TRIPS and IP-Related Matters Mauritius, 5 March 2014 Mauritius Copyright Legislation and TRIPS Prof....
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TRIPS and IP-Related Matters Mauritius, 5 March 2014 Mauritius Copyright Legislation and TRIPS Prof. Dr. Martin Senftleben VU University Amsterdam
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Transcript of TRIPS and IP-Related Matters Mauritius, 5 March 2014 Mauritius Copyright Legislation and TRIPS Prof....
TRIPS and IP-Related Matters Mauritius, 5 March 2014
Mauritius Copyright Legislation and TRIPS
Prof. Dr. Martin SenftlebenVU University Amsterdam
TRIPS Agreement
WIPO Copyright
Treaty
Beijing Treaty
Marrakesh Treaty
International Framework
• protection requirements
• term of protection
• minimum rights
• limitations and exceptions
• technological measures
• neighbouring rights
Contents
Protection requirements
Pablo Picasso, Guernica (1937)
Literary and artistic works
Literary and artistic works
Literary and artistic works
Literary and artistic works
Literary and artistic works
Literary and artistic works
Literary and artistic works
Charles and Ray Eames, Eames Lounge and Ottoman (1956)
Literary and artistic works
Literary and artistic works
Literary and artistic works
Literary and artistic works
‘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;...’ (Art. 5(2) BC)
No registration required
• 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
• originality test = central threshold for
determining eligibility for protection
But originality
protection against unfair competition
trademark, trade name and geographical indications law patent and
industrial designs law
copyright
High level of creativity required?
protection against unfair competition
patent and industrial designs
lawcopyright
trademark, trade name and geographical indications law
Or skill and labour sufficient?
Term of protection
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)
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.’
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
Minimum rights
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)
‘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
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)
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.’
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)
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
Arts. 11(1)(ii), 11bis(1)(i) and (ii),
11ter(1)(ii), 14(1)(ii), 14bis(1) BC
Art. 8 WCT
Right of communication to the public
‘…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
‘…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
primary acts
secondary acts
Conceptual contours
© Bird & Bird LLP 2011
Subject matter | Client details
Page 36
Limitations and
exceptions
• freedom of expression
• freedom of information
• dissemination of information
• education and cultural participation
• equal chances in the information society
(no ‘digital divide’)
Underlying rationales
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
Legal traditions
• 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)
Specific international limitations
• compulsory licenses concerning
broadcasting, and wireless or loudspeaker
communications (art. 11bis(2) BC)
• ephemeral recordings made by broadcasting
organizations (art. 11bis(3) BC)
Specific international limitations
Marrakesh Treaty
‘Contracting Parties shall provide in their national
copyright laws for a limitation or exception to the
right of reproduction, the right of distribution, and
the right of making available to the public as
provided by the WIPO Copyright Treaty (WCT), to
facilitate the availability of works in accessible
format copies for beneficiary persons. The
limitation or exception provided in national law
should permit changes needed to make the work
accessible in the alternative format.’ (Art. 4(1)(a))
Marrakesh Treaty
‘Contracting Parties shall provide that if an
accessible format copy is made under a limitation
or exception or pursuant to operation of law, that
accessible format copy may be distributed or
made available by an authorized entity to a
beneficiary person or an authorized entity in
another Contracting Party.’ (Art. 5(1))
• importation in other Contracting Parties made possible by Art. 6
‘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 limitation
Article 9(2) BC
Article 13 TRIPS
Article 10 WCT
Three-step test family
‘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 on Art. 10 WCT
Title of the presentation
Technological measures
‘…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.’ (Art. 11 WCT)
• protected against circumvention
Technological measures
‘…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…’
(Art. 12 WCT)
• protected against removal or altering
• facilitation of e-commerce
Rights management information
scope of
copyright = scope of protection of technological
measures
Ideal world – feasible in practice?
Neighbouring rights
Neighbouring rights
• performing artists
– fixations of performances, including
audiovisual fixations (Beijing Treaty)
• phonogram producers
– with regard to phonograms
• film producers
– with regard to the original and copies of films
• broadcasting organizations
– fixations of broadcasts
basis: copyright (author)
adaptation 1: translator
+ neighbouring rights adaptation 2:
scenarist
Copyright clusters
