Copyrights


Copyright law is intended to protect and to reward original expressions embodied in tangible material or fixed form. In the first category an idea does not infringe copyright but once it is expressed in some form, then it becomes tangible when expressed, you don’t only have the idea in your head you have expressed it and its somehow in fixed form. Not everything that is new is patentable unless they are original expressions and are in original form.


Subject matter of copyright is divided into two broad categories:

a) Primary works

Americans call these works of original authorship. These include literally works, artistic work, musical work and sound recordings.


Literally works are defined under Section 2 of Copyright Act as meaning irrespective of literally quality. When a play is in writing it is a literally work but the moment you perform it is called a performance. A treatise is a book that deals with one subject in great detail. Essays and articles are also copyrightable. Letters are copyrightable. Reports are copyrightable. Memorandum including MOUs are copyrightable, summons are copyrightable. Charts and tables, computer programs or software, tables and compilation of data are copyrightable.


Literally works do not include judicial decisions and statutes. A headnote is copyrightable. Musical works – means any musical work irrespective of musical quality and includes works composed for musical accompaniments.


Artistic works – means irrespective of artistic qualities, paintings are artistic works, etching, lithographs, woodcarvings and maps etc. photographs which are not comprised in audiovisual works i.e stills, the photographer owns the copyright in a picture for exercising skill and judgment in taking the photo, the poser is not responsible for the composition of the photograph.

An author is the first owner of a copyright. Payment is not the basic issue in intellectual property, the issue is who exercises skill and judgment. Works of architecture in the form of buildings are artistic works and are copyrightable. Industrial handcrafts and clothe designs.


b) Secondary works or neighbouring works
These works do not belong to the cathedral of creativity. Poets, painters, musicians


Audiovisual works – a VHS or DVD are audiovisual they are both audio and visual or have both qualities – it is the director who owns the copyright for audiovisual work. Sound recordings - sound recordings are physical embodiments of primary works. Broadcasts – this is any transmission intended to be received whether it is received or not,


What is a performance S. 30 (6) of the copyright Act defines a performance as "performance" means the representation of a work by such action as dancing, playing, reciting, singing, declaiming or projecting to listeners by any means whatsoever;


COPYRIGHT & RELATED RIGHTS

People who compose their own music have primary rights to the copyright while those who perform have secondary derivative or related rights to copyright. Berne Convention of 1886 Right of author to be recognized as the author of his work Right of paternity Parody and satire are not infringement of ©


TRIPS Agreement incorporated articles 1-24 of the Berne Convention excluding only moral rights. US does not recognize moral rights, they can take your music and mutilate it.


What is original?

Original is many times confused with the term creative but original may mean That its not a copy; - copy – its not a reprint of another and it is not a copy version of another, it embodies skill and judgment i.e. a work must embody skill and judgment to be copyrightable –Feist v Rural (US) a company published a white pages directory, another company copied the entries and published a yellow pages directory, they even copied trap entries.


In the supreme court the white pages directory said the yellow pages was infringing and yellow pages argued that what white pages had was not copyrightable but it was only sweat and brow, sweat and brow are not copyrightable.


What white directory had entered was mere data and was not works of skill. Feist Publications, Inc., v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991), commonly called just Feist v. Rural, was a United States Supreme Court case in which Feist copied information from Rural's telephone listings to include in its own, after Rural refused to license the information. Rural sued for copyright infringement. The Court ruled that information contained in Rural's phone directory was not copyrightable, and that therefore no infringement existed.


COPYRIGHTS UNDER TRIPS

Article 9 provides foundation for implementing Berne but not the administrative provisions only the substantive provisions.


Article 9(2) – makes it absolutely clear that copyright does not extend to idea procedures, the clearest statement on this Article 10 – deals with computer programs and software and not literally works 10(2) – protects databases in machine readable forms. Article 12 deals with the term of copyright and it is at least life plus 50 Europeans life plus 70.


There can be exceptions to copyright Article 14 protects performance 1939-1945 – countries argued that a trade after caused the 2nd world war, that Germany went to war over trade restrictions.


In 1947 there were meetings to try and secure international peace and to regulate economic activities and development and balance of payments issues. There was a problem that some countries were imposing quantitative restrictions or quotas on imports. They established the World Bank to help countries in reconstructing and the IMF to help countries facing balance of payments problems.


To regulate international trade there was a suggested to establish the International Trade Organization but in the Havana Charter the ITO was rejected. GATT has a three prong identity one it was a forum for countries to discuss on how to regulate tariffs but it was not very organized like the UN for example. It was just a forum with rounds like the Havana Round. It also had the character of Rules – the GATT deals on how to deal with tariffs the other prong was about its being an organization and a Club. It was referred to as the rich countries’ club.


Around 1964 during the Kennedy Round of GATT some countries argued that tariffs and barriers were not the only barriers to trade but there were other Non-tariff barriers to trade such as Sanitary and Phyto sanitary standards SPS and technical barriers referred to as NTBs sanitary standards are used for example when the EU puts a ban on importation of fish from Kenya saying they are not handled well, this becomes an SPS barrier to trade.


1979 Japan Round – the US and other countries started talking about counterfeiting that when you counterfeit other peoples works, you deny the countries the right to trade, allowing copying of others trademark was trade distorting

In 1974 US enacted its Trade Act Section 301 that any country that undermined US Trade would face sanctions. Infringing copyrights a country could be put on the Watch List and if they continued they would be put on a Priority Watch List and a country could face sanctions. The US adopted unilateral measures on countries that continued to infringe on its copyrights. America also adopted bilateral measures and negotiated the US Canada Free Trade Agreement USCFTA among other agreements with Intellectual Property clause USCFTA was later transformed into North America Free Trade Agreement NAFTA after they signed multilateral agreement with Canada and Mexico.


Historically trademarks were about goods but now services are specifically being included. Article 15 recognizes the Paris Convention on protection of trade marks which gives as the idea of well known marks or notorious marks.


Article 16 marks must be protected for at least 7 years. TRIPS gave minimum standards to trademarks. It conferred certain rights to trademark owners.


Article 17 – allowed limited exceptions to the exclusive rights


Article 21 – provided general framework for licences and assignments and emphasises that there can be no compulsory licensing in the case of trademarks. The rationale here being trademarks are about trade and to allow compulsory licensing in this area is to undermine the trademark owner. It also confirms that one can transfer their business without necessarily transferring their mark.


Trademark became a precondition of maintaining registration. If one does not use a mark for 3 years it can be expunged. Case of Drum Magazine.


Under the Copyright Act 2001 originality is stated in Section (3) as A literary, musical or artistic work shall not be eligible for copyright unless
(a) sufficient effort has been expended on making the work to give it an original character; and
(b) the work has been written down, recorded or otherwise reduced to material form.


Creative ideas are expressed through books, drawings, sculptures, drawings, and photographs. Computer programs are protected as literally works,