I – Introduction a – La nature des droits intellectuels


D. Bilateral agreements concerning c/r



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D. Bilateral agreements concerning c/r

(1) Early bilateral agreements


  • Signed between German states and Prussia in late 1820s. Wanted to end discrimination against authors from each state.

  • Encountered the problems of national treatment: if (1) state A provides a lower level of protection than state B, then (2) the treaty is a windfall for authors from state A because they will benefit from the high level of protection in B, while (3) authors from B suffer from a relative lack of protection in A.

    • Treaties evolve to include undertakings by the parties to provide certain levels of protection

(2) The spread of bilateral agreements on c/r


  • Many, many treaties were signed in the next 60 years – there was a very marked proliferation.

(3) Content of bilateral agreements


  • Despite great variety amongst bilateral treaties, common features existed.

    1. stipulations as to what persons were protected under the treaty. Criteria included place of publication, nationality, and territoriality.

    2. Provisions about what works were protected, with different instruments offering differing levels of protection for literary works, dramatical performances, etc.

    3. The principle of national treatment, which concerned (at minimum) rights over reproduction and public performance.

    4. provisions addressing translation: Authors' rights to limit the translation of their work were usually quite limited. There may have been fear that foreign authors with rights to control translation would prohibit the creation thereof within a reasonable time or in sufficient quantities.

    5. Restrictions on reproduction rights: certain restrictions were put in place to allow for the creation of anthologies, encyclopedias, etc.

    6. Duration of protection: general approach was to grant rights to foreign authors for as long as they were entitled to protection in their home nation (application: ppe: national treatment).

    7. Internal policing powers: states reserved the right to censor. c/r was not a tool to promote freedom of speech. This provision existed invariably, was put into the Berne Convention.

    8. Formalities: there was variation regarding what authors had to do to gain protection abroad.

  • Prior to the Berne Convention, it was very difficult to ascertain the existence and extent of c/r protection in Europe because there was so much variety in the bilateral agreements put in place.

    • Many conventions (1) did not have determined durations and (2) contained most favoured nation clauses. Respectively, these caused uncertainty (1) as to the effectiveness of the convention and (2) as to the extent of the protection it afforded in light of subsequent bilateral agreements between the two nations and third parties. (ie: if states A and B have an agreement with a most favoured nation clause. States B and C enter into an agreement with terms that are more favorable to A. By virtue of the clause, B has changed its obligations towards A).

Most favoured nation clauses were inspired by commercial treaties relating to trade tariffs. Their logic may be ill-suited to c/r because artistic works don't impact competition in the same way that trade barriers do.




Frank Thadeusz: The Real Reason for Germany's Industrial Expansion?


  • According to German economic historian, Eckhard Höffner, Germany, unlike neighboring England and France, experienced an unparalleled explosion of knowledge in the 19th century. Around 14,000 new publications appeared in Germany in 1843, compared to only 1,000 new works annually in England at that time. Höffner believes this was due to copyright law, which was established early in Great Britain (1710) thus crippling the world of knowledge. Germany didn't bother with copyright for a long time. Prussia, then Germany's biggest state, introduced a copyright law in 1837, but Germany's continued division into small states meant that it was hardly possible to enforce the law throughout the empire.

  • Publishers in England exploited their monopoly. New discoveries were published in limited editions and sold at a high price as luxury goods. In Germany during the same period, publishers had plagiarizers who could reprint each new publication and sell it cheaply without fear of punishment. Successful publishers were the ones who devised a form of publication still common today: issuing fancy editions for their wealthy customers and low-priced paperbacks for the masses.

  • The prospect of a wide readership motivated German scientists to publish the results of their research. This led to rapid industrial expansion in Germany in the late 19th century. The market for scientific literature didn't collapse even as copyright law gradually became established in the 1840s. German publishers did, however, react to the new situation in a restrictive way reminiscent of their British colleagues, cranking up prices and doing away with the low-price market. Authors, now guaranteed the rights to their own works, were often annoyed by this development.


c – Les principaux systèmes colonisateurs : Droit d’auteur et common law

        1. Theberge v. Montreal Art Galleries (2002)

Jurisdiction

SCC

Facts

Theberge enters into a contract with Montreal Galleries to make paper copies and postcards of his painting. Painting is transferred to canvas, angering Theberge who works exclusively on paper. He sues the gallery for damages (windfall of their profits), wants production halted and wants a seizure on the remaining paintings on canvas so they cannot be sold.

Issues

Is there a copyright infringement here?

Holding

No.

Reasoning

(1) CML judges (Binnie):

Binnie starts with the Copyright Act- the only rights you have are the ones you have under the statute. CML says reproduction = new copies. There are no new copies here and thus, there is no infringement. Essentially, the only rights you have are the rights stated in the statute.
Galleries bought a property right, they are entitled to do whatever they want with it. By allowing Gauthier to stand, the Court would be importing a new moral right for artists to control the uses of their works after the first sale. In CML, the artist exhausts his economic rights by selling his art, and his moral rights give him no further entitlement to control what a physical owner may do with the work. Does not give ‘gaps’ to creator.
(2) Dissent (CVL judges- Gauthier)

Gauthier starts with the way in which the author created the work. Any subsequent change to that work is in fact a new production. A ‘droit d’auteur’ gives the gaps (what doesn’t fit into a specific category or hasn’t been stated in statute yet) to the creator.
Fixation on the medium- the work was produced for a second time by reproducing it on canvas. There is therefore a copyright infringement. Any re-creation of a work is in fact a reproduction.
Reproduction has qualitative aspects and not just quantitative aspects. The integrity of a work (moral right) must be respected by keeping it in the medium used by the artist.


d – La contre-révolution?

      1. Lessig, Free Culture, http://www.youtube.com/watch?v=JWR6eiiBhf8



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