his/her work has been able to express his/her creative ability by making free and creative choices. (see para. 92) Football Dataco (C-604/10) [database] Mere intellectual effort and skill of creating database not relevant in copyright assessment. Does it express any originality in the selection or arrangement of data? (see para. 42)
  • 86. Infopaq (C-5/08) [text excerpts] Author’s own intellectual creation is the yardstick for all works protected by copyright under the InfoSoc Directive (see para. 37) Painer (C-145/10) [photographic works] An intellectual creation is deemed to be author’s own if it reflects his or her personality (see para. 88) The creation is the author’s own when the author in conjunction with the creation of his/her work has been able to express his/her creative ability by making free and creative choices. (see para. 92) Football Dataco (C-604/10) [database] Mere intellectual effort and skill of creating database not relevant in copyright assessment. Does it express any originality in the selection or arrangement of data? (see para. 42) SAS Institute (C-406/10) [computer program/user manual] Author may only through the choice, sequence and combination of words, (…) express creativity in an original manner (see para. 67)
  • 87. CJEU & originality criterion* (1) The creation is the author‘s own original creation. (2) The creation reflects his/her personality. (3) The author, in conjunction with the creation of his/her work, has been able to express his/her creative ability by making free and creative choices and thus stamping his/her ‘personal touch’ on the work. *thusfar
  • 88. Question of whether a work meets the requirement to be protected by copyright is not subject to a national test but an EU concept…? Case law extending harmonization to what is agreed… (namely Originality, Work, Ownership, Designs) “Harmonization by stealth”? Lionel Bently
  • 91. Introduction to copyright & legal framework EU copyright harmonization Subject matter Originality Case study: Exhaustion (and software) flashback
  • 92. Even more copyright! Rights, Limitations and Exceptions (InfoSoc) Enforcement Human Rights Licensing (Online, open data, creative commons…) Presentation: TPMs (Nintendo v. PC Box C-355/12) upcoming
  • 93. Credits / attribution Push pull by Robert S. Donovan from Flickr (CC BY-NC 2.0) The Battle of Copyright 2011 by Christopher Dombres from Flickr (CC BY 2.0) Kyle Canyon Road by N i c o l a from Flickr (CC BY 2.0) Captain Copyright (captaincopyright.ca) Sand Castle by Adeel Anwer from Flickr (CC BY-ND 2.0) Lego by Jake Dunham from The Noun Project Stop sign by Jaap Knevel from The Noun Project People by Wilson Joseph from The Noun Project Search by hunotika from The Noun Project Gondola by Patricia Ross from The Noun Project Identification Badge by Michela Tannoia from The Noun Project Person by Cristina Gallego from The Noun Project Infinity by im icons from The Noun Project Biopic by Yi Chen from The Noun Project Copyright by Stefan Parnarov from The Noun Project Icon by Acider C Balandrano from The Noun Project VHS Tape by Loic Poivet from The Noun Project Europe Flag by Pham Thi Dieu Linh from The Noun Project Storm Trooper by ARudmann from The Noun Project Ketchup by Taylor Medlin from The Noun Project Coat of Arms by Martin Vanco from The Noun Project Meditation by Pavel Nikandrov from The Noun Project Globe by Chris Tucker from The Noun Project Pirate by Anne Caroline Bittencourt Gonçalves from The Noun Project Stopwatch by Nick Holroyd from The Noun Project Printing Press by Mike Wirth from The Noun Project Police by Luis Prado from The Noun Project CD by José Manuel from The Noun Project Chair by Jardson A. from The Noun Project Emperor by Simon Child from The Noun Project Pharaoh by Simon Child from The Noun Project Cassette by mathies janssen from The Noun Project Music–Boxes 2 by sweetmusic_27 on Flickr CC BY-SA 2.0 Wall for sounds by Memphis CVB on Flickr CC-BY One direction 185 by Fiona McKinlay on Flickr CC-BY-SA 2.0