trans-pacific partnership proposed trade agreement between 12 pacific rim countries provides minimum...

Primer on InternationalCopyright Protection

October 22, 2015

Trans-Pacific Partnership

• Proposed Trade Agreement Between 12 Pacific Rim Countries

• Provides minimum level of protection for intellectual property, including trademarks, copyrights & patents

• Copyright term extended life of the author plus 70 years for all member countries (US term already)

Copyrights- What do they protect?

• “Original works of authorship fixed in any tangible medium of expression …”

• Only the “expression” is protectable, not the underlying idea itself.

• Fixed- does not mean human perceptible- communicated with a device is okay.

Copyrights- Examples

• Literary works (business/training manuals)• Musical works (marketing jingle)• Pictorial, Graphic or Sculptural works (marketing

photographs)• Audiovisual works (television commercials)• Sound recordings (radio commercials)• Architectural works (office/plant design)• Computer Software (source code)• Content of a Web Site (text, pictorial or graphic content,

etc.)• Any other original work of authorship “expressed” in a

tangible medium of expression

Main Points for International IP "System"• National Laws that Create IP Rights Have a

Legal Binding Effect Within Only the Nation

• International Treaties and Institutions– Create and promote minimum legal standards

that are incorporated into national laws and rules.

– Try to harmonize national IP laws and rules

• In Other Words, there is NO International Intellectual Property Law– All IP is local.

International IP Treaties• Old IP Treaties (remember)

– Paris Convention (1883)- Utility Patents & Design Patents/Industrial Designs

– Berne Convention (1886)- Copyrights

International IP Treaties• Common to both Paris & Berne Conventions

– National Treatment– Minimum Standards– If Non-Self Executing- need domestic

enactment. Important because national laws enacting these

treaties can have slight differences between countries that skirt some of these requirements

International IP Treaties• TRIPS- Agreement on Trade Related Aspects

of Intellectual Property

– Directly links IP to trade & provides dispute resolution

– Minimum standards for copyrights, trademarks, geographical indicators, industrial designs, patents, integrated circuits & trade secrets

Copyrights- Key ThemesNo Real Copyright Law

1400’s 1710Statuteof Anne

1600’s200’s

Copyrights- Key Themes

1787

Copyright ClauseDrafted

US Constitution

1852France UnilaterallyExtends Protectionto All Foreign Works

1886

Berne Convention


1969

Internet

1991World Wide Web

1998Digital Millennium

Copyright Act(DMCA)

1994

TRIPS

Copyrights- Key Themes• Two Different Traditions

– UK/US- Utilitarian Rationale for Copyrights Copyrights granted to serve greater public good

– Continental Europe- Author’s Rights Rationale Individual authors entitled to rights of their creations

through natural law

Author’s/Natural Rights• Term “author’s right” used instead of copyright

– Why is this difference in terminology important?• Focus on individual author’s rights

– Different focus on what is protected as compared to “copyright”

– Not an “author” (e.g., a performer) you are given lesser, neighboring rights.

• Natural Rights Theory eliminates some of the problems of economic justification– But still does not solve the term problem


• Why is knowing the difference between copyrights and author’s rights important?– Among other things, it will determine what is

protected, what rights are granted, term, how to obtain protection, etc.

– Will affect harmonization of copyright laws between countries

– Better understand what issues might come into play in various countries (e.g., former UK colony v. continental Europe country) Might be okay in one country but in deep trouble in

another

Acquiring Copyrights & Neighboring Rights

• Point of Attachment

• Prohibition Against Formalities

• Retroactivity

Point of Attachment• What does “point of attachment” buy you?

– Entitled to national treatment in all member countries.

– In essence, automatic copyright protection in all member states.

• Take home points– It is good to know member states, because

again not all countries are members of WTO or the Berne Convention.


How & when do you get copyright protection?

Put your pen to paper…Save it to your computer…

When you fix your work in a tangible medium!


Great, how do I get protectionoutside the United States?

Where do you live?

Points of Attachment

Need Some type ofrelationship to a

Berne Union Member Country



Where do you live?


Berne Union Member Country

1. National of…2. Habitual residence in…

AutomaticProtectionin all BerneUnion Countries!



Where do you live?


Not a national or habitual resident

of Berne Union country!

AutomaticProtectionin all BerneUnion Countries!

Not a Berne Union Member Country




1. First publish in Berne Union Country





2. Simultaneously (30 days) publish in Berne Union Country





Point of Attachment

National Treatment

Acquiring Copyrights & Neighboring Rights• Berne Convention Articles 3 and 4

– Author entitled to protection under the Berne Convention when a “point of attachment” exists

– Authors treated differently• Berne Nationals

– Point of attachment established upon creation of the work

– Does not matter if published or unpublished• Non-Berne Nationals- Point of attachment

– Published in Berne country first or simultaneous– Author is a habitual Berne country resident

Prohibition on Formalities• Article 5 of the Berne Convention

– Bars countries from imposing formalities on foreign nationals of Berne countries

– E.g., U.S. can’t require registration– Country of origin controlling not nationality– Can impose formalities on own nationals

• Take Home– No real prosecution business for copyrights in

law firms.

Prohibition on Formalities

• BUT if a “US Work”- US Country of Origin

• Register important works- Copyright registration is inexpensive but very important to protect your rights for any subsequent litigation.– To file suit for money you will need to register.– Registered works may be eligible for statutory

damages and attorney's fees in successful litigation.

– You can do it yourself.

Independent Treatment

No Copyright Protection in Country of Origin

Point of Attachment

National Treatment

Country ofOrigin (A)

Berne Union Country (B)

Work NotProtected!

Still Protected

In Other Berne

Countries

Summary- Checklist Points

• Point of Attachment– National of Berne Country or Not?– Habitual Residence in Berne Country?– Published or simultaneous published in Berne

Country?

• Prohibition Against Formalities– Country of Origin Counts- Berne 5(4)– Can Impose Formalities in Country of Origin– Independent Treatment

Copyrights in other countries exist independently of the copyrights in the origin country

Retroactivity• Country Joins WTO (TRIPs)

– Works in public domain remain in public domain default rule for international treaties- no retroactivity

– Exception: Article 18(1) must protect works not fallen into public domain in country of origin

– Must extend protection to all existing foreign works still under copyright protection

– All future works protected

Neighboring Rights- Performance Rights• Neighboring Rights

– Not copyrights, but a close cousin– E.g., Performance or sound

recordings• Take home tip

– US not a member of Rome Convention

– Rome convention allows US performers back door protection although US is not a member state Performance in a Rome Convention

country• Example, See Bruce Springsteen

Case

Ownership• Continental Countries

– Author limited to “flesh-and-blood” authors not corporate entities

– Generally do not recognize “work for hire” doctrine Germany one of the worse- prohibits authors from

completely assigning away rights– Dualist view- economic rights v. moral rights– Creates licensing nightmares

• Common Law– Generally recognize “work for hire” doctrine

Note US paternalistic nature- termination rights

Summary• Copyright or Neighboring Right?• Fixed medium?• Point of Attachment

– Berne national?- No publication required Habitual resident of Berne country = national

– Non-Berne resident- publication or simultaneous publication in Berne country Simultaneous= 30 days

• National Treatment- Point of Attachment gets you national treatment.– Independent treatment- get protection regardless

whether you have protection in country of origin– Berne Convention gives minimum standards

• Prohibition Against Formalities– Applies only to “other than the country of origin”

E.g., can treat own residents worse than foreign holders (but you can treat foreigners equally worse if originate work in your country)

What can be Protected?• The “Expression” not the idea itself…

• Laundry list of works that can be protected.

What Rights are Granted?• Berne Convention Protection of Economic

Rights– Reproduction (Copying) (Distribution)– Distribution– Adaptation and Translation (Derivative Works)– Public Performance, Communication, &

Broadcast (Public Performance)– Droit De Suite (Resale Right)

• TRIPS– Rental Rights

What Rights are Granted?• Resale Right- Article 14ter

– Right for authors to recoup money in the resale of “original” works

– Applies to original manuscript for authors and composers– This is an exception to the exhaustion doctrine

• Article 14ter(2)- Departure from national treatment– Recognizes right only if country to which the author

belongs permits the resale right– Right limited to the extent by the country where

protection is claimed– In other words, a country that recognizes the resale right

does not have to offer the right to foreign nationals for countries that do not recognize the right

What Rights are Granted?• Musical Works, Sound Recordings,

Broadcasts …– Composer- “True Author”- Maximum Rights– Performer- Copyright or Neighboring Rights

Protection, depending on the country Rights granted might be less for performers

– US Composer and Performers generally all treated the same under copyright law

Term- How Long Can You Protect?

• Berne Convention– Minimum standard life of author plus 50 years

• US– Depending on a number of factors, but generally

life of author plus 70 years

• Berne- Rule of Shorter Term– Country with longer copyright term does not

have to grant authors a term longer than set by the country of origin of the work

Term- How Long Can You Protect?• Problem- Copyright Term Arms Race

• Rule of the Shorter Term- Article7(8)– A country with a longer term does not have to

grant authors any term longer than the term set by the country of origin

– Exception to rule of independent treatment under Article 5(2)

• Trans-Pacific Partnership– Now Life of Author + 70 years

Moral Rights• Moral Rights Under the Berne Convention

– Right to claim authorship (Attribution)– Object to modification of work (Integrity)

• Take Home Points– Some Countries- nontransferable and can’t

contract away or different forms of transmitting rights

– Term for Moral Rights can vary– Some countries have additional Moral Rights – Will need to take into account of Moral Rights

Issues when drafting assignments or licenses

Primer on InternationalCopyright Protection

October 22, 2015

trans-pacific partnership proposed trade agreement between 12 pacific rim countries provides minimum...

Documents

ip rights

national ip laws

nation international

original works of authorship

trade agreement

neighboring rights

natural rights theory

paris convention