I – Introduction a – La nature des droits intellectuels
The principal provisions of national copyright laws
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- (b) duration of protection
- (c) Rights recognized
- (d) restrictions on the exercise of rights
- B. The problem of international piracy of works
- C. The protection of foreign works by national laws
- 1. Protection on the condition of reciprocity
3. The principal provisions of national copyright laws(a) Works ProtectedGenerally covered all literary/artistic productions. Much variation between nations, e.g. regarding whether or not oral performances that were not written down received protection. (b) duration of protectioncommon features: (1) protection for duration of author's life, (2) protection for some period thereafter, and (3) the succession of an author's rights to his/her heirs. Exceptions to this scheme existed, e.g.: certain countries granted 50 years of protection from the date of deposit. This decoupled the length of the author's life from the length of the protection given to the work. Some systems attempt to find middle ground by granting, e.g., a minimum of 40 years protection regardless of whether the author survived for that entire period. Once this expired, a second 40 year period followed, during which third parties could reproduce the work if they paid a fee to the author's beneficiaries. (this existed in UK and Italy, only addressed reproduction rights) (c) Rights recognizedthe basic rights granted are over public performance and reproduction of artistic works. Again, there was lots of variation. e.g: the matter of translation: requirements regarding the necessity of an author's consent to having work translated. Restrictions based on the language into which a work was translated: Scandinavian countries only protected works from being translated into similar dialects (ie Swedish, Danish and Norwegian) protection afforded by law sometimes depended on the nationality of the author and whether he/she was protected by a bilateral treaty. New technologies received uneven treatment (i.e. only the Swiss protected the paino roll) The definition of “reproduction” changed from place to place. A painting of a sculpture was a violation of the reproduction rights in some countries but not others. (d) restrictions on the exercise of rightsthe scope of exceptions to c/r protection varied, notably as to the use for criticism/ education. (e) formalitieslots of variation from place to place regarding what authors had to do to get protection. B. The problem of international piracy of worksArtistic works can be appreciated anywhere, regardless of whether they are protected or not. For many years the unauthorized reproduction or performance was the norm because countries usually only protected their own authors. People in neighbouring states could pirate very freely. Pirated copies were also exported. Historical arguments are the same as the ones used today in debates between developed and developing countries. Piracy disproportionately harmed countries with high artistic output. These countries start to push for protection internationally the USA refused to protect international works with c/r law. This ensured “affordable entertainment and enlightenment.” Countries harmed by absence of c/r argued that the work of their authors should be compensated. They also argued that this created a better incentive for artistic creativity. The term piracy exaggerates how bad the plight of authors actually was. prior to development of c/r law internationally, authors sometimes negotiated arrangements with publishers to receive remuneration In the USA, publishers agreed to not publish editions of works when they had entered into publishing agreements with the author (see para 1.23 on page 15 CP). It seems that they did so in return for exclusivity, which protected their investments in making copies of the work. This “courtesy copyright” was an imperfect substitute Authors sought still more protection. They obtained it in large measure prior to the Berne Convention because countries began to reconsider the IP rights. There were two main factors : first: the French philosophical conception of the droit d'auteur, which privileges an author's natural rights in what he/she produces. France even unilaterally extended the protection offered by this notion to non-nationals second: France was worried about the protection that its authors were receiving abroad, and thought that taking a strong position in favour of foreign authors would grease the wheels for agreements in favour of French authors (“pragmatic altruism”). other nations (eg the UK) started to see the benefit of securing protection for works of their national authors abroad. Nations which were free riding on creative works produced elsewhere eventually saw the advantages for their own authors to have protection abroad. C. The protection of foreign works by national lawsFrench law around the 1850s was generous, but it did not give foreign authors national treatment. It only allowed them to have the rights they possessed in their country of origin recognized in France. National treatment usually only followed after a treaty was signed. In most other European countries there was much less protection at this stage, and obtaining protection depended on factors such as the nationality of the author and the place of publication of the work. e.g.: a jurisdiction may have granted protection to a book written by a foreigner if it was published in that same jurisdiction 1. Protection on the condition of reciprocitymost states would protect works created in other jurisdictions if their own authors' works received benefit from c/r protection abroad. There is a quid pro quo. Clauses variously required: Material reciprocity: that there be substantially similar protection in boths countries before reciprocity would be practiced. Formal reciprocity: required that the works of foreign authors receive the same protection as the works of national authors. This was the basis for “national treatment” which is a key idea in the Berne Convention. Directory: pubdocs -> files -> intellectualandindustrialproperty files -> Chapter 1: Property as rights, not thing files -> Insurance Law – May 4 files -> Contractual Obligations – Prof. Helge Dedek Introduction 1 files -> Constitutional Limits on Criminal Law 1 files -> Antonio Iacovelli Winter 2005 Advanced Criminal Law files -> Private International Law – Prof. Walsh Summer 2005 intellectualandindustrialproperty -> Part I: conceptualizing and justifying ip space 3 files -> Part I – general 5 The Sources of Int’l Air Law 5 Q? How does customary law relate to int’l law? Download 0.55 Mb. Share with your friends:
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