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Apr 30, 2008

1. What are the applicable laws?

The two main international laws that govern the use and distribution of copyright are the Berne Convention and TRIPS Agreement. There is also the WIPO Internet Treaty which specifically applies to copyrights in the Internet.

2. What works are protected under international copyright laws?

Copyright is intellectual property that includes all literary, scientific and artistic works no matter the mode or form of expression – that is, original intellectual creations in the literary, scientific and artistic domain. Under Art. 2(7), Berne Convention, copyright shall include in particular:

(1) books, pamphlets and other writings;

(2) lectures, addresses, sermons and other works of the same nature;

(3) dramatic or dramatico-musical works;

(4) choreographic works and entertainments in dumb show;

(5) musical compositions with or without words;

(6) cinematographic works to which are assimilated works expressed by a process analogous to cinematography;

(7) works of drawing, painting, architecture, sculpture, engraving and lithography;

(8) photographic works to which are assimilated works expressed by a process analogous to photography;

(9) works of applied art;

Art. 2(7), Berne Convention: Subject to the provisions of Article 7(4) of this Convention, it shall be a matter for legislation in the countries of the Union to determine the extent of the application of their laws to works of applied art and industrial designs and models, as well as the conditions under which such works, designs and models shall be protected. Works protected in the country of origin solely as designs and models shall be entitled in another country of the Union only to such special protection as is granted in that country to designs and models; however, if no such special protection is granted in that country, such works shall be protected as artistic work.

(10) illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

(11) Computer programs

Art. 10, TRIPS: 1. Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention. (1971)

*NOTE: This list is not exhaustive. The national laws of countries must be considered as well customs and traditions of the specific locality.

3. Should the work be original for it to be copyrightable?

The general rule is that the work must be ORIGINAL in order to be qualified for copyright protection.


(1) Derivative Works – e.g. dramatizations, translations, adaptations, abridgments, arrangements, and other alterations of literary or artistic works

Art. 2(3), Berne Convention: Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright of the original work.

Art. 2(5), Berne Convention: Collections of literary or artistic works such as encyclopaedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections.

(2) Compilations – collections of literary, scholarly or artistic works, and compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents (Art. 2, TRIPS)
4. When is a work considered eligible for copyright? When can one say that a work is copyrightable?

An original work is copyrightable by the mere fact of its creation. From the moment it is created, it is already protected by copyright. Registration of the work in an intellectual property office is NOT REQUIRED. Copyright must be distinguished from Patents and Trademarks where registration is a prerequisite in order for the patent or trademark owner to enjoy the protection afforded by the law.

Art. 5(2), Berne Convention: The enjoyment of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work.

5. What are the different rights of a copyright owner?

These are:

(1) Economic rights – i.e. reproduction, transformation (dramatization, translation, etc.), FIRST public distribution, rental, public display, public performance, other communication to the public of the work (including Internet and webcasting; see WIPO Internet Treaty), distribution

(2) Moral rights – i.e. attribution, alteration, the right to object to any modification of the work, and the right to claim ownership

(3) Rights to proceeds in subsequent transfers

Art. 14, Berne Convention: “Droit de suite” in Works of Art and Manuscripts: (1) The author, or after his death the persons or institutions authorized by national legislation, shall, with respect to original works of art and original manuscripts of writers and composers, enjoy the inalienable right to an interest in any sale of the work subsequent to the first transfer by the author of the work. (2) The protection provided by the preceding paragraph may be claimed in a country of the Union only if legislation in the country to which the author belongs so permits, and to the extent permitted by the country where this protection is claimed. (3) The procedure for collection and the amounts shall be matters for determination by national legislation.

(4) Ownership right – As a general rule, the author of the work is the owner of the copyright (this is a legal presumption) but there are cases where joint ownership may arise out of agreement between parties. The rule may also be different as regards employee’s works (if the creation of the work is part of the employee’s regular duties, then copyright of the work is attributed to the employer) or as regards independent contractors (where there is no employer-employee relationship, the creator is the owner).

(5) Right to assign copyright – this is inherent in ownership of property (the right to own includes the right to freely dispose or assign such right)

6. What are the different rights of a copyright user?

These rights are more commonly referred to as “fair use.” They are also considered as the limitations on copyright. Both the Berne Convention and TRIPS Agreement adopted a liberal policy on the limitations of copyright that countries should impose. In other words, the limitations are a matter of legislation in countries to determine the conditions for FAIR USE of copyright.

Art. 9(2), Berne Convention: It shall be a matter for legislation in the countries of the Union to permit the reproduction of works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. Art. 13, TRIPS: Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.

However, some guidelines have been laid down:

(1) PERFORMANCE: the work must have been lawfully made accessible to the public and the use must only be made in private and free of charge

(2) QUOTATIONS: the work must have been lawfully made accessible to the public; the source and name of author must be named (Art. 10(1), Berne Convention)

(3) REPRODUCTION OF NEWS, etc.: if only for information purposes with source clearly indicated (Art. 10bis(1), Berne Convention)

(4) INCLUSION BY WAY OF ILLUSTRATION: for teaching purposes with source and name of author clearly indicated (Art. 10(2), Berne Convention)


7. What are the factors to be considered in order to determine if the use made of a work in any particular case is fair use?

The factors are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work

8. How long can a work be protected by copyright?

Under Art. 7(1), Berne Convention and Art. 12, TRIPS, the term of protection is the life of the author and fifty years after his death. Note that there are qualifications to the term of protection, depending on the type of ownership (whether it is joint or sole) as well as the nature of the copyrighted work.

9. What are the remedies available to a copyright owner against copyright infringers?

Copyright infringement is a criminal offense. National legislation should be considered in determining the penalties and fines to be meted out. The copyright owner shall also have the right to apply for a “cease and desist” order from the proper court or office as well as seizure of copyright infringement goods.

10. In case of copyright infringement over international borders, where may the copyright owner file his case – in his country or the country where the crime was committed?

Since copyright infringement is a criminal offense, then the Doctrine of Territoriality of Criminal Law should generally apply. That means that jurisdiction over the subject matter should generally pertain to the country where the crime was committed, without prejudice to any contrary provision in international treaties or conventions to which the country is a signatory.


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