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about copyright
Copyright
Law (I)
Copyright
Law is a relatively complex matter, and often source of confusion. It also has different
characteristics in different countries, what add to the confusion. However, a common course of
action can be drawed.
In
spite of my education in this field, it is not in my intention to give you legal advice -
only your copyright lawyer can help you - but rather to give you some general information
regarding copyright, as it relates to intellectual works (visual images, articles, books,
etc), including in electronic form as we can found them in particular on Internet.
Ce
document est disponible en français
Definitions
Copyright
It
is a proprietary and exclusive intellectual right granted during
several years to an author or an editor to exploit a literary,
artistic or scientific work. It is ruled by the Berne Convention on
Copyright. The brand of this right is symbolized by the sign ©.
Legally, the author or the editor is always regarded as the creator
of the work, and benefits thanks to this title deed of legal and
financial advantages opposing to all. In case of litigation, it is
to the defender trying to prove the prevailing of his right.
License
Authorization
granted by an author to an individual or a company to exploit a
copyrighted work at commercial purpose. It is usually subject to the
terms of an agreement, and to the paiment of a reproduction right
(royalty), exclusive or not exclusive.
Plagiarism Action
of plagiarize, to claim for the work of others, to modify them, to
publish them or to trade them in his own name (without permission
and without mention of copyright). Legally, it is a severe violation
of copyright, sometimes associated to a criminal act.
The
U.S. Copyright Act of 1976 (USC)
As
most of pictures available on the Internet are published on american
websites, it is very useful to explain the objectives and limitations
of this national act.
For
works created after January 1, 1978. Pursuant to the 1976
U.S. Act, all works created after January 1, 1978 are afforded a
term of statutory copyright beginning at the work's creation and
enduring for the life of the author plus fifty years after his
death.
The basic
term of the author plus fifty years is equally applicable to
unpublished and published works (U.S.C. §101).
The 1976 Act further provides that a work
is "created" so as to begin the term of statutory
copyright when it is fixed in tangible form under the authority of
the author for the first time, regardless of whether the work is
registered with the Copyright Office.
A
work made for hire, if created on or after January 1, 1978, is
afforded a term of 75 years from the date of first publication or a
term of 100 years from its creation, whichever expires first (U.S.C.
§302(a)). In such a case, the employer for whom the work was
prepared is deemed the author (U.S.C. § 302(c)).
For
works created prior to January 1, 1978. On January 1, 1978,
when the 1976 U.S. Act became effective, common law copyright as to
nearly all works terminated by reason of federal pre-emption. Prior
to that date, common law copyright existed in a work from the moment
of creation and continued until the work was published or registered
with the Copyright Office as an unpublished work - at which point
the work obtained statutory copyright (U.S.C. §201(b)).
All
works which obtained statutory copyright prior to January 1, 1978
(and which did not lapse into the public domain through expiration
of its term of copyright) were protected for an initial copyright
term of 28 years commencing upon the date that statutory copyright
was originally secured. Under the Copyright Act of 1909, such works
were entitled to a renewal term of an additional 28 years if an
application for renewal registration was submitted to the Copyright
Office within one year prior to the expiration of the original term.
The 1976 Act extended the renewal term (but not the first term) by an
additional 19 years so that the renewal term is now 47 years rather
than 28 years (U.S.C. §24).
A
work, which, as of January 1, had already begun its renewal term
thus, became entitled to an additional 19 years of protection or a
total of 75 years from the time the first term copyright was
secured. This renewal period is applicable only to works that were
protected by statutory copyright prior to January 1, 1978 and had
not entered into public domain due to the expiration of the initial
term without submission of a renewal registration to the Copyright
Office.
The
Berne Convention on Copyright
The
Berne Convention was established in 1886, and is the world's oldest
international copyright treaty.
The
Berne Convention's copyright treaty has been signed by 159 countries,
and all the member nations are required to provide the same
copyright protection to all nationals in all the member nations.
This treaty is much broader in scope and offers far more protection
than the USC.
Most
national Congresses or Parliaments amended the Copyright Act in
order to comply with the terms of the Berne Convention. So it was no
longer necessary to register a work with your national.Copyright
Office in order to receive protection from infringement.
The
Digital
Millenium Copyright Act
of 1998, DMCA
The
Digital Millenium Copyright Act (DMCA)
applies to all US citizens and passed both House and Senate in 1998
and will be soon signed by the President. The
DMCA is a complex set of laws that make major changes in the US Copyright
Act of 1976 to address the digitally networked environment, and aims
to protect the author's copyright still stronger than before. The attorney J.Band
from Morrision & Foerster LLP (MOFO)
summuarizes the DMCA as a legal tool that prohibits gaining unauthorized
access to a work by circumventing a technological protection measure
(i.e. descrambling, decrypting or desactivating a protection) put in place by the
copyright owner where such protection measure otherwise effectively
controls access to a copyrighted work. The
DMCA also prohibits manufacturing or making available technologies,
products and services used to defeat technological measures
controlling access. Similarly, the DMCA prohibits the manufacture
and distribution of the means of circumventing technological
measures protecting the rights of a copyright owner. The
DMCA does not affect rights, remedies, limitations, or defenses to
copyright infringement, including fair use, nor does it alter the
existing doctrines. However, to satisfy its requirements, conditions
required to start an action in the frame of DMCA are more rigorous
than the simple complaint sent by mail to the american provider. We
will come back on this question.
The
EDRi Directive (EUCD)
The
Directive 2001/29/CE
of the European Parliament and of the Council of the European Union
passed on May 22, 2001 is the european counterpart of the DMCA but
has a more extended scope. It is also know under the acronym EDRi
(EUCD
in French). It aims to the harmonisation of certain aspects of
copyright and related rights in the information society (illegal
retention of information, spam, copyright infringement,
filtering of Internet content, and more).
Like
the DMCA, being given that the EDRi directive legalizes some forms of
censorship and the freedom of speech in States of Rights, that it
also modifies all the chapter dealing with the copyright and
neighbouring rights in the information society in favor of authors
and thus to the detriment of users, including for their private use,
both acts are controversial and should be amended.More
recently, in 2019 the European Parliament approved
new rules on copyright
for the Internet. They were followed by a EP Legislative Resolution on
Copyright in the Digital
Single Market (26 March 2019, ref. P8_TA (2019)0231). If this resolution
"explains" the copyright conditions to all, including the managers of Internet
sites, SMEs and GAFAM, it is still necessary that the national laws put them in
action.
To
read : Questions and Answers on issues about the digital copyright directive,
EP, 2019
Effects
of copyright
Generally
speaking (we temporary forget the DMCA and EDRi), in concrete terms,
thanks to the Berne Convention on Copyright, any author's work is
protected from infringement. Article
L111-1 of the Code of intellectual property valid in France and
elsewhere states "The author of a work of mind helds on this
work, as the sole fact of its creation, of an intellectual and
exclusive property right opposing to all". In addition, in
conformity with article 9 of
Berne Convention on Copyright, "the author has the exclusive right to authorize
reproduction of his works, whatever the manner and the form".
In
the frame of a registered copyright and for all international concerns,
the value of a copyright registered in a member nation (e.g. in France)
is automatically extended to all signatory countries, Belgium, Luxembourg,
Switzerland, United Kingdom, the U.S.A., Australia, Russia, etc. Of
course, this regulation is included in the EDRi directive.
To
read :a href="http://nys-stlc.syr.edu/lawlibrary/copyright/copyright.aspx">Copyright
Law (NYStar)
How
much cost a website registration ?
The
registration of a website content, its name and its URL to a notary
costs about 200 € (12 € for the registration itself plus the minute and charges),
whatever the volume. A copy of your data is archived to the notary
(e.g. in a sealed envelope containing a CD and annexed papers).
The
same registration ensured by a company (see links below) including the storage
of your data (provided on CD, DAT or another media) in a white room for one or five years cost
usually 10 € per 10 MB (it is a minimum), and thus can become very expensive (500 - 1000 €
each year or five years) for large websites or if you manage much digital
information. Set prices (per 100, 200, 500 MB with or without update and support)
are not cheaper. Such companies accept the update of your data but usually
with additional charges.
Being given that any intellectual work is protected by the Berne Convention, for
a website created by an amateur in the frame of a leisure activity,
a hobby, this registering is not necessary but it offers a better
protection and some financial advantages in case of
litigation. It is mainly useful if your intellectual patrimony is
important (in quality or quantity).
NB.
It is without saying that the solution of registering a website to a
specialised company and storing the information in a white room is mainly profitable to this
latter, some providing no the least service to their customers. Indeed,
for some tens of euros you can as well rent a safe to the bank and
place in there your documents (CD, DAT tape, contract, etc), what do many IT companies.
How
long does a copyright protect a work ? Registered
or not, the copyright is valid for 50 or 70 years after death of the
author depending on the nature of the work and to what authority it
has been registered (notary, National Library, etc). The
registration of a copyright gives you a material proof to protect
your interests against any infringement of your rights, and thus
offer you a better protection in case of litigation.
Right
of publicity
The
right of publicity enables a person to prevent others from
exploiting his or her name, likeness, voice, etc. without permission
or authorization. In most countries including in the U.S.A. there is no
Federal statute or uniform state law that governs the right of
publicity, so every state or country can be different. Therefore, is
some states or countries only a person's likeness is protected and
only while they are alive, while in another country books, photographs
and likeness are protected for 50 or 70 years after death. In all countries
the likeness of a newsworthy person for non-commercial purposes,
such as a news feature or a history book, is unrestricted.
No
answer
Like
in trading right, if you request a right of copy to an author and if
this one doesn't answer you, a no reponse is never worth for a grant
but there are exceptions described in the law or in legal mentions.
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The
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Nullity
of third party permission
Copyrights are recognized in 159 countries of the world and cannot
be counter by any national regulation or a private usage right. For
example, the fact to publish an image or an extract of my articles
on your website without permission but in listing the source of
information, does not exempt you from respecting this international
convention, and all the less if it is a plagiarism (the fact to
acquire under your name the work of others without mention of the source).
In
the same way, the permission granted by an author is never transferable. So, the
responsible of a website content or of a magazine can never permit
the reproduction of information whose he doesn't held the copyright.
In the same way, a third party can never reproduce a document
whithout the author's permission, even if he lists sources and if he
received the permission from an intermediate who benefits from this
permission. The
provider's responsibility
If the provider hosting
the website was informed of a copyright infringement by the concerned author,
and if he didn't react immediately to put an end to it, his liability will
also be engaged (French
law 2004-575 of June 21, 2004). A similar regulation applies in the
U.S.A. and elsewhere.
Next chapter
Fair
use rules |
