Theme 2. Copyright

1. History of copyright law

2. Concept and importance of copyright.

3. Subjects of copyright, their characteristics and classification.

4. Objects of copyright, concept, characteristics, types.

5. Exclusive property rights of authors.

6. Private non-property rights of authors.

7. Property right of official works.

8. Methods of works creation.

9. Works created in co-authorship and property right of them.

10. Allied rights and their legal safeguard.

11. Organization of collective management of authors’ property rights.

12. Specific features of legal regulation of intellectual property right relations. Authors’ agreement as a form of legal relationship documentation.

13. Classification of author’s contracts on assignation of non-exclusive author’s rights. Author’s contract on order.

14. Structure of author’s contract. Contents of author’s contract. Substantial clauses of author’s contract.

15. Author’s fee, amount and procedure of its payment.

16. Intellectual property right inheritance.

Copyright was invented after the advent of the printing press and with wider public literacy. As a legal concept, its origins in Britain were from a reaction to printers' monopolies at the beginning of the 18th century. Charles II of England was concerned by the unregulated copying of books and passed the Licensing of the Press Act 1662 by Act of Parliament, which established a register of licensed books and required a copy to be deposited with the Stationers' Company, essentially continuing the licensing of material that had long been in effect.

The British Statute of Anne (1710) further alluded to individual rights of the artist, beginning: «Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing... Books, and other Writings, without the Consent of the Authors... to their very great Detriment, and too often to the Ruin of them and their Families:». A right to benefit financially from the work is articulated, and court rulings and legislation have recognized a right to control the work, such as ensuring that the integrity of it is preserved. An irrevocable right to be recognized as the work's creator appears in some countries' copyright laws.

Aside from the role of governments and the church, the history of copyright law is in essential ways also connected to the rise of capitalism and the attendant extension of commodity relations to the realm of creative human activities, such as literary and artistic production. Similarly, different cultural attitudes, social organizations, economic models and legal frameworks are seen to account for why copyright emerged in Europe and not, for example, in Asia. In the Middle Ages in Europe, there was generally a lack of any concept of literary property due to the general relations of production, the specific organization of literary production and the role of culture in society. The latter refers to the tendency of oral societies, such as that of Europe in the medieval period, to view knowledge as the product, expression and property of the collective. Not until capitalism emerges in Europe with its individualist ideological underpinnings does the conception of intellectual property and by extension copyright law emerge. Intellectual production comes to be seen as a product of an individual and their property, rather than a collective or social product which belongs in the commons. The most significant point is that under the capitalist mode of production, patent and copyright laws support in fundamental and thoroughgoing ways the expansion of the range of creative human activities that can be commodified. This parallels the ways in which capitalism led to the commodification of many aspects of social life that hitherto had no monetary or economic value per se.

The Statute of Anne was the first real copyright act, and gave the publishers rights for a fixed period, after which the copyright expired. Copyright has grown from a legal concept regulating copying rights in the publishing of books and maps to one with a significant effect on nearly every modern industry, covering such items as sound recordings, films, photographs, software, and architectural works.

Prior to the passage of the United States Constitution, several States passed their own various copyright laws between 1783 and 1787, the first State having done so being Connecticut. Contemporary scholars and patriots such as Noah Webster, John Trumbull, and Joel Barlow were instrumental in securing the passage of these statutes.

The Copyright Clause of the United States Constitution (1787) authorized copyright legislation: «To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries». That is, by guaranteeing them a period of time in which they alone could profit from their works, they would be enabled and encouraged to invest the time required to create them, and this would be good for society as a whole. A right to profit from the work has been the philosophical underpinning for much legislation extending the duration of copyright, to the life of the creator and beyond, to his heirs.

The original length of copyright in the US was 14 years, and it had to be explicitly applied for. If the author wished, he could apply for a second 14 year monopoly grant, but after that the work entered the public domain, so it could be used and built upon by others.

Thomas Jefferson, who strongly advocated the ability of the public to share and build upon the works of others, proposed as part of the Bill of Rights that a short timespan be protected:

Art. 9. Monopolies may be allowed to persons for their own productions in literature and their own inventions in the arts for a term not exceeding — years but for no longer term and no other purpose.

The 1886 Berne Convention first established recognition of copyrights among sovereign nations, rather than merely bilaterally. Under the Berne Convention, copyrights for creative works do not have to be asserted or declared, as they are automatically in force at creation: an author need not «register» or «apply for» a copyright in countries adhering to the Berne Convention. As soon as a work is «fixed», that is, written or recorded on some physical medium, its author is automatically entitled to all copyrights in the work, and to any derivative works unless and until the author explicitly disclaims them, or until the copyright expires. The Berne Convention also resulted in foreign authors being treated equivalently to domestic authors, in any country signed onto the Convention. The UK signed the Berne Convention in 1887 but did not implement large parts of it until 100 years later with the passage of the Copyright, Designs and Patents Act of 1988. The USA did not sign the Berne Convention until 1989.

The United States and most Latin American countries instead entered into the Buenos Aires Convention in 1910, which required a copyright notice (such as «all rights reserved») on the work, and permitted signatory nations to limit the duration of copyrights to shorter and renewable terms. The Universal Copyright Convention was drafted in 1952 as another less demanding alternative to the Berne Convention, and ratified by nations such as the Soviet Union and developing nations.

The regulations of the Berne Convention are incorporated into the World Trade Organization's TRIPS agreement (1995), thus giving the Berne Convention effectively near-global application. The 2002 the World Intellectual Property Organization enacted greater restrictions on the use of technology to copy works in the nations that ratified it.

With the intense lobbying of Disney, each time its works came close to entering into the public domain under normal conditions, the US Congress has extended copyright length, to the point where it is now 70 years after the death of the author.

The sources of copyright are represented by normative acts, to which we refer legislative acts and the constitution, the law of Ukraine «About a copyright and contiguous rights».

For correct and synonymous application of legislation at defence of copyrights a large value has judicial practice of consideration of questions arising up in the case of violation of copyrights. The Supreme Court of Ukraine systematically summarizes and analyses such practice, draws proper conclusions about which courts report.

Special group of sources of modern copyright represent international agreements: Bern convention on the guard of literary and artistic works (in 1886), which was repeatedly complemented and was changed; World (Genevan) convention on a copyright (in 1952); Roman convention on the guard of rights of artists-performers, manufacturers of phonograms, and also producers of organizations of broadcasting (in 1961); Convention, that creates Worldwide organization of intellectual property (signed in Stockholm in 1967, operating with 1970); Genevan convention on the guard of interests of manufacturers of phonograms (in 1971); Brussels convention on distribution of the programs, which carry signals passed through satellites (in 1974).

International agreements set mutual rights and duties of countries-participants and is the basic legal form of development of international cooperation in the field of author law. In Ukraine the conclusion of international agreements is a constitutional right.

Work of science, literature or art is the object of copyright, shown in any objective form. Work is the result of creative labour of author, the complex of ideas, images, views and things like that. In the article 5 of Law about a copyright it is included the list of objects of copyright and general signs of them. They can be verbal works (speeches, lectures, reports, performances and such like things), written works (literary, scientific, technical), musical works, translations, scenarios, works of fine art and so on. A law does not give the complete list of objects of copyright, as life in the development can generate new and new forms of objective expression of creative activity of people.

Not any work can be the object of copyright, and only that, which has certain signs, set by the law: and) creative character; ) expression in an objective form.

The work which is the result of creative labour of copyright can be the object of copyright. Technical work is not the object of author right (for example, reprinting on the printing-press of other stranger persons work or even his literary treatment is editing, proof-reading and others like that).

Work can be shown in any objective form, but necessarily suitable for the recreation, perception. The most objective form can be verbal, writing (notes, drafts, charts, record on a plate, magnetic tape, pictures and others like that).

Choreographic works and pantomimes can be the objects of copyright; collections of works of folk songs, laws, court decisions and things like that. A copyright in these case arises up on creative character of selection and placing, but does not spread on maintenance of the collected works.

Translation of work by other language is an independent object of copyright, as work of a translator is considered creative.

A copyright is acknowledged after any work in the branch of science, literature, art regardless of its form, readiness and artistic value. This position has the important value, as it guards works of a different artistic level and purpose, including such which were not appointed by an author for the publication (for example, leaves, diaries, personal records, impressions).

Consequently the work as object of copyright is incarnate in a certain material form: manuscript, notes, sculpture, picture and others like that. However a copyright on work (how the immaterial object of copyright is) and right of ownership on a thing into which it is incarnated does not depend on each others. It you must not follow mix up work as an object of copyright and thing as a manuscript, picture, copy of book.

A right on work belongs to its creator, therefore, who wrote a book, picture, created music, sculpture, audio-visual work.

The citizen of Ukraine, foreigner or person without citizenship can be the author of scientific, literary or artistic work. Concept the «author of work» and author «legal subject» are not identical.

Can be the author of work, and also other legal persons for which a copyright can arise up in force of law, agreement or inheritance. So, in accordance with the articles 20, 21, 25, 27 Law about a copyright, right on scientific collections, encyclopaedic dictionaries, magazines, other magazines belongs to organizations, that let them out in a world. Copyright on film or telefilms belongs to the enterprise which carried out his surveys, on a telecast - the proper televisional organizations.

If two or a few authors by general labour create any work, the relations between them are named the coauthor. A civil legal theory sets two types of coauthor:

а) when it is impossible to select labour of every coauthor, is non-separate coauthor;

б) when component parts are defined and it is known, who of coathors wrote that or other part, is separate coauthor.

The coauthor is possible at creation of any works. For its determination certain terms should be followed:

1. The work created by general creative labour of coauthors must be unique. However possible such a combination of two forms of creation, when none of them loses the independent value, but in such case there will be no coauthor.

2. General labour of coauthors of work is to be creative.

3. There must be the agreement about the general prosecution of work.

4. At the separate coauthor each of coauthors keeps a copyright on the part. At the same time he is the coauthor of work on the whole. The coauthor is to be voluntarily.

5. At the inseparable coauthor the work can be used only after the common consent of all coauthors.

6. The fee for the use of work belongs to the coauthors in general particles, if other is not foreseen in the agreement (article 12 Law about a copyright).

From the coauthor we must distinguish collaboration after which a few authors take part in creation of collective labour on the task of certain organization. This collective labour is not unique. A copyright on collective work belongs to the legal entity.

The original creators of works protected by copyright, and their heirs, have certain basic rights. They hold the exclusive right to use or authorize others to use the work on agreed terms. The creator of a work can prohibit or authorize:

- its reproduction in various forms, such as printed publication or sound recording;

- its public performance, as in a play or musical work;

- recordings of it, for example, in the form of compact discs, cassettes or videotapes;

- its broadcasting, by radio, cable or satellite;

- its translation into other languages, or its adaptation, such as a novel into a screenplay.

Copyright and its related rights are essential to human creativity, by giving creators incentives in the form of recognition and fair economic rewards. Under this system of rights, creators are assured that their works can be disseminated without fear of unauthorized copying or piracy. This in turn helps increase access to and enhances the enjoyment of culture, knowledge, and entertainment all over the world.

Many creative works protected by copyright require mass distribution, communication and financial investment for their dissemination (for example, publications, sound recordings and films); hence, creators often sell the rights to their works to individuals or companies best able to market the works in return for payment. These payments are often made dependent on the actual use of the work, and are called royalties.

Royalties (sometimes, running royalties, or private sector taxees) are usage-based payments made by one party (the «licensee») and another (the «licensor») for ongoing use of an intellectual property (IP) object.

The proprietary rights of the author have a time limit, according to the relevant the World Intellectual Property Organization treaties, of 50 years after the creator’s death. National law may establish longer time-limits. In Ukraine according to the Law of Ukraine «About a copyright and contiguous rights» the economic rights of the author are protected for 70 years after the death of the author. This period of time enables both creators and their heirs to benefit financially from the usage of their works by them or other persons, Copyright protection also includes personal non-property (moral) rights, which involve the right to claim authorship of a work, and the right to oppose changes to it that could harm the creator’s reputation.

The creator – or the owner of the copyright in a work – can protect rights administratively and in the courts, through inspection of premises for evidence of production or prossession of illegally made goods related to protected works. The owner may obtain court orders to stop such activities, as well as seek damages for loss of financial rewards and recognition.

Copyright protection extends only to expressions, and not to ideas, procedures, methods of operation or mathematical concepts as such. This principle has been confirmed by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) of the Word Trade Organization (WTO) as well as the World Intellectual Property Organization Copyright Treaty.

In the 1970s and 1980s, there were extensive discussion on whether the patent system, the copyright system, or a sui generis system, should provide for computer software. These discussions resulted in the generaly accepted principle that computer programs should be protected by copyright, whereas apparatus using computer software or software-related inventions should be protected by patent.

Copyright law and patent law prowide different types of protection. Copyright protection extends only to expressions, and not to ideas, procedures, methods of operation or mathematical concepts as such, whereas a patent is an exclusive right granted for an invention, which is a product or a procces that provides a new way of doing something, or offers a new technical solution to a problem. Copyright protection is formality-free in countries party to the Berne Convention for the Protetion of Literary and Artistic Works (the Berne Convention), which means that protection does not depend on compliance with any formalities such as registration or deposit of copies. Copyright protection of computer software is established in most countries and harmonized by international treaties to that effect. The law relatingto the patentability of software is still not harmonized internationally, but some countries have embraced the patentability of computer software and others have adopted approaches that recognize inventions assisted by computer software.