ERASMUS PROGRAMME- INTELLECTUAL PROEPRTY LAW COPYRIGHT LAW – NEIGHBOURING RIGHTS, OTHER RELATED RIGHTS AND COLLECTIVE MANAGEMENT JUDr. Pavel Tůma, LL.M. Ph.D.

2 STRUCTURE A. Related rights 1. Performer´s rights 2. Recordings producer's rights 3. Broadcaster´s rights 4. First publisher´s rights B. Sui generis database rights C. Collective administration

3 A. RELATED RIGHTS

4 HISTORICAL BACKGROUND PROTECTION - BY AUTHOR´S RIGHTS (Europe) X - BY COPYRIGHT (UK, USA) 

5 HISTORICAL BACKGROUND author´s rights – only protection of creativity X technological development → establishment of a new system of rights

6 RECORDINGS CARRIERS EDISONS´S PHONOGRAPH

7 RECORDINGS CARRIERS GRAMOPHON PLATES

8 QUIZ no protection by author's rights! Protected by author's right or not?

9 TERM OF „RELATED RIGHTS“  significant for European continental system of author’s rights X Anglo-American system of copyright

10 TERM OF „RELATED RIGHTS“ group of rights of heterogeneous nature (exploited in connection with authorial works) group of rights of heterogeneous nature (exploited in connection with authorial works) creative activity (performers) creative activity (performers) investment (recordings, broadcast) investment (recordings, broadcast) ≠ neighbouring rights (only performers) exploitation through technical means exploitation through technical means permanent carrier permanent carrier ephemeral communication means ephemeral communication means

11 INTERNATIONAL LAW International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome, 1961) International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome, 1961) Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (Geneva, 1971) Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (Geneva, 1971) WIPO Performances and Phonograms Treaty (Geneva, 1996) WIPO Performances and Phonograms Treaty (Geneva, 1996)

12 EU LAW Directive 2001/29/EC of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society Directive 2001/29/EC of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society Directive 2006/116/EC of the European Parliament and of the Council on the term of protection of copyright and certain related rights (codified version) Directive 2006/116/EC of the European Parliament and of the Council on the term of protection of copyright and certain related rights (codified version)

13 EU LAW Directive 2011/77/EU of the European Parliament and of the Council amending Directive 2006/116/EC on the term of protection of copyright and certain related rights (transposition until November 2013) Directive 2011/77/EU of the European Parliament and of the Council amending Directive 2006/116/EC on the term of protection of copyright and certain related rights (transposition until November 2013) of the European Parliament and of the Council (transposition until April 2016) Directive 2014/26/EU of the European Parliament and of the Council on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market (transposition until April 2016)

14 SCOPE OF RELATED RIGHTS Rights protected in EU the rights of the performers the rights of the performers the right of the producers of a phonogram the right of the producers of a phonogram the right of the producers of an audiovisual fixations (films) the right of the producers of an audiovisual fixations (films) the right of the radio or television broadcasters the right of the radio or television broadcasters the right of publishers of previously unpublished works the right of publishers of previously unpublished works

15 1. PERFORMER´S RIGHTS

16 RIGHTS OF PERFORMERS - subject-matter PERFORMANCE= act of actors, singers, musicians, dancers, conductors, choirmasters, directors or other persons who, act, sing, recite, present or otherwise perform an artistic work

17 RIGHTS OF PERFORMERS – owner PERFORMER  person that created the individual outcome of the performing activity  always a natural person  performer of artistic work

18 RIGHTS OF PERFORMERS – scope of rights  moral rights right to make a performance public right to make a performance public right to indicate the origin of the performance right to indicate the origin of the performance right to be the performance used in a manner not depreciating his value right to be the performance used in a manner not depreciating his value not transferable, last until death  economic rights of performers right to fixation of performance right to fixation of performance right to reproduction of this fixation right to reproduction of this fixation right to distribute, lend, rent this reproduction right to distribute, lend, rent this reproduction right to communication to the public right to communication to the public in some countries not tranferable, duration - 50 years, however,70 years from publication of the soud recording

19 2. PRODUCER´S RIGHTS

20 RIGHTS OF RECORDING PRODUCERS – subject-matter phonogram = fixation of sound – artistic performance, other sound or their expression phonogram = fixation of sound – artistic performance, other sound or their expression audiovisual fixation (film) = fixation of an audiovisual work or other similar expression audiovisual fixation (film) = fixation of an audiovisual work or other similar expression irrespective of the contents  protection of investments

21 Audiovisual recording - example

22 RIGHTS OF RECORDING PRODUCERS – owner PRODUCER = investor  person (natural or artificial) who made a audio or audiovisual fixation  person who hired the making of the audio or audiovisual fixation

23 RIGHTS OF RECORDING PRODUCERS – scope of rights  right to reproduction of a audio or audio visual fixation  right to distribute, lend or rent these reproductions of fixation  right to broadcasting and other communication of the fixation to the public transferable, duration 50 years (70 years from publication of sound recording)

24 3. BROADCASTER´S RIGHTS

25 RIGHTS OF BROADCASTERS – subject-matter BROADCASTING = result of the dissemination of sound, or of images and sound, or of their expression by means of radio or television for reception by the public irrespective of the contents  protection of investments

26 RIGHTS OF BROADCASTERS – owner BROADCASTER = investor  person (natural or an artificial) who executes the broadcasting of sounds, or of images or sounds, or of their expression by radio or television  person who hired the to executing the broadcasting

27 RIGHTS OF BROADCASTERS – scope of rights the right of fixation of the broadcasting the right of fixation of the broadcasting the right of reproduction of the broadcast fixation the right of reproduction of the broadcast fixation the right of distribution of these reproductions the right of distribution of these reproductions the right of communication of the broadcast to the public (incl. retransmission) the right of communication of the broadcast to the public (incl. retransmission) tranferable, duration 25 years from original broadcast

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29 4. FIRST PUBLISHER´S RIGHTS

30 RIGHTS OF PUBLISHERS OF PREVIOUSLY UNPUBLISHED WORS protection of first publication of work after the expiry of copyright protection protection of first publication of work after the expiry of copyright protection economic rights similar to the author economic rights similar to the author duration – 25 years after the first publication

31 B. SUI GENERIS DATABASE RIGHT

32 PROTECTION OF DATABASES traditional – by copyright = protection of the creative activity (work of creative collection) traditional – by copyright = protection of the creative activity (work of creative collection)X EU concept – sui generis right = protection of investments EU concept – sui generis right = protection of investments

33 SUI GENERIS RIGHT Directive 96/9/EC of the European Parliament and of the Council on the legal protection of databases

34 SUI GENERIS RIGHT – investment INVESTMENT = qualitatively or quantitatively substantial investment in either 1. obtaining, 1. obtaining, 2. verification 2. verification 3. presentation of the contents 3. presentation of the contentsX NOT protection of the contents as such

35 LEGAL DATABASE - EXAMPLE

36 SUI GENERIS RIGHT – owner DATABASE PRODUCER = investor person who has compiled the database person who has compiled the database person who ordered a compilation of a database person who ordered a compilation of a database

37 SUI GENERIS RIGHT – scope of rights right to extraction right to extraction - similar to right to reproduction the re-utilization the re-utilization - similar to making available to public transferable, duration 15 yerars from publication or from every new substantial investment

38 C. COLLECTIVE ADMINISTRATION

39 HISTORICAL REASONS PURPOSES for rightholders - administration and enforcement of rights for rightholders - administration and enforcement of rights for users – place where to easy obtain the licences for users – place where to easy obtain the licences pro bono publico – spread of culture pro bono publico – spread of culture

40 ADMINISTRATION OF RIGHTS concluding of contracts with users concluding of contracts with users representing right holders claims representing right holders claims collecting remuneration on behalf of right holders collecting remuneration on behalf of right holders dividing and disbursing collected remuneration dividing and disbursing collected remuneration

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42 PRINCIPLES OF COLLECTIVE ADMISTRATION No international instrument → different national models (in the EU directive 2014/26/EU)  principle of self-governing administration  principle of (obligatory or contractual) representation  principle of monopolistic collective administrators  principle of government supervision  principle of obligatory licences  principle of non-profit execution  principle of multirepertoire agreements

43 DIGITAL ERA – CROSS BORDER ASPECTS collective administration based on national basis → problems with cross border licensing X problems of multitertorial licences

44 BASIC LITERATURE Sterling, J. A. L.: World Copyright Law. Londýn: Sweet & Maxwell, Cornish, W. – Llewelyn, D.: Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights. Londýn: Sweet & Maxwell, Bently, L. – Sherman, B.: Intellectual Property Law, 2nd ed., Oxford: Oxford University Press, 2004.

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