These notes begin by exploring the nature of information and its many forms (text, audiovisual media, hyperlinks, news aggregation, cultural and technical products) and how the production, use and ownership of these is complicated by the online environment. Is there a fundamental contradiction in t...
Week 1
Digital Rights
Introduction to Intellectual Property
Objective:
- Critically reflect on the traditional model of copyright and whether it is still appropriate to deal with the challenges
brought by the information society
- Todays’ topics:
Intro: What is intellectual property?
The basics of copyright law: scope, rights, terms
Challenges to copyright in the digital environment
The Information Society Service Directive and relevant case law
What is intellectual property?
- Intellectual property refers to creations of the mind; inventions; literary and artistic works; and symbols, names and
images used in commerce.
o WIPO
Forms of intellectual property:
- Copyright
- Patents
- Trademarks
- Databases
o Modern development
o Direct marketing databases, customer information
o There needs to be something special about it- original, having some sort of skill
Sui generous specific right
Intellectual property in the information society:
Intellectual property in the information
society
Protects economic
value of intangibles
(e.g. copyright)
Common Cult of free vs
Tension
root remuneration
Virtual goods
cannot be held Rights of authors,
creators and artists
to be rewarded
- Tension between intellectual property and the digital environment
o Online: the cult of free information – versus the idea of intellectual property that wants to reward authors and
creators
Introduction to copyright law:
Rationale of copyright law:
Exclusive right given to the creators of literary and artistic works (in the very broad sense)
Legislators deviate from important principle of freedom of expression
An exclusive right: why?
Incentive-innovation-reward cycle
European:
Justice rationale
Copyright reflecting notions of natural justice these authors’ rights aren’t created, but
always part of their consciousness as a creator
Personality rationale
- Easy for free riders to take advantage
Two legal conceptions:
- Anglo-American Conception: Copyright vs Continental European tradition
o Anglo-American has a more utilitarian perspective
Utilitarian focusing on scheme of support, enriching not just the author, but the general public by
providing access to work
Distinction in copyright: different requirements
Emergence of copyright law at national level;
- Creative works as non-rivalrous
- Printing press starting publishing industry
- First modern Copyright Act: Statute of Anne
, o Where author was protected, not the publisher
What is protected by copyright?
- Copyright, Designs and Patents Act 1988
- Not ideas, but expressions
o An expression in all senses? Hearing, seeing?
Recent Dutch case, they tried to argue that the special taste of cheese should have copyright court
said no: ‘Food taste ‘not protected by copyright’ rules EU court.
- Works: Copyright and copyright works works has a very broad definition
o (1) Copyright is a property right which subsists in accordance with this Part in the following descriptions of
work—
(a) original literary, dramatic, musical or artistic works,
(b) sound recordings, films [F1 or broadcasts], and
(c) the typographical arrangement of published editions.
- Originality requirement
o Traditional UK concept: sufficient skill, labour and effort
o CJEU Infopaq I: originality test – ‘the author’s own intellectual creation’
Requires ’free and creative choices’ and
the work carries the ‘personal touch’ of its author (CJEU Painer)
- Fixation requirement (UK)
o Tangible medium
- Does copyright protect computer software?
o Early discussions focused on different forms of protection for software different options:
Copyright system: protects expressions / formality free
Patent system: protects ideas, procedures, methods of operation, mathematical concepts / formalities
Sui generis system? New IPR specifically for computer software?
Art. 3 (1) (b) Copyright, Designs and Patents Act 1988: “Literary work” interpreted
very broadly
(b) a computer program; (c) preparatory design material for a computer program
What kind of protection?
- Arises automatically
o Gives author (or copyright owner) certain rights (bundle of rights)
o Time limited rights (usually to 💀 + 70 years)
- Boundaries on rights
o Defences to infringements: implied licence to copy e.g. writing a letter to a journal- the journal can use the
letter.
Fair Dealing defence [s.29 & 30 of the Copyright Designs and Patents Act]
E.g. wanting to make a remake
How long does copyright last?
International framework:
- Copyright law is territorial and national in scope:
o Need for international protection
o Bilateral agreements
- Berne Convention for the Protection of Literary and Artistic Works signed in 1896. Has 168 parties to the
Convention. One of the most significant international agreements
o Basic principles
National treatment- same protection under the convention as they would give their nationals
Automatic protection
Independence of protection
o Requires member countries to adopt minimum standards of protection
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