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Comments 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.

Logo inspired from snapkalaw.lawoffice.com

The basic term of the author plus fifty years is equally applicable to unpublished and published works (U.S.C. §101).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.

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 : 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.

Image du domaine public

The information highways.

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

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