Copyright

Introduction

The protection and promotion of copyright is one of IPA's key objectives. Respect for copyright encourages the dissemination of knowledge and rewards creators and their publishers.

As copyright attempts to strike a balance between the needs of creators and the needs of users, it is a complex area of law.


Copyright Basics

Copyright is a property right granting the creator of a work a limited number of exclusive rights with respect to their work. In many legal systems, copyright is known as "author's right" (if translated literally, e.g. from French, German, and Spanish), and this emphasises the perception of copyright as a human right of the creator. Whilst copyright protection depends on national legislation, some core principles can be found in many jurisdictions around the world, as they stem from international treaties in the area of copyright.

Historically, the first right protected by copyright is literally just that: the right to copy and conversely, the right of the author to authorise - or prevent - others from copying. Other restricted acts can include the right to distribute, adapt, broadcast, cablecast and, in many jurisdictions, the right to make available to the public. All these rights can be authorised by the copyright owner, e.g. by way of agreement, often in the form of a license.

Copyright is usually granted to the author of a work in recognition for his original creative efforts; in most countries a work attracts copyright in the moment of its fixation, independent of any registration or other formality. This means that a literary or artistic work is subject to copyright as soon as it is written down, drawn, painted or photographed. Rough handwritten notes and pencil sketches are just as much protected as a finished book or a painting in a gallery. It is always the manifestation of a creative effort that is protected by copyright, and never the idea itself.


Characteristics

Like any kind of property, copyright can normally be assigned, inherited or otherwise passed on to others. This gives the creator the possibility to commercially exploit his creation, and to thereby make a living from his creative efforts. By way of example, the author of a literary work can sell his copyright to a publisher who converts the literary work in, say, a book which in turn he tries to sell to booksellers, or a wider audience of readers. In commercial or accountancy terms, copyright or rights granted through licences are therefore the “assets” of publishers.


Moral Rights

Unlike other property rights, copyright not only entails economic rights but often also so-called moral rights. Moral rights include the right to be identified as the author, or the right to object to derogatory treatment of one's work. These usually remain with the creator notwithstanding any agreement for the commercial exploitation of the copyrighted work.


Copyright Term

The duration of the economic aspects of copyright is limited. In the case of literary works, international treaties prescribe a minimum term of 50 years after the death of the author. Many national jurisdictions and international treaties do however provide for a longer term of protection, e.g. 70 years in the European Union.

During this period, the copyright owner alone is entitled to reproduce, authorise or prevent the reproduction of, the copyrighted work - subject to limited exceptions: after all, copyright is a proprietary right.


Limitations and three-step test

Under international treaties, copyright may be limited so as to allow e.g. the use of the work for illustration and teaching purposes, or in quotations. Generally, such copyright exceptions must be confined to (1) special cases where the reproduction of the work (2) does not conflict with a normal exploitation of the work and (3) does not unreasonably prejudice the legitimate interests of the copyright owner. The compliance with these three conditions is checked in the “three-step-test” set out in major international copyright treaties, such as in Berne Convention Article 9(2), or in WTO TRIPS Agreement Article 13. For more, please refer to “More Info”.


Publishers & Copyright

With respect to rights, publishers have a dual role. As copyright users or licensees, they are entitled through agreements with authors and other publishers to use copyright protected works; as copyright owners or licensors, they grant a right to other publishers or users to copy, translate, adapt or otherwise use copyright protected works.

As users of copyrighted works, they have an interest in ensuring that copyright protection retains certain limitations, and that the limited duration of copyright ensures that creative works can enter the public domain. This way, publishers can just like other creators build their creative efforts on existing ones.

As owners of copyright, publishers have an interest in enforcing their property and commercial rights, and to prevent any activity putting at risk their commercial calculations. For this reason, they fight any unauthorised copying ("piracy"). From a publisher perspective it makes no difference whether a book is stolen or a work is copied unlawfully. This is why publishers engage in anti-piracy activities


International Copyright Treaties

Copyright is not only exploited at national level. Books and other copyrighted works are translated into many languages, or distributed in a number of countries. If copyright regimes differ too much from one country to another, creators lose out: For this reason, the drafting of international copyright treaties has always been a focal area of international conventions and organisations. Such treaties recognise that each country will have its own set of copyright laws. They do, however, lay down certain minimum standards as a basis for national laws, and secure protection under these laws for works of foreign creators, or works created abroad.

The main copyright treaties of relevance for book and journal publishers today are:

1. Berne Convention for the Protection of Literary and Artistic Works, administered by the World Intellectual Property Organisation WIPO, and counting more than 155 contracting parties;

2. TRIPS Agreement (Agreement on Trade-Related aspects of Intellectual Property Rights), administered by WTO, counting more than 140 members;

3. WIPO Copyright Treaty, administered by WIPO and counting approx. 60 contracting parties;

4. Universal Copyright Convention, administered by UNESCO and counting more than 60 contracting parties.

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