Droit d’Auteur / Copyright Issues

2018 Seminars – Entrepreneurship Methods IP Topics for Engineering: II - Droit d’Auteur / Copyright Issues 16 February. Prof. Manuel David Masseno 1 II – Droit d’Auteur / Copyright Issues 1. Common Law and the Continental Systems There are two different approaches to rights on intellectual works, Copyright and Droit d’Auteur:  with a common origin, the previleges granted to writters or printers by Ancien Régime authorities  in England, these privileges were reserved to the publisher by Charles II of England, with the Licensing of the Press Act (1662), that created a register of licensed books and required a copy to be deposited with the Stationers' Company, in order to be under an easier control of the of content, the writer would be linked to the holder of the copyright by contract only, decentralizing censorship tasks  while, in Catholic Countries, with the support of the Sovereigns, the Church decided with the Imprimatur, by the Bishop, and there was a large Index of forbidden books, not just on theological grounds 2 II – Droit d’Auteur / Copyright Issues      at a second moment, the Statute of Queen Anne (1710), gave publishers rights for a given period, allowing reprints, after which the copyright expired latter, the original holder of the copyright became a possible publisher, namely by hiring the author, and the control over the work belonged to the copyright holder, not to the creator in short: Copyright had an economic content only on the other hand, in France, after the abolition of all privileges after the Revolution of 1789, during the night of 4 August, the Droit d’Auteur was established by the Chénier Act (1793) as an expression of a given person’s personality, with powers to claim the paternity and integrity of the work, but also to take an economic advantage from it in the last century, Copyright and Droit d’Auteur are converging... but remain different. Besides, this convergence was the work of International Instruments, Instruments that we’re about to mention... 3 II – Droit d’Auteur / Copyright Issues 2. Main Sources and Institutions Besides the Specific Sources, regarding Computer Programs and Databases, we have in place:  I – International Sources:      the Berne Convention for the Protection of Literary and Artistic Works, of 1886 the TRIPS Agreement, of 1994 the WIPO Copyright Treaty, of 1996, and also the Council of Europe [Budapest] Convention on Cybercrime, of 2001 II – European Union Sources:   Directive 2001/29/EC, of 22 May 2001, on the harmonisation of certain aspects of copyright and related rights in the information society, and Council Directive 93/98/EEC, of 29 October 1993, harmonising the term of protection of copyright and certain related rights 4 II – Droit d’Auteur / Copyright Issues I – a) a few Basic features of Copyright Law as in the Bern Convention (from 1886 to 1979):  “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 or dramaticomusical works; 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; 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. 1(1) – Protected Works), without any sort of merit being required for protection 5 II – Droit d’Auteur / Copyright Issues    “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, as well as the rights specially granted by this Convention.” (Art. 5 (1) – Rights Guaranteed) “It shall be a matter for legislation in the countries of the Union to permit the reproduction of such 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.”, a first expression of the, so called, “three-step test” (Art. 9(2) – Right of Reproduction) “The term of protection granted by this Convention shall be the life of the author and fifty years after his death.” (Art. 7(1) – Term of Protection) 6 II – Droit d’Auteur / Copyright Issues b) then, the TRIPS Agreement (1994) updated it, a sort of:   starting with a clarification, such as “Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.” (Art. 9(2) – Relation to the Berne Convention) point out that IP is not self-justified, since “The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.” (Art. 7 – Objectives) 7 II – Droit d’Auteur / Copyright Issues    so, “1. Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socioeconomic and technological development, provided that such measures are consistent with the provisions of this Agreement. [Besides] 2. Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.” (Art. 8 – Principles) and “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.” (Art. 13 – Limitations and Exceptions), rephrasing the “threestep test” 8 II – Droit d’Auteur / Copyright Issues c) followed by, the WIPO Copyright Treaty (1996):   restating that “Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.” (Art. 2 – Scope of Copyright Protection) and also and adding a novelty, “Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.” (Art. 11 – Obligations concerning Technological Measures) 9 II – Droit d’Auteur / Copyright Issues d) finally, the Budapest Convention (2001): stated that, “1. Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law the infringement of copyright […] where such acts are committed willfully, on a commercial scale and by means of a computer system.” [and] 2. A Party may reserve the right not to impose criminal liability under paragraphs 1 and 2 of this article in limited circumstances, provided that other effective remedies are available and that such reservation does not derogate from the Party’s international obligations set forth in the international instruments referred to in paragraphs 1 and 2 of this article.” (Art. 10 – Offences related to infringements of copyright and related rights)  10 II – Droit d’Auteur / Copyright Issues II – a) the [InfoSoc] Directive 2001/29/EC, of 22 May 2001:  however, “1. This Directive concerns the legal protection of copyright and related rights in the framework of the internal market, with particular emphasis on the information society. 2. Except in the cases referred to in Article 11 [Technical adaptations], this Directive shall leave intact and shall in no way affect existing Community provisions relating to: (a) the legal protection of computer programs; [and] (e) the legal protection of databases.” (Art. 1 – Scope) b) the Copyright Duration Directive (1993):  as, “1. The rights of an author of a literary or artistic work within the meaning of Article 2 of the Berne Convention shall run for the life of the author and for 70 years after his death, irrespective of the date when the work is lawfully made available to the public.” (Art. 1 – Duration of authors' rights) 11 II – Droit d’Auteur / Copyright Issues 3. Computer related Contents I – Computer Programmes a) according to the TRIPS Agreement (1994):  “1. Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).” (Art. 10 – Computer Programs and Compilations of Data) b) the same stated the WIPO Copyright Treaty (1996):  “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 – Computer Programs) 12 II – Droit d’Auteur / Copyright Issues c) also Directive 2009/24/EC, of the European Parliament and of the Council, of 23 April 2009, on the legal protection of computer programs (amending Council Directive 91/250/EEC, of 14 May 1991):  “1. In accordance with the provisions of this Directive, Member States shall protect computer programs, by copyright, as literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works. For the purposes of this Directive, the term ‘computer programs’ shall include their preparatory design material. [also] 2. Protection in accordance with this Directive shall apply to the expression in any form of a computer program. Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under this Directive. 13 II – Droit d’Auteur / Copyright Issues   “3. A computer program shall be protected if it is original in the sense that it is the author's own intellectual creation. No other criteria shall be applied to determine its eligibility for protection.” (Art. 1 – Object of protection) so, according to every Source, a computer program is considered as a “literary work”…   all started in January 1969, when the US Department of Justice filled a case against IBM… then, the Commission on New Technological Uses of Copyrighted Works (CONTU), was created in 1974  in 1978, CONTU presented a Report that led to the explicit consideration of  Software as a subject matter of copyright by the Congress, in 1980 (Title 17 of the United States Code§101) followed by other Legal Systems, as the European Union, in 1991 14 II – Droit d’Auteur / Copyright Issues   but why not a protection by the Law of Patents, according to the technical nature of a computer program? in short, Software Houses did an intensive lobbying for this solution, since:     basically, a computer program is written using a language, at least, readable by… machines then, software development tends to be incremental, while patent protection has requirements as worldwide novelty, involve an inventive step and susceptibility of industrial application besides, patent applications requires, long and also expensive, examination and opposition procedures, in each territory, whereas for copyright not even registration is mandatory ultimately, when filling a patent application, a full disclosure of the technical details is always required by law, that is avoidable in copyright, even in case of a registration 15 II – Droit d’Auteur / Copyright Issues [returning to the contents of Directive 2009/24/EC...]  regarding the attribution of rights, “1. The author of a computer program shall be the natural person or group of natural persons who has created the program or, where the legislation of the Member State permits, the legal person designated as the rightholder by that legislation. [so] 2. In respect of a computer program created by a group of natural persons jointly, the exclusive rights shall be owned jointly. 3. Where a computer program is created by an employee in the execution of his duties or following the instructions given by his employer, the employer exclusively shall be entitled to exercise all economic rights in the program so created, unless otherwise provided by contract.” (Art. 2 – Authorship of computer programs) 16 II – Droit d’Auteur / Copyright Issues  then, “1. […] the exclusive rights of the rightholder [...] shall include the right to do or to authorize: (a) the permanent or temporary reproduction of a computer program by any means and in any form, in part or in whole; in so far as loading, displaying, running, transmission or storage of the computer program necessitate such reproduction, such acts shall be subject to authorization by the rightholder; (b) the translation, adaptation, arrangement and any other alteration of a computer program and the reproduction of the results thereof, without prejudice to the rights of the person who alters the program; (c) any form of distribution to the public, including the rental, of the original computer program or of copies thereof.” (Art. 4 – Restricted acts) 17 II – Droit d’Auteur / Copyright Issues  therefore, “1. In the absence of specific contractual provisions, the acts referred to in points (a) and (b) of Article 4(1) shall not require authorisation by the rightholder where they are necessary for the use of the computer program by the lawful acquirer in accordance with its intended purpose, including for error correction. 2. The making of a back-up copy by a person having a right to use the computer program may not be prevented by contract in so far as it is necessary for that use. 3. The person having a right to use a copy of a computer program shall be entitled, without the authorisation of the rightholder, to observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program if he does so while performing any of the acts of loading, displaying, running, transmitting or storing the program which he is entitled to do.” (Art. 5 - Exceptions to the restricted acts) 18 II – Droit d’Auteur / Copyright Issues  however, “1. The authorisation of the rightholder shall not be required where reproduction of the code and translation of its form [...] are indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs, provided that the following conditions are met: (a) those acts are performed by the licensee or by another person having a right to use a copy of a program, or on their behalf by a person authorised to do so; (b) the information necessary to achieve interoperability has not previously been readily available to the persons referred to in point (a); [and] (c) those acts are confined to the parts of the original program which are necessary in order to achieve interoperability. 19 II – Droit d’Auteur / Copyright Issues  [in any case,] “2. The provisions of paragraph 1 shall not permit the information obtained through its application: (a) to be used for goals other than to achieve the interoperability of the independently created computer program; (b) to be given to others, except when necessary for the interoperability of the independently created computer program; or (c) to be used for the development, production or marketing of a computer program substantially similar in its expression, or for any other act which infringes copyright. [and the “three-step test” is also received, as] 3. In accordance with the provisions of the Berne Convention for the protection of Literary and Artistic Works, the provisions of this Article may not be interpreted in such a way as to allow its application to be used in a manner which unreasonably prejudices the rightholder's legitimate interests or conflicts with a normal exploitation of the computer program.” (Art. 6 – Decompilation) 20 II – Droit d’Auteur / Copyright Issues  concerning enforcement, “1. [...] Member States shall provide, in accordance with their national legislation, appropriate remedies against a person committing any of the following acts: (a) any act of putting into circulation a copy of a computer program knowing, or having reason to believe, that it is an infringing copy; (b) the possession, for commercial purposes, of a copy of a computer program knowing, or having reason to believe, that it is an infringing copy; (c) any act of putting into circulation, or the possession for commercial purposes of, any means the sole intended purpose of which is to facilitate the unauthorised removal or circumvention of any technical device which may have been applied to protect a computer program; 2. Any infringing copy of a computer program shall be liable to seizure in accordance with the legislation of the Member State concerned. 3. Member States may provide for the seizure of any means referred to in point (c) of paragraph 1.” (Art. 7 – Special measures of protection) 21 II – Droit d’Auteur / Copyright Issues II – Databases a) the Berne Convention (from 1886 to 1979) only mentioned that:  “Collections of literary or artistic works such as encyclopaedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections.” (Art. 2(5) – Protected works) b) then, according to the TRIPS Agreement (1994):  “2. Compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself.” (Art. 10 – Computer Programs and Compilations of Data) 22 II – Droit d’Auteur / Copyright Issues c) the same stated the WIPO Copyright Treaty (1996), again:  “Compilations of data or other material, in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations, are protected as such. This protection does not extend to the data or the material itself and is without prejudice to any copyright subsisting in the data or material contained in the compilation.” (Art. 5 – Compilations of Data (Databases)) d) in Europe, a full regulation was made through Directive 96/9/EC, of the European Parliament and of the Council, of 11 March 1996, on the legal protection of databases, as:  “1. This Directive concerns the legal protection of databases in any form. 23 II – Droit d’Auteur / Copyright Issues  2. “For the purposes of this Directive, ‘database’ shall mean a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means. [but] 3. Protection under this Directive shall not apply to computer programs used in the making or operation of databases accessible by electronic means.” (Art. 1 – Compilations of Data (Databases)) for a first, there is Copyright protection, for creative databases, as “1. In accordance with this Directive, databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation shall be protected as such by copyright. No other criteria shall be applied to determine their eligibility for that protection. 2. The copyright protection of databases provided for by this Directive shall not extend to their contents and shall be without prejudice to any rights subsisting in those contents themselves.” (Art. 3 – Object of protection) 24 II – Droit d’Auteur / Copyright Issues   moreover, the regulation of Database authorship (Art. 4), Restricted acts (Art. 5) and Exceptions to restricted acts (Art. 6) are very similar to those regarding computer programs, just adding the option for Member States to provide for other limitations, namely those exceptions traditionally authorized under national laws, and restating the criteria of the “three-step test” (Art. 6(2)(3) but the big novelty, is the introduction of a, so called, “sui generis right”, for “industrial databases”, as “1. Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database. 25 II – Droit d’Auteur / Copyright Issues   so, always inspired by the “three-step test”, “2. A lawful user of a database which is made available to the public in whatever manner may not perform acts which conflict with normal exploitation of the database or unreasonably prejudice the legitimate interests of the maker of the database.” and/or “3. A lawful user of a database which is made available to the public in any manner may not cause prejudice to the holder of a copyright or related right in respect of the works or subject matter contained in the database.” (Art. 8 – Rights and obligations of lawful users) however, “Member States may stipulate that lawful users of a database which is made available to the public in whatever manner may, without the authorization of its maker, extract or re-utilize a substantial part of its contents: (a) in the case of extraction for private purposes of the contents of a non-electronic database; [or] 26 II – Droit d’Auteur / Copyright Issues (b) in the case of extraction for the purposes of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved; [or] (c) in the case of extraction and/or re-utilization for the purposes of public security or an administrative or judicial procedure.” (Art. 9 – Exceptions to the sui generis right)  besides, “1. The right […] shall run from the date of completion of the making of the database. It shall expire fifteen years from the first of January of the year following the date of completion.”, but, if “3. Any substantial change, evaluated qualitatively or quantitatively, to the contents of a database, including any substantial change resulting from the accumulation of successive additions, deletions or alterations, which would result in the database being considered to be a substantial new investment, evaluated qualitatively or quantitatively, shall qualify the database resulting from that investment for its own term of protection.” (Art. 10 – Term of protection) 27 II – Droit d’Auteur / Copyright Issues   finally, “Member States shall provide appropriate remedies in respect of infringements of the rights provided for in this Directive.” (Art. 12 – Remedies) including DRMs, as “1. Member States shall provide adequate legal protection against the circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective.”, “2. […] in respect of works or other subjectmatter, which are not authorised by the rightholder of any copyright or any right related to copyright as provided for by law or the sui generis right provided for in Chapter III of Directive 96/9/EC.” (Art. 6 – Obligations as to technological measures [that are regulated by the InfoSoc Directive] 28