Copyright Law Overview

What is copyright law?


Copyright is a branch of Intellectual Property Law (IP Law). IP Law protects a wide range of rights in various results of human creativity. Other major branches of IP Law include: Patents, Industrial Designs, Trademarks and Trade secret.

Copyright is therefore a form of property; indeed, just like “classic” (corporeal) property it grants the owner (rightholder) some exclusive rights, i.e. rights to exclude others from his/her property. Like other forms of property, Intellectual Property is recognized as a fundamental right and as such it benefits from special legal protection (see art. 17.2 of the Charter of Fundamental Rights of the European Union).

 

 


What are the sources of copyright law?


There are international, European and national sources of copyright law:

 


What is protected by copyright? What is the scope of copyright?


General principle: copyright protects expression of original works

Copyright protects original works. A work must be created (and not just recorded) by a human being; it must be conscious modification of reality. In order to be original, a work must be its author’s own intellectual creation [cf. Software Directive, Database Directive, Term Directive, CJUE C-5/08 Infopaq]. It means that the author must exercise at least a small degree of free choice while creating the work, unmotivated by any objective standards -- this choice can express his/her creative personality. For example, if two painters are asked to independently paint the same landscape, they will obtain two different results -- both of them will be original. It is not necessary for a work to be ‘artistic’ in any sense -- utilitarian, scientific or informative works can also be protected by copyright. The originality threshold that is required for copyright protection may vary from jurisdiction to jurisdiction, but it is relatively low. For example, a design of a can opener or a salad bowl can be protected by copyright.

 

 

Fixation: special requirement in the UK law

UK law (and other legal systems stemming from the same legal tradition, e.g. US law) requires also that in order to be protected by copyright, a work must be fixed in a tangible medium of expression (e.g., written on paper, carved in stone, recorded on a hard drive). All digital devices are tangible media of expression. In this approach, e.g., a speech or a sermon cannot be protected unless it is somehow recorded (in writing, on tape, on DVD).

By contrast, continental European copyright laws do not contain such a requirement, which allows for ephemeral works (like flowery compositions or chocolate sculptures) to be protected by copyright.

The consequences of this difference are often rather theoretical -- indeed, if a work is not fixed in a tangible medium of expression, it is difficult to prove copyright infringement.

 

 

Examples of protected works

Copyright may protect for example:

  • writings (literary works): books and articles, poems, short stories, letters, but also manuals, contracts, descriptions or explanatory notes, providing that they are original.; while a book is very likely to be original, a short explanatory note will not necessarily be so; the same applies to titles or slogans;
  • interviews, speeches and sermons;
  • graphic works, such as drawings, paintings, engravings, graphics in computer games but potentially also diagrams, designs, schemes or maps, providing that they are original (e.g. through an original, non-standard choice of colours);
  • audiovisual works (movies, short videos…);
  • artistic works: such as sculptures, models (including e.g. models of utilitarian objects), works of architecture…;
  • musical works;
  • photographs, unless there is no creativity involved in their making (such is, for instance, the case of most X-ray photos);
  • software;
  • and other creations, such as choreographies, artistic performances, costumes etc.

 

 

Short works, parts of works, unfinished works

Not only whole works, but also their parts can be protected by copyright, as long as they are original. A paragraph from a book will most likely be original. It has been ruled that excerpts as short as 11 words can be protected by copyright (it does not mean that they automatically are, but they can potentially be original) [CJEU C-5/08 Infopaq]. The same applies to parts of images or songs.

By analogy, unfinished or incomplete works may also be protected by copyright if they fulfil the originality requirement.

 

 

Copyright protection of compilations, databases, corpora

Copyright protects also compilations - regardless of whether their content is protected by copyright (e.g. compilations of purely factual information or public domain works may also be protected). In order to be protected by copyright, compilations must be original in the selection or arrangement of their contents. Copyright would then only protect this particular selection and/or arrangement, and not the constitutive elements.

In general, compilations of research data are, arguably, rarely original, as they are built according to objective standards (such as completeness, relevance, arrangement in alphabetical order) which leave no room for creative, arbitrary choices and, therefore, originality. The case of language corpora, however, is specific, as the process of compilation often leaves a lot of room for choice.

For example, works of William Shakespeare are long in the public domain. However, compilations of his works may be protected by copyright if their selection or arrangement are original. A compilation My favorite works of William Shakespeare is likely to involve original selection (especially if it includes some of the less popular works of Shakespeare); a compilation Complete works of William Shakespeare is not original in its selection (the compilation is complete), but may still be original in its arrangement. Arrangement by alphabetical or chronological order will not be original; however, one can imagine an original arrangement (by subject: love, hate, war; or just purely arbitrary, based on the compiler’s creative choices).

In no case this would mean that one cannot re-use Hamlet or Romeo and Juliette extracted from such an original compilation, as the fact that the compilation is copyright-protected has no influence on copyright in its constitutive parts. This would only mean that in order to re-use (e.g. re-publish) the whole original compilation (with its original selection and arrangement) one would need an authorisation from its author (compiler).

 

 

Translations and other adaptations

Copyright also protects translations, adaptations (i.e. transpositions of the same work from one means of artistic expression to another, e.g. from a book to a film, from a painting to a sculpture) and other derivative works. These works are not merely copies of original works -- some degree of arbitrary choice is involved into their making (which is obvious to everybody who ever tried to translate a paragraph of text: two equally skilled translators are extremely unlikely to come up with exactly the same translation of a longer text). Arguably, adding another layer of annotation or even linking two datasets may be regarded as creating a derivative work and therefore give rise to a new copyright.

In order to make derivative works, one needs an authorisation from the rightsholder of the original work. It means that if one wants to translate a new novel by Stephen King, he/she would have to ask King (or more likely his agent or publisher) for permission. On the other hand, works of William Shakespeare (in which copyright had expired, or - more accurately - never actually existed, since Shakespeare died long before the first copyright statute) can be freely translated or adapted on stage.

Derivative works are protected without prejudice to the copyright in the original work. In practice it means that in order to use a derivative work (e.g. a translation), one needs to obtain permission from both the author of the original work, and the author of the derivative work (although quite often the latter would have a limited right to grant permission in the name of the original author). This, of course, does not apply if the original work is no longer protected by copyright -- in such case, only the permission of the author of the derivative work is necessary.

 


What is NOT protected by copyright?


Copyright does not protect:

  • unoriginal works;
  • works whose copyright term has expired;
  • ideas, themes, motives (e.g. an idea for a movie about a war between vampires and werewolves; an idea for a research project);
  • statements of facts (e.g. the fact that the Battle of Hastings took place in 1066, or that Germany won 7:1 against Brasil in the Football World Cup of 2014);
  • ‘works’ created by nature (e.g. oddly but naturally shaped rocks or trees, songs of birds);
  • individual words [CJEU C-5/08 Infopaq];
  • mathematical problems and formulas;
  • discoveries (as they are not created, but they existed objectively before they were discovered).

 


Are texts of laws, court decisions and other official works protected by copyright?


by Pawel Kamocki

 

Works created by public bodies, such as texts of laws, judicial and administrative decisions, etc. would normally fall within the scope of copyright protection. This, however, would create an access barrier for the general public, which goes against the spirit of democracy and the public’s right to information. This is why various mechanisms have been created to make access to official works easier.

In most EU countries, there are explicit rules stating that official works are not protected by copyright (see e.g. s. 6 UrhG). These official works can roughly be defined as works created by public bodies within the scope of their public functions. As a general rule, this applies to court decisions, texts of laws as well as other sources of national or local law adopted by competent bodies. This may not apply, however, to drafts and unofficial translations of those texts.

In other countries (e.g. in the UK) a different approach has been adopted, in which copyright to official works belongs to the government (in the UK this mechanism is referred to as ‘crown copyright’). In such systems, governments then make official works available under special open licenses, such as Open Government Licenses.

Also in those countries in which official works are not protected by copyright, some content (e.g. databases of public data, statistics etc.) is sometimes released under similar open licenses (DatenLizenz Deutschland, Licence Ouverte) or with appropriate copyright notices (see Europa Legal notice).

All the documents held by public sector bodies, whether they are copyrightable works or not, whether they are effectively protected by copyright or not, are jointly referred to as Public Sector Information (PSI). According to the general principle established by the PSI Directive (Directive 2003/98/EC of 17 November 2003), PSI shall be made re-usable. There are, however, many exceptions to this principle, mostly related to third-party copyright and data protection laws. Still, there is a growing tendency in EU Member States to make PSI openly available and re-usable via the so-called Open Data Portals (e.g. Open Data Paris, Offene Daten Berlin, EU Open Data Portal, Dutch Open Data Portal); licensing plays an important role in this movement.

For a comparison of PSI access regimes, see here.

For more detailed information about the status of official works, contact the legal helpdesk in your consortium.

 


What are the exclusive rights of a copyright holder?


Copyright grants a certain number of exclusive rights. This means that the author has a right to exclude others from accomplishing certain acts (just like the owner can exclude others from his/her property). If you want to accomplish one of these restricted acts, you’ll have to ask the author (or a subsequent rightsholder, if the author had transferred his/her copyright or if he/she is dead) for permission.

These exclusive rights can be divided into two categories: economic and moral.

Economic rights

The exact scope of economic rights may differ between jurisdictions, but they can all be reduced to three main rights harmonised by the InfoSoc Directive: reproduction, communication to the public and distribution.

Reproduction

The reproduction right covers the right to authorise or prohibit direct or indirect, temporary or permanent reproductions of works by any means and in any form, in whole or in part. The right is therefore very broad.

Please note that most (if not all) digital uses of works involve reproduction, be it only temporary, in the memory of a device. However, note also that a certain numbers of these reproductions (e.g. those made while browsing the Internet) would be exempted under the ‘temporary reproduction’ exception (see Copyright Exceptions).

Reproduction is also necessary if one wants to create a derivative work or include a work in a compilation. This is why in some Member States the adaptation right (the right to make derivative works) may not be a separate right; in any case, adaptation is a part of the reproduction right.

 

Communication to the public

The exclusive right of communication to the public covers any act of communication of works to the public by wire or wireless means, including in such a way that members of the public may access them from a place and at a time individually chosen by them (i.e. uploading on a server).

Please note that different jurisdictions may define the notion of ‘public’ in a slightly different way, but there seems to be a compromise that a close circle of family members and perhaps also close friends does not constitute a public (the contrary solution would be an unnecessary intervention in the private life of users). It means that one can e.g. recite a poem during a family dinner without asking for the author’s permission. Accordingly, copyright-protected music can be played during such a dinner; this does not apply e.g. in hotel receptions that can be entered to by anybody. Playing music in hotels is regarded as communication to the public and therefore requires authorisation.

Applied to the digital context, this means that making works available online in a password-protected environment (when the password is only given e.g. to family members) does not constitute communication to the public. Arguably, the same can be said about the use of private profiles on social media (that can only be seen by ‘friends’). One should not forget, however, that most digital uses require also reproduction, and only some of these reproductions are exempted from authorisation under a temporary reproduction or private copy exception (see Copyright Exceptions).

The Court of Justice of the European Union ruled in 2014 that Internet users constitute one public. Therefore, linking (to a content that is, logically, already available on the Internet) does not constitute communication to a new public and, as such, does not require authorisation [CJEU C-466/12 Svensson].

 

Distribution

Authors have an exclusive right to authorise or prohibit distribution of their works (and their copies) by sale or otherwise (e.g. by lending or even by distributing free copies). Within the EU this right is exhausted after the first authorised distribution of the work on the EU market. It means that if a work (e.g. in form of a book or a CD) has been lawfully sold in e.g. Germany, the author cannot prohibit its sale in France or any other Member State.

 

Moral rights

Moral rights protect the link between the author and his work. They are not harmonised at the EU level, and therefore their scope and nature may vary considerably across the Member States. As a general rule, these rights include the right of attribution (i.e. the right to be mentioned as the author of the work, but also to use a pseudonym or remain anonymous), the right to decide whether a work should be disclosed (published for the first time), and the right to protection against distortion of the message of the original work (i.e. by shuffling sentences in a book, or writing an alternative ending). The latter right is sometimes in conflict with freedom of expression; it is widely admitted that parody and pastiche (within certain limits) cannot be prohibited.

From the point of view of academic users, attribution is by far the most important moral right.

In some jurisdictions (such as France) these rights (unlike the economic rights) cannot be transferred, licensed or waived and they always remain with the author. They may also be perpetual; in such a case, after the death of the author they can be exercised by his/her heirs. In other jurisdictions (such as Germany), moral rights share the fate of economic rights -- they can be licensed and expire with economic rights, i.e. 70 years after the death of the author.

 


How long does copyright protect a work (term)?


As a general rule, copyright expires 70 years after the death of the author. The fact that copyright had been transferred to a third party has no influence on this.

This term is in fact very long; it is not rare that it extends beyond 120 years after the work had been created (i.e. when the author creates the work at the age of 30 and dies at the age of 80).

Copyright term has been gradually extended in the past century. Therefore, in case of works published before ca. 1945, determining whether they are still in copyright may be a complicated task (especially given that the two World Wars may have an impact on how the term is calculated). Therefore, if you are dealing with such works, you should consult a lawyer specialised in local law.

Nowadays, copyright term is harmonised across the EU by the Term Directive. Within the EU, works from a different Member State should be protected in each Member State for at least as long as ‘local’ works (ECJ, case C-360/00 Puccini).

If copyright belongs originally to a legal person (e.g. the employer in jurisdictions where copyright in works created in the course of employment belongs originally to the employer (such as the UK - see Who owns copyright?), its term is calculated not from the death of the author (because legal persons are ‘immortal’), but from the creation of the work. In such cases, specific rules apply and the term of protection may be longer than 70 years (e.g. 90 years from the creation of the work).

Please note that in some jurisdictions moral rights can be perpetual.

For more on copyright terms, see:


Who owns copyright?


As a general rule, copyright belongs to the author of the work, i.e. the person who made the necessary creative choices involved in the creation of the work, and by doing so stamped the work with his/her ‘personal touch’ [see: CJUE C-145/10 Painer]. The participation of other people in the process (e.g. field workers, technical operators), as long as their contribution is not original (i.e. they have to strictly follow the directives of the creator), has no impact on copyright ownership.

 

Copyright and employment

The solution may vary between jurisdictions!

In many EU jurisdictions, the works created by an employee in the course of employment belong to the employee, and not the employer, unless the employer and the employee had agreed otherwise in writing (e.g. in the employment contract). Such a clause, however, may be deemed as implied.

Some countries may adopt a different approach -- most notably, in the UK copyright to works created in the course of employment belongs ab initio to the employer.

The solution may also vary between the public and the private sector.

Finally, special rules may apply to university teachers and researchers (there is a tendency in many jurisdictions to grant academics copyright in their works, even when they are employers or public agents).

Bottom line: the contract with your employer is likely to contain an intellectual property clause, regulating the questions of copyright ownership. Make sure you know what it says. In case of doubt, contact the legal department in your institution.

This only applies to the works created in the course of employment. Of course, if you work as a researcher and you also compose music or write fiction, your employer has no right to claim copyright in those works that are unrelated to your employment.

 

Special case: software

In most jurisdictions, regardless of what approach to copyright in works created in the course of employment is adopted by default, copyright in software created by an employee automatically belongs to the employer.

 

Joint authorship: general rule

The solution may vary between jurisdictions!

One work can be created by several authors. Detailed scenarios may vary and different jurisdictions may adopt different solutions in particular cases, but as a general rule, copyright to a work of joint authorship belongs in equal abstract parts to all the co-authors. The rules on ‘traditional’ (corporeal) joint ownership (i.e. when e.g. a house is jointly owned by several co-owners: spouses, siblings etc.) apply by analogy. It means that in order to use a work of joint authorship you would need permission from all the co-authors (unless one of them has a right to represent the others); one author cannot authorise the re-use of a work of joint authorship.

Detailed questions concerning how co-authors split profits, who can represent them etc. are normally regulated in a contract between them. In some sectors (most notably in cinematography) the importance of such contracts is primordial.

 

Anonymous and pseudonymous works

Authors are free to remain anonymous, or to use a pseudonym, without prejudice to their copyright. Some special rules may apply to anonymous and pseudonymous works at the national level (e.g. shorter period of protection, as the public doesn’t know if the author is alive or dead);  normally such works are dealt with via a representative.

 

Posthumous works

Some jurisdictions may grant quasi-copyright in posthumous works, i.e. works discovered after the death of the author. This quasi-copyright would then belong to the one who discovered the work. Therefore, if in 2015 someone discovers a posthumous work of Molière, he/she may claim an exclusive right in it (as French law recognizes this special copyright in posthumous works). The right is granted to reward the discoverer, but is normally much shorter than ‘real’ copyright.

 

Subsequent ownership

In most jurisdictions, copyright can be transferred (or at least an exclusive license can be granted for the whole remaining copyright term). All the rights will then belong to the transferee, and the original author will be left with nothing (apart from the money the transferee paid for the transfer). It is fairly common that authors transfer their copyright to a publisher in order to get published (it is not required by law, but many publishers would refuse to publish otherwise). However, even in such cases a certain link between the work and its author is preserved: the work always has to be attributed to the original author (it’s a moral right), and copyright expires 70 years after the death of the original author, regardless of who holds it.

 

After the death of the author - general rule

If the author hadn’t transferred copyright during his/her lifetime, after his/her death it becomes a part of his/her estate (just like any other property he owned) which is passed onto his/her heirs.