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............................................................................................................................................. Description The rights of authors of literary, dramatic, musical and artistic works are, in the common law system, covered by copyright, and in the civil law system by "author's right". The rights of performers, producers, broadcasters and others who bring authors' works before the public are often described as related (or neighbouring) rights. "Copyright" means many things to many people. To some it signifies a component of human rights, deriving from natural law, and sustaining the work of the human mind by protecting authors in respect of all uses of their works. To others it represents a commercially inspired monopoly for the better regulation of the exploitation of the author's work in the market place. In between are other concepts, each with its own philosophical and juridical justifications. The debate on the place of copyright in the legal system is not merely on the national level, but also covers relationships at cultural, political and commercial levels throughout the world. One feature is, however, common to all approaches. The discussion concerns works of the mind, and the means by which these are disseminated to the public. The writer of a text such as the present is faced with a problem which is present at the outset and which gains in gravity as the work continues, namely the immense amount of material on the subject of copyright and related rights which pours from the world's presses and over the Internet in ever increasing volume. The researcher is inevitably faced with the challenge of selection, and with the necessity of omitting analysis of many questions which could have detailed study. The choice is between attempting analysis of all points which raise problems (with the probable result that the work would never be completed), or choosing for analysis as many as possible of those subjects likely to be of international interest: this course is the one chosen in the Commentary. In sum, the aim of this work is to provide the reader with an overview of the present state copyright and related rights law at the national, international and regional levels, supported by reference materials which are general in content and should lead to an appreciation of the global issues arising from recent developments in technology. Some of the material in the author's earlier work Intellectual Property Rights in Sound Recordings, Filrn and Video (1992, Supplement 1994) is incorporated in the present text, but forms only a minor part of the exposition. A word may be said here about the availability of sources. There is no dearth of learned text books on the subject, and a great deal of material covering the common law and civil law systems is readily available. Case reports of international interest are published in International Review of Industrial Property and Copyright Law (I.I.C.) and Revue Internationale de Droit d'Auteur (R.I.D.A.), both of which are found in research libraries throughout the world. International journals such as European Intellectual Property Review (E.I.P.R.) publish summaries of cases as reported by their correspondents. The development of Internet search facilities enables, by the entry of a relevant team or title in the search box, access to case reports, learned articles and news items on an extensive range of aspects of copyright law, some of which may not otherwise be available. The reader will note that in the presentation of the first Section of the work, consisting of a Commentary on the whole subject, the illustrative examples of national situations are mainly taken from the legislation and jurisprudence of France, Germany, the United Kingdom and the U.S.A., these showing aspects of the civil law and common law systems respectively, and permitting reference to case material which is in general readily available. Many other countries have highly developed laws in the area with impressive heritages of jurisprudence and learned writing, and in many cases, reference to items in such material is included in the Commentary. ............................................................................................................................................. Contents Section I: Commentary Part I: Background and basic principles Chapter 1: General overview A. General summary B. Historical background C. The economic importance of copyright and related rights D. Copyright and related rights in the global information era E. Summary Chapter 2: Basis of protection Introduction Section 1 General Analysis Part I: Copyright/author's right A. Identification of the right B. Historical source of the right C. Classification of the right D. Justification for granting the right. Part II: Related rights A. Identification of the rights (1)General (2) Performers' rights (3) Phonogram producers' rights (4) Broadcasters' rights (5) Film producers' rights (6) Publishers' rights B. Historical sources of the rights C. Classification of the rights D. Justification for granting the rights. Part III: Sui generis rights A. Identification of the rights (1) General (2) Semiconductor topography makers' rights (3) Database makers' rights B. Historical sources of the rights C. Classification of the rights D. Justification for granting the rights Section 2 Related Aspects General A. Factors influencing legislative decisions B. Constitutional Questions C. Conflicts of interest D. Resolution of conflicts Appendix A: Locke's Theory of Property. Appendix B: International and Regional Instruments Concerning Human Rights (Extracts Chapter 3: Structure of protection Introduction. A. Structure of protection under national laws B. Structure of protection under international instruments. C. Structure of protection under regional instruments D. Private International Law E. National treatment and reciprocity Figure I: Application of national treatment Chapter 4: Terminology and interpretation General National laws International instruments Regional instruments Examples of definitional problems. Summary Chapter 5: Beneficiaries of protection Introduction Part I: Authors Part II: Owners of related right A. Performers B. Phonogram producers C. Film producers D. Wireless broadcasters E. Cable distributors F. Publishers Part III: Owners of sui generis rights A. Semiconductor topography makers B. Database makers Chapter 6: Subject matter of protection Introduction Part I: Authors' works A. General B. Particular categories C. Exclusion of subject matter Part II: Related right subject matter A. Performances B. Sound recordings (phonograms) C. Film recordings D. Wireless broadcasts E. Cable transmissions and retransmissions F. Published editions Part IIl: Sui generis right subject matter A. Semiconductor topographies B. Database contents Part IV: Specific national categories. Part V: The protection of recorded productions Introductory A. General B. Contributions to recorded productions C. Summary and proposal Figure II: Protection of cinematographic and phonographic productions Chapter 7: Protection criteria Introduction Part I: Authors' rights Part II: Related rights A. Performers' rights B. Phonogram producers' rights C. Film producers' rights D. Wireless broadcasters' rights. E. Cable distributors' rights F. Publishers' rights Part III: Sui generis rights A. Semiconductor topography makers' rights B. Database makers' rights Chapter 8: Moral rights Introduction A. Types of moral rights B. Moral rights of authors 1. National laws 2. International instruments 3. Regional instruments C. Other beneficiaries of moral or moral-type rights 1. Performers 2. Film producers 3. Other categories of beneficiaries D. Illustrative cases Chapter 9: Economic rights Introduction A. Types of economic rights B. Economic rights in the context of the Internet 1. General 2. Terminology 3. Types of Internet transmission and their relevance. Relevant acts 5. Legal regulation 6. Illustrative cases C. On-demand availability right: specific aspects 1. Nature of the right 2. Scope of the right 3. Reproduction 4. Implementation of the right D. Economic rights of authors 1. National laws 2. International instruments 3. Regional instruments E. Other beneficiaries of economic rights 1. Performers 2. Phonogram producers 3. Film producers 4. Wireless broadcasters 5. Cable distributors 6. Publishers 7. Semiconductor topography makers 8. Database makers F. Specific national categories Figure III: Categories of communication services Figure IV: Wireless broadcasting and cable transmissions Chapter 10: Limitations and exceptions Introduction A. Areas of limitation and exception B. Conditions of application C, National laws D. International instruments E. Regional instruments F. Policy considerations Chapter 11: Term of protection Introduction Part I: Authors' rights Part II: Related A. Performers' rights B. Phonogram producers' rights C. Film producers' rights D. Wireless broadcasters' rights E. Cable distributors' rights F. Publishers' rights Part III: Sui generis rights A. Semiconductor topography makers' rights B. Database makers' rights Part IV: Other provisions Chapter 12: Exercise of rights 1. Introduction A. General Assignments and licences Limitations and exceptions Contracts Presumptions Joint authors Overlapping exercise of rights Reversionary interests Revival and extension of copyright Bankruptcy Onerous terms Non-exercise of rights Retraction of rights Abandonment of rights Abuse in exercise of rights Competition rules Profiting from illegality Adjudication and dispute settlement B. Exercise of rights by collecting societies C. Digital rights management D. Web 2.0 sites E. Digital libraries F. Orphan works G. "Creative Commons" Chapter 13: Infringement Introduction A. General Jurisdiction and applicable law Basic aspects (causal connection, etc.) Piracy, bootlegging and counterfeiting Defenses B. Particular aspects Affixations and transfers 01. Sampling and ringtones YI. Parodies 81. Importation Infringement of computer program copyright. Databases C. Infringement in the context of Internet D. General and Overview E. Types of Internet transmission F. Relevant Acts G. Rights which may be infringed H. Persons who may infringe I. Places of infringement J. Browsing and caching K. Linking and framing L. Peer-to-peer file-sharing M. Limitation of liability of Internet service providers N. Current issues Illustrative Cases D. Breaches in respect of technological measures General Provisions in the WIPO Treaties Provisions in the EC Information Society Directive Provisions in the EC Conditional Access Directive Provisions in national laws Illustrative cases The need for harmonization E. Unauthorized removal, etc. of rights management information General Provisions of the WIPO Treaties 1996 Provisions in the EC Information Society Directive Provisions in National laws Appendix: Potential infringements on the Internet Chapter 14: Remedies, penalties and enforcement General TRIPS Agreement WIPO Treaties 1996 European Community National Laws Technical controls Internet problems General Disclosure of Names Chapter 15: Additional legislative features Introductory Official administering bodies Legal deposit Transitional and applicatory provisions part II: national, international and regional proti Chapter 16: National systems of protection Introduction The copyright system The author's right system Differences between the copyright and author's right systems Unifying the systems Chapter 17: International Conventions, Treaties and Agreements: summary Introduction A. Major international instruments affording substantive protection B. Other international instruments C. Proposed instruments Chapter 18: Berne Convention (1886-1971) Analysis Chapter 19: Universal Copyright Convention (1952-19) Analysis Chapter 20: Rome Convention (1961) Analysis Chapter 21: Phonograms Convention (1971) Chapter 22: TRIPS Agreement (1994) Analysis Chapter 23: WIPO Copyright Treaty (1996) Analysis Concluding comments Chapter 24: WIPO Performances and Phonograms Treaty (1996) .Analysis Concluding comments Chapter 25: Regional Conventions, Treaties and Agreemei summary Introduction A. Europe B. North, Central and South America C. Other areas D. Overview Chapter 26: European Community Part I: General summary Part II: Application of Treaty principles A. Non-discrimination (Art.12) B. Free movement of goods (Arts.28-30) C. Free movement of services (Arts.49-50) D. Prohibition of anti-competitive agreements (Art.81) E. Prohibition of abuse of dominant position (Art. 82 ) Part I Summaries of EC Directives on copyright and related rights A. Computer Program Directive B. Rental/Lending and Related Rights Directive C. Satellite Broadcasting and Cable Retransmission Directive D. Term Directive E. Database Directive F. Information Society Directive G. Artist's Resale Right Directive Part IV: Evolution of European Copyright and Related Rights Law Introduction Methodology Present Situation Comparison with other laws Structure of Summary Chart Summary Chart part HI: current issues and future prospects Chapter 27: Current issues Introduction A. Diversities in National, International and Regional Systems B. Particular issues C. General Summary D. WIPO Developmental Agenda E. Priorities Chapter 28: Future prospects Introduction The need for a world copyright system Means of achieving a world copyright system Proposed International Copyright Protection System The importance of education section II: international and regional standards of protection: comparative summaries Introduction Summary A: Comparative Summary of International and Regional * Instruments International instruments Regional instruments Summary B: Comparative Summary of Protection of Beneficiaries .3 Parti r Authors Part II: Owners of related rights A. Performers B. Phonogram producers C. Film producers D. Wireless broadcasters E. Cable distributors F. Publishers Part III: Owners of sui generis rights A. Semiconductor topography makers B. Database makers Comparative tables of protection under international and regional instruments Introduction Table I: Authors Table II: Performers Table III: Phonogram producers Table IV: Wireless broadcasters section HI: glossary of legal and technical terms Introduction Glossary index Glossary of legal and technical terms section IV: reference materials Part I: International and regional instruments: Membership, Contracting Parties and texts Membership and Contracting Parties A. International instruments B. Regional instruments Texts A. International instruments B. Regional instruments Part II: Reference List of National Laws and supplementary material Introduction Country list Associated territories and former laws Summary List: Recording machine and tape payments (private copying): national laws Part IH: Historic documents Part IV: Additional reference materials A. The phonogram performing right: historical background Model Laws C. Draft instruments Bibliography General Index .............................................................................................................................................
