Copyright & IPR - Manual

Copyright - THE AUTHOR'S EXCLUSIVE RIGHTS

What is copyright?

Copyright is a legal term to describe rights given to the author of a work. It is an intellectual property right.

Copyright is a way for the author to live from his works and control what will be done with his work. The author has both economic and moral rights over his/her creations.

When an artist creates a piece of art, he automatically acquires certain limited exclusive rights to exploit his work. An author has the right to determine the conditions of use for his work. He may or may not ask for remuneration and may or may not impose conditions on its use.

Some artists, especially at the beginning of their career, are eager to share their work for free while others decide to ask remuneration.

What kind of work can be protected by copyright?

A wide range of original work can be protected under copyright – protection can be automatic, as soon as the work is created, with no need for any registration. (E.g. literary, musical, artistic works, computer programs, databases etc.)

Works stored and exchanged on the internet are protected in the same way.

What does copyright include?

In Europe, the author has the following three patrimonial rights when he creates a work. They enable the author to control the exploitation and distribution of his work but also to profit from it.

Reproduction right: the exclusive right for the author to authorise or prohibit direct or indirect, temporary or permanent reproduction of his work by any means and in any form, in whole or in part.

E.g. in the digital environment: if you can download work from the internet legally, it is because the author has given his agreement and authorises its reproduction.

Right of communication to the public of a work: the exclusive right for the author to authorise or prohibit the communication to the public of his work, by wire or wireless means.

E.g. in the digital environment: if you can listen to a song on a website, it is because its communication has been authorised.

The right of making a work or sound recording available online:  this new interactive right as opposed to the right of communication to the public, covers all 'interactive' online dissemination where the consumer choses the time and place when he has access to the works or sound recordings.

Right of distribution: the exclusive right for the author to authorise or prohibit any form of distribution to the public by sale or otherwise. This enables the author to control the material dissemination of his work (sale, rental, lending).

What is not covered by copyright?

Public domain

Most intellectual works (literary, musical, audiovisual, artistic works, computer programmes, databases etc.) are covered by copyright for a set period from the time of their creation. In the EU this is until 70 years after the author's death for authors' rights and 50 years from the date o recording for related rights (performers, producers of phonograms and broadcasting organisations). When the copyright expires, the intellectual works enter the public domain.

Open licenses

Authors can actually renounce or restrict their copyrights by producing work with open licenses. There are several types of this sort of license scheme (creative commons, Copyleft, General Public Licenses etc). These licenses do not exclude copyright but in most cases provide a non-commercial clause allowing users to share the protected work for non-commercial purposes.

Creative commons

Creative commons usually refers to flexible licensing agreements created to enable content creators to keep control over their work. These licensing agreements make it possible to formalize circulation of content while enabling more creative use. Creative commons is actually a non-profit organisation which has released several copyright licenses known as Creative Commons licenses.

Similarly, under license schemes such as Copyleft and the GNU General Public an author surrenders some but not all rights under copyright law. Copyleft and GNU require that the same freedoms be preserved in modified versions by other users.

 

ADMISSIBLE EXCEPTIONS AND LIMITATIONS TO THE EXCLUSIVE AUTHOR'S RIGHTS

Why ARE THERE exceptions and limitations?

To establish a balance between private and public interests, and respect the rights of the different actors (the author, the public and investors), EU countries may allow specific exceptions to the author's exclusive rights.

There is only one exception common to all EU countries – the exception allowing transient copying.

Other optional exceptions may allow copying for educational and scientific purposes, for the benefit of public institutions such as libraries and archives, for news reporting, for quotations, for use by people with disabilities, for public security and for administrative and judicial proceedings.

International agreements on intellectual property require all exceptions and limitations to satisfy the so called "three-steps test" which requires that any such exception must not go beyond "normal exploitation of the work" nor "unreasonably prejudice the legitimate interests of the rights holder".

 

PERSONAL USE – NON COMMERCIAL ENDS - PRIVATE COPYING

What is private copying? What constitutes a private copy?

The most common exception to copyright is the "private copying exception", granted in all EU countries except the UK and Ireland.

Private copying is an exception to the author's rights. A user will be able to make a lawful copy of a work freely if:

- it is for private use;

- the copy will not be used for commercial purposes;

- the rights holder receives fair compensation (see below:  Private copying levies)

Is private copying a right?

Private copying is not a right but an exception to the author's exclusive right of reproduction. It is subject to the "three-steps test", like all other copyright exceptions, so can apply only in special cases, which do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.

Digital rights management technologies

What are DRMs (and TPMs)?

European law distinguishes between:

-        digital rights management system (DRMs) – any embedded information identifying the work or about terms and conditions of use

-        technological protection measures (TPMs) – any technology, device or component designed to prevent or restrict acts unauthorised by the rights holder.

For the sake of simplicity both are usually referred to as DRMs.

DRMs (TPMs) are technological protection measures.

DRM systems can include a broad range of control measures, going much further than just preventing copying. They create a particular digital environment and control the access to copyrighted works.

For example, DRMs can be used to prevent a copyrighted work being used on different devices, or restrict its use to a particular geographical zone (beware that such a restriction is illegal in the EU).

They are based on encryption of the copyrighted work. Devices must have the decoding key in order to consult the work.

DRMs can either be integrated on accompanying CDs, DVDs etc. or in on-line content (music, video files, games, VOD, etc.). They can be used by rights holders to control how many copies of the work can be made, on which equipment the work can be read, how often it may be read, the period for which it remains accessible, who can access the work, etc.

DRMs (TPMs) are legally protected

To complete the copyright protection, DRMs (TPMs) are legally protected against circumvention.

Which acts are forbidden?

The EU directive on copyright in the information society prohibits any deliberate circumvention of TPMs and any trade in circumvention devices (manufacture, import, distribution, sale, rental, or advertisement, possession with commercial purposes).

To establish a balance between different stakeholders, rights holders can limit the number of copies that can be made (but as far as possible should grant the private copying exception).

In very specific cases (for instance for research and teaching, or for use by disabled people) national law may allow the work to be copied to the extent necessary to allow its lawful use.

 

COPYRIGHT LEVIES

What is a private copying levy?

A copyright levy (or more commonly private copy levy, PCL) is a special tax or levy (additional to any general sales tax) charged on purchases of recordable media such as blank CDs, DVDs and mp3 players.

In Europe the levy is charged to ensure fair compensation to rights holders when and where private copying is allowed. Copyright levies are meant to establish a balance between the author's rights and public rights.

However, PCL should be determined taking account the application or non-application of technological protection measures.

How do private copying levies work?

Fair compensation may vary from country to country. Levies are imposed either on the equipment (PCs, CD writers, scanners, etc.) or on the medium (CDs, DVDs, memory cards, etc.), or on both.

Rates vary too.

The application of PCLs does not distinguish between consumers intending to use equipment and media to exercise the private copying exception, and those who don't.

 

PEER TO PEER - File sharing

What is file sharing?

File sharing is exchanging/sharing any type of file between people connected to the internet.

File sharing is not always illegal – it depends whether you hold the copyright to the files or whether someone else does. Unfortunately, recently file sharing has become associated with piracy.

What is Peer to Peer? How do P2P networks work?

Peer-to-peer (P2P) is one out of several file sharing services. P2P networks, thanks to a specific infrastructure, enable users to link their computers via the internet and exchange files they are interested in, which, in many cases, are copyright-protected music or video files.

By connecting to a peer-to-peer network, users often get the impression of being anonymous but this is only partly true. The so-called internet protocol (IP) address is always recognisable and can always be liked to the internet access subscriber.

Two different types of action have to be distinguished: and downloading.

Uploading

Uploading is the transmission of a file from one computer system to another, usually larger, computer system.

Uploading to a P2P network is offering files to members of a network. Uploading copyright-protected work means reproducing it and making it available to the public, so, if unauthorised, it is a copyright infringement.

It is still possible to use P2P networks lawfully by uploading authorised works, works that have entered into the so-called "public domain", or works that are under a royalty-free licences when the author has agreed to the mode of exchange (Creative commons, Copyleft).

Downloading

Downloading is the transmission of a file from one computer system to another, usually smaller, computer system.

Downloading from a P2P network is copying a work offered on a network. If the downloaded file is protected by copyright, downloading violates the author's exclusive right of reproduction. Copying a work without the author's permission may infringe copyright.

It is still possible to use P2P networks lawfully by uploading authorised works, works that have entered into the so-called "public domain" (when the work is not subject to copyright protection, or after the protection has ceased) or works that are under a royalty-free licence when the author has agreed to the mode of exchange (Creative commons).

 

Copyright Infringement - Counterfeiting

Infringing copyright is a serious offence as the primary purpose of copyright is not only to protect the interests of the authors/creators, but to promote the progress of knowledge and arts.

To ensure proper copyright protection, the EU adopted the EU directive on the enforcement of intellectual property rights  to make sure that copyright infringements are adequately punished in all EU countries.

The directive requires all EU countries to apply effective, dissuasive and proportionate remedies and penalties against those engaged in counterfeiting and piracy. The directive aim at creating a level playing field for rights holders in the EU. It means that all EU countries should have a similar set of measures, procedures and remedies available for rights holders to defend their intellectual property rights (be they copyright or related rights, trademarks, patents, designs, etc) if they are infringed.

The directive only covers civil measures, but in most EU countries there are also criminal measures to punish copyright infringement and piracy.