Copyrights Under Copyrights Under BerneBerne

© 2006 David W. Opderbeck

Berne Convention -- Berne Convention -- HistoryHistory 1858, 1861, 1877 -- Congress of 1858, 1861, 1877 -- Congress of

Authors and Artists, Brussels – Authors and Artists, Brussels – international meetings urging international meetings urging governments to pass international governments to pass international protection for authorsprotection for authors

1878 – the International Association 1878 – the International Association presided by Victor Hugo – call for a presided by Victor Hugo – call for a Union to protect intellectual propertyUnion to protect intellectual property– 1883 meeting in Berne, Switzerland – draft 1883 meeting in Berne, Switzerland – draft

treaty produced; Swiss government invited treaty produced; Swiss government invited interested nations to participateinterested nations to participate

Berne Convention -- Berne Convention -- HistoryHistory 1886 – Berne Convention meeting -- Convention 1886 – Berne Convention meeting -- Convention

agreed to; still forms the backbone of the current agreed to; still forms the backbone of the current Berne ConventionBerne Convention

Fundamental principle is national treatment; also Fundamental principle is national treatment; also some minimum standardssome minimum standards

Moral rights requirements – rights of authors to Moral rights requirements – rights of authors to authorize public representation of dramatic works and authorize public representation of dramatic works and public performance of musical works if author’s local public performance of musical works if author’s local country provided for such rightscountry provided for such rights

Revised in 1948 to enact a life-plus-fifty year term as Revised in 1948 to enact a life-plus-fifty year term as minimum requirementminimum requirement

Revised in 1928 to require right of public performance Revised in 1928 to require right of public performance and representation as a minimum rightand representation as a minimum right

Berne Convention – Key Berne Convention – Key Substantive Provisions – Substantive Provisions – Subject Matter, Subject Matter, Formalities, TermFormalities, Term

Article 2 – Subject MatterArticle 2 – Subject Matter Article 2bis – Article 2bis – Gov’tGov’t Documents Documents Article 3 – the Geographical CriterionArticle 3 – the Geographical Criterion Article 4 – the Geographical Criterion and filmArticle 4 – the Geographical Criterion and film

and architecture and architecture Article 5 – National Treatment; abolishment oArticle 5 – National Treatment; abolishment o

f formalitiesf formalities Article 6bis – Moral RightsArticle 6bis – Moral Rights Article 7 – TermArticle 7 – Term Article 7bis – Term and Joint AuthorshipArticle 7bis – Term and Joint Authorship

Berne Convention – Key Berne Convention – Key Provisions – Scope of Provisions – Scope of ProtectionProtection Article 8 – Right of TranslationArticle 8 – Right of Translation Article 9 – Right of ReproductionArticle 9 – Right of Reproduction Article 10 – Fair UseArticle 10 – Fair Use Article 10bis – News ReportingArticle 10bis – News Reporting Article 11 – Public PerformanceArticle 11 – Public Performance Article 11bis – Broadcast RightsArticle 11bis – Broadcast Rights Article 11ter – Public RecitationArticle 11ter – Public Recitation Article 12 – AdaptationArticle 12 – Adaptation Article 13 – Sound RecordingsArticle 13 – Sound Recordings Article 14 – Cinematographic WorksArticle 14 – Cinematographic Works Article 14bis – Limitations on Cinematographic WorksArticle 14bis – Limitations on Cinematographic Works

Berne Convention – Berne Convention – U.S. ResistanceU.S. Resistance U.S. for many years objected to Article U.S. for many years objected to Article

6bis (moral rights) and Article 5(2) 6bis (moral rights) and Article 5(2) (formalities). U.S. did not join Berne until (formalities). U.S. did not join Berne until 1989, instead joined Universal Copyright 1989, instead joined Universal Copyright Convention, which allowed for formalities. Convention, which allowed for formalities.

Presently the U.S. only protects moral Presently the U.S. only protects moral rights in a limited way for works of visual rights in a limited way for works of visual art (defined as limited edition signed and art (defined as limited edition signed and numbered works) and even then excludes numbered works) and even then excludes moral rights for works for hire. moral rights for works for hire.

Copyrights Under Copyrights Under Berne – Moral RightsBerne – Moral Rights Moral Rights under Berne include:Moral Rights under Berne include:

– Patrimony: accurately identify the creator of the Patrimony: accurately identify the creator of the workwork

– Integration: the work may not be distorted, Integration: the work may not be distorted, mutilated or modified, and no “derogatory” action mutilated or modified, and no “derogatory” action may be taken against the workmay be taken against the work

Other moral rights may include:Other moral rights may include:– Withdrawal: artist may withdraw the work from Withdrawal: artist may withdraw the work from

public display or distribution (though artist may public display or distribution (though artist may have to pay economic damages to exercise this have to pay economic damages to exercise this right)right)

– First publication: artist may control the first First publication: artist may control the first publication of the workpublication of the work

Copyrights Under Berne – Copyrights Under Berne – Moral Rights – Barcarola Moral Rights – Barcarola CaseCase Facts:Facts:

– Part of music from opera used in TV Part of music from opera used in TV commercial (music: commercial (music: http://www.youtube.com/watch?http://www.youtube.com/watch?v=dKBCP5zECmU)v=dKBCP5zECmU)

Issues: is use of operatic music in TV Issues: is use of operatic music in TV commercial per se “prejudicial of the commercial per se “prejudicial of the honor and reputation of the author”honor and reputation of the author”

Holding: violation of moral right Holding: violation of moral right cannot be considered in the abstract. cannot be considered in the abstract. Commercials may have their own Commercials may have their own artistic integrity.artistic integrity.

Copyrights Under Berne – Copyrights Under Berne – Moral Rights – Plymouth Moral Rights – Plymouth CaseCase Facts:Facts:

– P produced brochures for city council P produced brochures for city council promoting the “dome” (now a defunct promoting the “dome” (now a defunct attraction)attraction)

– D city council subsequently completed a D city council subsequently completed a brochure using P’s visuals (drawings)brochure using P’s visuals (drawings)

– Visuals were altered to suit the brochures: Visuals were altered to suit the brochures: extraneous background elided, color extraneous background elided, color alterations (pre-Photoshop: done with alterations (pre-Photoshop: done with scissors and paint)scissors and paint)

Issue: Issue: – Was D’s use “derogatory” of P’s work and Was D’s use “derogatory” of P’s work and

thus an infringement of moral rightsthus an infringement of moral rights

Copyrights Under Berne – Copyrights Under Berne – Moral Rights – Plymouth Moral Rights – Plymouth CaseCase Analysis: Moral RightsAnalysis: Moral Rights

– Moral rights cannot be waived under U.K. statute Moral rights cannot be waived under U.K. statute except in written instrumentexcept in written instrument

– ““Derogatory” use means “the treatment accorded Derogatory” use means “the treatment accorded to the work is either a distortion or a mutilation to the work is either a distortion or a mutilation that prejudices [the artist’s] honor or reputation as that prejudices [the artist’s] honor or reputation as an artist.”an artist.”

““It is not sufficient that the author himself is It is not sufficient that the author himself is aggrieved by what has occurred.”aggrieved by what has occurred.”

Holding: the color variations and cropping Holding: the color variations and cropping are typical in brochure work and do not are typical in brochure work and do not demean the honor or reputation of the artist. demean the honor or reputation of the artist. – Not analogous to colorizing a black and white film, Not analogous to colorizing a black and white film,

which a French court had held to be a violation of which a French court had held to be a violation of moral rightsmoral rights

Copyrights Under Berne – Copyrights Under Berne – Moral Rights – How Not Moral Rights – How Not to be Seento be Seen http://www.youtube.com/watch?http://www.youtube.com/watch?

v=zekiZYSVdeQv=zekiZYSVdeQ http://www.youtube.com/watch?http://www.youtube.com/watch?

v=UvmU2IUH-bkv=UvmU2IUH-bk

Copyrights Under Berne – Who is Copyrights Under Berne – Who is an Authoran Author

No fixed definition of an “author” – left to national lawNo fixed definition of an “author” – left to national lawU.S. – the creator of a work is the “author,” except if the U.S. – the creator of a work is the “author,” except if the work is a “work for hire”work is a “work for hire”UK – Similar rule to U.S.UK – Similar rule to U.S.France – Employer has an economic right in the work, France – Employer has an economic right in the work, but employee retains non-transferable moral rightsbut employee retains non-transferable moral rightsGermany – Employer gains neither economic nor moral Germany – Employer gains neither economic nor moral rights; may gain economic rights only through contractrights; may gain economic rights only through contract

Copyrights Under Berne – Copyrights Under Berne – Authorship – Plymouth Authorship – Plymouth CaseCase Issue: Issue:

– Did P give up copyright generally by taking Did P give up copyright generally by taking on the commission, or did P only license the on the commission, or did P only license the use of his drawings on the specific use of his drawings on the specific brochures P produced?brochures P produced?

Analysis:Analysis:– U.K. statute: “where a literary, dramatic, U.K. statute: “where a literary, dramatic,

musical or artistic work is made by an musical or artistic work is made by an employee in the course of his employment, employee in the course of his employment, his employer is the first owner of any his employer is the first owner of any copyright in the work subject to any copyright in the work subject to any agreement to the contrary.”agreement to the contrary.”

Copyrights Under Berne – Copyrights Under Berne – Authorship – Plymouth Authorship – Plymouth CaseCase Analysis:Analysis:

– U.K. statute: “where a person U.K. statute: “where a person commissions the taking of a photograph, commissions the taking of a photograph, or the painting or drawing of a portrait, or or the painting or drawing of a portrait, or the making of an engraving, and pays or the making of an engraving, and pays or agrees to pay for it in money or money’s agrees to pay for it in money or money’s worth, and the work is made in pursuance worth, and the work is made in pursuance of that commission, the person who so of that commission, the person who so commissioned the work shall be entitled to commissioned the work shall be entitled to any copyright subsisting therein….”any copyright subsisting therein….”

Copyrights Under Berne – Copyrights Under Berne – Authorship – Plymouth Authorship – Plymouth CaseCase Holding:Holding:

– The scope of the “commission” here The scope of the “commission” here entailed a transfer or full copyright, entailed a transfer or full copyright, not merely a license to use the not merely a license to use the drawings as incorporated into the drawings as incorporated into the brochures originally produced by Pbrochures originally produced by P

– Even if the commission did not Even if the commission did not extend this far, D had an implied extend this far, D had an implied license to use the drawings in later license to use the drawings in later brochuresbrochures

Copyrights Under Berne – Who is Copyrights Under Berne – Who is an Author – an Author – ReidReid Case Case

Copyrights Under Berne – Who is Copyrights Under Berne – Who is an Author – an Author – ReidReid Case CaseIssue:Issue:

–Was the statue a work for hire under the Was the statue a work for hire under the “scope of employment” provision of the “scope of employment” provision of the definition of “work for hire” under U.S. lawdefinition of “work for hire” under U.S. law

AnalysisAnalysis–Where Congress uses terms with settled Where Congress uses terms with settled meanings look to common lawmeanings look to common law–Terms such as “employee” or Terms such as “employee” or “employment” derive from the common law “employment” derive from the common law of agencyof agency

Copyrights Under Berne – Who is Copyrights Under Berne – Who is an Author – an Author – ReidReid Case CaseAnalysisAnalysis

–under common law of agency, must determine the under common law of agency, must determine the hiring party’s right to control the manner and means hiring party’s right to control the manner and means by which the product is accomplished.by which the product is accomplished.–Restatement Restatement § 220(2) of Agency: § 220(2) of Agency: Factors include Factors include skill required; source of instrumentalities and tools; skill required; source of instrumentalities and tools; location of the work; duration of parties’ relationship; location of the work; duration of parties’ relationship; whether hiring party has right to assign additional whether hiring party has right to assign additional projects to the hired party; extent of hired party’s projects to the hired party; extent of hired party’s discretion over when and how long to work; method discretion over when and how long to work; method of payment; hired party’s role in hiring and paying of payment; hired party’s role in hiring and paying assistants; whether the work is part of the regular assistants; whether the work is part of the regular business of the hiring party; whether the hiring party business of the hiring party; whether the hiring party is in business; provision of employee benefits; tax is in business; provision of employee benefits; tax treatment of the hired partytreatment of the hired party

Copyrights Under Berne – Who is Copyrights Under Berne – Who is an Author – an Author – ReidReid Case CaseAnalysisAnalysis

–Here, Reid was a skilled sculptor, supplied his own Here, Reid was a skilled sculptor, supplied his own tools, worked in his own studio making daily tools, worked in his own studio making daily supervision impossible, was retained for less than two supervision impossible, was retained for less than two months, was not further bound to CCNV, had freedom months, was not further bound to CCNV, had freedom as to when and where to work, had discretion over as to when and where to work, had discretion over which assistants to hire, and CCNV did not pay which assistants to hire, and CCNV did not pay payroll, Social Security, insurance or workers’ comp.payroll, Social Security, insurance or workers’ comp.–Therefore, the sculpture was not a work for hire and Therefore, the sculpture was not a work for hire and Reid owns the copyright.Reid owns the copyright.

Copyrights Under Berne – Fair Copyrights Under Berne – Fair UseUseAnalysisAnalysis

–Recall Berne Article 10(2): “It shall be a matter for Recall Berne Article 10(2): “It shall be a matter for legislation in the countries of the Union, and for special legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair teaching, provided such utilization is compatible with fair practice.”practice.”–And 10bis(2): “It shall also be a matter for legislation in And 10bis(2): “It shall also be a matter for legislation in the countries of the Union to determine the conditions the countries of the Union to determine the conditions under which, for the purpose of reporting current events by under which, for the purpose of reporting current events by means of photography, cinematography, broadcasting or means of photography, cinematography, broadcasting or communication to the public by wire, literary or artistic communication to the public by wire, literary or artistic works seen or heard in the course of the event may, to the works seen or heard in the course of the event may, to the extent justified by the informatory purpose, be reproduced extent justified by the informatory purpose, be reproduced and made available to the public.and made available to the public.””

Copyrights Under Berne – Copyrights Under Berne – Fair Use – Fair Use – KCALKCAL Case Case

Background: Background:

http://www.youtube.com/watch?http://www.youtube.com/watch?v=2Pbyi0JwNugv=2Pbyi0JwNughttp://en.wikipedia.org/wiki/http://en.wikipedia.org/wiki/Reginald_Oliver_DennyReginald_Oliver_Denny

AnalysisAnalysis–Purpose and character of use – KCAL used the video Purpose and character of use – KCAL used the video as part of a news story, but had been refused a as part of a news story, but had been refused a license, and gave no attribution to LANS license, and gave no attribution to LANS

KCAL could have paid for its own helicopter and crew, KCAL could have paid for its own helicopter and crew, but instead chose to “rid[e] on LANS’ … coattails.”but instead chose to “rid[e] on LANS’ … coattails.”

–Nature of the copyrighted work -- Informational / Nature of the copyrighted work -- Informational / news, and previously published – favors KCALnews, and previously published – favors KCAL–Amount and substantiality of portion used – small Amount and substantiality of portion used – small amount, but qualitatively substantial – weighs against amount, but qualitatively substantial – weighs against KCALKCAL–Effect on market – didn’t destroy market for first Effect on market – didn’t destroy market for first publication, but did potentially affect market for publication, but did potentially affect market for licenseslicenses–Conclusion: not clearly fair use (no summary Conclusion: not clearly fair use (no summary judgment)judgment)

Copyrights Under Berne – Copyrights Under Berne – Fair Use – Fair Use – KCALKCAL Case Case

Copyrights Under Berne – Copyrights Under Berne – Fair Use – Fair Use – BBCBBC Case Case

Copyrights Under Berne – Fair Copyrights Under Berne – Fair Use – Use – BBCBBC Case CaseAnalysisAnalysis

–Section 30 of British copyright Act: Section 30 of British copyright Act: ““Fair dealing . . . for the purpose of criticism or review . . . provided Fair dealing . . . for the purpose of criticism or review . . . provided that it is accompanied by a sufficient acknowledgement”that it is accompanied by a sufficient acknowledgement”““Fair dealing . . . for the purpose of reporting current events . . . Fair dealing . . . for the purpose of reporting current events . . . Provided that . . . It is accompanied by a sufficient acknowledgement”Provided that . . . It is accompanied by a sufficient acknowledgement”

–But “no acknowledgement is required in connection with the But “no acknowledgement is required in connection with the reporting of current events by means of a sound recording, film, reporting of current events by means of a sound recording, film, broadcast or cable programme.”broadcast or cable programme.”

““There is no longer an absolute monopoly to which a There is no longer an absolute monopoly to which a proprietor of broadcasting copyright is entitled. Parliament has proprietor of broadcasting copyright is entitled. Parliament has eroded that monopoly by permitting fair dealing with the eroded that monopoly by permitting fair dealing with the copyright work for the purpose of reporting current events. copyright work for the purpose of reporting current events. There is no justification for limiting the statutory defense so as There is no justification for limiting the statutory defense so as to apply only to reporting current events in a general news to apply only to reporting current events in a general news programme”programme”““If anything, the BSB news reports, with their use of the If anything, the BSB news reports, with their use of the excerpts, would have been likely … to have whetted the excerpts, would have been likely … to have whetted the appetite of the football enthusiast.”appetite of the football enthusiast.”Conclusion: not “in any sense a borderline case” – clearly fair Conclusion: not “in any sense a borderline case” – clearly fair dealingdealing