EdX Copyright Online Course - User contributions [en]

How to prepare a Rotisserie session

2009-04-28T02:24:08Z

Avalle2:

This section provide guidance for instructors to prepare new Rotisserie sessions for new classes.

While the self-taught course does not foresee live tutoring or moderation to answer to substantial copyright questions from the learners, the [http://cnx.org/content/col10573/latest/ Rotisserie] platform hosting assignments is meant to ensure sustainable self-training and interactive discussion without administrative or technical intervention during the sessions. However, if desirable, an administrator can modify the Rotisserie deadlines or add more rounds, for instance if one question raises a very interesting discussion that deserves to be continued by more comments.

For more information, please visit the [http://h2o.law.harvard.edu/help/help_overview.jsp Help] section of the Rotisserie.
== Create an account ==

The first thing you should do to join the Rotisserie platform is to create an account, so you will be able to log in to the Copyright for Librarians course Rotisserie project. Follow the instructions to register and create your login:

1. Go to the [http://h2o.law.harvard.edu/index.jsp Rotisserie] website;

2. Click on the link “Register now”;

3. Fill in the form with your personal information or with information about your institution;

3.1 It is important that you fill in the Time Zone space with the following information

4. After filling in the form, select the “Register” button;

5. Read the “General Registration License” and select the button “I accept the policy”;

6. In another window, check your email and read the “Registration Confirmation Email” message sent to the email address that you typed into the form;

7. Using the “Confirmation Key” in the email you received, type in your new password and select the button “Activate Password”.

8. You are logged in and all set to start creating your own Rotisserie. All you got to do is start preparing the questions, or reusing the questions we are providing in this course, and organizing the dates when these questions will be sent to your students and the deadlines they will have to respect to answer to those questions.

== Creating a project ==

1. After having created your account in the [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 Rotisserie], go to the Overview page and select the “Create a project” link;

2. Fill in the form with the project's name, the starting and ending dates, the registration deadline, affiliation and keywords. After having written your project's description and settled your preferences in the project's options section, select the button create a project.

3. Go through the Project Licence Agreement and answer if you agree or not with the terms presented to you;

4. After having prepared your project, it is time to fill in the available sections on the Rotisserie;

== Filling in the Rotisserie and setting up the questions ==

1. The Rotisserie offers many options: project home, syllabus, reading, resources, rotisserie discussions, message boards, and manage project. You may but do not have to use all the options. We choosed to use the Rotisserie discussion option to host answers to assignments.

2. Select each of these topics and click on the Edit links to fill in each page according to what you intend to indicate in your project page.

3. To set up the questions for your course, select “Rotisserie Discussions” and, then, “Add a Rotisserie Discussion”.

4. Select the option Add a Rotisserie Discussion;

5. Fill in the options available in the "Create Rotisserie" section, and create as many rounds of discussions as you want.

6. To select the response type, the type of routing and/or to add a poll for each round, select “Manage”

7. When setting up the schedule for the beginning of the Rotisserie, be aware that once the Rotisserie starts, there is no gap between each round. Whenever a round ends (according to the selected due dates), the next round will begin, launching a new question to the participants e-mails.

8. After having the Rotisserieorganized, select “Create Rotisserie”.

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffcc; margin: 3px 3px 1em 3px;">

'''Quick Access'''

* [http://cnx.org/content/col10573/latest/ Connexions]
* [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 Rotisserie]

'''The textbook modules are available on [http://cnx.org/content/col10573/latest/ Connexions], but can also be accessed on this wiki'''

* '''[[Module 1]]'''
* '''[[Module 2]]'''
* '''[[Module 3]]'''
* '''[[Module 4]]'''
* '''[[Module 5]]'''
* '''[[Module 6]]'''
* '''[[Module 7]]'''

</div>

Information about the Rotisserie Session

2009-04-28T02:22:42Z

Avalle2:

Information about the Rotisserie Session

2009-04-28T02:17:27Z

Avalle2: /* Creating a project */

Information about the Rotisserie Session

2009-04-28T02:14:51Z

Avalle2: /* Filling in the Rotisserieand setting up the questions */

== Rotisserie registration information==

Here you will find registration instructions for you to participate to the online assignments and discussion that will take place in the [http://h2o.law.harvard.edu/index.jsp Rotisserie] when a session is open according to the [http://cyber.law.harvard.edu/copyrightforlibrarians/Calendar calendar]

== Create an account ==

The first thing you should do to join the Rotisserie platform is to create an account, so you will be able to log in to the Copyright for Librarians course Rotisserie project. Follow the instructions to register and create your login:

1. Go to the [http://h2o.law.harvard.edu/index.jsp Rotisserie] website;

[[Image:Im1.png]]

2. Click on the link “Register now”;

[[Image:Im2.png]]

3. Fill in the form with your personal information or with information about your institution;

[[Image:Im3.png]]

3.1 It is important that you fill in the Time Zone space with the following information

4. After filling in the form, select the “Register” button;

[[Image:Ima4.png]]

5. Read the “General Registration License” and select the button “I accept the policy”;

[[Image:Im5.png]]

6. In another window, check your email and read the “Registration Confirmation Email” message sent to the email address that you typed into the form;

[[Image:Im6.png]]

7. Using the “Confirmation Key” in the email you received, type in your new password and select the button “Activate Password”.

[[Image:Imagem10.png]]

8. You are logged in and all set to start creating your own Rotisserie. All you got to do is start preparing the questions, or reusing the questions we are providing in this course, and organizing the dates when these questions will be sent to your students and the deadlines they will have to respect to answer to those questions.

== Creating a project ==

1. After having created your account in the [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 Rotisserie], go to the Overview page and select the “Create a project” link;

[[Image:Imagem9.png]]

2. Fill in the form with the project's name, the starting and ending dates, the registration deadline, affiliation and keywords. After having written your project's description and settled your preferences in the project's options section, select the button create a project.

[[Image:Imagem11.png]]

3. Go through the Project Licence Agreement and answer if you agree or not with the terms presented to you;

[[Image:Imagem12.png]]

4. After having prepared your project, it is time to fill in the available sections on the Rotisserie;

[[Image:Imagem11.png]]

== Join the Copyright for Librarians project ==

1. Once you are logged into the Rotisserie as a registered participant, click on the “Browse projects” link and search for the Copyright for Librarians course project.

The project for the testing by Mortenson Associates is available [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 here].

2. Select the Copyright for Librarians course, [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 here] if you are a Mortenson Associate.

3. Click on the link “Join to this project”.

4. After having proceeded with these steps, you will be part of the Discussion activities of the course. Whenever it is time for you to do homework and contribute to the Rotisserie discussions, you will receive H2O-Rotisserie e-mails giving you a warn.

5. When you receive the H2O-Rotisserie email, you should click on the link that was sent to you in the body of the email, wait for a browser window to open on your screen, login into the [http://h2o.law.harvard.edu/index.jsp Rotisserie] website, and make your contribution to the discussion.

6. The H2O-Rotisserie email will inform you of the deadline. If you fail to answer any of the discussion topics within the stipulated period of time, you will not be able to answer the discussion topic in question.

== Netiquette ==

This is a word that define the way learners should act when communicating on the Internet. We would like to use this space to give you some tips of what to do:

'''Language:''' Please pay attention to the way you address your colleagues and, also, trying to be as clear as possible in your answers, so others can profit from your ideas.

'''Answering questions:''' Try to be as clear as possible and do not post too extensive answers.

'''Sending e-mails:''' We firmly recommend that the learners exchange information and help each other during this online course, as they can be answering the doubts of more than one person.

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffcc; margin: 3px 3px 1em 3px;">

'''Quick Access'''

* [http://cnx.org/content/col10573/latest/ Connexions]
* [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 Rotisserie]

'''The textbook modules are available on [http://cnx.org/content/col10573/latest/ Connexions], but can also be accessed on this wiki'''

* '''[[Module 1]]'''
* '''[[Module 2]]'''
* '''[[Module 3]]'''
* '''[[Module 4]]'''
* '''[[Module 5]]'''
* '''[[Module 6]]'''
* '''[[Module 7]]'''

</div>

Module 6: Creative Approaches and Alternatives

2009-04-28T01:44:12Z

Avalle2:

By Melanie Dulong de Rosnay and William Fisher

== Learning objective ==

Traditional rights management often involves an exclusive assignment of all the rights associated with a copyright from the author to a publisher, who then makes copies and distributes the work to the public for a fee. By contrast, free, libre and open access models disseminate works at no cost for the public. This module describes these alternative approaches, focusing on Creative Commons licensing and Open Access policy for scientific publications.

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffff; margin: 3px 3px 1em 3px;">

== Case study ==

“A professor at our university is the author of one of the articles I want to include in the course pack. However, when I contacted him to request his permission, he answered that he had already transferred all his rights to a publisher and thus wasn’t able to allow me to copy his work. How can it be possible that someone can’t even authorize use of her own work? What could be done to avoid this situation in the future?”

</div>

== Introduction: physical and digital commons ==

While physical objects are scarce, digital resources are non-rivalous goods, which may enjoyed and shared by unlimited numbers of people. Digital technologies are making such sharing easier. Unlike the traditional “all rights reserved” approach, new licensing schemes have been developed to accompany the possibilities offered by the information age in terms of collaboration and creativity. This module will present some of them.

== Free software licenses ==

Most commercial software programs are distributed under restrictive terms of use. Moreover, their source code is not available, so developers cannot study them to understand how they work, to fix bugs or to customize them to their needs.

A radically different approach to disseminating software was first developed by Richard Stallman, a researcher at MIT, who could not obtain permission to modify the software of a printer which was not working properly but which could have been fixed easily. Provoke by this and other experienced, Stallman created the GNU-GPL license, which allow the users to run, copy, distribute, study, change and improve the software to which it is applied – specifically by granting users [http://www.gnu.org/philosophy/free-sw.html/ four kinds of freedoms]:

- “The freedom to run the program for any purpose (freedom 0).

- The freedom to study how the program works, and to adapt it to your needs (freedom 1). Access to the source code is a precondition for this.

- The freedom to redistribute copies so you can help your neighbor (freedom 2).

- The freedom to improve the program, and release your improvements (and modified versions in general) to the public, so that the whole community benefits (freedom 3). Access to the source code is a precondition for this”: modifications must be shared with the same degree of freedom.

Adoption of this approach does not mean that the price of the product must equal zero. Stallman intended the term “free software” to connote “free speech,” not “free beer.” Nevertheless, free software often is free in the usual sense.

What then are the incentives to create software that is released under this license? There are several: fun; altruism (a desire to contribute to then public good); the pleasures of belonging to a community of similarly minded creators; the ability to build one’s reputation as a programmer (and thereby obtain premier programming jobs); and the ability to charge clients for support services and personalized developments. Economists continue to discuss whether incentives of these various sorts are sufficient to sustain a viable business. Meanwhile, businesses relying on this approach are flourishing.

== Creative Commons ==

'''Introduction'''

Creative Commons is a non-profit organization created in 2001 by a group of scholars and activists. The intellectual and organization leader of the organization was Lawrence Lessig, a law professor who litigated the case Eldred vs. Ashcroft, as it was discussed in [[Module 3: The Scope of Copyright Law]].

Creative Commons provides authors convenient ways to authorize specific uses of their works, while retaining control over other uses.

'''The license options'''

Creative Commons offers a set of six licenses, which authors can select online by answering to the following questions on a license selection interface:

[[Image:Imagemcc.png]]

As described at http://creativecommons.org/about/licenses/:

The CC licenses are a combination of one, two or three of the following four elements:

- Attribution (BY): You let others use your work but only if they give credit the way you request.

- Non-Commercial (NC): You let others use your work but for noncommercial purposes only. It does not mean that works cannot be used for commercial purposes, but that a separate license should be negotiated for commercial rights.

- Non Derivative (ND): You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it. The right to make adaptations can be licensed under a separate agreement.

- Share Alike (SA): You allow others to make derivatives from your original work but they should distribute derivative works only under a license identical to the license that governs your work.

The combination of the above elements produces the 6 following licenses:

- Attribution (BY)

This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the
original creation. This is the most accommodating of licenses offered, in terms of what others can do with your works licensed under Attribution.

- Attribution Share Alike (BY SA)
This license lets others remix, tweak, and build upon your work even for commercial reasons, as long as they credit you and license their new creations under the identical terms. This license is often compared to open source software licenses. All new works based on yours will carry the same license, so any derivatives will also allow commercial use.

- Attribution No Derivatives (BY ND)
This license allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to you.

- Attribution Non-Commercial (BY NC)
This license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms.

- Attribution Non-Commercial Share Alike (BY NC SA)
This license lets others remix, tweak, and build upon your work non-commercially, as long as they credit you and license their new creations under the identical terms. Others can download and redistribute your work just like the by-nc-nd license, but they can also translate, make remixes, and produce new stories based on your work. All new work based on yours will carry the same license, so any derivatives will also be non-commercial in nature.

- Attribution Non-Commercial No Derivatives (BY NC ND)
This license is the most restrictive of the six main licenses, allowing redistribution. This license is often called the “free advertising” license because it allows others to download your works and share them with others as long as they mention you and link back to you, but they can’t change them in any way or use them commercially.

By answering the questions on the license selection interface, an author will be directed to the license that best matches his or her preferences. He or she attaches this license to copies of his or her work, thus alerting users to what they can and cannot do. If the work is (or is offered through) a website, the author can do this by adding to the site a piece of html code generates a button with the Creative Commons logo containing a link to the license at issue. An example:

'''Creative Commons licenses formats'''

Each of the CC licenses is available in three formats:

- The machine-readable, or digital code (the metadata embedded in the logo),

- The human readable code, or common deed (a summary explaining the main clauses, with icons corresponding to the elements which have been selected), available from the link embedded in the logo,

- The legal code (a license of several pages written in legal language, detailing the clauses, which are represented by the icons), available from a link at the end of the human readable code.

The owners of the copyrights in works made available through channels other than the Internet can provide potential users similar information, but marking their works with statements like the following: Â« This work is licensed under the Creative Commons [insert description] License. To view a copy of this license, visit [insert url] Â». Offline works do not contain the metadata, and are not identifiable by the Creative Commons search engines.

'''Creative Commons licenses main clauses'''

As indicate above, all Creative Commons licenses authorize the public at least to copy, perform, and distribute the work for free, provided that the original author is properly attributed and that no direct remuneration is received in exchange for the work. License options specify whether a work can or cannot be used for commercial purposes, and if the work may be adapted or only used without modification.

The Attribution license element is not optional; it is included by default in all the licenses. (It was optional in the first version of the licenses, but almost 98% of the users were selecting it on the interface, so Creative Commons decided to make attribution standard, thus reducing the number of licenses.)

The license terms, “Non Derivative” and “Share Alike,” are not compatible and cannot be found in the same license.

All of the licenses are non-exclusive. In other words, authors are free to enter into other agreements with specific users. For example, it is possible for copyright owners who have issued CC licenses to enter into fee-bearing licenses for rights to engage in activities not covered by the CC license in question.

Creative Commons, like the copyright regime as a whole, has no registration system; it merely provides information for authors who wish to license their works on nontraditional terms.

Best practices for marking and crediting works in different formats are available at: http://wiki.creativecommons.org/Marking

'''Creative Commons other projects'''

The [http://creativecommons.org/international/ Creative Commons International] (CCi) team coordinates the process of translating the creative commons licenses into other languages and adapting them to other legal systems – a complex and challenging process. The internationalization process also provides local teams who work in their countries with user communities and governments to increase understanding and use of the system. The local teams also work closely with CC staff to improve the license clauses and material.

Two other divisions of Creative Commons also engage in specialized work: [http://learn.creativecommons.org/ ccLearn] for open educational resources and [http://sciencecommons.org/ Science Commons] for open access to science.

In addition to the licenses, two protocols have been recently developed: CC+ and CC0.

[http://wiki.creativecommons.org/CCPlus/ CC+] (CC “Plus”) is not a license, but technologies for offering users rights beyond the CC license grant -- for instance commercial rights, or additional warranties.

[http://creativecommons.org/publicdomain/ CC0] (CC “Zero”) is a universal waiver of copyright, neighboring and related rights, and sui generis rights. CC0 thus enables authors to place their works in the public domain. CC0 is sometimes known as the “no rights reserved” option.

A possible implementation model for digital libraries would be to propose a combination of:
- CC licenses for works created by librarians: abstracts, comments, photographs, maps, other copyrightable elements of the editorial structure;

- CC licenses for works created by patrons: comments, abstracts, critics, blog posts;

- CC0 licenses for databases of public domain works to which the libraries have added potentially copyrightable material.

'''Implications for authors and for users'''

Authors must consider various questions before deciding to apply Creative Commons licenses to their creations. The licenses are based on copyright, and are thus applicable only to copyrightable works. Authors also should be sure that they have the authority to issue the licenses; they may be obliged to check first with co-authors, authors of pre-existing works, or employers. In many countries, collecting societies require their members to assign all their rights in present and future works to the societies. Thus, members cannot use a Creative Commons licenses, even for some of their works or some of their rights. Many authors do not understand why both systems are not compatible, especially in the music industry. They would like to license their non-commercial rights for free under a Creative Commons license, and assign the management of their commercial rights to a collecting society. This model is possible for some collecting societies in some countries, such as the United States, the Netherlands or Denmark. But other collecting societies do not use the same legal categories as Creative Commons. (For instance, they may not recognize the distinction between commercial and non-commercial uses.) In those countries, authors are currently forced to choose one system or the other.

Creative Commons staff and international affiliates have been talking with collecting societies in hopes of resolving this incompatibility, but some collecting societies and other copyright stakeholders are skeptical of Creative Commons licenses and are thus reluctant to move forward. Here are their principal criticisms:

· The Creative Commons system does not provide creators a way to collect money; creators thus must organize for themselves a way to charge for activities that fall outside the CC license terms.
· Creative Commons does not track infringements and is not authorized to represent licensors in lawsuits or help them enforce the licenses.
· Creative Commons licenses are non-revocable, and the license grant is perpetual. Authors who employ CC licenses thus cannot later change their minds. They can, of course, cease distributing the works or distribute them under different conditions, but this will not affect the rights associated with the copies that are already in circulation.
· There is no central registry or authority to verify that licensors have all the rights they need to use a CC license.
· Determining what does and does not constitute a commercial use is a difficult question; answers may vary among individuals and user communities.
· It is questionable whether jurisdiction-specific licenses, which have been adapted to national legal systems, are really compatible with each other. For instance, some versions of the CC licenses include moral rights or database rights; others do not.

'''The Open Access movement'''

The Open Access (OA) movement proposes to adapt scholarly publishing culture to the web. The movement was provoked by a rapid rise in the price of scientific journals, leading many libraries to cancel journal subscriptions. The movement claims that authors should be able to access freely their colleagues’ research for the benefit of science and the general public. The Budapest Open Access Initiative provides an influencial definition for OA. The most complete and up-to-date resource on Open Access is Peter Suber’s Open Access News.

OA journals offer articles to the public under a Creative Commons “Attribution” license. This is sometimes known as “Gold Open Access.” Such journals typically are accessible for free online. Because they forgo traditional sources of revenue, OA journals must devise alternative business models. Some charge authors. Others rely entirely on voluntary work. A Directory of Open Access Journals (DOAJ) can be found at http://www.doaj.org/

Some journals are not Open Access journals, but authorize the authors of the articles they publish the option to archive versions of their articles in Institutional Repositories set up by their universities. This is sometimes called “Green Open Access.” Journal copyright policies regarding self-archiving are analyzed by the project Sherpa RoMEO: http://www.sherpa.ac.uk/romeo/. More than 50% of pay-journal policies allow their authors to archive their pre-print articles in open access repositories.

Authors who contribute articles to journals that do not routinely allow authors to self-archive their articles on their own websites or in institutional repositories, sometimes request that the journals agree to an addendum to the publishing contract (read more about this on [[Module 2: The international framework]], contracts section), pursuant to which the authors reserve rights needed to self-archive. Several addendum models are available. The Science Commons Scholars’ Copyright Addendum Engine generates one such form.

Funding institutions can facilitate or compel use of one or more of these strategies – by encouraging or requiring grant recipients to make fruits of their projects publicly available. Currently, the National Institutes of Health in the United States, the European Research Council, and the Wellcome Trust in the UK underwrite in various ways the OA approach.

Universities can also help. Harvard University has led the way on this issue. Starting in 2008, the faculties of some schools within Harvard have adopted policies providing that faculty members automatically provide to the university non-exclusive, irrevocable, worldwide license to distribute their scholarly articles for non-commercial uses. A faculty member can override this default rule by obtaining a waiver for a specific article. How many will do so remains to be seen.

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== Back to the case study ==

Angela complains to Nadia that she cannot include in her course pack the article from a colleague because he transferred his rights to the publisher. Nadia informs Angela that some publishers have very strict policies, but that sometimes publishing contracts are in fact less restrictive than some authors may think. Together, they will search for the journal policy to see whether the article could be included and, if so, on what basis. If rights have been exclusively assigned for the publisher’s post-print PDF, perhaps the pre-print or the submitted version can be reused.
Together, they will browse the SHERPA/RoMEO site [link] that “provides a listing of publishers' copyright conditions as they relate to authors archiving their work on-line.”

</div>

== Assignment and discussion questions ==

'''Round 1 questions'''

Choose one of the following:

Question 1. Works from your country are probably available under a Creative Commons license. Use search engines and other directories to locate some documents available under CC licenses that you could help promote and re-distribute.

Question 2. Determine if there are any OA journals published in your country. Make a list suitable for distribution to your patrons.

Question 3. Prepare slides or a one-page handout in your language that you could use to educate librarians and academics concerning the Creative Commons system and OA options. Publish your document online with the Creative Commons license of your choice and send the link to the group. If your library doesn’t have a website, you may use http://www.slideshare.net/

Question 4. How would you design and implement an OA policy in your country?

'''Round 2 question'''

Comment on strategies proposed by your colleagues in response to Round 1 question 4.

File:Imagemcc.png

2009-04-28T01:43:34Z

Avalle2:

Main Page

2009-04-27T23:02:23Z

Avalle2:

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<div style="font-size: 105%; font-weight:bold; padding:0.4em; background-color:#ffffcc; border-bottom:1px solid #ffcc00; text-align: center;">Presentation</div>
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Copyright for Librarians is a project of the [http://cyber.law.harvard.edu/ Berkman Center for Internet & Society] and [http://www.eifl.net/cps/sections/home eIFL] (Electronic Information for Libraries, a consortium of libraries from 50 countries in Africa, Asia and Europe) developing a distance learning curriculum on copyright targeted to librarians.

The course material is licenced under a [http://creativecommons.org/licenses/by/3.0/ Creative Commons Attribution licence] and available in online and offline formats, encouraging communities to re-use, translate and build upon this Open Educational Resource.

The goals of the course are:

*To develop greater understanding of copyright by providing training tailored to the needs of librarians in developing and transition countries;

*To support librarians' mission (participation to the access to knowledge movement);

*To help librarians to answer copyright questions they face during their work;

*To help librarians to answer users questions on their rights (professors, students, general public);

*To empower librarians to advise governments and other public policy makers and initiatives towards balanced copyright law.

After studying the course textbook modules, learners are invited to discuss legal questions and lead comparative legal research, for instance to describe how the international copyright framework applies in their national jurisdiction. An assignment platform is hosting discussion between participants on copyright issues from the perspective of libraries.

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'''Testimonials'''

*'''[[Project: people and process]]'''

*[http://cyber.law.harvard.edu/copyrightforlibrarians/Talk:Main_Page Reviewers, Educators and Participants]
</div>

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<div style="font-size: 105%; font-weight:bold; padding:0.4em; background-color:#ffffcc; border-bottom:1px solid #ffcc00; text-align: center;">User guidelines</div>
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'''Participants: how to follow the course on the platforms'''

'''[[Introduction]]'''

'''[[The textbook modules]]'''
* '''[[Module 1: Copyright and the public domain: an introduction]]'''
* '''[[Module 2: The international framework]]'''
* '''[[Module 3: The Scope of Copyright Law]]'''
* '''[[Module 4: Rights, Exceptions, and Limitations]]'''
* '''[[Module 5: Managing Rights]]'''
* '''[[Module 6: Creative approaches and alternatives]]'''
* '''[[Module 7: Enforcement]]'''
'''[[The assignment and discussion]]'''

* '''[[How to register to the platform]]'''
* '''[[Calendar of study: for each module, read the textbook, complete the assignments, and participate to the discussion]]'''

'''Educators and institutions: how to implement the course'''
* '''[[How to use the Connexions platform to access, edit and repurpose the text book]]'''
* '''[[How to prepare a Rotisserie session]]'''

</div>

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffcc; margin: 3px 3px 1em 3px;">

'''Quick Access'''

* [http://cnx.org/content/col10573/latest/ Connexions]
* [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 Rotisserie]

</div>

How to prepare a Rotisserie session

2009-04-27T04:00:13Z

Avalle2:

This section provide guidance for instructors to prepare new Rotisserie sessions for new classes.

While the self-taught course does not foresee live tutoring or moderation to answer to substantial copyright questions from the learners, the [http://cnx.org/content/col10573/latest/ Rotisserie] platform hosting assignments is meant to ensure sustainable self-training and interactive discussion without administrative or technical intervention during the sessions. However, if desirable, an administrator can modify the Rotisserie deadlines or add more rounds, for instance if one question raises a very interesting discussion that deserves to be continued by more comments.

For more information, please visit the [http://h2o.law.harvard.edu/help/help_overview.jsp Help] section of the Rotisserie.
== Create an account ==

The first thing you should do to join the Rotisserie platform is to create an account, so you will be able to log in to the Copyright for Librarians course Rotisserie project. Follow the instructions to register and create your login:

1. Go to the [http://h2o.law.harvard.edu/index.jsp Rotisserie] website;

[[Image:Im1.png]]

2. Click on the link “Register now”;

[[Image:Im2.png]]

3. Fill in the form with your personal information or with information about your institution;

[[Image:Im3.png]]

3.1 It is important that you fill in the Time Zone space with the following information

4. After filling in the form, select the “Register” button;

[[Image:Ima4.png]]

5. Read the “General Registration License” and select the button “I accept the policy”;

[[Image:Im5.png]]

6. In another window, check your email and read the “Registration Confirmation Email” message sent to the email address that you typed into the form;

[[Image:Im6.png]]

7. Using the “Confirmation Key” in the email you received, type in your new password and select the button “Activate Password”.

[[Image:Imagem10.png]]

8. You are logged in and all set to start creating your own Rotisserie. All you got to do is start preparing the questions, or reusing the questions we are providing in this course, and organizing the dates when these questions will be sent to your students and the deadlines they will have to respect to answer to those questions.

== Creating a project ==

1. After having created your account in the [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 Rotisserie], go to the Overview page and select the “Create a project” link;

[[Image:Imagem9.png]]

2. Fill in the form with the project's name, the starting and ending dates, the registration deadline, affiliation and keywords. After having written your project's description and settled your preferences in the project's options section, select the button create a project.

[[Image:Imagem11.png]]

3. Go through the Project Licence Agreement and answer if you agree or not with the terms presented to you;

[[Image:Imagem12.png]]

4. After having prepared your project, it is time to fill in the available sections on the Rotisserie;

[[Image:Imagem11.png]]

== Filling in the Rotisserie and setting up the questions ==

1. The Rotisserie offers many options: project home, syllabus, reading, resources, rotisserie discussions, message boards, and manage project. You may but do not have to use all the options. We choosed to use the Rotisserie discussion option to host answers to assignments.

[[Image:Imagem13.png]]

2. Select each of these topics and click on the Edit links to fill in each page according to what you intend to indicate in your project page.

[[Image:Imagem14.png]]

3. To set up the questions for your course, select “Rotisserie Discussions” and, then, “Add a Rotisserie Discussion”.

[[Image:Imagem15.png]]

4. Select the option Add a Rotisserie Discussion;

[[Image:Imagem16.png]]

5. Fill in the options available in the "Create Rotisserie" section, and create as many rounds of discussions as you want.

[[Image:Imagem17.png]]

6. To select the response type, the type of routing and/or to add a poll for each round, select “Manage”

[[Image:Imagem18.png]]

7. When setting up the schedule for the beginning of the Rotisserie, be aware that once the Rotisserie starts, there is no gap between each round. Whenever a round ends (according to the selected due dates), the next round will begin, launching a new question to the participants e-mails.

8. After having the Rotisserieorganized, select “Create Rotisserie”.

[[Image:Imagem19.png]]

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffcc; margin: 3px 3px 1em 3px;">

'''Quick Access'''

* [http://cnx.org/content/col10573/latest/ Connexions]
* [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 Rotisserie]

'''The textbook modules are available on [http://cnx.org/content/col10573/latest/ Connexions], but can also be accessed on this wiki'''

* '''[[Module 1]]'''
* '''[[Module 2]]'''
* '''[[Module 3]]'''
* '''[[Module 4]]'''
* '''[[Module 5]]'''
* '''[[Module 6]]'''
* '''[[Module 7]]'''

</div>

How to prepare a Rotisserie session

2009-04-27T03:59:22Z

Avalle2:

This section provide guidance for instructors to prepare new Rotisserie sessions for new classes.

While the self-taught course does not foresee live tutoring or moderation to answer to substantial copyright questions from the learners, the [http://cnx.org/content/col10573/latest/ Rotisserie] platform hosting assignments is meant to ensure sustainable self-training and interactive discussion without administrative or technical intervention during the sessions. However, if desirable, an administrator can modify the Rotisserie deadlines or add more rounds, for instance if one question raises a very interesting discussion that deserves to be continued by more comments.

For more information, please visit the [http://h2o.law.harvard.edu/help/help_overview.jsp Help] section of the Rotisserie.
== Create an account ==

The first thing you should do to join the Rotisserie platform is to create an account, so you will be able to log in to the Copyright for Librarians course Rotisserie project. Follow the instructions to register and create your login:

1. Go to the [http://h2o.law.harvard.edu/index.jsp Rotisserie] website;

[[Image:File.jpg]]

2. Click on the link “Register now”;

[[Image:Imagem5.png]]

3. Fill in the form with your personal information or with information about your institution;

[[Image:Imagem6.png]]

3.1 It is important that you fill in the Time Zone space with the following information

4. After filling in the form, select the “Register” button;

[[Image:Imagem7.png]]

5. Read the “General Registration License” and select the button “I accept the policy”;

[[Image:Imagem8.png]]

6. In another window, check your email and read the “Registration Confirmation Email” message sent to the email address that you typed into the form;

[[Image:Imagem9.png]]

7. Using the “Confirmation Key” in the email you received, type in your new password and select the button “Activate Password”.

[[Image:Imagem10.png]]

8. You are logged in and all set to start creating your own Rotisserie. All you got to do is start preparing the questions, or reusing the questions we are providing in this course, and organizing the dates when these questions will be sent to your students and the deadlines they will have to respect to answer to those questions.

== Creating a project ==

1. After having created your account in the [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 Rotisserie], go to the Overview page and select the “Create a project” link;

[[Image:Imagem9.png]]

2. Fill in the form with the project's name, the starting and ending dates, the registration deadline, affiliation and keywords. After having written your project's description and settled your preferences in the project's options section, select the button create a project.

[[Image:Imagem11.png]]

3. Go through the Project Licence Agreement and answer if you agree or not with the terms presented to you;

[[Image:Imagem12.png]]

4. After having prepared your project, it is time to fill in the available sections on the Rotisserie;

[[Image:Imagem11.png]]

== Filling in the Rotisserie and setting up the questions ==

1. The Rotisserie offers many options: project home, syllabus, reading, resources, rotisserie discussions, message boards, and manage project. You may but do not have to use all the options. We choosed to use the Rotisserie discussion option to host answers to assignments.

[[Image:Imagem13.png]]

2. Select each of these topics and click on the Edit links to fill in each page according to what you intend to indicate in your project page.

[[Image:Imagem14.png]]

3. To set up the questions for your course, select “Rotisserie Discussions” and, then, “Add a Rotisserie Discussion”.

[[Image:Imagem15.png]]

4. Select the option Add a Rotisserie Discussion;

[[Image:Imagem16.png]]

5. Fill in the options available in the "Create Rotisserie" section, and create as many rounds of discussions as you want.

[[Image:Imagem17.png]]

6. To select the response type, the type of routing and/or to add a poll for each round, select “Manage”

[[Image:Imagem18.png]]

7. When setting up the schedule for the beginning of the Rotisserie, be aware that once the Rotisserie starts, there is no gap between each round. Whenever a round ends (according to the selected due dates), the next round will begin, launching a new question to the participants e-mails.

8. After having the Rotisserieorganized, select “Create Rotisserie”.

[[Image:Imagem19.png]]

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffcc; margin: 3px 3px 1em 3px;">

'''Quick Access'''

* [http://cnx.org/content/col10573/latest/ Connexions]
* [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 Rotisserie]

'''The textbook modules are available on [http://cnx.org/content/col10573/latest/ Connexions], but can also be accessed on this wiki'''

* '''[[Module 1]]'''
* '''[[Module 2]]'''
* '''[[Module 3]]'''
* '''[[Module 4]]'''
* '''[[Module 5]]'''
* '''[[Module 6]]'''
* '''[[Module 7]]'''

</div>

Introduction

2009-04-27T03:58:01Z

Avalle2:

This website, the Copyright for Librarians wiki, works as the central connection in which you will be able to access all the information that will support you during the course.
This hub explains how this online course is going to work, what is the calendar for any open sessions of the course, on which platforms you will find the information you need, etc.
Whenever you need assistance, you need to come to the wiki to be guided to the correct places!

'''The Copyright for Librarians Distance Learning Course consists of:'''

(1) self-taught course modules hosted on [http://cnx.org/content/col10573/latest/ Connexions] which can be studied online or printed on demand at any time, and

(2) assignments hosted on the [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 Rotisserie], a platform for online discussion which can be programmed in advance for future open or closed sessions of questions, answers and group discussion.

'''Course material consists of:'''

(1) the textbook modules,

(2) assignments under the form of a set of questions to be answered after studying the modules, and

(3) user guidelines accessible on this website.

'''Sessions'''

This website gathers all the material needed to follow the course modules as a learner, and to implement it as an institution.

Institutions and learners may create pages for each new class or Rotisserie session, with a [[calendar]] for the study and the assignments and an open space for learners and instructors' names, emails and comments.

The first thing you should do to get started as a learner or a teacher is to read this wiki and explore the platforms [http://cnx.org/content/col10573/latest/ Connexions] and [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 Rotisserie], in order to understand how the course is organized, what are the tools involved in this learning process, and decide how you will to use these resources.

You may read some or all of the textbook modules hosted on [http://cnx.org/content/col10573/latest/ Connexions].

You may complement the textbook resource with assignments, research questions and participation to online group discussion, if a session has been open on the Rotisserie and is available in the [http://cyber.law.harvard.edu/copyrightforlibrarians/Calendar calendar] section of this website.

As an instructor, you can create a [http://cyber.law.harvard.edu/copyrightforlibrarians/How_to_prepare_a_Rotisserie_session new session]at any time by reusing the questions we provide, you may also update your own questions or use other distance learning platforms.

As a student, you should register to a Rotisserie [http://cyber.law.harvard.edu/copyrightforlibrarians/Participate_on_the_Rotisserie_when_a_session_has_been_open session] in order to receive assignment questions by email according to a calendar which will have been programmed in advance.

Please note that [http://h2o.law.harvard.edu/index.jsp/ Rotisserie] sessions are not moderated by the authors of the textbook, and that neither the [http://cyber.law.harvard.edu// Berkman Center] or [http://www.harvard.edu// Harvard University] will be able to provide any tutoring, evaluation, diplom or certificate to registered students. These tasks and services may be provided by any other institution willing to implement this course.

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffcc; margin: 3px 3px 1em 3px;">

'''Quick Access'''

* [http://cnx.org/content/col10573/latest/ Connexions]
* [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 Rotisserie]

'''The textbook modules are available on [http://cnx.org/content/col10573/latest/ Connexions], but can also be accessed on this wiki'''

* '''[[Module 1]]'''
* '''[[Module 2]]'''
* '''[[Module 3]]'''
* '''[[Module 4]]'''
* '''[[Module 5]]'''
* '''[[Module 6]]'''
* '''[[Module 7]]'''

</div>

Information about the Rotisserie Session

2009-04-27T03:55:34Z

Avalle2:

== Rotisserie registration information==

Here you will find registration instructions for you to participate to the online assignments and discussion that will take place in the [http://h2o.law.harvard.edu/index.jsp Rotisserie] when a session is open according to the [http://cyber.law.harvard.edu/copyrightforlibrarians/Calendar calendar]

== Create an account ==

The first thing you should do to join the Rotisserie platform is to create an account, so you will be able to log in to the Copyright for Librarians course Rotisserie project. Follow the instructions to register and create your login:

1. Go to the [http://h2o.law.harvard.edu/index.jsp Rotisserie] website;

[[Image:Im1.png]]

2. Click on the link “Register now”;

[[Image:Im2.png]]

3. Fill in the form with your personal information or with information about your institution;

[[Image:Im3.png]]

3.1 It is important that you fill in the Time Zone space with the following information

4. After filling in the form, select the “Register” button;

[[Image:Ima4.png]]

5. Read the “General Registration License” and select the button “I accept the policy”;

[[Image:Im5.png]]

6. In another window, check your email and read the “Registration Confirmation Email” message sent to the email address that you typed into the form;

[[Image:Im6.png]]

7. Using the “Confirmation Key” in the email you received, type in your new password and select the button “Activate Password”.

[[Image:Imagem10.png]]

8. You are logged in and all set to start creating your own Rotisserie. All you got to do is start preparing the questions, or reusing the questions we are providing in this course, and organizing the dates when these questions will be sent to your students and the deadlines they will have to respect to answer to those questions.

== Creating a project ==

1. After having created your account in the [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 Rotisserie], go to the Overview page and select the “Create a project” link;

[[Image:Imagem9.png]]

2. Fill in the form with the project's name, the starting and ending dates, the registration deadline, affiliation and keywords. After having written your project's description and settled your preferences in the project's options section, select the button create a project.

[[Image:Imagem11.png]]

3. Go through the Project Licence Agreement and answer if you agree or not with the terms presented to you;

[[Image:Imagem12.png]]

4. After having prepared your project, it is time to fill in the available sections on the Rotisserie;

[[Image:Imagem11.png]]

== Filling in the Rotisserieand setting up the questions ==

1. The Rotisserie offers many options: project home, syllabus, reading, resources, rotisserie discussions, message boards, and manage project. You may but do not have to use all the options. We choosed to use the Rotisserie discussion option to host answers to assignments.

[[Image:Imagem13.png]]

2. Select each of these topics and click on the Edit links to fill in each page according to what you intend to indicate in your project page.

[[Image:Imagem14.png]]

3. To set up the questions for your course, select “Rotisserie Discussions” and, then, “Add a Rotisserie Discussion”.

[[Image:Imagem15.png]]

4. Select the option Add a Rotisserie Discussion;

[[Image:Imagem16.png]]

5. Fill in the options available in the "Create Rotisserie" section, and create as many rounds of discussions as you want.

[[Image:Imagem17.png]]

6. To select the response type, the type of routing and/or to add a poll for each round, select “Manage”

[[Image:Imagem18.png]]

7. When setting up the schedule for the beginning of the Rotisserie, be aware that once the Rotisserie starts, there is no gap between each round. Whenever a round ends (according to the selected due dates), the next round will begin, launching a new question to the participants e-mails.

8. After having the Rotisserieorganized, select “Create Rotisserie”.

[[Image:Imagem19.png]]

== Join the Copyright for Librarians project ==

1. Once you are logged into the Rotisserie as a registered participant, click on the “Browse projects” link and search for the Copyright for Librarians course project.

The project for the testing by Mortenson Associates is available [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 here].

2. Select the Copyright for Librarians course, [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 here] if you are a Mortenson Associate.

3. Click on the link “Join to this project”.

4. After having proceeded with these steps, you will be part of the Discussion activities of the course. Whenever it is time for you to do homework and contribute to the Rotisserie discussions, you will receive H2O-Rotisserie e-mails giving you a warn.

5. When you receive the H2O-Rotisserie email, you should click on the link that was sent to you in the body of the email, wait for a browser window to open on your screen, login into the [http://h2o.law.harvard.edu/index.jsp Rotisserie] website, and make your contribution to the discussion.

6. The H2O-Rotisserie email will inform you of the deadline. If you fail to answer any of the discussion topics within the stipulated period of time, you will not be able to answer the discussion topic in question.

== Netiquette ==

This is a word that define the way learners should act when communicating on the Internet. We would like to use this space to give you some tips of what to do:

'''Language:''' Please pay attention to the way you address your colleagues and, also, trying to be as clear as possible in your answers, so others can profit from your ideas.

'''Answering questions:''' Try to be as clear as possible and do not post too extensive answers.

'''Sending e-mails:''' We firmly recommend that the learners exchange information and help each other during this online course, as they can be answering the doubts of more than one person.

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffcc; margin: 3px 3px 1em 3px;">

'''Quick Access'''

* [http://cnx.org/content/col10573/latest/ Connexions]
* [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 Rotisserie]

'''The textbook modules are available on [http://cnx.org/content/col10573/latest/ Connexions], but can also be accessed on this wiki'''

* '''[[Module 1]]'''
* '''[[Module 2]]'''
* '''[[Module 3]]'''
* '''[[Module 4]]'''
* '''[[Module 5]]'''
* '''[[Module 6]]'''
* '''[[Module 7]]'''

</div>

Information about the Rotisserie Session

2009-04-27T03:50:53Z

Avalle2:

== Rotisserie registration information==

Here you will find registration instructions for you to participate to the online assignments and discussion that will take place in the [http://h2o.law.harvard.edu/index.jsp Rotisserie] when a session is open according to the [http://cyber.law.harvard.edu/copyrightforlibrarians/Calendar calendar]

== Create an account ==

The first thing you should do to join the Rotisserie platform is to create an account, so you will be able to log in to the Copyright for Librarians course Rotisserie project. Follow the instructions to register and create your login:

1. Go to the [http://h2o.law.harvard.edu/index.jsp Rotisserie] website;

[[Image:Im1.png]]

2. Click on the link “Register now”;

[[Image:Im2.png]]

3. Fill in the form with your personal information or with information about your institution;

[[Image:Im3.png]]

3.1 It is important that you fill in the Time Zone space with the following information

4. After filling in the form, select the “Register” button;

[[Image:Ima4.png]]

5. Read the “General Registration License” and select the button “I accept the policy”;

[[Image:Im5.png]]

6. In another window, check your email and read the “Registration Confirmation Email” message sent to the email address that you typed into the form;

[[Image:Im6.png]]

7. Using the “Confirmation Key” in the email you received, type in your new password and select the button “Activate Password”.

[[Image:Imagem10.png]]

8. You are logged in and all set to start creating your own Rotisserie. All you got to do is start preparing the questions, or reusing the questions we are providing in this course, and organizing the dates when these questions will be sent to your students and the deadlines they will have to respect to answer to those questions.

== Creating a project ==

1. After having created your account in the [http://h2o.law.harvard.edu/ViewProject.do?projectID=949 Rotisserie], go to the Overview page and select the “Create a project” link;

[[Image:Imagem9.png]]

2. Fill in the form with the project's name, the starting and ending dates, the registration deadline, affiliation and keywords. After having written your project's description and settled your preferences in the project's options section, select the button create a project.

[[Image:Imagem11.png]]

3. Go through the Project Licence Agreement and answer if you agree or not with the terms presented to you;

[[Image:Imagem12.png]]

4. After having prepared your project, it is time to fill in the available sections on the Rotisserie;

[[Image:Imagem11.png]]

== Filling in the Rotisserieand setting up the questions ==

1. The Rotisserie offers many options: project home, syllabus, reading, resources, rotisserie discussions, message boards, and manage project. You may but do not have to use all the options. We choosed to use the Rotisserie discussion option to host answers to assignments.

[[Image:Imagem13.png]]

2. Select each of these topics and click on the Edit links to fill in each page according to what you intend to indicate in your project page.

[[Image:Imagem14.png]]

3. To set up the questions for your course, select “Rotisserie Discussions” and, then, “Add a Rotisserie Discussion”.

[[Image:Imagem15.png]]

4. Select the option Add a Rotisserie Discussion;

[[Image:Imagem16.png]]

5. Fill in the options available in the "Create Rotisserie" section, and create as many rounds of discussions as you want.

[[Image:Imagem17.png]]

6. To select the response type, the type of routing and/or to add a poll for each round, select “Manage”

[[Image:Imagem18.png]]

7. When setting up the schedule for the beginning of the Rotisserie, be aware that once the Rotisserie starts, there is no gap between each round. Whenever a round ends (according to the selected due dates), the next round will begin, launching a new question to the participants e-mails.

8. After having the Rotisserieorganized, select “Create Rotisserie”.

[[Image:Imagem19.png]]

== Join the Copyright for Librarians project ==

1. Once you are logged into the Rotisserie as a registered participant, click on the “Browse projects” link and search for the Copyright for Librarians course project.

The project for the testing by Mortenson Associates is available [http://h2o.law.harvard.edu/ViewProjectRotisseries.do?projectId=949 here].

2. Select the Copyright for Librarians course, [http://h2o.law.harvard.edu/ViewProjectRotisseries.do?projectId=949 here] if you are a Mortenson Associate.

3. Click on the link “Join to this project”.

4. After having proceeded with these steps, you will be part of the Discussion activities of the course. Whenever it is time for you to do homework and contribute to the Rotisserie discussions, you will receive H2O-Rotisserie e-mails giving you a warn.

5. When you receive the H2O-Rotisserie email, you should click on the link that was sent to you in the body of the email, wait for a browser window to open on your screen, login into the [http://h2o.law.harvard.edu/index.jsp Rotisserie] website, and make your contribution to the discussion.

6. The H2O-Rotisserie email will inform you of the deadline. If you fail to answer any of the discussion topics within the stipulated period of time, you will not be able to answer the discussion topic in question.

== Netiquette ==

This is a word that define the way learners should act when communicating on the Internet. We would like to use this space to give you some tips of what to do:

'''Language:''' Please pay attention to the way you address your colleagues and, also, trying to be as clear as possible in your answers, so others can profit from your ideas.

'''Answering questions:''' Try to be as clear as possible and do not post too extensive answers.

'''Sending e-mails:''' We firmly recommend that the learners exchange information and help each other during this online course, as they can be answering the doubts of more than one person.

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffcc; margin: 3px 3px 1em 3px;">

'''Quick Access'''

* [http://cnx.org/content/col10573/latest/ Connexions]
* [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 Rotisserie]

'''The textbook modules are available on [http://cnx.org/content/col10573/latest/ Connexions], but can also be accessed on this wiki'''

* '''[[Module 1]]'''
* '''[[Module 2]]'''
* '''[[Module 3]]'''
* '''[[Module 4]]'''
* '''[[Module 5]]'''
* '''[[Module 6]]'''
* '''[[Module 7]]'''

</div>

Introduction

2009-04-27T03:48:38Z

Avalle2:

This website, the Copyright for Librarians wiki, works as the central connection in which you will be able to access all the information that will support you during the course.
This hub explains how this online course is going to work, what is the calendar for any open sessions of the course, on which platforms you will find the information you need, etc.
Whenever you need assistance, you need to come to the wiki to be guided to the correct places!

'''The Copyright for Librarians Distance Learning Course consists of:'''

(1) self-taught course modules hosted on [http://cnx.org/content/col10573/latest/ Connexions] which can be studied online or printed on demand at any time, and

(2) assignments hosted on the [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 Rotisserie], a platform for online discussion which can be programmed in advance for future open or closed sessions of questions, answers and group discussion.

'''Course material consists of:'''

(1) the textbook modules,

(2) assignments under the form of a set of questions to be answered after studying the modules, and

(3) user guidelines accessible on this website.

'''Sessions'''

This website gathers all the material needed to follow the course modules as a learner, and to implement it as an institution.

Institutions and learners may create pages for each new class or Rotisserie session, with a [[calendar]] for the study and the assignments and an open space for learners and instructors' names, emails and comments.

The first thing you should do to get started as a learner or a teacher is to read this wiki and explore the platforms [http://cnx.org/content/col10573/latest/ Connexions] and [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 Rotisserie], in order to understand how the course is organized, what are the tools involved in this learning process, and decide how you will to use these resources.

You may read some or all of the textbook modules hosted on [http://h2o.law.harvard.edu/ViewProject.do?projectID=949 Connexions].

You may complement the textbook resource with assignments, research questions and participation to online group discussion, if a session has been open on the Rotisserie and is available in the [http://cyber.law.harvard.edu/copyrightforlibrarians/Calendar calendar] section of this website.

As an instructor, you can create a [http://cyber.law.harvard.edu/copyrightforlibrarians/How_to_prepare_a_Rotisserie_session new session]at any time by reusing the questions we provide, you may also update your own questions or use other distance learning platforms.

As a student, you should register to a Rotisserie [http://cyber.law.harvard.edu/copyrightforlibrarians/Participate_on_the_Rotisserie_when_a_session_has_been_open session] in order to receive assignment questions by email according to a calendar which will have been programmed in advance.

Please note that [http://h2o.law.harvard.edu/index.jsp/ Rotisserie] sessions are not moderated by the authors of the textbook, and that neither the [http://cyber.law.harvard.edu// Berkman Center] or [http://www.harvard.edu// Harvard University] will be able to provide any tutoring, evaluation, diplom or certificate to registered students. These tasks and services may be provided by any other institution willing to implement this course.

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffcc; margin: 3px 3px 1em 3px;">

'''Quick Access'''

* [http://cnx.org/content/col10573/latest/ Connexions]
* [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 Rotisserie]

'''The textbook modules are available on [http://cnx.org/content/col10573/latest/ Connexions], but can also be accessed on this wiki'''

* '''[[Module 1]]'''
* '''[[Module 2]]'''
* '''[[Module 3]]'''
* '''[[Module 4]]'''
* '''[[Module 5]]'''
* '''[[Module 6]]'''
* '''[[Module 7]]'''

</div>

How to prepare a Rotisserie session

2009-04-27T03:46:51Z

Avalle2:

This section provide guidance for instructors to prepare new Rotisserie sessions for new classes.

While the self-taught course does not foresee live tutoring or moderation to answer to substantial copyright questions from the learners, the [http://cnx.org/content/col10573/latest/ Rotisserie] platform hosting assignments is meant to ensure sustainable self-training and interactive discussion without administrative or technical intervention during the sessions. However, if desirable, an administrator can modify the Rotisserie deadlines or add more rounds, for instance if one question raises a very interesting discussion that deserves to be continued by more comments.

For more information, please visit the [http://h2o.law.harvard.edu/help/help_overview.jsp Help] section of the Rotisserie.
== Create an account ==

The first thing you should do to join the Rotisserie platform is to create an account, so you will be able to log in to the Copyright for Librarians course Rotisserie project. Follow the instructions to register and create your login:

1. Go to the [http://h2o.law.harvard.edu/index.jsp Rotisserie] website;

[[Image:File.jpg]]

2. Click on the link “Register now”;

[[Image:Imagem5.png]]

3. Fill in the form with your personal information or with information about your institution;

[[Image:Imagem6.png]]

3.1 It is important that you fill in the Time Zone space with the following information

4. After filling in the form, select the “Register” button;

[[Image:Imagem7.png]]

5. Read the “General Registration License” and select the button “I accept the policy”;

[[Image:Imagem8.png]]

6. In another window, check your email and read the “Registration Confirmation Email” message sent to the email address that you typed into the form;

[[Image:Imagem9.png]]

7. Using the “Confirmation Key” in the email you received, type in your new password and select the button “Activate Password”.

[[Image:Imagem10.png]]

8. You are logged in and all set to start creating your own Rotisserie. All you got to do is start preparing the questions, or reusing the questions we are providing in this course, and organizing the dates when these questions will be sent to your students and the deadlines they will have to respect to answer to those questions.

== Creating a project ==

1. After having created your account in the [http://h2o.law.harvard.edu/ViewProject.do?projectID=949 Rotisserie], go to the Overview page and select the “Create a project” link;

[[Image:Imagem9.png]]

2. Fill in the form with the project's name, the starting and ending dates, the registration deadline, affiliation and keywords. After having written your project's description and settled your preferences in the project's options section, select the button create a project.

[[Image:Imagem11.png]]

3. Go through the Project Licence Agreement and answer if you agree or not with the terms presented to you;

[[Image:Imagem12.png]]

4. After having prepared your project, it is time to fill in the available sections on the Rotisserie;

[[Image:Imagem11.png]]

== Filling in the Rotisserie and setting up the questions ==

1. The Rotisserie offers many options: project home, syllabus, reading, resources, rotisserie discussions, message boards, and manage project. You may but do not have to use all the options. We choosed to use the Rotisserie discussion option to host answers to assignments.

[[Image:Imagem13.png]]

2. Select each of these topics and click on the Edit links to fill in each page according to what you intend to indicate in your project page.

[[Image:Imagem14.png]]

3. To set up the questions for your course, select “Rotisserie Discussions” and, then, “Add a Rotisserie Discussion”.

[[Image:Imagem15.png]]

4. Select the option Add a Rotisserie Discussion;

[[Image:Imagem16.png]]

5. Fill in the options available in the "Create Rotisserie" section, and create as many rounds of discussions as you want.

[[Image:Imagem17.png]]

6. To select the response type, the type of routing and/or to add a poll for each round, select “Manage”

[[Image:Imagem18.png]]

7. When setting up the schedule for the beginning of the Rotisserie, be aware that once the Rotisserie starts, there is no gap between each round. Whenever a round ends (according to the selected due dates), the next round will begin, launching a new question to the participants e-mails.

8. After having the Rotisserieorganized, select “Create Rotisserie”.

[[Image:Imagem19.png]]

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffcc; margin: 3px 3px 1em 3px;">

'''Quick Access'''

* [http://cnx.org/content/col10573/latest/ Connexions]
* [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 Rotisserie]

'''The textbook modules are available on [http://cnx.org/content/col10573/latest/ Connexions], but can also be accessed on this wiki'''

* '''[[Module 1]]'''
* '''[[Module 2]]'''
* '''[[Module 3]]'''
* '''[[Module 4]]'''
* '''[[Module 5]]'''
* '''[[Module 6]]'''
* '''[[Module 7]]'''

</div>

EdX Copyright Online Course:People and process

2009-04-27T03:45:40Z

Avalle2:

This page will host testimonials of experts who helped to shape the course.

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffcc; margin: 3px 3px 1em 3px;">

'''Quick Access'''

* [http://cnx.org/content/col10573/latest/ Connexions]
* [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 Rotisserie]

'''The textbook modules are available on [http://cnx.org/content/col10573/latest/ Connexions], but can also be accessed on this wiki'''

* '''[[Module 1]]'''
* '''[[Module 2]]'''
* '''[[Module 3]]'''
* '''[[Module 4]]'''
* '''[[Module 5]]'''
* '''[[Module 6]]'''
* '''[[Module 7]]'''

</div>

Main Page

2009-04-27T03:45:12Z

Avalle2:

__NOEDITSECTION__
{| style="border:0; margin: 0;" width="100%" cellspacing="4"
| valign="top" style="width:55%; padding:0; border:1px solid #ffcc00; margin-bottom:3px;" |
<div style="font-size: 105%; font-weight:bold; padding:0.4em; background-color:#ffffcc; border-bottom:1px solid #ffcc00; text-align: center;">Presentation</div>
<div style="background:#ffffff; padding:0.2em 0.4em 0.2em 0.4em;">
{| style="border: 0; margin: 0;" cellpadding="3"
| valign="top" |
Copyright for Librarians is a project of the [http://cyber.law.harvard.edu/ Berkman Center for Internet & Society] and [http://www.eifl.net/cps/sections/home eIFL] (Electronic Information for Libraries, a consortium of libraries from 50 countries in Africa, Asia and Europe) developing a distance learning curriculum on copyright targeted to librarians.

The course material is licenced under a [http://creativecommons.org/licenses/by/3.0/ Creative Commons Attribution licence] and available in online and offline formats, encouraging communities to re-use, translate and build upon this Open Educational Resource.

The goals of the course are:

*To develop greater understanding of copyright by providing training tailored to the needs of librarians in developing and transition countries;

*To support librarians' mission (participation to the access to knowledge movement);

*To help librarians to answer copyright questions they face during their work;

*To help librarians to answer users questions on their rights (professors, students, general public);

*To empower librarians to advise governments and other public policy makers and initiatives towards balanced copyright law.

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffcc; margin: 3px 3px 1em 3px;">

'''Testimonials'''

*'''[[Project: people and process]]'''

*[http://cyber.law.harvard.edu/copyrightforlibrarians/Talk:Main_Page Reviewers, Educators and Participants]
</div>

|}
</div>
| valign="top" style="width:40%; padding:0; border:1px solid #ffcc00; margin-bottom:3px;" |
<div style="font-size: 105%; font-weight:bold; padding:0.4em; background-color:#ffffcc; border-bottom:1px solid #ffcc00; text-align: center;">Useful links</div>
<div style="background:#ffffff; padding:0.2em 0.4em 0.2em 0.4em;">
{| style="border: 0; margin: 0;" cellpadding="3"
| valign="top" |

'''[[Introduction]]'''

'''[[How to get started with the platforms]]'''

'''[[The textbook modules]]'''
* '''[[Module 1: Copyright and the public domain: an introduction]]'''
* '''[[Module 2: The international framework]]'''
* '''[[Module 3: The Scope of Copyright Law]]'''
* '''[[Module 4: Rights, Exceptions, and Limitations]]'''
* '''[[Module 5: Managing Rights]]'''
* '''[[Module 6: Creative approaches and alternatives]]'''
* '''[[Module 7: Enforcement]]'''
'''[[The assignment and discussion]]'''

* '''[[How to register to the platform]]'''
* '''[[Calendar of study: for each module, read the textbook, complete the assignments, and participate to the discussion]]'''

|}
</div>
|}

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffcc; margin: 3px 3px 1em 3px;">

'''Educators and institutions: how to implement this course'''
* '''[[How to use the Connexions platform to access, edit and repurpose the text book]]'''
* '''[[How to prepare a Rotisserie session]]'''

</div>

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffcc; margin: 3px 3px 1em 3px;">

'''Quick Access'''

* [http://cnx.org/content/col10573/latest/ Connexions]
* [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 Rotisserie]

</div>

Module 6: Creative Approaches and Alternatives

2009-04-27T03:28:06Z

Avalle2:

By Melanie Dulong de Rosnay and William Fisher

== Learning objective ==

Traditional rights management often involves an exclusive assignment of all the rights associated with a copyright from the author to a publisher, who then makes copies and distributes the work to the public for a fee. By contrast, free, libre and open access models disseminate works at no cost for the public. This module describes these alternative approaches, focusing on Creative Commons licensing and Open Access policy for scientific publications.

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffff; margin: 3px 3px 1em 3px;">

== Case study ==

“A professor at our university is the author of one of the articles I want to include in the course pack. However, when I contacted him to request his permission, he answered that he had already transferred all his rights to a publisher and thus wasn’t able to allow me to copy his work. How can it be possible that someone can’t even authorize use of her own work? What could be done to avoid this situation in the future?”

</div>

== Introduction: physical and digital commons ==

While physical objects are scarce, digital resources are non-rivalous goods, which may enjoyed and shared by unlimited numbers of people. Digital technologies are making such sharing easier. Unlike the traditional “all rights reserved” approach, new licensing schemes have been developed to accompany the possibilities offered by the information age in terms of collaboration and creativity. This module will present some of them.

== Free software licenses ==

Most commercial software programs are distributed under restrictive terms of use. Moreover, their source code is not available, so developers cannot study them to understand how they work, to fix bugs or to customize them to their needs.

A radically different approach to disseminating software was first developed by Richard Stallman, a researcher at MIT, who could not obtain permission to modify the software of a printer which was not working properly but which could have been fixed easily. Provoke by this and other experienced, Stallman created the GNU-GPL license, which allow the users to run, copy, distribute, study, change and improve the software to which it is applied – specifically by granting users [http://www.gnu.org/philosophy/free-sw.html/ four kinds of freedoms]:

- “The freedom to run the program for any purpose (freedom 0).

- The freedom to study how the program works, and to adapt it to your needs (freedom 1). Access to the source code is a precondition for this.

- The freedom to redistribute copies so you can help your neighbor (freedom 2).

- The freedom to improve the program, and release your improvements (and modified versions in general) to the public, so that the whole community benefits (freedom 3). Access to the source code is a precondition for this”: modifications must be shared with the same degree of freedom.

Adoption of this approach does not mean that the price of the product must equal zero. Stallman intended the term “free software” to connote “free speech,” not “free beer.” Nevertheless, free software often is free in the usual sense.

What then are the incentives to create software that is released under this license? There are several: fun; altruism (a desire to contribute to then public good); the pleasures of belonging to a community of similarly minded creators; the ability to build one’s reputation as a programmer (and thereby obtain premier programming jobs); and the ability to charge clients for support services and personalized developments. Economists continue to discuss whether incentives of these various sorts are sufficient to sustain a viable business. Meanwhile, businesses relying on this approach are flourishing.

== Creative Commons ==

'''Introduction'''

Creative Commons is a non-profit organization created in 2001 by a group of scholars and activists. The intellectual and organization leader of the organization was Lawrence Lessig, a law professor who litigated the case Eldred vs. Ashcroft, as it was discussed in [[Module 3: The Scope of Copyright Law]].

Creative Commons provides authors convenient ways to authorize specific uses of their works, while retaining control over other uses.

'''The license options'''

Creative Commons offers a set of six licenses, which authors can select online by answering to the following questions on a license selection interface:

[[Image:final1.png]]

As described at http://creativecommons.org/about/licenses/:

The CC licenses are a combination of one, two or three of the following four elements:

- Attribution (BY): You let others use your work but only if they give credit the way you request.

- Non-Commercial (NC): You let others use your work but for noncommercial purposes only. It does not mean that works cannot be used for commercial purposes, but that a separate license should be negotiated for commercial rights.

- Non Derivative (ND): You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it. The right to make adaptations can be licensed under a separate agreement.

- Share Alike (SA): You allow others to make derivatives from your original work but they should distribute derivative works only under a license identical to the license that governs your work.

The combination of the above elements produces the 6 following licenses:

- Attribution (BY)

This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the
original creation. This is the most accommodating of licenses offered, in terms of what others can do with your works licensed under Attribution.

- Attribution Share Alike (BY SA)
This license lets others remix, tweak, and build upon your work even for commercial reasons, as long as they credit you and license their new creations under the identical terms. This license is often compared to open source software licenses. All new works based on yours will carry the same license, so any derivatives will also allow commercial use.

- Attribution No Derivatives (BY ND)
This license allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to you.

- Attribution Non-Commercial (BY NC)
This license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms.

- Attribution Non-Commercial Share Alike (BY NC SA)
This license lets others remix, tweak, and build upon your work non-commercially, as long as they credit you and license their new creations under the identical terms. Others can download and redistribute your work just like the by-nc-nd license, but they can also translate, make remixes, and produce new stories based on your work. All new work based on yours will carry the same license, so any derivatives will also be non-commercial in nature.

- Attribution Non-Commercial No Derivatives (BY NC ND)
This license is the most restrictive of the six main licenses, allowing redistribution. This license is often called the “free advertising” license because it allows others to download your works and share them with others as long as they mention you and link back to you, but they can’t change them in any way or use them commercially.

By answering the questions on the license selection interface, an author will be directed to the license that best matches his or her preferences. He or she attaches this license to copies of his or her work, thus alerting users to what they can and cannot do. If the work is (or is offered through) a website, the author can do this by adding to the site a piece of html code generates a button with the Creative Commons logo containing a link to the license at issue. An example:

'''Creative Commons licenses formats'''

Each of the CC licenses is available in three formats:

- The machine-readable, or digital code (the metadata embedded in the logo),

- The human readable code, or common deed (a summary explaining the main clauses, with icons corresponding to the elements which have been selected), available from the link embedded in the logo,

- The legal code (a license of several pages written in legal language, detailing the clauses, which are represented by the icons), available from a link at the end of the human readable code.

The owners of the copyrights in works made available through channels other than the Internet can provide potential users similar information, but marking their works with statements like the following: Â« This work is licensed under the Creative Commons [insert description] License. To view a copy of this license, visit [insert url] Â». Offline works do not contain the metadata, and are not identifiable by the Creative Commons search engines.

'''Creative Commons licenses main clauses'''

As indicate above, all Creative Commons licenses authorize the public at least to copy, perform, and distribute the work for free, provided that the original author is properly attributed and that no direct remuneration is received in exchange for the work. License options specify whether a work can or cannot be used for commercial purposes, and if the work may be adapted or only used without modification.

The Attribution license element is not optional; it is included by default in all the licenses. (It was optional in the first version of the licenses, but almost 98% of the users were selecting it on the interface, so Creative Commons decided to make attribution standard, thus reducing the number of licenses.)

The license terms, “Non Derivative” and “Share Alike,” are not compatible and cannot be found in the same license.

All of the licenses are non-exclusive. In other words, authors are free to enter into other agreements with specific users. For example, it is possible for copyright owners who have issued CC licenses to enter into fee-bearing licenses for rights to engage in activities not covered by the CC license in question.

Creative Commons, like the copyright regime as a whole, has no registration system; it merely provides information for authors who wish to license their works on nontraditional terms.

Best practices for marking and crediting works in different formats are available at: http://wiki.creativecommons.org/Marking

'''Creative Commons other projects'''

The [http://creativecommons.org/international/ Creative Commons International] (CCi) team coordinates the process of translating the creative commons licenses into other languages and adapting them to other legal systems – a complex and challenging process. The internationalization process also provides local teams who work in their countries with user communities and governments to increase understanding and use of the system. The local teams also work closely with CC staff to improve the license clauses and material.

Two other divisions of Creative Commons also engage in specialized work: [http://learn.creativecommons.org/ ccLearn] for open educational resources and [http://sciencecommons.org/ Science Commons] for open access to science.

In addition to the licenses, two protocols have been recently developed: CC+ and CC0.

[http://wiki.creativecommons.org/CCPlus/ CC+] (CC “Plus”) is not a license, but technologies for offering users rights beyond the CC license grant -- for instance commercial rights, or additional warranties.

[http://creativecommons.org/publicdomain/ CC0] (CC “Zero”) is a universal waiver of copyright, neighboring and related rights, and sui generis rights. CC0 thus enables authors to place their works in the public domain. CC0 is sometimes known as the “no rights reserved” option.

A possible implementation model for digital libraries would be to propose a combination of:
- CC licenses for works created by librarians: abstracts, comments, photographs, maps, other copyrightable elements of the editorial structure;

- CC licenses for works created by patrons: comments, abstracts, critics, blog posts;

- CC0 licenses for databases of public domain works to which the libraries have added potentially copyrightable material.

'''Implications for authors and for users'''

Authors must consider various questions before deciding to apply Creative Commons licenses to their creations. The licenses are based on copyright, and are thus applicable only to copyrightable works. Authors also should be sure that they have the authority to issue the licenses; they may be obliged to check first with co-authors, authors of pre-existing works, or employers. In many countries, collecting societies require their members to assign all their rights in present and future works to the societies. Thus, members cannot use a Creative Commons licenses, even for some of their works or some of their rights. Many authors do not understand why both systems are not compatible, especially in the music industry. They would like to license their non-commercial rights for free under a Creative Commons license, and assign the management of their commercial rights to a collecting society. This model is possible for some collecting societies in some countries, such as the United States, the Netherlands or Denmark. But other collecting societies do not use the same legal categories as Creative Commons. (For instance, they may not recognize the distinction between commercial and non-commercial uses.) In those countries, authors are currently forced to choose one system or the other.

Creative Commons staff and international affiliates have been talking with collecting societies in hopes of resolving this incompatibility, but some collecting societies and other copyright stakeholders are skeptical of Creative Commons licenses and are thus reluctant to move forward. Here are their principal criticisms:

· The Creative Commons system does not provide creators a way to collect money; creators thus must organize for themselves a way to charge for activities that fall outside the CC license terms.
· Creative Commons does not track infringements and is not authorized to represent licensors in lawsuits or help them enforce the licenses.
· Creative Commons licenses are non-revocable, and the license grant is perpetual. Authors who employ CC licenses thus cannot later change their minds. They can, of course, cease distributing the works or distribute them under different conditions, but this will not affect the rights associated with the copies that are already in circulation.
· There is no central registry or authority to verify that licensors have all the rights they need to use a CC license.
· Determining what does and does not constitute a commercial use is a difficult question; answers may vary among individuals and user communities.
· It is questionable whether jurisdiction-specific licenses, which have been adapted to national legal systems, are really compatible with each other. For instance, some versions of the CC licenses include moral rights or database rights; others do not.

'''The Open Access movement'''

The Open Access (OA) movement proposes to adapt scholarly publishing culture to the web. The movement was provoked by a rapid rise in the price of scientific journals, leading many libraries to cancel journal subscriptions. The movement claims that authors should be able to access freely their colleagues’ research for the benefit of science and the general public. The Budapest Open Access Initiative provides an influencial definition for OA. The most complete and up-to-date resource on Open Access is Peter Suber’s Open Access News.

OA journals offer articles to the public under a Creative Commons “Attribution” license. This is sometimes known as “Gold Open Access.” Such journals typically are accessible for free online. Because they forgo traditional sources of revenue, OA journals must devise alternative business models. Some charge authors. Others rely entirely on voluntary work. A Directory of Open Access Journals (DOAJ) can be found at http://www.doaj.org/

Some journals are not Open Access journals, but authorize the authors of the articles they publish the option to archive versions of their articles in Institutional Repositories set up by their universities. This is sometimes called “Green Open Access.” Journal copyright policies regarding self-archiving are analyzed by the project Sherpa RoMEO: http://www.sherpa.ac.uk/romeo/. More than 50% of pay-journal policies allow their authors to archive their pre-print articles in open access repositories.

Authors who contribute articles to journals that do not routinely allow authors to self-archive their articles on their own websites or in institutional repositories, sometimes request that the journals agree to an addendum to the publishing contract (read more about this on [[Module 2: The international framework]], contracts section), pursuant to which the authors reserve rights needed to self-archive. Several addendum models are available. The Science Commons Scholars’ Copyright Addendum Engine generates one such form.

Funding institutions can facilitate or compel use of one or more of these strategies – by encouraging or requiring grant recipients to make fruits of their projects publicly available. Currently, the National Institutes of Health in the United States, the European Research Council, and the Wellcome Trust in the UK underwrite in various ways the OA approach.

Universities can also help. Harvard University has led the way on this issue. Starting in 2008, the faculties of some schools within Harvard have adopted policies providing that faculty members automatically provide to the university non-exclusive, irrevocable, worldwide license to distribute their scholarly articles for non-commercial uses. A faculty member can override this default rule by obtaining a waiver for a specific article. How many will do so remains to be seen.

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffff; margin: 3px 3px 1em 3px;">

== Back to the case study ==

Angela complains to Nadia that she cannot include in her course pack the article from a colleague because he transferred his rights to the publisher. Nadia informs Angela that some publishers have very strict policies, but that sometimes publishing contracts are in fact less restrictive than some authors may think. Together, they will search for the journal policy to see whether the article could be included and, if so, on what basis. If rights have been exclusively assigned for the publisher’s post-print PDF, perhaps the pre-print or the submitted version can be reused.
Together, they will browse the SHERPA/RoMEO site [link] that “provides a listing of publishers' copyright conditions as they relate to authors archiving their work on-line.”

</div>

== Assignment and discussion questions ==

'''Round 1 questions'''

Choose one of the following:

Question 1. Works from your country are probably available under a Creative Commons license. Use search engines and other directories to locate some documents available under CC licenses that you could help promote and re-distribute.

Question 2. Determine if there are any OA journals published in your country. Make a list suitable for distribution to your patrons.

Question 3. Prepare slides or a one-page handout in your language that you could use to educate librarians and academics concerning the Creative Commons system and OA options. Publish your document online with the Creative Commons license of your choice and send the link to the group. If your library doesn’t have a website, you may use http://www.slideshare.net/

Question 4. How would you design and implement an OA policy in your country?

'''Round 2 question'''

Comment on strategies proposed by your colleagues in response to Round 1 question 4.

File:Final1.png

2009-04-27T03:27:00Z

Avalle2:

Information about the Rotisserie Session

2009-04-27T01:50:04Z

Avalle2:

== Rotisserie registration information==

Here you will find registration instructions for you to participate to the online assignments and discussion that will take place in the [http://h2o.law.harvard.edu/index.jsp Rotisserie] when a session is open according to the [http://cyber.law.harvard.edu/copyrightforlibrarians/Calendar calendar]

== Create an account ==

The first thing you should do to join the Rotisserie platform is to create an account, so you will be able to log in to the Copyright for Librarians course Rotisserie project. Follow the instructions to register and create your login:

1. Go to the [http://h2o.law.harvard.edu/index.jsp Rotisserie] website;

[[Image:Im1.png]]

2. Click on the link “Register now”;

[[Image:Im2.png]]

3. Fill in the form with your personal information or with information about your institution;

[[Image:Im3.png]]

3.1 It is important that you fill in the Time Zone space with the following information

4. After filling in the form, select the “Register” button;

[[Image:Ima4.png]]

5. Read the “General Registration License” and select the button “I accept the policy”;

[[Image:Im5.png]]

6. In another window, check your email and read the “Registration Confirmation Email” message sent to the email address that you typed into the form;

[[Image:Im6.png]]

7. Using the “Confirmation Key” in the email you received, type in your new password and select the button “Activate Password”.

[[Image:Imagem10.png]]

8. You are logged in and all set to start creating your own Rotisserie. All you got to do is start preparing the questions, or reusing the questions we are providing in this course, and organizing the dates when these questions will be sent to your students and the deadlines they will have to respect to answer to those questions.

== Creating a project ==

1. After having created your account in the [http://h2o.law.harvard.edu/ViewProject.do?projectID=949 Rotisserie], go to the Overview page and select the “Create a project” link;

[[Image:Imagem9.png]]

2. Fill in the form with the project's name, the starting and ending dates, the registration deadline, affiliation and keywords. After having written your project's description and settled your preferences in the project's options section, select the button create a project.

[[Image:Imagem11.png]]

3. Go through the Project Licence Agreement and answer if you agree or not with the terms presented to you;

[[Image:Imagem12.png]]

4. After having prepared your project, it is time to fill in the available sections on the Rotisserie;

[[Image:Imagem11.png]]

== Filling in the Rotisserieand setting up the questions ==

1. The Rotisserie offers many options: project home, syllabus, reading, resources, rotisserie discussions, message boards, and manage project. You may but do not have to use all the options. We choosed to use the Rotisserie discussion option to host answers to assignments.

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2. Select each of these topics and click on the Edit links to fill in each page according to what you intend to indicate in your project page.

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3. To set up the questions for your course, select “Rotisserie Discussions” and, then, “Add a Rotisserie Discussion”.

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4. Select the option Add a Rotisserie Discussion;

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5. Fill in the options available in the "Create Rotisserie" section, and create as many rounds of discussions as you want.

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6. To select the response type, the type of routing and/or to add a poll for each round, select “Manage”

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7. When setting up the schedule for the beginning of the Rotisserie, be aware that once the Rotisserie starts, there is no gap between each round. Whenever a round ends (according to the selected due dates), the next round will begin, launching a new question to the participants e-mails.

8. After having the Rotisserieorganized, select “Create Rotisserie”.

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== Join the Copyright for Librarians project ==

1. Once you are logged into the Rotisserie as a registered participant, click on the “Browse projects” link and search for the Copyright for Librarians course project.

The project for the testing by Mortenson Associates is available [http://h2o.law.harvard.edu/ViewProjectRotisseries.do?projectId=949 here].

2. Select the Copyright for Librarians course, [http://h2o.law.harvard.edu/ViewProjectRotisseries.do?projectId=949 here] if you are a Mortenson Associate.

3. Click on the link “Join to this project”.

4. After having proceeded with these steps, you will be part of the Discussion activities of the course. Whenever it is time for you to do homework and contribute to the Rotisserie discussions, you will receive H2O-Rotisserie e-mails giving you a warn.

5. When you receive the H2O-Rotisserie email, you should click on the link that was sent to you in the body of the email, wait for a browser window to open on your screen, login into the [http://h2o.law.harvard.edu/index.jsp Rotisserie] website, and make your contribution to the discussion.

6. The H2O-Rotisserie email will inform you of the deadline. If you fail to answer any of the discussion topics within the stipulated period of time, you will not be able to answer the discussion topic in question.

== Netiquette ==

This is a word that define the way learners should act when communicating on the Internet. We would like to use this space to give you some tips of what to do:

'''Language:''' Please pay attention to the way you address your colleagues and, also, trying to be as clear as possible in your answers, so others can profit from your ideas.

'''Answering questions:''' Try to be as clear as possible and do not post too extensive answers.

'''Sending e-mails:''' We firmly recommend that the learners exchange information and help each other during this online course, as they can be answering the doubts of more than one person.

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'''Quick Access'''

* [http://cnx.org/content/col10573/latest/ Connexions]
* [http://h2o.law.harvard.edu/ViewProject.do?projectID=949 Rotisserie]

'''The textbook modules are available on [http://cnx.org/content/col10573/latest/ Connexions], but can also be accessed on this wiki'''

* '''[[Module 1]]'''
* '''[[Module 2]]'''
* '''[[Module 3]]'''
* '''[[Module 4]]'''
* '''[[Module 5]]'''
* '''[[Module 6]]'''
* '''[[Module 7]]'''

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Main Page

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<div style="font-size: 105%; font-weight:bold; padding:0.4em; background-color:#ffffcc; border-bottom:1px solid #ffcc00; text-align: center;">Presentation</div>
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Copyright for Librarians is a project of the [http://cyber.law.harvard.edu/ Berkman Center for Internet & Society] and [http://www.eifl.net/cps/sections/home eIFL] (Electronic Information for Libraries, a consortium of libraries from 50 countries in Africa, Asia and Europe) developing a distance learning curriculum on copyright targeted to librarians.

The course material is licenced under a [http://creativecommons.org/licenses/by/3.0/ Creative Commons Attribution licence] and available in online and offline formats, encouraging communities to re-use, translate and build upon this Open Educational Resource.

The goals of the course are:

*To develop greater understanding of copyright by providing training tailored to the needs of librarians in developing and transition countries;

*To support librarians' mission (participation to the access to knowledge movement);

*To help librarians to answer copyright questions they face during their work;

*To help librarians to answer users questions on their rights (professors, students, general public);

*To empower librarians to advise governments and other public policy makers and initiatives towards balanced copyright law.

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'''Testimonials'''

*'''[[Project: people and process]]'''

*[http://cyber.law.harvard.edu/copyrightforlibrarians/Talk:Main_Page Reviewers, Educators and Participants]
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<div style="font-size: 105%; font-weight:bold; padding:0.4em; background-color:#ffffcc; border-bottom:1px solid #ffcc00; text-align: center;">Useful links</div>
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'''[[Introduction]]'''

'''[[How to get started with the platforms]]'''

'''[[The textbook modules]]'''
* '''[[Module 1: Copyright and the public domain: an introduction]]'''
* '''[[Module 2: The international framework]]'''
* '''[[Module 3: The Scope of Copyright Law]]'''
* '''[[Module 4: Rights, Exceptions, and Limitations]]'''
* '''[[Module 5: Managing Rights]]'''
* '''[[Module 6: Creative approaches and alternatives]]'''
* '''[[Module 7: Enforcement]]'''
'''[[The assignment and discussion]]'''

* '''[[How to register to the platform]]'''
* '''[[Calendar of study: for each module, read the textbook, complete the assignments, and participate to the discussion]]'''

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'''Educators and institutions: how to implement this course'''
* '''[[How to use the Connexions platform to access, edit and repurpose the text book]]'''
* '''[[How to prepare a Rotisserie session]]'''

</div>

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'''Quick Access'''

* [http://cnx.org/content/col10573/latest/ Connexions]
* [http://h2o.law.harvard.edu/ViewProject.do?projectID=949 Rotisserie]

</div>

Module 7: Enforcement

2009-04-26T16:31:14Z

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By Dmitriy Tishyevich, Melanie Dulong de Rosnay and William Fisher

== Learning objective ==

This module provides an overview of what may constitute copyright infringement, several exceptions and defenses to infringement, and the procedures used in a typical infringement case.

The purpose of this module is to provide a general overview of what it means to infringe another’s copyright, and to explain the various ways in which infringement may occur. It will also provide a description of some of the issues that commonly arise when a copyright owner decides to bring a copyright infringement lawsuit, and how such cases typically proceed and conclude. It will review some statutory provisions discussed in previous modules that provide liability exemptions for service providers, including libraries. Finally, the module will consider the appropriate roles of librarians with regard to copyright and copyright enforcement, and suggest possible ways to assess and minimize the risk of liability for copyright infringement.

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== Case Study ==

''“I received a cease and desist letter from a publisher complaining that, by including some of his works in one of my coursepacks, I am infringing his copyright. What should I do?”''

</div>

== What may constitute copyright infringement? ==

'''Actions that may constitute copyright infringement'''

Copyright infringement occurs when one exercises one or more of the exclusive rights of the copyright owner without the owner’s permission – for example, by engaging in unauthorized copying, distribution, or performance of the copyrighted work – or assisting another person to do so. Infringement may also occur when one violates any of the moral rights recognized by the particular country’s copyright regime, such as the right of an author to prevent distortion or mutilation of his or her work, the right to be attributed for one’s work or not to have authorship falsely attributed.

'''Direct and indirect infringement'''

Copyright law typically distinguishes between two different kinds of infringement. Direct infringement occurs when one actually exercises any of the copyright owner’s exclusive rights without authorization. However, most copyright regimes also recognize a form of indirect or secondary infringement, which may result in one being found liable for acts of infringement by another party. For example, one may be liable for “contributory infringement” if he or she knows about the infringing activity and induces, causes, or materially contributes to the infringement done by another person. Additionally, one may be liable for ”vicarious infringement” even when he or she does not have actual knowledge of the infringement, so long as he or she has the right and ability to control the other person’s acts, and receives a direct financial benefit from the infringement.

Merely providing someone with a device that may be used to commit direct infringement is usually not sufficient to make one liable for contributory or vicarious infringement if the device is also capable of substantial noninfringing uses – for example, a copy machine, a videotape recorder, or file-sharing software. However, courts in the United States have recently ruled that one may be liable for “inducing” infringing behavior if one supplies technology that makes the infringement possible with the object of promoting its use to infringe copyright, as demonstrated by clear expression or other purposeful, culpable expression and conduct.

Other countries take a similar approach. In addition to punishing direct infringement, for example, the United Kingdom also imposes liability for secondary infringement for actions such as importing infringing copies, providing means of creating unauthorized copies, transmitting a copyrighted work over a telecommunications system, or supplying sound recordings or films for an infringing performance. Similarly, under South African law, infringement may occur when one exercises any of the exclusive rights of the copyright holder without license, or causes any other person to do so.

'''Can plagiarism constitute copyright infringement?'''

Plagiarism is conceptually and legally distinct from copyright infringement, and as such, it is unusual – though not impossible – that plagiarizing another’s work will also constitute an act of copyright infringement. This is in part due to the fact that copyright law is concerned with protection of material manifestations and expression of ideas, rather than protection of ideas themselves. However, because many countries protect authors’ rights to have their work attributed to them, it is possible that plagiarism may constitute infringement of moral right of attribution.

In the most common instance of copyright infringement, one engages in unauthorized copying or distribution of a particular copyrighted work. In a typical instance of plagiarism, however, a person uses another author’s writing, ideas, research, or language without citing or otherwise attributing the source. Although plagiarism is similarly likely to involve unauthorized use of another’s work, it also requires the additional element of consciously concealing the source of that work. Further, unlike copyright infringement, plagiarism may still occur when the original work is not protected by copyright: for example, using the ideas or language contained in a book presently in public domain but failing to attribute it as the source would constitute plagiarism but not copyright infringement. Still, it may be possible for plagiarism to constitute copyright infringement if the source work is protected by copyright, and if the amount taken without attribution from the source is sufficiently substantial so as to violate the copyright holder’s exclusive right of reproduction.

The distinction between plagiarism and copyright infringement also explains the distinction in their enforcement. Instances of plagiarism are typically enforced by educational institutions, social norms, and ethical codes and carry no civil or criminal penalties, while instances of copyright infringement are adjudicated by courts and may be punishable by civil damages, fines, and / or imprisonment.

== Legal Procedures and Damages ==

'''Cease-and-desist and take-down procedures'''

Many countries have enacted “safe harbor” statutes that exempt online service providers such as search engines, internet service providers, libraries or universities from liability for their users’ activities, provided that the service provider complies with the statutory requirements necessary to qualify for the exemptions. If the service provider complies with the safe harbor requirements, only the infringing user will be held liable for damages, while the provider will not be held responsible.

Some common statutory requirements are so-called “notice and takedown” provisions. These are delineated fairly clearly under United States law; other countries, however, have not been as particular in enacting these statutes. A brief overview of the United States approach is as follows. If a copyright owner believes that a document or recording hosted by a service provider infringes his copyright or allows others to infringe it, the copyright owner may submit a notice to the provider. The notice must typically include the name of the complaining party, the infringing materials and their Internet location, sufficient information to identify the material, a good-faith statement by the copyright owner that the materials complained of infringe the copyright, and a statement, under the penalty of perjury, of the accuracy of the notice and authorization to act on behalf of the owner.

Upon receipt of the notice, the service provider must expeditiously remove the infringing material or disable access to it to qualify for the safe harbor provisions. It must also notify the individual responsible for the infringing material of the removal. It is not necessary for the copyright holder to obtain a judicial decision that the material is, in fact, infringing in order to send a take-down notice – rather, all that is necessary is a good-faith belief that infringement has occurred.

The safe-harbor provisions also provide for counter-notice and put-back procedures to make sure that copyright owners do not insist on removal of works that do not actually infringe their copyright. To so invoke these procedures, the user responsible for the allegedly infringing material – rather than the service provider – must provide a “counter-notice” to the service provider, asserting that the material removed was not infringing. Upon receipt of the counter-notice, the service provider is obligated to notify the copyright holder of the objection. If the copyright holder does not file a lawsuit within two weeks, the service provider must then put the removed material back online. Notably, the statute exempts service providers for liability for any claims made on the basis of the provider’s good-faith removal of materials, regardless whether the material or activity is ultimately determined to be infringing.

The European Union has created a similar, though more open-ended, system by announcing Directive 2000/31/EC (Directive on Electronic Commerce). This Directive distinguishes between different kinds of service providers. Mere “conduits,” or services that only route and cache online traffic, are exempted from liability entirely. Providers that actually host data, however, are exempted only if they have no “actual knowledge” or “awareness” of illegal activities, and if they act expeditiously to remove or disable access to infringing materials.

Problematically, the question of what constitutes “actual knowledge” of hosting infringing materials has been left largely unanswered. Consequently, it is unclear whether a service provider who receives a notice from a copyright holder that it may be hosting infringing materials may be deemed to have actual knowledge of hosting the materials. Likewise, it is uncertain what, if any, evidence such notices must include, whether the person sending it is required to identify himself and include a good-faith statement of belief of infringement, and in what circumstances the service provider is actually obligated to remove the content in order to take advantage of the safe-harbor provisions. The “awareness” of illegal activities criterion is similarly vague, and it is far from clear how rigorously providers must self-regulate and monitor the data they host or provide access to in order to come within the safe harbor provisions.

At the very least, the European Union directive seems broader than the United States approach in that it does not provide a clearly articulated, multi-step approach for initiating and responding to take-down notices. Because of this lack of clarity, service providers have incentives to respond aggressively to take-down notices. Further, under the Directive, there does not appear to be a set procedure in place for a user to object to the material being removed, nor are providers required to notify the users when material is removed or made inaccessible.

Other countries’ approach to exempting online service providers from liability for infringement committed by their users may differ substantially. Australian law, for example, contains an exemption that is similar to that codified in the United States, though it does not require service providers to notify of the persons who posted material that has been removed. Israel likewise has a notice and take-down procedure as part of its safe harbor statute. Unlike the United States, however, it does not require the service providers to remove the material expeditiously upon receipt of a complaint, but instead allows users three days to respond to the complaint. On the other hand, some countries -- such as India, for example -- do not recognize safe harbor provisions for Internet service providers, and may hold them liable for the copyright infringement committed by their users even when the providers had no active or direct involvement with that infringement.

'''Cross-border infringement; extraterritoriality; conflict of laws and jurisdictional limitations'''

Although international agreements have sought to achieve at least relative uniformity across the copyright regimes in different countries, substantial variations in legal procedures, burden of proof, and the availability and extent of damages still remain. Because of these differences, the plaintiff’s choice of which country and court in which to bring his suit in becomes important. However, whether a particular forum is available is likely to be limited by substantive law of copyright, extraterritoriality, choice of law, and conflict of laws.

It is unusual for a copyright holder to be able to maintain a copyright infringement action for infringement that occurred entirely outside of the country. Under United States precedents concerning the extraterritorial reach of federal statutes, federal legislation is presumed to apply only within the territorial jurisdiction absent contrary intent from Congress. Because the U.S. Copyright Act does not contain any explicit legislative language expressing intent for it to apply extraterritoriality, United States courts have almost uniformly rejected attempts to apply it to extraterritorial conduct. Other countries have been similarly reluctant to extend the reach of their copyright statutes beyond their own borders, and have generally declined to extend enforcement of their domestic copyright regimes to infringement that takes place entirely outside of the country’s territory.

This analysis, however, has been complicated by advances in digital technologies and the rise of the Internet. Where previously identifying the location where copyright infringement occurred would be fairly easy – by determining, for example, where unauthorized copies were produced – digital infringement may involve several steps that occur in different countries governed by different copyright regimes. As a result, the issue of where the actual infringement takes place may quickly become muddled. Courts have not been entirely consistent in their analyses of such multi-step infringement. Some earlier decisions have suggested that, for example, merely authorizing infringing acts from within the United States, where the actual infringement occurred elsewhere, does not constitute a violation of the U.S. copyright laws. Subsequent courts, however, have been reluctant to follow this reasoning, and have instead applied U.S. copyright law to foreign acts of infringement so long as there was a single predicate act that took place within the United States. Commentators have advanced alternative choice-of-law rules, including, for example, application of the law of a particular state if it is possible to localize in that state the point from which the infringing work becomes available to the public. However, there presently does not appear to be a uniform, agreed-upon analysis that governs this issue.

If a particular infringement is alleged to have occurred at least in part in more than one country, a court will engage in a “conflict of laws” analysis to determine which state’s law will govern the infringement action. Because the same act of infringement may occur in several different countries, it is possible that a court adjudicating the matter will apply laws of each of those countries in the same lawsuit. Sometimes, a court will rule that the applicable law is the law of the country in which the infringement occurred; that law will govern all elements of the action without regard to nationality of author, country of origin of copyrighted work, or place of first publication. However, this view is criticized by some because its application would result in application of different laws every time the work crosses a national border. An alternative approach is to apply different laws to originality, ownership, and infringement – the different elements of the infringement action. Under this view, a U.S. court would have to apply U.S. law in resolving issues of originality, because originality is a constitutional requirement, which precludes courts from applying more lenient originality standards of foreign countries. The law applicable to ownership is likely to be the law of the state that has the most significant relationship to the copyrighted work and to the parties involved. Finally, under the general principle of ''lex loci delicti'' (the place of wrong), the law applicable to the actual infringement is likely to be that of the country in which the actual infringement occurred.

Despite the disagreement on the subject, the dominant view seems to be that courts should apply the law of the place where the infringement actually occurred. This view is consistent with the territorial limitations of copyright law, as well as the general consensus that the protections granted by copyright are largely domestic. It is also consistent with Article 5(2) of the Berne Convention, which provides that copyright protection is to be “governed exclusively by the laws of the country where protection is claimed.” At the same time, application of this view to digital acts of infringement may create significant enforcement difficulties and greatly increase the complexity of the case, as digital distribution and reproduction make it easy to disseminate copyrighted works to persons in different countries with different copyright regimes.

'''Legal procedures and remedies.'''

If a copyright holder believes that infringement of one of his exclusive rights in connection with a copyrighted work has occurred, he may decide to file a copyright infringement lawsuit. Typically, only an owner of the exclusive right that was infringed or a beneficial owner of the copyright may bring a copyright infringement claim.

The copyright owner may choose to sue the person or persons who committed direct infringement, and / or anyone else who may be found to be liable under the several theories of secondary or indirect infringement described above. The copyright owner must bring the claim within a certain period of time, frequently three years of the time after the copyright infringement occurred, or it will be barred by the statute of limitations.

To learn about the doctrine of sovereign immunity, click [[here(7.1)]].

At the outset of litigation, the defendant – who could be an individual user, a librarian, or a library – should consider whether settlement may not be a better alternative than proceeding toward full trial. Because the finer points of copyright infringement litigation are often complex, defending against an allegation of copyright infringement can be very expensive. Further, because many countries allow a plaintiff who succeeds in his copyright infringement lawsuit to collect damages as set by statute, rather than have to prove actual damages, the final award can be substantial. Finally, statutes or courts may even award attorney’s fees and other costs to the plaintiff if he prevails in his litigation.

In light of the above considerations, the defendant may decide that settling with the plaintiff is a better option than facing the uncertainty and potential expense of litigation. Settlement procedures in copyright infringement litigation are the same as in other civil suits: once the parties have agreed to a set of terms and once the defendant has complied with those terms, the plaintiff will dismiss his lawsuit. The terms of settlement can of course vary significantly. In some instances, the plaintiff may be content, for example, simply with the defendant removing some particular materials from his web site. In other cases, the plaintiff may demand that the defendant pay some amount of money in addition to removing the infringing material. Frequently, as part of a settlement, the parties will agree to a permanent injunction that prohibits the defendant from engaging in the same behavior in the future.

At other times, however, the defendant may decide that settlement is not appropriate, and thus will proceed with the litigation. In order to prevail in a copyright infringement lawsuit, the copyright owner must prove (1) that the work is copyrightable; (2) originality of the work; (3) that he or she is the author or owner of the copyright; and (4) that unauthorized exercise of one or more of the exclusive rights occurred. Each of these requirements is discussed in depth in earlier modules; we review them here briefly.

Unauthorized copying and reproduction is the most common form of copyright infringement. Copying may be demonstrated by direct proof, but such evidence is often unavailable. Copying may also by demonstrated indirectly, by presenting evidence of substantial similarity between the original work and the copied work, and by demonstrating that the defendant had access to the copyright holder’s work. Access may be proven by facts showing specifically how defendant could have obtained the copyrighted work; alternatively, it may be shown by the fact that the copyrighted work was generally available and widely distributed. The substantial similarity requirement and the access requirement are interconnected in that the more similar the two works are, the less evidence the plaintiff needs to introduce of access.

In the library setting, however, some infringing actions are much more straightforward – such as, for example, when a library patron makes a full copy of a copyrighted book provided by the library, or when he digitally copies a CD or DVD that he borrows. However, ambiguities as to whether infringement has occurred may arise, for example, when a librarian copies an article or a portion of a copyrighted work at a patron’s request, or when a librarian seeks to make a copy of an entire copyrighted work for preservation or replacement. Broadly speaking, most countries allow libraries to make copies of portions of materials available at the library for patrons’ personal use, though some allow this only in instances where the patron requests the material for research or study. Likewise, many countries permit libraries to make copies of copyrighted materials for purposes of replacing or archiving them, but vary in the requirements and the restrictions of this practice. Further, only certain categories of works may be subject to these statutory exceptions. Because the scope of these exceptions and practices can mean the difference between legal activities and an act of copyright infringement, it is important for the librarian to be aware of the local statutes and regulations.

In defending against a claim of copyright infringement, the defendant may claim several defenses and exceptions, such as fair use, statute of limitations, uncopyrightability of the original work, public domain, first sale doctrine, safe-harbor provisions, and other statutory exemptions. You can read more on Exceptions and Limitations on [[Module 4: Rights, Exceptions, and Limitations]];

Most countries’ copyright regimes provide a broad range of remedies for copyright infringement. This is required by, among other, various EU Directives as well as the TRIPS Agreement, which requires members to establish enforcement procedures and remedies sufficient to prevent infringement and to serve as a deterrent to future infringements. (Art. 41(1).) The copyright owner can typically seek temporary or permanent injunctive relief, actual damages suffered as the result of the infringement, statutory damages, award of trial costs and attorney fees. Finally, and under fairly limited circumstances, the infringing party may be found to be criminally liable, and sanctioned with fines and imprisonment.

To obtain a preliminary injunction against the infringement, the copyright owner typically has to establish a likelihood of success on the merits of the lawsuit and the possibility of irreparable injury if injunctive relief is not granted. If infringement is found, the copyright owner may be entitled to a permanent injunction, which results in seizure, impoundment, and destruction of the infringing works. United States courts routinely grant preliminary injunctions if the plaintiff is able to establish a prima facie case of infringement. The seizure and impoundment procedures are part of international treaty obligations under Article 46 of the TRIPS Agreement.

The copyright owner is also likely to seek either actual or statutory damages arising from the copyright infringement. In establishing the amount of money to be recovered, the owner may demonstrate either the actual loss caused by infringement, or the defendant’s profits attributable to the infringement. The goal is typically to place the copyright owner in a position he would have been but for the infringement. The copyright owner may also claim injury suffered from not being credited with authorship or injury to business goodwill in computing damages. Further, some countries allow recovery of immaterial or moral damages in instances where the violation of rights was particularly egregious, or where the infringement was intentional. For example, Art. 13(1)(a) of the EU Directive 2004/48/EC on the Enforcement of Intellectual Property Rights indicates that in calculating damages, the court may take into account non-economic factors such as the moral prejudice caused to the copyright owner by the infringement.

Because precise calculation of damages and lost profits may be difficult or even impossible in copyright infringement cases, most countries allow the copyright owner to choose to recover statutorily-determined damages instead of having to compute and prove actual damages. For example, under United States law, if the copyright owner chooses this option, the court may award damages of between $750 and $30,000 for each copyrighted work infringed. If, however, the copyright owner proves that the defendant infringed willfully, the statutory damages award may be as high as $150,000. Conversely, if the defendant is able to demonstrate that he or she was unaware that his or her acts constituted copyright infringement, the court may reduce the damage award to $200 per work infringed. The statutory damages set by other countries vary, but the upper limits of the awards tend to be substantial. Israel, for example, permits an award of statutory damages for infringement of a copyright or a moral right of up to $26,000 at the court’s discretion, while Canada allows for statutory damages of between $500 and $20,000 per work infringed.

As noted above, plaintiffs in copyright infringement suits may attempt to recover some or all of their costs, as well as reasonable attorney’s fees. The courts typically have discretion to decide whether to award costs and fees, and if so, in what amount. Some countries allow courts to award costs (but not attorney’s fees) to losing parties.

In rare cases, copyright infringement may result in criminal sanctions. Typically, to succeed in a criminal copyright infringement suit, the government must demonstrate that the defendant infringed a copyright, did so willfully, and for commercial advantage or private financial gain. Persons who knowingly and willfully aid and abet a person committing copyright infringement may be subject to the same criminal penalties as that person. A good-faith belief by the defendant that the infringing conduct was legal will typically suffice to defeat the “willfulness” requirement in a criminal prosecution. If, however, the government is able to demonstrate all required elements of criminal copyright infringement, the sanctions may be very steep. Under United States law, for example, a commercial infringer may be fined up to $250,000 and imprisoned for up to five years. However, criminal prosecutions of individual infringers are infrequent, and seem largely limited to instances such as willful copying of copyrighted material with the intent to sell or otherwise distribute the copies.

== Responsibilities and Remedies for Librarians ==

'''The roles of librarians'''

Libraries are major purchasers of copyrighted works, and serve to make these works available for the public. Although librarians do, where reasonably possible, protect against copyright infringement of library materials, the ultimate role of librarians is to provide access to materials and information services, rather than enforce copyright and police the behavior of the library’s patrons. Several organizations in their statement of policies or codes of ethics have articulated their views as to the appropriate balance between protecting the rights of authors and serving the needs of library patrons. For example, the American Library Association Code of Ethics notes that recognition and respect for intellectual property rights is one of the principles that should guide librarians’ ethical decision-making. Concomitantly, however, the Code emphasizes that the ALA is committed to upholding the principles of intellectual freedom and resisting efforts to censor library resources. The United Kingdom’s Chartered Institute of Library and Information Professionals (CILIP) supports similar values in its Code of Professional Practice, expecting its members to “defend the legitimate needs and interests of information users, while upholding the moral and legal rights of the creators and distributors of intellectual property.” Finally, the International Federation of Library Associations and Institutions (IFLA), an international non-governmental organization, has released a statement to clarify its position on copyright. The IFLA has acknowledged that librarians have a long-standing role in informing and educating users about the importance of copyright law and compliance with it. However, it also emphasized that overprotection of copyright leads to unreasonable restrictions to access and knowledge, and suggested further that copyright law should establish clear limitations on liability of third parties, such as librarians, in instances where compliance cannot practically or reasonably be enforced.

'''Risk of lawsuits and sanctions when acting in good faith: liability and safe harbors'''

Most countries have at least implicitly acknowledged that the role of the librarian is to provide access rather than to enforce copyright – specifically, by enacting various statutory exceptions and immunities to libraries and librarians in their copyright laws. These exceptions vary widely, and librarians should familiarize themselves with the local statutes. The following will briefly survey some common situations librarians may face, and provide general guidelines librarians should follow to minimize the risk of liability for copyright infringement.

'''Allowing library patrons to use the library’s copy machines or other copy equipment:''' Patrons frequently wish to make copies of excerpts of library-owned materials. Unless the book or article the patron is copying is in public domain, such copying is regulated by the country’s copyright statute and, if the copying exceeds the permissible scope allowed by the statute, it may render the patron liable for copyright infringement, and may even result in the library being held secondarily or indirectly liable for allowing the infringement to take place by providing the equipment. Fortunately, many countries, have enacted specific statutory provisions that shield librarians and libraries for liability for copyright infringement committed by patrons who use photocopiers or other equipment the library provides. To qualify for the statutory exemption, libraries typically must post a notice and a disclaimer, stating that making of photocopies or other reproductions is governed by copyright law, and that the person using the equipment is liable for any infringement.

'''Making copyrighted material available on the library’s computers:''' With growing frequency, libraries, like museums, make documents available to the public on computers. If those documents are subject to copyright, and if the library fails to obtain permission, it may be subject to liability. However, as noted above, many countries have enacted so-called “safe harbor” statutory exceptions to the liability of online service providers, and to the extent that universities and libraries may be considered such providers, they are shielded from liability for any acts of infringement that occur, provided that the comply with the procedures set forth in each country’s laws.

'''Making copies for library patrons:''' Library patrons may on occasion request that the librarian make copies of copyrighted materials for their personal use or for research and study. Many countries provide statutory exceptions that permit librarians to make limited copies. Some allow such reproductions only for certain specified classes of works such as periodicals, while others make no such distinctions. Further, some countries only permit copying for purposes such as research, while others do not have this limitation. By way of example, the United Kingdom allows librarians to make copies of articles in periodicals, but limits such copying to a single article per issue, and requires the patron to prove that the copy is for private noncommercial research or study. In contrast, Canada does not have the single-article restriction, but does limit the reproduction exception to articles published in scholarly, scientific, or technical journals, and excludes works of fiction, poetry, etc. from the class of works that may be copied. The particular statutory requirements differ widely between countries, and librarians should consult their local statutes to ensure that any copying for library patrons comports with the relevant copyright requirements.

'''Making copies for preservation or replacement; digital copies:''' Librarians are permitted, in certain circumstances, to make copies of library materials for their preservation or replacement. As with the above, these circumstances are typically tightly regulated by local copyright statutes. Many countries permit copying when the library owns the original work and the work is publicly accessible, and when the original is at risk for damage or deterioration, is in obsolete format, or cannot be viewed because of the conditions in which it must be kept. The permitted reproduction is often limited to a small number of copies. If an appropriate copy is commercially available, the right to reproduce for preservation or replacement is typically much more circumscribed. Further, copying is often limited to paper reproduction, and copies made in digital format typically may not be made available to the public outside of the library premises.

'''Creating coursepacks for students:''' University librarians are sometimes asked to create “coursepacks,” typically a collection of excerpted journals, articles, book chapters, etc. for use by students enrolled in a particular course. In the United States, many universities used to assemble coursepacks without obtaining permission of the copyright owners of the individual articles, believing that such copying qualified for the “fair use” exception for academic purposes. However, court decisions in the 1990s held that such copying did not constitute fair use, and that the universities must obtain permission from the copyright owners to be able to reproduce their articles in a coursepack. Because the United States doctrine of fair use is more expansive than the comparable exceptions to copyright law in most other countries and was still found not to cover coursepack assembly, it is likely that librarians in other countries must obtain permission from the copyright holders in order to create coursepacks. To reduce the administrative burden of seeking permission from many different copyright holders, librarians may wish to use private clearance services, who enter into affiliations with academic publishers and obtain blanket clearance licenses for the publisher’s entire catalog, or enter into agreements with collecting societies representing publishers.

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== Back to the case study ==
Nadia (the librarian) and Angela (the professor) will make sure that an infringement is unlikely to occur and elaborate best practices around some of their core activities:

· Entire works, such as publishers’ abstracts or book covers, should not be uploaded on the library website without authorization.
· If publishers’ abstracts can’t be reused verbatim, a summary may well be rewritten by the librarian to describe and index books in the catalog.
· Notices should be placed next to copy machines, computers and other equipement available to the public to inform patrons of their rights and limits.

</div>

== Assignment and discussion questions ==

'''Round 1 questions'''

1. Does your country have a safe harbor limiting service providers’ liability? If yes, please describe the mechanism.

2. Select one activity of your library, describe it and elaborate best practices to avoid copyright infringement. For example, you might draft a set of guidelines for professors who prepare coursepacks or a notice to be displayed next to the printing machine or the computers available to patrons.

'''Round 2 questions'''

1. Please review the safe harbor policies available in the countries of your colleagues. Which ones offer the most favorable conditions for libraries and for what reasons?

2. Please comment on a few notices of your colleagues. These should be clear and inclusive, but not overbroad.

Module 6: Creative Approaches and Alternatives

2009-04-26T16:29:09Z

Avalle2:

By Melanie Dulong de Rosnay and William Fisher

== Learning objective ==

Traditional rights management often involves an exclusive assignment of all the rights associated with a copyright from the author to a publisher, who then makes copies and distributes the work to the public for a fee. By contrast, free, libre and open access models disseminate works at no cost for the public. This module describes these alternative approaches, focusing on Creative Commons licensing and Open Access policy for scientific publications.

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== Case study ==

“A professor at our university is the author of one of the articles I want to include in the course pack. However, when I contacted him to request his permission, he answered that he had already transferred all his rights to a publisher and thus wasn’t able to allow me to copy his work. How can it be possible that someone can’t even authorize use of her own work? What could be done to avoid this situation in the future?”

</div>

== Introduction: physical and digital commons ==

While physical objects are scarce, digital resources are non-rivalous goods, which may enjoyed and shared by unlimited numbers of people. Digital technologies are making such sharing easier. Unlike the traditional “all rights reserved” approach, new licensing schemes have been developed to accompany the possibilities offered by the information age in terms of collaboration and creativity. This module will present some of them.

== Free software licenses ==

Most commercial software programs are distributed under restrictive terms of use. Moreover, their source code is not available, so developers cannot study them to understand how they work, to fix bugs or to customize them to their needs.

A radically different approach to disseminating software was first developed by Richard Stallman, a researcher at MIT, who could not obtain permission to modify the software of a printer which was not working properly but which could have been fixed easily. Provoke by this and other experienced, Stallman created the GNU-GPL license, which allow the users to run, copy, distribute, study, change and improve the software to which it is applied – specifically by granting users [http://www.gnu.org/philosophy/free-sw.html/ four kinds of freedoms]:

- “The freedom to run the program for any purpose (freedom 0).

- The freedom to study how the program works, and to adapt it to your needs (freedom 1). Access to the source code is a precondition for this.

- The freedom to redistribute copies so you can help your neighbor (freedom 2).

- The freedom to improve the program, and release your improvements (and modified versions in general) to the public, so that the whole community benefits (freedom 3). Access to the source code is a precondition for this”: modifications must be shared with the same degree of freedom.

Adoption of this approach does not mean that the price of the product must equal zero. Stallman intended the term “free software” to connote “free speech,” not “free beer.” Nevertheless, free software often is free in the usual sense.

What then are the incentives to create software that is released under this license? There are several: fun; altruism (a desire to contribute to then public good); the pleasures of belonging to a community of similarly minded creators; the ability to build one’s reputation as a programmer (and thereby obtain premier programming jobs); and the ability to charge clients for support services and personalized developments. Economists continue to discuss whether incentives of these various sorts are sufficient to sustain a viable business. Meanwhile, businesses relying on this approach are flourishing.

== Creative Commons ==

'''Introduction'''

Creative Commons is a non-profit organization created in 2001 by a group of scholars and activists. The intellectual and organization leader of the organization was Lawrence Lessig, a law professor who litigated the case Eldred vs. Ashcroft, as it was discussed in [[Module 3: The Scope of Copyright Law]].

Creative Commons provides authors convenient ways to authorize specific uses of their works, while retaining control over other uses.

'''The license options'''

Creative Commons offers a set of six licenses, which authors can select online by answering to the following questions on a license selection interface:

<insert screenshot of the choose your license interface>

License Your Work
With a Creative Commons license, you keep your copyright but allow people to [http://creativecommons.org/about/licenses/ copy and distribute your work] provided they [http://creativecommons.org/characteristic/by?lang=en/ give you credit] and only on the conditions you specify here.

Allow commercial uses of your work?

Yes/ No

Allow modifications of your work?

Yes/ Yes, as long as others share alike/ No

License your work : Creative Commons license choser interface
Available at http://creativecommons.org/license/?lang=en

As described at http://creativecommons.org/about/licenses/:

The CC licenses are a combination of one, two or three of the following four elements:

- Attribution (BY): You let others use your work but only if they give credit the way you request.

- Non-Commercial (NC): You let others use your work but for noncommercial purposes only. It does not mean that works cannot be used for commercial purposes, but that a separate license should be negotiated for commercial rights.

- Non Derivative (ND): You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it. The right to make adaptations can be licensed under a separate agreement.

- Share Alike (SA): You allow others to make derivatives from your original work but they should distribute derivative works only under a license identical to the license that governs your work.

The combination of the above elements produces the 6 following licenses:

- Attribution (BY)

This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the
original creation. This is the most accommodating of licenses offered, in terms of what others can do with your works licensed under Attribution.

- Attribution Share Alike (BY SA)
This license lets others remix, tweak, and build upon your work even for commercial reasons, as long as they credit you and license their new creations under the identical terms. This license is often compared to open source software licenses. All new works based on yours will carry the same license, so any derivatives will also allow commercial use.

- Attribution No Derivatives (BY ND)
This license allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to you.

- Attribution Non-Commercial (BY NC)
This license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms.

- Attribution Non-Commercial Share Alike (BY NC SA)
This license lets others remix, tweak, and build upon your work non-commercially, as long as they credit you and license their new creations under the identical terms. Others can download and redistribute your work just like the by-nc-nd license, but they can also translate, make remixes, and produce new stories based on your work. All new work based on yours will carry the same license, so any derivatives will also be non-commercial in nature.

- Attribution Non-Commercial No Derivatives (BY NC ND)
This license is the most restrictive of the six main licenses, allowing redistribution. This license is often called the “free advertising” license because it allows others to download your works and share them with others as long as they mention you and link back to you, but they can’t change them in any way or use them commercially.

By answering the questions on the license selection interface, an author will be directed to the license that best matches his or her preferences. He or she attaches this license to copies of his or her work, thus alerting users to what they can and cannot do. If the work is (or is offered through) a website, the author can do this by adding to the site a piece of html code generates a button with the Creative Commons logo containing a link to the license at issue. An example:

'''Creative Commons licenses formats'''

Each of the CC licenses is available in three formats:

- The machine-readable, or digital code (the metadata embedded in the logo),

- The human readable code, or common deed (a summary explaining the main clauses, with icons corresponding to the elements which have been selected), available from the link embedded in the logo,

- The legal code (a license of several pages written in legal language, detailing the clauses, which are represented by the icons), available from a link at the end of the human readable code.

The owners of the copyrights in works made available through channels other than the Internet can provide potential users similar information, but marking their works with statements like the following: Â« This work is licensed under the Creative Commons [insert description] License. To view a copy of this license, visit [insert url] Â». Offline works do not contain the metadata, and are not identifiable by the Creative Commons search engines.

'''Creative Commons licenses main clauses'''

As indicate above, all Creative Commons licenses authorize the public at least to copy, perform, and distribute the work for free, provided that the original author is properly attributed and that no direct remuneration is received in exchange for the work. License options specify whether a work can or cannot be used for commercial purposes, and if the work may be adapted or only used without modification.

The Attribution license element is not optional; it is included by default in all the licenses. (It was optional in the first version of the licenses, but almost 98% of the users were selecting it on the interface, so Creative Commons decided to make attribution standard, thus reducing the number of licenses.)

The license terms, “Non Derivative” and “Share Alike,” are not compatible and cannot be found in the same license.

All of the licenses are non-exclusive. In other words, authors are free to enter into other agreements with specific users. For example, it is possible for copyright owners who have issued CC licenses to enter into fee-bearing licenses for rights to engage in activities not covered by the CC license in question.

Creative Commons, like the copyright regime as a whole, has no registration system; it merely provides information for authors who wish to license their works on nontraditional terms.

Best practices for marking and crediting works in different formats are available at: http://wiki.creativecommons.org/Marking

'''Creative Commons other projects'''

The [http://creativecommons.org/international/ Creative Commons International] (CCi) team coordinates the process of translating the creative commons licenses into other languages and adapting them to other legal systems – a complex and challenging process. The internationalization process also provides local teams who work in their countries with user communities and governments to increase understanding and use of the system. The local teams also work closely with CC staff to improve the license clauses and material.

Two other divisions of Creative Commons also engage in specialized work: [http://learn.creativecommons.org/ ccLearn] for open educational resources and [http://sciencecommons.org/ Science Commons] for open access to science.

In addition to the licenses, two protocols have been recently developed: CC+ and CC0.

[http://wiki.creativecommons.org/CCPlus/ CC+] (CC “Plus”) is not a license, but technologies for offering users rights beyond the CC license grant -- for instance commercial rights, or additional warranties.

[http://creativecommons.org/publicdomain/ CC0] (CC “Zero”) is a universal waiver of copyright, neighboring and related rights, and sui generis rights. CC0 thus enables authors to place their works in the public domain. CC0 is sometimes known as the “no rights reserved” option.

A possible implementation model for digital libraries would be to propose a combination of:
- CC licenses for works created by librarians: abstracts, comments, photographs, maps, other copyrightable elements of the editorial structure;

- CC licenses for works created by patrons: comments, abstracts, critics, blog posts;

- CC0 licenses for databases of public domain works to which the libraries have added potentially copyrightable material.

'''Implications for authors and for users'''

Authors must consider various questions before deciding to apply Creative Commons licenses to their creations. The licenses are based on copyright, and are thus applicable only to copyrightable works. Authors also should be sure that they have the authority to issue the licenses; they may be obliged to check first with co-authors, authors of pre-existing works, or employers. In many countries, collecting societies require their members to assign all their rights in present and future works to the societies. Thus, members cannot use a Creative Commons licenses, even for some of their works or some of their rights. Many authors do not understand why both systems are not compatible, especially in the music industry. They would like to license their non-commercial rights for free under a Creative Commons license, and assign the management of their commercial rights to a collecting society. This model is possible for some collecting societies in some countries, such as the United States, the Netherlands or Denmark. But other collecting societies do not use the same legal categories as Creative Commons. (For instance, they may not recognize the distinction between commercial and non-commercial uses.) In those countries, authors are currently forced to choose one system or the other.

Creative Commons staff and international affiliates have been talking with collecting societies in hopes of resolving this incompatibility, but some collecting societies and other copyright stakeholders are skeptical of Creative Commons licenses and are thus reluctant to move forward. Here are their principal criticisms:

· The Creative Commons system does not provide creators a way to collect money; creators thus must organize for themselves a way to charge for activities that fall outside the CC license terms.
· Creative Commons does not track infringements and is not authorized to represent licensors in lawsuits or help them enforce the licenses.
· Creative Commons licenses are non-revocable, and the license grant is perpetual. Authors who employ CC licenses thus cannot later change their minds. They can, of course, cease distributing the works or distribute them under different conditions, but this will not affect the rights associated with the copies that are already in circulation.
· There is no central registry or authority to verify that licensors have all the rights they need to use a CC license.
· Determining what does and does not constitute a commercial use is a difficult question; answers may vary among individuals and user communities.
· It is questionable whether jurisdiction-specific licenses, which have been adapted to national legal systems, are really compatible with each other. For instance, some versions of the CC licenses include moral rights or database rights; others do not.

'''The Open Access movement'''

The Open Access (OA) movement proposes to adapt scholarly publishing culture to the web. The movement was provoked by a rapid rise in the price of scientific journals, leading many libraries to cancel journal subscriptions. The movement claims that authors should be able to access freely their colleagues’ research for the benefit of science and the general public. The Budapest Open Access Initiative provides an influencial definition for OA. The most complete and up-to-date resource on Open Access is Peter Suber’s Open Access News.

OA journals offer articles to the public under a Creative Commons “Attribution” license. This is sometimes known as “Gold Open Access.” Such journals typically are accessible for free online. Because they forgo traditional sources of revenue, OA journals must devise alternative business models. Some charge authors. Others rely entirely on voluntary work. A Directory of Open Access Journals (DOAJ) can be found at http://www.doaj.org/

Some journals are not Open Access journals, but authorize the authors of the articles they publish the option to archive versions of their articles in Institutional Repositories set up by their universities. This is sometimes called “Green Open Access.” Journal copyright policies regarding self-archiving are analyzed by the project Sherpa RoMEO: http://www.sherpa.ac.uk/romeo/. More than 50% of pay-journal policies allow their authors to archive their pre-print articles in open access repositories.

Authors who contribute articles to journals that do not routinely allow authors to self-archive their articles on their own websites or in institutional repositories, sometimes request that the journals agree to an addendum to the publishing contract (read more about this on [[Module 2: The international framework]], contracts section), pursuant to which the authors reserve rights needed to self-archive. Several addendum models are available. The Science Commons Scholars’ Copyright Addendum Engine generates one such form.

Funding institutions can facilitate or compel use of one or more of these strategies – by encouraging or requiring grant recipients to make fruits of their projects publicly available. Currently, the National Institutes of Health in the United States, the European Research Council, and the Wellcome Trust in the UK underwrite in various ways the OA approach.

Universities can also help. Harvard University has led the way on this issue. Starting in 2008, the faculties of some schools within Harvard have adopted policies providing that faculty members automatically provide to the university non-exclusive, irrevocable, worldwide license to distribute their scholarly articles for non-commercial uses. A faculty member can override this default rule by obtaining a waiver for a specific article. How many will do so remains to be seen.

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== Back to the case study ==

Angela complains to Nadia that she cannot include in her course pack the article from a colleague because he transferred his rights to the publisher. Nadia informs Angela that some publishers have very strict policies, but that sometimes publishing contracts are in fact less restrictive than some authors may think. Together, they will search for the journal policy to see whether the article could be included and, if so, on what basis. If rights have been exclusively assigned for the publisher’s post-print PDF, perhaps the pre-print or the submitted version can be reused.
Together, they will browse the SHERPA/RoMEO site [link] that “provides a listing of publishers' copyright conditions as they relate to authors archiving their work on-line.”

</div>

== Assignment and discussion questions ==

'''Round 1 questions'''

Choose one of the following:

Question 1. Works from your country are probably available under a Creative Commons license. Use search engines and other directories to locate some documents available under CC licenses that you could help promote and re-distribute.

Question 2. Determine if there are any OA journals published in your country. Make a list suitable for distribution to your patrons.

Question 3. Prepare slides or a one-page handout in your language that you could use to educate librarians and academics concerning the Creative Commons system and OA options. Publish your document online with the Creative Commons license of your choice and send the link to the group. If your library doesn’t have a website, you may use http://www.slideshare.net/

Question 4. How would you design and implement an OA policy in your country?

'''Round 2 question'''

Comment on strategies proposed by your colleagues in response to Round 1 question 4.

Module 5: Managing Rights

2009-04-26T16:23:38Z

Avalle2:

By David Scott, Emily Cox, Melanie Dulong de Rosnay and William Fisher

== Learning objective ==

This module describes how copyrights are managed through individual licenses and collecting societies.

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== Case study ==

In the previous module, Angela identified some ways in which the materials she hopes to include in her coursepack may be used without permission. Now she needs to get permission for other activities. She discusses the following questions with Nadia, the librarian who is assisting her:

- What activities may be covered by licenses the library has already obtained from publishers or collecting societies?
- For the activities that require a separate contract, what clauses should I negotiate?
- How should I handled those materials whose authors cannot be identified or located?

</div>

== Individual management ==

'''What is a copyright license?'''

The various rights enjoyed by a copyright owner may be transferred by the owner to other people and organizations in many different ways. Assignments, licenses, contracts and authorizations are legally binding agreements between two parties: the initial right holder, and the person or entity wishing to exercise some or all of the exclusive rights owned by the initial right holder.

Transfer of these sorts often precisely define the rights at issue according to many criteria:
· the scope of the authorized use (e.g., reproduction, the preparation of derivative works, public performances);
· the duration of the authorization (e.g. one year);
· the nature of the authorization (e.g. exclusive or non-exclusive);
· the fee related to the transaction (e.g. a flat fee or a fee proportional to the number of copies or of uses);
· the format or media type (e.g. print only or also digital; text only or also in another media, such as a recording or a film);
· the audience and location (e.g. a country, the premises of the library, the classroom, a distance learning cours).

Sometimes such a transfer grows out of negotiations between the licensor and licensee, and/or lawyers representing both parties. At other times, a license may be offered by the copyright owner in a standard form. In such circumstances, there may be little or no possibility for modification of the terms.

Some licenses are exclusive. In other words, the licensor agrees not to permit any other party to engage in the activities in question. Others are non-exclusive, meaning that the licensor remains free to permit other parties to engage in the same activities.

An assignment occurs when a copyright owner permanently and exclusively gives up his rights to another party, authorizing the recipient of the transferred rights to exercise the rights, and further authorize others to exercise these rights after a subsequent transfer or license. Assignments of all rights are sometimes required in publishing contracts. This type of agreement can be compared to the sale of physical property, because the assignor permanently surrenders the ability to exercise any of the rights at issue himself or herself.

'''Negotiating a license'''

Copyright owners are generally permitted to divide and license uses of their work as they please, provided that the rights contained in a new license do not overlap with rights the owner has already transferred exclusively to others. But the copyright laws in some countries limit the freedom of contracting for copyrighted works or contain specific provisions regulating transactions involving copyrighted works. For instance, transfers that are not in writing or that do not enumerate precisely elements such as rights, format, location and duration may be deemed void and invalid.

The degree to which the terms of a license are negotiable depends on the type of work at issue and the bargaining power of the licensor and licensee. Potential licensee can sometimes increase their bargaining power by acting collectively. For example, a consortium such as eIFL.net has more power than its individual members.

Click here to learn more about [[Model licenses]].

'''Content of a standard licensing agreement: the example of an online database'''

Clauses addressing the following categories of information will be found in a standard licensing agreement and should be considered before engaging in licensing negotiations:

''Identification of the parties to the agreement''

While this might seem obvious, it is important not only to identify the parties to an agreement, but also to make sure that the persons negotiating actually have the legal authority to make agreements on behalf of their organization. If a library is part of an educational institution or is funded by the local government, for example, it might not be the case that every librarian has this authority. A licensor might want proof that the person claiming to negotiate on behalf of the licensee is in fact permitted to bind the licensee by contract. The library might want to make sure the same is true of the person negotiating on behalf of the licensor, and that the licensor is entitled to exercise the rights of the original copyright owner. This should be clearly addressed and included in the agreement.

''Definition of terms that will be used in the agreement''

Because libraries often obtain licenses from copyright owners from other countries and from various industries, similar terms can have different meanings to the negotiating parties. One contractual term that is often ambiguous, yet central, to licensing agreements is “material breach.” A material breach is an action by one of the parties to a licensing agreement that permits the other party to terminate the contractual relationship. Because of the importance and ambiguity of this term, the library staff might want to determine and specify in the agreement what actions by a licensor would be significant enough that it would be in the library’s interest to end the relationship. Where a license to access materials for an online database is involved, for example, a material breach might occur where the database is unavailable to library patrons for significant period of time. The staff also might want to consider what potential failures by the library to live up to its end of a licensing agreement might legitimately be considered material breaches.

''Subject of Agreement''

Parties to an agreement should be thorough in identifying the copyright work that is being licensed. If it’s an online research database, for example, a licensee should make sure that the license entitles patrons to view the full text of articles rather than just abstracts or summaries. If the resource is something that should contain a table of contents, index or images, one should ensure that this is included in the license as well. If there are images, one might even want to determine whether they will be viewable and/or printable in grayscale or color.

''Use rights in the agreement''

This is one of the most important clauses in an agreement. Licensing agreements often contain clauses that reserve to the licensor the exclusive right to all uses of copyrighted works that are not specifically mentioned. A licensee should therefore think of all possible uses that it might want to make of a copyrighted work before it engages in negotiation. Where an electronic resource is concerned, some basic rights might include: searching or browsing the database, viewing and downloading material, forwarding articles to others, printing materials, and including a listing of the works and possibly their abstracts in the library’s own catalogue. A library that is affiliated with an educational institution may also want to make sure that a license allows faculty and staff to place materials in electronic reserves, include them in course packs, and distribute and/or display portions of the materials in lectures or other speaking engagements. Further, while the practice of loaning materials to other libraries or sharing a reasonable amount of materials with colleagues for scholarly purposes is implied in some jurisdictions by law, a licensee cannot normally share copyrighted materials for commercial purposes. If a licensee wishes to do so, it will have to negotiate for the right and included it in the agreement. If modifying a work in order to abide by local norms is necessary, a library should make sure that the modification does not conflict with the author’s moral rights.

''Other conditions on licensed uses''

Even after all types of desired uses have been discussed and included in a contract, a licensor might want to limit certain uses by location or frequency of access. In return for the right to unlimited printing of the copyrighted material, for example, a licensor might want additional compensation. In this event, a licensee can negotiate for the right to charge its patrons fees to recover copying or printing costs. A library should also determine who its users are going to be and where they will be able to access a given resource. For example, it may wish its users to be able to access the copyrighted material from any computer or only from computers located in the library. It should also decided whether access to the copyrighted material or certain uses of it will require a password or will be open to any member of the public.

''Licensor Obligations''

This clause is particularly important for electronic resources. It is reasonable for a subscriber to an online journal, database or other resource to expect that the material will be accessible very close to 24 hours a day, every day. Where a library has a software license, it might want to negotiate for the right to include a back-up copy of the program on location. In either case, licensing agreements for electronic materials typically include some obligation on the part of the licensor to provide the licensee with technical support. Because a licensor and its technical support staff might be located in another country, a licensee should make sure that technical support will be available during the library’s peak hours. On a related note, most online resources have periods of downtime during which the licensor’s technical staff will update the online materials. A licensee might want to ensure that this is not normally done during the library’s peak hours. When an online service or other electronic resource is unavailable for a significant period of time, licensing agreements typically include a penalty clause that requires the licensor to partially refund the licensee’s subscription fee. Another licensor obligation that is frequently included in licensing agreements for online materials is periodically to provide the licensee with an audit of use, or a report that gives the licensee details about how its patrons are using the licensor’s program or database. Such use audits can help library staff members in future licensing negotiations, enabling them to determine better which features and uses of licensed materials are most valuable to the library patrons. Where use audits are performed, the parties might also want to include refunds to the licensee for periods of underuse and additional fees to the licensor for periods of overuse. Lastly, a licensee should make sure that there is an indemnity clause, through which a licensor guarantees that it owns the copyright in all the works it is licensing and accepts liability for any conflicting claims of copyright ownership of those works.

''Term, termination and renewal of a license''

Negotiating parties should be explicit concerning how long they intend the license to last. As discussed earlier, the parties should also list all of the conditions that would lead to a termination of the licensing relationship. This might require the parties to create an end-of-term agreement, which specifies the procedures that will be followed in the event of termination, including the costs that may be recovered by either party. If an agreement is terminated because of the licensor’s failure to make the licensed material available to the licensee, for example, the parties will want to create a formula to compensate the licensee. While most licensing agreements contain a provision that provides for automatic renewal of the licensing relationship, many do not guarantee that the same terms will be available for the following subscription period. A licensee should make sure that, if the terms of previous subscription periods are subject to change, the renewal clause includes an obligation on the part of the licensor to notify the licensee of these changes in advance of the new subscription period.

''Fees''

Fees for subscriptions to journal, online databases or other resources are typically paid on an annual or monthly basis. When works are being licensed to libraries or other large educational institutions, licensors typically take the size of the institution, number of users and number of pages that are downloaded into account when determining the appropriate subscription fee. Licensors of online journals and electronic databases vary widely in their flexibility regarding fee arrangements. Some licensors are willing to negotiate fees, others offer various packages, and others offer only one arrangement. A subscription fee could include unlimited use of the licensor’s materials, limited use for particular uses, a pay-per-use arrangement, or a combination of these. Pay-per-use arrangements might set a fee for each log-on access, each time a user searches for content, or might allow unlimited access but charge users or subscribing institutions for each download. Universities often purchase what is called a site license, which gives all the members of the university community access for a set fee.

'''Licenses in the digital environment'''

Many online and electronic resources are now subject to electronic licenses. One common form of electronic license is called a unilateral or a shrinkwrap license because it comes with prescribed terms and is rarely subject to modification. Unilateral licenses are most often used by licensors of software products.

Another common form is called an end-user license agreement (EULA) or browsewrap license. These are frequently used by licensors of online content. EULAs allow prospective licensees to read the prescribed terms of the license on the licensor’s website. If they decide they want to use the licensor’s product or service, they can enter into the license by clicking on a button stating “I Agree.” Some licenses do not even require a “click” (the electronic manifestation of a signature), but are based on the behavior of a licensee, deemed sufficient to demonstrate a tacit acceptance and thus form a license. While many legal systems have not fully addressed the effect of these types of licenses, courts in some countries have ruled that a valid consent, giving rise to a binding contracts, can be formed in these fashions.

== Collective Management ==

'''Purpose and Functions of Collective Management Organizations'''

The structure of individual licensing described in the previous section is fairly simple: A copyright owner authorizes the use of the work by a licensee under specified conditions. Because copyright licensing often involves widely distributed works, individual licensing can become both very difficult and prohibitively expensive. It would not be practical, for example, for an owner of rights in a popular song to attempt to respond to thousands of licensing requests from radio stations all over the world. As a result, copyright owners frequently allow collective management organizations (also known as collecting societies or collection agencies) to grant licenses, monitor uses of copyrighted material, and collect and share remuneration from licensees on their behalf. This allows copyright owners to exercise their rights as efficiently as possible, as they can grant many more licenses than they would be able to under an individual licensing system. They also benefit from the bargaining power of an institution that negotiates remuneration on their behalf and can bring infringement suits against persons or organizations that use their works without permission.

Licensees also benefit from the use of collective management, as collection societies provide users with easy access to rights that they need to acquire though a single, yearly contract. A radio station wanting to broadcast music from around the world on a daily basis would not be able to do so if it had to seek out and acquire rights from the copyright and neighboring rights owners of each song.

A copyright owner that uses a collective management organization for some, but not all, of her rights is engaged in partial collective management. As discussed in the previous section of this module, a copyright owner’s exclusive right in a work means that he or she alone is able to decide whether to authorize or prohibit any use covered by that copyright. This gives copyright owners flexibility in deciding, if they choose to use collective management at all, exactly which functions a collective management organization will perform for them.

Collective management organizations may also provide social welfare benefits to their members in addition to their royalty payments, such as medical insurance and retirement packages. They may also use part of the royalties they collect to fund drama festivals, music competitions, or the production or export of national works.

'''Non-Voluntary Collective Management'''
(you can learn more about Compulsory Licenses in [[Module 4: Rights, Exceptions, and Limitations]]).

Compulsory collective management ensures that the benefits of collective management are actually realized. If a collective management organization does not have the rights to a significant number of works within its particular field, then it no longer serves the important purpose of being able to license a large repertoire in a short amount of time. As a result, some countries choose to make collective management mandatory to enforce certain categories of rights, particularly where a use serves an important public purpose or where works of that type are used primarily for non-commercial purposes. In such situations, royalties are often gathered either through a levy on copying equipment, or through an annual fee paid by users (companies, libraries, universities) to the collecting society. Those royalties are then shared among the copyright owners according to usage statistics. Collective management is sometimes criticized for the complexity and lack of transparency of its calculation rules to collect and share royalties when they do not exactly correspond to actual uses.

Areas in which compulsory collective management is fairly common are:
· public lending rights for works available in public libraries in countries such as Canada and Australia, and in some European countries, but not all of them, despite a European Directive of 2002 on rental right and lending right. (Many authors and organizations, including IFLA, are opposed to this practice.)
· reprographic rights for literary works, a right which is sometimes interpreted to include not only photocopying but also printouts from digital databases.
· neighboring rights for public performance, broadcasting, and cable transmission of sound recordings.

Some reformers have proposed extending this model to the distribution of works on the Internet, arguing that such a system would benefit both users (by legalizing file-sharing) and creators (by providing them a reliable source of revenue).

== Alternative compensation systems ==

One of a copyright owner’s most basic rights is to control personally the conditions under which her works may be used. Arguably, any national law that forces an owner to let a collective management organization to make these decisions for him or her is a limitation of this basic right. Articles 11bis(2) and Article 13(1) of the Berne Convention, however, provide that a country may determine the conditions under which rights can be exercised. Because compulsory licensing can reasonably be called a “condition” of exercising one’s rights, it is consistent with the Berne Convention where the right being managed is not an exclusive right included in Article 9.

Even where exclusive rights are involved, other non-voluntary forms of collective management, such as extended collective management, may be permissible under the Berne Convention. Extended collective management provides that once a collective society represents a large number of the copyright owners in a particular sector, its authority to license is extended to permit it to license the works of all of the copyright owners in that sector. This generally includes foreign and non-member copyright owners.

Collective societies often enter into agreements with their sister societies in other countries in order to represent their repertoires. Sometimes such societies are also organized into international networks. Examples include the International Confederation of Societies of Authors and Composers (CISAC) and the International Federation of Reprographic Reproduction Organisations (IFRRO). These networks typically participate actively in negotiation of new copyright legislations at the international and national levels.

== Technological Protection Measures ==

Some copyright owners, particularly owners of copyrights in digital works, build into copies of their works certain features that hinder or control the ways in which users can access or employ them. These features are called Technological Protection Measures, or TPMs. This technique is also sometimes called (misleadingly) digital rights management (DRM). TPMs typically prevent the copying of an electronic file, or restrict the number of copies that can be made or the number of devices that can access the file. Right holders or distributors use such devices to enforce their licensing terms and to prevent unauthorized copying. A single work may thus be subjected to copyright, neighboring rights, a license, and a technical protection measure.

These measures are problematic from several perspectives for users: they often do not permit interoperability, and they are incapable of taking into account exceptions to copyright law. It is often not determined whether exceptions to copyright protection (of the sorts discussed in [[Module 4: Rights, Exceptions, and Limitations]] should override technical protections. The reason that this issue is important is that it is sometimes possible to disable TPMs, thereby enabling the reproduction of the copyrighted work. Most countries have enacted anti-circumvention statutes, which prohibit such disabling of TPMs. However, some of these statutes include exceptions for libraries. Out of the 184 WIPO countries included in the WIPO Study on Copyright Exceptions and Limitations for Libraries and Archives, 79 had statutes that prohibited circumvention of TPMs, and 26 of these provided explicit exemptions for libraries. The majority of countries that have enacted these explicit exemptions are members of the European Union. Countries outside the European Union that provide explicit library exemptions for anti-circumvention statues include Australia, Croatia, Norway, Singapore, and the United States.

== Orphan Works ==

When the owner of a copyrighted work cannot be located by reasonable efforts, that work becomes known as an orphan work. This may be because the work does not have the author’s name attached to it (or it was published anonymously or pseudonymously), or in the case of older works, because it is unclear who inherited the copyright from the original author. Orphan works are problematic because a prospective user has no way of contacting the author to ask for permission to use the work and to negotiate payment for that use.

Although most countries do not have statutory provisions for dealing with orphan works, some countries have implemented systems to deal with these works. In the context of international copyright agreements, these systems are justified by the three step test of Article 9(2) of the Berne Convention, that was discussed in [[Module 2: The international framework]].

For example, Canada has enacted copyright legislation that provides a method for authorizing the use of orphan works. Those who wish to use such works must apply to the Copyright Board of Canada for a license. Such applicants must first show that a reasonable effort to locate the copyright owner has been fruitless. If the work had previously been published, the Copyright Board will then grant the applicant a non-exclusive license (effective only within Canada) to use the work. The license is limited to particular types of uses, and requires the applicant to pay a designated royalty fee. This royalty can be collected by the copyright owner for up to five years after the transaction, in the event that she later comes forth.

The Nordic countries of Denmark, Finland, Iceland, Norway and Sweden have also enacted statutory regimes governing the licensing of orphan works. In Denmark, for example, the licensing of orphan works is arranged through a collective management organization. The Danish Copyright Act provides that an individual interested in using an orphan work may arrange to pay a rights management organization for that use, provided that the organization represents a “substantial number” of Danish copyright owners. The royalties paid to these organizations may be claimed by a copyright owner for up to five years, and unclaimed royalties for orphan works are donated to public works programs.

Another country that implements a licensing regime for the use of orphan works is Japan, whose compulsory licensing system for orphan works is codified in Section 8, Article 67 of its copyright laws. Japan requires that a prospective user perform “due diligence” in attempting to locate the copyright owner, but does not explain what qualifies as “due diligence.” Like Canada, Japan requires that the work have been published previously, and allows the government to grant a license to the user upon payment of a royalty. Royalties are placed in a fund from which copyright owners may receive compensation if they later discover and object to the use of their works. Notably, the owner may petition the government for an increase in the royalty rate within three months of the issuance of the license if she learns of the use and believes the initial rate to be unsatisfactory.

Other countries do not currently have statutory provisions dealing with orphan works, but may enact such provisions in the near future. A piece of legislation dealing with orphan works is currently being considered by the United States House of Representatives (a report on the progress of the Shawn Bentley Orphan Works Act of 2008 is available [http://www.govtrack.us/congress/bill.xpd?bill=s110-2913/ here]). The proposal would limit remedies in civil suits over the use of copyrighted works, as long as: (1) the user had made reasonable, but unsuccessful, efforts to locate and identify the owner, and (2) the work was attributed to the owner (if identified but not located). The proposal has been criticized by Lawrence Lessig, among others (see Lessig’s criticism [http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html/ here]), and is unlikely to be adopted.

In April 2008, the European Commission’s High Level Expert Group published a [http://ec.europa.eu/information_society/activities/digital_libraries/experts/hleg/meetings/index_en.htm/ report on Digital Preservation, Orphan Works, and Out-of-Print Works], which recommended courses of action for Member States of the European Union to establish licensing systems that would deal with the problem of orphan works. At the same time, numerous rights holders and representatives of libraries and archives signed a Memorandum of

Understanding on orphan works, available [http://ec.europa.eu/information_society/activities/digital_libraries/experts/hleg/meetings/index_en.htm/ here], which expressed the commitment of these organizations to facilitate and encourage the licensing of orphan works for certain purposes. Although the Memorandum of Understanding and the European Commission’s report are not law and are therefore not binding, both encourage member nations of the European Union to enact statutory provisions to deal with the licensing of orphan works, so there is a good chance that new legislation in this area will be enacted soon in these nations.

One reason why orphan works are problematic is that copyright law does not require that works be registered to be protected. This is the system set up by the Berne Convention. Although it has many merits, one downside is that all works are protected by copyright, even orphan works and works whose creators may have wished to make them available to the public. Arguments in some recent cases, notably Kahle v. Gonzalez in the United States, have attempted to challenge this system to make copyright an “opt-in” system (in which copyright protection is only obtained by fulfilling certain formalities) rather than an “opt-out” system (in which copyright exists upon the creation of a work). The United States 9th Circuit Court of Appeals in Kahle, relying on the United States Supreme Court’s decision in Eldred v. Ashcroft, rejected the suggestion that the creation of an opt-in section implicated First Amendment rights to freedom of speech. The rejection of an opt-in copyright scheme may be necessary in light of the requirements of [http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P109_16834/ Article 5(2) of the Berne Convention], which prohibits member states from attaching formalities to the receipt of copyright benefits.

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== Back to the case study: getting permission ==

Nadia and Angela have identified works that are copyrightable and not in the public domain. They need to get permission from rightholders for uses that are not covered by exceptions and limitations.

First, they have to identify the copyright owners. Original authors may have licensed or transferred rights to a publisher or a collective society, or the creation may be a work-for-hire. For the reasons explored in module 3, other persons may also be involved, such as music performers, or persons depicted in photographs, in addition to the photographer or entity who owns copyright. When the contact information for the copyright owner is not available on the work, it might be possible to locate the owner though national copyright offices or clearance centers.

Once they have identified and located the owners, Nadia and Angela will request permission. While a first contact by email or phone can be useful to explain the use they are considering, they will likely be obliged to follow up with a request in writing that describes accurately the work (title, author, copyright owner, URL), the purpose of the use (a description of the use in the coursepack), and the conditions of the permission that have been discussed (for a small fee, for free, etc.) Commencement and expiration dates as well as complete contact and signatures of both parties will complete the document.

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== Assignment and discussion questions ==

'''Round 1 questions'''

1. Understand a license

Select a license governing access to electronic resources in your library or find online standard terms of a publisher. Read the use rights described in the license, and explain whether, to which extent, and under which conditions it covers the following actions:
· reprography by the patrons
· reprography by the librarians
· downloading by the patrons
· interlibrary loan of a printed copy
· interlibrary loan of a digital version
· publication in an electronic reserve or a coursepack
· rights when reusing resources: translation, compilation, indexing, abstract, data-mining, etc.
· other uses that you may define.

2. Collecting societies

What collecting societies, copyright offices, one-stop shops or other entities collectively managing rights are operating in your country? For each of them, provide the name of the society, the website if any, and the type of media or repertoire covered. Read the statutes or bylaws. Explain what rights are managed, if members must be transferring all of their rights or may only license some of them, and if it is a voluntary or a compulsory system,

'''Round 2 questions'''

Comment on the answers of your colleagues to question 1, and select the most favorable terms and licenses among those which have been analyzed.

== Sources ==

Belzos, Salvador M. “International Approaches to the Orphan Works Problem”

Collective Management of Copyright and Related Rights, 2-47 (Dr. Daniel Gervais ed., 2006)

“Collective Management of Copyrights and Related Rights” â publication from WIPO’s website; http://www.wipo.int/freepublications/en/copyright/450/wipo_pub_l450cm.pdf

Ricolfi, Marco. “Individual and collective management of copyright in a digital environment”. Copyright Law: A Handbook of Contemporary Research, 283-314 (Paul Torremans, Ed. 2007)

KEA Study- Collective Management of Rights in Europe: A Quest for Efficiency (2006)

WIPO Guide on the Licensing of Copyright and Related Rights (2004)

Module 3: The Scope of Copyright Law

2009-04-26T16:22:08Z

Avalle2:

By Inge Osman, Melanie Dulong de Rosnay and William Fisher

== Learning objective ==

This module discusses the kinds of creations and the kinds of activities that copyright law does and does not cover.

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== Case study ==

The course pack will build upon, quote and gather preexisting material by other authors. What is the status of the output after the professor’s contribution?

Angela, the professor, collects articles and books with the help of some students and research assistants. She will discuss with Nadia, the librarian, the distinction between ideas, which can be freely reproduced, and works, which can be quoted.

</div>

== What Does Copyright Law Protect? ==

'''The Definition of a Literary and Artistic Work'''

The Berne Convention, discussed in [[Module 2: The international framework]], establishes a literary and artistic work as the subject matter of copyright. Article 2, Section 1 of the Convention defines such a work expansively:

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 dramatico-musical 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.

To be entitled to protection, a work falling into this broad category must satisfy two basic requirements – originality and fixation – which are explained it detail below.

'''The Concept of Originality'''

Although neither the Berne Convention Berne Convention nor the TRIPS Agreement expressly requires originality, almost all countries require some level of authorial creativity for a work to qualify for copyright protection. How much creativity it required? Unfortunately, there is no uniform answer to that questions; each country independently sets the originality standard that works must meet.

Spain, the United Kingdom, Mexico, Canada, India, and the United States all extend copyright protection only to “original works.” United States law defines originality as independent conception. France and Spain on the other hand, following the moral rights tradition, define originality as the “imprint of the author’s personality” on the work.

In most countries, the work of authorship need not be original in the sense that it is novel, ingenious, or has aesthetic merit. For example, the US Supreme Court established the modern definition of originality as requiring only that the work be independently created by the author and that it possess “at least some minimal degree of creativity.” The Court made clear, however, that the “requisite level of creativity is extremely low;” a work need only “possess some creative spark no matter how crude, humble or obvious it might be.”

'''The Requirement of Form or Tangible Medium of Expression'''

The Berne Convention leaves it up to the individual countries to decide whether to require that copyrighted material be “fixed.” Article 2, Section 2 of the Convention states:

“It shall be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.”

Many countries do not require that a work be produced in a particular form to obtain copyright protection. For instance, Spain, France, and Australia do not require fixation for copyright protection. The US and Canada, on the other hand, require that the work be “fixed in a tangible medium of expression” to obtain copyright protection. US law requires that the fixation be stable and permanent enough so that it may be “perceived, reproduced or communicated for a period of more than transitory duration.” Similarly, Canadian courts consider fixation to require that the work be “expressed to some extent at least in some material form, capable of identification and having a more or less permanent endurance.” The definition of “fixation” in the US excludes “purely evanescent or transient reproductions such as those projected briefly on a screen, shown electronically on a television or other cathode ray tube, or captured momentarily in the ‘memory’ of a computer.”

Many courts, including those in the US, have deemed computer programs fixed when stored in a silicon chip. The audiovisual effects of computer games are commonly considered to be fixed because their repetitiveness makes them “sufficiently permanent and stable.”

The requirement of fixation may become problematic when applied to live performances. For instance, US law specifies that a work must be fixed “by or under the authority of the author.” This means that if someone were to record and distribute copies of a live performance without permission, the performer would have no legal recourse under copyright law because that performance would not be fixed and therefore would not be eligible for copyright protection. Countries that grant copyright for perceptible works regardless of fixation do not have similar problems. In the US, Congress tempered the fixation requirement by declaring “a work consisting of sounds, images, or both that are being transmitted, is ‘fixed’if a fixation of the work is being made simultaneously with its transmission.” This rule provides a solution for performances that are being broadcast or transmitted, but, arguably, live performances that are simultaneously recorded but not transmitted are still unprotected by copyright law.

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) requires all members of the World Trade Organization (WTO) to protect live musical performances. This means that even countries with fixation requirements must enact statutes to ensure the protection of musical performances without fixation. The US, for instance, enacted a special provision prohibiting the “fixation or transmission of a live musical performance without the consent of the performers, and prohibiting the reproduction of copies or phonorecords of an unauthorized fixation of a live musical performance.” Notice, however, that this provision is limited to “musical” performances.

'''The Exclusion of Ideas from Copyright Protection'''

As indicated in [[Module 1: Copyright and the public domain: an introduction]], copyright law does not protect ideas or facts; it only protects the expression of those ideas or facts. In this regard, the US copyright statute is typical: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated or embodied in such work.” The same principle can be found in the major treaties. The Berne Convention, for example, states that protection “shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information.” Both the TRIPS Agreement and the WIPO Copyright Treaty state that expressions are copyrightable, but not “ideas, procedures, methods of operation or mathematical concepts as such.”

The Berne Convention permits individual member countries to determine whether this basic principle should be extended to deny protection to works created by government agencies: “[I]t shall be a matter for legislation in the countries of the Union to determine the protection to be granted to official texts of a legislative, administrative and legal nature, and to official translations of such texts.”

It is sometimes said that the purpose of excluding ideas and facts from the scope of what is copyrightable is to promote the public interest in freedom of speech. Extending copyright protection to ideas or facts would inhibit public debate by allowing copyright holders to control uses of the concepts or information contained in their works. Both political freedom and the progress of knowledge would suffer.

On occasion, an idea and its expression may become indistinguishable. If there is only one way of expressing a particular idea, the idea and the expression of that idea are said to “merge.” The merger doctrine in copyright law was developed to deal with such cases, removing from the scope of copyright protection those expressions that constitute the only way of expressing an idea. What about situations in which an idea can only be expressed in a limited number of ways? The courts in some countries deal with such situations by granting limited or “thin” copyright protection to those expressions – in other words, prohibiting only verbatim copying, or virtually identical copying.

'''The Difference between owning a copy and owning a copyright.'''

Ownership of a physical copy of a work is separate from copyright ownership. Just because you own a copy of a book doesn’t mean you are free to copy it.

Ordinarily, when the creator of a work sells or transfers a copy of it to another person, he does not surrender his copyright unless he expressly agrees to do so. So, for example, the writer of a letter or an email message retains the copyright in the letter even after he has sent it to the recipient.

For the most part, the lawful owners of copies of copyrighted works are free to sell or give those copies to other people – or to destroy or mutilate them. However, some treaties and national legal systems recognize “moral rights” that set limits on the freedom of the owners of copies to act in these ways. The Berne Convention, for example, provides:

Independently of the author’s economic rights, and even after 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, which would be prejudicial to his honor or reputation.

== The Relationship between Copyright Infringement and Other Unauthorized Activities ==

Copyright infringement is the unauthorized use of a copyrighted work in a manner that violates one of the copyright owner’s exclusive rights.

We will examine those rights in detail in [[Module 4: Rights, Exceptions, and Limitations]]. It should be emphasized that copyright infringement covers only a subset of the ways in which copyrightable works may be used without permission. Some unauthorized uses that do not constitute copyright infringement may violate other legal rules; some may violate nonlegal social norms; while still others are both lawful and socially approved. This complex pattern of norms finds expression in a variety of terms, which are frequently confused. We disentangle some of them below and they will be studied in [[Module 7: Enforcement]].

Plagiarism consists of the use of ideas or words of someone else without properly crediting the source. It is entirely separate from copyright law. Common sanctions for plagiarism are expulsion or suspension from school, discharge from a job, and social disapproval.

'''“Piracy”''' has no strict definition within (or outside of) copyright law. In recent years, the term has been used increasingly often (typically by nonlawyers) to refer to unauthorized and unexcused reproductions of audio and video recordings, but the copyright laws do not themselves refer to “piracy.” Insofar as the term connotes the violence that commonly accompanies the seizure of ships on the high seas, it is misleading when used in connection with unauthorized uses of literary works.

'''“Counterfeiting”''' is defined in various ways. Most often, the term refers to the creation or distribution of imitations (typically inferior-quality) imitations of genuine works – with the intent to deceive the public concerning their authenticity. Conterfeiting in this sense is governed primarily by trademark law and the law of unfair competition, not by copyright law. Read the counterfeiting to ACTA proposal in [[Module 2: The international framework]])

Finally, it bears repeating that many unauthorized uses of copyright works do not violate any legal regime. Such permissible unregulated uses include reading a book, performing a play privately, selling a copyrighted work, and watching a copyrighted performance.

== Copyright Duration ==

The Berne Convention requires that the term of copyright protection be, at a minimum, the life of the author plus an additional fifty years after her death. Member countries are free, however, to adopt longer terms, subject to the following limitation:

“In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work.”

Many countries have exercised the discretion left to them by the Berne Convention. The result is that the duration of copyright varies substantially by country.

The resulting difficulty in determining how long a copyright will last is exacerbated by the fact that many countries make the duration of copyright dependent on the type of work at issue. The Czech Republic and the Netherlands, for instance, grant copyright protection for the life of the author plus 70 years for literary works, and for the life of the longest living joint author plus 70 years for jointly held works. This construction is deceptively simple, because it applies only to works created on or after April 7, 2000 and December 29, 1995 respectively. Works created before those dates, respectively, are subject to different and more complicated copyright duration terms. The sporadic lengthening of copyright terms that has occurred internationally has led to a complicated patchwork of copyright duration terms determined by the category of work, and the date of creation or publication.

Click here to learn about the [[Case of the Canadian Online Repositories of Public Domain]].

To learn about [[Recent Term Extensions Controversies (Eldred v. Ashcroft)]].

== Extensions of the Scope of Copyright Protection ==

In recent years, copyright law has gradually expanded to encompass more subject matters and more exclusive rights. The Berne Convention, the TRIPs Agreement, the Universal Copyright Conventions and the WIPO Copyright Treaty work together to produce minimum standards of protection that countries must meet, thereby extending copyright protection generally.

Some of these extensions can be justified on the ground that they stimulate additional creativity. On the other hand, the extension of copyright to more kinds of works and for a greater length of time has resulted in the reduction in the amount of material in the public domain. As a result, materials that could otherwise be used in the creation of new artistic or literary works can no longer be used.

As copyright law has expanded, it has fragmented. In other words, special rules have been devised to deal with particular kinds of works. Some of those special rules are described below.

'''Audiovisual and Cinematographic works, Computer Programs'''

Audiovisual or cinematographic works are collective projects that often involve the contributions of several individual authors, discussed in the Rights Ownership and Works for Hire topics in [[Module 4: Rights, Exceptions, and Limitations]]. Given the large number of people that are involved in their creation, treating each contributor as a joint author of the work would give rise to practical problems. For instance, in order for use of the film to be assigned, each contributor would need to agree to license the copyright.

Different countries have try to overcome this problem in different ways. The French Intellectual Property Code treats contributors to films as co-authors but implies into the author-producer relationship a transfer of the exploitation rights of the material to the producer. Countries such as the United Kingdom and the United States, by contrast, vest the authorship and copyright ownership of these works in a single person. For instance, the 1988 Copyright, Designs and Patent Act in the United Kingdom typically vests these rights in the producer. The U.S. Copyright Act on the other hand treats the contributions to a audiovisual or cinematographic work as works made for hire, thereby also vesting authorship and copyright ownership in one person, typically the producer. The Berne Convention recognizes and respects the differences among countries in the allocation of rights to audiovisual and cinematographic works.

Computer programs constitute another special category of works. Although the Berne Convention does not address computer programs, the TRIPS agreement requires that computer programs be protected as literary works. Like audiovisual works, computer programs are often the products of the efforts of many individuals. Here too, countries vary in the way they handle allocation of authorship rights. German copyright law, for example, contains a presumption giving exclusive rights to the employer in the context of computer software.

'''Broadcast, Recording, Interpretation'''

The Berne Convention requires that the author of a copyrighted work be given the exclusive right to authorize

(i) the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images;
(ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original public one;
(iii) the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work.

The Berne Convention permits individual countries to determine which of these rights may be exercised and in what circumstances, but stipulates that they should not be applied in a way that would be prejudicial to an author’s moral rights. Countries such as Ireland, Kenya and Oman have enacted copyright laws extending to authors the right to control and license broadcasts of their work.

'''Works of Folklore and Indigenous Knowledge'''

Copyright protection for traditional cultural expressions or for works of folklore has been increasing. Such works typically are created by communities rather than individuals. According to WIPO, “works of traditional cultural expression include music, art, designs, names, signs and symbols, performances, architectural forms, handicrafts and narratives.” Among the purposes of protecting cultural products of these sorts the promotion of creativity and cultural diversity. Countries such as the Philippines, Panama, and New Zealand currently have legislation specifically extending intellectual property protection to works of folklore.

For instance, Oman’s legislation on “Promulgating the Law on the Protection of Copyrights and Neighboring Rights” extends copyright to folklore, defining it as “literary, artistic or scientific works created in Oman by popular groups expressing their cultural identity, which are transferred from generation to generation and represent a fundamental element in the national popular traditional heritage. The competent authority shall exercise the author’s rights in works of folklore to object to any mutilation, modification or unlawful commercial exploitation.”

== What is an “Author”? ==

'''Rights Ownership Rules: How to Determine the Original Right Holder'''

The Berne Convention gives member countries broad latitude in determining who is considered an author, and therefore the original copyright owner, of a literary or artistic work. Article 15(1) provides:

“In order that the author of a literary or artistic work protected by this Convention shall, in the absence of proof to the contrary, be regarded as such, and consequently be entitled to institute infringement proceedings in the countries of the Union, it shall be sufficient for his name to appear on the work in the usual manner. This paragraph shall be applicable even if this name is a pseudonym, where the pseudonym adopted by the author leaves no doubt as to his identity.”

The majority of civil-law countries stipulate that only “persons” in the ordinary sense can qualify as authors. Spanish copyright law, for example, specifies “the natural person who creates any literary, artistic, or scientific work shall be considered the author thereof.” Similarly, French copyright law states that “authorship shall belong, unless proved otherwise, to the person or persons under whose name the work has been disclosed.” Common-law countries, by contrast, more often permit organizations – for instance, corporate employers – to qualify as “authors.”

The determination of who the author of a literary or artistic work is often straightforward: the author is the person who conceives of and gives expression to an idea. However, in other cases, this determination becomes more complicated and may depend on who assists in the production, oversees and directs the arrangement of the details of the literary or artistic work. In such cases, the determination of authorship will depend on the facts of the specific case.

'''Works by Multiple Authors: Rules for Joint Authorship and Collaborations'''

Joint authorship exists when two or more persons create a copyrighted work. In situations of this sort, legislation in most countries grants each contributor an undivided share of the copyright in the work. The requirements for joint authorship vary across nations. The Berne Convention recognizes that joint authorship exists but does not specify the requirements for joint authorship, thus allowing for the variance among nations.

Countries in continental Europe typically stipulate that joint authorship does not require that each author contribute the same amount to the work, but require that each author’s contribution displays the minimal amount of creativity or originality necessary in the jurisdiction to merit copyright protection in its own right. Applying this approach, a Dutch Supreme Court decision Kluwer v. Lamoth granted a stylist co-authorship status for creatively rearranging needleworks for a photograph.

The second common requirement for joint authorship is that each author’s contribution cannot be separated and commercially exploited independently of the work as a whole. For instance, Japanese legislation defines joint works as works that are “created by two or more persons in which the contribution of each person cannot be separately exploited.” If this is not true – for instance, when one author contributes the music and another the lyrics for a song – each contributor is typically given an independent copyright in his or her contribution.

'''Derivative Works and Transformations'''

Derivative works are modifications of preexisting works. Examples include abridgments and motion-picture adaptations of novels. The Berne Convention does not explicitly refer to derivative works, but rather lists a number of works based on other copyrighted works for which member countries must provide copyright protection. Specifically, the Berne Convention Article 2, Section 3 states that

“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 of the original work.”

This provision is incorporated into the TRIPS agreement. Although these provisions guarantee the protection of specific types of derivative works, they do not clarify what level of distinction is necessary from the original copyrighted work for a derivative work to merit copyright protection in its own right. Often it is not clear whether obtaining a copyright in a derivative work requires a higher level of originality than obtaining a copyright in a completely new work. In any case, a copyright in a derivative work extends only to the new material contributed by the author of the derivative and not also to the preexisting material. If the original work is still protected by copyright, they then author of the derivative work must obtain the permission of the owner of the copyright in the original.

'''Collective Works and Compilations'''

Compilations constitute another instance of a situation in which a copyright may be obtained through the use and manipulation of preexisting works. Compilations are works formed by assembling, selecting, or rearranging preexisting works such that the result constitutes an original work of the author. Collective works represent a specific type of compilation in which a number of separate and independent contributions are assembled into one work. A collective work is a work by two or more authors but is not cohesive enough to qualify as a joint work. The Berne Convention only requires the protection of collective works.

“Collections of literary or artistic works such as encyclopedias 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.” Article 2, Section 5.

The TRIPS Agreement extends copyright protection to all compilations:

“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.” Article 10, Section 2.

'''Employees and Works for Hire'''

Employees are often hired to create creative literary or artistic works, resulting in questions of authorship rights. Civil law countries impose as a default the rule that the authorship of a work created in the scope of employment vests in the employee, not the employer. This requires that employers contract with employees to obtain the copyrights to the creative works. For instance, the French Intellectual Property Code stipulates that copyright vests in the work’s actual author and not his employer. (This is the provision by default; rights ownership of some categories of work, such as software, are immediately assigned to the employer.) On the other hand, some countries, including Germany, imply into the employee-employer relationship an assignment of copyright from the employee to the employer.

Common-law countries, such as the United States, Canada, and Great Britain, set as a default rule that the copyrights to works created within the scope of employment vest in the employer and not the employee. For instance, Canadian copyright law states that if a work is created within the scope of employment, “the person by whom the author was employed shall, in the absence of agreement to the contrary, be the first owner of the copyright.” Under the British Copyright, Designs and Patents Act of 1988, if a copyrighted work is made by an employee in the course of that employment, the copyright is automatically owned by the employer as a "Work for Hire."

'''Civil Servants, Researchers and Professors'''

Traditionally there has been one category of employees exempt from the “work for hire” doctrine: academics (including teachers and sometimes researchers).

In some countries, works made in the scope of the employment of civil servants are also excluded from the “work for hire” doctrine, because they are denied copyright protection altogether. In other countries, this is not true. For instance, copyright law in the Czech Republic contains a presumption that a work created by a civil servant is a work for hire and the copyright and authorship rights are granted to the employer.

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== Back to the case study ==

Nadia (the librarian) should help Angela (the professor) understand authorship questions in the set of materials she has gathered by asking a series of questions:

· Is the arrangement of pre-existing material in an original way considered a creative work?

· Does the summary of an article constitute a new work?

· Who will be the copyright holder of the new work?
· Do the answers to these questions affect Angela’s duty to obtain permission to reproduce and adapt preexisting works.

</div>

== Assignment and discussion questions ==

'''Round 1 questions'''

1. Multiple authorship

Information technologies make it easier to edit and remix others’ works, but not all modifications are substantial enough to create new original works. Discuss the effects of information technologies on the nature of authorship, using the example of Wikipedia.

2. Research for the next Public Domain Day

What is the copyright term in your country? List some of the authors whose work will fall in the public domain in your country on January 1 of the coming year.

'''Round 2 questions'''

1. Comment on the answers of your colleagues.

2. Search for more works that will enrich the public domain next year in your country.

== Sources ==

American Society of Composers, ASCAP COPYRIGHT LAW SYMPOSIUM 173-206 (Columbia University Press ed., 1991).

Bruce Keller & Jeffery Cunard, COPYRIGHT LAW (Practising Law Institute ed., 2001).

Cornell University Law School, Legal Infromation Institute, Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971) (Dec. 2, 2008), http://www.law.cornell.edu/treaties/berne/overview.html.

Crash Course on Copyrights (Dec. 2, 2008), http://www.iusmentis.com/copyright/crashcourse/protection/.

Paul Goldstein, INTERNATIONAL COPYRIGHT (Oxford University Press US ed., 2001).

World Intellectual Property Organization (Dec. 2, 2008), http://www.wipo.int/portal/index.html.en.

Module 3: The Scope of Copyright Law

2009-04-26T16:20:40Z

Avalle2:

By Inge Osman, Melanie Dulong de Rosnay and William Fisher

== Learning objective ==

This module discusses the kinds of creations and the kinds of activities that copyright law does and does not cover.

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== Case study ==

The course pack will build upon, quote and gather preexisting material by other authors. What is the status of the output after the professor’s contribution?

Angela, the professor, collects articles and books with the help of some students and research assistants. She will discuss with Nadia, the librarian, the distinction between ideas, which can be freely reproduced, and works, which can be quoted.

</div>

== What Does Copyright Law Protect? ==

'''The Definition of a Literary and Artistic Work'''

The Berne Convention, discussed in [[Module 2: The international framework]], establishes a literary and artistic work as the subject matter of copyright. Article 2, Section 1 of the Convention defines such a work expansively:

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 dramatico-musical 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.

To be entitled to protection, a work falling into this broad category must satisfy two basic requirements – originality and fixation – which are explained it detail below.

'''The Concept of Originality'''

Although neither the Berne Convention Berne Convention nor the TRIPS Agreement expressly requires originality, almost all countries require some level of authorial creativity for a work to qualify for copyright protection. How much creativity it required? Unfortunately, there is no uniform answer to that questions; each country independently sets the originality standard that works must meet.

Spain, the United Kingdom, Mexico, Canada, India, and the United States all extend copyright protection only to “original works.” United States law defines originality as independent conception. France and Spain on the other hand, following the moral rights tradition, define originality as the “imprint of the author’s personality” on the work.

In most countries, the work of authorship need not be original in the sense that it is novel, ingenious, or has aesthetic merit. For example, the US Supreme Court established the modern definition of originality as requiring only that the work be independently created by the author and that it possess “at least some minimal degree of creativity.” The Court made clear, however, that the “requisite level of creativity is extremely low;” a work need only “possess some creative spark no matter how crude, humble or obvious it might be.”

'''The Requirement of Form or Tangible Medium of Expression'''

The Berne Convention leaves it up to the individual countries to decide whether to require that copyrighted material be “fixed.” Article 2, Section 2 of the Convention states:

“It shall be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.”

Many countries do not require that a work be produced in a particular form to obtain copyright protection. For instance, Spain, France, and Australia do not require fixation for copyright protection. The US and Canada, on the other hand, require that the work be “fixed in a tangible medium of expression” to obtain copyright protection. US law requires that the fixation be stable and permanent enough so that it may be “perceived, reproduced or communicated for a period of more than transitory duration.” Similarly, Canadian courts consider fixation to require that the work be “expressed to some extent at least in some material form, capable of identification and having a more or less permanent endurance.” The definition of “fixation” in the US excludes “purely evanescent or transient reproductions such as those projected briefly on a screen, shown electronically on a television or other cathode ray tube, or captured momentarily in the ‘memory’ of a computer.”

Many courts, including those in the US, have deemed computer programs fixed when stored in a silicon chip. The audiovisual effects of computer games are commonly considered to be fixed because their repetitiveness makes them “sufficiently permanent and stable.”

The requirement of fixation may become problematic when applied to live performances. For instance, US law specifies that a work must be fixed “by or under the authority of the author.” This means that if someone were to record and distribute copies of a live performance without permission, the performer would have no legal recourse under copyright law because that performance would not be fixed and therefore would not be eligible for copyright protection. Countries that grant copyright for perceptible works regardless of fixation do not have similar problems. In the US, Congress tempered the fixation requirement by declaring “a work consisting of sounds, images, or both that are being transmitted, is ‘fixed’if a fixation of the work is being made simultaneously with its transmission.” This rule provides a solution for performances that are being broadcast or transmitted, but, arguably, live performances that are simultaneously recorded but not transmitted are still unprotected by copyright law.

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) requires all members of the World Trade Organization (WTO) to protect live musical performances. This means that even countries with fixation requirements must enact statutes to ensure the protection of musical performances without fixation. The US, for instance, enacted a special provision prohibiting the “fixation or transmission of a live musical performance without the consent of the performers, and prohibiting the reproduction of copies or phonorecords of an unauthorized fixation of a live musical performance.” Notice, however, that this provision is limited to “musical” performances.

'''The Exclusion of Ideas from Copyright Protection'''

As indicated in [[Module 1: Copyright and the public domain: an introduction]], copyright law does not protect ideas or facts; it only protects the expression of those ideas or facts. In this regard, the US copyright statute is typical: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated or embodied in such work.” The same principle can be found in the major treaties. The Berne Convention, for example, states that protection “shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information.” Both the TRIPS Agreement and the WIPO Copyright Treaty state that expressions are copyrightable, but not “ideas, procedures, methods of operation or mathematical concepts as such.”

The Berne Convention permits individual member countries to determine whether this basic principle should be extended to deny protection to works created by government agencies: “[I]t shall be a matter for legislation in the countries of the Union to determine the protection to be granted to official texts of a legislative, administrative and legal nature, and to official translations of such texts.”

It is sometimes said that the purpose of excluding ideas and facts from the scope of what is copyrightable is to promote the public interest in freedom of speech. Extending copyright protection to ideas or facts would inhibit public debate by allowing copyright holders to control uses of the concepts or information contained in their works. Both political freedom and the progress of knowledge would suffer.

On occasion, an idea and its expression may become indistinguishable. If there is only one way of expressing a particular idea, the idea and the expression of that idea are said to “merge.” The merger doctrine in copyright law was developed to deal with such cases, removing from the scope of copyright protection those expressions that constitute the only way of expressing an idea. What about situations in which an idea can only be expressed in a limited number of ways? The courts in some countries deal with such situations by granting limited or “thin” copyright protection to those expressions – in other words, prohibiting only verbatim copying, or virtually identical copying.

'''The Difference between owning a copy and owning a copyright.'''

Ownership of a physical copy of a work is separate from copyright ownership. Just because you own a copy of a book doesn’t mean you are free to copy it.

Ordinarily, when the creator of a work sells or transfers a copy of it to another person, he does not surrender his copyright unless he expressly agrees to do so. So, for example, the writer of a letter or an email message retains the copyright in the letter even after he has sent it to the recipient.

For the most part, the lawful owners of copies of copyrighted works are free to sell or give those copies to other people – or to destroy or mutilate them. However, some treaties and national legal systems recognize “moral rights” that set limits on the freedom of the owners of copies to act in these ways. The Berne Convention, for example, provides:

Independently of the author’s economic rights, and even after 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, which would be prejudicial to his honor or reputation.

== The Relationship between Copyright Infringement and Other Unauthorized Activities ==

Copyright infringement is the unauthorized use of a copyrighted work in a manner that violates one of the copyright owner’s exclusive rights.

We will examine those rights in detail in [[Module 4: Rights, Exceptions, and Limitations]]. It should be emphasized that copyright infringement covers only a subset of the ways in which copyrightable works may be used without permission. Some unauthorized uses that do not constitute copyright infringement may violate other legal rules; some may violate nonlegal social norms; while still others are both lawful and socially approved. This complex pattern of norms finds expression in a variety of terms, which are frequently confused. We disentangle some of them below and they will be studied in [[Module 7: Enforcement]].

Plagiarism consists of the use of ideas or words of someone else without properly crediting the source. It is entirely separate from copyright law. Common sanctions for plagiarism are expulsion or suspension from school, discharge from a job, and social disapproval.

'''“Piracy”''' has no strict definition within (or outside of) copyright law. In recent years, the term has been used increasingly often (typically by nonlawyers) to refer to unauthorized and unexcused reproductions of audio and video recordings, but the copyright laws do not themselves refer to “piracy.” Insofar as the term connotes the violence that commonly accompanies the seizure of ships on the high seas, it is misleading when used in connection with unauthorized uses of literary works.

'''“Counterfeiting”''' is defined in various ways. Most often, the term refers to the creation or distribution of imitations (typically inferior-quality) imitations of genuine works – with the intent to deceive the public concerning their authenticity. Conterfeiting in this sense is governed primarily by trademark law and the law of unfair competition, not by copyright law. (link from counterfeiting to ACTA proposal in [[Module 2: The international framework]])

Finally, it bears repeating that many unauthorized uses of copyright works do not violate any legal regime. Such permissible unregulated uses include reading a book, performing a play privately, selling a copyrighted work, and watching a copyrighted performance.

== Copyright Duration ==

The Berne Convention requires that the term of copyright protection be, at a minimum, the life of the author plus an additional fifty years after her death. Member countries are free, however, to adopt longer terms, subject to the following limitation:

“In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work.”

Many countries have exercised the discretion left to them by the Berne Convention. The result is that the duration of copyright varies substantially by country.

The resulting difficulty in determining how long a copyright will last is exacerbated by the fact that many countries make the duration of copyright dependent on the type of work at issue. The Czech Republic and the Netherlands, for instance, grant copyright protection for the life of the author plus 70 years for literary works, and for the life of the longest living joint author plus 70 years for jointly held works. This construction is deceptively simple, because it applies only to works created on or after April 7, 2000 and December 29, 1995 respectively. Works created before those dates, respectively, are subject to different and more complicated copyright duration terms. The sporadic lengthening of copyright terms that has occurred internationally has led to a complicated patchwork of copyright duration terms determined by the category of work, and the date of creation or publication.

Click here to learn about the [[Case of the Canadian Online Repositories of Public Domain]].

To learn about [[Recent Term Extensions Controversies (Eldred v. Ashcroft)]].

== Extensions of the Scope of Copyright Protection ==

In recent years, copyright law has gradually expanded to encompass more subject matters and more exclusive rights. The Berne Convention, the TRIPs Agreement, the Universal Copyright Conventions and the WIPO Copyright Treaty work together to produce minimum standards of protection that countries must meet, thereby extending copyright protection generally.

Some of these extensions can be justified on the ground that they stimulate additional creativity. On the other hand, the extension of copyright to more kinds of works and for a greater length of time has resulted in the reduction in the amount of material in the public domain. As a result, materials that could otherwise be used in the creation of new artistic or literary works can no longer be used.

As copyright law has expanded, it has fragmented. In other words, special rules have been devised to deal with particular kinds of works. Some of those special rules are described below.

'''Audiovisual and Cinematographic works, Computer Programs'''

Audiovisual or cinematographic works are collective projects that often involve the contributions of several individual authors, discussed in the Rights Ownership and Works for Hire topics in [[Module 4: Rights, Exceptions, and Limitations]]. Given the large number of people that are involved in their creation, treating each contributor as a joint author of the work would give rise to practical problems. For instance, in order for use of the film to be assigned, each contributor would need to agree to license the copyright.

Different countries have try to overcome this problem in different ways. The French Intellectual Property Code treats contributors to films as co-authors but implies into the author-producer relationship a transfer of the exploitation rights of the material to the producer. Countries such as the United Kingdom and the United States, by contrast, vest the authorship and copyright ownership of these works in a single person. For instance, the 1988 Copyright, Designs and Patent Act in the United Kingdom typically vests these rights in the producer. The U.S. Copyright Act on the other hand treats the contributions to a audiovisual or cinematographic work as works made for hire, thereby also vesting authorship and copyright ownership in one person, typically the producer. The Berne Convention recognizes and respects the differences among countries in the allocation of rights to audiovisual and cinematographic works.

Computer programs constitute another special category of works. Although the Berne Convention does not address computer programs, the TRIPS agreement requires that computer programs be protected as literary works. Like audiovisual works, computer programs are often the products of the efforts of many individuals. Here too, countries vary in the way they handle allocation of authorship rights. German copyright law, for example, contains a presumption giving exclusive rights to the employer in the context of computer software.

'''Broadcast, Recording, Interpretation'''

The Berne Convention requires that the author of a copyrighted work be given the exclusive right to authorize

(i) the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images;
(ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original public one;
(iii) the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work.

The Berne Convention permits individual countries to determine which of these rights may be exercised and in what circumstances, but stipulates that they should not be applied in a way that would be prejudicial to an author’s moral rights. Countries such as Ireland, Kenya and Oman have enacted copyright laws extending to authors the right to control and license broadcasts of their work.

'''Works of Folklore and Indigenous Knowledge'''

Copyright protection for traditional cultural expressions or for works of folklore has been increasing. Such works typically are created by communities rather than individuals. According to WIPO, “works of traditional cultural expression include music, art, designs, names, signs and symbols, performances, architectural forms, handicrafts and narratives.” Among the purposes of protecting cultural products of these sorts the promotion of creativity and cultural diversity. Countries such as the Philippines, Panama, and New Zealand currently have legislation specifically extending intellectual property protection to works of folklore.

For instance, Oman’s legislation on “Promulgating the Law on the Protection of Copyrights and Neighboring Rights” extends copyright to folklore, defining it as “literary, artistic or scientific works created in Oman by popular groups expressing their cultural identity, which are transferred from generation to generation and represent a fundamental element in the national popular traditional heritage. The competent authority shall exercise the author’s rights in works of folklore to object to any mutilation, modification or unlawful commercial exploitation.”

== What is an “Author”? ==

'''Rights Ownership Rules: How to Determine the Original Right Holder'''

The Berne Convention gives member countries broad latitude in determining who is considered an author, and therefore the original copyright owner, of a literary or artistic work. Article 15(1) provides:

“In order that the author of a literary or artistic work protected by this Convention shall, in the absence of proof to the contrary, be regarded as such, and consequently be entitled to institute infringement proceedings in the countries of the Union, it shall be sufficient for his name to appear on the work in the usual manner. This paragraph shall be applicable even if this name is a pseudonym, where the pseudonym adopted by the author leaves no doubt as to his identity.”

The majority of civil-law countries stipulate that only “persons” in the ordinary sense can qualify as authors. Spanish copyright law, for example, specifies “the natural person who creates any literary, artistic, or scientific work shall be considered the author thereof.” Similarly, French copyright law states that “authorship shall belong, unless proved otherwise, to the person or persons under whose name the work has been disclosed.” Common-law countries, by contrast, more often permit organizations – for instance, corporate employers – to qualify as “authors.”

The determination of who the author of a literary or artistic work is often straightforward: the author is the person who conceives of and gives expression to an idea. However, in other cases, this determination becomes more complicated and may depend on who assists in the production, oversees and directs the arrangement of the details of the literary or artistic work. In such cases, the determination of authorship will depend on the facts of the specific case.

'''Works by Multiple Authors: Rules for Joint Authorship and Collaborations'''

Joint authorship exists when two or more persons create a copyrighted work. In situations of this sort, legislation in most countries grants each contributor an undivided share of the copyright in the work. The requirements for joint authorship vary across nations. The Berne Convention recognizes that joint authorship exists but does not specify the requirements for joint authorship, thus allowing for the variance among nations.

Countries in continental Europe typically stipulate that joint authorship does not require that each author contribute the same amount to the work, but require that each author’s contribution displays the minimal amount of creativity or originality necessary in the jurisdiction to merit copyright protection in its own right. Applying this approach, a Dutch Supreme Court decision Kluwer v. Lamoth granted a stylist co-authorship status for creatively rearranging needleworks for a photograph.

The second common requirement for joint authorship is that each author’s contribution cannot be separated and commercially exploited independently of the work as a whole. For instance, Japanese legislation defines joint works as works that are “created by two or more persons in which the contribution of each person cannot be separately exploited.” If this is not true – for instance, when one author contributes the music and another the lyrics for a song – each contributor is typically given an independent copyright in his or her contribution.

'''Derivative Works and Transformations'''

Derivative works are modifications of preexisting works. Examples include abridgments and motion-picture adaptations of novels. The Berne Convention does not explicitly refer to derivative works, but rather lists a number of works based on other copyrighted works for which member countries must provide copyright protection. Specifically, the Berne Convention Article 2, Section 3 states that

“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 of the original work.”

This provision is incorporated into the TRIPS agreement. Although these provisions guarantee the protection of specific types of derivative works, they do not clarify what level of distinction is necessary from the original copyrighted work for a derivative work to merit copyright protection in its own right. Often it is not clear whether obtaining a copyright in a derivative work requires a higher level of originality than obtaining a copyright in a completely new work. In any case, a copyright in a derivative work extends only to the new material contributed by the author of the derivative and not also to the preexisting material. If the original work is still protected by copyright, they then author of the derivative work must obtain the permission of the owner of the copyright in the original.

'''Collective Works and Compilations'''

Compilations constitute another instance of a situation in which a copyright may be obtained through the use and manipulation of preexisting works. Compilations are works formed by assembling, selecting, or rearranging preexisting works such that the result constitutes an original work of the author. Collective works represent a specific type of compilation in which a number of separate and independent contributions are assembled into one work. A collective work is a work by two or more authors but is not cohesive enough to qualify as a joint work. The Berne Convention only requires the protection of collective works.

“Collections of literary or artistic works such as encyclopedias 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.” Article 2, Section 5.

The TRIPS Agreement extends copyright protection to all compilations:

“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.” Article 10, Section 2.

'''Employees and Works for Hire'''

Employees are often hired to create creative literary or artistic works, resulting in questions of authorship rights. Civil law countries impose as a default the rule that the authorship of a work created in the scope of employment vests in the employee, not the employer. This requires that employers contract with employees to obtain the copyrights to the creative works. For instance, the French Intellectual Property Code stipulates that copyright vests in the work’s actual author and not his employer. (This is the provision by default; rights ownership of some categories of work, such as software, are immediately assigned to the employer.) On the other hand, some countries, including Germany, imply into the employee-employer relationship an assignment of copyright from the employee to the employer.

Common-law countries, such as the United States, Canada, and Great Britain, set as a default rule that the copyrights to works created within the scope of employment vest in the employer and not the employee. For instance, Canadian copyright law states that if a work is created within the scope of employment, “the person by whom the author was employed shall, in the absence of agreement to the contrary, be the first owner of the copyright.” Under the British Copyright, Designs and Patents Act of 1988, if a copyrighted work is made by an employee in the course of that employment, the copyright is automatically owned by the employer as a "Work for Hire."

'''Civil Servants, Researchers and Professors'''

Traditionally there has been one category of employees exempt from the “work for hire” doctrine: academics (including teachers and sometimes researchers).

In some countries, works made in the scope of the employment of civil servants are also excluded from the “work for hire” doctrine, because they are denied copyright protection altogether. In other countries, this is not true. For instance, copyright law in the Czech Republic contains a presumption that a work created by a civil servant is a work for hire and the copyright and authorship rights are granted to the employer.

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffff; margin: 3px 3px 1em 3px;">

== Back to the case study ==

Nadia (the librarian) should help Angela (the professor) understand authorship questions in the set of materials she has gathered by asking a series of questions:

· Is the arrangement of pre-existing material in an original way considered a creative work?

· Does the summary of an article constitute a new work?

· Who will be the copyright holder of the new work?
· Do the answers to these questions affect Angela’s duty to obtain permission to reproduce and adapt preexisting works.

</div>

== Assignment and discussion questions ==

'''Round 1 questions'''

1. Multiple authorship

Information technologies make it easier to edit and remix others’ works, but not all modifications are substantial enough to create new original works. Discuss the effects of information technologies on the nature of authorship, using the example of Wikipedia.

2. Research for the next Public Domain Day

What is the copyright term in your country? List some of the authors whose work will fall in the public domain in your country on January 1 of the coming year.

'''Round 2 questions'''

1. Comment on the answers of your colleagues.

2. Search for more works that will enrich the public domain next year in your country.

== Sources ==

American Society of Composers, ASCAP COPYRIGHT LAW SYMPOSIUM 173-206 (Columbia University Press ed., 1991).

Bruce Keller & Jeffery Cunard, COPYRIGHT LAW (Practising Law Institute ed., 2001).

Cornell University Law School, Legal Infromation Institute, Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971) (Dec. 2, 2008), http://www.law.cornell.edu/treaties/berne/overview.html.

Crash Course on Copyrights (Dec. 2, 2008), http://www.iusmentis.com/copyright/crashcourse/protection/.

Paul Goldstein, INTERNATIONAL COPYRIGHT (Oxford University Press US ed., 2001).

World Intellectual Property Organization (Dec. 2, 2008), http://www.wipo.int/portal/index.html.en.

Module 3: The Scope of Copyright Law

2009-04-26T16:19:16Z

Avalle2:

By Inge Osman, Melanie Dulong de Rosnay and William Fisher

== Learning objective ==

This module discusses the kinds of creations and the kinds of activities that copyright law does and does not cover.

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== Case study ==

The course pack will build upon, quote and gather preexisting material by other authors. What is the status of the output after the professor’s contribution?

Angela, the professor, collects articles and books with the help of some students and research assistants. She will discuss with Nadia, the librarian, the distinction between ideas, which can be freely reproduced, and works, which can be quoted.

</div>

== What Does Copyright Law Protect? ==

'''The Definition of a Literary and Artistic Work'''

The Berne Convention, discussed in [[Module 2: The international framework]], establishes a literary and artistic work as the subject matter of copyright. Article 2, Section 1 of the Convention defines such a work expansively:

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 dramatico-musical 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.

To be entitled to protection, a work falling into this broad category must satisfy two basic requirements – originality and fixation – which are explained it detail below.

'''The Concept of Originality'''

Although neither the Berne Convention Berne Convention nor the TRIPS Agreement expressly requires originality, almost all countries require some level of authorial creativity for a work to qualify for copyright protection. How much creativity it required? Unfortunately, there is no uniform answer to that questions; each country independently sets the originality standard that works must meet.

Spain, the United Kingdom, Mexico, Canada, India, and the United States all extend copyright protection only to “original works.” United States law defines originality as independent conception. France and Spain on the other hand, following the moral rights tradition, define originality as the “imprint of the author’s personality” on the work.

In most countries, the work of authorship need not be original in the sense that it is novel, ingenious, or has aesthetic merit. For example, the US Supreme Court established the modern definition of originality as requiring only that the work be independently created by the author and that it possess “at least some minimal degree of creativity.” The Court made clear, however, that the “requisite level of creativity is extremely low;” a work need only “possess some creative spark no matter how crude, humble or obvious it might be.”

'''The Requirement of Form or Tangible Medium of Expression'''

The Berne Convention leaves it up to the individual countries to decide whether to require that copyrighted material be “fixed.” Article 2, Section 2 of the Convention states:

“It shall be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.”

Many countries do not require that a work be produced in a particular form to obtain copyright protection. For instance, Spain, France, and Australia do not require fixation for copyright protection. The US and Canada, on the other hand, require that the work be “fixed in a tangible medium of expression” to obtain copyright protection. US law requires that the fixation be stable and permanent enough so that it may be “perceived, reproduced or communicated for a period of more than transitory duration.” Similarly, Canadian courts consider fixation to require that the work be “expressed to some extent at least in some material form, capable of identification and having a more or less permanent endurance.” The definition of “fixation” in the US excludes “purely evanescent or transient reproductions such as those projected briefly on a screen, shown electronically on a television or other cathode ray tube, or captured momentarily in the ‘memory’ of a computer.”

Many courts, including those in the US, have deemed computer programs fixed when stored in a silicon chip. The audiovisual effects of computer games are commonly considered to be fixed because their repetitiveness makes them “sufficiently permanent and stable.”

The requirement of fixation may become problematic when applied to live performances. For instance, US law specifies that a work must be fixed “by or under the authority of the author.” This means that if someone were to record and distribute copies of a live performance without permission, the performer would have no legal recourse under copyright law because that performance would not be fixed and therefore would not be eligible for copyright protection. Countries that grant copyright for perceptible works regardless of fixation do not have similar problems. In the US, Congress tempered the fixation requirement by declaring “a work consisting of sounds, images, or both that are being transmitted, is ‘fixed’if a fixation of the work is being made simultaneously with its transmission.” This rule provides a solution for performances that are being broadcast or transmitted, but, arguably, live performances that are simultaneously recorded but not transmitted are still unprotected by copyright law.

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) requires all members of the World Trade Organization (WTO) to protect live musical performances. This means that even countries with fixation requirements must enact statutes to ensure the protection of musical performances without fixation. The US, for instance, enacted a special provision prohibiting the “fixation or transmission of a live musical performance without the consent of the performers, and prohibiting the reproduction of copies or phonorecords of an unauthorized fixation of a live musical performance.” Notice, however, that this provision is limited to “musical” performances.

'''The Exclusion of Ideas from Copyright Protection'''

As indicated in [[Module 1: Copyright and the public domain: an introduction]], copyright law does not protect ideas or facts; it only protects the expression of those ideas or facts. In this regard, the US copyright statute is typical: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated or embodied in such work.” The same principle can be found in the major treaties. The Berne Convention, for example, states that protection “shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information.” Both the TRIPS Agreement and the WIPO Copyright Treaty state that expressions are copyrightable, but not “ideas, procedures, methods of operation or mathematical concepts as such.”

The Berne Convention permits individual member countries to determine whether this basic principle should be extended to deny protection to works created by government agencies: “[I]t shall be a matter for legislation in the countries of the Union to determine the protection to be granted to official texts of a legislative, administrative and legal nature, and to official translations of such texts.”

It is sometimes said that the purpose of excluding ideas and facts from the scope of what is copyrightable is to promote the public interest in freedom of speech. Extending copyright protection to ideas or facts would inhibit public debate by allowing copyright holders to control uses of the concepts or information contained in their works. Both political freedom and the progress of knowledge would suffer.

On occasion, an idea and its expression may become indistinguishable. If there is only one way of expressing a particular idea, the idea and the expression of that idea are said to “merge.” The merger doctrine in copyright law was developed to deal with such cases, removing from the scope of copyright protection those expressions that constitute the only way of expressing an idea. What about situations in which an idea can only be expressed in a limited number of ways? The courts in some countries deal with such situations by granting limited or “thin” copyright protection to those expressions – in other words, prohibiting only verbatim copying, or virtually identical copying.

'''The Difference between owning a copy and owning a copyright.'''

Ownership of a physical copy of a work is separate from copyright ownership. Just because you own a copy of a book doesn’t mean you are free to copy it.

Ordinarily, when the creator of a work sells or transfers a copy of it to another person, he does not surrender his copyright unless he expressly agrees to do so. So, for example, the writer of a letter or an email message retains the copyright in the letter even after he has sent it to the recipient.

For the most part, the lawful owners of copies of copyrighted works are free to sell or give those copies to other people – or to destroy or mutilate them. However, some treaties and national legal systems recognize “moral rights” that set limits on the freedom of the owners of copies to act in these ways. The Berne Convention, for example, provides:

Independently of the author’s economic rights, and even after 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, which would be prejudicial to his honor or reputation.

== The Relationship between Copyright Infringement and Other Unauthorized Activities ==

Copyright infringement is the unauthorized use of a copyrighted work in a manner that violates one of the copyright owner’s exclusive rights.

We will examine those rights in detail in [[Module 4: Rights, Exceptions, and Limitations]]. It should be emphasized that copyright infringement covers only a subset of the ways in which copyrightable works may be used without permission. Some unauthorized uses that do not constitute copyright infringement may violate other legal rules; some may violate nonlegal social norms; while still others are both lawful and socially approved. This complex pattern of norms finds expression in a variety of terms, which are frequently confused. We disentangle some of them below and they will be studied in [[Module 7: Enforcement]].

Plagiarism consists of the use of ideas or words of someone else without properly crediting the source. It is entirely separate from copyright law. Common sanctions for plagiarism are expulsion or suspension from school, discharge from a job, and social disapproval.

'''“Piracy”''' has no strict definition within (or outside of) copyright law. In recent years, the term has been used increasingly often (typically by nonlawyers) to refer to unauthorized and unexcused reproductions of audio and video recordings, but the copyright laws do not themselves refer to “piracy.” Insofar as the term connotes the violence that commonly accompanies the seizure of ships on the high seas, it is misleading when used in connection with unauthorized uses of literary works.

'''“Counterfeiting”''' is defined in various ways. Most often, the term refers to the creation or distribution of imitations (typically inferior-quality) imitations of genuine works – with the intent to deceive the public concerning their authenticity. Conterfeiting in this sense is governed primarily by trademark law and the law of unfair competition, not by copyright law. (link from counterfeiting to ACTA proposal in [[Module 2: The international framework]])

Finally, it bears repeating that many unauthorized uses of copyright works do not violate any legal regime. Such permissible unregulated uses include reading a book, performing a play privately, selling a copyrighted work, and watching a copyrighted performance.

== Copyright Duration ==

The Berne Convention requires that the term of copyright protection be, at a minimum, the life of the author plus an additional fifty years after her death. Member countries are free, however, to adopt longer terms, subject to the following limitation:

“In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work.”

Many countries have exercised the discretion left to them by the Berne Convention. The result is that the duration of copyright varies substantially by country.

The resulting difficulty in determining how long a copyright will last is exacerbated by the fact that many countries make the duration of copyright dependent on the type of work at issue. The Czech Republic and the Netherlands, for instance, grant copyright protection for the life of the author plus 70 years for literary works, and for the life of the longest living joint author plus 70 years for jointly held works. This construction is deceptively simple, because it applies only to works created on or after April 7, 2000 and December 29, 1995 respectively. Works created before those dates, respectively, are subject to different and more complicated copyright duration terms. The sporadic lengthening of copyright terms that has occurred internationally has led to a complicated patchwork of copyright duration terms determined by the category of work, and the date of creation or publication.

Click here to learn about the [[Case of the Canadian Online Repositories of Public Domain]].

To learn about [[Recent Term Extensions Controversies (Eldred v. Ashcroft)]].

== Extensions of the Scope of Copyright Protection ==

In recent years, copyright law has gradually expanded to encompass more subject matters and more exclusive rights. The Berne Convention, the TRIPs Agreement, the Universal Copyright Conventions and the WIPO Copyright Treaty work together to produce minimum standards of protection that countries must meet, thereby extending copyright protection generally.

Some of these extensions can be justified on the ground that they stimulate additional creativity. On the other hand, the extension of copyright to more kinds of works and for a greater length of time has resulted in the reduction in the amount of material in the public domain. As a result, materials that could otherwise be used in the creation of new artistic or literary works can no longer be used.

As copyright law has expanded, it has fragmented. In other words, special rules have been devised to deal with particular kinds of works. Some of those special rules are described below.

'''Audiovisual and Cinematographic works, Computer Programs'''

Audiovisual or cinematographic works are collective projects that often involve the contributions of several individual authors, discussed in the Rights Ownership and Works for Hire topics in [[Module 4: Rights, Exceptions, and Limitations]]. Given the large number of people that are involved in their creation, treating each contributor as a joint author of the work would give rise to practical problems. For instance, in order for use of the film to be assigned, each contributor would need to agree to license the copyright.

Different countries have try to overcome this problem in different ways. The French Intellectual Property Code treats contributors to films as co-authors but implies into the author-producer relationship a transfer of the exploitation rights of the material to the producer. Countries such as the United Kingdom and the United States, by contrast, vest the authorship and copyright ownership of these works in a single person. For instance, the 1988 Copyright, Designs and Patent Act in the United Kingdom typically vests these rights in the producer. The U.S. Copyright Act on the other hand treats the contributions to a audiovisual or cinematographic work as works made for hire, thereby also vesting authorship and copyright ownership in one person, typically the producer. The Berne Convention recognizes and respects the differences among countries in the allocation of rights to audiovisual and cinematographic works.

Computer programs constitute another special category of works. Although the Berne Convention does not address computer programs, the TRIPS agreement requires that computer programs be protected as literary works. Like audiovisual works, computer programs are often the products of the efforts of many individuals. Here too, countries vary in the way they handle allocation of authorship rights. German copyright law, for example, contains a presumption giving exclusive rights to the employer in the context of computer software.

'''Broadcast, Recording, Interpretation'''

The Berne Convention requires that the author of a copyrighted work be given the exclusive right to authorize

(i) the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images;
(ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original public one;
(iii) the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work.

The Berne Convention permits individual countries to determine which of these rights may be exercised and in what circumstances, but stipulates that they should not be applied in a way that would be prejudicial to an author’s moral rights. Countries such as Ireland, Kenya and Oman have enacted copyright laws extending to authors the right to control and license broadcasts of their work.

'''Works of Folklore and Indigenous Knowledge'''

Copyright protection for traditional cultural expressions or for works of folklore has been increasing. Such works typically are created by communities rather than individuals. According to WIPO, “works of traditional cultural expression include music, art, designs, names, signs and symbols, performances, architectural forms, handicrafts and narratives.” Among the purposes of protecting cultural products of these sorts the promotion of creativity and cultural diversity. Countries such as the Philippines, Panama, and New Zealand currently have legislation specifically extending intellectual property protection to works of folklore.

For instance, Oman’s legislation on “Promulgating the Law on the Protection of Copyrights and Neighboring Rights” extends copyright to folklore, defining it as “literary, artistic or scientific works created in Oman by popular groups expressing their cultural identity, which are transferred from generation to generation and represent a fundamental element in the national popular traditional heritage. The competent authority shall exercise the author’s rights in works of folklore to object to any mutilation, modification or unlawful commercial exploitation.”

== What is an “Author”? ==

'''Rights Ownership Rules: How to Determine the Original Right Holder'''

The Berne Convention gives member countries broad latitude in determining who is considered an author, and therefore the original copyright owner, of a literary or artistic work. Article 15(1) provides:

“In order that the author of a literary or artistic work protected by this Convention shall, in the absence of proof to the contrary, be regarded as such, and consequently be entitled to institute infringement proceedings in the countries of the Union, it shall be sufficient for his name to appear on the work in the usual manner. This paragraph shall be applicable even if this name is a pseudonym, where the pseudonym adopted by the author leaves no doubt as to his identity.”

The majority of civil-law countries stipulate that only “persons” in the ordinary sense can qualify as authors. Spanish copyright law, for example, specifies “the natural person who creates any literary, artistic, or scientific work shall be considered the author thereof.” Similarly, French copyright law states that “authorship shall belong, unless proved otherwise, to the person or persons under whose name the work has been disclosed.” Common-law countries, by contrast, more often permit organizations – for instance, corporate employers – to qualify as “authors.”

The determination of who the author of a literary or artistic work is often straightforward: the author is the person who conceives of and gives expression to an idea. However, in other cases, this determination becomes more complicated and may depend on who assists in the production, oversees and directs the arrangement of the details of the literary or artistic work. In such cases, the determination of authorship will depend on the facts of the specific case.

'''Works by Multiple Authors: Rules for Joint Authorship and Collaborations'''

Joint authorship exists when two or more persons create a copyrighted work. In situations of this sort, legislation in most countries grants each contributor an undivided share of the copyright in the work. The requirements for joint authorship vary across nations. The Berne Convention recognizes that joint authorship exists but does not specify the requirements for joint authorship, thus allowing for the variance among nations.

Countries in continental Europe typically stipulate that joint authorship does not require that each author contribute the same amount to the work, but require that each author’s contribution displays the minimal amount of creativity or originality necessary in the jurisdiction to merit copyright protection in its own right. Applying this approach, a Dutch Supreme Court decision Kluwer v. Lamoth granted a stylist co-authorship status for creatively rearranging needleworks for a photograph.

The second common requirement for joint authorship is that each author’s contribution cannot be separated and commercially exploited independently of the work as a whole. For instance, Japanese legislation defines joint works as works that are “created by two or more persons in which the contribution of each person cannot be separately exploited.” If this is not true – for instance, when one author contributes the music and another the lyrics for a song – each contributor is typically given an independent copyright in his or her contribution.

'''Derivative Works and Transformations'''

Derivative works are modifications of preexisting works. Examples include abridgments and motion-picture adaptations of novels. The Berne Convention does not explicitly refer to derivative works, but rather lists a number of works based on other copyrighted works for which member countries must provide copyright protection. Specifically, the Berne Convention Article 2, Section 3 states that

“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 of the original work.”

This provision is incorporated into the TRIPS agreement. Although these provisions guarantee the protection of specific types of derivative works, they do not clarify what level of distinction is necessary from the original copyrighted work for a derivative work to merit copyright protection in its own right. Often it is not clear whether obtaining a copyright in a derivative work requires a higher level of originality than obtaining a copyright in a completely new work. In any case, a copyright in a derivative work extends only to the new material contributed by the author of the derivative and not also to the preexisting material. If the original work is still protected by copyright, they then author of the derivative work must obtain the permission of the owner of the copyright in the original.

'''Collective Works and Compilations'''

Compilations constitute another instance of a situation in which a copyright may be obtained through the use and manipulation of preexisting works. Compilations are works formed by assembling, selecting, or rearranging preexisting works such that the result constitutes an original work of the author. Collective works represent a specific type of compilation in which a number of separate and independent contributions are assembled into one work. A collective work is a work by two or more authors but is not cohesive enough to qualify as a joint work. The Berne Convention only requires the protection of collective works.

“Collections of literary or artistic works such as encyclopedias 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.” Article 2, Section 5.

The TRIPS Agreement extends copyright protection to all compilations:

“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.” Article 10, Section 2.

'''Employees and Works for Hire'''

Employees are often hired to create creative literary or artistic works, resulting in questions of authorship rights. Civil law countries impose as a default the rule that the authorship of a work created in the scope of employment vests in the employee, not the employer. This requires that employers contract with employees to obtain the copyrights to the creative works. For instance, the French Intellectual Property Code stipulates that copyright vests in the work’s actual author and not his employer. (This is the provision by default; rights ownership of some categories of work, such as software, are immediately assigned to the employer.) On the other hand, some countries, including Germany, imply into the employee-employer relationship an assignment of copyright from the employee to the employer.

Common-law countries, such as the United States, Canada, and Great Britain, set as a default rule that the copyrights to works created within the scope of employment vest in the employer and not the employee. For instance, Canadian copyright law states that if a work is created within the scope of employment, “the person by whom the author was employed shall, in the absence of agreement to the contrary, be the first owner of the copyright.” Under the British Copyright, Designs and Patents Act of 1988, if a copyrighted work is made by an employee in the course of that employment, the copyright is automatically owned by the employer as a "Work for Hire."

'''Civil Servants, Researchers and Professors'''

Traditionally there has been one category of employees exempt from the “work for hire” doctrine: academics (including teachers and sometimes researchers).

In some countries, works made in the scope of the employment of civil servants are also excluded from the “work for hire” doctrine, because they are denied copyright protection altogether. In other countries, this is not true. For instance, copyright law in the Czech Republic contains a presumption that a work created by a civil servant is a work for hire and the copyright and authorship rights are granted to the employer.

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffff; margin: 3px 3px 1em 3px;">

== Back to the case study ==

Nadia (the librarian) should help Angela (the professor) understand authorship questions in the set of materials she has gathered by asking a series of questions:

· Is the arrangement of pre-existing material in an original way considered a creative work?

· Does the summary of an article constitute a new work?

· Who will be the copyright holder of the new work?
· Do the answers to these questions affect Angela’s duty to obtain permission to reproduce and adapt preexisting works.

</div>

== Assignment and discussion questions ==

'''Round 1 questions'''

1. Multiple authorship

Information technologies make it easier to edit and remix others’ works, but not all modifications are substantial enough to create new original works. Discuss the effects of information technologies on the nature of authorship, using the example of Wikipedia.

2. Research for the next Public Domain Day

What is the copyright term in your country? List some of the authors whose work will fall in the public domain in your country on January 1 of the coming year.

'''Round 2 questions'''

1. Comment on the answers of your colleagues.

2. Search for more works that will enrich the public domain next year in your country.

== Sources ==

American Society of Composers, ASCAP COPYRIGHT LAW SYMPOSIUM 173-206 (Columbia University Press ed., 1991).

Bruce Keller & Jeffery Cunard, COPYRIGHT LAW (Practising Law Institute ed., 2001).

Cornell University Law School, Legal Infromation Institute, Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971) (Dec. 2, 2008), http://www.law.cornell.edu/treaties/berne/overview.html.

Crash Course on Copyrights (Dec. 2, 2008), http://www.iusmentis.com/copyright/crashcourse/protection/.

Paul Goldstein, INTERNATIONAL COPYRIGHT (Oxford University Press US ed., 2001).

World Intellectual Property Organization (Dec. 2, 2008), http://www.wipo.int/portal/index.html.en.

Module 2: The International Framework

2009-04-26T16:14:13Z

Avalle2:

By Petroula Vantsiouri and William Fisher

== Learning objective ==

This module describes the main instruments of the international copyright framework, the impact of that framework on developing countries, and opportunities for developing countries to influence the development or interpretation of the framework.

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== Case study ==

''“I want to participate to an international exchange program, what should I know?”''

Nadia is currently working as a librarian in Mexico and has a very good knowledge of the copyright protection law in her country. Nadia is interested in applying for an exchange program for librarians in order to work for six months in another country. The countries she is considering working in are Ethiopia, Russia, India and Belgium.

However, one of the requirements for participating in the exchange program is that she understands the general framework of copyright protection in the country that she will be working. More specifically she has to understand the following issues:
- general standards of protection of copyrighted works,
- protection of performers and producers of recordings,
- copyright protection of computer programs and databases,
- intellectual property rights of performers and of producers of phonograms.

Another librarian advised her to check whether the aforementioned countries have signed the same treaties that Mexico has signed, so that their copyright law resembles Mexican law to the extent required by such treaties. Nadia should however take also into account whether these treaties have an effective enforcement mechanism that ensures that the countries have transposed their provisions into their national law.

</div>

== The Rationale for the International System ==

As we saw in '''[[Module 1: Copyright and the public domain: an introduction]]''', each country in the world has its own set of copyright laws. However, the flexibility that each country enjoys in adjusting and enforcing its own laws is limited by a set of international treaties. Why? Why do we need any international management of this field?

There are two traditional answers to that question. First, in the absence of international controls, each country would be inclined to discriminate in favor of its own citizens or residents and against foreigners. Indeed, in the nineteenth century, before any international regulations were imposed, such discrimination was common.

Second, individual authors would find it very difficult to learn and comply with the idiosyncratic rules adopted by every country in the world. Thus, some degree of harmonization of the laws of separate countries seems necessary to enable authors to obtain effective copyright protection globally.

Recently, a third answer has been added to the first two. In the judgment of some copyright owners – in particular, record companies, film studios, and software firms – developing countries are insufficiently appreciative of the benefits of a copyright system. On this view, treaties are necessary to compel those countries to adopt economically and socially beneficial copyright regimes. As one might imagine, the representatives of developing countries often disagree.

== International instruments ==

You might expect that a single treaty, binding on all countries, would most effectively advance the three goals just mentioned. Unfortunately, the current situation is more complex. Instead of one treaty, we now have six major multilateral agreements, each with a different set of member countries.

Each of the six agreements was negotiated within – and is now administered by – an international organization. Four of the six are managed by the World Intellectual Property Organization (WIPO), one by the United Nations Educational, Scientific and Cultural Organization (UNESCO), and one (arguably the most important one) by the World Trade Organization (WTO).

The ways in which the six agreements have been created and implemented have been similar. Typically, the process begins when representatives of a group of countries agree that a particular set of issues requires harmonization. They enter into '''negotiations''', which can last several years. During the '''negotiations''', draft provisions are presented to the delegations of each state, which then discuss them and may propose amendments to their content. Once consensus has been reached, the states conclude the treaty by '''signing''' it. Thereafter, the governments of the participating countries '''ratify''' the treaty, whereupon it '''enters into force'''. From that moment onward, the signatory states assume obligations towards the other countries to implement the international agreement. States that did not sign the treaty when it was initially concluded may join the treaty later by '''accession'''.

None of the treaties contains a comprehensive recipe for the creation of a copyright system. Rather, each one requires member countries to deal with particular issues in particular ways, but leaves to the member states considerable discretion in implementing its requirements. Nor do any of the treaties bind individual persons within the member countries. Until and unless the governments of those countries adopt implementing legislation, they have no impact on their citizens or residents.

Click here for more on the [[Stages of an international agreement]].

Set forth below are brief descriptions of the six major treaties, with special attention to their impacts on developing countries.

'''Berne Convention'''

The uncertainty and confusion that generated the lack of a unified framework for the protection of copyright led ten European States in 1886 to sign the Berne Convention for the Protection of Literary and Artistic Works (henceforth Berne Convention). Since then, a total of 164 countries have joined the Convention. Any nation is permitted to join.

You can check if your country is a member of the Berne Convention on: http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15. See bellow a map that indicates the countries that are today members

[[Image:Map1.png]]

The Berne Convention established three fundamental principles. The first and most famous is the principle of the “national treatment,” which requires member countries to give the residents of other member countries the same rights with respect to copyright law that they give to their own residents. So, for example, a novel written in France by a French citizen enjoys the same protection in Italy as a novel written in Italy by an Italian citizen.

The second is the principle of “independence” of protection. It provides that each member country must give foreign works the same protections they give domestic works, even when the foreign works would not be shielded under the copyright laws of the countries where they originated. For example, even if a novel written in Belgium by a Belgian national were not protected under Belgian law, it would still be protected in Italy, if it fulfilled the requirements for protection under Italian law.

The third is the principle of the “automatic protection.” It forbids member countries to make copyright protection depend upon compliance with any formalities. In other words, in Berne Convention countries, original works enjoy copyright protection automatically from the moment they are created. So, for example, the British author of a novel doesn’t have to register or declare her novel in France, Italy, Belgium or any other member state of the Convention; her novel will be automatically protected in all of these countries from the moment she has written it.

In addition to these basic principles, the Berne Convention also imposes on member countries a number of more specific requirements. For instance, they must enforce copyrights for a minimum period of time: namely, the life of the author plus 50 years. The Convention also requires its members to recognize and enforce a subset of the “moral rights” discussed in [[Module 1: Copyright and the public domain: an introduction]].

When the Berne convention was revised in Paris in 1971, the signatory states included an Appendix, which contained special provisions concerning developing countries. In particular, developing countries may, for certain works and under certain conditions, depart from these minimum standards of protection with regard to the right of translation and the right of reproduction. More specifically, the Appendix permits developing countries to grant non-exclusive and non-transferable compulsory licenses in respect of translation for the purpose of teaching, scholarship or research, and reproduction for use in connection with systematic instructional activities of works protected under the Berne Convention.

Due to the general and abstract content of most provisions of the Berne Convention, each national legislature enjoys considerable flexibility in implementing the Treaty. For example, in the Berne Convention Implementation Act of 1988, the U.S. Congress adopted a “minimalist” approach to implementation, making only those changes to copyright law that were absolutely necessary to qualify it for membership.

Furthermore, at the time that Berne the Convention was signed, the signatory countries did not establish an enforcement mechanism. Thus, even if one member state did not implement fully in its national legislation the rules set by the Convention, the other signatory states had little power either to force the recalcitrant country to comply with its obligations or to punish it for not doing so. It could be said that the Berne Convention was a treaty without “teeth.” As we will see later on, this situation partially changed for the members of the Berne Convention that also joined the World Trade Organization.

For the full text of the Convention, see http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html.

Click here for more the [[Berne Convention]].

'''Rome Convention (1961)'''

Technological progress – in particular, the invention of devices, such as tape recorders, that allowed creative works to be reproduced easily – created a perceived need for enhanced protections for the performers and producers of recordings. The Berne Convention, which was primarily concerned with the circulation of printed materials, was ineffective for this purpose. To address this need, the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations was concluded by members of the WIPO on October 26, 1961. It extended copyright protection from the author of a work to the creators and owners of particular, physical embodiments of the work, such as audiocassettes and DVDs.

The Rome Convention requires member countries to grant protection to the performances of performers, the phonograms of producers of phonograms, and the broadcasts of broadcasting organizations. However, once a performer has consented to the incorporation of her performance in a visual or audiovisual fixation, the provisions on performers’ rights have no further application. Equally important, the Convention allows member countries to create certain exceptions to the rights of performers, producers of phonographs, and broadcasting organizations – for example, to permit nonpermissive uses of a work for the purpose of teaching or scientific research.
86 countries have signed the Rome Convention so far. For a list of the contracting parties, you can visit the link: http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=17. See bellow a map indicating the Member States of the Rome Convention.

[[Image:Map2.png]]

Not any country can join the Rome Convention; it is open only to countries that are already parties to the Berne Convention or to the Universal Copyright Convention (which we will discuss shortly). Countries that join the convention may make reservations with regard to the application of certain provisions. In practice, this has enabled countries to avoid the application of rules that would require important changes to their national laws.

For the text of the Convention, see http://www.wipo.int/treaties/en/ip/rome/trtdocs_wo024.html.

Click here for more on [[Rome Convention provisions]].

'''WIPO Copyright Treaty and WIPO Performance and Phonograms Treaty'''

The way that copyright owners reproduce, distribute, and market their works has changed in the digital age. Sound recordings, articles, photographs, and books are commonly stored in electronic formats, are circulated via the Internet, and are compiled in databases. Unfortunately, the same technologies that enable more efficient storage and distribution of works also facilitate widespread copyright infringement. In order to protect copyright in the new technological era and to combat what has come to be called (misleadingly) “electronic piracy,” the governments of developed countries advocated and ultimately secured two other treaties: the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty.

The WIPO Copyright Treaty (WCT) is a special agreement accepted under the Berne Convention that entered into force on March 6, 2002. It is the first international treaty that requires countries to provide copyright protection to computer programs and to databases (compilations of data or other material).

The WCT further provides that member countries must prohibit effectively in their dominion the circumvention of technological measures set by the authors for their protection, such as decryption, as well as unauthorized modification of so-called “rights management information” (data that identify works or their authors, and that are necessary for the management of their rights).

For the text of the Treaty see http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html.

Click here for more on[[Examination of its provisions]].

The '''WIPO Performances and Phonograms Treaty (WPPT)''' was signed by the member states of WIPO in order to enhance the intellectual property rights of performers and of producers of phonograms (vinyl records, tapes, compact discs, digital audiotapes, MP3s, and other media for storing sound recordings).

The WPPT grants performers four kinds of economic rights in their performances '''fixed in phonograms''', three kinds of economic rights in respect of their live '''performances''', as well as '''moral rights'''. By contrast, producers of phonograms are only granted economic rights in their phonograms.

For the text of the Treaty see http://www.wipo.int/treaties/en/ip/wppt/trtdocs_wo034.html.

Click here for more on [[Examination of the WPPT]].

Both the WCT and the WPPT (like the TRIPs Agreement, which we will consider shortly) oblige every contracting country to adopt expeditious remedies to prevent infringement of their substantive provisions.

To determine whether your country has accepted the WCT see: http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=16. For the WPPT, see: http://www.wipo.int/treaties/en/ShowResults.jsp?country_id=ALL&start_year=ANY&end_year=ANY&search_what=C&treaty_id=20

A map indicating the Member States to the WCT is available can be accessed [http://cyber.law.harvard.edu/copyrightforlibrarians/sites/copyrightforlibrarians/images/Map4.png/ here]; a map indicating the Member States to the WPPT is available can be accessed [http://cyber.law.harvard.edu/copyrightforlibrarians/sites/copyrightforlibrarians/images/Map5.png/ here].

'''Universal Copyright Convention'''

The '''Universal Copyright Convention''' (or '''UCC'''), was developed by UNESCO and was adopted in Geneva in 1952, as an alternative to the Berne Convention. It was developed in order to satisfy the desire of countries, such as the U.S.A. and the Soviet Union, to participate in some form of multilateral copyright protection without joining the Berne Convention.

The UCC’s provisions are more flexible than those of the Berne Convention, intended to accommodate countries at different stages of development and countries with sharply different economic and social systems. It incorporates the principle of national treatment and prohibits any discrimination against foreign authors.

Nowadays the importance of the UCC is minimal as most countries have acceded to the Berne Convention and almost all states in the world are either members or aspiring members of the World Trade Organization, and thus conforming to the Agreement on Trade-Related Aspects of Intellectual Property Rights (which we will discuss in a moment).

For the text of the Treaty see http://www.ifla.org/documents/infopol/copyright/ucc.txt
For a list of the countries members of the UCC see: http://portal.unesco.org/culture/en/files/7816/11642786761conv_71_e.pdf/conv_71_e.pdf

Click here for more on [[Examination of the UCC]].

'''The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs)'''

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) is an international agreement administered by the World Trade Organization (WTO) that establishes minimum standards for many forms of intellectual property protection, including copyright. The TRIPs Agreement was negotiated and concluded in 1994.

In terms of its substantive provisions, TRIPs adds little to the Berne Convention. It requires member countries to extend copyright protection to computer programs and data compilations – and thus extends the reach of the copyright regime. On the other hand, it excludes moral rights, which Berne, as we have seen, mandates.

The principal innovations of the Agreement pertain, not to the substance of copyright law, but to two issues involving remedies. First, unlike Berne, the TRIPs Agreement requires member countries to provide effective sanctions for violations of copyrights. Second, it creates a a dispute resolution mechanism by which countries can be forced to comply with their treaty obligations. In other words, TRIPs has teeth.

In an effort to balance public interests and the private interests of copyright owners, the TRIPs Agreement allows member states to establish limitations and exceptions to the exclusive rights of copyright holders – but only if they meet a set of related requirements known collectively as the “three-step test”.

Click here for more [[Information concerning the three-step test]].

Finally, the TRIPS Agreement incorporates certain "flexibilities" with respect to member countries’ compliance with its requirements concerning copyright protection. These flexibilities aim to permit developing and least-developed countries to use TRIPS-compatible norms in a manner that enables them to pursue their own public policies, either in specific fields, such as access to pharmaceutical products, or more generally, in establishing the institutional framework that contributes to their economic development.

Click here for more [[Information concerning the flexibilities]].

For the full text of the Agreement, see http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.html.

Click here for more on[[Examination of the TRIPS provisions]].

'''The Anti-Counterfeiting Trade Agreement proposal (ACTA, 2007)'''

These six multilateral treaties may soon be joined by a seventh. In October 2007, the United States, the European Community, Switzerland, and Japan simultaneously announced that they would negotiate a new intellectual property enforcement treaty, the Anti-Counterfeiting Trade Agreement, or ACTA. Australia, the Republic of Korea, New Zealand and Mexico have since joined the negotiations.

Among other issues, the ACTA will deal with tools targeting "Internet distribution and information technology," such as authorizing officials to search for illegally downloaded music on personal devices at airports, or forcing Internet Service Providers to provide information about possible copyright infringers without a warrant.

'''Free Trade Agreements and Bilateral Investment Treaties'''

Multilateral agreements, such as the TRIPs Agreement, can provide effective protection to copyright holders worldwide, because they establish minimum substantive standards binding on large numbers of countries. However, they do not eliminate the incentives for bilateral treaties – either to address specific issues in which only two countries have an interest, or to enable interests groups within a powerful country to extract concessions from a weaker one. Such agreements are commonly known as free trade agreements (FTAs) or Bilateral Investment Treaties (BITs).

Typically, such bilateral agreements either narrow the flexibilities that a developing country would enjoy under the TRIPS Agreement, or impose more stringent standards for copyright protection. For example, the US government has included anti-circumvention obligations in its bilateral FTAs with Jordan, Singapore, Chile, Morocco, Bahrain and Oman.

Click here for more [[Information on FTAs]].

== Perspectives for developing countries ==

Upgrading copyright legislation and enforcement worldwide can be viewed as the duty of governments towards their citizens, as copyright protection promotes the arts and rewards authors for their creative efforts. Arguably, granting an exclusive right in creative expression provides a necessary incentive to invest in the creation and distribution of expressive works and, thus, stimulates cultural advancement.

On the other hand, it has been argued that instituting the same rules for copyright protection in all countries, regardless of their development status, can be detrimental for the cultural development of developing countries. Most developed counties have powerful entertainment, education, and research industries, whereas developing countries typically import embodiments of the copyrighted works generated by those industries. Thus, the residents of developing countries have to pay more royalties and fees as a result of enhanced copyright protection. In addition, it has been argued that strict IP rules can restrict the ability of many governments to fulfil their human rights obligations, such as ensuring that their residents have fair access to educational goods.

The latter set of arguments have has prompted a growing number of developing countries to resist the imposition of the minimum standards of copyright protection set by the TRIPs agreement and the even harsher duties that are imposed on developing countries by FTAs. They call for a better balance between, on one hand, providing incentives to creators and rewarding their creative activities and, on the other hand, promoting access to knowledge and research, in order to spur economic growth and foster innovation in the developing countries.

'''WIPO Development Agenda'''

In 2004, Brazil and Argentina submitted to the WIPO General Assembly a proposal for a “development agenda.” In general, the proposal sought to ensure that WIPO in its various activities pay greater attention to the impact of intellectual property protection on economic and social development, the need to safeguard flexibilities designed to protect the public interest, and the importance of promoting “development oriented” technical cooperation and assistance. The text of Brazil’s and Argentina’s proposal is available at:
http://www.wipo.int/documents/en/document/govbody/wo_gb_ga/pdf/wo_ga_31_11.pdf. Additional proposals in support of a WIPO Development Agenda were submitted by other member states and organizations, such as Chile, the Group of Friends of Development, the Africa Group, and Colombia.

This initiative has made considerable progress. In the 2004 WIPO General Assembly, states agreed to hold a series of intergovernmental meetings to examine the proposals for a development agenda. Substantive reform proposals to establish a Development Agenda for WIPO passed during the 2007 General Assembly. The 45 development recommendations currently on the development agenda are available at: http://www.wipo.int/ip-development/en/agenda/recommendations.html

Organizations representing librarians have had a significant voice in the negotiations of the Development Agenda. Joint statements of the International Federation of Library Associations (IFLA), the Library Copyright Alliance (LCA), and Electronic Information for Libraries (eIFL) are available at:
http://www.eifl.net/cps/sections/services/eifl-ip/issues/wipo-development-agenda

Click here for more [[Information on the WIPO development agenda]].

'''The access to knowledge treaty proposal'''

The Argentina-Brazil proposal for a development agenda gave rise to a debate concerning whether WIPO should ensure effective technology transfer from developed to developing countries. Nongovernmental organisations (NGOs), academics, and researchers shared the concerns expressed by developing countries that some aspects of the copyright system were actually impeding innovation instead of promoting it and were creating disadvantages for the developing countries. This reaction to WIPO’s current policies took the form of a movement calling for equality among citizens from developed and developing countries as regards access to knowledge; it has come to be known as the “access to knowledge” or “A2K” movement. Librarians’ organizations, such as eIFL, were pioneers in the advocacy of people’s “right to knowledge” and have called upon WIPO to establish minimum exceptions and limitations to copyright protection.

One outgrowth of the movement has been a proposal for a United Nations treaty, the current draft of which is available at: http://www.cptech.org/a2k/a2k_treaty_may9.pdf. The treaty proposal aims to “protect and enhance access to knowledge, and to facilitate the transfer of technology to developing countries.” It includes a list of occasions when copyright holders should not be able to invoke their exclusive rights, such as:

· The use of works for purposes of library or archival preservation, or to migrate content to a new format.

· The efforts of libraries, archivists, or educational institutions to make copies of works that are protected by copyright but that are not currently the subject of commercial exploitation, for purposes of preservation, education, or research.

· The use of excerpts, selections, and quotations for purposes of explanation and illustration in connection with not-for-profit teaching and scholarship.

· The use of works, by educational institutions, as primary instructional materials, if those materials are not made readily available by right-holders at a reasonable price.

In addition, the proposal advocates a First Sale Doctrine for Library Use, stating that “a work that has been lawfully acquired by a library may be lent to others without further transaction fees to be paid by the library.” Finally, the A2K treaty proposal introduces provisions in support of distance education and other provisions accommodating the rights of persons with disabilities.

Librarians and library patrons aren’t the only ones who could benefit from the A2K treaty. The proposal includes rules protecting Internet Service Providers from copyright liability, and also mitigates the strict circumvention prohibitions that are applied by the international treaties. Nonoriginal and orphan works would be left in the public domain under the treaty proposal, and people would be afforded access to publicly funded research works, government works, and archives of public broadcasting. Finally, the A2K treaty proposal also includes provisions on patent protection, anticompetitive practices, and transfer of technology to developing countries.

Click here for more [[Information on the A2K Treaty proposal]].

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== Back to the case study ==

Nadia knows that Mexico is a member of the Berne Convention, WIPO, Rome Convention, WCT and WPPT. After checking the online databases provided in the WIPO website she found out the following about the countries where she is interested in working:

- Ethiopia isn’t currently a member of any of the international treaties on copyright protection. Thus, the national government of that country has the freedom to regulate copyright independently from other states in the rest of the world. Therefore Nadia cannot have an understanding of the copyright legislation in Ethiopia, unless she had studied Ethiopian copyright law.
- Russia has signed the Berne Convention as well as the Rome Convention, but isn’t yet a member of the WTO. Because both the Berne and the Rome Convention lack an effective enforcement mechanism, other signatory states have little leverage to force Russia to comply with their obligations. Furthermore, Rome Convention affords states that join the treaty the liberty to make reservations with regard to the application of certain provisions.

In addition, Russia has signed the WCT, but that treaty hasn’t entered into force yet. In other words, although Russia has undertaken an obligation towards the other signatory countries to implement the treaty, it hasn’t yet been incorporated into Russian law, and its content is not binding on Russian citizens. Russia isn’t a member of the WPPT.

- India is a member state of the Berne and Rome Conventions and is also a member of the WTO. All members of the WTO are bound by the TRIPS Agreement, which imposes on member countries the obligation to enforce copyright adequately in their own territories, an obligation enforced by the WTO dispute settlement procedure. The TRIPs Agreement requires WTO members to comply with the substantive provisions of the Berne Convention, with the exception of the recognition of moral rights. Therefore, Nadia can rely on the fact that the substantive requirements for copyright protection in Mexico and India are similar. On the other hand India hasn’t signed the WCT and the WPPT. Thus Nadia cannot know how India regulates copyright protection of computer programs and databases and the intellectual property rights of performers and of producers of phonograms.

- Finally Belgium is a member of all of the aforementioned international treaties on copyright protection. As a result, Nadia can only apply for the exchange program in Belgium, as she knows the basic framework on copyright protection in Belgium, based on her knowledge of Mexican copyright law.

</div>

== Assignment and discussion questions ==

'''Round 1 questions'''

1. Which international treaties in the field of intellectual property law has signed and ratified your country? Feel free to use the links and maps provided in this module to help you.

2. If your country were a member of the Berne Convention, could your national legislator issue a law according to which copyrighted works would be protected for a) 120 years b) 25 years? Why?

3. Imagine that your country is a member of the Berne Convention, but not of the WTO.
3a. Could your country’s legislator decide that authors of third countries should first register their works in a national archive in order for the works to be protected in your country?
3b. Could members states to the Berne Convention react to this requirement to protect the rights of their authors?
3c. Could they react if your country was a member of the WTO?

4. Imagine that your country, as well as Atlantis, are members to the Rome Convention. Could your legislator permit that music teachers in your country use freely in their classes recorded performances of singers from Atlantis? Could Atlantis demand from your country to oblige the music teachers to pay royalties to the Atlantian singers?

5. Atlantis has just signed and ratified the WIPO Copyright Treaty and now the national legislator wants to issue a law that will implement the treaty. Atlantis had never provided copyright protection to computer programs in the past and, as it is a country that only imports computer software from third countries, the national legislator believes that it is the in the interest of the Atlantians to provide as little protection to computer programs as possible. Skim the WCT and find the provision that would enable the national legislator to allow Atlantians, under certain circumstances, to freely use computer programs.

6. List the advantages and the disadvantages of enhanced copyright protection for creative works.

7. Do you think that both developed and developing countries should have the same rules for copyright protection? Why or why not?

8. Read article 3-1 of the draft text of the A2K treaty: http://www.cptech.org/a2k/a2k_treaty_may9.pdf
Comment on the importance of one or two provisions for the missions you perform as a librarian.

'''Round 2 questions'''

Please read comments on A2K treaty proposals that your colleagues provided to Round 1 question 2, and comment on one (or more) of them. You may give more examples based on situations you faced at work, or projects you could develop.

Module 2: The International Framework

2009-04-26T16:13:22Z

Avalle2:

Module 2: The International Framework

2009-04-26T16:02:06Z

Avalle2: /* The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) */

By Petroula Vantsiouri and William Fisher

== Learning objective ==

This module describes the main instruments of the international copyright framework, the impact of that framework on developing countries, and opportunities for developing countries to influence the development or interpretation of the framework.

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== Case study ==

''“I want to participate to an international exchange program, what should I know?”''

Nadia is currently working as a librarian in Mexico and has a very good knowledge of the copyright protection law in her country. Nadia is interested in applying for an exchange program for librarians in order to work for six months in another country. The countries she is considering working in are Ethiopia, Russia, India and Belgium.

However, one of the requirements for participating in the exchange program is that she understands the general framework of copyright protection in the country that she will be working. More specifically she has to understand the following issues:
- general standards of protection of copyrighted works,
- protection of performers and producers of recordings,
- copyright protection of computer programs and databases,
- intellectual property rights of performers and of producers of phonograms.

Another librarian advised her to check whether the aforementioned countries have signed the same treaties that Mexico has signed, so that their copyright law resembles Mexican law to the extent required by such treaties. Nadia should however take also into account whether these treaties have an effective enforcement mechanism that ensures that the countries have transposed their provisions into their national law.

</div>

== The Rationale for the International System ==

As we saw in '''[[Module 1: Copyright and the public domain: an introduction]]''', each country in the world has its own set of copyright laws. However, the flexibility that each country enjoys in adjusting and enforcing its own laws is limited by a set of international treaties. Why? Why do we need any international management of this field?

There are two traditional answers to that question. First, in the absence of international controls, each country would be inclined to discriminate in favor of its own citizens or residents and against foreigners. Indeed, in the nineteenth century, before any international regulations were imposed, such discrimination was common.

Second, individual authors would find it very difficult to learn and comply with the idiosyncratic rules adopted by every country in the world. Thus, some degree of harmonization of the laws of separate countries seems necessary to enable authors to obtain effective copyright protection globally.

Recently, a third answer has been added to the first two. In the judgment of some copyright owners – in particular, record companies, film studios, and software firms – developing countries are insufficiently appreciative of the benefits of a copyright system. On this view, treaties are necessary to compel those countries to adopt economically and socially beneficial copyright regimes. As one might imagine, the representatives of developing countries often disagree.

== International instruments ==

You might expect that a single treaty, binding on all countries, would most effectively advance the three goals just mentioned. Unfortunately, the current situation is more complex. Instead of one treaty, we now have six major multilateral agreements, each with a different set of member countries.

Each of the six agreements was negotiated within – and is now administered by – an international organization. Four of the six are managed by the World Intellectual Property Organization (WIPO), one by the United Nations Educational, Scientific and Cultural Organization (UNESCO), and one (arguably the most important one) by the World Trade Organization (WTO).

The ways in which the six agreements have been created and implemented have been similar. Typically, the process begins when representatives of a group of countries agree that a particular set of issues requires harmonization. They enter into '''negotiations''', which can last several years. During the '''negotiations''', draft provisions are presented to the delegations of each state, which then discuss them and may propose amendments to their content. Once consensus has been reached, the states conclude the treaty by '''signing''' it. Thereafter, the governments of the participating countries '''ratify''' the treaty, whereupon it '''enters into force'''. From that moment onward, the signatory states assume obligations towards the other countries to implement the international agreement. States that did not sign the treaty when it was initially concluded may join the treaty later by '''accession'''.

None of the treaties contains a comprehensive recipe for the creation of a copyright system. Rather, each one requires member countries to deal with particular issues in particular ways, but leaves to the member states considerable discretion in implementing its requirements. Nor do any of the treaties bind individual persons within the member countries. Until and unless the governments of those countries adopt implementing legislation, they have no impact on their citizens or residents.

Click here for more on the [[Stages of an international agreement]].

'''Set forth below are brief descriptions of the six major treaties, with special attention to their impacts on developing countries.'''

== Berne Convention ==

The uncertainty and confusion that generated the lack of a unified framework for the protection of copyright led ten European States in 1886 to sign the Berne Convention for the Protection of Literary and Artistic Works (henceforth Berne Convention). Since then, a total of 164 countries have joined the Convention. Any nation is permitted to join.

You can check if your country is a member of the Berne Convention on: http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15. See bellow a map that indicates the countries that are today members

[[Image:Map1.png]]

The Berne Convention established three fundamental principles. The first and most famous is the principle of the “national treatment,” which requires member countries to give the residents of other member countries the same rights with respect to copyright law that they give to their own residents. So, for example, a novel written in France by a French citizen enjoys the same protection in Italy as a novel written in Italy by an Italian citizen.

The second is the principle of “independence” of protection. It provides that each member country must give foreign works the same protections they give domestic works, even when the foreign works would not be shielded under the copyright laws of the countries where they originated. For example, even if a novel written in Belgium by a Belgian national were not protected under Belgian law, it would still be protected in Italy, if it fulfilled the requirements for protection under Italian law.

The third is the principle of the “automatic protection.” It forbids member countries to make copyright protection depend upon compliance with any formalities. In other words, in Berne Convention countries, original works enjoy copyright protection automatically from the moment they are created. So, for example, the British author of a novel doesn’t have to register or declare her novel in France, Italy, Belgium or any other member state of the Convention; her novel will be automatically protected in all of these countries from the moment she has written it.

In addition to these basic principles, the Berne Convention also imposes on member countries a number of more specific requirements. For instance, they must enforce copyrights for a minimum period of time: namely, the life of the author plus 50 years. The Convention also requires its members to recognize and enforce a subset of the “moral rights” discussed in [[Module 1: Copyright and the public domain: an introduction]].

When the Berne convention was revised in Paris in 1971, the signatory states included an Appendix, which contained special provisions concerning developing countries. In particular, developing countries may, for certain works and under certain conditions, depart from these minimum standards of protection with regard to the right of translation and the right of reproduction. More specifically, the Appendix permits developing countries to grant non-exclusive and non-transferable compulsory licenses in respect of translation for the purpose of teaching, scholarship or research, and reproduction for use in connection with systematic instructional activities of works protected under the Berne Convention.

Due to the general and abstract content of most provisions of the Berne Convention, each national legislature enjoys considerable flexibility in implementing the Treaty. For example, in the Berne Convention Implementation Act of 1988, the U.S. Congress adopted a “minimalist” approach to implementation, making only those changes to copyright law that were absolutely necessary to qualify it for membership.

Furthermore, at the time that Berne the Convention was signed, the signatory countries did not establish an enforcement mechanism. Thus, even if one member state did not implement fully in its national legislation the rules set by the Convention, the other signatory states had little power either to force the recalcitrant country to comply with its obligations or to punish it for not doing so. It could be said that the Berne Convention was a treaty without “teeth.” As we will see later on, this situation partially changed for the members of the Berne Convention that also joined the World Trade Organization.

For the full text of the Convention, see http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html.

Click here for more the [[Berne Convention]].

== Rome Convention (1961) ==

Technological progress – in particular, the invention of devices, such as tape recorders, that allowed creative works to be reproduced easily – created a perceived need for enhanced protections for the performers and producers of recordings. The Berne Convention, which was primarily concerned with the circulation of printed materials, was ineffective for this purpose. To address this need, the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations was concluded by members of the WIPO on October 26, 1961. It extended copyright protection from the author of a work to the creators and owners of particular, physical embodiments of the work, such as audiocassettes and DVDs.

The Rome Convention requires member countries to grant protection to the performances of performers, the phonograms of producers of phonograms, and the broadcasts of broadcasting organizations. However, once a performer has consented to the incorporation of her performance in a visual or audiovisual fixation, the provisions on performers’ rights have no further application. Equally important, the Convention allows member countries to create certain exceptions to the rights of performers, producers of phonographs, and broadcasting organizations – for example, to permit nonpermissive uses of a work for the purpose of teaching or scientific research.
86 countries have signed the Rome Convention so far. For a list of the contracting parties, you can visit the link: http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=17. See bellow a map indicating the Member States of the Rome Convention.

[[Image:Map2.png]]

Not any country can join the Rome Convention; it is open only to countries that are already parties to the Berne Convention or to the Universal Copyright Convention (which we will discuss shortly). Countries that join the convention may make reservations with regard to the application of certain provisions. In practice, this has enabled countries to avoid the application of rules that would require important changes to their national laws.

For the text of the Convention, see http://www.wipo.int/treaties/en/ip/rome/trtdocs_wo024.html.

Click here for more on[[Rome Convention provisions]].

== WIPO Copyright Treaty and WIPO Performance and Phonograms Treaty ==

The way that copyright owners reproduce, distribute, and market their works has changed in the digital age. Sound recordings, articles, photographs, and books are commonly stored in electronic formats, are circulated via the Internet, and are compiled in databases. Unfortunately, the same technologies that enable more efficient storage and distribution of works also facilitate widespread copyright infringement. In order to protect copyright in the new technological era and to combat what has come to be called (misleadingly) “electronic piracy,” the governments of developed countries advocated and ultimately secured two other treaties: the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty.

The WIPO Copyright Treaty (WCT) is a special agreement accepted under the Berne Convention that entered into force on March 6, 2002. It is the first international treaty that requires countries to provide copyright protection to computer programs and to databases (compilations of data or other material).

The WCT further provides that member countries must prohibit effectively in their dominion the circumvention of technological measures set by the authors for their protection, such as decryption, as well as unauthorized modification of so-called “rights management information” (data that identify works or their authors, and that are necessary for the management of their rights).

For the text of the Treaty see http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html.

Click here for more on[[Examination of its provisions]].

The '''WIPO Performances and Phonograms Treaty (WPPT)''' was signed by the member states of WIPO in order to enhance the intellectual property rights of performers and of producers of phonograms (vinyl records, tapes, compact discs, digital audiotapes, MP3s, and other media for storing sound recordings).

The WPPT grants performers four kinds of economic rights in their performances '''fixed in phonograms''', three kinds of economic rights in respect of their live '''performances''', as well as '''moral rights'''. By contrast, producers of phonograms are only granted economic rights in their phonograms.

For the text of the Treaty see http://www.wipo.int/treaties/en/ip/wppt/trtdocs_wo034.html.

Click here for more on [[Examination of the WPPT]].

Both the WCT and the WPPT (like the TRIPs Agreement, which we will consider shortly) oblige every contracting country to adopt expeditious remedies to prevent infringement of their substantive provisions.

To determine whether your country has accepted the WCT see: http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=16. For the WPPT, see: http://www.wipo.int/treaties/en/ShowResults.jsp?country_id=ALL&start_year=ANY&end_year=ANY&search_what=C&treaty_id=20

A map indicating the Member States to the WCT is available can be accessed [http://cyber.law.harvard.edu/copyrightforlibrarians/sites/copyrightforlibrarians/images/Map4.png/ here]; a map indicating the Member States to the WPPT is available can be accessed [http://cyber.law.harvard.edu/copyrightforlibrarians/sites/copyrightforlibrarians/images/Map5.png/ here].

== Universal Copyright Convention ==

The '''Universal Copyright Convention''' (or '''UCC'''), was developed by UNESCO and was adopted in Geneva in 1952, as an alternative to the Berne Convention. It was developed in order to satisfy the desire of countries, such as the U.S.A. and the Soviet Union, to participate in some form of multilateral copyright protection without joining the Berne Convention.

The UCC’s provisions are more flexible than those of the Berne Convention, intended to accommodate countries at different stages of development and countries with sharply different economic and social systems. It incorporates the principle of national treatment and prohibits any discrimination against foreign authors.

Nowadays the importance of the UCC is minimal as most countries have acceded to the Berne Convention and almost all states in the world are either members or aspiring members of the World Trade Organization, and thus conforming to the Agreement on Trade-Related Aspects of Intellectual Property Rights (which we will discuss in a moment).

For the text of the Treaty see http://www.ifla.org/documents/infopol/copyright/ucc.txt
For a list of the countries members of the UCC see: http://portal.unesco.org/culture/en/files/7816/11642786761conv_71_e.pdf/conv_71_e.pdf

Click here for more on [[Examination of the UCC]].

== The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) ==

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) is an international agreement administered by the World Trade Organization (WTO) that establishes minimum standards for many forms of intellectual property protection, including copyright. The TRIPs Agreement was negotiated and concluded in 1994.

In terms of its substantive provisions, TRIPs adds little to the Berne Convention. It requires member countries to extend copyright protection to computer programs and data compilations – and thus extends the reach of the copyright regime. On the other hand, it excludes moral rights, which Berne, as we have seen, mandates.

The principal innovations of the Agreement pertain, not to the substance of copyright law, but to two issues involving remedies. First, unlike Berne, the TRIPs Agreement requires member countries to provide effective sanctions for violations of copyrights. Second, it creates a a dispute resolution mechanism by which countries can be forced to comply with their treaty obligations. In other words, TRIPs has teeth.

In an effort to balance public interests and the private interests of copyright owners, the TRIPs Agreement allows member states to establish limitations and exceptions to the exclusive rights of copyright holders – but only if they meet a set of related requirements known collectively as the “three-step test”.

Click here for more [[Information concerning the three-step test]].

Finally, the TRIPS Agreement incorporates certain "flexibilities" with respect to member countries’ compliance with its requirements concerning copyright protection. These flexibilities aim to permit developing and least-developed countries to use TRIPS-compatible norms in a manner that enables them to pursue their own public policies, either in specific fields, such as access to pharmaceutical products, or more generally, in establishing the institutional framework that contributes to their economic development.

Click here for more [[Information concerning the flexibilities]].

For the full text of the Agreement, see http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.html.

Click here for more on[[Examination of the TRIPS provisions]].

== The Anti-Counterfeiting Trade Agreement proposal (ACTA, 2007) ==

These six multilateral treaties may soon be joined by a seventh. In October 2007, the United States, the European Community, Switzerland, and Japan simultaneously announced that they would negotiate a new intellectual property enforcement treaty, the Anti-Counterfeiting Trade Agreement, or ACTA. Australia, the Republic of Korea, New Zealand and Mexico have since joined the negotiations.

Among other issues, the ACTA will deal with tools targeting "Internet distribution and information technology," such as authorizing officials to search for illegally downloaded music on personal devices at airports, or forcing Internet Service Providers to provide information about possible copyright infringers without a warrant.

== Free Trade Agreements and Bilateral Investment Treaties ==

Multilateral agreements, such as the TRIPs Agreement, can provide effective protection to copyright holders worldwide, because they establish minimum substantive standards binding on large numbers of countries. However, they do not eliminate the incentives for bilateral treaties – either to address specific issues in which only two countries have an interest, or to enable interests groups within a powerful country to extract concessions from a weaker one. Such agreements are commonly known as free trade agreements (FTAs) or Bilateral Investment Treaties (BITs).

Typically, such bilateral agreements either narrow the flexibilities that a developing country would enjoy under the TRIPS Agreement, or impose more stringent standards for copyright protection. For example, the US government has included anti-circumvention obligations in its bilateral FTAs with Jordan, Singapore, Chile, Morocco, Bahrain and Oman.

Click here for more [[Information on FTAs]].

== Perspectives for developing countries ==

Upgrading copyright legislation and enforcement worldwide can be viewed as the duty of governments towards their citizens, as copyright protection promotes the arts and rewards authors for their creative efforts. Arguably, granting an exclusive right in creative expression provides a necessary incentive to invest in the creation and distribution of expressive works and, thus, stimulates cultural advancement.

On the other hand, it has been argued that instituting the same rules for copyright protection in all countries, regardless of their development status, can be detrimental for the cultural development of developing countries. Most developed counties have powerful entertainment, education, and research industries, whereas developing countries typically import embodiments of the copyrighted works generated by those industries. Thus, the residents of developing countries have to pay more royalties and fees as a result of enhanced copyright protection. In addition, it has been argued that strict IP rules can restrict the ability of many governments to fulfil their human rights obligations, such as ensuring that their residents have fair access to educational goods.

The latter set of arguments have has prompted a growing number of developing countries to resist the imposition of the minimum standards of copyright protection set by the TRIPs agreement and the even harsher duties that are imposed on developing countries by FTAs. They call for a better balance between, on one hand, providing incentives to creators and rewarding their creative activities and, on the other hand, promoting access to knowledge and research, in order to spur economic growth and foster innovation in the developing countries.

== WIPO Development Agenda ==

In 2004, Brazil and Argentina submitted to the WIPO General Assembly a proposal for a “development agenda.” In general, the proposal sought to ensure that WIPO in its various activities pay greater attention to the impact of intellectual property protection on economic and social development, the need to safeguard flexibilities designed to protect the public interest, and the importance of promoting “development oriented” technical cooperation and assistance. The text of Brazil’s and Argentina’s proposal is available at:
http://www.wipo.int/documents/en/document/govbody/wo_gb_ga/pdf/wo_ga_31_11.pdf. Additional proposals in support of a WIPO Development Agenda were submitted by other member states and organizations, such as Chile, the Group of Friends of Development, the Africa Group, and Colombia.

This initiative has made considerable progress. In the 2004 WIPO General Assembly, states agreed to hold a series of intergovernmental meetings to examine the proposals for a development agenda. Substantive reform proposals to establish a Development Agenda for WIPO passed during the 2007 General Assembly. The 45 development recommendations currently on the development agenda are available at: http://www.wipo.int/ip-development/en/agenda/recommendations.html

Organizations representing librarians have had a significant voice in the negotiations of the Development Agenda. Joint statements of the International Federation of Library Associations (IFLA), the Library Copyright Alliance (LCA), and Electronic Information for Libraries (eIFL) are available at:
http://www.eifl.net/cps/sections/services/eifl-ip/issues/wipo-development-agenda

Click here for more [[Information on the WIPO development agenda]].

== The access to knowledge treaty proposal==

The Argentina-Brazil proposal for a development agenda gave rise to a debate concerning whether WIPO should ensure effective technology transfer from developed to developing countries. Nongovernmental organisations (NGOs), academics, and researchers shared the concerns expressed by developing countries that some aspects of the copyright system were actually impeding innovation instead of promoting it and were creating disadvantages for the developing countries. This reaction to WIPO’s current policies took the form of a movement calling for equality among citizens from developed and developing countries as regards access to knowledge; it has come to be known as the “access to knowledge” or “A2K” movement. Librarians’ organizations, such as eIFL, were pioneers in the advocacy of people’s “right to knowledge” and have called upon WIPO to establish minimum exceptions and limitations to copyright protection.

One outgrowth of the movement has been a proposal for a United Nations treaty, the current draft of which is available at: http://www.cptech.org/a2k/a2k_treaty_may9.pdf. The treaty proposal aims to “protect and enhance access to knowledge, and to facilitate the transfer of technology to developing countries.” It includes a list of occasions when copyright holders should not be able to invoke their exclusive rights, such as:

· The use of works for purposes of library or archival preservation, or to migrate content to a new format.

· The efforts of libraries, archivists, or educational institutions to make copies of works that are protected by copyright but that are not currently the subject of commercial exploitation, for purposes of preservation, education, or research.

· The use of excerpts, selections, and quotations for purposes of explanation and illustration in connection with not-for-profit teaching and scholarship.

· The use of works, by educational institutions, as primary instructional materials, if those materials are not made readily available by right-holders at a reasonable price.

In addition, the proposal advocates a First Sale Doctrine for Library Use, stating that “a work that has been lawfully acquired by a library may be lent to others without further transaction fees to be paid by the library.” Finally, the A2K treaty proposal introduces provisions in support of distance education and other provisions accommodating the rights of persons with disabilities.

Librarians and library patrons aren’t the only ones who could benefit from the A2K treaty. The proposal includes rules protecting Internet Service Providers from copyright liability, and also mitigates the strict circumvention prohibitions that are applied by the international treaties. Nonoriginal and orphan works would be left in the public domain under the treaty proposal, and people would be afforded access to publicly funded research works, government works, and archives of public broadcasting. Finally, the A2K treaty proposal also includes provisions on patent protection, anticompetitive practices, and transfer of technology to developing countries.

Click here for more [[Information on the A2K Treaty proposal]].

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== Back to the case study ==

Nadia knows that Mexico is a member of the Berne Convention, WIPO, Rome Convention, WCT and WPPT. After checking the online databases provided in the WIPO website she found out the following about the countries where she is interested in working:

- Ethiopia isn’t currently a member of any of the international treaties on copyright protection. Thus, the national government of that country has the freedom to regulate copyright independently from other states in the rest of the world. Therefore Nadia cannot have an understanding of the copyright legislation in Ethiopia, unless she had studied Ethiopian copyright law.
- Russia has signed the Berne Convention as well as the Rome Convention, but isn’t yet a member of the WTO. Because both the Berne and the Rome Convention lack an effective enforcement mechanism, other signatory states have little leverage to force Russia to comply with their obligations. Furthermore, Rome Convention affords states that join the treaty the liberty to make reservations with regard to the application of certain provisions.

In addition, Russia has signed the WCT, but that treaty hasn’t entered into force yet. In other words, although Russia has undertaken an obligation towards the other signatory countries to implement the treaty, it hasn’t yet been incorporated into Russian law, and its content is not binding on Russian citizens. Russia isn’t a member of the WPPT.

- India is a member state of the Berne and Rome Conventions and is also a member of the WTO. All members of the WTO are bound by the TRIPS Agreement, which imposes on member countries the obligation to enforce copyright adequately in their own territories, an obligation enforced by the WTO dispute settlement procedure. The TRIPs Agreement requires WTO members to comply with the substantive provisions of the Berne Convention, with the exception of the recognition of moral rights. Therefore, Nadia can rely on the fact that the substantive requirements for copyright protection in Mexico and India are similar. On the other hand India hasn’t signed the WCT and the WPPT. Thus Nadia cannot know how India regulates copyright protection of computer programs and databases and the intellectual property rights of performers and of producers of phonograms.

- Finally Belgium is a member of all of the aforementioned international treaties on copyright protection. As a result, Nadia can only apply for the exchange program in Belgium, as she knows the basic framework on copyright protection in Belgium, based on her knowledge of Mexican copyright law.

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== Assignment and discussion questions ==

'''Round 1 questions'''

1. Which international treaties in the field of intellectual property law has signed and ratified your country? Feel free to use the links and maps provided in this module to help you.

2. If your country were a member of the Berne Convention, could your national legislator issue a law according to which copyrighted works would be protected for a) 120 years b) 25 years? Why?

3. Imagine that your country is a member of the Berne Convention, but not of the WTO.
3a. Could your country’s legislator decide that authors of third countries should first register their works in a national archive in order for the works to be protected in your country?
3b. Could members states to the Berne Convention react to this requirement to protect the rights of their authors?
3c. Could they react if your country was a member of the WTO?

4. Imagine that your country, as well as Atlantis, are members to the Rome Convention. Could your legislator permit that music teachers in your country use freely in their classes recorded performances of singers from Atlantis? Could Atlantis demand from your country to oblige the music teachers to pay royalties to the Atlantian singers?

5. Atlantis has just signed and ratified the WIPO Copyright Treaty and now the national legislator wants to issue a law that will implement the treaty. Atlantis had never provided copyright protection to computer programs in the past and, as it is a country that only imports computer software from third countries, the national legislator believes that it is the in the interest of the Atlantians to provide as little protection to computer programs as possible. Skim the WCT and find the provision that would enable the national legislator to allow Atlantians, under certain circumstances, to freely use computer programs.

6. List the advantages and the disadvantages of enhanced copyright protection for creative works.

7. Do you think that both developed and developing countries should have the same rules for copyright protection? Why or why not?

8. Read article 3-1 of the draft text of the A2K treaty: http://www.cptech.org/a2k/a2k_treaty_may9.pdf
Comment on the importance of one or two provisions for the missions you perform as a librarian.

'''Round 2 questions'''

Please read comments on A2K treaty proposals that your colleagues provided to Round 1 question 2, and comment on one (or more) of them. You may give more examples based on situations you faced at work, or projects you could develop.

Stages of an international agreement

2009-04-26T15:58:10Z

Avalle2:

== The stages of an international agreement: ==

International treaties are nothing more than agreements among sovereign states to assume certain obligations regarding, among others, the protection of copyright. It is crucial to understand how, when and to what extent the provisions of international treaties create binding rules for the countries which signed them and for their citizens. For this reason we shall shortly examine the steps leading to the conclusion of an international treaty and its implementation.

As long as governments agree that they want to regulate a certain issue at an international level, they enter into '''negotiations'''. Negotiations can be conducted either ad hoc, such as the Berne Convention, or within the framework of an existing institution, such as the TRIPs agreement, which was the result of the negotiations leading to the creation of the WTO. During the state of the negotiations draft provisions, usually prepared by specific countries or an appointed person, are presented to the delegations of each state, which then discuss them and may propose amendments to their content. Those proposals usually stem from a group of countries that form a coalition in order to defend their common interests more efficiently. For example, the inclusion of the TRIPs agreement was the culmination of a program of intense lobbying by the United States, supported by the European Union, Japan and other developed nations, whereas it was contravened by developing countries, most notably Korea and Brazil, but also Thailand, India and Caribbean states.

Once consensus has been reached the states conclude the treaty by signing it. However the treaty does not enter into force at the moment of its conclusion, but it has to be ratified according to the national law of each country. By ratification we mean the act of giving official sanction or approval to the treaty, which usually follows the same rules as the passing of laws in most democracies. From that moment the provisions of the international agreement enter into force, meaning that the signatory states assume the obligation towards the other countries to implement the provisions of the international agreement.

It is crucial to understand that as a general rule countries are the ones who undertake obligations and not their citizens. Individuals are bound by their national laws that implement the international agreement and not by the treaties themselves(1). The paramount importance of implementing legislation indicates that national legislatures play a significant role, as they determine if, when and to what extent national law needs to change so as to be consistent with the international agreement. However, this flexibility, enjoyed by national legislative bodies, in the implementation of an international agreement depends to a large extent on the content of the provisions of the international agreement: the more general a treaty provision is, the more flexibility a state has in implementing it.

States which didn’t take part in the negotiations of a treaty may still join the treaty later by accession. If the treaty is open to the participation of new member states, accession occurs by the conclusion and ratification of the Treaty by the new member state, without any modification of the original agreement. If this is not the case, accession implies a new agreement between all member parties.

(1) In certain countries, citizens can obtain in certain circumstances rights deriving from international agreements before their implementation and the adoption of national legislation.

Module 2: The International Framework

2009-04-26T15:57:40Z

Avalle2:

By Petroula Vantsiouri and William Fisher

== Learning objective ==

This module describes the main instruments of the international copyright framework, the impact of that framework on developing countries, and opportunities for developing countries to influence the development or interpretation of the framework.

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== Case study ==

''“I want to participate to an international exchange program, what should I know?”''

Nadia is currently working as a librarian in Mexico and has a very good knowledge of the copyright protection law in her country. Nadia is interested in applying for an exchange program for librarians in order to work for six months in another country. The countries she is considering working in are Ethiopia, Russia, India and Belgium.

However, one of the requirements for participating in the exchange program is that she understands the general framework of copyright protection in the country that she will be working. More specifically she has to understand the following issues:
- general standards of protection of copyrighted works,
- protection of performers and producers of recordings,
- copyright protection of computer programs and databases,
- intellectual property rights of performers and of producers of phonograms.

Another librarian advised her to check whether the aforementioned countries have signed the same treaties that Mexico has signed, so that their copyright law resembles Mexican law to the extent required by such treaties. Nadia should however take also into account whether these treaties have an effective enforcement mechanism that ensures that the countries have transposed their provisions into their national law.

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== The Rationale for the International System ==

As we saw in '''[[Module 1: Copyright and the public domain: an introduction]]''', each country in the world has its own set of copyright laws. However, the flexibility that each country enjoys in adjusting and enforcing its own laws is limited by a set of international treaties. Why? Why do we need any international management of this field?

There are two traditional answers to that question. First, in the absence of international controls, each country would be inclined to discriminate in favor of its own citizens or residents and against foreigners. Indeed, in the nineteenth century, before any international regulations were imposed, such discrimination was common.

Second, individual authors would find it very difficult to learn and comply with the idiosyncratic rules adopted by every country in the world. Thus, some degree of harmonization of the laws of separate countries seems necessary to enable authors to obtain effective copyright protection globally.

Recently, a third answer has been added to the first two. In the judgment of some copyright owners – in particular, record companies, film studios, and software firms – developing countries are insufficiently appreciative of the benefits of a copyright system. On this view, treaties are necessary to compel those countries to adopt economically and socially beneficial copyright regimes. As one might imagine, the representatives of developing countries often disagree.

== International instruments ==

You might expect that a single treaty, binding on all countries, would most effectively advance the three goals just mentioned. Unfortunately, the current situation is more complex. Instead of one treaty, we now have six major multilateral agreements, each with a different set of member countries.

Each of the six agreements was negotiated within – and is now administered by – an international organization. Four of the six are managed by the World Intellectual Property Organization (WIPO), one by the United Nations Educational, Scientific and Cultural Organization (UNESCO), and one (arguably the most important one) by the World Trade Organization (WTO).

The ways in which the six agreements have been created and implemented have been similar. Typically, the process begins when representatives of a group of countries agree that a particular set of issues requires harmonization. They enter into '''negotiations''', which can last several years. During the '''negotiations''', draft provisions are presented to the delegations of each state, which then discuss them and may propose amendments to their content. Once consensus has been reached, the states conclude the treaty by '''signing''' it. Thereafter, the governments of the participating countries '''ratify''' the treaty, whereupon it '''enters into force'''. From that moment onward, the signatory states assume obligations towards the other countries to implement the international agreement. States that did not sign the treaty when it was initially concluded may join the treaty later by '''accession'''.

None of the treaties contains a comprehensive recipe for the creation of a copyright system. Rather, each one requires member countries to deal with particular issues in particular ways, but leaves to the member states considerable discretion in implementing its requirements. Nor do any of the treaties bind individual persons within the member countries. Until and unless the governments of those countries adopt implementing legislation, they have no impact on their citizens or residents.

Click here for more on the [[Stages of an international agreement]].

'''Set forth below are brief descriptions of the six major treaties, with special attention to their impacts on developing countries.'''

== Berne Convention ==

The uncertainty and confusion that generated the lack of a unified framework for the protection of copyright led ten European States in 1886 to sign the Berne Convention for the Protection of Literary and Artistic Works (henceforth Berne Convention). Since then, a total of 164 countries have joined the Convention. Any nation is permitted to join.

You can check if your country is a member of the Berne Convention on: http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15. See bellow a map that indicates the countries that are today members

[[Image:Map1.png]]

The Berne Convention established three fundamental principles. The first and most famous is the principle of the “national treatment,” which requires member countries to give the residents of other member countries the same rights with respect to copyright law that they give to their own residents. So, for example, a novel written in France by a French citizen enjoys the same protection in Italy as a novel written in Italy by an Italian citizen.

The second is the principle of “independence” of protection. It provides that each member country must give foreign works the same protections they give domestic works, even when the foreign works would not be shielded under the copyright laws of the countries where they originated. For example, even if a novel written in Belgium by a Belgian national were not protected under Belgian law, it would still be protected in Italy, if it fulfilled the requirements for protection under Italian law.

The third is the principle of the “automatic protection.” It forbids member countries to make copyright protection depend upon compliance with any formalities. In other words, in Berne Convention countries, original works enjoy copyright protection automatically from the moment they are created. So, for example, the British author of a novel doesn’t have to register or declare her novel in France, Italy, Belgium or any other member state of the Convention; her novel will be automatically protected in all of these countries from the moment she has written it.

In addition to these basic principles, the Berne Convention also imposes on member countries a number of more specific requirements. For instance, they must enforce copyrights for a minimum period of time: namely, the life of the author plus 50 years. The Convention also requires its members to recognize and enforce a subset of the “moral rights” discussed in [[Module 1: Copyright and the public domain: an introduction]].

When the Berne convention was revised in Paris in 1971, the signatory states included an Appendix, which contained special provisions concerning developing countries. In particular, developing countries may, for certain works and under certain conditions, depart from these minimum standards of protection with regard to the right of translation and the right of reproduction. More specifically, the Appendix permits developing countries to grant non-exclusive and non-transferable compulsory licenses in respect of translation for the purpose of teaching, scholarship or research, and reproduction for use in connection with systematic instructional activities of works protected under the Berne Convention.

Due to the general and abstract content of most provisions of the Berne Convention, each national legislature enjoys considerable flexibility in implementing the Treaty. For example, in the Berne Convention Implementation Act of 1988, the U.S. Congress adopted a “minimalist” approach to implementation, making only those changes to copyright law that were absolutely necessary to qualify it for membership.

Furthermore, at the time that Berne the Convention was signed, the signatory countries did not establish an enforcement mechanism. Thus, even if one member state did not implement fully in its national legislation the rules set by the Convention, the other signatory states had little power either to force the recalcitrant country to comply with its obligations or to punish it for not doing so. It could be said that the Berne Convention was a treaty without “teeth.” As we will see later on, this situation partially changed for the members of the Berne Convention that also joined the World Trade Organization.

For the full text of the Convention, see http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html.

Click here for more the [[Berne Convention]].

== Rome Convention (1961) ==

Technological progress – in particular, the invention of devices, such as tape recorders, that allowed creative works to be reproduced easily – created a perceived need for enhanced protections for the performers and producers of recordings. The Berne Convention, which was primarily concerned with the circulation of printed materials, was ineffective for this purpose. To address this need, the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations was concluded by members of the WIPO on October 26, 1961. It extended copyright protection from the author of a work to the creators and owners of particular, physical embodiments of the work, such as audiocassettes and DVDs.

The Rome Convention requires member countries to grant protection to the performances of performers, the phonograms of producers of phonograms, and the broadcasts of broadcasting organizations. However, once a performer has consented to the incorporation of her performance in a visual or audiovisual fixation, the provisions on performers’ rights have no further application. Equally important, the Convention allows member countries to create certain exceptions to the rights of performers, producers of phonographs, and broadcasting organizations – for example, to permit nonpermissive uses of a work for the purpose of teaching or scientific research.
86 countries have signed the Rome Convention so far. For a list of the contracting parties, you can visit the link: http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=17. See bellow a map indicating the Member States of the Rome Convention.

[[Image:Map2.png]]

Not any country can join the Rome Convention; it is open only to countries that are already parties to the Berne Convention or to the Universal Copyright Convention (which we will discuss shortly). Countries that join the convention may make reservations with regard to the application of certain provisions. In practice, this has enabled countries to avoid the application of rules that would require important changes to their national laws.

For the text of the Convention, see http://www.wipo.int/treaties/en/ip/rome/trtdocs_wo024.html.

Click here for more on[[Rome Convention provisions]].

== WIPO Copyright Treaty and WIPO Performance and Phonograms Treaty ==

The way that copyright owners reproduce, distribute, and market their works has changed in the digital age. Sound recordings, articles, photographs, and books are commonly stored in electronic formats, are circulated via the Internet, and are compiled in databases. Unfortunately, the same technologies that enable more efficient storage and distribution of works also facilitate widespread copyright infringement. In order to protect copyright in the new technological era and to combat what has come to be called (misleadingly) “electronic piracy,” the governments of developed countries advocated and ultimately secured two other treaties: the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty.

The WIPO Copyright Treaty (WCT) is a special agreement accepted under the Berne Convention that entered into force on March 6, 2002. It is the first international treaty that requires countries to provide copyright protection to computer programs and to databases (compilations of data or other material).

The WCT further provides that member countries must prohibit effectively in their dominion the circumvention of technological measures set by the authors for their protection, such as decryption, as well as unauthorized modification of so-called “rights management information” (data that identify works or their authors, and that are necessary for the management of their rights).

For the text of the Treaty see http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html.

Click here for more on[[Examination of its provisions]].

The '''WIPO Performances and Phonograms Treaty (WPPT)''' was signed by the member states of WIPO in order to enhance the intellectual property rights of performers and of producers of phonograms (vinyl records, tapes, compact discs, digital audiotapes, MP3s, and other media for storing sound recordings).

The WPPT grants performers four kinds of economic rights in their performances '''fixed in phonograms''', three kinds of economic rights in respect of their live '''performances''', as well as '''moral rights'''. By contrast, producers of phonograms are only granted economic rights in their phonograms.

For the text of the Treaty see http://www.wipo.int/treaties/en/ip/wppt/trtdocs_wo034.html.

Click here for more on [[Examination of the WPPT]].

Both the WCT and the WPPT (like the TRIPs Agreement, which we will consider shortly) oblige every contracting country to adopt expeditious remedies to prevent infringement of their substantive provisions.

To determine whether your country has accepted the WCT see: http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=16. For the WPPT, see: http://www.wipo.int/treaties/en/ShowResults.jsp?country_id=ALL&start_year=ANY&end_year=ANY&search_what=C&treaty_id=20

A map indicating the Member States to the WCT is available can be accessed [http://cyber.law.harvard.edu/copyrightforlibrarians/sites/copyrightforlibrarians/images/Map4.png/ here]; a map indicating the Member States to the WPPT is available can be accessed [http://cyber.law.harvard.edu/copyrightforlibrarians/sites/copyrightforlibrarians/images/Map5.png/ here].

== Universal Copyright Convention ==

The '''Universal Copyright Convention''' (or '''UCC'''), was developed by UNESCO and was adopted in Geneva in 1952, as an alternative to the Berne Convention. It was developed in order to satisfy the desire of countries, such as the U.S.A. and the Soviet Union, to participate in some form of multilateral copyright protection without joining the Berne Convention.

The UCC’s provisions are more flexible than those of the Berne Convention, intended to accommodate countries at different stages of development and countries with sharply different economic and social systems. It incorporates the principle of national treatment and prohibits any discrimination against foreign authors.

Nowadays the importance of the UCC is minimal as most countries have acceded to the Berne Convention and almost all states in the world are either members or aspiring members of the World Trade Organization, and thus conforming to the Agreement on Trade-Related Aspects of Intellectual Property Rights (which we will discuss in a moment).

For the text of the Treaty see http://www.ifla.org/documents/infopol/copyright/ucc.txt
For a list of the countries members of the UCC see: http://portal.unesco.org/culture/en/files/7816/11642786761conv_71_e.pdf/conv_71_e.pdf

Click here for more on [[Examination of the UCC]].

== The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) ==

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) is an international agreement administered by the World Trade Organization (WTO) that establishes minimum standards for many forms of intellectual property protection, including copyright. The TRIPs Agreement was negotiated and concluded in 1994.

In terms of its substantive provisions, TRIPs adds little to the Berne Convention. It requires member countries to extend copyright protection to computer programs and data compilations – and thus extends the reach of the copyright regime. On the other hand, it excludes moral rights, which Berne, as we have seen, mandates.

The principal innovations of the Agreement pertain, not to the substance of copyright law, but to two issues involving remedies. First, unlike Berne, the TRIPs Agreement requires member countries to provide effective sanctions for violations of copyrights. Second, it creates a a dispute resolution mechanism by which countries can be forced to comply with their treaty obligations. In other words, TRIPs has teeth.

In an effort to balance public interests and the private interests of copyright owners, the TRIPs Agreement allows member states to establish limitations and exceptions to the exclusive rights of copyright holders – but only if they meet a set of related requirements known collectively as the “three-step test”.

Click here for more[[Information concerning the three-step test]].

Finally, the TRIPS Agreement incorporates certain "flexibilities" with respect to member countries’ compliance with its requirements concerning copyright protection. These flexibilities aim to permit developing and least-developed countries to use TRIPS-compatible norms in a manner that enables them to pursue their own public policies, either in specific fields, such as access to pharmaceutical products, or more generally, in establishing the institutional framework that contributes to their economic development.

Click here for more [[Information concerning the flexibilities]].

For the full text of the Agreement, see http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.html.

Click here for more on[[Examination of the TRIPS provisions]].

== The Anti-Counterfeiting Trade Agreement proposal (ACTA, 2007) ==

These six multilateral treaties may soon be joined by a seventh. In October 2007, the United States, the European Community, Switzerland, and Japan simultaneously announced that they would negotiate a new intellectual property enforcement treaty, the Anti-Counterfeiting Trade Agreement, or ACTA. Australia, the Republic of Korea, New Zealand and Mexico have since joined the negotiations.

Among other issues, the ACTA will deal with tools targeting "Internet distribution and information technology," such as authorizing officials to search for illegally downloaded music on personal devices at airports, or forcing Internet Service Providers to provide information about possible copyright infringers without a warrant.

== Free Trade Agreements and Bilateral Investment Treaties ==

Multilateral agreements, such as the TRIPs Agreement, can provide effective protection to copyright holders worldwide, because they establish minimum substantive standards binding on large numbers of countries. However, they do not eliminate the incentives for bilateral treaties – either to address specific issues in which only two countries have an interest, or to enable interests groups within a powerful country to extract concessions from a weaker one. Such agreements are commonly known as free trade agreements (FTAs) or Bilateral Investment Treaties (BITs).

Typically, such bilateral agreements either narrow the flexibilities that a developing country would enjoy under the TRIPS Agreement, or impose more stringent standards for copyright protection. For example, the US government has included anti-circumvention obligations in its bilateral FTAs with Jordan, Singapore, Chile, Morocco, Bahrain and Oman.

Click here for more [[Information on FTAs]].

== Perspectives for developing countries ==

Upgrading copyright legislation and enforcement worldwide can be viewed as the duty of governments towards their citizens, as copyright protection promotes the arts and rewards authors for their creative efforts. Arguably, granting an exclusive right in creative expression provides a necessary incentive to invest in the creation and distribution of expressive works and, thus, stimulates cultural advancement.

On the other hand, it has been argued that instituting the same rules for copyright protection in all countries, regardless of their development status, can be detrimental for the cultural development of developing countries. Most developed counties have powerful entertainment, education, and research industries, whereas developing countries typically import embodiments of the copyrighted works generated by those industries. Thus, the residents of developing countries have to pay more royalties and fees as a result of enhanced copyright protection. In addition, it has been argued that strict IP rules can restrict the ability of many governments to fulfil their human rights obligations, such as ensuring that their residents have fair access to educational goods.

The latter set of arguments have has prompted a growing number of developing countries to resist the imposition of the minimum standards of copyright protection set by the TRIPs agreement and the even harsher duties that are imposed on developing countries by FTAs. They call for a better balance between, on one hand, providing incentives to creators and rewarding their creative activities and, on the other hand, promoting access to knowledge and research, in order to spur economic growth and foster innovation in the developing countries.

== WIPO Development Agenda ==

In 2004, Brazil and Argentina submitted to the WIPO General Assembly a proposal for a “development agenda.” In general, the proposal sought to ensure that WIPO in its various activities pay greater attention to the impact of intellectual property protection on economic and social development, the need to safeguard flexibilities designed to protect the public interest, and the importance of promoting “development oriented” technical cooperation and assistance. The text of Brazil’s and Argentina’s proposal is available at:
http://www.wipo.int/documents/en/document/govbody/wo_gb_ga/pdf/wo_ga_31_11.pdf. Additional proposals in support of a WIPO Development Agenda were submitted by other member states and organizations, such as Chile, the Group of Friends of Development, the Africa Group, and Colombia.

This initiative has made considerable progress. In the 2004 WIPO General Assembly, states agreed to hold a series of intergovernmental meetings to examine the proposals for a development agenda. Substantive reform proposals to establish a Development Agenda for WIPO passed during the 2007 General Assembly. The 45 development recommendations currently on the development agenda are available at: http://www.wipo.int/ip-development/en/agenda/recommendations.html

Organizations representing librarians have had a significant voice in the negotiations of the Development Agenda. Joint statements of the International Federation of Library Associations (IFLA), the Library Copyright Alliance (LCA), and Electronic Information for Libraries (eIFL) are available at:
http://www.eifl.net/cps/sections/services/eifl-ip/issues/wipo-development-agenda

Click here for more [[Information on the WIPO development agenda]].

== The access to knowledge treaty proposal==

The Argentina-Brazil proposal for a development agenda gave rise to a debate concerning whether WIPO should ensure effective technology transfer from developed to developing countries. Nongovernmental organisations (NGOs), academics, and researchers shared the concerns expressed by developing countries that some aspects of the copyright system were actually impeding innovation instead of promoting it and were creating disadvantages for the developing countries. This reaction to WIPO’s current policies took the form of a movement calling for equality among citizens from developed and developing countries as regards access to knowledge; it has come to be known as the “access to knowledge” or “A2K” movement. Librarians’ organizations, such as eIFL, were pioneers in the advocacy of people’s “right to knowledge” and have called upon WIPO to establish minimum exceptions and limitations to copyright protection.

One outgrowth of the movement has been a proposal for a United Nations treaty, the current draft of which is available at: http://www.cptech.org/a2k/a2k_treaty_may9.pdf. The treaty proposal aims to “protect and enhance access to knowledge, and to facilitate the transfer of technology to developing countries.” It includes a list of occasions when copyright holders should not be able to invoke their exclusive rights, such as:

· The use of works for purposes of library or archival preservation, or to migrate content to a new format.

· The efforts of libraries, archivists, or educational institutions to make copies of works that are protected by copyright but that are not currently the subject of commercial exploitation, for purposes of preservation, education, or research.

· The use of excerpts, selections, and quotations for purposes of explanation and illustration in connection with not-for-profit teaching and scholarship.

· The use of works, by educational institutions, as primary instructional materials, if those materials are not made readily available by right-holders at a reasonable price.

In addition, the proposal advocates a First Sale Doctrine for Library Use, stating that “a work that has been lawfully acquired by a library may be lent to others without further transaction fees to be paid by the library.” Finally, the A2K treaty proposal introduces provisions in support of distance education and other provisions accommodating the rights of persons with disabilities.

Librarians and library patrons aren’t the only ones who could benefit from the A2K treaty. The proposal includes rules protecting Internet Service Providers from copyright liability, and also mitigates the strict circumvention prohibitions that are applied by the international treaties. Nonoriginal and orphan works would be left in the public domain under the treaty proposal, and people would be afforded access to publicly funded research works, government works, and archives of public broadcasting. Finally, the A2K treaty proposal also includes provisions on patent protection, anticompetitive practices, and transfer of technology to developing countries.

Click here for more [[Information on the A2K Treaty proposal]].

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== Back to the case study ==

Nadia knows that Mexico is a member of the Berne Convention, WIPO, Rome Convention, WCT and WPPT. After checking the online databases provided in the WIPO website she found out the following about the countries where she is interested in working:

- Ethiopia isn’t currently a member of any of the international treaties on copyright protection. Thus, the national government of that country has the freedom to regulate copyright independently from other states in the rest of the world. Therefore Nadia cannot have an understanding of the copyright legislation in Ethiopia, unless she had studied Ethiopian copyright law.
- Russia has signed the Berne Convention as well as the Rome Convention, but isn’t yet a member of the WTO. Because both the Berne and the Rome Convention lack an effective enforcement mechanism, other signatory states have little leverage to force Russia to comply with their obligations. Furthermore, Rome Convention affords states that join the treaty the liberty to make reservations with regard to the application of certain provisions.

In addition, Russia has signed the WCT, but that treaty hasn’t entered into force yet. In other words, although Russia has undertaken an obligation towards the other signatory countries to implement the treaty, it hasn’t yet been incorporated into Russian law, and its content is not binding on Russian citizens. Russia isn’t a member of the WPPT.

- India is a member state of the Berne and Rome Conventions and is also a member of the WTO. All members of the WTO are bound by the TRIPS Agreement, which imposes on member countries the obligation to enforce copyright adequately in their own territories, an obligation enforced by the WTO dispute settlement procedure. The TRIPs Agreement requires WTO members to comply with the substantive provisions of the Berne Convention, with the exception of the recognition of moral rights. Therefore, Nadia can rely on the fact that the substantive requirements for copyright protection in Mexico and India are similar. On the other hand India hasn’t signed the WCT and the WPPT. Thus Nadia cannot know how India regulates copyright protection of computer programs and databases and the intellectual property rights of performers and of producers of phonograms.

- Finally Belgium is a member of all of the aforementioned international treaties on copyright protection. As a result, Nadia can only apply for the exchange program in Belgium, as she knows the basic framework on copyright protection in Belgium, based on her knowledge of Mexican copyright law.

</div>

== Assignment and discussion questions ==

'''Round 1 questions'''

1. Which international treaties in the field of intellectual property law has signed and ratified your country? Feel free to use the links and maps provided in this module to help you.

2. If your country were a member of the Berne Convention, could your national legislator issue a law according to which copyrighted works would be protected for a) 120 years b) 25 years? Why?

3. Imagine that your country is a member of the Berne Convention, but not of the WTO.
3a. Could your country’s legislator decide that authors of third countries should first register their works in a national archive in order for the works to be protected in your country?
3b. Could members states to the Berne Convention react to this requirement to protect the rights of their authors?
3c. Could they react if your country was a member of the WTO?

4. Imagine that your country, as well as Atlantis, are members to the Rome Convention. Could your legislator permit that music teachers in your country use freely in their classes recorded performances of singers from Atlantis? Could Atlantis demand from your country to oblige the music teachers to pay royalties to the Atlantian singers?

5. Atlantis has just signed and ratified the WIPO Copyright Treaty and now the national legislator wants to issue a law that will implement the treaty. Atlantis had never provided copyright protection to computer programs in the past and, as it is a country that only imports computer software from third countries, the national legislator believes that it is the in the interest of the Atlantians to provide as little protection to computer programs as possible. Skim the WCT and find the provision that would enable the national legislator to allow Atlantians, under certain circumstances, to freely use computer programs.

6. List the advantages and the disadvantages of enhanced copyright protection for creative works.

7. Do you think that both developed and developing countries should have the same rules for copyright protection? Why or why not?

8. Read article 3-1 of the draft text of the A2K treaty: http://www.cptech.org/a2k/a2k_treaty_may9.pdf
Comment on the importance of one or two provisions for the missions you perform as a librarian.

'''Round 2 questions'''

Please read comments on A2K treaty proposals that your colleagues provided to Round 1 question 2, and comment on one (or more) of them. You may give more examples based on situations you faced at work, or projects you could develop.

Module 5: Managing Rights

2009-04-26T15:52:46Z

Avalle2:

By David Scott, Emily Cox, Melanie Dulong de Rosnay and William Fisher

== Learning objective ==

This module describes how copyrights are managed through individual licenses and collecting societies.

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== Case study ==

In the previous module, Angela identified some ways in which the materials she hopes to include in her coursepack may be used without permission. Now she needs to get permission for other activities. She discusses the following questions with Nadia, the librarian who is assisting her:

- What activities may be covered by licenses the library has already obtained from publishers or collecting societies?
- For the activities that require a separate contract, what clauses should I negotiate?
- How should I handled those materials whose authors cannot be identified or located?

</div>

== Individual management ==

'''What is a copyright license?'''

The various rights enjoyed by a copyright owner may be transferred by the owner to other people and organizations in many different ways. Assignments, licenses, contracts and authorizations are legally binding agreements between two parties: the initial right holder, and the person or entity wishing to exercise some or all of the exclusive rights owned by the initial right holder.

Transfer of these sorts often precisely define the rights at issue according to many criteria:
· the scope of the authorized use (e.g., reproduction, the preparation of derivative works, public performances);
· the duration of the authorization (e.g. one year);
· the nature of the authorization (e.g. exclusive or non-exclusive);
· the fee related to the transaction (e.g. a flat fee or a fee proportional to the number of copies or of uses);
· the format or media type (e.g. print only or also digital; text only or also in another media, such as a recording or a film);
· the audience and location (e.g. a country, the premises of the library, the classroom, a distance learning cours).

Sometimes such a transfer grows out of negotiations between the licensor and licensee, and/or lawyers representing both parties. At other times, a license may be offered by the copyright owner in a standard form. In such circumstances, there may be little or no possibility for modification of the terms.

Some licenses are exclusive. In other words, the licensor agrees not to permit any other party to engage in the activities in question. Others are non-exclusive, meaning that the licensor remains free to permit other parties to engage in the same activities.

An assignment occurs when a copyright owner permanently and exclusively gives up his rights to another party, authorizing the recipient of the transferred rights to exercise the rights, and further authorize others to exercise these rights after a subsequent transfer or license. Assignments of all rights are sometimes required in publishing contracts. This type of agreement can be compared to the sale of physical property, because the assignor permanently surrenders the ability to exercise any of the rights at issue himself or herself.

'''Negotiating a license'''

Copyright owners are generally permitted to divide and license uses of their work as they please, provided that the rights contained in a new license do not overlap with rights the owner has already transferred exclusively to others. But the copyright laws in some countries limit the freedom of contracting for copyrighted works or contain specific provisions regulating transactions involving copyrighted works. For instance, transfers that are not in writing or that do not enumerate precisely elements such as rights, format, location and duration may be deemed void and invalid.

The degree to which the terms of a license are negotiable depends on the type of work at issue and the bargaining power of the licensor and licensee. Potential licensee can sometimes increase their bargaining power by acting collectively. For example, a consortium such as eIFL.net has more power than its individual members.

Click here to learn more about [[Model licenses]].

'''Content of a standard licensing agreement: the example of an online database'''

Clauses addressing the following categories of information will be found in a standard licensing agreement and should be considered before engaging in licensing negotiations:

''Identification of the parties to the agreement''

While this might seem obvious, it is important not only to identify the parties to an agreement, but also to make sure that the persons negotiating actually have the legal authority to make agreements on behalf of their organization. If a library is part of an educational institution or is funded by the local government, for example, it might not be the case that every librarian has this authority. A licensor might want proof that the person claiming to negotiate on behalf of the licensee is in fact permitted to bind the licensee by contract. The library might want to make sure the same is true of the person negotiating on behalf of the licensor, and that the licensor is entitled to exercise the rights of the original copyright owner. This should be clearly addressed and included in the agreement.

''Definition of terms that will be used in the agreement''

Because libraries often obtain licenses from copyright owners from other countries and from various industries, similar terms can have different meanings to the negotiating parties. One contractual term that is often ambiguous, yet central, to licensing agreements is “material breach.” A material breach is an action by one of the parties to a licensing agreement that permits the other party to terminate the contractual relationship. Because of the importance and ambiguity of this term, the library staff might want to determine and specify in the agreement what actions by a licensor would be significant enough that it would be in the library’s interest to end the relationship. Where a license to access materials for an online database is involved, for example, a material breach might occur where the database is unavailable to library patrons for significant period of time. The staff also might want to consider what potential failures by the library to live up to its end of a licensing agreement might legitimately be considered material breaches.

''Subject of Agreement''

Parties to an agreement should be thorough in identifying the copyright work that is being licensed. If it’s an online research database, for example, a licensee should make sure that the license entitles patrons to view the full text of articles rather than just abstracts or summaries. If the resource is something that should contain a table of contents, index or images, one should ensure that this is included in the license as well. If there are images, one might even want to determine whether they will be viewable and/or printable in grayscale or color.

''Use rights in the agreement''

This is one of the most important clauses in an agreement. Licensing agreements often contain clauses that reserve to the licensor the exclusive right to all uses of copyrighted works that are not specifically mentioned. A licensee should therefore think of all possible uses that it might want to make of a copyrighted work before it engages in negotiation. Where an electronic resource is concerned, some basic rights might include: searching or browsing the database, viewing and downloading material, forwarding articles to others, printing materials, and including a listing of the works and possibly their abstracts in the library’s own catalogue. A library that is affiliated with an educational institution may also want to make sure that a license allows faculty and staff to place materials in electronic reserves, include them in course packs, and distribute and/or display portions of the materials in lectures or other speaking engagements. Further, while the practice of loaning materials to other libraries or sharing a reasonable amount of materials with colleagues for scholarly purposes is implied in some jurisdictions by law, a licensee cannot normally share copyrighted materials for commercial purposes. If a licensee wishes to do so, it will have to negotiate for the right and included it in the agreement. If modifying a work in order to abide by local norms is necessary, a library should make sure that the modification does not conflict with the author’s moral rights.

''Other conditions on licensed uses''

Even after all types of desired uses have been discussed and included in a contract, a licensor might want to limit certain uses by location or frequency of access. In return for the right to unlimited printing of the copyrighted material, for example, a licensor might want additional compensation. In this event, a licensee can negotiate for the right to charge its patrons fees to recover copying or printing costs. A library should also determine who its users are going to be and where they will be able to access a given resource. For example, it may wish its users to be able to access the copyrighted material from any computer or only from computers located in the library. It should also decided whether access to the copyrighted material or certain uses of it will require a password or will be open to any member of the public.

''Licensor Obligations''

This clause is particularly important for electronic resources. It is reasonable for a subscriber to an online journal, database or other resource to expect that the material will be accessible very close to 24 hours a day, every day. Where a library has a software license, it might want to negotiate for the right to include a back-up copy of the program on location. In either case, licensing agreements for electronic materials typically include some obligation on the part of the licensor to provide the licensee with technical support. Because a licensor and its technical support staff might be located in another country, a licensee should make sure that technical support will be available during the library’s peak hours. On a related note, most online resources have periods of downtime during which the licensor’s technical staff will update the online materials. A licensee might want to ensure that this is not normally done during the library’s peak hours. When an online service or other electronic resource is unavailable for a significant period of time, licensing agreements typically include a penalty clause that requires the licensor to partially refund the licensee’s subscription fee. Another licensor obligation that is frequently included in licensing agreements for online materials is periodically to provide the licensee with an audit of use, or a report that gives the licensee details about how its patrons are using the licensor’s program or database. Such use audits can help library staff members in future licensing negotiations, enabling them to determine better which features and uses of licensed materials are most valuable to the library patrons. Where use audits are performed, the parties might also want to include refunds to the licensee for periods of underuse and additional fees to the licensor for periods of overuse. Lastly, a licensee should make sure that there is an indemnity clause, through which a licensor guarantees that it owns the copyright in all the works it is licensing and accepts liability for any conflicting claims of copyright ownership of those works.

''Term, termination and renewal of a license''

Negotiating parties should be explicit concerning how long they intend the license to last. As discussed earlier, the parties should also list all of the conditions that would lead to a termination of the licensing relationship. This might require the parties to create an end-of-term agreement, which specifies the procedures that will be followed in the event of termination, including the costs that may be recovered by either party. If an agreement is terminated because of the licensor’s failure to make the licensed material available to the licensee, for example, the parties will want to create a formula to compensate the licensee. While most licensing agreements contain a provision that provides for automatic renewal of the licensing relationship, many do not guarantee that the same terms will be available for the following subscription period. A licensee should make sure that, if the terms of previous subscription periods are subject to change, the renewal clause includes an obligation on the part of the licensor to notify the licensee of these changes in advance of the new subscription period.

''Fees''

Fees for subscriptions to journal, online databases or other resources are typically paid on an annual or monthly basis. When works are being licensed to libraries or other large educational institutions, licensors typically take the size of the institution, number of users and number of pages that are downloaded into account when determining the appropriate subscription fee. Licensors of online journals and electronic databases vary widely in their flexibility regarding fee arrangements. Some licensors are willing to negotiate fees, others offer various packages, and others offer only one arrangement. A subscription fee could include unlimited use of the licensor’s materials, limited use for particular uses, a pay-per-use arrangement, or a combination of these. Pay-per-use arrangements might set a fee for each log-on access, each time a user searches for content, or might allow unlimited access but charge users or subscribing institutions for each download. Universities often purchase what is called a site license, which gives all the members of the university community access for a set fee.

'''Licenses in the digital environment'''

Many online and electronic resources are now subject to electronic licenses. One common form of electronic license is called a unilateral or a shrinkwrap license because it comes with prescribed terms and is rarely subject to modification. Unilateral licenses are most often used by licensors of software products.

Another common form is called an end-user license agreement (EULA) or browsewrap license. These are frequently used by licensors of online content. EULAs allow prospective licensees to read the prescribed terms of the license on the licensor’s website. If they decide they want to use the licensor’s product or service, they can enter into the license by clicking on a button stating “I Agree.” Some licenses do not even require a “click” (the electronic manifestation of a signature), but are based on the behavior of a licensee, deemed sufficient to demonstrate a tacit acceptance and thus form a license. While many legal systems have not fully addressed the effect of these types of licenses, courts in some countries have ruled that a valid consent, giving rise to a binding contracts, can be formed in these fashions.

== Collective Management ==

'''Purpose and Functions of Collective Management Organizations'''

The structure of individual licensing described in the previous section is fairly simple: A copyright owner authorizes the use of the work by a licensee under specified conditions. Because copyright licensing often involves widely distributed works, individual licensing can become both very difficult and prohibitively expensive. It would not be practical, for example, for an owner of rights in a popular song to attempt to respond to thousands of licensing requests from radio stations all over the world. As a result, copyright owners frequently allow collective management organizations (also known as collecting societies or collection agencies) to grant licenses, monitor uses of copyrighted material, and collect and share remuneration from licensees on their behalf. This allows copyright owners to exercise their rights as efficiently as possible, as they can grant many more licenses than they would be able to under an individual licensing system. They also benefit from the bargaining power of an institution that negotiates remuneration on their behalf and can bring infringement suits against persons or organizations that use their works without permission.

Licensees also benefit from the use of collective management, as collection societies provide users with easy access to rights that they need to acquire though a single, yearly contract. A radio station wanting to broadcast music from around the world on a daily basis would not be able to do so if it had to seek out and acquire rights from the copyright and neighboring rights owners of each song.

A copyright owner that uses a collective management organization for some, but not all, of her rights is engaged in partial collective management. As discussed in the previous section of this module, a copyright owner’s exclusive right in a work means that he or she alone is able to decide whether to authorize or prohibit any use covered by that copyright. This gives copyright owners flexibility in deciding, if they choose to use collective management at all, exactly which functions a collective management organization will perform for them.

Collective management organizations may also provide social welfare benefits to their members in addition to their royalty payments, such as medical insurance and retirement packages. They may also use part of the royalties they collect to fund drama festivals, music competitions, or the production or export of national works.

'''Non-Voluntary Collective Management'''
(you can learn more about Compulsory Licenses in [[Module 4: Rights, Exceptions, and Limitations]]).

Compulsory collective management ensures that the benefits of collective management are actually realized. If a collective management organization does not have the rights to a significant number of works within its particular field, then it no longer serves the important purpose of being able to license a large repertoire in a short amount of time. As a result, some countries choose to make collective management mandatory to enforce certain categories of rights, particularly where a use serves an important public purpose or where works of that type are used primarily for non-commercial purposes. In such situations, royalties are often gathered either through a levy on copying equipment, or through an annual fee paid by users (companies, libraries, universities) to the collecting society. Those royalties are then shared among the copyright owners according to usage statistics. Collective management is sometimes criticized for the complexity and lack of transparency of its calculation rules to collect and share royalties when they do not exactly correspond to actual uses.

Areas in which compulsory collective management is fairly common are:
· public lending rights for works available in public libraries in countries such as Canada and Australia, and in some European countries, but not all of them, despite a European Directive of 2002 on rental right and lending right. (Many authors and organizations, including IFLA, are opposed to this practice.)
· reprographic rights for literary works, a right which is sometimes interpreted to include not only photocopying but also printouts from digital databases.
· neighboring rights for public performance, broadcasting, and cable transmission of sound recordings.

Some reformers have proposed extending this model to the distribution of works on the Internet, arguing that such a system would benefit both users (by legalizing file-sharing) and creators (by providing them a reliable source of revenue).

Click here to learn more about [[Alternative compensation systems]].

== Technological Protection Measures ==

Some copyright owners, particularly owners of copyrights in digital works, build into copies of their works certain features that hinder or control the ways in which users can access or employ them. These features are called Technological Protection Measures, or TPMs. This technique is also sometimes called (misleadingly) digital rights management (DRM). TPMs typically prevent the copying of an electronic file, or restrict the number of copies that can be made or the number of devices that can access the file. Right holders or distributors use such devices to enforce their licensing terms and to prevent unauthorized copying. A single work may thus be subjected to copyright, neighboring rights, a license, and a technical protection measure.

These measures are problematic from several perspectives for users: they often do not permit interoperability, and they are incapable of taking into account exceptions to copyright law. It is often not determined whether exceptions to copyright protection (of the sorts discussed in [[Module 4: Rights, Exceptions, and Limitations]] should override technical protections. The reason that this issue is important is that it is sometimes possible to disable TPMs, thereby enabling the reproduction of the copyrighted work. Most countries have enacted anti-circumvention statutes, which prohibit such disabling of TPMs. However, some of these statutes include exceptions for libraries. Out of the 184 WIPO countries included in the WIPO Study on Copyright Exceptions and Limitations for Libraries and Archives, 79 had statutes that prohibited circumvention of TPMs, and 26 of these provided explicit exemptions for libraries. The majority of countries that have enacted these explicit exemptions are members of the European Union. Countries outside the European Union that provide explicit library exemptions for anti-circumvention statues include Australia, Croatia, Norway, Singapore, and the United States.

== Orphan Works ==

When the owner of a copyrighted work cannot be located by reasonable efforts, that work becomes known as an orphan work. This may be because the work does not have the author’s name attached to it (or it was published anonymously or pseudonymously), or in the case of older works, because it is unclear who inherited the copyright from the original author. Orphan works are problematic because a prospective user has no way of contacting the author to ask for permission to use the work and to negotiate payment for that use.

Although most countries do not have statutory provisions for dealing with orphan works, some countries have implemented systems to deal with these works. In the context of international copyright agreements, these systems are justified by the three step test of Article 9(2) of the Berne Convention, that was discussed in [[Module 2: The international framework]].

For example, Canada has enacted copyright legislation that provides a method for authorizing the use of orphan works. Those who wish to use such works must apply to the Copyright Board of Canada for a license. Such applicants must first show that a reasonable effort to locate the copyright owner has been fruitless. If the work had previously been published, the Copyright Board will then grant the applicant a non-exclusive license (effective only within Canada) to use the work. The license is limited to particular types of uses, and requires the applicant to pay a designated royalty fee. This royalty can be collected by the copyright owner for up to five years after the transaction, in the event that she later comes forth.

The Nordic countries of Denmark, Finland, Iceland, Norway and Sweden have also enacted statutory regimes governing the licensing of orphan works. In Denmark, for example, the licensing of orphan works is arranged through a collective management organization. The Danish Copyright Act provides that an individual interested in using an orphan work may arrange to pay a rights management organization for that use, provided that the organization represents a “substantial number” of Danish copyright owners. The royalties paid to these organizations may be claimed by a copyright owner for up to five years, and unclaimed royalties for orphan works are donated to public works programs.

Another country that implements a licensing regime for the use of orphan works is Japan, whose compulsory licensing system for orphan works is codified in Section 8, Article 67 of its copyright laws. Japan requires that a prospective user perform “due diligence” in attempting to locate the copyright owner, but does not explain what qualifies as “due diligence.” Like Canada, Japan requires that the work have been published previously, and allows the government to grant a license to the user upon payment of a royalty. Royalties are placed in a fund from which copyright owners may receive compensation if they later discover and object to the use of their works. Notably, the owner may petition the government for an increase in the royalty rate within three months of the issuance of the license if she learns of the use and believes the initial rate to be unsatisfactory.

Other countries do not currently have statutory provisions dealing with orphan works, but may enact such provisions in the near future. A piece of legislation dealing with orphan works is currently being considered by the United States House of Representatives (a report on the progress of the Shawn Bentley Orphan Works Act of 2008 is available [http://www.govtrack.us/congress/bill.xpd?bill=s110-2913/ here]). The proposal would limit remedies in civil suits over the use of copyrighted works, as long as: (1) the user had made reasonable, but unsuccessful, efforts to locate and identify the owner, and (2) the work was attributed to the owner (if identified but not located). The proposal has been criticized by Lawrence Lessig, among others (see Lessig’s criticism [http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html/ here]), and is unlikely to be adopted.

In April 2008, the European Commission’s High Level Expert Group published a [http://ec.europa.eu/information_society/activities/digital_libraries/experts/hleg/meetings/index_en.htm/ report on Digital Preservation, Orphan Works, and Out-of-Print Works], which recommended courses of action for Member States of the European Union to establish licensing systems that would deal with the problem of orphan works. At the same time, numerous rights holders and representatives of libraries and archives signed a Memorandum of

Understanding on orphan works, available [http://ec.europa.eu/information_society/activities/digital_libraries/experts/hleg/meetings/index_en.htm/ here], which expressed the commitment of these organizations to facilitate and encourage the licensing of orphan works for certain purposes. Although the Memorandum of Understanding and the European Commission’s report are not law and are therefore not binding, both encourage member nations of the European Union to enact statutory provisions to deal with the licensing of orphan works, so there is a good chance that new legislation in this area will be enacted soon in these nations.

One reason why orphan works are problematic is that copyright law does not require that works be registered to be protected. This is the system set up by the Berne Convention. Although it has many merits, one downside is that all works are protected by copyright, even orphan works and works whose creators may have wished to make them available to the public. Arguments in some recent cases, notably Kahle v. Gonzalez in the United States, have attempted to challenge this system to make copyright an “opt-in” system (in which copyright protection is only obtained by fulfilling certain formalities) rather than an “opt-out” system (in which copyright exists upon the creation of a work). The United States 9th Circuit Court of Appeals in Kahle, relying on the United States Supreme Court’s decision in Eldred v. Ashcroft, rejected the suggestion that the creation of an opt-in section implicated First Amendment rights to freedom of speech. The rejection of an opt-in copyright scheme may be necessary in light of the requirements of [http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P109_16834/ Article 5(2) of the Berne Convention], which prohibits member states from attaching formalities to the receipt of copyright benefits.

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== Back to the case study: getting permission ==

Nadia and Angela have identified works that are copyrightable and not in the public domain. They need to get permission from rightholders for uses that are not covered by exceptions and limitations.

First, they have to identify the copyright owners. Original authors may have licensed or transferred rights to a publisher or a collective society, or the creation may be a work-for-hire. For the reasons explored in module 3, other persons may also be involved, such as music performers, or persons depicted in photographs, in addition to the photographer or entity who owns copyright. When the contact information for the copyright owner is not available on the work, it might be possible to locate the owner though national copyright offices or clearance centers.

Once they have identified and located the owners, Nadia and Angela will request permission. While a first contact by email or phone can be useful to explain the use they are considering, they will likely be obliged to follow up with a request in writing that describes accurately the work (title, author, copyright owner, URL), the purpose of the use (a description of the use in the coursepack), and the conditions of the permission that have been discussed (for a small fee, for free, etc.) Commencement and expiration dates as well as complete contact and signatures of both parties will complete the document.

</div>

== Assignment and discussion questions ==

'''Round 1 questions'''

1. Understand a license

Select a license governing access to electronic resources in your library or find online standard terms of a publisher. Read the use rights described in the license, and explain whether, to which extent, and under which conditions it covers the following actions:
· reprography by the patrons
· reprography by the librarians
· downloading by the patrons
· interlibrary loan of a printed copy
· interlibrary loan of a digital version
· publication in an electronic reserve or a coursepack
· rights when reusing resources: translation, compilation, indexing, abstract, data-mining, etc.
· other uses that you may define.

2. Collecting societies

What collecting societies, copyright offices, one-stop shops or other entities collectively managing rights are operating in your country? For each of them, provide the name of the society, the website if any, and the type of media or repertoire covered. Read the statutes or bylaws. Explain what rights are managed, if members must be transferring all of their rights or may only license some of them, and if it is a voluntary or a compulsory system,

'''Round 2 questions'''

Comment on the answers of your colleagues to question 1, and select the most favorable terms and licenses among those which have been analyzed.

== Sources ==

Belzos, Salvador M. “International Approaches to the Orphan Works Problem”

Collective Management of Copyright and Related Rights, 2-47 (Dr. Daniel Gervais ed., 2006)

“Collective Management of Copyrights and Related Rights” â publication from WIPO’s website; http://www.wipo.int/freepublications/en/copyright/450/wipo_pub_l450cm.pdf

Ricolfi, Marco. “Individual and collective management of copyright in a digital environment”. Copyright Law: A Handbook of Contemporary Research, 283-314 (Paul Torremans, Ed. 2007)

KEA Study- Collective Management of Rights in Europe: A Quest for Efficiency (2006)

WIPO Guide on the Licensing of Copyright and Related Rights (2004)

Model licenses

2009-04-26T15:51:33Z

Avalle2: New page: == Model licenses have been elaborated by eIFL.net == “The eIFL.net Model Licences are licences drafted by eIFL.net which contain more favourable provisions than any standard commercial...

== Model licenses have been elaborated by eIFL.net ==

“The eIFL.net Model Licences are licences drafted by eIFL.net which contain more favourable provisions than any standard commercial licence for access and use of electronic journals and datasets. eIFL.net negotiates such licences with publishers on behalf of the eIFL.net members. The eIFL.net Model Licences contain provisions that allow students and staff to make effective use of online resources for learning, teaching and research, which contain more favourable provisions than any standard commercial licence for access and use of electronic journals and datasets. eIFL.net negotiates such licences with publishers on behalf of the eIFL.net members. The eIFL.net Model Licences contain provisions that allow students and staff to make effective use of online resources for learning, teaching and research.”

Module 5: Managing Rights

2009-04-26T15:51:11Z

Avalle2:

By David Scott, Emily Cox, Melanie Dulong de Rosnay and William Fisher

== Learning objective ==

This module describes how copyrights are managed through individual licenses and collecting societies.

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== Case study ==

In the previous module, Angela identified some ways in which the materials she hopes to include in her coursepack may be used without permission. Now she needs to get permission for other activities. She discusses the following questions with Nadia, the librarian who is assisting her:

- What activities may be covered by licenses the library has already obtained from publishers or collecting societies?
- For the activities that require a separate contract, what clauses should I negotiate?
- How should I handled those materials whose authors cannot be identified or located?

</div>

== Individual management ==

'''What is a copyright license?'''

The various rights enjoyed by a copyright owner may be transferred by the owner to other people and organizations in many different ways. Assignments, licenses, contracts and authorizations are legally binding agreements between two parties: the initial right holder, and the person or entity wishing to exercise some or all of the exclusive rights owned by the initial right holder.

Transfer of these sorts often precisely define the rights at issue according to many criteria:
· the scope of the authorized use (e.g., reproduction, the preparation of derivative works, public performances);
· the duration of the authorization (e.g. one year);
· the nature of the authorization (e.g. exclusive or non-exclusive);
· the fee related to the transaction (e.g. a flat fee or a fee proportional to the number of copies or of uses);
· the format or media type (e.g. print only or also digital; text only or also in another media, such as a recording or a film);
· the audience and location (e.g. a country, the premises of the library, the classroom, a distance learning cours).

Sometimes such a transfer grows out of negotiations between the licensor and licensee, and/or lawyers representing both parties. At other times, a license may be offered by the copyright owner in a standard form. In such circumstances, there may be little or no possibility for modification of the terms.

Some licenses are exclusive. In other words, the licensor agrees not to permit any other party to engage in the activities in question. Others are non-exclusive, meaning that the licensor remains free to permit other parties to engage in the same activities.

An assignment occurs when a copyright owner permanently and exclusively gives up his rights to another party, authorizing the recipient of the transferred rights to exercise the rights, and further authorize others to exercise these rights after a subsequent transfer or license. Assignments of all rights are sometimes required in publishing contracts. This type of agreement can be compared to the sale of physical property, because the assignor permanently surrenders the ability to exercise any of the rights at issue himself or herself.

'''Negotiating a license'''

Copyright owners are generally permitted to divide and license uses of their work as they please, provided that the rights contained in a new license do not overlap with rights the owner has already transferred exclusively to others. But the copyright laws in some countries limit the freedom of contracting for copyrighted works or contain specific provisions regulating transactions involving copyrighted works. For instance, transfers that are not in writing or that do not enumerate precisely elements such as rights, format, location and duration may be deemed void and invalid.

The degree to which the terms of a license are negotiable depends on the type of work at issue and the bargaining power of the licensor and licensee. Potential licensee can sometimes increase their bargaining power by acting collectively. For example, a consortium such as eIFL.net has more power than its individual members.

Click here to learn more about [[Model licenses]]., [[click here (5.1)]].

'''Content of a standard licensing agreement: the example of an online database'''

Clauses addressing the following categories of information will be found in a standard licensing agreement and should be considered before engaging in licensing negotiations:

''Identification of the parties to the agreement''

While this might seem obvious, it is important not only to identify the parties to an agreement, but also to make sure that the persons negotiating actually have the legal authority to make agreements on behalf of their organization. If a library is part of an educational institution or is funded by the local government, for example, it might not be the case that every librarian has this authority. A licensor might want proof that the person claiming to negotiate on behalf of the licensee is in fact permitted to bind the licensee by contract. The library might want to make sure the same is true of the person negotiating on behalf of the licensor, and that the licensor is entitled to exercise the rights of the original copyright owner. This should be clearly addressed and included in the agreement.

''Definition of terms that will be used in the agreement''

Because libraries often obtain licenses from copyright owners from other countries and from various industries, similar terms can have different meanings to the negotiating parties. One contractual term that is often ambiguous, yet central, to licensing agreements is “material breach.” A material breach is an action by one of the parties to a licensing agreement that permits the other party to terminate the contractual relationship. Because of the importance and ambiguity of this term, the library staff might want to determine and specify in the agreement what actions by a licensor would be significant enough that it would be in the library’s interest to end the relationship. Where a license to access materials for an online database is involved, for example, a material breach might occur where the database is unavailable to library patrons for significant period of time. The staff also might want to consider what potential failures by the library to live up to its end of a licensing agreement might legitimately be considered material breaches.

''Subject of Agreement''

Parties to an agreement should be thorough in identifying the copyright work that is being licensed. If it’s an online research database, for example, a licensee should make sure that the license entitles patrons to view the full text of articles rather than just abstracts or summaries. If the resource is something that should contain a table of contents, index or images, one should ensure that this is included in the license as well. If there are images, one might even want to determine whether they will be viewable and/or printable in grayscale or color.

''Use rights in the agreement''

This is one of the most important clauses in an agreement. Licensing agreements often contain clauses that reserve to the licensor the exclusive right to all uses of copyrighted works that are not specifically mentioned. A licensee should therefore think of all possible uses that it might want to make of a copyrighted work before it engages in negotiation. Where an electronic resource is concerned, some basic rights might include: searching or browsing the database, viewing and downloading material, forwarding articles to others, printing materials, and including a listing of the works and possibly their abstracts in the library’s own catalogue. A library that is affiliated with an educational institution may also want to make sure that a license allows faculty and staff to place materials in electronic reserves, include them in course packs, and distribute and/or display portions of the materials in lectures or other speaking engagements. Further, while the practice of loaning materials to other libraries or sharing a reasonable amount of materials with colleagues for scholarly purposes is implied in some jurisdictions by law, a licensee cannot normally share copyrighted materials for commercial purposes. If a licensee wishes to do so, it will have to negotiate for the right and included it in the agreement. If modifying a work in order to abide by local norms is necessary, a library should make sure that the modification does not conflict with the author’s moral rights.

''Other conditions on licensed uses''

Even after all types of desired uses have been discussed and included in a contract, a licensor might want to limit certain uses by location or frequency of access. In return for the right to unlimited printing of the copyrighted material, for example, a licensor might want additional compensation. In this event, a licensee can negotiate for the right to charge its patrons fees to recover copying or printing costs. A library should also determine who its users are going to be and where they will be able to access a given resource. For example, it may wish its users to be able to access the copyrighted material from any computer or only from computers located in the library. It should also decided whether access to the copyrighted material or certain uses of it will require a password or will be open to any member of the public.

''Licensor Obligations''

This clause is particularly important for electronic resources. It is reasonable for a subscriber to an online journal, database or other resource to expect that the material will be accessible very close to 24 hours a day, every day. Where a library has a software license, it might want to negotiate for the right to include a back-up copy of the program on location. In either case, licensing agreements for electronic materials typically include some obligation on the part of the licensor to provide the licensee with technical support. Because a licensor and its technical support staff might be located in another country, a licensee should make sure that technical support will be available during the library’s peak hours. On a related note, most online resources have periods of downtime during which the licensor’s technical staff will update the online materials. A licensee might want to ensure that this is not normally done during the library’s peak hours. When an online service or other electronic resource is unavailable for a significant period of time, licensing agreements typically include a penalty clause that requires the licensor to partially refund the licensee’s subscription fee. Another licensor obligation that is frequently included in licensing agreements for online materials is periodically to provide the licensee with an audit of use, or a report that gives the licensee details about how its patrons are using the licensor’s program or database. Such use audits can help library staff members in future licensing negotiations, enabling them to determine better which features and uses of licensed materials are most valuable to the library patrons. Where use audits are performed, the parties might also want to include refunds to the licensee for periods of underuse and additional fees to the licensor for periods of overuse. Lastly, a licensee should make sure that there is an indemnity clause, through which a licensor guarantees that it owns the copyright in all the works it is licensing and accepts liability for any conflicting claims of copyright ownership of those works.

''Term, termination and renewal of a license''

Negotiating parties should be explicit concerning how long they intend the license to last. As discussed earlier, the parties should also list all of the conditions that would lead to a termination of the licensing relationship. This might require the parties to create an end-of-term agreement, which specifies the procedures that will be followed in the event of termination, including the costs that may be recovered by either party. If an agreement is terminated because of the licensor’s failure to make the licensed material available to the licensee, for example, the parties will want to create a formula to compensate the licensee. While most licensing agreements contain a provision that provides for automatic renewal of the licensing relationship, many do not guarantee that the same terms will be available for the following subscription period. A licensee should make sure that, if the terms of previous subscription periods are subject to change, the renewal clause includes an obligation on the part of the licensor to notify the licensee of these changes in advance of the new subscription period.

''Fees''

Fees for subscriptions to journal, online databases or other resources are typically paid on an annual or monthly basis. When works are being licensed to libraries or other large educational institutions, licensors typically take the size of the institution, number of users and number of pages that are downloaded into account when determining the appropriate subscription fee. Licensors of online journals and electronic databases vary widely in their flexibility regarding fee arrangements. Some licensors are willing to negotiate fees, others offer various packages, and others offer only one arrangement. A subscription fee could include unlimited use of the licensor’s materials, limited use for particular uses, a pay-per-use arrangement, or a combination of these. Pay-per-use arrangements might set a fee for each log-on access, each time a user searches for content, or might allow unlimited access but charge users or subscribing institutions for each download. Universities often purchase what is called a site license, which gives all the members of the university community access for a set fee.

'''Licenses in the digital environment'''

Many online and electronic resources are now subject to electronic licenses. One common form of electronic license is called a unilateral or a shrinkwrap license because it comes with prescribed terms and is rarely subject to modification. Unilateral licenses are most often used by licensors of software products.

Another common form is called an end-user license agreement (EULA) or browsewrap license. These are frequently used by licensors of online content. EULAs allow prospective licensees to read the prescribed terms of the license on the licensor’s website. If they decide they want to use the licensor’s product or service, they can enter into the license by clicking on a button stating “I Agree.” Some licenses do not even require a “click” (the electronic manifestation of a signature), but are based on the behavior of a licensee, deemed sufficient to demonstrate a tacit acceptance and thus form a license. While many legal systems have not fully addressed the effect of these types of licenses, courts in some countries have ruled that a valid consent, giving rise to a binding contracts, can be formed in these fashions.

== Collective Management ==

'''Purpose and Functions of Collective Management Organizations'''

The structure of individual licensing described in the previous section is fairly simple: A copyright owner authorizes the use of the work by a licensee under specified conditions. Because copyright licensing often involves widely distributed works, individual licensing can become both very difficult and prohibitively expensive. It would not be practical, for example, for an owner of rights in a popular song to attempt to respond to thousands of licensing requests from radio stations all over the world. As a result, copyright owners frequently allow collective management organizations (also known as collecting societies or collection agencies) to grant licenses, monitor uses of copyrighted material, and collect and share remuneration from licensees on their behalf. This allows copyright owners to exercise their rights as efficiently as possible, as they can grant many more licenses than they would be able to under an individual licensing system. They also benefit from the bargaining power of an institution that negotiates remuneration on their behalf and can bring infringement suits against persons or organizations that use their works without permission.

Licensees also benefit from the use of collective management, as collection societies provide users with easy access to rights that they need to acquire though a single, yearly contract. A radio station wanting to broadcast music from around the world on a daily basis would not be able to do so if it had to seek out and acquire rights from the copyright and neighboring rights owners of each song.

A copyright owner that uses a collective management organization for some, but not all, of her rights is engaged in partial collective management. As discussed in the previous section of this module, a copyright owner’s exclusive right in a work means that he or she alone is able to decide whether to authorize or prohibit any use covered by that copyright. This gives copyright owners flexibility in deciding, if they choose to use collective management at all, exactly which functions a collective management organization will perform for them.

Collective management organizations may also provide social welfare benefits to their members in addition to their royalty payments, such as medical insurance and retirement packages. They may also use part of the royalties they collect to fund drama festivals, music competitions, or the production or export of national works.

'''Non-Voluntary Collective Management'''
(you can learn more about Compulsory Licenses in [[Module 4: Rights, Exceptions, and Limitations]]).

Compulsory collective management ensures that the benefits of collective management are actually realized. If a collective management organization does not have the rights to a significant number of works within its particular field, then it no longer serves the important purpose of being able to license a large repertoire in a short amount of time. As a result, some countries choose to make collective management mandatory to enforce certain categories of rights, particularly where a use serves an important public purpose or where works of that type are used primarily for non-commercial purposes. In such situations, royalties are often gathered either through a levy on copying equipment, or through an annual fee paid by users (companies, libraries, universities) to the collecting society. Those royalties are then shared among the copyright owners according to usage statistics. Collective management is sometimes criticized for the complexity and lack of transparency of its calculation rules to collect and share royalties when they do not exactly correspond to actual uses.

Areas in which compulsory collective management is fairly common are:
· public lending rights for works available in public libraries in countries such as Canada and Australia, and in some European countries, but not all of them, despite a European Directive of 2002 on rental right and lending right. (Many authors and organizations, including IFLA, are opposed to this practice.)
· reprographic rights for literary works, a right which is sometimes interpreted to include not only photocopying but also printouts from digital databases.
· neighboring rights for public performance, broadcasting, and cable transmission of sound recordings.

Some reformers have proposed extending this model to the distribution of works on the Internet, arguing that such a system would benefit both users (by legalizing file-sharing) and creators (by providing them a reliable source of revenue).

Click here to learn more about [[Alternative compensation systems]]., click [[here (5.2)]].

== Technological Protection Measures ==

Some copyright owners, particularly owners of copyrights in digital works, build into copies of their works certain features that hinder or control the ways in which users can access or employ them. These features are called Technological Protection Measures, or TPMs. This technique is also sometimes called (misleadingly) digital rights management (DRM). TPMs typically prevent the copying of an electronic file, or restrict the number of copies that can be made or the number of devices that can access the file. Right holders or distributors use such devices to enforce their licensing terms and to prevent unauthorized copying. A single work may thus be subjected to copyright, neighboring rights, a license, and a technical protection measure.

These measures are problematic from several perspectives for users: they often do not permit interoperability, and they are incapable of taking into account exceptions to copyright law. It is often not determined whether exceptions to copyright protection (of the sorts discussed in [[Module 4: Rights, Exceptions, and Limitations]] should override technical protections. The reason that this issue is important is that it is sometimes possible to disable TPMs, thereby enabling the reproduction of the copyrighted work. Most countries have enacted anti-circumvention statutes, which prohibit such disabling of TPMs. However, some of these statutes include exceptions for libraries. Out of the 184 WIPO countries included in the WIPO Study on Copyright Exceptions and Limitations for Libraries and Archives, 79 had statutes that prohibited circumvention of TPMs, and 26 of these provided explicit exemptions for libraries. The majority of countries that have enacted these explicit exemptions are members of the European Union. Countries outside the European Union that provide explicit library exemptions for anti-circumvention statues include Australia, Croatia, Norway, Singapore, and the United States.

== Orphan Works ==

When the owner of a copyrighted work cannot be located by reasonable efforts, that work becomes known as an orphan work. This may be because the work does not have the author’s name attached to it (or it was published anonymously or pseudonymously), or in the case of older works, because it is unclear who inherited the copyright from the original author. Orphan works are problematic because a prospective user has no way of contacting the author to ask for permission to use the work and to negotiate payment for that use.

Although most countries do not have statutory provisions for dealing with orphan works, some countries have implemented systems to deal with these works. In the context of international copyright agreements, these systems are justified by the three step test of Article 9(2) of the Berne Convention, that was discussed in [[Module 2: The international framework]].

For example, Canada has enacted copyright legislation that provides a method for authorizing the use of orphan works. Those who wish to use such works must apply to the Copyright Board of Canada for a license. Such applicants must first show that a reasonable effort to locate the copyright owner has been fruitless. If the work had previously been published, the Copyright Board will then grant the applicant a non-exclusive license (effective only within Canada) to use the work. The license is limited to particular types of uses, and requires the applicant to pay a designated royalty fee. This royalty can be collected by the copyright owner for up to five years after the transaction, in the event that she later comes forth.

The Nordic countries of Denmark, Finland, Iceland, Norway and Sweden have also enacted statutory regimes governing the licensing of orphan works. In Denmark, for example, the licensing of orphan works is arranged through a collective management organization. The Danish Copyright Act provides that an individual interested in using an orphan work may arrange to pay a rights management organization for that use, provided that the organization represents a “substantial number” of Danish copyright owners. The royalties paid to these organizations may be claimed by a copyright owner for up to five years, and unclaimed royalties for orphan works are donated to public works programs.

Another country that implements a licensing regime for the use of orphan works is Japan, whose compulsory licensing system for orphan works is codified in Section 8, Article 67 of its copyright laws. Japan requires that a prospective user perform “due diligence” in attempting to locate the copyright owner, but does not explain what qualifies as “due diligence.” Like Canada, Japan requires that the work have been published previously, and allows the government to grant a license to the user upon payment of a royalty. Royalties are placed in a fund from which copyright owners may receive compensation if they later discover and object to the use of their works. Notably, the owner may petition the government for an increase in the royalty rate within three months of the issuance of the license if she learns of the use and believes the initial rate to be unsatisfactory.

Other countries do not currently have statutory provisions dealing with orphan works, but may enact such provisions in the near future. A piece of legislation dealing with orphan works is currently being considered by the United States House of Representatives (a report on the progress of the Shawn Bentley Orphan Works Act of 2008 is available [http://www.govtrack.us/congress/bill.xpd?bill=s110-2913/ here]). The proposal would limit remedies in civil suits over the use of copyrighted works, as long as: (1) the user had made reasonable, but unsuccessful, efforts to locate and identify the owner, and (2) the work was attributed to the owner (if identified but not located). The proposal has been criticized by Lawrence Lessig, among others (see Lessig’s criticism [http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html/ here]), and is unlikely to be adopted.

In April 2008, the European Commission’s High Level Expert Group published a [http://ec.europa.eu/information_society/activities/digital_libraries/experts/hleg/meetings/index_en.htm/ report on Digital Preservation, Orphan Works, and Out-of-Print Works], which recommended courses of action for Member States of the European Union to establish licensing systems that would deal with the problem of orphan works. At the same time, numerous rights holders and representatives of libraries and archives signed a Memorandum of

Understanding on orphan works, available [http://ec.europa.eu/information_society/activities/digital_libraries/experts/hleg/meetings/index_en.htm/ here], which expressed the commitment of these organizations to facilitate and encourage the licensing of orphan works for certain purposes. Although the Memorandum of Understanding and the European Commission’s report are not law and are therefore not binding, both encourage member nations of the European Union to enact statutory provisions to deal with the licensing of orphan works, so there is a good chance that new legislation in this area will be enacted soon in these nations.

One reason why orphan works are problematic is that copyright law does not require that works be registered to be protected. This is the system set up by the Berne Convention. Although it has many merits, one downside is that all works are protected by copyright, even orphan works and works whose creators may have wished to make them available to the public. Arguments in some recent cases, notably Kahle v. Gonzalez in the United States, have attempted to challenge this system to make copyright an “opt-in” system (in which copyright protection is only obtained by fulfilling certain formalities) rather than an “opt-out” system (in which copyright exists upon the creation of a work). The United States 9th Circuit Court of Appeals in Kahle, relying on the United States Supreme Court’s decision in Eldred v. Ashcroft, rejected the suggestion that the creation of an opt-in section implicated First Amendment rights to freedom of speech. The rejection of an opt-in copyright scheme may be necessary in light of the requirements of [http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P109_16834/ Article 5(2) of the Berne Convention], which prohibits member states from attaching formalities to the receipt of copyright benefits.

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== Back to the case study: getting permission ==

Nadia and Angela have identified works that are copyrightable and not in the public domain. They need to get permission from rightholders for uses that are not covered by exceptions and limitations.

First, they have to identify the copyright owners. Original authors may have licensed or transferred rights to a publisher or a collective society, or the creation may be a work-for-hire. For the reasons explored in module 3, other persons may also be involved, such as music performers, or persons depicted in photographs, in addition to the photographer or entity who owns copyright. When the contact information for the copyright owner is not available on the work, it might be possible to locate the owner though national copyright offices or clearance centers.

Once they have identified and located the owners, Nadia and Angela will request permission. While a first contact by email or phone can be useful to explain the use they are considering, they will likely be obliged to follow up with a request in writing that describes accurately the work (title, author, copyright owner, URL), the purpose of the use (a description of the use in the coursepack), and the conditions of the permission that have been discussed (for a small fee, for free, etc.) Commencement and expiration dates as well as complete contact and signatures of both parties will complete the document.

</div>

== Assignment and discussion questions ==

'''Round 1 questions'''

1. Understand a license

Select a license governing access to electronic resources in your library or find online standard terms of a publisher. Read the use rights described in the license, and explain whether, to which extent, and under which conditions it covers the following actions:
· reprography by the patrons
· reprography by the librarians
· downloading by the patrons
· interlibrary loan of a printed copy
· interlibrary loan of a digital version
· publication in an electronic reserve or a coursepack
· rights when reusing resources: translation, compilation, indexing, abstract, data-mining, etc.
· other uses that you may define.

2. Collecting societies

What collecting societies, copyright offices, one-stop shops or other entities collectively managing rights are operating in your country? For each of them, provide the name of the society, the website if any, and the type of media or repertoire covered. Read the statutes or bylaws. Explain what rights are managed, if members must be transferring all of their rights or may only license some of them, and if it is a voluntary or a compulsory system,

'''Round 2 questions'''

Comment on the answers of your colleagues to question 1, and select the most favorable terms and licenses among those which have been analyzed.

== Sources ==

Belzos, Salvador M. “International Approaches to the Orphan Works Problem”

Collective Management of Copyright and Related Rights, 2-47 (Dr. Daniel Gervais ed., 2006)

“Collective Management of Copyrights and Related Rights” â publication from WIPO’s website; http://www.wipo.int/freepublications/en/copyright/450/wipo_pub_l450cm.pdf

Ricolfi, Marco. “Individual and collective management of copyright in a digital environment”. Copyright Law: A Handbook of Contemporary Research, 283-314 (Paul Torremans, Ed. 2007)

KEA Study- Collective Management of Rights in Europe: A Quest for Efficiency (2006)

WIPO Guide on the Licensing of Copyright and Related Rights (2004)

Module 3: The Scope of Copyright Law

2009-04-26T15:49:38Z

Avalle2:

By Inge Osman, Melanie Dulong de Rosnay and William Fisher

== Learning objective ==

This module discusses the kinds of creations and the kinds of activities that copyright law does and does not cover.

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== Case study ==

The course pack will build upon, quote and gather preexisting material by other authors. What is the status of the output after the professor’s contribution?

Angela, the professor, collects articles and books with the help of some students and research assistants. She will discuss with Nadia, the librarian, the distinction between ideas, which can be freely reproduced, and works, which can be quoted.

</div>

== What Does Copyright Law Protect? ==

'''The Definition of a Literary and Artistic Work'''

The Berne Convention, discussed in [[Module 2: The international framework]], establishes a literary and artistic work as the subject matter of copyright. Article 2, Section 1 of the Convention defines such a work expansively:

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 dramatico-musical 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.

To be entitled to protection, a work falling into this broad category must satisfy two basic requirements – originality and fixation – which are explained it detail below.

== The Concept of Originality ==

Although neither the Berne Convention Berne Convention nor the TRIPS Agreement expressly requires originality, almost all countries require some level of authorial creativity for a work to qualify for copyright protection. How much creativity it required? Unfortunately, there is no uniform answer to that questions; each country independently sets the originality standard that works must meet.

Spain, the United Kingdom, Mexico, Canada, India, and the United States all extend copyright protection only to “original works.” United States law defines originality as independent conception. France and Spain on the other hand, following the moral rights tradition, define originality as the “imprint of the author’s personality” on the work.

In most countries, the work of authorship need not be original in the sense that it is novel, ingenious, or has aesthetic merit. For example, the US Supreme Court established the modern definition of originality as requiring only that the work be independently created by the author and that it possess “at least some minimal degree of creativity.” The Court made clear, however, that the “requisite level of creativity is extremely low;” a work need only “possess some creative spark no matter how crude, humble or obvious it might be.”

== The Requirement of Form or Tangible Medium of Expression ==

The Berne Convention leaves it up to the individual countries to decide whether to require that copyrighted material be “fixed.” Article 2, Section 2 of the Convention states:

“It shall be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.”

Many countries do not require that a work be produced in a particular form to obtain copyright protection. For instance, Spain, France, and Australia do not require fixation for copyright protection. The US and Canada, on the other hand, require that the work be “fixed in a tangible medium of expression” to obtain copyright protection. US law requires that the fixation be stable and permanent enough so that it may be “perceived, reproduced or communicated for a period of more than transitory duration.” Similarly, Canadian courts consider fixation to require that the work be “expressed to some extent at least in some material form, capable of identification and having a more or less permanent endurance.” The definition of “fixation” in the US excludes “purely evanescent or transient reproductions such as those projected briefly on a screen, shown electronically on a television or other cathode ray tube, or captured momentarily in the ‘memory’ of a computer.”

Many courts, including those in the US, have deemed computer programs fixed when stored in a silicon chip. The audiovisual effects of computer games are commonly considered to be fixed because their repetitiveness makes them “sufficiently permanent and stable.”

The requirement of fixation may become problematic when applied to live performances. For instance, US law specifies that a work must be fixed “by or under the authority of the author.” This means that if someone were to record and distribute copies of a live performance without permission, the performer would have no legal recourse under copyright law because that performance would not be fixed and therefore would not be eligible for copyright protection. Countries that grant copyright for perceptible works regardless of fixation do not have similar problems. In the US, Congress tempered the fixation requirement by declaring “a work consisting of sounds, images, or both that are being transmitted, is ‘fixed’if a fixation of the work is being made simultaneously with its transmission.” This rule provides a solution for performances that are being broadcast or transmitted, but, arguably, live performances that are simultaneously recorded but not transmitted are still unprotected by copyright law.

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) requires all members of the World Trade Organization (WTO) to protect live musical performances. This means that even countries with fixation requirements must enact statutes to ensure the protection of musical performances without fixation. The US, for instance, enacted a special provision prohibiting the “fixation or transmission of a live musical performance without the consent of the performers, and prohibiting the reproduction of copies or phonorecords of an unauthorized fixation of a live musical performance.” Notice, however, that this provision is limited to “musical” performances.

== The Exclusion of Ideas from Copyright Protection ==

As indicated in [[Module 1: Copyright and the public domain: an introduction]], copyright law does not protect ideas or facts; it only protects the expression of those ideas or facts. In this regard, the US copyright statute is typical: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated or embodied in such work.” The same principle can be found in the major treaties. The Berne Convention, for example, states that protection “shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information.” Both the TRIPS Agreement and the WIPO Copyright Treaty state that expressions are copyrightable, but not “ideas, procedures, methods of operation or mathematical concepts as such.”

The Berne Convention permits individual member countries to determine whether this basic principle should be extended to deny protection to works created by government agencies: “[I]t shall be a matter for legislation in the countries of the Union to determine the protection to be granted to official texts of a legislative, administrative and legal nature, and to official translations of such texts.”

It is sometimes said that the purpose of excluding ideas and facts from the scope of what is copyrightable is to promote the public interest in freedom of speech. Extending copyright protection to ideas or facts would inhibit public debate by allowing copyright holders to control uses of the concepts or information contained in their works. Both political freedom and the progress of knowledge would suffer.

On occasion, an idea and its expression may become indistinguishable. If there is only one way of expressing a particular idea, the idea and the expression of that idea are said to “merge.” The merger doctrine in copyright law was developed to deal with such cases, removing from the scope of copyright protection those expressions that constitute the only way of expressing an idea. What about situations in which an idea can only be expressed in a limited number of ways? The courts in some countries deal with such situations by granting limited or “thin” copyright protection to those expressions – in other words, prohibiting only verbatim copying, or virtually identical copying.

== The Difference between owning a copy and owning a copyright. ==

Ownership of a physical copy of a work is separate from copyright ownership. Just because you own a copy of a book doesn’t mean you are free to copy it.

Ordinarily, when the creator of a work sells or transfers a copy of it to another person, he does not surrender his copyright unless he expressly agrees to do so. So, for example, the writer of a letter or an email message retains the copyright in the letter even after he has sent it to the recipient.

For the most part, the lawful owners of copies of copyrighted works are free to sell or give those copies to other people – or to destroy or mutilate them. However, some treaties and national legal systems recognize “moral rights” that set limits on the freedom of the owners of copies to act in these ways. The Berne Convention, for example, provides:

Independently of the author’s economic rights, and even after 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, which would be prejudicial to his honor or reputation.

== The Relationship between Copyright Infringement and Other Unauthorized Activities ==

Copyright infringement is the unauthorized use of a copyrighted work in a manner that violates one of the copyright owner’s exclusive rights.

We will examine those rights in detail in [[Module 4: Rights, Exceptions, and Limitations]]. It should be emphasized that copyright infringement covers only a subset of the ways in which copyrightable works may be used without permission. Some unauthorized uses that do not constitute copyright infringement may violate other legal rules; some may violate nonlegal social norms; while still others are both lawful and socially approved. This complex pattern of norms finds expression in a variety of terms, which are frequently confused. We disentangle some of them below and they will be studied in [[Module 7: Enforcement]].

Plagiarism consists of the use of ideas or words of someone else without properly crediting the source. It is entirely separate from copyright law. Common sanctions for plagiarism are expulsion or suspension from school, discharge from a job, and social disapproval.

“Piracy” has no strict definition within (or outside of) copyright law. In recent years, the term has been used increasingly often (typically by nonlawyers) to refer to unauthorized and unexcused reproductions of audio and video recordings, but the copyright laws do not themselves refer to “piracy.” Insofar as the term connotes the violence that commonly accompanies the seizure of ships on the high seas, it is misleading when used in connection with unauthorized uses of literary works.

“Counterfeiting” is defined in various ways. Most often, the term refers to the creation or distribution of imitations (typically inferior-quality) imitations of genuine works – with the intent to deceive the public concerning their authenticity. Conterfeiting in this sense is governed primarily by trademark law and the law of unfair competition, not by copyright law. (link from counterfeiting to ACTA proposal in [[Module 2: The international framework]])

Finally, it bears repeating that many unauthorized uses of copyright works do not violate any legal regime. Such permissible unregulated uses include reading a book, performing a play privately, selling a copyrighted work, and watching a copyrighted performance.

== Copyright Duration ==

The Berne Convention requires that the term of copyright protection be, at a minimum, the life of the author plus an additional fifty years after her death. Member countries are free, however, to adopt longer terms, subject to the following limitation:

“In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work.”

Many countries have exercised the discretion left to them by the Berne Convention. The result is that the duration of copyright varies substantially by country.

The resulting difficulty in determining how long a copyright will last is exacerbated by the fact that many countries make the duration of copyright dependent on the type of work at issue. The Czech Republic and the Netherlands, for instance, grant copyright protection for the life of the author plus 70 years for literary works, and for the life of the longest living joint author plus 70 years for jointly held works. This construction is deceptively simple, because it applies only to works created on or after April 7, 2000 and December 29, 1995 respectively. Works created before those dates, respectively, are subject to different and more complicated copyright duration terms. The sporadic lengthening of copyright terms that has occurred internationally has led to a complicated patchwork of copyright duration terms determined by the category of work, and the date of creation or publication.

Click here to learn about the [[Case of the Canadian Online Repositories of Public Domain]].

To learn about [[Recent Term Extensions Controversies (Eldred v. Ashcroft)]].

== Extensions of the Scope of Copyright Protection ==

In recent years, copyright law has gradually expanded to encompass more subject matters and more exclusive rights. The Berne Convention, the TRIPs Agreement, the Universal Copyright Conventions and the WIPO Copyright Treaty work together to produce minimum standards of protection that countries must meet, thereby extending copyright protection generally.

Some of these extensions can be justified on the ground that they stimulate additional creativity. On the other hand, the extension of copyright to more kinds of works and for a greater length of time has resulted in the reduction in the amount of material in the public domain. As a result, materials that could otherwise be used in the creation of new artistic or literary works can no longer be used.

As copyright law has expanded, it has fragmented. In other words, special rules have been devised to deal with particular kinds of works. Some of those special rules are described below.

== Audiovisual and Cinematographic works, Computer Programs ==

Audiovisual or cinematographic works are collective projects that often involve the contributions of several individual authors, discussed in the Rights Ownership and Works for Hire topics in [[Module 4: Rights, Exceptions, and Limitations]]. Given the large number of people that are involved in their creation, treating each contributor as a joint author of the work would give rise to practical problems. For instance, in order for use of the film to be assigned, each contributor would need to agree to license the copyright.

Different countries have try to overcome this problem in different ways. The French Intellectual Property Code treats contributors to films as co-authors but implies into the author-producer relationship a transfer of the exploitation rights of the material to the producer. Countries such as the United Kingdom and the United States, by contrast, vest the authorship and copyright ownership of these works in a single person. For instance, the 1988 Copyright, Designs and Patent Act in the United Kingdom typically vests these rights in the producer. The U.S. Copyright Act on the other hand treats the contributions to a audiovisual or cinematographic work as works made for hire, thereby also vesting authorship and copyright ownership in one person, typically the producer. The Berne Convention recognizes and respects the differences among countries in the allocation of rights to audiovisual and cinematographic works.

Computer programs constitute another special category of works. Although the Berne Convention does not address computer programs, the TRIPS agreement requires that computer programs be protected as literary works. Like audiovisual works, computer programs are often the products of the efforts of many individuals. Here too, countries vary in the way they handle allocation of authorship rights. German copyright law, for example, contains a presumption giving exclusive rights to the employer in the context of computer software.

== Broadcast, Recording, Interpretation ==

The Berne Convention requires that the author of a copyrighted work be given the exclusive right to authorize

(i) the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images;
(ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original public one;
(iii) the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work.

The Berne Convention permits individual countries to determine which of these rights may be exercised and in what circumstances, but stipulates that they should not be applied in a way that would be prejudicial to an author’s moral rights. Countries such as Ireland, Kenya and Oman have enacted copyright laws extending to authors the right to control and license broadcasts of their work.

== Works of Folklore and Indigenous Knowledge ==

Copyright protection for traditional cultural expressions or for works of folklore has been increasing. Such works typically are created by communities rather than individuals. According to WIPO, “works of traditional cultural expression include music, art, designs, names, signs and symbols, performances, architectural forms, handicrafts and narratives.” Among the purposes of protecting cultural products of these sorts the promotion of creativity and cultural diversity. Countries such as the Philippines, Panama, and New Zealand currently have legislation specifically extending intellectual property protection to works of folklore.

For instance, Oman’s legislation on “Promulgating the Law on the Protection of Copyrights and Neighboring Rights” extends copyright to folklore, defining it as “literary, artistic or scientific works created in Oman by popular groups expressing their cultural identity, which are transferred from generation to generation and represent a fundamental element in the national popular traditional heritage. The competent authority shall exercise the author’s rights in works of folklore to object to any mutilation, modification or unlawful commercial exploitation.”
What is an “Author”?

== Rights Ownership Rules: How to Determine the Original Right Holder ==

The Berne Convention gives member countries broad latitude in determining who is considered an author, and therefore the original copyright owner, of a literary or artistic work. Article 15(1) provides:

“In order that the author of a literary or artistic work protected by this Convention shall, in the absence of proof to the contrary, be regarded as such, and consequently be entitled to institute infringement proceedings in the countries of the Union, it shall be sufficient for his name to appear on the work in the usual manner. This paragraph shall be applicable even if this name is a pseudonym, where the pseudonym adopted by the author leaves no doubt as to his identity.”

The majority of civil-law countries stipulate that only “persons” in the ordinary sense can qualify as authors. Spanish copyright law, for example, specifies “the natural person who creates any literary, artistic, or scientific work shall be considered the author thereof.” Similarly, French copyright law states that “authorship shall belong, unless proved otherwise, to the person or persons under whose name the work has been disclosed.” Common-law countries, by contrast, more often permit organizations – for instance, corporate employers – to qualify as “authors.”

The determination of who the author of a literary or artistic work is often straightforward: the author is the person who conceives of and gives expression to an idea. However, in other cases, this determination becomes more complicated and may depend on who assists in the production, oversees and directs the arrangement of the details of the literary or artistic work. In such cases, the determination of authorship will depend on the facts of the specific case.

== Works by Multiple Authors: Rules for Joint Authorship and Collaborations ==

Joint authorship exists when two or more persons create a copyrighted work. In situations of this sort, legislation in most countries grants each contributor an undivided share of the copyright in the work. The requirements for joint authorship vary across nations. The Berne Convention recognizes that joint authorship exists but does not specify the requirements for joint authorship, thus allowing for the variance among nations.

Countries in continental Europe typically stipulate that joint authorship does not require that each author contribute the same amount to the work, but require that each author’s contribution displays the minimal amount of creativity or originality necessary in the jurisdiction to merit copyright protection in its own right. Applying this approach, a Dutch Supreme Court decision Kluwer v. Lamoth granted a stylist co-authorship status for creatively rearranging needleworks for a photograph.

The second common requirement for joint authorship is that each author’s contribution cannot be separated and commercially exploited independently of the work as a whole. For instance, Japanese legislation defines joint works as works that are “created by two or more persons in which the contribution of each person cannot be separately exploited.” If this is not true – for instance, when one author contributes the music and another the lyrics for a song – each contributor is typically given an independent copyright in his or her contribution.

== Derivative Works and Transformations ==

Derivative works are modifications of preexisting works. Examples include abridgments and motion-picture adaptations of novels. The Berne Convention does not explicitly refer to derivative works, but rather lists a number of works based on other copyrighted works for which member countries must provide copyright protection. Specifically, the Berne Convention Article 2, Section 3 states that

“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 of the original work.”

This provision is incorporated into the TRIPS agreement. Although these provisions guarantee the protection of specific types of derivative works, they do not clarify what level of distinction is necessary from the original copyrighted work for a derivative work to merit copyright protection in its own right. Often it is not clear whether obtaining a copyright in a derivative work requires a higher level of originality than obtaining a copyright in a completely new work. In any case, a copyright in a derivative work extends only to the new material contributed by the author of the derivative and not also to the preexisting material. If the original work is still protected by copyright, they then author of the derivative work must obtain the permission of the owner of the copyright in the original.

== Collective Works and Compilations ==

Compilations constitute another instance of a situation in which a copyright may be obtained through the use and manipulation of preexisting works. Compilations are works formed by assembling, selecting, or rearranging preexisting works such that the result constitutes an original work of the author. Collective works represent a specific type of compilation in which a number of separate and independent contributions are assembled into one work. A collective work is a work by two or more authors but is not cohesive enough to qualify as a joint work. The Berne Convention only requires the protection of collective works.

“Collections of literary or artistic works such as encyclopedias 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.” Article 2, Section 5.

The TRIPS Agreement extends copyright protection to all compilations:

“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.” Article 10, Section 2.

== Employees and Works for Hire ==

Employees are often hired to create creative literary or artistic works, resulting in questions of authorship rights. Civil law countries impose as a default the rule that the authorship of a work created in the scope of employment vests in the employee, not the employer. This requires that employers contract with employees to obtain the copyrights to the creative works. For instance, the French Intellectual Property Code stipulates that copyright vests in the work’s actual author and not his employer. (This is the provision by default; rights ownership of some categories of work, such as software, are immediately assigned to the employer.) On the other hand, some countries, including Germany, imply into the employee-employer relationship an assignment of copyright from the employee to the employer.

Common-law countries, such as the United States, Canada, and Great Britain, set as a default rule that the copyrights to works created within the scope of employment vest in the employer and not the employee. For instance, Canadian copyright law states that if a work is created within the scope of employment, “the person by whom the author was employed shall, in the absence of agreement to the contrary, be the first owner of the copyright.” Under the British Copyright, Designs and Patents Act of 1988, if a copyrighted work is made by an employee in the course of that employment, the copyright is automatically owned by the employer as a "Work for Hire."

== Civil Servants, Researchers and Professors ==

Traditionally there has been one category of employees exempt from the “work for hire” doctrine: academics (including teachers and sometimes researchers).

In some countries, works made in the scope of the employment of civil servants are also excluded from the “work for hire” doctrine, because they are denied copyright protection altogether. In other countries, this is not true. For instance, copyright law in the Czech Republic contains a presumption that a work created by a civil servant is a work for hire and the copyright and authorship rights are granted to the employer.

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== Back to the case study ==

Nadia (the librarian) should help Angela (the professor) understand authorship questions in the set of materials she has gathered by asking a series of questions:

· Is the arrangement of pre-existing material in an original way considered a creative work?

· Does the summary of an article constitute a new work?

· Who will be the copyright holder of the new work?
· Do the answers to these questions affect Angela’s duty to obtain permission to reproduce and adapt preexisting works.

</div>

== Assignment and discussion questions ==

'''Round 1 questions'''

1. Multiple authorship

Information technologies make it easier to edit and remix others’ works, but not all modifications are substantial enough to create new original works. Discuss the effects of information technologies on the nature of authorship, using the example of Wikipedia.

2. Research for the next Public Domain Day

What is the copyright term in your country? List some of the authors whose work will fall in the public domain in your country on January 1 of the coming year.

'''Round 2 questions'''

1. Comment on the answers of your colleagues.

2. Search for more works that will enrich the public domain next year in your country.

== Sources ==

American Society of Composers, ASCAP COPYRIGHT LAW SYMPOSIUM 173-206 (Columbia University Press ed., 1991).

Bruce Keller & Jeffery Cunard, COPYRIGHT LAW (Practising Law Institute ed., 2001).

Cornell University Law School, Legal Infromation Institute, Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971) (Dec. 2, 2008), http://www.law.cornell.edu/treaties/berne/overview.html.

Crash Course on Copyrights (Dec. 2, 2008), http://www.iusmentis.com/copyright/crashcourse/protection/.

Paul Goldstein, INTERNATIONAL COPYRIGHT (Oxford University Press US ed., 2001).

World Intellectual Property Organization (Dec. 2, 2008), http://www.wipo.int/portal/index.html.en.

Recent Term Extensions Controversies (Eldred v. Ashcroft)

2009-04-26T15:48:48Z

Avalle2: New page: == Recent Term Extensions Controversies (Eldred v. Ashcroft) == A recent extension of the copyright term in the United States was justified in part by a desire to harmonize the duration o...

== Recent Term Extensions Controversies (Eldred v. Ashcroft) ==

A recent extension of the copyright term in the United States was justified in part by a desire to harmonize the duration of US copyright protection with that of other countries. The Sonny Bono Copyright Term Extension Act of 1998 (CTEA) went much further than necessary for that purpose, however. For instance, the law was retroactive – in the sense that works that had been published before the law was enacted, but were still under copyright, were granted an additional twenty years of copyright protection. The net effect of this legislation was to prevent works that would have fallen out of copyright protection and into the public domain on January 1, 1998 from doing so for another twenty years.

In Eldred v. Ashcroft, the petitioner contended that the retroactive aspect of the statute was unconstitutional – (a) because it exceeded Congress’ constitutional power “To promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive right to their respective writings and discoveries”; (b) because it did not have the “rational basis” required of all legislation by the Constitution; and (c) because it represented an unjustified curtailment of freedom of speech in violation of the First Amendment. By a vote of 7 to 2, the United States Supreme Court rejected all three arguments. As to the first, the Court pointed out the statute provided a time limit, even if a future Congress could conceivably extend that limit. As to the second argument, the court held that the statute did have a sufficient rational basis because the Berne Convention requires that a copyright is protected only for the term fixed in the country of origin of the work. Thus, the CETA shielded US authors against discrimination in foreign countries that had longer copyright terms. Finally, the Court concluded that copyright law contains built-in protections for freedom of speech including the distinction between uncopyrightable ideas and copyrightable expression, and the fair use doctrine.

Case of the Canadian Online Repositories of Public Domain

2009-04-26T15:47:51Z

Avalle2: New page: == The International Music Score Library Project == The International Music Score Library Project (MSLP) is a Canadian project aimed at the creation of a virtual library of public domain ...

== The International Music Score Library Project ==

The International Music Score Library Project (MSLP) is a Canadian project aimed at the creation of a virtual library of public domain musical scores. The Library Project had to be shut down on October 19, 2007 because some works that had fallen into the public domain in Canada were still protected elsewhere – and could be reached online from those countries. The project ultimately went back online after clearing up these copyright issues.

Module 3: The Scope of Copyright Law

2009-04-26T15:47:18Z

Avalle2:

By Inge Osman, Melanie Dulong de Rosnay and William Fisher

== Learning objective ==

This module discusses the kinds of creations and the kinds of activities that copyright law does and does not cover.

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== Case study ==

The course pack will build upon, quote and gather preexisting material by other authors. What is the status of the output after the professor’s contribution?

Angela, the professor, collects articles and books with the help of some students and research assistants. She will discuss with Nadia, the librarian, the distinction between ideas, which can be freely reproduced, and works, which can be quoted.

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== What Does Copyright Law Protect? ==

'''The Definition of a Literary and Artistic Work'''

The Berne Convention, discussed in [[Module 2: The international framework]], establishes a literary and artistic work as the subject matter of copyright. Article 2, Section 1 of the Convention defines such a work expansively:

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 dramatico-musical 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.

To be entitled to protection, a work falling into this broad category must satisfy two basic requirements – originality and fixation – which are explained it detail below.

== The Concept of Originality ==

Although neither the Berne Convention Berne Convention nor the TRIPS Agreement expressly requires originality, almost all countries require some level of authorial creativity for a work to qualify for copyright protection. How much creativity it required? Unfortunately, there is no uniform answer to that questions; each country independently sets the originality standard that works must meet.

Spain, the United Kingdom, Mexico, Canada, India, and the United States all extend copyright protection only to “original works.” United States law defines originality as independent conception. France and Spain on the other hand, following the moral rights tradition, define originality as the “imprint of the author’s personality” on the work.

In most countries, the work of authorship need not be original in the sense that it is novel, ingenious, or has aesthetic merit. For example, the US Supreme Court established the modern definition of originality as requiring only that the work be independently created by the author and that it possess “at least some minimal degree of creativity.” The Court made clear, however, that the “requisite level of creativity is extremely low;” a work need only “possess some creative spark no matter how crude, humble or obvious it might be.”

== The Requirement of Form or Tangible Medium of Expression ==

The Berne Convention leaves it up to the individual countries to decide whether to require that copyrighted material be “fixed.” Article 2, Section 2 of the Convention states:

“It shall be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.”

Many countries do not require that a work be produced in a particular form to obtain copyright protection. For instance, Spain, France, and Australia do not require fixation for copyright protection. The US and Canada, on the other hand, require that the work be “fixed in a tangible medium of expression” to obtain copyright protection. US law requires that the fixation be stable and permanent enough so that it may be “perceived, reproduced or communicated for a period of more than transitory duration.” Similarly, Canadian courts consider fixation to require that the work be “expressed to some extent at least in some material form, capable of identification and having a more or less permanent endurance.” The definition of “fixation” in the US excludes “purely evanescent or transient reproductions such as those projected briefly on a screen, shown electronically on a television or other cathode ray tube, or captured momentarily in the ‘memory’ of a computer.”

Many courts, including those in the US, have deemed computer programs fixed when stored in a silicon chip. The audiovisual effects of computer games are commonly considered to be fixed because their repetitiveness makes them “sufficiently permanent and stable.”

The requirement of fixation may become problematic when applied to live performances. For instance, US law specifies that a work must be fixed “by or under the authority of the author.” This means that if someone were to record and distribute copies of a live performance without permission, the performer would have no legal recourse under copyright law because that performance would not be fixed and therefore would not be eligible for copyright protection. Countries that grant copyright for perceptible works regardless of fixation do not have similar problems. In the US, Congress tempered the fixation requirement by declaring “a work consisting of sounds, images, or both that are being transmitted, is ‘fixed’if a fixation of the work is being made simultaneously with its transmission.” This rule provides a solution for performances that are being broadcast or transmitted, but, arguably, live performances that are simultaneously recorded but not transmitted are still unprotected by copyright law.

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) requires all members of the World Trade Organization (WTO) to protect live musical performances. This means that even countries with fixation requirements must enact statutes to ensure the protection of musical performances without fixation. The US, for instance, enacted a special provision prohibiting the “fixation or transmission of a live musical performance without the consent of the performers, and prohibiting the reproduction of copies or phonorecords of an unauthorized fixation of a live musical performance.” Notice, however, that this provision is limited to “musical” performances.

== The Exclusion of Ideas from Copyright Protection ==

As indicated in [[Module 1: Copyright and the public domain: an introduction]], copyright law does not protect ideas or facts; it only protects the expression of those ideas or facts. In this regard, the US copyright statute is typical: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated or embodied in such work.” The same principle can be found in the major treaties. The Berne Convention, for example, states that protection “shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information.” Both the TRIPS Agreement and the WIPO Copyright Treaty state that expressions are copyrightable, but not “ideas, procedures, methods of operation or mathematical concepts as such.”

The Berne Convention permits individual member countries to determine whether this basic principle should be extended to deny protection to works created by government agencies: “[I]t shall be a matter for legislation in the countries of the Union to determine the protection to be granted to official texts of a legislative, administrative and legal nature, and to official translations of such texts.”

It is sometimes said that the purpose of excluding ideas and facts from the scope of what is copyrightable is to promote the public interest in freedom of speech. Extending copyright protection to ideas or facts would inhibit public debate by allowing copyright holders to control uses of the concepts or information contained in their works. Both political freedom and the progress of knowledge would suffer.

On occasion, an idea and its expression may become indistinguishable. If there is only one way of expressing a particular idea, the idea and the expression of that idea are said to “merge.” The merger doctrine in copyright law was developed to deal with such cases, removing from the scope of copyright protection those expressions that constitute the only way of expressing an idea. What about situations in which an idea can only be expressed in a limited number of ways? The courts in some countries deal with such situations by granting limited or “thin” copyright protection to those expressions – in other words, prohibiting only verbatim copying, or virtually identical copying.

== The Difference between owning a copy and owning a copyright. ==

Ownership of a physical copy of a work is separate from copyright ownership. Just because you own a copy of a book doesn’t mean you are free to copy it.

Ordinarily, when the creator of a work sells or transfers a copy of it to another person, he does not surrender his copyright unless he expressly agrees to do so. So, for example, the writer of a letter or an email message retains the copyright in the letter even after he has sent it to the recipient.

For the most part, the lawful owners of copies of copyrighted works are free to sell or give those copies to other people – or to destroy or mutilate them. However, some treaties and national legal systems recognize “moral rights” that set limits on the freedom of the owners of copies to act in these ways. The Berne Convention, for example, provides:

Independently of the author’s economic rights, and even after 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, which would be prejudicial to his honor or reputation.

== The Relationship between Copyright Infringement and Other Unauthorized Activities ==

Copyright infringement is the unauthorized use of a copyrighted work in a manner that violates one of the copyright owner’s exclusive rights.

We will examine those rights in detail in [[Module 4: Rights, Exceptions, and Limitations]]. It should be emphasized that copyright infringement covers only a subset of the ways in which copyrightable works may be used without permission. Some unauthorized uses that do not constitute copyright infringement may violate other legal rules; some may violate nonlegal social norms; while still others are both lawful and socially approved. This complex pattern of norms finds expression in a variety of terms, which are frequently confused. We disentangle some of them below and they will be studied in [[Module 7: Enforcement]].

Plagiarism consists of the use of ideas or words of someone else without properly crediting the source. It is entirely separate from copyright law. Common sanctions for plagiarism are expulsion or suspension from school, discharge from a job, and social disapproval.

“Piracy” has no strict definition within (or outside of) copyright law. In recent years, the term has been used increasingly often (typically by nonlawyers) to refer to unauthorized and unexcused reproductions of audio and video recordings, but the copyright laws do not themselves refer to “piracy.” Insofar as the term connotes the violence that commonly accompanies the seizure of ships on the high seas, it is misleading when used in connection with unauthorized uses of literary works.

“Counterfeiting” is defined in various ways. Most often, the term refers to the creation or distribution of imitations (typically inferior-quality) imitations of genuine works – with the intent to deceive the public concerning their authenticity. Conterfeiting in this sense is governed primarily by trademark law and the law of unfair competition, not by copyright law. (link from counterfeiting to ACTA proposal in [[Module 2: The international framework]])

Finally, it bears repeating that many unauthorized uses of copyright works do not violate any legal regime. Such permissible unregulated uses include reading a book, performing a play privately, selling a copyrighted work, and watching a copyrighted performance.

== Copyright Duration ==

The Berne Convention requires that the term of copyright protection be, at a minimum, the life of the author plus an additional fifty years after her death. Member countries are free, however, to adopt longer terms, subject to the following limitation:

“In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work.”

Many countries have exercised the discretion left to them by the Berne Convention. The result is that the duration of copyright varies substantially by country.

The resulting difficulty in determining how long a copyright will last is exacerbated by the fact that many countries make the duration of copyright dependent on the type of work at issue. The Czech Republic and the Netherlands, for instance, grant copyright protection for the life of the author plus 70 years for literary works, and for the life of the longest living joint author plus 70 years for jointly held works. This construction is deceptively simple, because it applies only to works created on or after April 7, 2000 and December 29, 1995 respectively. Works created before those dates, respectively, are subject to different and more complicated copyright duration terms. The sporadic lengthening of copyright terms that has occurred internationally has led to a complicated patchwork of copyright duration terms determined by the category of work, and the date of creation or publication.

Click here to learn about the [[Case of the Canadian Online Repositories of Public Domain]], click [[here (3.1)]]

To learn about [[Recent Term Extensions Controversies (Eldred v. Ashcroft)]]., click [[here (3.2)]]

== Extensions of the Scope of Copyright Protection ==

In recent years, copyright law has gradually expanded to encompass more subject matters and more exclusive rights. The Berne Convention, the TRIPs Agreement, the Universal Copyright Conventions and the WIPO Copyright Treaty work together to produce minimum standards of protection that countries must meet, thereby extending copyright protection generally.

Some of these extensions can be justified on the ground that they stimulate additional creativity. On the other hand, the extension of copyright to more kinds of works and for a greater length of time has resulted in the reduction in the amount of material in the public domain. As a result, materials that could otherwise be used in the creation of new artistic or literary works can no longer be used.

As copyright law has expanded, it has fragmented. In other words, special rules have been devised to deal with particular kinds of works. Some of those special rules are described below.

== Audiovisual and Cinematographic works, Computer Programs ==

Audiovisual or cinematographic works are collective projects that often involve the contributions of several individual authors, discussed in the Rights Ownership and Works for Hire topics in [[Module 4: Rights, Exceptions, and Limitations]]. Given the large number of people that are involved in their creation, treating each contributor as a joint author of the work would give rise to practical problems. For instance, in order for use of the film to be assigned, each contributor would need to agree to license the copyright.

Different countries have try to overcome this problem in different ways. The French Intellectual Property Code treats contributors to films as co-authors but implies into the author-producer relationship a transfer of the exploitation rights of the material to the producer. Countries such as the United Kingdom and the United States, by contrast, vest the authorship and copyright ownership of these works in a single person. For instance, the 1988 Copyright, Designs and Patent Act in the United Kingdom typically vests these rights in the producer. The U.S. Copyright Act on the other hand treats the contributions to a audiovisual or cinematographic work as works made for hire, thereby also vesting authorship and copyright ownership in one person, typically the producer. The Berne Convention recognizes and respects the differences among countries in the allocation of rights to audiovisual and cinematographic works.

Computer programs constitute another special category of works. Although the Berne Convention does not address computer programs, the TRIPS agreement requires that computer programs be protected as literary works. Like audiovisual works, computer programs are often the products of the efforts of many individuals. Here too, countries vary in the way they handle allocation of authorship rights. German copyright law, for example, contains a presumption giving exclusive rights to the employer in the context of computer software.

== Broadcast, Recording, Interpretation ==

The Berne Convention requires that the author of a copyrighted work be given the exclusive right to authorize

(i) the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images;
(ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original public one;
(iii) the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work.

The Berne Convention permits individual countries to determine which of these rights may be exercised and in what circumstances, but stipulates that they should not be applied in a way that would be prejudicial to an author’s moral rights. Countries such as Ireland, Kenya and Oman have enacted copyright laws extending to authors the right to control and license broadcasts of their work.

== Works of Folklore and Indigenous Knowledge ==

Copyright protection for traditional cultural expressions or for works of folklore has been increasing. Such works typically are created by communities rather than individuals. According to WIPO, “works of traditional cultural expression include music, art, designs, names, signs and symbols, performances, architectural forms, handicrafts and narratives.” Among the purposes of protecting cultural products of these sorts the promotion of creativity and cultural diversity. Countries such as the Philippines, Panama, and New Zealand currently have legislation specifically extending intellectual property protection to works of folklore.

For instance, Oman’s legislation on “Promulgating the Law on the Protection of Copyrights and Neighboring Rights” extends copyright to folklore, defining it as “literary, artistic or scientific works created in Oman by popular groups expressing their cultural identity, which are transferred from generation to generation and represent a fundamental element in the national popular traditional heritage. The competent authority shall exercise the author’s rights in works of folklore to object to any mutilation, modification or unlawful commercial exploitation.”
What is an “Author”?

== Rights Ownership Rules: How to Determine the Original Right Holder ==

The Berne Convention gives member countries broad latitude in determining who is considered an author, and therefore the original copyright owner, of a literary or artistic work. Article 15(1) provides:

“In order that the author of a literary or artistic work protected by this Convention shall, in the absence of proof to the contrary, be regarded as such, and consequently be entitled to institute infringement proceedings in the countries of the Union, it shall be sufficient for his name to appear on the work in the usual manner. This paragraph shall be applicable even if this name is a pseudonym, where the pseudonym adopted by the author leaves no doubt as to his identity.”

The majority of civil-law countries stipulate that only “persons” in the ordinary sense can qualify as authors. Spanish copyright law, for example, specifies “the natural person who creates any literary, artistic, or scientific work shall be considered the author thereof.” Similarly, French copyright law states that “authorship shall belong, unless proved otherwise, to the person or persons under whose name the work has been disclosed.” Common-law countries, by contrast, more often permit organizations – for instance, corporate employers – to qualify as “authors.”

The determination of who the author of a literary or artistic work is often straightforward: the author is the person who conceives of and gives expression to an idea. However, in other cases, this determination becomes more complicated and may depend on who assists in the production, oversees and directs the arrangement of the details of the literary or artistic work. In such cases, the determination of authorship will depend on the facts of the specific case.

== Works by Multiple Authors: Rules for Joint Authorship and Collaborations ==

Joint authorship exists when two or more persons create a copyrighted work. In situations of this sort, legislation in most countries grants each contributor an undivided share of the copyright in the work. The requirements for joint authorship vary across nations. The Berne Convention recognizes that joint authorship exists but does not specify the requirements for joint authorship, thus allowing for the variance among nations.

Countries in continental Europe typically stipulate that joint authorship does not require that each author contribute the same amount to the work, but require that each author’s contribution displays the minimal amount of creativity or originality necessary in the jurisdiction to merit copyright protection in its own right. Applying this approach, a Dutch Supreme Court decision Kluwer v. Lamoth granted a stylist co-authorship status for creatively rearranging needleworks for a photograph.

The second common requirement for joint authorship is that each author’s contribution cannot be separated and commercially exploited independently of the work as a whole. For instance, Japanese legislation defines joint works as works that are “created by two or more persons in which the contribution of each person cannot be separately exploited.” If this is not true – for instance, when one author contributes the music and another the lyrics for a song – each contributor is typically given an independent copyright in his or her contribution.

== Derivative Works and Transformations ==

Derivative works are modifications of preexisting works. Examples include abridgments and motion-picture adaptations of novels. The Berne Convention does not explicitly refer to derivative works, but rather lists a number of works based on other copyrighted works for which member countries must provide copyright protection. Specifically, the Berne Convention Article 2, Section 3 states that

“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 of the original work.”

This provision is incorporated into the TRIPS agreement. Although these provisions guarantee the protection of specific types of derivative works, they do not clarify what level of distinction is necessary from the original copyrighted work for a derivative work to merit copyright protection in its own right. Often it is not clear whether obtaining a copyright in a derivative work requires a higher level of originality than obtaining a copyright in a completely new work. In any case, a copyright in a derivative work extends only to the new material contributed by the author of the derivative and not also to the preexisting material. If the original work is still protected by copyright, they then author of the derivative work must obtain the permission of the owner of the copyright in the original.

== Collective Works and Compilations ==

Compilations constitute another instance of a situation in which a copyright may be obtained through the use and manipulation of preexisting works. Compilations are works formed by assembling, selecting, or rearranging preexisting works such that the result constitutes an original work of the author. Collective works represent a specific type of compilation in which a number of separate and independent contributions are assembled into one work. A collective work is a work by two or more authors but is not cohesive enough to qualify as a joint work. The Berne Convention only requires the protection of collective works.

“Collections of literary or artistic works such as encyclopedias 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.” Article 2, Section 5.

The TRIPS Agreement extends copyright protection to all compilations:

“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.” Article 10, Section 2.

== Employees and Works for Hire ==

Employees are often hired to create creative literary or artistic works, resulting in questions of authorship rights. Civil law countries impose as a default the rule that the authorship of a work created in the scope of employment vests in the employee, not the employer. This requires that employers contract with employees to obtain the copyrights to the creative works. For instance, the French Intellectual Property Code stipulates that copyright vests in the work’s actual author and not his employer. (This is the provision by default; rights ownership of some categories of work, such as software, are immediately assigned to the employer.) On the other hand, some countries, including Germany, imply into the employee-employer relationship an assignment of copyright from the employee to the employer.

Common-law countries, such as the United States, Canada, and Great Britain, set as a default rule that the copyrights to works created within the scope of employment vest in the employer and not the employee. For instance, Canadian copyright law states that if a work is created within the scope of employment, “the person by whom the author was employed shall, in the absence of agreement to the contrary, be the first owner of the copyright.” Under the British Copyright, Designs and Patents Act of 1988, if a copyrighted work is made by an employee in the course of that employment, the copyright is automatically owned by the employer as a "Work for Hire."

== Civil Servants, Researchers and Professors ==

Traditionally there has been one category of employees exempt from the “work for hire” doctrine: academics (including teachers and sometimes researchers).

In some countries, works made in the scope of the employment of civil servants are also excluded from the “work for hire” doctrine, because they are denied copyright protection altogether. In other countries, this is not true. For instance, copyright law in the Czech Republic contains a presumption that a work created by a civil servant is a work for hire and the copyright and authorship rights are granted to the employer.

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== Back to the case study ==

Nadia (the librarian) should help Angela (the professor) understand authorship questions in the set of materials she has gathered by asking a series of questions:

· Is the arrangement of pre-existing material in an original way considered a creative work?

· Does the summary of an article constitute a new work?

· Who will be the copyright holder of the new work?
· Do the answers to these questions affect Angela’s duty to obtain permission to reproduce and adapt preexisting works.

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== Assignment and discussion questions ==

'''Round 1 questions'''

1. Multiple authorship

Information technologies make it easier to edit and remix others’ works, but not all modifications are substantial enough to create new original works. Discuss the effects of information technologies on the nature of authorship, using the example of Wikipedia.

2. Research for the next Public Domain Day

What is the copyright term in your country? List some of the authors whose work will fall in the public domain in your country on January 1 of the coming year.

'''Round 2 questions'''

1. Comment on the answers of your colleagues.

2. Search for more works that will enrich the public domain next year in your country.

== Sources ==

American Society of Composers, ASCAP COPYRIGHT LAW SYMPOSIUM 173-206 (Columbia University Press ed., 1991).

Bruce Keller & Jeffery Cunard, COPYRIGHT LAW (Practising Law Institute ed., 2001).

Cornell University Law School, Legal Infromation Institute, Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971) (Dec. 2, 2008), http://www.law.cornell.edu/treaties/berne/overview.html.

Crash Course on Copyrights (Dec. 2, 2008), http://www.iusmentis.com/copyright/crashcourse/protection/.

Paul Goldstein, INTERNATIONAL COPYRIGHT (Oxford University Press US ed., 2001).

World Intellectual Property Organization (Dec. 2, 2008), http://www.wipo.int/portal/index.html.en.

Module 2: The International Framework

2009-04-26T15:46:04Z

Avalle2:

By Petroula Vantsiouri and William Fisher

== Learning objective ==

This module describes the main instruments of the international copyright framework, the impact of that framework on developing countries, and opportunities for developing countries to influence the development or interpretation of the framework.

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== Case study ==

''“I want to participate to an international exchange program, what should I know?”''

Nadia is currently working as a librarian in Mexico and has a very good knowledge of the copyright protection law in her country. Nadia is interested in applying for an exchange program for librarians in order to work for six months in another country. The countries she is considering working in are Ethiopia, Russia, India and Belgium.

However, one of the requirements for participating in the exchange program is that she understands the general framework of copyright protection in the country that she will be working. More specifically she has to understand the following issues:
- general standards of protection of copyrighted works,
- protection of performers and producers of recordings,
- copyright protection of computer programs and databases,
- intellectual property rights of performers and of producers of phonograms.

Another librarian advised her to check whether the aforementioned countries have signed the same treaties that Mexico has signed, so that their copyright law resembles Mexican law to the extent required by such treaties. Nadia should however take also into account whether these treaties have an effective enforcement mechanism that ensures that the countries have transposed their provisions into their national law.

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== The Rationale for the International System ==

As we saw in '''[[Module 1: Copyright and the public domain: an introduction]]''', each country in the world has its own set of copyright laws. However, the flexibility that each country enjoys in adjusting and enforcing its own laws is limited by a set of international treaties. Why? Why do we need any international management of this field?

There are two traditional answers to that question. First, in the absence of international controls, each country would be inclined to discriminate in favor of its own citizens or residents and against foreigners. Indeed, in the nineteenth century, before any international regulations were imposed, such discrimination was common.

Second, individual authors would find it very difficult to learn and comply with the idiosyncratic rules adopted by every country in the world. Thus, some degree of harmonization of the laws of separate countries seems necessary to enable authors to obtain effective copyright protection globally.

Recently, a third answer has been added to the first two. In the judgment of some copyright owners – in particular, record companies, film studios, and software firms – developing countries are insufficiently appreciative of the benefits of a copyright system. On this view, treaties are necessary to compel those countries to adopt economically and socially beneficial copyright regimes. As one might imagine, the representatives of developing countries often disagree.

== International instruments ==

You might expect that a single treaty, binding on all countries, would most effectively advance the three goals just mentioned. Unfortunately, the current situation is more complex. Instead of one treaty, we now have six major multilateral agreements, each with a different set of member countries.

Each of the six agreements was negotiated within – and is now administered by – an international organization. Four of the six are managed by the World Intellectual Property Organization (WIPO), one by the United Nations Educational, Scientific and Cultural Organization (UNESCO), and one (arguably the most important one) by the World Trade Organization (WTO).

The ways in which the six agreements have been created and implemented have been similar. Typically, the process begins when representatives of a group of countries agree that a particular set of issues requires harmonization. They enter into negotiations, which can last several years. During the '''negotiations''', draft provisions are presented to the delegations of each state, which then discuss them and may propose amendments to their content. Once consensus has been reached, the states conclude the treaty by '''signing''' it. Thereafter, the governments of the participating countries '''ratify''' the treaty, whereupon it '''enters into force'''. From that moment onward, the signatory states assume obligations towards the other countries to implement the international agreement. States that did not sign the treaty when it was initially concluded may join the treaty later by '''accession'''.

None of the treaties contains a comprehensive recipe for the creation of a copyright system. Rather, each one requires member countries to deal with particular issues in particular ways, but leaves to the member states considerable discretion in implementing its requirements. Nor do any of the treaties bind individual persons within the member countries. Until and unless the governments of those countries adopt implementing legislation, they have no impact on their citizens or residents.

Click here for more on the [[Stages of an international agreement]].

'''Set forth below are brief descriptions of the six major treaties, with special attention to their impacts on developing countries.'''

== Berne Convention ==

The uncertainty and confusion that generated the lack of a unified framework for the protection of copyright led ten European States in 1886 to sign the Berne Convention for the Protection of Literary and Artistic Works (henceforth Berne Convention). Since then, a total of 164 countries have joined the Convention. Any nation is permitted to join.

You can check if your country is a member of the Berne Convention on: http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15. See bellow a map that indicates the countries that are today members

[[Image:Map1.png]]

The Berne Convention established three fundamental principles. The first and most famous is the principle of the “national treatment,” which requires member countries to give the residents of other member countries the same rights with respect to copyright law that they give to their own residents. So, for example, a novel written in France by a French citizen enjoys the same protection in Italy as a novel written in Italy by an Italian citizen.

The second is the principle of “independence” of protection. It provides that each member country must give foreign works the same protections they give domestic works, even when the foreign works would not be shielded under the copyright laws of the countries where they originated. For example, even if a novel written in Belgium by a Belgian national were not protected under Belgian law, it would still be protected in Italy, if it fulfilled the requirements for protection under Italian law.

The third is the principle of the “automatic protection.” It forbids member countries to make copyright protection depend upon compliance with any formalities. In other words, in Berne Convention countries, original works enjoy copyright protection automatically from the moment they are created. So, for example, the British author of a novel doesn’t have to register or declare her novel in France, Italy, Belgium or any other member state of the Convention; her novel will be automatically protected in all of these countries from the moment she has written it.

In addition to these basic principles, the Berne Convention also imposes on member countries a number of more specific requirements. For instance, they must enforce copyrights for a minimum period of time: namely, the life of the author plus 50 years. The Convention also requires its members to recognize and enforce a subset of the “moral rights” discussed in [[Module 1: Copyright and the public domain: an introduction]].

When the Berne convention was revised in Paris in 1971, the signatory states included an Appendix, which contained special provisions concerning developing countries. In particular, developing countries may, for certain works and under certain conditions, depart from these minimum standards of protection with regard to the right of translation and the right of reproduction. More specifically, the Appendix permits developing countries to grant non-exclusive and non-transferable compulsory licenses in respect of translation for the purpose of teaching, scholarship or research, and reproduction for use in connection with systematic instructional activities of works protected under the Berne Convention.

Due to the general and abstract content of most provisions of the Berne Convention, each national legislature enjoys considerable flexibility in implementing the Treaty. For example, in the Berne Convention Implementation Act of 1988, the U.S. Congress adopted a “minimalist” approach to implementation, making only those changes to copyright law that were absolutely necessary to qualify it for membership.

Furthermore, at the time that Berne the Convention was signed, the signatory countries did not establish an enforcement mechanism. Thus, even if one member state did not implement fully in its national legislation the rules set by the Convention, the other signatory states had little power either to force the recalcitrant country to comply with its obligations or to punish it for not doing so. It could be said that the Berne Convention was a treaty without “teeth.” As we will see later on, this situation partially changed for the members of the Berne Convention that also joined the World Trade Organization.

For the full text of the Convention, see http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html.

Click here for more the [[Berne Convention]].

== Rome Convention (1961) ==

Technological progress – in particular, the invention of devices, such as tape recorders, that allowed creative works to be reproduced easily – created a perceived need for enhanced protections for the performers and producers of recordings. The Berne Convention, which was primarily concerned with the circulation of printed materials, was ineffective for this purpose. To address this need, the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations was concluded by members of the WIPO on October 26, 1961. It extended copyright protection from the author of a work to the creators and owners of particular, physical embodiments of the work, such as audiocassettes and DVDs.

The Rome Convention requires member countries to grant protection to the performances of performers, the phonograms of producers of phonograms, and the broadcasts of broadcasting organizations. However, once a performer has consented to the incorporation of her performance in a visual or audiovisual fixation, the provisions on performers’ rights have no further application. Equally important, the Convention allows member countries to create certain exceptions to the rights of performers, producers of phonographs, and broadcasting organizations – for example, to permit nonpermissive uses of a work for the purpose of teaching or scientific research.
86 countries have signed the Rome Convention so far. For a list of the contracting parties, you can visit the link: http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=17. See bellow a map indicating the Member States of the Rome Convention.

[[Image:Map2.png]]

Not any country can join the Rome Convention; it is open only to countries that are already parties to the Berne Convention or to the Universal Copyright Convention (which we will discuss shortly). Countries that join the convention may make reservations with regard to the application of certain provisions. In practice, this has enabled countries to avoid the application of rules that would require important changes to their national laws.

For the text of the Convention, see http://www.wipo.int/treaties/en/ip/rome/trtdocs_wo024.html.

Click here for more on[[Rome Convention provisions]].

== WIPO Copyright Treaty and WIPO Performance and Phonograms Treaty ==

The way that copyright owners reproduce, distribute, and market their works has changed in the digital age. Sound recordings, articles, photographs, and books are commonly stored in electronic formats, are circulated via the Internet, and are compiled in databases. Unfortunately, the same technologies that enable more efficient storage and distribution of works also facilitate widespread copyright infringement. In order to protect copyright in the new technological era and to combat what has come to be called (misleadingly) “electronic piracy,” the governments of developed countries advocated and ultimately secured two other treaties: the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty.

The WIPO Copyright Treaty (WCT) is a special agreement accepted under the Berne Convention that entered into force on March 6, 2002. It is the first international treaty that requires countries to provide copyright protection to computer programs and to databases (compilations of data or other material).

The WCT further provides that member countries must prohibit effectively in their dominion the circumvention of technological measures set by the authors for their protection, such as decryption, as well as unauthorized modification of so-called “rights management information” (data that identify works or their authors, and that are necessary for the management of their rights).

For the text of the Treaty see http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html.

Click here for more on[[Examination of its provisions]].

The WIPO Performances and Phonograms Treaty (WPPT) was signed by the member states of WIPO in order to enhance the intellectual property rights of performers and of producers of phonograms (vinyl records, tapes, compact discs, digital audiotapes, MP3s, and other media for storing sound recordings).

The WPPT grants performers four kinds of economic rights in their performances fixed in phonograms, three kinds of economic rights in respect of their live performances, as well as moral rights. By contrast, producers of phonograms are only granted economic rights in their phonograms.

For the text of the Treaty see http://www.wipo.int/treaties/en/ip/wppt/trtdocs_wo034.html.

Click here for more on [[Examination of the WPPT]].

Both the WCT and the WPPT (like the TRIPs Agreement, which we will consider shortly) oblige every contracting country to adopt expeditious remedies to prevent infringement of their substantive provisions.

To determine whether your country has accepted the WCT see: http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=16. For the WPPT, see: http://www.wipo.int/treaties/en/ShowResults.jsp?country_id=ALL&start_year=ANY&end_year=ANY&search_what=C&treaty_id=20

A map indicating the Member States to the WCT is available can be accessed [http://cyber.law.harvard.edu/copyrightforlibrarians/sites/copyrightforlibrarians/images/Map4.png/ here]; a map indicating the Member States to the WPPT is available can be accessed [http://cyber.law.harvard.edu/copyrightforlibrarians/sites/copyrightforlibrarians/images/Map5.png/ here].

== Universal Copyright Convention ==

The '''Universal Copyright Convention''' (or '''UCC'''), was developed by UNESCO and was adopted in Geneva in 1952, as an alternative to the Berne Convention. It was developed in order to satisfy the desire of countries, such as the U.S.A. and the Soviet Union, to participate in some form of multilateral copyright protection without joining the Berne Convention.

The UCC’s provisions are more flexible than those of the Berne Convention, intended to accommodate countries at different stages of development and countries with sharply different economic and social systems. It incorporates the principle of national treatment and prohibits any discrimination against foreign authors.

Nowadays the importance of the UCC is minimal as most countries have acceded to the Berne Convention and almost all states in the world are either members or aspiring members of the World Trade Organization, and thus conforming to the Agreement on Trade-Related Aspects of Intellectual Property Rights (which we will discuss in a moment).

For the text of the Treaty see http://www.ifla.org/documents/infopol/copyright/ucc.txt
For a list of the countries members of the UCC see: http://portal.unesco.org/culture/en/files/7816/11642786761conv_71_e.pdf/conv_71_e.pdf

Click here for more on [[Examination of the UCC]].

== The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) ==

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) is an international agreement administered by the World Trade Organization (WTO) that establishes minimum standards for many forms of intellectual property protection, including copyright. The TRIPs Agreement was negotiated and concluded in 1994.

In terms of its substantive provisions, TRIPs adds little to the Berne Convention. It requires member countries to extend copyright protection to computer programs and data compilations – and thus extends the reach of the copyright regime. On the other hand, it excludes moral rights, which Berne, as we have seen, mandates.

The principal innovations of the Agreement pertain, not to the substance of copyright law, but to two issues involving remedies. First, unlike Berne, the TRIPs Agreement requires member countries to provide effective sanctions for violations of copyrights. Second, it creates a a dispute resolution mechanism by which countries can be forced to comply with their treaty obligations. In other words, TRIPs has teeth.

In an effort to balance public interests and the private interests of copyright owners, the TRIPs Agreement allows member states to establish limitations and exceptions to the exclusive rights of copyright holders – but only if they meet a set of related requirements known collectively as the “three-step test”.

Click here for more[[Information concerning the three-step test]].

Finally, the TRIPS Agreement incorporates certain "flexibilities" with respect to member countries’ compliance with its requirements concerning copyright protection. These flexibilities aim to permit developing and least-developed countries to use TRIPS-compatible norms in a manner that enables them to pursue their own public policies, either in specific fields, such as access to pharmaceutical products, or more generally, in establishing the institutional framework that contributes to their economic development.

Click here for more [[Information concerning the flexibilities]].

For the full text of the Agreement, see http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.html.

Click here for more on[[Examination of the TRIPS provisions]].

== The Anti-Counterfeiting Trade Agreement proposal (ACTA, 2007) ==

These six multilateral treaties may soon be joined by a seventh. In October 2007, the United States, the European Community, Switzerland, and Japan simultaneously announced that they would negotiate a new intellectual property enforcement treaty, the Anti-Counterfeiting Trade Agreement, or ACTA. Australia, the Republic of Korea, New Zealand and Mexico have since joined the negotiations.

Among other issues, the ACTA will deal with tools targeting "Internet distribution and information technology," such as authorizing officials to search for illegally downloaded music on personal devices at airports, or forcing Internet Service Providers to provide information about possible copyright infringers without a warrant.

== Free Trade Agreements and Bilateral Investment Treaties ==

Multilateral agreements, such as the TRIPs Agreement, can provide effective protection to copyright holders worldwide, because they establish minimum substantive standards binding on large numbers of countries. However, they do not eliminate the incentives for bilateral treaties – either to address specific issues in which only two countries have an interest, or to enable interests groups within a powerful country to extract concessions from a weaker one. Such agreements are commonly known as free trade agreements (FTAs) or Bilateral Investment Treaties (BITs).

Typically, such bilateral agreements either narrow the flexibilities that a developing country would enjoy under the TRIPS Agreement, or impose more stringent standards for copyright protection. For example, the US government has included anti-circumvention obligations in its bilateral FTAs with Jordan, Singapore, Chile, Morocco, Bahrain and Oman.

Click here for more [[Information on FTAs]].

== Perspectives for developing countries ==

Upgrading copyright legislation and enforcement worldwide can be viewed as the duty of governments towards their citizens, as copyright protection promotes the arts and rewards authors for their creative efforts. Arguably, granting an exclusive right in creative expression provides a necessary incentive to invest in the creation and distribution of expressive works and, thus, stimulates cultural advancement.

On the other hand, it has been argued that instituting the same rules for copyright protection in all countries, regardless of their development status, can be detrimental for the cultural development of developing countries. Most developed counties have powerful entertainment, education, and research industries, whereas developing countries typically import embodiments of the copyrighted works generated by those industries. Thus, the residents of developing countries have to pay more royalties and fees as a result of enhanced copyright protection. In addition, it has been argued that strict IP rules can restrict the ability of many governments to fulfil their human rights obligations, such as ensuring that their residents have fair access to educational goods.

The latter set of arguments have has prompted a growing number of developing countries to resist the imposition of the minimum standards of copyright protection set by the TRIPs agreement and the even harsher duties that are imposed on developing countries by FTAs. They call for a better balance between, on one hand, providing incentives to creators and rewarding their creative activities and, on the other hand, promoting access to knowledge and research, in order to spur economic growth and foster innovation in the developing countries.

== WIPO Development Agenda ==

In 2004, Brazil and Argentina submitted to the WIPO General Assembly a proposal for a “development agenda.” In general, the proposal sought to ensure that WIPO in its various activities pay greater attention to the impact of intellectual property protection on economic and social development, the need to safeguard flexibilities designed to protect the public interest, and the importance of promoting “development oriented” technical cooperation and assistance. The text of Brazil’s and Argentina’s proposal is available at:
http://www.wipo.int/documents/en/document/govbody/wo_gb_ga/pdf/wo_ga_31_11.pdf. Additional proposals in support of a WIPO Development Agenda were submitted by other member states and organizations, such as Chile, the Group of Friends of Development, the Africa Group, and Colombia.

This initiative has made considerable progress. In the 2004 WIPO General Assembly, states agreed to hold a series of intergovernmental meetings to examine the proposals for a development agenda. Substantive reform proposals to establish a Development Agenda for WIPO passed during the 2007 General Assembly. The 45 development recommendations currently on the development agenda are available at: http://www.wipo.int/ip-development/en/agenda/recommendations.html

Organizations representing librarians have had a significant voice in the negotiations of the Development Agenda. Joint statements of the International Federation of Library Associations (IFLA), the Library Copyright Alliance (LCA), and Electronic Information for Libraries (eIFL) are available at:
http://www.eifl.net/cps/sections/services/eifl-ip/issues/wipo-development-agenda

Click here for more [[Information on the WIPO development agenda]].

== The access to knowledge treaty proposal==

The Argentina-Brazil proposal for a development agenda gave rise to a debate concerning whether WIPO should ensure effective technology transfer from developed to developing countries. Nongovernmental organisations (NGOs), academics, and researchers shared the concerns expressed by developing countries that some aspects of the copyright system were actually impeding innovation instead of promoting it and were creating disadvantages for the developing countries. This reaction to WIPO’s current policies took the form of a movement calling for equality among citizens from developed and developing countries as regards access to knowledge; it has come to be known as the “access to knowledge” or “A2K” movement. Librarians’ organizations, such as eIFL, were pioneers in the advocacy of people’s “right to knowledge” and have called upon WIPO to establish minimum exceptions and limitations to copyright protection.

One outgrowth of the movement has been a proposal for a United Nations treaty, the current draft of which is available at: http://www.cptech.org/a2k/a2k_treaty_may9.pdf. The treaty proposal aims to “protect and enhance access to knowledge, and to facilitate the transfer of technology to developing countries.” It includes a list of occasions when copyright holders should not be able to invoke their exclusive rights, such as:

· The use of works for purposes of library or archival preservation, or to migrate content to a new format.

· The efforts of libraries, archivists, or educational institutions to make copies of works that are protected by copyright but that are not currently the subject of commercial exploitation, for purposes of preservation, education, or research.

· The use of excerpts, selections, and quotations for purposes of explanation and illustration in connection with not-for-profit teaching and scholarship.

· The use of works, by educational institutions, as primary instructional materials, if those materials are not made readily available by right-holders at a reasonable price.

In addition, the proposal advocates a First Sale Doctrine for Library Use, stating that “a work that has been lawfully acquired by a library may be lent to others without further transaction fees to be paid by the library.” Finally, the A2K treaty proposal introduces provisions in support of distance education and other provisions accommodating the rights of persons with disabilities.

Librarians and library patrons aren’t the only ones who could benefit from the A2K treaty. The proposal includes rules protecting Internet Service Providers from copyright liability, and also mitigates the strict circumvention prohibitions that are applied by the international treaties. Nonoriginal and orphan works would be left in the public domain under the treaty proposal, and people would be afforded access to publicly funded research works, government works, and archives of public broadcasting. Finally, the A2K treaty proposal also includes provisions on patent protection, anticompetitive practices, and transfer of technology to developing countries.

Click here for more [[Information on the A2K Treaty proposal]].

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== Back to the case study ==

Nadia knows that Mexico is a member of the Berne Convention, WIPO, Rome Convention, WCT and WPPT. After checking the online databases provided in the WIPO website she found out the following about the countries where she is interested in working:

- Ethiopia isn’t currently a member of any of the international treaties on copyright protection. Thus, the national government of that country has the freedom to regulate copyright independently from other states in the rest of the world. Therefore Nadia cannot have an understanding of the copyright legislation in Ethiopia, unless she had studied Ethiopian copyright law.
- Russia has signed the Berne Convention as well as the Rome Convention, but isn’t yet a member of the WTO. Because both the Berne and the Rome Convention lack an effective enforcement mechanism, other signatory states have little leverage to force Russia to comply with their obligations. Furthermore, Rome Convention affords states that join the treaty the liberty to make reservations with regard to the application of certain provisions.

In addition, Russia has signed the WCT, but that treaty hasn’t entered into force yet. In other words, although Russia has undertaken an obligation towards the other signatory countries to implement the treaty, it hasn’t yet been incorporated into Russian law, and its content is not binding on Russian citizens. Russia isn’t a member of the WPPT.

- India is a member state of the Berne and Rome Conventions and is also a member of the WTO. All members of the WTO are bound by the TRIPS Agreement, which imposes on member countries the obligation to enforce copyright adequately in their own territories, an obligation enforced by the WTO dispute settlement procedure. The TRIPs Agreement requires WTO members to comply with the substantive provisions of the Berne Convention, with the exception of the recognition of moral rights. Therefore, Nadia can rely on the fact that the substantive requirements for copyright protection in Mexico and India are similar. On the other hand India hasn’t signed the WCT and the WPPT. Thus Nadia cannot know how India regulates copyright protection of computer programs and databases and the intellectual property rights of performers and of producers of phonograms.

- Finally Belgium is a member of all of the aforementioned international treaties on copyright protection. As a result, Nadia can only apply for the exchange program in Belgium, as she knows the basic framework on copyright protection in Belgium, based on her knowledge of Mexican copyright law.

</div>

== Assignment and discussion questions ==

'''Round 1 questions'''

1. Which international treaties in the field of intellectual property law has signed and ratified your country? Feel free to use the links and maps provided in this module to help you.

2. If your country were a member of the Berne Convention, could your national legislator issue a law according to which copyrighted works would be protected for a) 120 years b) 25 years? Why?

3. Imagine that your country is a member of the Berne Convention, but not of the WTO.
3a. Could your country’s legislator decide that authors of third countries should first register their works in a national archive in order for the works to be protected in your country?
3b. Could members states to the Berne Convention react to this requirement to protect the rights of their authors?
3c. Could they react if your country was a member of the WTO?

4. Imagine that your country, as well as Atlantis, are members to the Rome Convention. Could your legislator permit that music teachers in your country use freely in their classes recorded performances of singers from Atlantis? Could Atlantis demand from your country to oblige the music teachers to pay royalties to the Atlantian singers?

5. Atlantis has just signed and ratified the WIPO Copyright Treaty and now the national legislator wants to issue a law that will implement the treaty. Atlantis had never provided copyright protection to computer programs in the past and, as it is a country that only imports computer software from third countries, the national legislator believes that it is the in the interest of the Atlantians to provide as little protection to computer programs as possible. Skim the WCT and find the provision that would enable the national legislator to allow Atlantians, under certain circumstances, to freely use computer programs.

6. List the advantages and the disadvantages of enhanced copyright protection for creative works.

7. Do you think that both developed and developing countries should have the same rules for copyright protection? Why or why not?

8. Read article 3-1 of the draft text of the A2K treaty: http://www.cptech.org/a2k/a2k_treaty_may9.pdf
Comment on the importance of one or two provisions for the missions you perform as a librarian.

'''Round 2 questions'''

Please read comments on A2K treaty proposals that your colleagues provided to Round 1 question 2, and comment on one (or more) of them. You may give more examples based on situations you faced at work, or projects you could develop.

Information on the A2K Treaty proposal

2009-04-26T15:40:53Z

Avalle2: New page: == The access to knowledge treaty proposal (A2K): hyperlinked contribution == The Argentina-Brazil proposal for a development agenda gave raise to a debate on whether WIPO should ensure e...

== The access to knowledge treaty proposal (A2K): hyperlinked contribution ==

The Argentina-Brazil proposal for a development agenda gave raise to a debate on whether WIPO should ensure effective technology transfer to developing countries. As in the information society access to information is crucial for promoting creativity, an excessive protection of Intellectual Property rights in the digital environment “would obstruct the free flow of information and scuttle efforts to set up new arrangements for promoting innovation and creativity.” Non governmental organisation (NGOs), academics and researchers shared the concerns of the developing countries that copyright protection was actually putting barriers to innovation instead of promoting it and was creating disadvantages for the developing countries. This reaction to WIPO’s current policies took the form of a movement calling for equality among citizens from developed and developing countries as regards access to knowledge that became known as “access to knowledge” or “A2K” movement. Librarians’ organizations, such as iEFL, were pioneers in the advocacy of people’s “right to knowledge” and called for WIPO to establish minimum exceptions and limitations to copyright worldwide, and consideration of developing nations.

One of the proposed measures to ensure the right of individuals to access knowledge, was the acceptance of a treaty at the United Nations. This gave birth to the access to knowledge treaty proposal, the text of which is available at:
http://www.cptech.org/a2k/a2k_treaty_may9.pdf

The knowledge to treaty proposal has as its objective to “protect and enhance access to knowledge, and to facilitate the transfer of technology to developing countries”. It includes a list of occasions when copyright holders will not be able to invoke their exclusive right, such as:

- The use of works for purposes of library or archival preservation, or to migrate content to a new format;

- The use by libraries, archivists or educational institutions to make copies of works that are protected by copyright but which are not currently the subject of commercial exploitation, for purposes of preservation, education or research.

- The use of relevant excerpts, selections, and quotations for purposes of explanation and illustration in connection with not-for-profit teaching and scholarship;

- The use of works, by educational institutions, as primary instructional materials, if those materials are not made readily available by right-holders at a reasonable price; provided that in case of such use the right-holder shall be entitled to equitable remuneration.

Besides the proposal introduces a First Sale Doctrine for Library Use stating that “a work that has been lawfully acquired by a library may be lent to others without further transaction fees to be paid by the library.”

Furthermore, the access to knowledge treaty proposal introduces provisions in support of distance education and other provisions accommodating the rights of persons with disabilities. Librarians aren’t the only ones who could benefit from the A2K treaty; it includes rules in favour of Internet Service Providers and it also raises the strict circumvention prohibitions that are applied by the international treaties. Non original or orphan works are in the public domain under the treaty proposal and people should have access to publicly funded research works, government works and archives of public broadcasting. Finally, the access to knowledge treaty proposal also includes provisions on patent protection, anticompetitive practices and Transfer of Technology to Developing Countries.

Information on the WIPO development agenda

2009-04-26T15:40:10Z

Avalle2: New page: == WIPO Development Agenda: hyperlinked contribution == Brazil and Argentina submitted at the 2004 WIPO General Assembly a proposal for a development agenda for WIPO that aimed to ensure ...

== WIPO Development Agenda: hyperlinked contribution ==

Brazil and Argentina submitted at the 2004 WIPO General Assembly a proposal for a development agenda for WIPO that aimed to ensure that development considerations form an integral part of WIPO’s work that should be coherent with the international obligations of States under human rights treaties. The proposal of the WIPO Development Agenda addressed the following issues:

- The development dimension and intellectual property protection,

- Integrating the development dimension into WIPO’s activities,

- The development dimension and intellectual property norm-setting: safeguarding public interest flexibilities,

- The development dimension and the transfer of technology,

- The development dimension and intellectual property enforcement,

- Promoting “development oriented” technical cooperation and assistance,

- A member-driven Organization open to addressing the concerns of all stakeholders, in particular civil society.
The text of Brazil’s and Argentina’s proposal for the development agenda is available at http://www.wipo.int/documents/en/document/govbody/wo_gb_ga/pdf/wo_ga_31_11.pdf

Additional proposals in support of a WIPO Development Agenda were submitted by other member states, such as Chile, the Group of Friends of Development, the Africa Group and Colombia.

In the 2004 WIPO General Assembly states agreed to hold a series of intergovernmental meetings to examine proposals originally submitted by Brazil and Argentina as well as additional proposals of other member states. Substantive reform proposals to establish a Development Agenda for WIPO passed during the [http://www.wipo.int/meetings/en/details.jsp?meeting_id=12803/ 2007 General Assembly]. The agenda was based on 45 recommendations on issues related to technical assistance, access to knowledge, evaluation and impact studies, governance, etc.

The 45 development recommendations on the development agenda are available at: http://www.wipo.int/ip-development/en/agenda/recommendations.html

Member Nations have also authorized a new WIPO Committee on Development and Intellectual Property (CDIP). The CDIP is mandated to monitor, assess, discuss and report on the implementation of all recommendations adopted, by coordinating with relevant WIPO bodies and to discuss IP and development-related issues as agreed by the Committee and decided by the General Assembly. The Committee is made up of member states, and is open to all accredited intergovernmental and non-governmental organizations.

Information on FTAs

2009-04-26T15:39:23Z

Avalle2: New page: == Free trade agreements== Multilateral agreements, such as the TRIPs, can provide effective protection to copyright holders worldwide, because they set a common framework for copyright p...

== Free trade agreements==

Multilateral agreements, such as the TRIPs, can provide effective protection to copyright holders worldwide, because they set a common framework for copyright protection in a lot of countries. However, in order to create this common framework, every country that is a member to the agreement has to agree with the version that will be adopted. This fact makes negotiations of the multilateral treaties complicated and the final draft of the treaty is more likely to be an intermediate solution of the proposals suggested from the different countries, rather than the initial version that each country envisaged.

You can imagine though that persuading one country can be much easier than persuading the 139 Member countries to the WTO. So, although the international framework exists, two countries might still want to sign an agreement between them and take further obligations towards one another, aiming, among others, to provide further protection of copyright. These agreements fall under the category of free trade agreements (FTA).

Although FTAs can be very useful to promote both countries’ interests, they can also be misused by developed states, as the latter are in a stronger negotiating position in comparison to developing countries. Developed countries are able to insist on intellectual property rules far in excess of requirements of the WTO as a return for providing to developing countries access to their large markets. These requirements can have adverse effects on technology transfer or access to information and information technology.

An example of a bilateral FTA would be that country A will agree to lower tariffs on country’s B agricultural and manufactured goods and country B will agree to have tighter copyright protection for the rights of country’s A citizens. So, signing bilateral FTAs is a very effective method for a developed country to ensure protection for its citizens’ creative works out of its own boundaries.
Thus, there is a growing trend to conclude FTAs, which remove or reduce the flexibilities in the TRIPS agreement and establish even higher standards of Intellectual Property rights in developing countries. For example, the US government has included anti-circumvention obligations in its bilateral FTAs with Jordan, Singapore, Chile, Morocco, Bahrain and Oman.

However, overbroad legal entrenchment for technological protection measures can have serious unintended consequences beyond areas governed by copyright law, including on the technology sector and on educational and research activities. It has been claimed that anti circumvention provisions can stifle free speech and scientific research by censoring discussions of copy-protection systems for example; anti circumvention provisions have been also accused of unilaterally eliminating the public’s fair use rights, such as making legitimate personal copies of CDs or DVDs, as well as hindering competitors and creating monopolies.

For all these reasons the governments of developing countries should be extremely cautious when negotiating FTAs and in particular intellectual property rules far in excess of the requirements imposed by the World Trade Organization.

Information concerning the flexibilities

2009-04-26T15:38:06Z

Avalle2: New page: == TRIPS Flexibilities == The TRIPS Agreement established minimum standards of protection that each state has to grant to holders of intellectual property rights of other WTO members. How...

== TRIPS Flexibilities ==

The TRIPS Agreement established minimum standards of protection that each state has to grant to holders of intellectual property rights of other WTO members. However, the TRIPS Agreement incorporates certain "flexibilities" as regards the national approaches of copyright protection. These flexibilities aim to permit developing and least-developed countries to use TRIPS-compatible norms in a manner that enables them to pursue their own public policies, either in specific fields, such as access to pharmaceutical products, or more generally, in establishing the institutional framework that contributes to their economic development.

The WIPO Secretariat, along with Member States, has identified four clusters of flexibilities:

1. Flexibilities as to the method of implementing TRIPS obligations

The text of the Trips Agreement includes certain broad terms that are not specifically defined, such as “novelty” or “inventiveness”. The member states can specify the meaning of those broad terms according to their discretion when they implement the TRIPs agreement into national law.

2. Flexibilities as to substantive standards of protection

The TRIPs Agreement contains in certain cases clauses that permit for the member states to provide a higher or a shorter degree of protection in their national legislation.

3. Flexibilities as to mechanisms of enforcement

The TRIPs agreement defines the mechanisms that member states have to adopt for the enforcement of copyright and obliges them not to adopt stricter measures than the ones established within the agreement. Thus, it grants the flexibility to Member states to resort to their own legal system and practices.

4. Flexibilities as to areas not-covered by the TRIPS Agreement

The TRIPs agreement hasn’t regulated all possible areas related to intellectual property rights. Areas such as utility models, traditional knowledge and handicrafts are not covered by the agreement. Member states can legislate as regards these areas without taking into any consideration the principles and regulations of the TRIPs agreement.

Examination of the UCC

2009-04-26T15:36:43Z

Avalle2: New page: == Universal Copyright Convention == The '''Universal Copyright Convention''' (or '''UCC'''), was developed by UNESCO and was adopted at Geneva in 1952, as an alternative to the Berne Con...

== Universal Copyright Convention ==

The '''Universal Copyright Convention''' (or '''UCC'''), was developed by UNESCO and was adopted at Geneva in 1952, as an alternative to the Berne Convention. The UCC was revised in Paris in 1971.

For a list of the countries members of the UCC see:

http://portal.unesco.org/culture/en/files/7816/11642786761conv_71_e.pdf/conv_71_e.pdf

As we already mentioned, the protection of moral rights and the lack of administrative formalities for the protection of works under the Berne Convention deterred the United States, as well as countries with similar legislations, to accept the Berne Convention. Furthermore, the USSR and developing countries thought that the strong copyright protections granted by the Berne Convention overly benefited Western developed copyright-exporting nations. Thus, the UCC was developed in order to satisfy the need of those countries to participate in some form of multilateral copyright protection without joining the Berne Convention.

To succeed in its goal, the UCC included sufficiently flexible legal norms for the protection of authors, which were open to accommodate states at different stages of development, or states belonging to different economic and social systems. As a result, “its protective norms are expressed in the form of general principles which can be given different shades of interpretation depending on the specific identity of each state”(1). To allow the accession of the Soviet Union, the UCC provided that works should be protected for 25 years. It also incorporated the principles of national treatment and prohibited any discrimination against foreign authors, so that the works of citizens of each protective state would receive in the other contracting countries the same protection, as the nationals of those countries.

In order to protect their copyrights in more countries, the Berne Convention States also acceded to the UCC. In an effort to deter the Berne Convention parties from renouncing that convention in order to adopt the UCC, the UCC included a clause stating that parties which were also Berne Convention parties need not apply the provisions of the Convention to any former Berne Convention state which renounced the Berne Convention after 1951.Thus, countries that would decide to leave the Berne Convention wouldn’t have been able to protect their copyright in other Berne Convention states.

Nowadays the importance of the UCC is minimal as most countries have acceded to the Berne Convention and almost all states in the world are either members or aspiring members of the World Trade Organization, and thus conforming to the Agreement on Trade-Related Aspects of Intellectual Property Rights.

(1) Andre Kareve, UNESCO Courier, Universal Copyright Convention, available at: http://findarticles.com/p/articles/mi_m1310/is_/ai_10940863