Scope Of Copyright Protection Research Articles

Laughing Is Not an Exception! An Italian Perspective on the Autonomous Protection of Parodies Beyond Elaboration

This paper analyses the legal regime of parodistic work from an Italian and European copyright law perspective. Taking into consideration that the Italian Copyright Act does not contain any specific parody exception, the author maintains that parodistic works cannot fall within the scope of the quotation and criticism exception. Based on the fact that, as is well known, EU copyright law does not allow Member States and national courts to apply a general “fair use” doctrine to support the lawfulness of using another’s work for parodistic purposes, it is argued that the use of a previous work to create a new parodistic work falls beyond the scope of copyright protection, and that the creation and commercialisation of a parodistic work cannot be prohibited by the author of the parodied work, since the former does not amount to an elaboration of the latter.

Research in "Duty of Filtering" of Chinese E-commerce Platform in the Scope of Copyright Protection -- Refer to Article 17 of the Directive on Copyright in the Digital Singles Market

With the development of Internet technology and the advent of the era of user-generated content, copyright infringement occurs frequently. The e-commerce platform, which is dominant in the operating transaction space, needs to supervise and manage the selling activities of the merchants in the platform. The issue under discussion in this paper is whether the "duty of notice" to be performed by e-commerce platforms in the regulation of infringement occurs after the infringement and does not require the right holder to give effective notice of infringement to the e-commerce platform, and the criteria for determining the platform's high duty of care ("Duty of Filtering") in judicial practice. This paper adopts a literature and doctrine analysis method to summarize and analyze the core claims of scholars. By adopting the empirical analysis method, a sample of 200 judicial decisions related to the "Duty of Filtering" of e-commerce platforms in online copyright infringement was collected from various platforms, and the typical cases retrieved were summarized and integrated to summarize the current situation of judicial application of the Duty of Filtering of e-commerce platforms. Through a combination of empirical and theoretical research, the current status of the determination of the "filtering obligation" of e-commerce platforms in China is explored, as well as the court's thinking on the case that should be adjusted in light of Article 17 of the EU Directive on Copyright in the Digital Singles Market.

Eliminating ‘Aesthetics’ from Copyright Law: The Aftermath of Cofemel

Abstract The recent Cofemel judgment of the Court of Justice of the European Union extended the European Union’s (EU) originality criterion (i.e. the author’s own intellectual creation) to the realm of works of applied art. The Court excluded ‘aesthetically significant visual effect’ as a condition of copyright protection. It was condemned as subjective and incompatible with the EU originality criterion. The decision may signal a shift in several national copyright laws, under which requirements relating to ‘aesthetics’ are laid down as a condition to acquire protection. This article will demonstrate that the ‘aesthetics criterion’, as it emerged historically and has been employed in national copyright laws, is associated with a different meaning than it conveys at first glance. The aesthetics criterion designates the elbow room remaining to the author after functional constraints have been taken into account, and thus represents a form of the functionality doctrine in the domain of copyright law. However, to some extent it also excludes – though not uniformly – commonplace designs from the scope of copyright protection. Against this background, this article suggests that the aesthetics criterion can arguably be reconciled with the EU originality criterion. The aesthetics criterion represents a balance struck between the need for copyright protection in the field of applied arts, on the one hand, and competition, on the other. In order not to upset this careful balance, a robust application of the EU originality criterion is advocated, precluding protection not only to functionality, but also to commonplace creations.

The Protection of Sports Broadcast Rights in the Commonwealth Caribbean after TVJ v CVM

Although sport, in its myriad forms, represent a major pillar of Caribbean societies, sports broadcasters have suffered tremendous loss over the years as a result of signal piracy. With the increasing recognition of the value of broadcast rights in generating much-needed revenue, and the commensurate increased awareness among broadcasters as to how the law may protect these rights, sports broadcasters in the Caribbean have, in the recent years, become a lot more adversarial in their dealings with infringers of their copyright in broadcasts. This has culminated in a recent decision, Television Jamaica v CVM, in which a Caribbean superior court has, for the first time, delivered a landmark judgment on the scope of copyright protection in sports broadcasts. The decision is timely, well-reasoned and progressive, and address a number of nuanced questions, which previously remained unanswered. By drawing on regional copyright legislation, jurisprudence from other jurisdictions, and the recently decided TVJ v CVM case, this article argues that, for the first time, broadcasters in the Caribbean are afforded an adequate and effective level of protection against infringement of their broadcasts, albeit that they cannot claim a monopoly in said broadcasts, since the fair dealing defence has been construed as balancing the rights and interests of competing stakeholders in the field of sport.

<i>Google v. Oracle</i> Amicus Certiorari Stage Brief: Vindicating IP’s Channeling Principle and Restoring Jurisdictional Balance to Software Copyright Protection

The Federal Circuit’s decisions in Oracle v. Google conflict with this Court’s seminal decision in Baker v. Selden, 101 U.S. 99 (1879), misinterpret Congress’s codification of this Court’s fundamental channeling principle and related limiting doctrines, and upend nearly three decades of sound, well-settled, and critically important decisions of multiple regional circuits on the scope of copyright protection for computer software. Based on the fundamental channeling principle enunciated in Baker v. Selden, as reflected in § 102(b) of the Copyright Act, the functional requirements of APIs for computer systems and devices, like the internal workings of other machines, are outside of the scope of copyright protection even as non-merged aspects of the implementing code for APIs are protectable. Google independently implemented the functional specifications of the 37 APIs at issue and hence did not infringe Oracle’s copyrights. By way of brief illustration, copyright protects artistic and literary works, such as a creative metal sculpture or haiku. Nonetheless, the proprietors of those works cannot complain when third parties replicate elements of that expression that are essential to the operation of a particular machine. For instance, a car manufacturer could secure the ignition switch for its automobiles via a metal key with an original cut pattern on the blade. Although that pattern might be protected as a modern sculpture, the car manufacturer could not use copyright law to prevent others from utilizing the same expression for the purpose of starting the car. The same consideration applies to a car manufacturer that secures a digital ignition switch via entry of a haiku. Copyright law does not bar third parties from utilizing the necessary expression of that otherwise protectable literary work for the purpose of starting the car. The computer program implementing that digital key may be protected by copyright law, but the law places no bar on copying the essential functional elements needed to operate the ignition switch — the haiku text and any other indispensable functional features of the computer program. As Baker v. Selden recognized, copyright law’s limiting doctrines implement a constitutional and statutory balance intended to promote progress by channeling functional features exclusively to the utility patent regime. Although copyright can protect separable expressive features, such as surface ornamentation of an ignition key or non-merged implementing code of a digital ignition key, it does not bar the use of functional specifications — the essential technological elements. Only utility patent law can protect those features.

Google LLC v. Oracle America, Inc. - Brief of 72 Intellectual Property Scholars as Amici Curiae in Support of Petitioner

Until the Court of Appeals for the Federal Circuit’s 2014 Oracle decision, software developers felt free to compete and innovate in the development of compatible software because major decisions from the Courts of Appeals for the Second and Ninth Circuits had established that copyright law does not protect software interfaces that enable the development of compatible programs. These cases and their progeny recognized that unlike conventional literary works, computer programs are highly utilitarian. They embody many copyright-unprotectable elements, such as compatibility-enabling interfaces, that must be filtered out before making infringement determinations. Programs consequently receive a relatively “thin” scope of copyright protection to ensure that subsequent programmers can freely reuse unprotectable elements in developing their own programs. As a matter of copyright law, the pro-compatibility decisions are sound as they facilitate fair competition by those who write new code while preserving copyright’s role in protecting software from piracy and other wrongful appropriations. The Federal Circuit’s 2014 Oracle decision was a radical departure from these precedents and directly contradicts their rulings. It adopted an unduly narrow view of this Court’s ruling in Baker v. Selden, 101 U.S. 99 (1880), which excluded methods, systems, and their constituent elements from copyright’s scope. It ignored Congress’ codification of the method/system exclusions. It misconstrued the case law properly interpreting those exclusions in relation to program interfaces. The Federal Circuit also misapplied the merger doctrine and case law persuasively holding that interfaces that enable compatibility are unprotectable by copyright law. Because of the Federal Circuit’s numerous errors in analyzing Google’s copyrightability defense, this Court should overturn its ruling. Programmers should have to write their own implementation code, as Google did, but interfaces that enable compatibility should be free from copyright restrictions.

Artificial Authors: Case Studies of Copyright in Works of Machine Learning

The Article investigates whether creative works produced via machine learning algorithms qualify for copyright protection. Previous research into this question has been largely theoretical. By contrast, the Article introduces four empirical case studies of works produced via machine learning. The Article examines the copyrightability of such works under U.S., E.U., and U.K., law. The Article concludes that such works are sufficiently original to qualify for copyright protection. This conclusion casts into doubt prior literature that finds works of machine learning algorithms to be outside the scope of copyright protection.

A Fairness-Based Approach to Economic Rights

The economic rights in copyright law received their present shape under different economic circumstances. Unlike in other areas of intellectual property law, there is no infringement test which would limit copyright protection to its proper function. Whereas in US law the broad scope of copyright protection is counterbalanced by the fair use exception, no such flexibility exists in EU law. This paper proposes a more flexible, market-sensitive infringement test. The ‘fairness-based approach’ presented here draws on experiences from trade mark and unfair competition law. It suggests a three-level model consisting of a black list of acts which are pro-hibited per se if done without the right owner’s consent, a medium level of acts which only trigger an infringement action if a negative effect on the right owner’s market or an unjustified profit of the user is shown, and a broad general clause.

Utwory fotograficzne w regulacjach prawa autorskiego od czasów II Rzeczypospolitej do chwili obecnej. Analiza prawnoporównawcza.

<p>Tematem niniejszego artykułu jest analiza regulacji prawa autorskiego dotyczących utworów fotograficznych, na tle historycznym. Pierwszą ustawą normującą sytuację prawną fotografii była ustawa z dnia 29 marca 1926 roku o prawie autorskim. Na jej gruncie utwory fotograficzne mogły stanowić przedmiot prawa autorskiego, ale powstanie praw uzależnione było od spełnienia szeregu warunków formalnych, w szczególności umieszczenia zastrzeżenia praw autorskich. Następna ustawa z dnia 10 lipca 1952 roku o prawie autorskim nie przyniosła wielu zmian w tym zakresie, nadal w znacznym stopniu ograniczając zakres ochrony prawnoautorskiej przyznanej fotografiom. Z kolei obecnie obowiązująca ustawa z dnia 4 lutego 1994 roku o prawie autorskim i prawach pokrewnych zrezygnowała z większości rozwiązań ograniczających zakres ochrony prawnoautorskiej w stosunku do fotografii. Po przeanalizowaniu najważniejszych przepisów odnoszących się do utworów fotograficznych na gruncie kolejnych ustaw z zakresu prawa autorskiego, autor dokonuje oceny zmian, jakie zaszły na tle regulacji prawa autorskiego dotyczących fotografii w XX wieku.</p>

PERLINDUNGAN HUKUM TERHADAP PELANGGARAN HAK CIPTA MELALUI MEDIA INTERNET BERDASARKAN UNDANG-UNDANG NOMOR 28 TAHUN 2014 TENTANG HAK CIPTA

Initially the scope of copyright protection only focused on conventional objects of creation. However, along with technological developments and advances, the object of copyright protection is expanding on the forms of creation in the form of science, art, and literature are digitized. Copyright Laws that are currently still experiencing some problems in order to provide protection to the creative works expressed through the internet media. Therefore, it is interesting to examine the legal protection against copyright infringement through internet media based on Law Number 28 Year 2014. The method used in this research is normative legal research. Sources of data used in this research are secondary data, namely data obtained from legislation, scientific journals, and legal literature. Data collection techniques used in this research is literature study. Data analysis technique used in this research is qualitative analysis. The results of this research indicate that the development and advancement of technology increasingly facilitate the occurrence of violations of Copyright through the internet media are hijacked, copied, and traded in the midst of society. Although in Law Number 28 Year 2014 has been set about bans and strict criminal sanctions, but due to weak regulation and lack of legal awareness of the public make law enforcement of Copyright is not running optimally.

Wigmorian Copyright: Law, Economics, and Socio-Cultural Evolution

The scope of copyright protection has been extended throughout the centuries. While it initially did not cover much more than printed books, it now comprises a large variety of different works and regulates innumerable marketplaces for creative products. At the same time, theory has made enormous leaps, from an initial understanding of copyright as a static and individual natural-law entitlement to today’s more economic conception. Yet one thing has remained unchanged: no matter what the product or marketplace at issue, the law still offers a virtually uniform level of rights protection for all scenarios. Such monolithic invariance is the root of many problems, since today’s marketplaces for creative products are anything but homogeneous with respect to the correlation between rights extension and creative activities. So far, much of the discussion has focused on how to modify substantivelaw copyright doctrine. This perspective overlooks the impact and importance of court adjudication. A more process-oriented and evolutionary view would help conceive of a better, more comprehensive and context-sensitive model of copyright. Indeed, it is the process and method of practical lawmaking rather than the statutory fine-tuning of substantive law policies that is the most significant determinant of the evolution of copyright law “in action.” This study proposes a more evolutionary approach to copyright theory and, accordingly, a number of modifications to current doctrine in order to create a more context-sensitive, flexible, and economically sound copyright law.

Copyrighting facts? Ownership of news images

ABSTRACTStriking the proper balance between private intellectual property interests and the public interest is especially important in the context of news, given its fundamental role in democracy. This article examines the scope of copyright protection for photojournalism, as well as the First Amendment safeguards that may limit that protection. It focuses on current understandings of the fair use doctrine and the idea/expression dichotomy (and idea/expression merger.) Next it focuses on the federal district court ruling in the Zapruder film case, which was based on one of the fair use doctrine’s key questions, but which also considered and rejected an idea/expression merger defense. An analysis of that case, and also a pair of key law review articles on copyright and images, leads to a proposal for a new “public-interest merger” doctrine for balancing public and rights holders’ interests in cases involving news images. That proposal argues for focus on whether the news images are exclusive (or at least nearly so), and evidentiary.

Copyright's Illogical Exclusion of Conceptual Art

This Essay argues that copyright illogically excludes conceptual art from protection on the basis of fixation, given that well-settled case law has interpreted the fixation requirement to reach works that contain certain kinds of change so long as they are sufficiently repetitive to be deemed permanent. While conceptual art may perhaps be better left outside the scope of copyright protection on the basis of its failure to meet copyright’s other requirements, this Essay concludes that fixation should not be the basis on which to exclude conceptual art from protection. There are of course both normative and descriptive questions around the copyright-ability of conceptual art; this Essay addresses itself primarily to the descriptive question of fixation, and whether works of art that contain change, by design, must be excluded. Part I surveys the rationales for the fixation requirement and discusses the case law holding that works of art that change may still qualify for protection, culminating in the puzzling decision to the contrary in Kelley v. Chicago Park District. Part II offers a taxonomy of different kinds of conceptual art that could be seen as “inherently changeable,” and argues that these categories should be understood and treated distinctly. Finally, this Essay concludes that Kelley’s overly broad “inherently changeable” test threatens to exclude from copyright protection many different kinds of conceptual art on the basis that their changing or changeable nature renders them unfixed. Some of these works are analogous to the changing works that have been protected through copyright in spite of their internal change, like the video games, and some of them diverge in ways that might or might not be relevant for copyright law. I conclude that courts should be wary of relying on Kelley and should treat different kinds of conceptual art differently depending on what kind of art they are adjudicating.

Functionality and Expression in Computer Programs: Refining the Tests for Software Copyright Infringement

Functionality and Expression in Computer Programs: Refining the Tests for Software Copyright Infringement

Copyright Industry Perspectives: The Pivotal Role of TPMs in the Evolution of the Video Game Industry

The story of the video game industry, like that of many other creative art forms, is in part a testament to the power of copyright law. Compared with many other industries that rely on copyright protection, however, the video game industry is relatively young. Although there is considerable debate about the industry’s precise birthdate, most point to the earlyto mid-1970s as the point at which video games entered into the mainstream consciousness. Coming of age around the same time that the 1976 Copyright Act was being debated and later implemented, an initial challenge for the industry was simply ensuring that authors of video games received the same scope of copyright protection as authors of more traditional forms of media. Given that the defining characteristic of video game software was its interactivity, with the audiovisual output controlled in part by user interaction, there was initially some uncertainty about the extent to which early video games could be protected by copyright. Indeed, the Register of Copyrights once famously declined to register a copyright claim in the audiovisual components of a video game in part because the content was not an original work of authorship due to its interactive nature.1 In denying the claim for copyright, the Register noted that the audiovisual components of the game could not be registered because “they are created randomly by the player and not by the author of the video game.”2 Of course, the Register was subsequently persuaded to register the work,3 and questions about the copyrightability of video games have faded. Unsurprisingly, however, other copyright challenges have emerged. Like most desirable digital content, video games are subject to extraordinarily high levels of online piracy and other forms of copyright infringement. Although the pernicious effects of piracy are well known, the steps the video game industry has taken to combat piracy—and defeat it in the marketplace—warrant closer

Copyright’s Illogical Exclusion of Conceptual Art

This Essay argues that copyright illogically excludes conceptual art from protection on the basis of fixation, given that well-settled case law has interpreted the fixation requirement to reach works that contain certain kinds of change so long as they are sufficiently repetitive to be deemed permanent. While conceptual art may perhaps be better left outside the scope of copyright protection on the basis of its failure to meet copyright’s other requirements, this Essay concludes that fixation should not be the basis on which to exclude conceptual art from protection. There are of course both normative and descriptive questions around the copyright-ability of conceptual art; this Essay addresses itself primarily to the descriptive question of fixation, and whether works of art that contain change, by design, must be excluded. Part I surveys the rationales for the fixation requirement and discusses the case law holding that works of art that change may still qualify for protection, culminating in the puzzling decision to the contrary in Kelley v. Chicago Park District. Part II offers a taxonomy of different kinds of conceptual art that could be seen as “inherently changeable,” and argues that these categories should be understood and treated distinctly. Finally, this Essay concludes that Kelley’s overly broad “inherently changeable” test threatens to exclude from copyright protection many different kinds of conceptual art on the basis that their changing or changeable nature renders them unfixed. Some of these works are analogous to the changing works that have been protected through copyright in spite of their internal change, like the video games, and some of them diverge in ways that might or might not be relevant for copyright law. I conclude that courts should be wary of relying on Kelley and should treat different kinds of conceptual art differently depending on what kind of art they are adjudicating.

The Freedom of Expression Contours of Copyright in the Digital Era: A European Perspective

This paper analyses the influence of the right to freedom of expression and information on European copyright law in the digital context. Drawing on the practice of the two major European courts—the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU)—it begins by exploring how this fundamental right shapes both the scope of copyright protection in Europe and what is traditionally termed as “exceptions and limitations” to exclusive rights. Specifically, a long‐standing practice of the ECtHR, in accordance with which copyright in turn may be viewed as an exception to freedom of expression and must hence be narrowly interpreted, is scrutinized. On a related note, a recent recourse by the CJEU to the language of “users' rights” is examined, inasmuch as it allows for a reconceptualization—in a normative framework of freedom of information—of copyright “exceptions” not as the exceptions as such, but as the equal rights of users of protected subject‐matter. In this regard, the locus standi of “mere users” of online content and the somewhat diverging approaches of the Strasbourg and Luxemburg courts toward granting thereof are addressed. The paper then turns to discuss the recent recourse by the European courts to freedom of expression as a means to define the role of internet service providers in digital copyright enforcement, implicating issues ranging from the providers' liability in respect of the third‐party content posted online to the often far‐reaching injunctions imposed on non‐liable intermediaries. Several conclusions are drawn from the above analysis, reflecting on the potential of freedom of expression and information to inform the development of European standards applicable in the field of digital copyright.

Videogames and their clones – How copyright law might address the problem

As is the case for other creative works, developers of videogames should be able to rely upon copyright law for protection of their intellectual property. However, although videogames are frequently cloned by rival videogame developers, copyright law appears ill-equipped to cope with the practice. Cloners avoid copying the game components that are clearly protected by copyright: the frames, sounds, or computer code; instead, they copy the way in which the videogame plays (“the gameplay”) which courts have found to be outside the scope of copyright protection. Some scholars have argued that the cloners would be more vulnerable to effective legal challenge if videogames were protected as a new category of works in copyright law. In this article, however, I draw upon videogame theory from the digital humanities, and link this to the concept of copyright harmonisation, which has been propounded as likely to guide future decisions of the Court of Justice of the European Union, to explain why the suggestion that videogames should comprise a new category of copyright works is not practicable. Instead, I argue that a videogame as an entity should be protected by copyright, as should any other creative work, provided it meets the criteria of “an original intellectual creation”.

An Empirical Study of Law Journal Copyright Practices

This article presents an empirical study of the copyright practices of American law journals in relation to copyright ownership and fair use, based on a 24-question survey. It concludes that many American law journals have adopted copyright policies that are inconsistent with the expectations of legal scholars and the scope of copyright protection. Specifically, many law journals have adopted copyright policies that effectively preclude open-access publishing, and unnecessarily limit the fair use of copyrighted works. In addition, it appears that some law journals may not understand their own copyright policies. This article proposes the creation of a Code of Copyright Best Practices for Law Journals in order to encourage both open-access publishing and fair use.

Geographies of Knowledge: Cultural Diffusion and the Regulation of Heritage and Traditional Knowledge/Cultural Expressions in Southeast Asia

Although always concerned with cultural products in the form of literature, visual arts, inventions and symbols for marketing purposes, intellectual property initially did not problematise the concept of culture. It was regarded as more or less universal and not as regionally or locally specific. The early international agreements were concluded largely by European nations that indeed had similar values and practices when it came to rewarding creative endeavours in the fields of arts, science and engineering. Tunisia, then a French protectorate, was the only non-European country among the initial signatory states of the Berne Convention. The only non-European country among the initial signatories of the Paris Convention was Brazil. Of course, there were differences between the United Kingdom and Continental European nations about the importance of moral rights vis-a-vis economic rights, but these were differences about the scope of copyright protection, not about the subject matter of protection as such. Few independent countries from outside Europe joined the international IP system prior to World War II. The really significant expansion of the system occurred with the decolonisation process after the end of the war and again in a most recent wave following the conclusion of the WTO TRIPS Agreement. However, as more and more newly independent countries began to join the international IP system after the end of World War II, it soon became clear that they brought with them different forms of knowledge and of artistic expressions that European derived intellectual property systems found difficult to accommodate.The clearest expression of this different environment has been with regard to the debate about the use of intellectual property principles to protect what has become known as traditional knowledge and traditional cultural expressions. This article will give a brief overview of this debate and show its inter-dependence with broader notions of cultural heritage protection, as developed in various UNESCO conventions. The mixture of cultural and intellectual property is often a powerful, yet dubious basis for claims. The article will then move on to examine a specific problem for legal regulation of this subject matter, namely the diffusion of cultural material through migration movements and the expansion of nation states. It will show how the national borders and geographical maps of current nation states that define the limits of national law and regulation are different from cultural realms. These differences will be explained using examples from Southeast Asia. Historians have used historical maps and sources to show that the emphasis on the precise delineation of borders arrived with Western style geography and cartography and with colonial powers eager to exploit natural resources and to know exactly on which side of the border such resources were situated. The resulting fixation of relatively fluid borders often cut through the realms of cultural minorities that had traditionally paid little attention to national boundaries. The fact that their cultures continued to be practised on both sides of a border was of little significance for tangible expressions of culture that were either here or there. However, with increasing emphasis on intangible cultural material in national laws inspired by UNESCO conventions for heritage protection and in WIPO discussions about traditional knowledge and traditional cultural expressions, conflicting claims are now becoming more frequent.