Week 1 Flashcards
Copyright Law: Introduction. Nature and function of copyright law. Justification for monopoly rights. Concept of protection over immaterial goods. Copyright within general framework of intellectual property rights. Copyright as exclusive, transferable rights and as a moral rights protection. (157 cards)
1
Q
What is copyright?
A
A bundle of exclusive legal rights concerned with the protection of literary and artistic works
2
Q
What is the aim of copyright?
A
To promote science, culture and the arts.
3
Q
How can the aim of copyright be fulfilled?
A
This can be done by rewarding the creators of such works by granting them some rights and at the same time striking a three-way balance between these rights, those of entrepreneurs and the interest of the public.
4
Q
What is central to the Berne Convention?
A
The role of the author as the creator of the work.
5
Q
What do the exclusive rights allow to the author?
A
They allow the author to control, and to benefit from, the reproduction and the communication to the public of their works. They allow also the author to control the authenticity of the work that is released as being his.
6
Q
What is article 2 of the Berne Convention?
A
2
7
Q
Explain what does the expression ‘‘literary and artistic works’’ include.
A
1
8
Q
Are technology based works also protected under the Berne Convention?
A
Yes.
9
Q
Is there a de minimis requirement for copyright works?
A
Yes.
10
Q
What does fixation do?
A
It facilitates the exact identification of what the work is, which helps to overcome the burden of proof in infringement proceedings.
11
Q
Are technology based works also protected under the Berne Convention?
A
Yes.
12
Q
What copyright protects?
A
Work represents the expression of thoughts and ideas.
13
Q
Are ideas and thoughts as such protected?
A
No.
14
Q
What is copyright protection like in nature?
A
Territorial.
15
Q
What means that copyright protection is territorial?
A
That means that a work will only attract copyright protection if it meets the legal requirements of the copyright law of the country where protection is sought.
16
Q
How can copyright be transferred to others?
A
On a territorial basis.
17
Q
To what is history of copyright closely linked to?
A
To technological development.
18
Q
When did copyright became economically significant?
A
When cheap multiple copies of literary works could be made.
19
Q
To what is the appearance of copyright linked to?
A
To the appearance of the printing technique.
20
Q
What were the first forms of copyright protection?
A
The granting of monopolies and privileges to certain stationers (predecessors of publishers).
21
Q
When and where was granted the oldest known privilege?
A
In Venice in 1496.
22
Q
To whom was granted the oldest known privilege?
A
To Joannis de Spira.
23
Q
In what century did privileges appear in other European countries and with what were they concerned?
A
In the 16th century. They were essentially concerning an exclusive publication right for certain works, or an exclusive right to reprint in cases where first publication of a work was not subject to monopoly, or an exclusive right of importation.
24
Q
What prompted the grant of the privilege?
A
The industrial and economic development of the country.
25
For what opened the privileges a way?
For the first Copyright Act.
26
When and where was enacted the first Copyright Act?
In England in 1710.
27
What did the first Copyright Act grant?
Substantive rights and effective procedures for the enforcement of copyright.
28
What did the first Copyright Act provide to authors?
It provided that authors had the exclusive right to print their work for 14 years after its first publication.
29
When did France introduce copyright legislation?
In 1791.
30
What was granted to authors by a decision of the Conseil d'Etat du Roi?
It granted authors a printing privilege for life.
31
When was introduced the General Prussian Code?
In 1794.
32
What did the General Prussian Code protect?
It protected authors indirectly by providing that publishers were only protected if they had the author's authorization.
33
Which two large copyright traditions were set out at that time?
1. The common law tradition
| 2. The civil law tradition
34
Explain the copyright common law tradition.
The copyright common law tradition places the emphasis on the economic exploitation of the work and is therefore sometimes seen as favoring entrepreneurs, such as publishers, film producers and so on. It often also includes phonogram producers and broadcasters under copyright protection. It achieves that by operating legal presumptions in favor of entrepreneurs and sometimes granting authors a relatively modest set of moral rights.
35
Explain the copyright civil law tradition.
The civil law tradition places the emphasis on the reward of the intellectual effort to the author. This is also the reason why it refers to copyright as authors right. It regards copyright as a personality right, a human rights-based right.
36
How does the copyright tradition see copyright?
As a property right, as a title that facilitates economic exploitation.
37
What is the starting point of copyright?
A utilitarian approach.
38
What is the starting point in the Droit d' Auteur tradition?
Creative expression is inherently a part of the person and personality of the human beings makes copyright a natural right.
39
To what is linked a natural right?
To the person of the author.
40
What does the system encourage either way?
It encourages investment in the dissemination of creative works and promotes the economic growth of creative industries.
41
What became well established in the 19th century?
Copyright protection.
42
What give rise to a need of reciprocal copyright agreements with other countries?
The commercial interests of certain countries.
43
When was adopted the Berne Convention?
In 1886.
44
For what was copyright historically used as?
As a powerful legal tool to encourage the building of the cultural industries.
45
When can the full advantages of copyright be enjoyed?
Only if the country has the pre-requisites for building up these industries.
46
With what is copyright closely associated with?
With the economic and cultural growth of a nation.
47
What did the demand for books increase?
The international trade in copyright works.
48
What is the Berne Convention?
The oldest multilateral copyright convention.
49
What does the Berne Convention establish?
It establishes a Union for the protection of the rights of authors in their literary and artistic works.
50
What does the Berne Convention provide?
It provides that the personal connection of the author with an Union country or the first publication of a work in an Union country secures protection of the work in that country.
51
How does the Berne Convention extend the protection?
To all contracting states by obliging them to grant national treatment.
52
What are the Contracting Parties also obliged to?
They are also obliged to incorporate into their national laws certain rights granted in the Bern Convention as a minimum level of protection.
53
May the Contracting Parties offer more extensive protection?
Yes.
54
What does the Berne Convention constitute?
It constitutes the cornerstone for copyright and has been revised on many occasions in order to accommodate new technological developments.
55
When and where was the Berne Convention revised?
In Paris in 1896, in Berlin in 1908, in Berne in 1914, in Rome in 1928, in Brussels in 1948, in Stockholm in 1967 and in Paris in 1971.
56
How many contracting states were there on the 1st September 2009?
164.
57
What does the automatic grant of copyright at the cross border level allow?
It allows authors and cultural industries who exploit their works to operate globally and to do so on a level playing field.
58
What are some more recent conventions?
The 1994 TRIPS agreement and the 1996 WIPO Copyright Treaty.
59
What does the TRIPS agreement do?
It places copyright in a world trade context and expands the principles of copyright to even more nation, whilst at the same time updating copyright in the light of events since the last Berne revision in 1971.
60
What does the WIPO Copyright Treaty do?
It takes efforts further and updates copyright for the internet digital era.
61
What is the WIPO Performances and Phonograms Treaty 1996?
A companion treaty to the WCT.
62
When was the WIPO Beijing Treaty on Audiovisual Performances?
2012.
63
When was the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled?
In 2013.
64
What did the updating of copyright protection to the digital/internet context create?
It created more concerns regarding access to work and creativity.
65
What justifies the copyright protection?
Promotion of economic growth of a country.
66
What did the WIPO Development Agenda mandate?
It mandated a paradigm shift in the approach to intellectual property in general, and copyright in particular.
67
Where and when was drafted the Universal Copyright Convention?
In Geneva in 1952.
68
By whom was the UCC promoted?
By UNESCO.
69
When and where was the UCC revised?
In Paris in 1971.
70
What was the UCC's purpose?
To establish a multilateral international protection at a level where also some countries outside the Berne Convention, including the USA, could join.
71
Where are the headquarters of the World Intellectual Property Organization?
In Geneva.
72
With what dealt the US Supreme Court in Baker vs. Selden?
It dealt with 2 treaties explaining a particular system of bookkeeping.
73
What did the court have to determine first in Baker vs. Selden?
What was the unprotected idea in the first version and what was copyright protected expression.
74
From what arises the plausibility of the claim put forward by the complainant in Baker vs. Selden?
It arises from a confusion of ideas produced by the peculiar nature of the art described in the books which have been made the subject of copyright.
75
What did the court held in Baker vs. Selden?
Blank account books are not the subject of copyright and the mere copyright of Selden's book did not confer upon him the exclusive right to make and use account books, ruled and arranged as designated by him and described and illustrated in said book.
76
With what dealt the House of Lords in the case Designer Guild Limited vs. Russell Williams?
It dealt with the distinction between idea and expression. This case was concerned with a design for wallpaper that was described as characterized by an impressionistic style based on a combination of stripes and scattered flowers and leaves.
77
What is the advantage of the case Designer Guild Limited vs. Russell Williams?
It strictly focuses on copyright and what is covered by it.
78
Can there be copyright in an idea which is merely in the head?
No.
79
Is the expression of ideas protected?
Yes.
80
What does the case Ladbroke Ltd vs. William Hill establish?
It establishes that substantiality depends upon quality rather than quantity.
81
Is copyright an exclusive right?
Yes.
82
What is the monopoly right of intangible good?
It's a kind of granting to generally one person an exclusive decision on who, how and under what circumstances may have use his work.
83
Is it easy to justify monopoly right of intangible good in times of social media?
No.
84
What is the appearance of copyright associated with?
With the appearance of printing technique.
85
Who should we thank for the appearance of the printing technique?
J. Gutenberg.
86
What was the first form of copyright protection?
The granting of monopolies and privileges to certain stationers that were the predecessors of today publishers.
87
When was the oldest known privilege granted and to whom?
In 1469 in Venice to J. de Spira
88
What did J. de Spira's privilege consist of?
It consisted on being the only person to exploit the printing technique for a number of years in the city of Venice.
89
During the XVI century in which European country did the printing privilege next appear?
England.
90
What was the real foundation of the copyright protection regarding those printing privileges?
When it became subject to authors authorization.
91
What is the Statute of Anne?
The first copyright act.
92
When was the Statute of Anne enacted?
In 1710 in England.
93
What did the Statute of Anne provide?
- substantive rights and effective procedure for the enforcement of copyright
- that authors has exclusive right to print their work for 14 years after its first publication
- to extend that exclusive right for another 14 years.
94
Compare the Statute of Anne to modern copyright systems in regard of the duration of copyrights.
In modern copyright systems the duration of copyrights is almost 70 years after the authors death.
95
When did France introduce copyright legislation?
In 1791.
96
When was the general Prussian Code introduced?
In 1794.
97
How did the Prussian Code protect authors?
It protected them indirectly, by providing that publishers were the only protected if they had the authors authorization.
98
What two large copyright systems were set out?
Common law countries (also known as the copyright tradition) and civil law countries (also known as the droit de trout or the continental law tradition).
99
Explain the nature of the copyright system in three words.
Intangibility, non-exclusivity and non-rivalry.
100
With what picture in intangibility associated with?
With Archimedes shouting out EUREKA.
101
What does the non-exclusivity mean?
It means that our invention, design, work, from its very nature is quite impossible to exclude others from using it
102
What does the non-exclusivity implicate?
It implicates that without some normative institutions we cannot provide sufficient protections that may give authors right to exclude others from using it and therefore without normative boundaries we simply cannot provide guarantee of investment return.
103
What word describes the true nature of the intellectual property?
The non-exclusivity.
104
Describe the non-rivalry.
It is possible for many users of work to use the same work or the same product at the same time by different persons. Ideas or work are non-rivalries.
105
Are there different justifications on the copyright system?
Yes.
106
With whom is the natural rights theory and labor theory associated with?
With J. Locke.
107
How do the natural rights theory and the labor theory justify the copyright system?
The rights associated with intellectual property are attributed to the creator, because they belong to him in some metaphysical orientated sense. Either because they are regarded as alienating from the creators inalienable personality or to put it more generally, as the fruit of his intellectual labor. Copyright is the positive laws realization of this self-evident ethical precept.
108
How do the natural rights theorists divide?
They divide on the origination that entitles authors to protection. Some explain that work should be protected, because they are the expressions of each particular author or personality. A second version of the natural theory has tended to found itself on labor, drawing on John Locke's idea that a person has a natural rights over a product of their labor.
109
Where is the second version of the natural theory strongly presented?
In the U.S. literature.
110
What is the aim of the economic theory and how is it achieved by the legislator?
The aim is to incentivize and reward investment made into creation and innovation. It is achieved by the legislator by guaranteeing the first mover in this role and a legally secured time to the author to recoup his investment made in order to come up with marketing venture or creation.
111
On what are the economic theories based?
On the idea of what is good for society or the public in general.
112
What does the economic theory's incentive argument presuppose?
It presupposes that the production and public dissemination of cultural objects such as books, music, art and films is an important and valuable activity. It also presupposes that all those incorporate protection the production and dissemination of cultural objects would not take place at an optimal level.
113
What is the tragedy of the commons?
The goods that are non-exclusive, non-rivalry tends also to be under investment in the creation and production together with all the use by other members of the society, so- called free rider.
114
How do we also call the tragedy of commons?
The free rider problem.
115
How can the tragedy of commons be avoided?
We need to create an artificial exclusivity that will allow creators to protect their goods to have the investment return.
116
On what justifications do commentators often rely up?
On the instrumental justifications that focus on the fact that intellectual property induces or encourages desirable activities.
117
How is the trademark system justified?
It encourages traders manufacture and sell high quality products. It also encourages them to provide information to the public about the features of those products.
118
On what are instrumental arguments typically premised?
They are premised on the position that without intellectual property protection, there would be underproduction of intellectual products.
119
What does the related economic theory argue on transforming valuable intellectual artifacts into property rights?
That those artifacts are more likely to be exploited to the optimal extent.
120
At which point does the neo-liberal economic theory draw the limit of intellectual property protection?
At the point at which it begins to inhibit efficient users. That is the point at which the cost of transacting with a property holder stands to prevent users to parties would not agree with no such costs.
121
What is the reward theory?
Copyright protection is granted because we think it is fair to reward an author for the efforts expanded in creating a work and giving it to the public. Copyright is a legal expression of gratitude to an author for doing more than society expects or feels that they are pledged to do.
122
To what is the grant copyright similar in essence?
To the repayment of a debt.
123
What is the difference between the reward theory and the incentive theory?
In reward theory the reward is an end in itself. In incentive theory the reward is a means to an end.
124
What two questions pose critics of the reward theory?
1. Do the circumstances in which a copyright protection is granted really correspond to the circumstances in which people deserve free watts?
2. Why should a person be granted an exclusive right?
125
Who invented the democratic paradigm?
Net Natanel in 1966.
126
How does Natanel define copyright?
Natanel sees copyright as predefining our democratic institutions by promoting public education, self-reliant authorship and robots debate. The democratic paradigm views copyright law as a state measure designed to enhance the independent and thoroughly pluralist character of civil society.
127
On what justifications do common law countries focus?
They are more focused on the utilitarian approach to copyright system.
128
On what justifications do countries in continental Europe focus?
On idealistic approach to the copyright system, also called a romantic authorship construction. You're going to find it in Copyright Acts.
129
What is the civil law tradition droits d'auteur of the concept of protection of immaterial goods?
It places emphasis on the reward of intellectual effort of that author. It refers to copyright as authors right in regards to copyright as a personality right, a human rights based right.
130
What is the starting point in the droits d'auteur tradition?
The idea is that creative expression is inherently part of the person and personality of the human being makes that creating a copyright work should be somehow protected.
131
Do both traditions arrive at the same result although their starting points are radically different?
Yes.
132
What Convention was adopted in 1886?
The first International Convention regarding copyright law.
133
What was historically copyright used for?
It was used as a powerful legal tool to encourage the building of cultural industries.
134
With what is copyright protection closely associated?
With the economic and cultural growth of the nation in the developing world.
135
What is the Bern Convention?
It is also the oldest multilateral copyright convention. It establishes an union for the protection of the rights of authors.
136
What does the Bern Convention provide?
It provides that the personal connection of the author with union country by nationality or a bit to other residence order first publication of a work of an union country secures protection for work in that country.
137
To what extent does the Bern Convention provide protection?
It extends the protection to all contracting states by obliging them to grant national treatment.
138
What kind of protection does the Bern Convention provide?
Minimum level of protection.
139
When and where was the Bern Convention revised?
In Paris, Berlin, Rome, Brussels and again in Paris in 1971.
140
How many states were parties of the Bern Convention on the 1st September 2009?
164.
141
What does the automatic grant of copyright allow?
It allows authors and cultural industries who exploit their works to operate globally and to do so on a level playing field.
142
Does the copyright still apply irrespectively of the fact that the book is a physical object?
Yes.
143
Are there similarities between the property rights and copyrights?
Yes.
144
What is the limitation between property rights and copyrights?
Property rights are limited to the physical object and its existence.
145
What is the distinction between the property rights and copyrights regarding the moral rights system?
Copyright system provides us not only economic rights that protect financial interests of the rights holder, just like in property rights but also the moral rights of the authors that implicate very new or sometimes the very complicated system of protection.
146
Was the moral right system from the beginning a common element for all countries?
No.
147
Do I and human rights have the same aim in XXth century?
Yes.
148
Which multilateral human rights agreements contain intellectual property?
- Universal Declaration of Human Rights 1948
- International Covenant on Economic, Social and Cultural Rights 1966
- Protocol of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950, 1952
- Charter of Fundamental Rights of the EU 2000
149
What is the first school of thoughts on the relationship between IPR and human rights?
The first school maintains human rights in IPR perceived as to protect the individual economic interest and in the fundamental conflict since the long strong legal protection of the IPR is considered to be incompatible with human rights obligations in order to overcome intention between those two, it is suggested that human rights always prevail the IPR.
150
What is the second school of thoughts on the relationship between IPR and human rights?
The second school holds that human rights and IPRs pursue the same aim, meaning, defining the appropriate scope of the private monopoly power to create incentives for authors and inventors and on the order at the same time ensuring the adequate access of the intellectual products to the public.
151
What important reference can be found in the solemn declaration by the Bern Convention Member States in 1986.?
Copyright is based on human rights and justice.
152
What are the categories of IPR?
- copyright pertaining to literary, artistic and scientific work, also for a later flight system accorded to performing arts, producers of monograms and broadcasting organizations, also known as neighboring rights.
- patents granted for inventions, industrial designs, utility models, new plant varieties, geographical indications.
153
Is the number of IPR final?
No.
154
What do trademarks have to be?
Distinctive in the sense that they identify and distinguish goods or services originating from one commercial source from originating from on the other.
155
What is prohibited under the Bern Convention?
To make copyright protection dependent on formalities.
156
How can the boundary lines of the intangible property to be determined?
The law should grant property rights over intangibles.
157
Who opposes stronger intellectual property protection?
Representatives of the developing world consumers, end users of IP, defenders of free speech, classical liberal economic theorists, competition lawyers, post modern theorists, some religious groups, ecologists.
