Copyright

General

 

6.1       What is copyright?

Copyright is a form of legal protection offered to the creators of literary, dramatic, musical and other works which prevents such works from being exploited by others without the creator’s permission. 

Put simply, copyright gives authors, playwrights, composers and others an exclusive right to deal with their creations in any manner they think fit within the law.  They can therefore sell, distribute, show, perform or broadcast their work, adapt it, or authorise its adaptation, translation into other languages, etc. on terms that suit them best (as long as, of course, they are able to secure agreement for such deals from other parties).

Copyright falls within intellectual property law.  It is an example of intangible property (as distinguished from ‘real’ property, e.g. land, buildings, possessions).  For a work to enjoy copyright, it has to be recorded in some form.

Copyright exists for a limited period of time, after which the protected work may be freely copied or otherwise exploited by anyone.

 

6.2       What is the rationale for copyright?

Copyright protection rests on the belief that, in a free society, everyone should have the right to the fruits of their skill, labour, creativity and time.  Copyright is valued by all societies which believe in rewarding individual effort and enterprise.

There are both moral and economic arguments favouring copyright.

 

6.3       How does copyright serve the public interest?

As well as protecting creators of literary, artistic, dramatic and other works from being unfairly denied the fruits of their skill and labour, copyright acts as an incentive for the creation of new works and thus aids cultural progress in any society.  It also enhances national prestige by offering legal protection to the cultural heritage of a country.

 

6.4       Can it not be argued that copyright is restrictive of competition?

In theory, it can, given that copyright confers a monopoly right on authors.  However, the restrictive effect of copyright is mitigated by two factors: (1) copyright only exists for a fixed term (usually the lifetime of the author plus between 50-70 years); and (2) the law recognises certain situations when someone’s copyright can be overridden in the public interest (e.g. unauthorised copying from protected works for the purposes of research).

 

6.5       How does copyright work in practice?

Stated briefly, in countries where copyright is recognised by the law, every author is entitled to copyright protection for his works.  Taking the example of someone who has written a book, he can have the book published and sold on terms that he is happy with, and he can also sell the translation, adaptation and other rights to the book for monetary reward.  Once the book is published, he will be entitled to receive a percentage of the sale proceeds of each copy sold for the entire duration of the term of copyright (such a payment being called a ‘royalty’).  He will also be able to license his work to, say, a playwright who wishes to make a play out of the book.  Here, again, he would receive a further payment (known as a ‘licence fee’). 

One of the salient aspects of the copyright system is that it works across national boundaries as well as within countries.  Through a well-established treaty mechanism (which is explained below), authors can enjoy the benefits of copyright on a global scale.

By spreading the reward that creators of important works expect equitably among the consumers of such works, and by striking a fair balance between the expectations of authors and the legitimate needs of society for access to important works, copyright is seen to perform a valuable function.

 

6.6       What exactly is protected by copyright?

The first thing to note is that copyright does not protect ideas, but only expression of ideas.  This means that, if X were to provide the idea for a radio programme and Y followed up the idea and made a radio programme based on it, Y will not be in breach of X’s copyright.  For this reason, it is not uncommon to see many different motion pictures based on a common theme, e.g. a historical event or a famous work of literature.  Each such film enjoys copyright independently of the others.

How the law differentiates between an idea and the expression of it is discussed in greater detail below.

 

6.7       Are ‘facts’ protected by copyright?

No, all that is protected is the form in which facts are presented.  If, therefore, two journalists publish their respective reports of a same factual situation, each of them enjoys copyright in his report even if there are similarities between the reports.

 

6.8       What about the reporting of news?

The law makes allowance for the reporting of news, and so it would not be a violation of copyright when a journalist, as part of his normal reportage duties, produces copy that may contain material to which copyright attaches.  However, if one reporter copies the report of another reporter without the latter’s permission, it would amount to infringement.

 

6.9       What are the kinds of work protected by copyright?

Copyright normally applies to the following works:


(a)    literary, dramatic, musical or artistic works;

 

(b)   sound recordings, films, broadcasts or cable programmes;


(c)    the typographical arrangement of published editions.

 

6.10     Can someone who merely puts together publicly available material in a new work enjoy copyright in that work?

Yes, as long as the work (which is usually referred to as a ‘compilation’) is the result of some skill and effort on the part of the compiler.

 

6.11     Are there any pre-conditions for the enjoyment of copyright?

 

Yes, the work in question must be an ‘original’ work.  What this means, first of all, is that some degree of skill or effort must have gone into the making of the work.  The standard that is expected was formulated in a 1923 case as follows:

To secure copyright for the product it is necessary that labour, skill and capital should be expended sufficiently to impart to the product some quality or character which the raw material did not possess and which differentiates the product from the raw material.

Secondly, the work in question should not itself be a copy of another work.  For example, in relation to a cable programme, there will be no copyright if it simply involves the reception and immediate transmission of a broadcast.

 

6.12     What is meant by the term ‘author’ in relation to copyright?

The term ‘author’ has specific meanings under the law of copyright.  This term is extremely important, not least because the duration for which copyright subsists in a work is sometime dependant on the life span of its author.  Generally speaking, the following is a good guide to the way the law defines an ‘author’:


-     In relation to a literary, dramatic, musical or artistic work, it is the person who created the work;


-     In relation to a photograph, it is normally the person who operated the camera at the time it was taken (although there may be occasions when the composition of the picture was done by one person and the actual pressing of the button on the camera was done by another person, e.g. his assistant, in which case the law would treat the person responsible for the composition as the ‘author’);


-     In relation to motion pictures and sound recordings, it is usually the person who puts in place the arrangements necessary for the making of the film or sound recording (i.e. the producer, as he is often called) – in many cases, this will be a commercial corporation;


-     In relation to a computer-generated work, it is the person who undertakes the arrangements necessary for creating the work;


-     In relation to broadcasts, it is the person who makes the broadcast – this can be either (a) the person who transmits the programme, or (b) the person who has responsibility for the contents of the programme and who makes the arrangements for its transmission jointly with the person transmitting it.[1]

 

6.13     Are there any exceptions to the rules on authorship?

Yes.  Where a person creates a work in the course of his employment, it is his employer and not himself who would be deemed to be the ‘author’ of the work for copyright purposes.  This exception does not, of course, apply to ‘independent contractors’, i.e. persons who undertake work on a contract for services (rather than a contract of service).

Where, for example, a staff reporter on a newspaper or TV station writes a story that is published, it is not the reporter but the newspaper or TV station employing him that owns copyright in the story.  By contrast, where a newspaper publishes an article by a freelance journalist, it is the journalist who would own copyright in the article.

However, these rules can be overridden by contractual arrangements.

 

6.14     At what point does copyright protection begin?

Usually, at the point at which the work is created in any tangible form.  So, for example, if it is a literary work, as soon as the work is recorded in writing or in some other form, it begins to attract copyright protection.  The recording can be in any language, style or script: the Pitman shorthand system, for instance, has been held to be protected,[2] as has a catalogue of print type styles.[3]

 

6.15     Can a slogan or a catchword be copyrighted?

Generally speaking, no.

 

6.16     What about titles for films, books and other publications?

Usually, such titles do not attract copyright protection.  For example, when the Twentieth Century Fox Corporation made a film with the title “The Man Who Broke the Bank at Monte Carlo”, which had been taken from a song that carried the same words, the court held that there was no infringement of copyright.[4]  According to the judges, the theme of the film was different from that of the song and the words were, as well as being obvious, too insubstantial to constitute an infringement in that context.

Likewise, when the Exxon Corporation complained that another company had used the word ‘Exxon’ in its name, the court rejected the argument that there had been an infringement.[5] The word in question could not, said the court, be called a literary work because it did not confer “information, instruction or pleasure in the form of literary enjoyment.”  It is worth remembering, however, that in such circumstances, those complaining may seek the help of trade mark law which protects certain descriptors against the offence of ‘passing off’.

 

6.17     What about cartoons?

Cartoons fall under ‘artistic’ works for the purposes of copyright.  It is worth noting that only the drawing/sketch is protected, not the joke itself.  If therefore two cartoonists try to raise a laugh based on a common joke, they can enjoy copyright in their respective cartoons as long as the drawings are distinct and different from each other.[6]

 

6.18     What is the position of speeches made by a person which are recorded and used by others?

This is a slightly difficult area of the law on which many national statutes are silent.  However, some guidance is offered by the UK legislation under which words spoken by a person – say in the course of an ex tempore speech or a media interview – can be recorded and reproduced by another person, e.g. a reporter, without fear of legal action for breach of copyright, provided that certain conditions are satisfied, viz.

(i)   the record made by, say, the reporter must be a direct and true record of the words that have been spoken and not something taken from a previous record;


(ii)  the person speaking the words must not have objected to the recording or reproduction of his words (sometimes, the speaker may make it clear that only certain parts of his speech can be published, in which case that instruction must be obeyed);


 (iii) where the words include material in respect of which copyright already exists, the reporter must obtain a licence from the owner of copyright therein before he reproduces it;


 (iv) any use to which the record (or recording) is put should be only by, or with the authority of, the person who is in lawful possession of it.

 

6.19       Assume that a reporter for a broadcasting organisation records on tape a speech made by a politician.  He intends to broadcast the tape, but he has also made a transcript of the recording.  What rights, if any, does he have over the recording and/or transcript?

If all that the reporter has done is stick a microphone in front of the politician and record everything the politician says, there is no question of the reporter enjoying any copyright on the words uttered by the politician because no skill or effort has gone into the making of the transcript as a literary work.  However, the reporter will enjoy copyright in the recording as a sound recording which will allow him to prevent anyone else using the recording without his permission.

 

6.20     What about copyright in musical works?

Generally, copyright in a musical work applies to the music in the work, exclusive of any words or action that is sung or performed with the music.  In a song, therefore, there are two copyrighted items: the music itself and the lyrics (which qualifies as a ‘literary work’).

The music itself needs to be recorded in order to enjoy copyright protection.  This can be done in one of two ways: (i) it is written out as a musical score; or (ii) it is performed and recorded, say on a compact disc.  Where a recording takes place, the performer or record company acquires what is called a ‘performing right’.

 

Term

 

6.21     What is meant by ‘term’ of copyright?

‘Term’ means the period of time for which a person is legally allowed to enjoy copyright.  Different countries have different periods, though there is now a move towards harmonisation in this area.

 

6.22     What is the typical term of copyright?

Typically, copyright exists for the lifetime of the author and a fixed number of years after his death.  This means that the author would enjoy all profits from his work (e.g. royalties, licence fees, etc.) from the time he creates the work until his death, after which his estate (i.e. heirs and successors) continue enjoying the profits for a certain number of years.

Under the Berne Convention, the minimum period for which copyright is expected to subsist is the lifetime of the author plus fifty years.

It is worth noting that copyright law often lays down different periods for different types of work.

A typical example is provided by the Indian Copyright Act under which:


- literary, dramatic, artistic and musical works carry copyright for the lifetime of the author plus sixty years;[7]


- literary, dramatic, artistic and musical works whose authorship is not known[8]carry copyright for sixty years from the date of their first publication;[9]


- photographs, motion pictures and sound recordings carry copyright for sixty years from the date of their first publication;[10]


- works whose first owner are a government, public sector undertaking, or international organisation carry copyright for sixty years from the date of their first publication.[11]


The corresponding British legislation allows for copyright to subsist for the lifetime of the author and seventy years as do some European laws.[12] 

 

6.23     How is the term of copyright in a broadcast or cable programme calculated?

It is usually calculated as subsisting for a fixed period of time (say, fifty years) from the end of the year in which the broadcast was first made or the cable programme was first included in a cable programme service.

Repeated transmissions of the broadcast or cable programme do not result in an extension of the term of copyright.

 

6.24     Can the term of copyright be varied?

National parliaments do have the power to legislate to vary the term of copyright protection.  In 2001 the Indian Parliament used this power to grant an additional ten years of protection to the works of that country’s leading author and Nobel laureate, Rabindranath Tagore.  However, if a country is a signatory to the Berne Convention, the term of copyright protection cannot be reduced below the lifetime of the author plus fifty years.

 

Infringement

 

6.25     What is infringement of copyright?

When a person does anything which runs counter to the rights of the copyright owner, he is said to infringe copyright.    It is therefore an invasion of the exclusive rights vested in the owner of copyright. 

 

6.26     What are the exclusive rights vested in a copyright owner?

Most national laws recognise the following as exclusive rights enjoyed by the owner of copyright in a protected work:

-     to copy the work;


-     to sell, distribute or otherwise issue copies of the work to the public;


-     to exhibit, perform or play the work in public;


-     to broadcast the work or include it in a cable programme service; and


-     to make an adaptation of the work and sell, distribute, exhibit, perform, play or broadcast it or include it in a cable programme service.


These acts are also, incidentally, referred to as ‘restricted’ acts, and the doing of any restricted act by another person without the author’s consent would amount to an infringement.

 

6.27     Does the violation of copyright have to apply to the whole work for it to amount to infringement?

The law in most countries takes a commonsense view of infringement.  Therefore, it only requires that someone invade a ‘substantial’ part of another person’s copyright to become liable for infringement.

 

6.28     How does the law define ‘substantial’ infringement?

There is no fixed formula for determining substantial infringement.  The courts do not go merely by a mechanical test of quantity, although quantity will be a relevant factor in the determination process.  The central focus will be on whether the infringed portion represented a pivotal or key part of the original work or whether it was merely incidental to that work.

In practice, commercial considerations will also weigh significantly in the assessment process.  As one judge pithily observed, “what is worth copying prima facie is worth protecting.”[13]

When, therefore, a publication used certain lines from a popular song as the opening paragraph of a story, the courts held that this did not constitute infringement.  One of the considerations that weighed with the judges was that the purpose for which the publication had used the lines was totally different from the purpose behind the song.  The court noted as well that copyright law should not be allowed to be used as a means of oppression.[14]

 

6.29     Can the publication of unauthorised still photograph from a motion picture amount to infringement?

Yes.  This principle also applies to the unauthorised copying and use of portions of a broadcast.

 

6.30     What are the tests for infringement?

The courts have regard to a number of factors in deciding whether infringement has taken place.  Although they are by no means exhaustive, the following points are relevant:


-     Where two works are similar, or even identical, but one has not been derived from the other, there is no infringement.  This can happen, for example, when two artists paint pictures of a landscape from the same viewpoint.  In this case, there will be very little difference between the two pictures.  Even so, each picture enjoys copyright separately and distinctly from the other.


 -    It is not necessary for the person who alleges infringement of his copyright to prove that the infringer acted deliberately or with bad intention.[15]  Even unconscious copying will result in liability (although the amount of damages awarded will, in such cases, be comparatively smaller).

 

6.31     What is ‘secondary’ infringement?

This involves actions that aid or support infringement, such as renting a theatre where a play which has infringed copyright is allowed to be performed, or importing or keeping for sale pirated copies of books, tapes or compact discs.  Generally speaking, any legal action for secondary infringement would require the plaintiffs or prosecutors to show knowledge on the part of those being targeted.

 

Defences

 

6.32     What are the main defences to a charge of copyright infringement?

Most national legislation recognised the following as defences to a charge of infringement:


-         fair dealing


-         the work being in ‘the public domain’

 

 

6.33     What is ‘fair dealing’?

The law recognises as legitimate the use of reasonable extracts from copyrighted material without the owner’s permission, and this is known as ‘fair dealing’.  The purposes for which such use may be made are:


(a)   research or private study;


(b)   criticism or review;


(c)    reporting current events.


Where anyone uses copyrighted material for any of the abovementioned purposes, there is no infringement.

 

6.34     What are the conditions attached to ‘fair dealing’?

Firstly, that the quantity of extracts used must be ‘reasonable’.  Secondly, that due acknowledgement is made of the source of the extracts.  Thirdly, that the extracts are only used for purposes allowed by the law.

 

6.35     What is considered ‘reasonable’ under ‘fair dealing’?

There is no mechanical formula to determine reasonableness.  Much would depend on the facts of each case.  The following examples will illustrate the approach taken by the courts in this area.

In 1991 British Satellite Broadcasting (BSB), a satellite channel, used brief excerpts of World Cup coverage from the BBC which had exclusive rights to the matches.  The excerpts lasted between 14 and 37 seconds and were transmitted four times in BSB’s sports news bulletins with due acknowledgement to the BBC as the source of the clips.  The BBC accused BSB of infringing its copyright, arguing among other things that the excerpts used were from the most interesting parts of the matches.  BSB defended the action by pleading fair dealing.  The court accepted that defence, noting that there had been no disproportionate use of copyrighted material.[16]

Likewise, when a prominent terrestrial TV station used excerpts from a film entitled A Clockwork Orange in one of its review programmes, and the excerpts amounted to 8 per cent of the film and 40 per cent of the programme, the court ruled that the defence of fair dealing would succeed.  The copyright owners argued, among other things, that the excerpts used were an unrepresentative selection and that the TV station had an ulterior motive in using the clips, but the court rejected those arguments, holding that as long as the purpose to which the excerpts were put was genuine criticism or review, the defence was valid.[17]

 

6.36     Is the defence of fair dealing available in respect of unpublished works?

Generally speaking, no, though the position may vary between countries.  Under British law, for example, it is now only available to works that have been “made available to the public”.  As a result, when a prominent newspaper published extracts from the private diaries written by Prince Charles, the heir to the British throne, which made controversial observations about Chinese politicians during the handover of Hong Kong to China, and the prince sued them for infringement of copyright, their defence of fair dealing failed.  The court was shown that copies of the diaries had been circulated to only between 20 and 70 close friends of the prince, and this, held the judges, did not amount to being made available to the public.[18]

 

6.37     What is meant by a work being in “the public domain”?

When the term of copyright in a work expires, the work is deemed to be in the public domain.  This means, in practice, that the work can from then on be copied, translated, adapted or dealt with in any way by anyone without seeking or obtaining the permission of the author or his representatives.

Works in the public domain are also often referred to as works “out of copyright”.

 

6.38     Is there a defence of ‘public interest’ possible in cases of copyright infringement?

Generally speaking, no.  However, judges have sometimes recognised such a defence in limited circumstances.  For example, where a media organisation published excerpts from a confidential document that had been ‘leaked’ to it, it may be able to argue that, although there was an infringement of copyright, the infringement should be excused on the grounds that the publication of the document was in the public interest.[19]

 

6.39     Can copyright be denied to a work on grounds of immorality or indecency?

Many legal systems restrict the enjoyment of copyright for public policy reasons.  One of the grounds on which a copyright owner may be prohibited from asserting his rights is immorality or behaviour that is contrary to accepted standards of decency.  Hence, the author of a book which is pornographic in nature may not be able to prevent others from plagiarising the work.[20]  Likewise, it was held by the UK’s House of Lords in 1990 that Peter Wright, the author of Spycatcher (the book written in breach of an obligation of confidentiality to the British Government) would not be able to claim the protection of copyright law to sue anyone who might copy and sell the book without his permission.[21] 

 

6.40     Can protection be removed from a work which enjoys copyright?

Some national laws do allow for copyright protection to be removed under certain circumstances.  For example, under the UK’s Copyright, Designs and Patents Act 1988, the British Government can make an order removing copyright protection for specified works created by foreign authors if it appears to the Government that the law of the country to which the author belongs does not give adequate protection to British works.[22]

However, it is worth noting that not all countries may recognise immorality as a ground for denying copyright protection.  Also, standards of morality keep changing from time to time, so precedents in this area must be treated with care.

 

Transfer of copyright

 

6.41     Can copyright be transferred from one person to another?

Yes.  The transfer can be limited or unlimited (both in terms of time and territorial reach), conditional or unconditional.  In most countries, any transfer of copyright requires it to be in writing and to be signed by the person making the transfer.

 

6.42     What is a ‘licence’ in relation to copyright?

In simple terms, a licence is permission granted by the owner of copyright to another person to do something which he, the copyright owner, alone can do in law.  The person or company issuing the licence is called the ‘licensor’ and the person or company to whom the licence is issued is called the ‘licencee’.

Although no special formalities are necessary for the grant of a licence, most licences are given in writing, with all the terms clearly stated.  This makes it easier to resolve any disputes that may arise later.  However, a licence may sometimes be implied.  For example, when a person sends a letter to the editor of a newspaper for publication in the newspaper, it is implied that the person intends to grant the editor a licence to publish (there is also, incidentally, an implied licence on the part of the writer to let the editor edit the letter for reasons of space or linguistic accuracy or elegance).

 

6.43     What is the position concerning media releases?

Often a person or a company sends out a press release or, as is increasingly becoming common now-a-days, messages in other media forms (e.g. a compact disc or video), fully intending that it will be published, i.e. widely disseminated, by the entity to which it is sent.  Here, there is an implied licence on the part of the copyright owner.  However, some media releases come with an embargo, i.e. a clear statement that the information contained in it shall not be released before a certain date.  If the media organisation breaches this embargo and publishes the information ahead of that date, it will be liable for breach of copyright, because the implied licence does not begin to take effect until that date.

 

6.44     Can a licencee sue a third party for breach of copyright?

Generally speaking, only if he has been specifically authorised by the owner of copyright.  Where, therefore, a person who has bought the rights to publish and sell copies of a book, discovers that another person (who holds no such licence) also – unauthorisedly – sells copies of the book, all he can do is ask the owner of copyright who can sue the latter.  He is, however, entitled to recover any loss that he suffers as a result of the infringement from the owner of copyright, as long as he has an exclusive licence to sell the book.

 

6.45     What precautions should broadcasters and other media organisations take in relation to licences?

They must ensure that they have obtained the necessary licences from everyone who owns copyright in any material that is planned to be used.  If the work in question has multiple owners (e.g. where a TV drama is written by three persons), consent must be obtained from each of them.  Broadcasters must also make sure that they obtain licences for every intended use of the copyrighted material.

 

International Arrangements

 

6.46     Does the law of copyright have an international dimension?

Yes and no.  Generally speaking, copyright is governed by domestic law, with each country having its own copyright regime, including enforcement mechanisms.  However, since many copyrighted works are exploited internationally, i.e. across national boundaries, there is a need to ensure that sufficient protection is afforded to them even outside the country from which they originate.  This is done through a treaty-based system which rely on reciprocity and mutual recognition.

 

6.47     What are the main international treaties on copyright?

There are essentially three major treaties:


(1)   The Berne Convention;


(2)   The Universal Copyright Convention; and


(3)   The Rome Convention.

 

6.48     What are the main features of the Berne Convention?

Known formally as ‘The Berne Convention for the Protection of Literary and Artistic Works’, this convention was concluded in 1886 in Berne, Switzerland.  All signatories to it are required to recognise and give effect to the copyright of works from any member-state to the same extent as they would to works emanating from within their own borders.  This is known as the ‘system of equal treatment’.

In addition, members of the Berne Union are also required to provide a certain minimum level of protection through standards in national law.  For example, every literary or artistic work (except photographs) shall enjoy copyright protection for the lifetime of its author and at least 50 years after his death.[23] 

The Berne Convention has been revised several times, e.g. 1896 (in Paris), 1908 (in Berlin), 1928 (in Rome), 1948 (in Brussels) and 1967 (in Stockholm)

 

6.49     What are the main features of the Universal Copyright Convention?

The Universal Copyright Convention grew out of a 1952 initiative of the United Nations Educational, Scientific and Cultural Organisation (UNESCO) aimed to cater to a number of developing countries and to the then Soviet Union which disagreed with the concept of strong copyright protection embodied in the Berne Convention.  In due course, many of the Berne Convention states also joined the UCC, although it was made clear that, if any Berne Convention state subsequently renounced that Convention, it would not continue to enjoy protection afforded by the UCC.

In practice, the UCC began losing its significance, especially since the end of the Cold War and the advent of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) under the World Trade Organisation.

 

6.50     What are the main features of the Rome Convention?

The Rome Convention – formally known as the International Convention on the Protection of Performers, Phonogram Producers and Broadcasting Organisations – came into existence in 1961 and is administered by the World Intellectual Property Organisation, an inter-governmental organisation headquartered in Geneva, Switzerland.  It extended copyright protection to the then new technologies of sound and image reproduction (such as tape-recorders and gramophone records).  Under this convention, performers – including actors, singers, musicians, dancers and others who perform literary or artistic works – are allowed to control the broadcasting and dissemination to the public of their live performances, the fixation (i.e. recording on to a tangible medium) of such performances, and the reproduction of recordings, without their consent.

The Rome Convention also allows producers of phonograms to prohibit the reproduction of their phonograms, and broadcasting organisations to prohibit the rebroadcasting of their broadcasts or the unauthorised recording of such broadcasts.

The convention does, however, recognise some exceptions to the rights of performers, producers and broadcasters in their works.  These include:


-         private use;


-         use solely for the purpose of teaching or scientific research;


-         use of short excerpts for the purpose of reporting current affairs;


-         ephemeral fixation by a broadcasting organisation;


-         any other use permitted by national law on copyright.

 

6.51     Are there any other international treaties relevant to the media in relation to copyright?

Yes, the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs), in particular, which is part of the World Trade Organisation (WTO) legal regime.  This agreement, concluded in 1994, lays down minimum standards of protection and enforcement for various intellectual property rights, including copyright, for those countries which are part of the WTO system.

 

6.52     What are the salient features of TRIPs?

The first thing to note about TRIPs is that the consequences of non-compliance with its provisions are far more serious than under, say, the Rome Convention.  Whereas disputes under the Rome Convention are referrable to the International Court of Justice at The Hague (a mechanism which has been seen to be quite weak), any breach of TRIPs are dealt with by the WTO which has far stronger sanctions at its disposal.  Among other things, if the relevant WTO panel hearing a TRIPs complaint enters an adverse finding against a country, that country can be subjected to retaliatory trade measures by other members of WTO.

In substantive terms, the most important change brought about by TRIPs is that it takes a more serious view of infringements than the regime established under the World Intellectual Property Organisation (WIPO).  All members of the WTO are required to ensure that the provisions of the Berne Convention (except the moral rights listed under Article 6 bis) are complied with scrupulously. This means, among other things, that where a broadcaster uses material from other countries in its broadcasts, it will have to comply strictly with requirements for royalty payments.  (In practice, this may not make any difference to those countries which are already signatories to the Berne Convention, but it will impose new obligations on those WTO member countries which have not yet signed up to the Berne Convention.)

 

6.53     Are there any perceived gaps in copyright protection under international law?

Yes.  One which has been highlighted in recent years concerns the lack of protection for broadcast signals, viz. electronic signals carrying radio or television programmes before they are received by the public.  This makes it difficult for broadcasting organisations to stop or prevent appropriation of such signals by those who are not entitled to use them, causing significant financial losses.  Where, for example, a broadcaster has paid a huge sum of money to buy the rights to telecast a football match, and another broadcaster dishonestly ‘steals’ the signals carrying the programme (with a view to telecasting it commercially), the first broadcaster is usually left with no legal remedy against the second.  Broadcasting organisations have, therefore, been campaigning for a new treaty which would protect broadcast signals.  Although such a treaty has been discussed at the international level, it has not yet been brought into existence.[24]

 

Miscellaneous

 

6.54     What is meant by ‘collective enforcement’ of copyright?

Since it is very difficult for individual copyright owners to manage the enforcement of their rights and to track down infringements, many of the creative industries – esp. the music industry – have established a system of collective enforcement.  Under this system, a ‘collecting society’ – e.g. the Performing Rights Society in the UK – represents the interests of all its members and to issue licences, etc. to third parties who may wish to use copyrighted material.



[1]               Where the person transmitting the programme does his job merely mechanically without any practical or legal responsibility for the contents of the programme, he will not be treated as the ‘author’.  In relation to satellite broadcasting – where the broadcaster simply receives a broadcast and re-transmits it immediately – the authorship rests with the person making the original broadcast and not with the person re-transmitting it.

[2]               Pitman v. Hine (1884) 1 TLR 39.

[3]               Masson, Seeley & Co. Ltd. v. Embosotype Manufacturing Co. (1924) 41 RPC 160.

[4]               Francis, Day & Hunter Ltd. v. Twentieth Century Fox Corporation Ltd. [1940] AC 112.

[5]               Exxon Corp. v. Exxon Insurance Consultants International Ltd. [1982] Ch 119.

[6]               See, e.g. McCrum v. Eisner (1917) 117 I.T. 536.

[7]               S. 22.  The period of 60 years is calculated from the beginning of the calendar year following the year in which the author dies.  Where the work is jointly authored by two or more persons, the period of 60 years starts running from the time the death of the author who lives longer or longest.

[8]               Such works are referred to as ‘anonymous’ or ‘pseudonymous’ works.

[9]               S. 23. If the authorship of any such work is disclosed before the end of the term, copyright would subsist for the lifetime of the author plus 60 years following his death. For the purposes of this law, a work is deemed to be ‘published’ if it is performed in public or if any records of the work are sold, or offered for sale, to the public.

[10]             Ss. 25, 26, 27.

[11]             Ss. 28, 28A, 29.

[12]                 Copyright, Designs and Patents Act 1988 (see, e.g. s. 12).  However, under British law, a period of 50 years is retained for certain types of work, e.g. computer-generated works, sound recordings.

[13]                 University of London Press Ltd. v. University Tutorial Press Ltd. [1916] 2 Ch. 601.

[14]                 Chappell & Co. Ltd. v. D.C. Thompson & Co. Ltd. (1928-35) MCC 467.

[15]             See, e.g. Byrne v. Statist Co. [1914] 1 K.B. 622.

[16]             BBC v. British Satellite Broadcasting Ltd. [1992] 1 Ch. 141.

[17]             Time Warner Entertainments Co. v. Channel Four Television [1994] EMLR 1.

[18]             HRH Prince of Wales v. Associated Newspapers Ltd. [2006] EWHC 522; [2006] EWCA Civ 1776.

[19]             See, e.g. Beloff v. Pressdram [1973] 1 All E.R. 241; Express Newspapers v. News Ltd. [1990] 3 All E.R. 376.

[20]             See, e.g. Glyn v. Weston Feature Film Co. [1916] 1 Ch. 261.

[21]             Att-Gen. v. Guardian Newpapers Ltd. (No. 2) [1990] 1 AC 109.

[22]             S. 160.

[23]             It is, of course, possible for a country to offer protection for a longer period if it so chooses.

[24]             For further information on this subject, see the website of the Asian Broadcasting Union, www.abu.org.my.