5. Important international treaties
• The Berne Convention for the Protection of
Literary and Artistic Works (1886/1967)
• The Agreement on Trade-Related Aspects
of Intellectual Property Rights (1994)
• The WIPO Copyright Treaty (1996)
19. ‘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 and dramatico-musical works;…
Art. 2(1) of the Berne Convention
20. • choreographic works and entertainments in
dumb show;
• musical compositions with or without words;
• cinematographic works to which are
assimilated works expressed by a process
analogous to cinematography;
• works of drawing, painting, architecture,
sculpture, engraving and lithography;…
Art. 2(1) of the Berne Convention
21. • 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.
Art. 2(1) of the Berne Convention
22. ‘Computer programs are protected as
literary works within the meaning of
Article 2 of the Berne Convention. Such
protection applies to computer programs,
whatever may be the mode or form of
their expression.’
Art. 4 of the WIPO Copyright Treaty
23. ‘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.’
– copyright 1: original work
– copyright 2: altered version
Specific rules (art. 2(3) BC)
24. Neighbouring rights
• performing artists
– fixations of performances
• phonogram producers
– with regard to phonograms
• film producers
– with regard to the original and copies of films
• broadcasting organizations
– fixations of broadcasts
26. Exclusions from protection
‘Copyright protection extends to expressions and
not to ideas, procedures, methods of operation or
mathematical concepts as such.’
(Art. 2 WIPO Copyright Treaty)
= idea/expression dichotomy
• news of the day and miscellaneous facts
having the character of mere items of press
information (Art. 2(8) BC: mandatory)
27. • official texts of a legislative, administrative
and legal nature, and official translations of
such texts (Art. 2(4) BC: optional)
• political speeches and speeches delivered
in the course of legal proceedings
(Art. 2bis(1) BC: optional)
• no protection unless fixed in some material
form (Art. 2(2) BC: optional)
Exclusions from protection
29. Originality
• work = materialization of the author’s
individual personality
• particular link between the author and
the work
• copyright is automatically acquired
through the very act of creation
• no formalities = no registration
requirement
30. No registration required (art. 5(2) BC)
‘The enjoyment and the exercise of [the
rights which the respective laws of Union
countries grant to their nationals, as well
as the rights specially granted by the
Convention] shall not be subject to any
formality;...’
31. Originality test not harmonized
• test may differ from country to country
• protection to be determined on the basis
of the applicable national law
‘Authors shall enjoy, in respect of works for which
they are protected under this Convention, in
countries of the Union other than the country of
origin, the rights which their respective laws do
now or may hereafter grant to their nationals…’
(Art. 5(1) BC = national treatment)
33. Art. 7 BC
• ‘The term of protection [...] shall be the life
of the author and fifty years after his death.’
– in many countries: 70 years post mortem
• cinematographic works
– making available + 50 years (optional)
• anonymous or pseudonymous works
– making available + 50 years
• photographic works, works of applied art
– making of the work + 25 years (minimum)
34. Joint authorship (art. 7bis BC)
‘...also apply in the case of a work of joint
authorship, provided that the terms
measured from the death of the author
shall be calculated from the death of the
last surviving author.’
35. Photographic works (art. 9 WCT)
‘In respect of photographic works, the
Contracting Parties shall not apply the
provisions of Article 7(4) of the Berne
Convention.’
= regular term of protection instead of
making of the work + 25 years
37. First ownership not harmonized
• Berne Convention refers to the
“author” without defining it
• standard solution: natural person
creating a work is the first owner
• national law may provide for other
rules in certain cases
– employer’s copyright
– work for hire doctrine
38. Application of general principles
‘Authors shall enjoy, in respect of works for which
they are protected under this Convention, in
countries of the Union other than the country of
origin, the rights which their respective laws do
now or may hereafter grant to their nationals…’
(Art. 5(1) BC = national treatment)
• lex loci protectionis vs. lex originis
• contractual choice of the applicable law
advisable
40. Art. 6bis(1) BC
‘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…’
• waiver of moral rights in several national
systems (common law vs. civil law)
• contracts about the exercising of moral
rights null and void?
46. Two branches of rights
exploitation rights
• general right of
reproduction
(art. 9(2) BC)
• general right of
communication
to the public
(art. 8 WCT)
moral rights
• claim authorship
• object to any
distortion, mutilation,
modification or other
derogatory action
(art. 6bis BC)
47. ‘Authors of literary and artistic works
protected by this Convention shall have
the exclusive right of authorizing the
reproduction of these works, in any
manner or form.’ (para. 1)
‘Any sound or visual recording shall be
considered as a reproduction for the
purposes of this Convention.’ (para. 3)
Art. 9 BC: Reproduction
48. Public performance rights
• public performance (art. 11(1)(i) BC)
• public recitation (art. 11ter(1)(i) BC)
• public communication by loudspeaker
(art. 11bis(1)(iii) BC)
• standard constellation:
– fixed place, fixed time
50. ‘…the exclusive right of authorizing any
communication to the public of their works,
by wire or wireless means…’
• standard constellation:
– flexible place, fixed time
– example: broadcasting (art. 11bis BC)
Art. 8 WCT: Communication to the public
51. ‘…including the making available to the public
of their works in such a way that members of
the public may access these works from a
place and at a time individually chosen by
them.’
• making available online:
– flexible place, flexible time
Art. 8 WCT: Communication to the public
52. Further examples of rights…
• translation (art. 8 BC)
• adaptation (art. 12 BC)
• cinematographic adaptation, reproduction,
distribution, public performance and public
communication (art. 14 BC)
• right to an interest in resales
(‘droit de suite’, art. 14ter BC)
53. Right of distribution (art. 6(1) WCT)
‘Authors of literary and artistic works shall
enjoy the exclusive right of authorizing the
making available to the public of the original
and copies of their works through sale or
other transfer of ownership.’
But: exhaustion of the right after the first sale
is left to the discretion of Contracting Parties
(art. 6(2) WCT)
54. Right of rental (art. 7(1) WCT)
‘Authors of
(i) computer programs;
(ii) cinematographic works; and
(iii) works embodied in phonograms, as determined
in the national law of Contracting Parties,
shall enjoy the exclusive right of authorizing
commercial rental to the public of the
originals or copies of their works.’
56. Limitations
• idea/expression dichotomy: copyright only
protects the individual way of expressing
ideas, not ideas as such (art. 2 WCT)
• limited term of protection
(arts. 7, 7bis BC, art. 9 WCT)
• use permitted by law, serving social,
cultural and economic ends
58. Legal traditions
Anglo-America
• fair use doctrine
• open factors
• case-by-case
approach (judge)
• flexibility
• quick reactions to
new developments
Continental Europe
• statutory limitations
• fixed requirements
• closed catalogue of
limitations (legislator)
• legal certainty
• slow reactions to
new developments
59. Specific international limitations
• quotations, press summaries (art. 10(1) BC)
• articles on current topics (art. 10bis(1) BC)
• lectures, addresses, works of the same
nature delivered in public (art. 2bis(2) BC)
• reporting of current events (art. 10bis(2) BC)
• illustrations for teaching (art. 10(2) BC)
60. Underlying rationale
• freedom of expression
• freedom of information
• dissemination of information
• cultural participation
• equal chances in the information society
(no ‘digital divide’)
61. But also regulation of industry practice
• compulsory licenses concerning
broadcasting, and wireless or loudspeaker
communications (art. 11bis(2) BC)
• ephemeral recordings made by broadcasting
organizations (art. 11bis(3) BC)
62. • ‘It shall be a matter for legislation in the
countries of the Union to permit the
reproduction of [literary and artistic] works
in certain special cases, provided that such
reproduction does not conflict with a normal
exploitation of the work and does not
unreasonably prejudice the legitimate
interests of the author.’ (art. 9(2) BC)
= so-called ‘three-step test’
Open-ended international ‘three-step test’
63. • certain special case
– specific form of use, limited number of beneficiaries
– room for considering policy justification?
• no conflict with a normal exploitation
– currently exploited and potential future markets
– room for normative considerations?
• no unreasonable prejudice to legitimate interests
– refined proportionality test
– reduction to reasonable level by providing for the
payment of equitable remuneration
Criteria of the three-step test
65. • ‘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.’
= three-step test becomes general yardstick for
the permissibility of national limitations
Art. 13 TRIPS
66. scope of the three-step test
specific international
limitations
Impact of the three-step test on
specific limitations
67. scope of the three-step test
specific international
limitations
Impact of the three-step test on
specific limitations
68. ‘It is understood that the provisions of Article 10 permit
Contracting Parties to carry forward and appropriately
extend into the digital environment limitations and
exceptions in their national laws which have been
considered acceptable under the Berne Convention.
Similarly, these provisions should be understood to
permit Contracting Parties to devise new exceptions
and limitations that are appropriate in the digital
network environment.’
Agreed Statement Concerning Art. 10 WCT
74. Technological measures (art. 11 WCT)
‘…effective technological measures that
are used by authors in connection with the
exercise of their rights […] and that restrict
acts […] which are not authorized by the
authors or permitted by law.’
• protected against circumvention
• exemption of permitted use realistic?
75. Ideal world – feasible in practice?
scope of
copyright
=
scope of
protection of
technological
measures
76. Rights management information (art. 12 WCT)
‘…information which identifies the work,
the author of the work, the owner of any
right in the work, or information about the
terms and conditions of use of the work…’
• protected against removal or altering
• facilitation of e-commerce
• likely to be accepted by consumers?