EU & Copyright

Enhancements

EU legislation has provided for various enhancements and harmonization of the rights of various copyright holders. Directive includes extensions in relation

• legal protection of computer programs.
• resale rights
• rental and lending rights relating to copyright in the field of intellectual property.
• computer programme protection
• copyright and related rights applicable to broadcast programs by satellite and cable.
• the term of protection of copyright.
• legal protection of databases.

Resale Right

A directive provides for the compulsory resale rights of authors of an original work of art. It applies to works of graphic art or plastic art such as pictures, drawing, paintings, prints, lithographs, ceramics, glassware, or photographs provided they are made entirely by the artist or they are a copy is considered to be an original work of art according to professional usage.

Member states may determine that the resale right does not apply to acts of resale where the seller has acquired the work directly from the author less than three years before and the resale price does not exceed €10,000.

The term of protection of the resale right is 70 years after the death of the author. Member states must set a minimum sale price as to which sales will be subject to the resale rights. Minimum sale price may not exceed €3,000

Artists receive royalties calculated as a percentage of the sale price of their work. This is divided into portions and royalties range from 4% to 0.25%, depending on the amount concerned. The total amount of royalty may not exceed €12,500.

The resale right is enjoyed by the author of the work and his successors after his death. For a period of 3 years after resale, persons entitled to receive royalties have the right to demand information from an art market professional required to secure payment of royalties from the resale.

The resale right is normally payable by the seller. States may allow other persons to be made responsible for paying the resale right.

The directive applies to original works of art which were on 01 January 2006 still protected by EU legislation in the field of copyright. It does not apply to original manuscripts by writers or composers.

Rental Lending and Related Rights –  Copyright

There is an EU directive harmonizing rental, lending, and related rights. Owners of copyright must have a right to authorize or prohibit rental or lending of original and copies of copyright works. Rental means making available for a limited period for direct or indirect economic or commercial value. Lending involves making available for use for a limited period, not for direct or indirect economic or commercial advantage when made through establishments accessible to the public.

The author holds the rental and lending right. This includes the principal director of films, performing artists and phonograph producers. Where an author or performing artist has transferred his rental right concerning the phonogram or copy of the film, he is to retain the right to obtain equitable remuneration from the rental. This cannot be waived but its administration may be entrusted to collecting societies.

States may derogate from the exclusive lending right provided that at least authors obtain remuneration for such lending. States are free to determine the remuneration, taking account of their cultural promotion objectives.

Member states are to provide performing artists, producers of films, broadcast organizations, are granted an exclusive right to fixation. They must ensure that performers have the exclusive right of broadcasting and communicating to the public for in respect of their live performances. The broadcasting or communication to the public of a phonogram published for commercial purposes entitles performers and producers to remuneration. Broadcasting organisations have the exclusive right to authorise or prohibit the rebroadcasting of their broadcasts, as well as the communication to the public of their broadcasts if it takes place in public areas and an entrance fee is paid.

EU countries must ensure that performers phonogram producers, producers of the first fixations of films and broadcasting organisations have an exclusive right to make available to the public, by sale or otherwise, fixations of their performances, their phonograms, the original and copies of their films and fixations of their broadcasts. This distribution right is exhausted within the EU where the first sale of these objects is made either by the right holder or with his consent.

EU countries may provide for limitations to related rights in respect of private use, use of short excerpts or certain other uses.

Protection of copyright-related rights under the directive must in no way affect the protection of copyright.

Copyright Computer Programmes

Member states must protect computer programs by copyright. They should be protected as literary works within the meaning of the Berne Convention. This includes their proprietary design materials.

The protection applies to the expression in any form of a computer program. Underlying ideas and principles or elements thereof are not protected. A computer program is original if it is the author’s own intellectual creation.

The author of a computer program is the person or group of persons who create it. National laws allow that a company may be the owner. If several persons participate, the exclusive rights will be held jointly. If the rights are created under the instructions of an employer, they belong to the employer.

The rights of the computer program holder include the right to authorize or do the following;

• permanent or temporary reproduction of the program or a part.
• translation, adaptation, arrangement, or any other alteration.

Persons having the right to use the program may make back- up copies insofar as necessary for use. A person may also observe, study, or test the functioning of a program to determine the ideas and principles which underlie it.

The authorization of the owner is not required where the reproduction of the code and translation of its form are indispensable to obtain information necessary for the interoperability of an independently created computer program with other programs, provided that certain conditions are met.

Measures must be taken by states against persons committing any of the following;

• Putting into circulation, an infringing copy of a computer program.
• Possession of a copy of a program for commercial purposes.
• Putting into circulation for commercial purposes,
• facilitating the unauthorized removal or circumvention of technical protection devices.

Satellite Broadcasting

The directive on satellite broadcasting is designed to remove obstacles arising from disparities between national provisions on copyrights. The satellite broadcasting of copyright works requires the consent of the rights holder. Performers are granted the exclusive right to;

• broadcast performances by satellite.
• fix an unfixed performance, an e. record.
• reproduce the fixation of a performance.

Where a phonogram is used for satellite broadcast, equitable remuneration is to be paid to the performers or to the producers of the phonogram or both. Broadcasting organizations have the exclusive rights over the retranslation fixation or reproduction fixations of their broadcasts.

The rights to authorize or prohibit cable retransmission of broadcasts are exercised through a collecting society except when they are exercised by a broadcasting organization in respect of its own transmissions. Where no agreement can be reached regarding cable retransmission of a broadcast, the parties may call upon the assistance of mediators. They may provide assistance with negotiation and submit non-binding recommendations.

Term of Copyright

The period of protection of copyright is set at 70 years from the date of death of the author or the last surviving author in the case of joint ownership. It is the date upon which it was lawfully made available to the public if it is anonymous.

The term of protection for film or audiovisual work is set at 70 years after the death of the last survivor of;

• the principal director.
• author of the screenplay.
• author of the dialogue and composer of music specifically created.

The right of protection for related rights e.g. performers, producers of phonographs, film producers, and broadcast organizations is set at 50 years. The term of protection is simultaneous in all states. It is calculated from 1^st of January of the year following the event giving rise to it.

If work originated in a third country and the author is not an EU national, the protection granted in the member state ends with the final date of protection in the country of origin but must not exceed the term set in the community.