Creative Expression – Benefitting from your copyright and using copyrighted work of others in your business



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Creative Expression – Benefitting from your copyright and using copyrighted work of others in your business

  • Mr. Paul Bodenham
  • Studio Legale Alma

Outline: What will we know after this session?

  • What companies’ creative expressions are…
  • Which creative expressions are protected under copyright and which under related rights…
  • What benefits of such protection are…
  • Who the owner of creative expressions is…
  • What the term of protection is..
  • How to prevent the unauthorized use of copyright works …

Companies’ Creative Expressions

  • Written
  • Articles, Texts, Books, Novels, Poems, Manuals
  • Guides, Brochures, Essays, Plays

Companies’ Creative Expressions

  • Visual
  • Graphic, Industrial, Design, Photos, Art works
  • on labels

Companies’ Creative Expressions

  • Spoken
  • Lectures, Speeches
  • Sound-based
  • Ringtones, Music

Companies’ Creative Expressions

  • Motion-based
  • Drama, Films, Dance, Ads

Companies’ Creative Expressions

  • 3D
  • Buildings
  • Digital
  • Software, Databases

Copyright protection

  • Creative expression which is:
    • Original
    • Expressed in a certain objective form
  • No registration required but in USA – is recommended registration

Copyright protection

  • Originality:
  • Regardless of its artistic, scientific or some other value, its purpose, size, content, etc.

Related rights protection

  • Rights of performers (actors, musicians, singers, dancers…)
  • Rights of phonogram producers (CD-producing companies, etc.)
  • Rights of broadcasting organizations (TV, broadcasting organizations)

Copyright does not protect

  • Ideas, procedures, methods, mathematical concepts or systems
  • Facts (scientific, historical, biographical)
  • News whether published, broadcast or publicly announced
  • Names, short phrases or slogans
  • Official legal documents issued by state bodies or state authorities (laws, decrees, regulations, international agreements, judicial judgements)

Benefit of copyright protection

  • Possibility to protect various original creative expressions from the moment of their creation
  • Granting of a number of exclusive rights:
    • Economic Rights (for a limited period of time)
    • Moral Rights (for an unlimited period of time in most of the countries)

Benefit of copyright protection

  • Possibility to control further use (in any form and by any means) of protected creative expressions
  • In other words, possibility to prohibit the other from use without a permission
  • Getting revenues from the use with permission
  • Licensing, transfer of rights, assignment Benefits

Using your own copyright

  • Making copies and selling them
  • Importing or exporting
  • Renting, leasing or donating
  • Communicating copies to the public
  • Making them available to the public, incl. digitally (on the Internet)
  • Translating or adapting them
  • Licensing, transferring, assigning the rights

Using your own copyright

  • License rights, economic use, exclusive or non-exclusive, keep ©
  • Sell original work/copies, no economic use, “first sale” doctrine, keep ©
  • Assign rights, transfer of ownership

Copyrights protects moral rights

  • Right of Authorship
  • Right to be Named
  • Right of the Work’s Integrity ( not equal in Anglo-American legal system which generally does not recognize moral rights)

Where is copyright valid?

  • Protection is limited to the territory of a country of origin
  • Minimum standards of protection or some aspects are regulated by:
    • International treaties (1886 Berne Convention, 1961 Rome Convention, 1994 TRIPS Agreement, 1996 WIPO Treaties);
    • Regional legal acts (e.g. EU directives and regulation);
    • Principal of national treatment: a country extends the same protection to foreigners that it accords to its own authors

Case study

  • Company Creative Solutions, Inc. would like to start producing T-shirts with photos of celebrities on them. The company selected a few photos, but the manager of the company wants to remove information about photographers from the bottom of the photos and to change colors of those photos, so that they fit to the colors of T-shirts.
  • Can the company do that?

Who’s the owner of creative expression?

  • Owner vs. Author
  • The ownership question may be regulated differently in different countries in cases of:
    • Works created by employees as part of their job
    • Commissioned or specially ordered works
    • Works created by several authors
    • Derivative works

Works created by employees

  • In the company which deals with building construction and architecture business, an employee creates design of buildings during working hours using the company’s software.
  • In some countries, an employer will automatically own copyright, unless otherwise agreed.
  • In others, the transfer of rights to employer (the company) should be specified in an employment contract.

Commissioned works

  • A design company signs a contract with the advertisement company and commissioned a creation of an advertising booklet for itself (about its business, people, projects, etc.).
  • The advertisement company created a very informative and aesthetic booklet with photos and texts. Later, the design company decides to use some photos and texts from that booklet on its website.
  • In most countries, the advertisement company will own copyright in the booklet, whereas the design company will be able to use the work for the purposes for which the booklet was commissioned.
  • In order to use photos or texts from the booklet on its website, the design company needs to get a permission from the advertisement company.

Works created by several authors

  • One company decides to write an e-dictionary with two other companies. They agree to write separate sections of that dictionary which will then be combined together, so that the fluent piece of work is made.
  • All three companies will become joint authors of the e-dictionary. Their intent to make a joint work is very important here.
  • In some countries, the further use of the book will need the common consent of the three authors.
  • In some others (like US), the authors can decide to exercise their rights separately, but each will need to share profits with others.
  • It is advisable for the authors to draft a detailed written contract.

Works created by several authors

  • Three software companies decided to create three computer programs, used for calculating salaries, and publish them as one CD.
  • If they do not intend these computer programs to be a joint work and would like use them separately, this will be a collective work.
  • In that case, each company will own copyright in the part of software it created.

Derivative works

  • A company decides to draft an electronic game based on the book of the worldwide famous novelist Paulo Coehlo.
  • Paulo Coehlo’s copyright is protected; therefore, in order to create such electronic game, his permission is first required.
  • The general rule is that independent copyright can extend to those parts of derivative work which are original (to software elements in this specific case).

How long copyright works are protected

  • Economic rights - 50/70 years post mortem auctoris
  • Moral rights – usually for an indefinite term in most countries

How long related works are protected?

  • 50 years (EU) from the end of year in which:
    • The performance took place, or
    • Fixation was made, or
    • Broadcast was made

Using copyright works of others

  • For the use of works in which someone else owns copyright the owner’s prior consent (permission) is required.

Using copyright works of others

  • Allowed free use (“fair use” concept):
    • Content or material is not protected under copyright/related rights
    • A work is in public domain
    • Personal or private use
    • Scientific, teaching, research
    • Citation
    • Parodies or criticism
    • Other non-commercial uses

Getting the author’s permission

  • 1 Step - Clarification if a work is protected
    • Checking copyright notices, if any
    • Searching in the register
    • Contacting CMO(s)
    • Contacting agencies/agents
  • 2 Step - Identification of copyright owner
    • Contacting publishers, record producers, agents, distributors, legal representatives, etc.
  • 3 Step - Negotiating and concluding licensing agreement
    • Terms and conditions, scope of right being used, remuneration, a term, etc. should be clearly defined

Turkey: Legislation and enforcement

  • Turkey has, among others, the following legislation concerning copyright protection:
  • - the Law on Intellectual and Artistic Works (Copyright Act) No.
  • 5,846 of 5 December 1951, as amended by Law No. 5,101 on 3
  • December 2004; and
  • - a number of regulations concerning the implementation and
  • enforcement of the above Copyright Acts, including Regulation
  • No. 26,171 of 17 May 2006 regarding the recordal and
  • registration of intellectual and artistic works.

Who enforces Copyright?

  • The administrative procedure for copyright formalities is implemented by the Ministry of Culture and Tourism (the ministry) – specifically by the General Directorate of Copyright and Cinematography located in Ankara.
  • Copyright infringement actions are heard before specialist courts for intellectual and industrial property rights located in the cities of Istanbul, Ankara and Izmir.

Subject matter and scope of copyright

  • A work qualifying for protection under the Act: ‘is any kind of intellectual and artistic creation carrying the characteristics of its author and is considered as scientific, literary, musical, fine art (artistic) or cinematographic. (Article 1B of the Copyright Act),

Who is the owner of a copyrighted work?

  • According to article 8, paragraph 1, of the Copyright Act, ‘the author of a work is its creator’.

What types of rights are covered by copyright in Turkey?

  • The author of a work protected by copyright has economic rights and moral rights.
  • Economic rights give the author the right to adapt, reproduce, distribute, communicate, broadcast or otherwise dispose of the work.
  • Moral rights allow the author to communicate the work to the public, put his or her name on the work and prohibit it being modified.

What may be protected by copyright in Turkey?

  • According to the general principles in the Copyright Act, original or creative works shall be subject to copyright protection.
  • The issue of originality is assessed and evaluated on a case-by case basis within the context, and in relation to, the characteristics reflecting the personality of the author.

What may not be protected by copyright?

  • Copyright Act excludes from protection the concepts or principles on which any element of a computer program is based including those on which its interface is based. This is because they are not deemed works that can enjoy copyright protection under the Copyright Act.

Public Policy Restrictions on Copyright

  • The Copyright Act includes the doctrines of ‘fair use’ and restricts the rights of the copyright holder for reasons of public policy.
  • Public policy restrictions include:
  • use of the work as evidence before the court or other authorities in criminal proceedings; and
  • reproduction of photographic works for judicial reasons.

Public Policy Restrictions on Copyright

  • Public interest restrictions also include:
  • - use of officially published law texts, regulations and court decisions;
  • - reproduction of a public recitation with the aim of providing news or broadcasting; and
  • - free use of published works for educational purposes provided there is no direct or indirect commercial profit arising from the use and that such use is not detrimental to the author’s legitimate rights.

‘Fair use’

  • There is a proviso that use must not be commercial and must not be detrimental to the normal use of the work.
  • Any use that is not compatible with the doctrine of fair use can be prohibited by the copyright holder.

Are performance rights covered by copyright? How?

  • The Copyright Act defines ‘performing artists’ as any person who interprets, presents, explains, speaks, plays or expresses a work in a variety of manners in an original or novel way, without any prejudice to the moral and economic rights to the owner of the work;

Are related rights recognized? How?

  • The following rights fall within the scope of related rights according to the Copyright Act in Turkey:
  • the rights of performing artists;
  • the rights of record companies producing the sound recording
  • for the first time; and
  • the rights of broadcasting organizations.

Performance rights

  • Performing artists have the right to be known as owner of their performances and to prevent them from being altered or impaired in a manner detrimental to their reputation (moral rights).
  • Also, performing artists that interpret a work with the authorization of its author have the exclusive right to record their performance and to reproduce, distribute, communicate, rent, lent and to broadcast their recordings (economic rights).

Are moral rights recognised?

  • Moral rights are recognized in articles 14 to 17 of the Copyright Act and respectively give the copyright owner the exclusive right to:
  • determine whether the work shall be disclosed to the public and if so, to decide the timing and the manner of the publication (the right of disclosure);
  • prohibit the reduction, insertion and other modification of the work as well as of the name of owner of the work without its authorization (the right of integrity).

What are the consequences for failure to display a copyright notice?

  • Since the notice is declaratory rather than constitutive evidence for the assessment of ownership in a copyright dispute, failure to display a copyright notice has no effect on such assessment.
  • Nevertheless, use of the notice may be important because it informs the public that the work is protected by copyright, identifies the copyright owner and shows the year of first publication.
  • In the event that the copyright is infringed, a proper notice of copyright shall have the effect of refuting a defense based on infringement in good faith.

What are the consequences for failure to make a copyright deposit?

  • Failure to deposit shall not affect the validity of the copyright protection.
  • However, the deposit of cinema and music works is required under the mandatory recording of the work for obtaining the certificate of operation for their wholesale distribution and display to the public.

Is there a system for copyright registration?

  • Regulation No. 26,171 of 17 May 2006, regarding the recording and registration of intellectual and artistic works, provides a system for registration of all kinds of artistic work, which is administered by the Ministry and the General Directorate of Copyright and Cinematography in Ankara.

How do you apply for a copyright registration?

  • As the registration does not have any constitutive effect, failure to register has no negative effect on copyright ownership.

May an employer own a copyrighted work made by an employee?

  • The agreements and the disposal of the economic rights of the copyrighted work should be in writing and the type of these rights shall be expressly mentioned in writing to be valid.
  • Therefore, the simple of act of hiring an independent contractor for the creation of an artistic work is not sufficient for the automatic transfer of the rights to the copyrighted work. The creator shall clearly mention which of the economic rights have been transferred to the hiring party.

May a hiring party own a copyrighted work made by an independent contractor?

  • Article 18, paragraph 2, as amended by Law No. 4,630 provides that:
  • The rights originating from the works created by civil servants, employees and workers in the course of their duties or work shall be used by their employers or by those having appointed them unless otherwise agreed by special contract between them or otherwise construed from the nature or particularity of the work or employment.

May a copyrighted work be co-owned?

  • According to article 9 of the Copyright Act, ‘if a work created by more than one person can be divided in parts, each person shall be deemed the author of the part created by him’.
  • According to article 10 of the Copyright Act, ‘if a work –created by the contributions of more than one person constitutes an indivisible whole, the community of authors shall be deemed the author’.

May rights be transferred?

  • The author or his or her successors can transfer or assign in part or in whole the legally recognized economic rights of the work, whether limited or unlimited in time, place or content, and whether or not for monetary consideration. Economic rights in relation to work not yet created shall not be transferred.
  • Although not expressly indicated in the Copyright Act, moral rights are absolutely non-transferable and therefore any transfer of such rights is to be considered as invalid in accordance with the provisions of the Code of Obligations.

May rights be licensed?

  • It is possible for the author or his or her successors to transfer or assign the right to dispose of the economic rights to a third party, in other words to license. A license can be non-exclusive or exclusive.
  • Unless otherwise established either by law or by contract, all licenses are deemed non-exclusive. Non-exclusive licenses are governed by the provisions on leases whereby exclusive licenses are rule by the provision on usufruct.

How long does copyright protection last?

  • Copyright protection runs for the lifetime of the author and for 70 years after his or her death.
  • If the work is created by joint authors, the 70-year period will begin from the death of the last surviving author.
  • The protection period for works which are made public for the first time following the death of the author is 70 years after the death of the author. This period will commence on the first day of the year following the author’s death.

How long does copyright protection last?

  • If the protected work is a database, the protection period is 15 years from the date when the work was made public. If substantial amendments are made to the database causing substantial change in the content and investment, the amended version will be protected as a new database.

What constitutes copyright infringement?

  • The infringement of economic rights includes adapting, reproducing, distributing, performing, broadcasting or otherwise disposing of the work without the consent of the copyright holder.
  • Infringement of moral rights includes:
  • - unauthorized communication of the work to the public;
  • - failure to put the author’s name on the work;
  • - putting a name other than author’s name on the work;
  • - modifying the work without the consent of the author.

What remedies are available against a copyright infringer?

  • It is possible to ask for the compensation of moral and material damages.

What remedies are available against a copyright infringer?

  • If a work is translated without the author’s consent, published in the absence of a contract with the author, published in excess of the number agreed in an existing contract, adapted or broadcast by radio or television, or performed without the consent of the copyright holder, three times the amount that the infringer would have paid the copyright holder if the parties had concluded a contract for use of the copyright may be claimed.
  • It is possible to evidence such amount by previous contracts.

What remedies are available against a copyright infringer?

  • It is possible to request injunctive measures within the scope of the civil proceedings by evidencing the danger of (imminent) copyright infringement that may cause substantial damage. The court will need to be convinced that there is a high probability of such an infringement.
  • The courts are conservative and have the discretion to refuse claims for injunctive measures and they may request the deposit of a guarantee for ordering such injunctions.

What remedies are available against a copyright infringer?

  • Should such injunctive measures be requested before the institution of the civil action and the court reaches a favorable decision, the main civil action shall be instituted within 10 days of the date of the order for the injunctive measures. Otherwise, the order for injunctive measures will remain without effect.
  • It is also possible to institute a specific non-adversarial action for the determination of the facts. This can be an ex parte action for the determination of the infringement
  • .

What remedies are available against a copyright infringer?

  • Copyright infringement is also a criminal offence and it is possible to request the seizure of infringing products. Criminal proceedings can be brought against the infringer by filing a complaint with the public prosecutor.
  • .

What remedies are available against a copyright infringer?

  • Where a complaint is favorably received, the public prosecutor may order the police to seize the infringing goods. Criminal proceedings, initiated by the public prosecutor, can be brought if the copyright infringement is determined by the seizure of the goods. The infringing goods seized by the police will be kept in judicial custody until the end of the criminal proceedings.
  • Local security forces can ex officio initiate proceedings against and prosecute those involved in the selling of copies of musical and cinematographic works and non-periodical publications.
  • There is no requirement for the copyright holder to bring the proceedings or complaint.
  • The person involved in such an offence risks being convicted through criminal proceedings.

What remedies are available against a copyright infringer?

  • It is possible to request customs to suspend the release of the infringing goods. During routine clearance, the customs authorities, in cases of clear indications of copyright infringement, may suspend the release of the goods.
  • Likewise, the copyright holder may also put customs on alert for a period of 30 days by filing an application for a possible copyright infringement for incoming and outgoing goods.

Is online copyright infringement actionable?

  • The provisions of the Copyright Act also apply to copyright infringements that occur online.
  • The Copyright Act provides that the copyright holder is entitled to either authorize or prohibit the sale, distribution and presentation of the work through wire or wireless devices and the transmission of these works to the public by such means.

Is online copyright infringement actionable?

  • According to the additional article 4 of the Copyright Act, copyright owners who allege an infringement are entitled to ask the content provider to stop the infringement.
  • Should the content providers not stop the infringement within three working days the copyright holder is entitled to ask the public prosecutor to order the service provider to suspend the service to the content provider. The service providers shall continue to provide the service if the content provider stops the infringement.

Checklist

Thanks for the attention!

  • Mr. Paul Bodenham
  • pb@avvbodenham.it


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