An Analysis On International Copyright Legislation: By : Malay Chakrapani & Madhuripu Raj
An Analysis On International
Copyright Legislation:
Authored By : Malay Chakrapani
& Madhuripu Raj
Course: B.A.LL.B (Hons.)
BATCH-(2018-2023)
College: Law College Dehradun
Institutional Affiliation: Uttaranchal University
Contact Number: 7320854372 & 7091580428
All artists are protected by
copyright… and we should be the first to respect copyright.
- Billy Cannon
Abstract:
The copyright is a defence available
to the original creator of a work like an artistic work, a musical work, etc.
when an author fixes the work in a tangible form. The laws relating to
copyright can be different in various countries. The article mainly focuses on
the laws relating to copyright from an international perspective, how the law
of copyright has emerged and grown rapidly in recent times, and also talks
about the various conventions regarding copyright. The various treaties
regarding copyright show the emergence of the law and the need for copyright
legislation. The development of the nation also depends upon the work in the
fields of science, literature, music, art, etc. If the different states started
copying or making some amendments to the original work done by one state, then
it is a violation of the rights of that person as well as the state, so it is
necessary to implement the international copyright legislation that protects
the rights regarding the original work. The original work must have
originality, creativity, and fixation. After the copyright, the rights
available to the copyright holder are reproducing the work, creating derivative
works, performing the work publicly, publicly distributing the work, publicly
displaying the work, etc. All these rights are derived from various conventions
and case laws.
Keyword: Copyrights, convention, procedures, International,
Owners, Nations, Authors, laws, valid, eligible, producers, creative works,
literary, artistic, regulations, agreements, promote, distribute,
implementation, protection, principles, resolution, mechanism, sanctions,
violations.
INTRODUCTION:
Copyright is a type of legal defence
provided to content producers by the granting of particular rights to works
that are eligible for protection. Copyright law can vary greatly from country
to country, and there is no such thing as an international copyright that will
automatically protect the work of an individual author worldwide. There is no
international copyright law. Every nation has domestic copyright rules that
govern its residents as well as the usage of foreign content when done so
within that nation. It enables authors, publishers, and content owners from
several nations to enjoy copyright protection in other nations as well as their
own. Every nation has specific copyright laws that control intellectual
property (such as copyright) in that nation. A nation's copyright regulations
only cover content produced and used there. This implies that an author's
copyright that is legitimate in the United States might not be recognised in
other nations. There may be various laws in other nations regarding what is
protected by copyright, who is the author of a copyright, the procedures you
must take to prove you are the author, and even how long copyright is valid.
INTERNATIONAL COPYRIGHT TREATIES:
Berne Convention
The Berne Convention, which addresses
the protection of works and the rights of their creators, was adopted in 1886
it is also known as Berne
Convention for the Protection of Literary and artistic works. It allows artists like writers, musicians,
poets, and painters to control how, by whom, and under what conditions their
works are used. It is based on three main principles and has a set of
regulations specifying the minimum level of protection to be provided, as well
as exceptional provisions available to developing nations that wish to employ
them. This was the first international copyright convention, and it was updated
several times in 1908 in Berlin, 1928 in Rome, 1948 in Brussels, 1967 in
Stockholm, and 1971 in Paris to address the various issues brought about by
technological advancements.[1]
It set in motion the idea of
creating a copyright the moment a work is "fixed," i.e., produced.
Registration is not required. It also makes it mandatory for countries to
recognise copyrights held by citizens of all other Convention members. The
countries to which this Convention applies form a union aimed at protecting the
rights of authors in their literary and artistic works.[2] The term "literary and artistic
works" refers to all works in the literary, scientific, and artistic
fields. Its mode of
expression can take various forms, such as books, pamphlets, and other
writings; lectures, addresses, sermons, and other works of the same kind; and
so on; dramatic or dramatic-musical works; dumb-show choreographic creations
and amusements; musical compositions with or without words; cinematographic
works in which works expressed through a process similar to cinematography are
incorporated; photographic works to which are incorporated creations expressed
by a process similar to photography; creations of applied art; illustrations,
maps, plans, drawing and sculptural works in connection with geography,
topography.[3] Music
adaptation and other modifications of a published or arty production are
safeguarded as artistic works in the original creation without loss of
copyright.[4]
The Convention shall protect encyclopaedias and anthologies which are regarded
intellectual creations by reason of the selection and arrangement of their
contents.[5]
All the signatory nations shall safeguard the creations referred to in the
Convention. The protection of the Convention is
accessible to citizens and residents of member countries and to development,
first published or simultaneously published in a country that is party to the
agreement of the Convention.17 the "country of origin" will be the
signatory country for a work published simultaneously both in the signatory
nation and in non-signatory nations. According to the Berne Convention,
copyright will exist in the Party countries for fifty years after the author's
death in all creations except photographic and cinematographic work. Party
nations, on the other hand, can provide longer terms at no cost. In the case of
a photographic work, the convention establishes copyright for a period of twenty-five
years from the year it was first created. The Berne Convention guarantees
copyright for cinematographic work for fifty years after it was first shown or,
if not shown within fifty years, for fifty years after it was first created.
The treaty allows parties to provide their own terms of protection.
Buenos Aires Convention
The Buenos Aires Convention is a
treaty signed by most countries in North and South America that allows for the
protection of all creative works as long as they include a notice stating that
the creator claims copyright on them. The Buenos Aires Convention also
established the "short term rule," which stated that the length of
the copyright term for a work in a country was whichever was shorter: the
length of the term in the source country or the length of the term in the
country that protected the work.
Universal Copyright Convention (UCC)
The
Universal Copyright Convention (UCC) is an international instrument which was
drawn up in 1952 under the auspices of UNESCO (United Nations Educational, Scientific and Cultural
Organization) which had consulted copyright experts from different countries
for several years.
The Main Features of the
conventions are:
(1) No signatory
nation should give its domestic authors preferential copyright treatment over
authors from other signatory nations, though no minimum protection is specified
for either domestic or foreign authors.
(2) All copies of the work must bear a
copyright notice that includes a mark, the name of the copyright owner, and the
year of first publication.
(3) The fixed period
of copyright shall be the author's lifetime and twenty-five years thereafter.
However, for photographic and applied art works, the term is ten years.
(4) All signatory
countries are required to grant an exclusive right of translation for a
seven-year period, subject to a compulsory licence under certain conditions for
the remainder of the copyright term.
(5) The Universal Copyright Convention is not opposed to
any other multi-sided or two-sided agreements or arrangements between two or
more parties. If there are any inconsistencies between the UCC and the rules of
some multifaceted or two-sided treaties, the UCC will take precedence. In the
event of a conflict between the UCC and the Berne Convention, the Berne
Convention will take precedence.
At the Paris Conference, the UCC and
the Berne Convention were revised to address the unique needs of developing
countries, particularly in the areas of translations, reproductions, public
events, and broadcasting. Such broad rules were supposed to apply only to
teaching, science, and scholarship.
Rome Convention
Technology had advanced significantly
since the Berne Convention was signed in 1961. Some innovations, such as tape
recorders, made it easier to duplicate previously recorded works. The Berne Convention did not assist
copyright holders in defending against emerging technologies because it only
applied to printed works. On October 26, 1961, WIPO members signed the
Convention for the Protection of Performers and Producers of Phonograms
Organizations to address the perceived need for strong legislative protection
for recorded works. It
extended copyright protection from the author of "Work" to the
creators and producers of particular physical embodiments of the work. These
"fixations" include media like CDs, DVDs, and audiocassettes. The
Rome Convention mandates that signatory nations protect the creations of
musicians, phonograph manufacturers, and media companies. However, it permits member countries
to create exceptions to that protection for example, for unauthorised uses of a
recording for the purpose of teaching or scientific research. The Rome Convention has been ratified
by 91 nations. The Rome Convention is only open to nations that have already
ratified the Berne Convention or the Universal Copyright Convention. Joining
the Rome Convention has an unknown impact on domestic law, like many
international treaties. Countries that join the Convention may "reserve"
their rights under certain treaty provisions. In practise, this has allowed
countries to avoid applying rules that would necessitate significant changes to
their national laws.
Agreement on Trade Related Aspects
of Intellectual Property Rights (TRIPS)
An international
agreement known as TRIPS was negotiated and signed in 1994 and is managed by
the WTO. TRIPS lays out minimum requirements for numerous types of IP
protection, including copyright, in WTO members' nations. The Berne Convention
and TRIPS' substantive provisions are not significantly different. The main
distinction is that TRIPS mandates that copyright protection be given to
computer programs and data compilations by member nations. The Berne Convention
mandates the preservation of authors' moral rights, whereas TRIPS does not. The
TRIPS regulations remedies are its most significant innovations. TRIPS, unlike
the Berne Convention, requires member countries to provide effective sanctions
for copyright violations. It creates a dispute resolution mechanism by which
WTO member countries can force the other countries members to comply with their
treaty obligations. It is sometimes said that, unlike the Berne convention,
TRIPS allows for some flexibility in its implementation. This flexibility is intended to allow
developing countries to balance the incorporation of general TRIPS principles
with development concerns.
WIPO Performances and Phonograms Treaty (WPPT)
The member nations of
WIPO signed the WIPO Performances and Phonograms Treaty (WPPT) on December 20,
1996. The WPPT strengthens performers' and phonogram producers' intellectual
property rights. Vinyl records, tapes, CDs, digital audiotapes, MP3s, and other
sound recording storage devices are all considered phonograms. The WPPT offers
performer’s financial rights over their phono grammatically fixed performances.
Additionally, it gives writers moral control over these acts. The creators of
phonograms, however, are only given economic rights. 86 nations are the parties
of the WPPT.
WIPO Copyright Treaty (WCT)
The
digital age has transformed how authors promote, distribute, and reproduce
their works. Books, papers, photographs, and sound recordings are frequently
saved in electronic formats, distributed online, and compiled in databases.
Unfortunately,
the same technologies that make storage and distribution more efficient have
also made it easier to widely copyrighted material. Because governments in
developed countries were concerned about the implications of these new
technologies, they pushed for and eventually obtained two treaties: the WIPO
Copyright Treaty and the WIPO Performance and Phonograms Treaty. A unique
agreement under the Berne Convention, the WIPO Copyright Treaty (WCT), went
into effect on March 6, 2002. It is the first international treaty requiring
countries to grant copyright protection to databases and computer programmes
(compilations of data or other material).
Global Effects of Copyright Legislations:
Although it has been left
to the tenets of EU law to meet this requirement, the current government has
recognised that rules relating to copyright, along with all intellectual
property rights, need to be modernised to remain applicable as technology changes.
The need to resolve trademark and copyright infringement issues has grown as
cyberspace has encroached on almost every aspect of modern life. The UK Patent
Office is in charge of this, whereas the Geneva-based WIPO Arbitration and
Mediation Centre has had authority over international infringements since 1994.
Following the 1974 publication of The Mathis Report on British Trade Mark Law
and Practice, the Trade Marks Act of 1994 established special legislation
pertaining to EC Measures in Regard to Counterfeit Goods. The Trade Marks
(Proof of Use, etc.) Regulations of 2004, Section 6 of the Copyright, etc., and
Trade Marks (Offenses and Enforcement) Act of 2002, and Part IV of the Patents
and Trade Marks (World Trade Organization) Regulations of 1999 are all in
compliance with the most recent EC Directives as part of their e-Europe 2005
Action Initiative. A significant issue with the internet is that, in addition
to crossing boundaries, it violates people's privacy. These cyberspace
violations are a worldwide issue, thus several nations need to have appropriate
Internet legislation as well as other laws linked to developing technology.
Although space restrictions prevent more than a passing mention, it must be
noted that the country of origin rule is an important consideration. Although
China has strict privacy laws and expanding internet legislation as part of the
People's Republic's efforts to carve out a role for itself in the global
economy, space constraints also prevent individual nations from discussing the
expanding cyber law. In the US, there is still a conflict between free speech
and free use, as defined by the First Amendment, and the fundamentals of
copyright law. A "collective licencing organisation like ASCAP" has
been suggested to distribute compensation to copyright owners in accordance
with electronic transmission. Laws covering academic use that are comparable to
those in the UK are one option, while adding new terms to current statutes to
change liability is another. The First Amendment continues to be a defence in
copyright cases that are currently in court, which the courts have been
interpreting as "fair use." As a result, innocent copyright use is
being misunderstood and excluded from routine administrative tasks like
photocopying a single hire-purchase document or something similar. Congress
passed a particularly onerous revision to the US copyright laws in 1998. Due to
this evidence regarding online copyright liability and the WIPO Copyright
Treaties Implementation, it is now illegal to "circumvent copyright
protection systems, fabricate, or modify copyright management
information," and there are fines of up to $1 million associated with
doing so. As a result, the "ultimate goal of copyright"—to promote
knowledge and discussion—would effectively be eliminated. In addition, access
to a great deal of information that had previously been in the public domain
would suddenly be prohibited, negating any acceptance of the "free
use" clause. According to the United States Constitution, "the
Congress shall have the power... to secure for specified periods of time to
authors and inventors the exclusive right to their particular writings and
discoveries," though this seems to be in question in the case of the
original author of the "Winnie the Pooh" book series, which was later
popularised by the Disney Corporation. In addition to ruling in favour of the
Disney Corporation's claim against the estate of AA Milne in March 2004, Judge
Charles McCoy Jnr added the overriding condition that it was "with prejudice,"
thereby barring this action from being continued in its current form. This was
partially caused by how long copyright protection lasted after an author's
death. Despite this, all forms of copyright are explicitly described in Section
102(a) of the US Copyright Act: original works of authorship preserved in a
tangible form. Although a 1995 amendment allowed sound recording studios to
"perform a copyrighted work publicly by means of a digital audio
transmission," which included "non-subscription radio broadcasts,"
it is interesting to note that, if taken to extremes, owners' copyright laws
would be violated when a radio was played in a public place or certain items of
interest were emailed to another. Additionally, it was necessary to provide a significant
exemption in this statute to shield some computer maintenance and repair
activities and boat hull designs from prosecution when performing their
professions. However, notwithstanding the issues with copyright laws in the
USA, the EU wants firms to see ENISA's role as enabling the most advanced
technological infrastructure to reduce their susceptibility to surveillance
interception, whether innocently or with malicious purpose. Risk management
involvement and agreement to uphold EU Directive-compliant practises across the
global supply chain are two ways to ensure business confidence. As a result of
the amorphous nature of electronic technology and its unrestrained contribution
to too many forms of cybercrime, which continue to pose a threat to all sectors
regardless of boundaries, increased cooperation between Member States and, in
fact, the entire world, should lessen potential security threats. The expansion
of knowledge and the freedom of speech in reaction to the internet's
exponential growth have had significant worldwide benefits, but they have also
created a possible security danger to everyone's right to privacy and decency.
With regard to both defamation and obscenity, the EU's "Country of
Origin" rule, which was introduced in 2002, aims to address the issue of
the cross-border internet and overlapping nations' conflicting content
regulation rules. This Directive has made an effort to offer some legal
guidelines for member states' guidance in the absence of more effective
measures, at least until such time as a more effective method can be created.
International
Copyright Issues:
Many
copyright issues, even those that appear to be of national concern, are
actually of global concern. Understanding your own country's copyright rules is
important, but it's also important to understand how copyright treaties and
global copyright law work when publishing or using anything online. Copyright,
like patents and trademarks, is a type of intellectual property.
When does the copyright issue arise?
Many issues that were
once domestic copyright issues have become international copyright issues as a
result of the internet and the way we use, share, and publish content in our
digital environment. A global copyright issue can arise in
a variety of circumstances. Many issues that were once domestic copyright
issues have become international copyright issues as a result of the internet
and the way we use, share, and publish content in our digital environment. A
global copyright issue arises in a variety of situations.
·
An
employee accesses anyone licensed databases while traveling out of the country
·
While
negotiating a digital license with a vendor/publisher/content owner who's based
outside the country
·
Joining
a journal club allows librarians from multiple countries to share articles (a
journal club involves posting articles to a private online space).
·
Any
content on a website or intranet that will be accessed outside your own country
·
Any
photograph on Facebook page and someone
accesses that photograph from another country
·
Any
organization has locations or employees in more than one country
·
Teaching
an online course with students located in more than one country
·
Using the content from outside your own country
·
Two
colleagues use SharePoint to share research papers written by authors from
various countries.
International Copyright Law and the Berne Copyright
Treaty:
The term "copyright" literally means "right to copy .This
article covers the fundamentals of international copyright law in a broad and
general sense. Refer to your country's copyright laws for specific information
on what rights and privileges exist under your domestic copyright laws. If your country is a member of the Berne copyright legislation, you will almost certainly have
at least the minimum level of protection
as per the rules incorporated in the Berne convention,
and any exceptions to copyright law will be subject to the "exceptions test" in Berne.
v Automatic Copyright Protection:
In all Berne member countries
worldwide, copyright protection is automatic with the production of a work in a
fixed form (i.e. once the work has taken physical form).
This shows that registering with or paying a government copyright office is not
necessary for copyright protection. However, there are government channels for
voluntary registration where copyright owners can do so and gain access to a
number of benefits, particularly when their works are being used unlawfully.
Similar to the Berne Convention, none of its signatory nations are required to
use the copyright emblem. However, using the copyright symbol is always useful
for reminding the audience that a work is copyright protected.
v Copyright Duration:
The copyright statute in each nation
establishes the term of the copyright. In Canada, for example, copyright is frequently
granted for life plus fifty years (50 years after the author's death). It has a
life expectancy of 70 years in the United States and the European Union. These
general guidelines for copyright duration may differ for particular works and
situations. By the first of January 2023, Canada's copyright duration will be
changed to life plus seventy. When a term of copyright expires, it enters the
"public domain," which means that anyone can freely use, alter, and
reproduce it.
Case Laws:
1.
Donoghue vs. Allied Newspaper, Ltd
According to Justice
Farwell, there is no such thing as copyright if the idea, no matter how smart
or cunning, is only expressed as an idea without being transformed into words
or another form of expression like a play or a picture.[6]
You don't have any rights to copyright until something is reduced to writing or
another tangible form, and copyright only applies to the specific form of
language or, in the case of a picture, the specific form of the image by which
the information or idea is communicated to those who are intended to read it or
view it.
2. Rogers vs. Koons
An image of a couple
holding a row of puppies was taken by photographer Art Rogers, who later sold
the image for use in greeting cards and other items. Internationally known
artist Jeff Koon’s saw Rogers shot while working on an exhibit about the
banality of daily objects and used it to inspire a group of statues. Koon’s
made a substantial profit when he sold several of these constructions. Rogers
filed a copyright lawsuit against Koon’s after spotting the copy. In response,
Koon’s asserted fair use through parody.
Judgment
The court observed that
there was no difference between the two images and said that a “typical
person" would be able to identify the copy. Koon’s arguments were
rejected, and Koons was forced to pay a monetary settlement to Rogers.[7]
3.
The Associated Press vs. Fairey
During President Obama's first
presidential campaign in 2008, Shephard Fairey, a well-known street artist,
created the Hope poster. The design quickly became associated with Obama's
campaign. The Associated Press revealed the photograph on which Fairey
allegedly based the design in January 2009 as one shot by AP freelancer Mannie
Garcia, with the AP demanding compensation for its use in Fairey's work. Fairey
responded with a "fair use" defence, claiming that his work did not
diminish the value of the original photograph.
Judgment
In January 2011, the artist and the AP press reached a private settlement, which include a split of the work's profits.[8]
4.
Express Newspapers plc. Vs. Liverpool
Daily Post and Echo plc.
Random numbers selected
by computers for a newspaper competition called ‘Millionaire of the Month’ were
held to be protected by copyright. The court rejected the argument that as
there was no human author and therefore the lists of numbers drawn by the
computer could not be protected copyright. The court held that human expertise
in computer derived works could be found to reside in the programs which
produced the lists of random numbers.[9]
5.
Entertainment Network (India) Ltd. V.
Super Cassette Industries Ltd.
The Supreme Court
observed that copyright creates monopoly in the favor of the author. Copyright
also creates a monopoly in the favor of the copyright society. What requires
protection is unlawful reproduction of the authors work by others. It is the
long period which encourages the authors create works of literature, music and
art. [10]
CONCLUSION:
There are various international
conventions on copyright that have been discussed here; these conventions show
the evolution of copyright law from an international perspective and also aid
in the adaptation of copyright laws in various nations; similarly, India has
adopted various rules from the international conventions, and the united states
has also adopted various rules from the various conventions. The emerging law
of the copyright has resulted from conventions held to discuss issues
concerning intellectual property rights.
References:
1.
Jyotika “Comparative Analysis of Copyright International Conventions” Pen
Acclaims Volume 10, May (2020).
2.
Law Teacher “An Analysis of International Copyright
Legislation” available at: https://www.lawteacher.net/free-law-essays/copyright-law/international-copyright-law.php?vref=1>
last visited on 20th December 2022).
3.
WIPO
Copyright Treaty, “Summary of the WIPO Copyright Treaty” available at: https://www.wipo.int/treaties/en/ip/wct/summary_wct.html last visited on 19th December
2022).
4.
Copyrights Laws “Introduction
to International Copyright Laws” available at: https://www.copyrightlaws.com/introduction-international-copyright-law/
last visited on 19th December 2022.
5.
William Fisher “The
International Framework of Copyright Law” available at: https://cyber.harvard.edu/people/tfisher/IP/International_Framework.pdf
last visited on 20th December 2022.
[1] Ahuja, V.K, Law of Copyright and
Neighbouring Rights: National and International Perspectives, Lexis Nexis, New
Delhi, at P.3, (2007).
[4] Supra note 2, Article 2(3).
[6] (1937) 3 Ch. D.
503
[7] 960 F.2d 301 (2d Cir. 1992)
[8] Fairey v. Associated Press, 09 Civ. 1123 (AKH) (S.D.N.Y. Aug. 2,
2010)
[9] (1985) 3 ALL ER 680
[10] AIR 2004 Delhi 326, 112 (2004) DLT
549