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Copyright Guide

1) What is copyright?

COPYRIGHT WITHIN INTELLECTUAL PROPERTY

Intellectual Property protects different types of intellectual creations.

It is usually divided into literary and artistic property and industrial property.

Literary and artistic property has to do mainly with copyright.

Industrial property has to do mainly with trade mark law, designs and patent law.

Patent law protects new inventions, whereas trademark law protects signs used in commerce to distinguish the origin of goods or services.

Design law protects the aesthetic aspect of an article.

COPYRIGHT, A BRIEF OVERVIEW

By virtue of copyright, the author of an intellectual creation enjoys some rights that enable him to control the use of his work.

To find a balance between the rights of the creators and those of the public, an intellectual creation is only protected by copyright insofar as it meets some legal requirements. Furthermore, copyright protection is limited in time and by some exceptions.

2) What is protected by copyright?

PRINCIPLES

Copyright protects intellectual creations insofar they are original and expressed in a particular form.

Two conditions must therefore be distinguished: expression in a particular form and originality.

EXPRESSION IN A PARTICULAR FORM

Copyright does not protect ideas, only their expression in a particular creation.

This requirement enables the reconciliation of the interests of both creators and society, by preserving the free movement of ideas.

Examples:

  1. The idea to realise a guide explaining the main principles of copyright cannot be protected by copyright.

    The expression of this idea in the particular form of the guide you are now consulting can be protected by copyright.

  2. The idea of wrapping civil engineering structures is not protected by copyright.

    The reproduction on a postcard of the Paris Pont-Neuf wrapped by Christo requires the prior consent of the American artist.

    The wrapping of another civil engineering structure does not require Christo's consent since, in this latter case, only the idea of wrapping is re-used.

ORIGINALITY

Copyright protects works insofar as they are original.

A work is original if it is marked by the personality of its creator.

This supposes that the creator has played a decisive role in the determination of the form of the work.

There are no precise criteria to assess the originality of a creation.

In practice, one must analyse the creator’s role in the creation process.

If the form of the work is determined solely by external factors (technical requirements, instructions of a third party...),

it is not the expression from the creator's personality and therefore not original.

Courts are generally very favourable to creators and almost all works are considered original.

EXAMPLES

The combination of these protection requirements enables the scope of copyright to cover a very broad range of creations.

May be protected by copyright:

  • books;
  • press articles;
  • software (Directive 91/250/CEE);
  • databases (Directive 96/9/CEE);
  • music;
  • photographs;
  • web pages;
  • pictures;
  • sculptures;
  • multimedia works;

This list is non-exhaustive since new forms of expression are always created.

N.B.: concerning exploitation of copyright on the Internet, see the guide "Copyright and Internet".

3) What cannot be protected by copyright?

Some types of creations are not protected by copyright. Some creations do not meet copyright protection requirements:

  • ideas;
  • information as itself;
  • mathematical theories;
  • algorithms;
  • works which are not original;
Other creations can no longer enjoy copyright protection since their protection term has expired (in the EU, 70 years after the death of the author).

Finally, some creations are outside the scope of copyright. This is often the case for legal texts (law provisions) or court decisions.

4) What do I have to do to enjoy copyright protection?
 
No formality:

To enjoy copyright protection, no formality (registration...) is required. Copyright protection is granted from the sole fact of the creation of the work.

Practical difficulties:

Though the absence of formality makes copyright very flexible, it is a weakness in the event of dispute. If two people claim copyright protection on an identical work, how can the anteriority of one's creation be proven?

Usefulness of mentions enabling the identification of the author (like the "� Copyright Name of author" mention):

The COPYRIGHT mention is absolutely not mandatory to enjoy copyright protection. It is, however, very useful in the event of dispute since the use of the indication showing that the work is protected under copyright would avoid, at least, the infringer stating that he was unaware of this fact.

Usefulness of the registration of copyrighted works:


In the same way, although the registration of works is not mandatory, it constitutes presumption of rights ownership or even evidence (depending on the system), very helpful too in the event of dispute.

 5) What rights are granted to the author ?

Copyright grants two kinds of rights: economic rights and moral rights

These rights are limited by different exceptions.

ECONOMIC RIGHTS

Economic rights aim to enable the author to gain some revenue from the exploitation of his work.

The author has, among others, the exclusive right to reproduce and communicate his work to the public.

Reproduction rights allow the author to reproduce, in whole or in part, his work, on whatever medium and in any form. Any reproduction of a copyrighted work requires the prior consent of its author.

The right to communicate the work to the public covers any direct communication of the work to the public, without any material embodiment (concert, television, webcasting...). The prior consent of the author is also required.

In the EU and other systems, economic rights expire 70 years after the death of the author. Economic rights may be transferred.

Economic rights may be transferred.

MORAL RIGHTS

Moral rights aim to protect a creator's personality which is expressed through the work.

The scope of these rights varies from one country to another.

The author has a paternity right, which allows him to have his name on the work.

The most important moral right, from a practical point of view, is the integrity right which enables the author to refuse any modification to the work which would be prejudicial to his legitimate interests, his honour or reputation.

Moral rights do not have a harmonised term: in some countries (France, Poland, for instance), moral rights are perpetual, whereas in others, they expire at the same time as economic rights (e.g. German, Sweden).

Moral rights cannot be transferred. The author remains, therefore, owner of moral rights forever.

EXCEPTIONS

To find a balance between creators and users, copyright legislation includes exceptions to author's rights.

The list and scope of these exceptions vary from one country to another and the EC directive on copyright in the information society harmonises only partially the exceptions regime.

There are, for instance, exceptions allowing quotation, parody, some types of use of copyrighted works for teaching purposes, etc.

Whatever the national exception regime, the use of copyrighted works, authorised by virtue of an exception to the rights of the author, cannot conflict with a normal exploitation of the work or unreasonably prejudice the legitimate interests of the rightholder.

6) Who is the owner of a copyright?

A copyright is originally owned by the physical person who created the work.

Another person can become copyright owner if the creator transfers all or part of his rights. Only economic rights can be transferred. The creator remains owner of moral rights forever(after his death, moral rights are exercised by his heirs).

Two particular situations must be highlighted : creation by an employee and creation by several people.

WORK OF AN EMPLOYEE

Depending on the country, where a work is created by a person in the framework of his job, the copyright can either be owned by the creator (employee) if the employment contract does not provide any copyright transfer in favour of the employer (like in Belgium or France) or by the latter if the contract does not provide otherwise (like in Spain or UK).

The Directive 91/250/CEE, however, provides for an automatic transfer of economic rights in favour of employers concerning computer programs created by employees, unless otherwise provided by contract.

Moral rights cannot be transferred and employees therefore retain ownership.

For more information on this topic, see the guide on employees’ creations.

WORK OF SEVERAL CREATORS

When several people participate in the creation of a work, their rights vary according to their respective parts in the creation process.

INCIDENCE OF THIRD PARTY INSTRUCTIONS

People whose role consists only only in performing tasks directed by a third party's instructions cannot claim any copyright on the created work. Indeed, the form of the work depends only on the third party instructions.

WORK OF JOINT OWNERSHIP

When several people actively participate in the creation of a work, the copyright thereon will be shared between them (jointly-held rights).

Any decision related to the exploitation of the work of joint ownership requires the consent of all the authors. In the event of a disagreement between them, courts will decide.

If the contributions of the different authors can be identified from the common work, each author will be able to independently exploit his own contribution insofar as said exploitation does not prejudice the exploitation of the common work.

COLLECTIVE WORKS (L'OEUVRE COLLECTIVE)

In some countries (e.g. France, Italy, Luxembourg, Poland, Portugal, Spain), when various contributions to a common work are co-ordinated by a same person (possibly a legal person), the latter will own copyright on the common work gathering these contributions.

Ex.: a dictionary

7) Is it possible to use works created by a third party ?

PRINCIPLE

The use of a copyrighted work created by a third party requires his prior consent if the planned exploitation implies the use of all or part of the rights granted to the author.

For instance, the use of a photograph on web page requires reproductions of the photo and its communication to the public, two of the author’s main rights.

Without his prior consent, the author and/or the copyright owner can claim copyright infringement (and damages). Copyright infringement is also a criminal offence.

HOW?

To use a work made by a third party, you must identify the person from whom you need the consent and then determine which kind of authorisation is needed.

FROM WHOM DO YOU NEED AN AUTHORISATION?

1) IDENTIFY COPYRIGHT OWNER

You must identify the copyright owner for the work you intend to use.

If a mention identifying the author ("COPYRIGHT" notice, for instance) is attached to the work, you should contact the mentioned person. If this latter is not the creator, he only owns the economic rights to the work. You will therefore have to contact a second person, the author, who remains the owner of the moral rights.

In the absence of such a notice, information on the copyright owner or the author could be found at collecting societies.

If the copyright owner or the author cannot be found, the use of the work concerned will be very risky since it could later be disputed considering the absence of prior consent.

2) NEVER FORGET THE AUTHOR

Moral rights cannot be assigned by the author, who, remains the owner forever. The exploitation of a work will always require the consent of the author (or his heirs after his death). If the identified copyright owner is a different person from the author himself, a double authorisation is required:

  • from the holder of the needed economic rights;

  • from the author, in order to avoid any further dispute concerning a possible moral rights infringement.


WHAT KIND OF AUTHORISATION?

1) TERMS OF THE AUTHORISATION (TRANSFER OF COPYRIGHT)

In most countries, all transfers of copyright must be done in writing.

Furthermore, some specific clauses are sometimes required (length of the transfer, rights concerned)

Finally, moral rights cannot be transferred.

Giving the complexity of copyright law, you should always ask a specialised lawyer write or proofread such clauses.

2) WHICH RIGHTS DO YOU NEED?

One should identify the rights required for the planned use of the work.

For example, the use of a picture on a web page requires a transfer of the reproduction right and the right to the communication to the public.

An exclusive transfer of rights may be relevant in order to avoid competing use of the same work.

Giving the complexity of copyright law, you should always ask a specialized lawyer write or proofread such clauses.

8) I bought a copy of a work. Can I use it freely?

PRINCIPLE

Two types of properties have to be distinguished regarding an intellectual creation: the (material) propertyon the material embodiment containing a copy of the work and the intellectual property on the work itself.

Through acquisition of a copy of a work you receive only the material property on the material embodiment incorporating the work. You do not acquire any intellectual property (copyright) on the work itself. To reproduce the work of which you bought a copy, you still need the prior consent of the copyright holder.

Unless a contractual clause provides otherwise, no transfer of intellectual property rights will result from the acquisition of a copy (even unique) of a work.


EXAMPLES

  1. If you buy a CD from Madonna, you become owner of the material embodiment incorporating the work, namely the CD. However, you do not become the owner of copyright on the concerned songs. You are therefore not allowed to upload these songs on your website to enable Internet users to listen to or download them.


  2. If you buy an original painting, you do not become owner of copyright on this painting, even if you are owner of the sole existing copy. This means, for instance, that you have to ask for the author's consent before reproducing the work on posters.


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