Intellectual property

Oct 23, 2018 | 0 comments

Oct 23, 2018 | Miscellaneous | 0 comments

Topic 1

Q1. Critically evaluate the impact of the so called three-step test on a potential evolution of limitations as applied to digital uses in a copyright law. In your answer, refer where appropriate, to relevant case law. 

A three step test according to () is a clause included in many intellectual property international treaties. The signatories to these international treaties are in agreement to standardise the possible exceptions and limitations to the exclusive rights under their national copyright laws respectively. The three step test is entitled to prevent copyright limitations from encroaching on the rights of the author. It is a control mechanism that safeguard the delicate balance between reservations and grants f copyright right law. Therefore, three step test fulfils a particular task. First, it may be involved only after conferment of exclusive rights to the authors. Secondly when the limitations are just about to be imposed on these authors exclusive rights. This section will critically evaluate the impact of three step test on a potential evolution of limitations as applied to digital uses in a copyright law.


Q2. Limitations to copyright: discuss the three step test in relation to digital limitation, private copying, educational/research use. 


This question will discuss the limitations to the copyright with major focus on the three step test in relation to digital limitation, private copying, educational/research use. It has been recognized for a long time that limitations on authors and the related rights are justifiable in certain cases. Therefore, at the beginning of the negotiations which resulted to the creation of the 1884 Berne Convention, it was stated that absolute protection limits are set rightly by the interest of the public. Consequently, the convention has included the provisions that grant latitude to the member states to limit the authors’ rights in certain circumstances.

The three step test in relation to digital limitation

New usages of works arises in the digital environment that in the pre digital age, it could have never been contemplated. According to (), one of the principal objectives of WPPT and WCT was to meet this challenges and more particularly for greater protection of right holders and authors in the new digital environment. On the same note, () asserted that it was recognized that it was significant to maintain a balance between the larger interest of the public and these rights, in particular to access to education and research. The international treaties provisions that deals with the new communication right to the public and the technological measures are envisioned to address the right holders concerns. However, the question of larger public interest and limitations in the digital environment is more vexed and rely upon the various agreed statements effects. The following issues arise, in particular:

  1. Whether Berne conventions Article 9(1) is to be interpreted as to apply to digital uses. WCT Article 1(4) agreed statement indicates clearly that this is so, however, whether this also forms part of WCT context for the interpretation purposes or whether it is just a supplementary aid to the interpretation pursuant to Vienna Convection Article 32 is still unclear
  2. On the supposition that Article 9 (1) entails the digital reproductions, it is clear that the three step test will apply under Article 9(2) and will allow the extension of the exceptions existing into the digital environment or the formation of new exceptions applying alone in the digital environment. regarding this, the reference in the WCP Article 10 agreed statement that these exceptions should be proper adds title to the three step test requirements, if anything, other than to point out that uses of digital may involve different consequences compared to their counterparts in the hard copy, real environment
  3. Similar considerations apply clearly in the case of new rights of WCT, particularly the communication rights to the public. The three step test will be applicable here in the same way it is applicable to the right to reproduction under Berne.

The three step test in relation to private copying

This area covers a wide potential area of usage, and suggests that the kind and scale of envisaged private use will need to be defined carefully and limited so as to meet the first step. The provision of EC Directive (Article 5(2) (b)) on private use provides an instructive guide:

“in respect of any reproductions by a natural person on any medium for private use, and for neither indirectly or directly commercial ends, on a condition that the rightful holders gets a fair compensation taking into account the non-applications or the application of the technological measures to the subject matter or work concerned as referred to in Article 6.”

This is limiting to the provision and states clearly that the use must be limited to the purposes that are non-commercial (first step). It then makes assumptions that such applications do not conflict with normal work exploitations (second step), probably on the argument that it is almost impossible for the copyright owner/author to regulate this through the arrangements of private licensing, and also probably because this is a private, that is totally different from a public, usage of the work, and this is a normative factor that is non-economic which is to be measured against the economic interest of the author. lastly, so far as the prejudice to the interest of the right holder that are unreasonable is concerned (third step), it necessitates that the right holder get a fair compensation taking into account the application the technological measures of protection, if there is any.

The three step test in relation to educational/research
Distance education requires a very special attention since it is possible to implicate two unprotected exclusive rights under the Berne and WCT, namely communication and reproduction rights. The statutory licence provision here may be another means of making sure that there is no prejudice to the authors’ legitimate interest unreasonably, while making sure that an appropriate balance is struck between authors rights and those seeking objectives of education

Topic 2:
“The introduction of a right of communication to the public as well as a right to control temporary copies was a misled attempt to harmonize copyright law and has resulted in an almost incomprehensible formulation of relevant legal provisions.”
Critically discuss the statement. In your answer, refer to relevant case law. 

There are several legal provisions that govern communication to the public and the right to control temporary copies. However, the action of harmonising these copyright laws has led to a formulation that is almost incomprehensive because of several intertwined legal provisions. This section of the paper will critically discuss these issues while referring to relevant case laws.

The delivered speeches in the course of legal proceedings, and political speeches are provided under Article 2bis (1). The arguments of public interest favoring permitting total or partial exclusion of protection for suck kind of works has never been disputed since the introduction of the provision in 1928, Rome. However, it is important to point out that the provision in its entirety is permissive. At the same time, the provision places no restrictions on the degree to which there can be denial of protection on these works, as it potentially applies to all possible exploitation forms that are comprehended within the authors’ rights under the convention. For instance, reproduction, recitation, public performance and broadcasting. On the other hand, Article 2bis (1) has temporal limitations indicating that it principally concerned with contemporary or immediate communication of these forms of works. Therefore, the national laws under Article 2bis (3), must continue allowing the author of such kind of works the exclusive right to make a collection of their works. Accordingly, authors of legal and political speeches retain the right to make a compilation later of the oratorical wisdom.

Article 10bis (1) deals with the use of articles in periodicals and newspapers. It states that it shall be a legislation matter in the union countries to allow the reproduction by press, the communication or broadcasting to the public by wire of the published articles in periodicals or newspapers on current religious, political or economic topics, and of broadcast works of the individual, in situations where the broadcasting, reproduction or such communications thereof is not reserved expressly. Nonetheless, the source must be indicated clearly; the legal consequences of this obligation breach shall be determined by the country’s legislation where protection is claimed. From this provision, it is evident that it is incomprehensible since the following comments can be made from it:

  1. The acts that may be permitted extend to communication by wire to the public, broadcasting ad reproduction
  2. It applies to the published articles in periodicals and newspapers, and also to the broadcast works of the same kind. On the other hand, the criterion for qualifying is that they should be broadcast works or articles on current religious, political, economic topics. This exclude wide range of periodical and newspaper writings such as sports reports, artistic and literary reviews, technical matters, and scientific articles. Furthermore, the word “current” shows that the articles must be of relevant immediately since the purpose is to expedite free flow of information on the events that are current
  3. This provision also does not make reference to broadcasting and reproduction of articles in translation

Article 10bis (2), deals with incidental usage of works when reporting the events that are current by means of radio, cinematography and photography. The provision states that “it shall be a legislation matter in the union countries to make a determination on the conditions under which, the aim of reporting the current evens by means of cinematography, photography, communication or broadcasting to the public wire, artistic or literary works heard or seen in the course of the event may, to the justified extent by the informatory purpose be made available and reproduced to the public.”

On reporting on addresses, lectures and other similar works, the provision under Article 2bis (2) allows member states to make regulations on the conditions under which these orally delivered works may be used for the reporting purposes.

From the articles and the provisions quoted in the discussion, it is evident that many provision have been harmonized and this has resulted in an almost incomprehensible formulation of relevant legal provisions. There is a thin differences on the limits and regulations of the provisions from one provision to the other.

You are asked to write an expert opinion on these matters

Question one

Case scenario

Adam in the case study is a website owner but has violated several copyright laws. In the website YouRule.com he finds copy protected mp3 music files and downloads them. Furthermore, through his internet search, he finds a software that can circumvent the copy protection on the music. The software has the ability of removing the copy protection system. Finally, given that the copy protection does not prevent analogue coping, Adam uses the gap to copy the music from the mp3 files to a CD-R in analogue format.

Similarly, Adam uses the information from another website to update his website without prior notification of the content owners or even paying for their copyrighted information. He goes on to rewrite copyrighted poems on this website which only download through e-book formats and on-screen viewing.

Lastly, Adam a copyrighted free download software that allows users to combine football matches snippets broadcasted previously on a television to create his own video. Adam is not permitted to redistribute the software either by sale as much as the software is free for downloading. However, he distributes the software by gibing a set copy to even, an aspiring designer of computer games.

Case analysis

Polombia is a country which is a member of European Union which has literary implemented all the relevant copyright legislation although it has not implemented Article 6 (4) of the EUCD (directive 2001/29/EC). Moreover, Polombia allows private copying but there is no effective compensation scheme in place.

Considering the case of Adam, he violated several copyright laws by illegally using the content copy protected. Furthermore, he used and distributed the software copy protected and therefore was liable for any damages and breach of copyright laws. However, Adam resides in Polombia, a country that is an EU member with no proper copyright laws. Moreover, it allows private copying and this makes Adam liable to any damages that might have occurred.

Private copying covers a wide potential area of usage, and suggests that the kind and scale of envisaged private use will need to be defined carefully and limited so as to meet the first step. The provision of EC Directive (Article 5(2) (b)) on private use provides an instructive guide:

“in respect of any reproductions by a natural person on any medium for private use, and for neither indirectly or directly commercial ends, on a condition that the rightful holders gets a fair compensation taking into account the non-applications or the application of the technological measures to the subject matter or work concerned as referred to in Article 6.”

To begin, the private copying copyright laws states clearly that the use must be limited to the purposes that are non-commercial. Adam used the content on his website by feeding his readers with football information. It is not stated whether his content were for commercial or non-commercial purposes. The assumption is that his website was non-commercial in nature and this makes Adam not liable and has not breached the copyright laws. However, if in deed his website was for commercial purposes, then he breached the laws.

According to (), under copyright laws, the assumption is that any applications do not conflict with normal work exploitations, probably on the argument that it is almost impossible for the copyright owner/author to regulate this through the arrangements of private licensing, and also probably because this is a private, that is totally different from a public, usage of the work, and this is a normative factor that is non-economic which is to be measured against the economic interest of the author. The website where Adam used their applications and content regulated their content for public usage. Adam is liable for damages because he used a third party software to interfere with the copyrighted music by copying them into his CD-R for his personal use. Moreover, the regulated content was to be downloaded through e-books which were regulated and copyrighted. However, Adam copied the on screen content and manipulated the poem wordings to suit his website.

Question two

Adam in London University starts a movement in conjunction with other academics seeking to convince the government to provide for copyright limitations that are specific. The bill is soon to be passed and it will allow making available and reproduction of any work to a small group of students and researchers, provided that the author is given a fair compensation and that there are adequate technical measures put in place to restrict access to the intranet.

From the case scenario, this would not violate the international and European copyright law since the two unprotected exclusive rights under the Berne and WCT, namely communication and reproduction rights, allows for reproduction of work for researches and for education purposes. So long as the statutory licence provision here has no prejudice to the authors’ legitimate interest unreasonably, and that there is an appropriate balance is struck between authors rights and those seeking objectives of education, there would be no violation