Related rights

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Related rights is a term in copyright law, used in opposition to the term "authors' rights". The term neighbouring rights is exactly equivalent, and is a more literal translation of the original French droits voisins.[1] Related rights in civil law are rights which are similar to authors' rights but which are not connected with the actual author of the work. Both authors' rights and related rights are copyrights in the sense of English or U.S. law.

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There is no single definition of related rights, which vary much more widely in scope between different countries than authors' rights. The rights of performers, phonogram producers and broadcasting organisations are certainly covered, and are internationally protected by the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations[2] signed in 1961. Within the European Union, the rights of film producers (as opposed to directors) and database creators are also protected by related rights, and the term is sometimes extended to include the sui generis rights in semiconductor topologies and other industrial design rights. A practical definition is that related rights are copyright-type rights which are not covered by the Berne Convention.[3]

Contents

International protection of related rights

Apart from the Rome convention, there are a number of other treaties which address the question of the protection of related rights:

Apart from the TRIPS Agreement, these treaties cannot truly be described as global: the Rome Convention had 83 signatories as of 2006, compared with 162 for the Berne Convention.[9]

See also: List of parties to international related rights treaties

Relation to authors' rights

Related rights are independent of any authors' rights which might also exist in the work, as is made clear in the various treaties (Art. 1 Rome; Art. 7.1 Geneva; Art. 1.2 WPPT). Hence a CD recording of a song will be concurrently protected by four different copyright-type rights:

  • the authors' rights of the composer of the music;
  • the authors' rights of the lyricist;
  • the performers' rights of the singer and the musicians;
  • the producers' rights of the person or corporation which made the recording.

Performers

Main article: Performers' rights

The protection of performers is perhaps the strongest and most unified of the related rights. It is not difficult to accept that a performer (musician, actor, etc.) has an intellectual input in their performance over and above that of the author of the work: as such, many countries grant moral rights to performers as well as the economic rights which are covered by the Rome Convention (Arts. 7–9), and the rights of paternity and integrity are required by the WPPT (Art. 5). Performers' rights should not be confused with performing rights, which are the royalties which are due to the composer of a piece of music which is under copyright in return for the licence (permission) to perform the piece in public: in other words, performers must pay performing rights to composers. Under the Rome Convention (Art. 7), performers have the right to prevent:

  • the broadcast or communication to the public of their performance, unless this is made from a legally published recording of the performance;
  • the fixation (recording) of their performance;
  • the reproduction of a recording of their performance.

The WPPT extends these rights to include the right to licence:

  • the distribution of recordings of their performance, for sale or other transfer of ownership (Art. 8);
  • the rental of recordings of their performances, unless there is a compulsory licence scheme in operation (Art. 9);
  • the "making available to the public" of their performances (Art. 10), in effect their publication on the internet.

Article 14 of the Rome Convention set a minimum term for the protection of performers' rights of twenty years from the end of the year in which the performance was made: the TRIPS Agreement (Art. 14.5) has extended this to fifty years. In the European Union, performers' rights last for fifty years from the end of the year of the performance, unless a recording of the performance was published in which case they last for fifty years from the end of the year of publication (Art. 3(1), Directive 93/98/EEC).[10]

Phonogram producers

The term phonogram is used to refer to any sound recording: under the Rome Convention, it must be composed exclusively of a sound recording, although some national laws protect film soundtracks with the same measures to the extent that they are not also protected by other rights. The producers of phonograms, that is the person who makes the recording rather than the person who performs, has the right to prevent the direct or indirect reproduction of the recording (Art. 10 Rome Convention, Art. 2 Geneva Phonograms Convention). The WPPT adds the rights to licence:

  • the distribution of their phonograms, for sale or other transfer of ownership (Art. 12);
  • the rental of their phonograms, unless there is a compulsory licence scheme in operation (Art. 13);
  • the "making available to the public" of their phonograms (Art. 14), in effect their publication on the internet.

Once a phonogram has been published, the producer cannot prevent its broadcast: an equitable fee for the licence may be either agreed between phonogram producers and broadcasters or imposed by law.

The Rome and Geneva Phonograms Conventions specify a maximum level of formality required for protection of the phonogram (Art. 11 Rome; Art. 5 Geneva): countries are free to set a lower level, or not to require formalities at all. The maximum conditions are that each copy of the phonogram should be clearly marked with:

  • the symbol (P), that is a capital P within a circle; followed by
  • the year of first publication;
  • the name of the owner or exclusive licensee of the producers' rights;
  • for Rome Convention countries only, the name of the person who owns (the licence in) the performers' rights in the country where the recording was made.

Countries signing the WPPT shall not require any formality for the protection of producers' rights.

The Conventions (Art. 14 Rome; Art. 4 Geneva) set a minimum term of protection of producers' rights of twenty years from the end of the year in which the phonogram was first published (or from its creation for unpublished recordings): the TRIPS Agreement (Art. 14.5) extended this minimum to fifty years from the end of the year in which the recording was made. The term of protection in the European Union is fifty years from the end of the year in which the phonogram was first published, or from the end of the year of its creation for unpublished recordings (Art. 3(2), Directive 93/98/EEC). For phonograms recorded in the United States the situation is more complicated:

  • recordings made before 1972-02-15: these are covered by state, not federal, copyright law, although all rights will end on 2067-02-15 at the latest [17 U.S.C. §301(c)];
  • recordings made between 1972-02-15 and 1977-12-31 and published: ninety-five years from the date of publication [17 U.S.C. §303(a)];
  • recordings made and published on or after 1978-01-01: ninety-five years after the date of recording if the recording was made "for hire", seventy years after the death of the producer otherwise [17 U.S.C. §302(a), (c)];
  • recordings made on or after 1972-02-15 and unpublished: 120 years after the date of recording if the recording was made "for hire", seventy years after the death of the producer otherwise [17 U.S.C. §302(a), (c)].[11]

Broadcasting organisations

Article 13 of the Rome Convention specifies that broadcasting organisations shall have the right to prohibit (or licence):

  • the rebroadcasting of their broadcasts;
  • the fixation (recording) of their broadcasts;
  • the reproduction of fixations of their broadcasts;
  • the communication of their broadcasts to the public in places where an entrance fee is charged.

Article 14 of the Rome Convention sets a minimum term for the protection of broadcasters' rights of twenty years from the end of the year in which the broadcast was first made, confirmed by the TRIPS Agreement (Art. 14.5). However, the Rome Convention is limited to broadcasts intended for the public [Art. 3(f)]: the Brussels Convention closes this loophole by providing for the protection of satellite broadcasts which are not intended for direct public reception. In the European Union, broadcasters' rights last for fifty years from the end of the year in which the broadcast was first made (Art. 3(4), Directive 93/98/EEC).

Film producers

Directive 92/100/EEC[12] and Directive 2001/29/EC[13] provide rights to producers of the first fixation ("master copy") of a film or other audiovisual work under European Union law. These rights, similar to the rights of phonogram producers, are especially important in Europe, where the producer is not usually the initial owner of the copyright in the film itself. Film producers have the right to prevent:

  • the direct or indirect reproduction of the film (either the master copy or copies thereof) (Art. 2, Directive 2001/29/EC);
  • the distribution of the film (or copies thereof) to the public for sale (Art. 9, Directive 92/100/EEC);
  • the "making available to the public" of the film (Art 3, Directive 2001/29/EC).

These rights last for fifty years from the end of the year in which the film was first published or otherwise made available to the public, or for fifty years from the end of the year in which the master copy was made is the film is not released (Art. 3(3), Directive 93/98/EEC).

Database creators

Main article: Database rights

Directive 96/9/EC[14] creates a sui generis protection in the European Union for databases which do not meet the criterion of originality for copyright protection. This is particularly important for databases which aim to be complete, as these lack the element of selection which might allow them to qualify for protection as "compilations" under Article 2.5 of the Berne Convention (although their arrangement can still be considered creative). It is specifically intended to protect "the investment of considerable human, technical and financial resources" in creating databases (para. 7 of the preamble), whereas the copyright laws of many Member States specifically exclude effort and labour from the criteria for copyright protection. To qualify, the database must show "qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents" [Art. 7(1)]. Their creators have the right "to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database." This is taken to include the repeated extraction of insubstantial parts of the contents if this conflicts with the normal exploitation of the database or unreasonably prejudices the legitimate interests of the creator of the database [Art. 7(5)].

Database rights last for fifteen years from *the "completion" of the database, that is to say the point at which the criterion of substantial investment is fulfilled, or from

  • the date at which the database is made available to the public,

whichever is the later. The protection period runs until 31 December of the year in which it expires. If there is a "substantial change" in the database which would be qualified as a "substantial new investment", a new protection period is granted for the resulting database (Art. 10).

Photographers

Each new technology for creative work has led to debates over the protection which should be accorded to such works, as has been the case most recently for software copyright and database rights: similar debates occurred over the copyright protection of photographs. The Berne Convention allows a shorter period of protection than for other works (twenty-five years from creation rather than fifty years post mortem auctoris, Art. 7.4), and many countries apply a different period of copyright protection to photographs than to other works. An alternative approach, adopted notably by Germany and Italy, has been to offer full copyright protection to photographs which are clearly "artistic works" and to protect all photographs, whatever their creative value, by a shorter sui generis related right. This approach has the advantage of focusing the debate on those photographs which still have some value at the end of the sui generis protection (no-one would bother to try to protect photographs without value), which are the photographs most likely to be original. However it also meant that photographs were subject to a higher test of originality than other works of art, with copyright being reserved only for those which the courts felt to be particularly meritous, in contravention of the spirit (if not the letter) of the Berne Convention. The sui generis protections are found at § 72, UrhG[15] for Germany (50 years) and Arts. 87–92, Legge 22 aprile 1941 n. 633[16] for Italy (20 years). The different treatment of photographs and other artistic works was eliminated by European Union Directive 93/98/EEC (Art. 6) which states that the only applicable criterion for copyright protection is that the photograph be "original in the sense that they are the author's own intellectual creation", a lower criterion than had been used up until then, but equivalent to the criterion used for other copyright works. The sui generis protection may be retained for photographs which do not meet this criterion (e.g., photographs taken automatically such as for a passport).

Designers

Main article: Industrial design rights

Design rights fall between copyright and patent law: they are sometimes considered to be industrial property and sometimes a related right to copyright. The Berne Convention requires the protection of "applied art", but allows a shorter protection period of twenty-five years after creation. Although it requires protection to the same minimum standards as for copyright, the Convention does not require that the protection be called "copyright",[17] a fact used by many countries to protect applied art and certain artistic designs by a related design right. In countries where applied art can be protected by normal copyright term (e.g., Germany), an extremely high level of originality and creatlivity is demanded. Insofar as designs are considered to be industrial property, their international protection falls under the Paris Convention for the Protection of Industrial Property.[18]

Semiconductor designers

A common sui generis design right is that which protects the design or topography of semiconductor materials, particularly integrated circuits. These are protected internationally by the IPIC Treaty of 1989, and in the European Union by Directive 87/54/EEC.[19] The reproduction of a protected topography is prohibited, as is the import of infringing materials (Art. 5). Protected topographies may be identified by a capital T in a variety of forms, including T* (Art. 9). The exclusive rights of the designer last for ten years from the first commercial exploitation, or for fifteen years from the first creation for topographies which are not exploited (Art. 7).

References and notes

  1. ^  Although "neighbouring rights" is the term more commonly used in translations, "related rights" is the term which is used in original English language documents: e.g., the Irish Copyright and Related Rights Act, 2000 or the European Union directive on rental right and lending right and on certain rights related to copyright in the field of intellectual property.
  2. ^  Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations
  3. ^  Berne Convention for the Protection of Literary and Artistic Works (from WIPO)
  4. ^  [Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms]
  5. ^  Convention Relating to the Distribution of Programme–Carrying Signals Transmitted by Satellite
  6. ^  [Treaty on Intellectual Property in Respect of Integrated Circuits]
  7. ^  Agreement on Trade-Related Aspects of Intellectual Property Rights (from WTO)
  8. ^  WIPO Performers and Phonograms Treaty (from WIPO)
  9. ^  Source: WIPO.
  10. ^  Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights, OJ no. L290 of 24 November 1993, p. 9.
  11. ^  17 U.S.C. Chapter 3: Duration of Copyright
  12. ^  92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, OJ no. L346 of 27 November 1992, p. 61.
  13. ^  Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ no. L167 of 22 June 2001, p. 10, corrected by OJ no. L006 of 10 January 2002, p. 70.
  14. ^  Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, OJ no. L77 of 27 March 1996, p. 20.
  15. ^  Copyright Law of 1965-09-09.
  16. ^  Law No. 633 of 1941-04-22.
  17. ^  This fact is used by many common law countries to explain the lack of protection of moral rights in their copyright laws: the rights are protected by other statutes or by common law torts such as diffamation, passing off and malicious falsehood.
  18. ^  [Paris Convention for the Protection of Industrial Property].
  19. ^  Council Directive 87/54/EEC of 16 December 1986 on the legal protection of topographies of semiconductor products, OJ no. L024 of 27 January 1987, pp. 36–40.
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