Copyright and Internet an introduction Bart Beuving May

Copyright and Internet: an introduction Bart Beuving May 26, 2009 1

PLEASE INTERRUPT ME ! (with more or less relevant questions) 2

General outline I Copyright II Copyright and internet III Copyright, internet and Digital Rights Management 3

I -- Copyright 4

Intellectual property domains culture copyright law commerce trademark law technology patent law 5

(Elwood) 6

But we are discussing copyright today, so. . 7

International treaties The Berne Convention for the Protection of Literary and Artistic Works (1886/1967) The Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) TRIPS The WIPO Copyright Treaty (1996) National law 8

EC Directives 91/250/EEC on the protection of computer programs 92/100/EEC on rental and lending rights 93/83/EEC on satellite broadcasting and cable retransmission 93/98/EEC harmonizing the term of protection 2001/29/EC on copyright in the information society 2001/84/EC on the resale right as to art works 9

Subject matter of protection 10

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http: //www. youtube. com/watch? v=Gfovi. Q 5 i z 1 o 13

Literay and artistic works books, writings, plays musical compositions choreography drawings, paintings sculptures, architecture cinematographic works photography 14

Art. 2(1) of the Berne Convention ‘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 and dramatico-musical works; … 15

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; … 16

photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; … illustrations, maps, plans, sketches and threedimensional works relative to geography, topography, architecture or science. 17

(in the Netherlands) A product is copyrighted in the Netherlands if there is an expression that ´has its own original character and bears the personal stamp of the author´. In other words: a work must be somewhat original. Beautiful or ugly, good or bad, little effort or years of work: irrelevant! 18

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? – 2 Software 20

The design (functionalities) The Source code 21

Art. 4 of the WIPO Copyright Treaty ‘Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression. ’ 22

? – 3 Alterations 23

? – 4 Derivative works Marcel Duchamp The Mona Lisa With a Moustache 24

Specific rules (2(3) BC ‘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 in the original work. ’ copyright 1: original work copyright 2: altered version (remember the music) 25

? – 5 Conversations 26

Exclusion from protection no protection unless fixed in some material form (art. 2(2) BC: optional) official texts of a legislative, administrative and legal nature, and official translations of such texts (art. 2(4) BC: optional) news of the day and miscellaneous facts having the character of mere items of press information (art. 2(8) BC: mandatory) 27

Copyright: why? ? ! 28

Incentive for the creation of works Stimulation of creativity and investment Enhanced possibility of amortization ‘Natural’ period of market exclusivity _____ (only) the advantage of being first in the market) ‘Extended’ period of market exclusivity _____________________ 29

Reward for creative work Feelings of rightness and justice Rights of the author inherent in the ‘very nature of things’ Exclusive possibility of exploiration 30

Engine of freedom of expression Contribution to the independence of authors Limiting the influence of patronage Exclusion of censorship 31

In other words … It just ain’ t right… 32

Author, what do you get? (minimum rights) Two branches of rights: Exploration rights - General right of reproduction (art. 9 (2) BC) - General right of communication to the public (art 8 WCT) Moral rights - Claim authorship - Object to any distortion, mutilation, modification or other derogatory action (art. 6 bis BC) 33

In more ‘digital words’… (European Copyright Directive) Exclusive right to reproduce (art. 2) Exclusive right to make available to the public (art. 3) Exclusive right to distribute (art. 4) 34

The copyright balance Some limitations What about ideas? Idea/expression dichotomy: copyright only protects the individual way of expressing ideas, not ideas as such (art. 2 WTC) What about the term of protection? Must be limited! (a. o. art. 7, 7 bis BC) However…. What limitation in time do we know? life of the author + 50 years (art. 7 BC) …. Life of the author + 70 years (EU) Life of the author + 70 years or 95 or even 120 years ! (USA) The mickey mouse copyright act 35

Copyright, how do you get it? ! 36

II Copyright and the internet: what about … Main rule: online, the same rules apply Meaning…? ? Hyperlinks? - A surface (=‘regular’) link - Deeplink? - Framed link? 37

Kranten. com (newspapers. com) 38

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Downloading? Uploading? 40

Torrents Torrent is a small file (around few kilobytes) with the suffix . torrent, which contains all the information needed to download a file the torrent was made for. That means it contains file names, their sizes, where to download from and so on. You can get torrents for almost anything on lots of web sites and torrent search engines. Copyright infringement? 41

Copyright on a website The main question: who is responsible? 42

An example 43

An Example, classified advertising website 44

Duty of care? - Is the site aware of the problem? - What part is played by website owner? - Notice and takedown-procedure? Which party has to incur costs? Preventive scanning / Supervision? (considerable costs) Providing names unlawfully acting persons? Obliged to collect names? 45

A different perspective (? ) Free Culture – Lawrence Lessig 46

Creative Commons, use of internet 47

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Credits: Cartoon concept en design: Neeru Paharia | Originele illustraties: Ryan Junell Photos: Matt Haughey | Vertaling: Michiel de Lange | Opmaak: Geert Wissink Op dit stripverhaal is een Creative Commons Licentie van toepassing 53

Does it work? Yes, it does. 54

III Copyright, internet and DRM 55

Digitalisering en auteursrecht: grote voordelen Digital (potential) great possibilities for producers distribution / long tail – Chris Anderson) 56

Digitize and copyright: in practice The Cut and Paste-problem (copyright is flushed out) - Solutions (? ): Hearts and minds Technics DRM: what may a user do with a work? Legal weaponry 57

A. Hearts and minds http: //www. youtube. com/watch? v=z. OBro. A 2 NPNY 58

http: //www. youtube. com/watch? v=l. S-Pemhv. XHc http: //www. youtube. com/watch? v=lf 9 T_Hppqjk 59

B. Technics: DRM TTP Certificats Metadata als a waterbrand Encryption … What, who, where, how many times “The answer to the machine is in the machine” 60

Who are not happy with DRM Consumers … … but also hardware-producers 61

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pro DRM Protection rightholder Stimulating (digital) economy (that’s where IP rights are for, remember? ) Enables various (free) price fixing (‘lite’) Ties the consumer to the provider …. 66

C. Legal measures in order to enable effective DRM Digital Rights Management (Digital Restriction Management) Copyright Directive (art. 6) “adequate legal protection against the circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective” "technological measures" means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject-matter, which are not authorised by the rightholder of any copyright or any right related to copyright as provided for by law or the sui generis right provided for in Chapter III of Directive 96/9/EC. 67

Copyright vs DRM - limitations (European Copyright Directive) Exclusive right to reproduce (art. 2) Exclusive right to make available to the public (art. 3) Exclusive right to distribute (art. 4) Limitations - In time - Not protected by a copyright - Education exception - Caching exception - ‘Right’ to quote - Press exception Circumvention technology vs limitations 68

The end of DRM? 69

Questions? bart. beuving@twobirds. com +31 (0)70 – 353 88 25 Bird & Bird is an international legal practice comprising Bird & Bird LLP and its affiliated businesses. www. twobirds. com 70