ARTICLE 10: PRESUMPTION OF AUTHORSHIP
1. The person who is appropriately indicated as author on the original or a copy of the work shall be deemed to be the author of the work, unless otherwise proved. This provision shall also apply upon publication of the work under a pseudonym, provided that the pseudonym is generally recognized.
2. When a work is published under a pseudonym (except for the cases when the author is generally recognized under the pseudonym) or anonymously, the publisher, whose name or designation is appropriately indicated on the work, shall be considered as a representative of the author, unless otherwise proved.
ARTICLE e16: COPYRIGHT IN A WORK CREATED IN THE COURSE OF EMPLOYMENT
Copyright in a work created in the course of fulfillment of the employer's order (work created in the course of employment) shall belong to the employer unless the agreement provides otherwise.
6. The employer may, when using a work created in the course of employment in any form indicate his name or to claim such indication.
7. Upon use of a work created in the course of employment, the amount of remuneration
(royalty) and a procedure for its payment may be determined by an agreement between the author and employer.
ARTICLE 11: JOINT AUTHORSHIP (CO-AUTHORSHIP)
1. Copyright in a work created as a result of joint intellectual and creative activity of two or more persons (co-authors) shall belong to the co-authors jointly, irrespective of whether such a work constitutes a single unitary whole, or consists of parts, each of which has an autonomous meaning. Mutual relations of the co-authors shall be determined by an agreement concluded between them.
2. None of the co-authors shall have the right to prohibit the use of the joint work without a valid reason.
3. According to the agreement of the co-authors, the work may be published or made available to the public under the joint pseudonym.
Work for Hire
Article 17 Moral Rights
To be recognized as an author
Right to indicate pseudonym on each copy – right to a name
Right to decide whether and when the work will be disclosed
Right to authorize others to make modifications of a work – right of integrity
Right to safeguard work from any distortion against his honour, dignity or reputation – the right to good name and reputation
Right to authorize other to add the work to other works – illustration, foreword, commentaries etc.
The right on recall of a work - the right of recall of a work shall not apply to the work created in the course of employment.
The author shall enjoy moral rights independently from his economic rights and retain them even if the economic rights have been
The transfer of moral rights during the lifetime of the author is inadmissible
CCNV test, if there is no written agreement how should the fact of employment be determined?
Hiring party’s right to control
Location of work
Source of tools
Right to assign additional projects
Control over working hours
Method of payment
Right to hire assistants
Hiring party’s ordinary business
Theories of Copyright
- net social welfare – greatest good of the greatest number
- special bond between authors and their works
-one who creates something of value is entitled to enjoy fruits of his labor
- just and attractive culture
"A work is fixed in a tangible medium when its embodiment in a copy or phono record by or under the authority of the author is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.
A work consisting of sounds, images, or both that are being transmitted
is fixed for the purposes of this title if a fixation of the work
is being made simultaneously with this transmission."
What can we predict from Star Athletica?
“The ultimate separability question, then, is whether the feature for which copyright protection is claimed would have been eligible for copyright protection as a pictorial, graphic, or sculptural work had it originally been fixed in some tangible medium other than a useful article before being applied to a useful article.”
“Even if respondents ultimately succeed in establishing a valid copyright in the surface decorations at issue here, respondents have no right to prohibit any person from manufacturing a cheerleading uniform of identical shape, cut, and dimensions to the ones on which the decorations in this case appear.”
“we reject the view that a useful article must remain after the artistic feature has been imaginatively separated from the article”
Court explicitly rejects “artist’s intent” and “marketability” tests
(1) To reproduce the copyrighted work
(2) To make modifications - right to make derivative works
(3) To control distribution, exportation and importation of copies
(4) To control public performance and public displays
Right to Reproduce – heart of copyri
(3) Improper Appropriation
Translation of a work into different medium
Having copyrighted work in mind
How to prove copying
Access + sufficiently similar
Striking similarity (between unusual aspect of two works)
- overcome if D shows he did not have access or took something from public domain
Verbatim copy – Comprehensive literal similarity
Fragmented literal similarity
Comprehensive nonliteral similarity – substantial similarity
To “display” a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovis¬ual work, to show individual images nonsequentially
A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.
To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.
To perform or display a work “publicly” means—
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
“Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.
“Pictorial, graphic, and sculptural works” include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.
The second of the foundational doctrines in copyright law: the idea/expression distinction. Every system of copyright law contains some version of this distinction. In US law, its statutory locus is section 102(b) of the Copyright Act, which provides "in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery."
In Georgian la it is Article 5 of Law on Copyright and Related Rights.
Neither ideas nor facts are protected by copyright law; only the way in which an author expresses ideas or facts is protected. The key terms -idea, fact, expression - are all ambiguous and contested. To figure out what they mean, you need to examine some applications of the principles.
Against this backdrop, let's consider some of the contexts in which the idea/expression distinction arises. The first such context is known as the merger doctrine. Suppose there is only one set of words that accurately conveys a particular idea. In such a situation, the principle that ideas are unprotected and the principle that expression is protected clash. Which prevails? The principle that ideas are unprotected. So anyone else is free to use that uniquely appropriate set of words with impunity. Such situations arise more often than you might think-particularly the context of computer software.
All of these images, the court ruled, constituted unprotected ideas, because they were standard vignettes in the genre of US slave narratives. Some more recent, and perhaps surprising, applications of this doctrine of scenes-a-faire involve photography. Here too, courts refuse to grant copyright protection to images that they conclude are standard or typical of a particular genre.
For example in the 2005 case of Bill Diodata Photography versus Kate Spade, the plaintiff contended
that photograph, which appeared in an advertisement for women shoes, was infringed by other one.
The court rejected the argument, arguing that the positioning of a model sitting on the toilet with her feet angled inward, though "seemingly unnatural," was a common trope; photographing stylish women in this pose to showcase fashion accessories was an idea "used often in popular culture."
So what aspects of maps do enjoy copyright protection?
The answer is original selection, arrangement, or presentation of individually unprotected elements.
The second context is known as the scenes-a-faire doctrine. prior to the publication of Alex Haley's book Roots, the plaintiff wrote a similar book about the history of her own family during slavery and about her own gradual awakening to the importance of her heritage. When Roots was published and became famous, the plaintiff brought a copyright infringement suit against Haley. In support of her claim, the plaintiff provided a long list of parallels between her book and Roots, arguing that Haley had copied heavily from her. The court eventually ruled that, despite the large number of similar scenes, Haley had not engaged in copyright infringement. One of the grounds on which the court rejected many of the plaintiffs assertions is that they involved so-called scenes-a-faire.
What if you lift from my biography, not a factual contention, but an historical theory? Once again, I will lose, but for a different reason: historical theories are considered ideas and thus unprotected.
The bottom line is that an historian should not expect to get much protection from copyright law. If a second historian copies significant hunks of her prose, or closely tracks original ways in which she has expressed arguments, she will have a claim. But if, as in the usual case, a second historian free-rides on her research and lifts facts or ideas from her books, she has no recourse.¬¬¬
To be entitled to copyright protection, something must be original. That term encompasses two distinct requirements. The first is independent creation. If you copy your work from someone else, you can not assert a copyright in it. Suppose, for example, that you read a poem and like it. You memorize it, then you write it down verbatim.
Someone photocopies the piece of paper on which you have written down the poem. Do you have a copyright claim against the person who makes the photocopy?
The author who first created the poem might, but you don't.That's certainly true if the poem is recent and still covered by copyright
The first of the two requirements encompassed by the term originality is independent creation. The second requirement is creativity.
To be entitled to copyright protection, a work must embody a modest amount of creativity. Not much, but some.
We need to identify some related characteristics that are not required for copyright protection and consider why not.
The first thing not encompassed by the Originality requirement is novelty. To be protected a work does not have to be new. In this respect, copyright law is very different from patent law
To be patentable, an invention must be new. To be protected by copyright, a literary or artistic work need not.
Another thing is copyright protection is intent to be original.
A third thing not required for copyright protection is that the work in question be artistic
To satisfy the requirement of originality, a work must pass two tests: it must be independently created, and it must embody some degree of creativity. The more important and slippery of these tests relates to creativity.
At one point, courts in the US (and in other common-law countries) extended copyright protection to such works under the auspices of the so-called 'sweat-of-the-brow" theory.
Since the 1991 Feist decision, that doctrine has been formally rejected by US courts.
case is a fair use the factors to be
considered shall include—(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for non-profit educational purposes;
"(2) the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and
"(4) the effect of the use upon the potential market for or value of the copyrighted
"The fact that a work is unpublished shall not itself bar a finding of fair use if such
finding is made upon consideration of all the above factors."
The first factor in a fair use enquiry is "the purpose and character of the use, including
whether such use is of a commercial nature or is for nonprofit educational purposes." This factor draws on Justice Story's formulation, "the nature and objects of the
The enquiry here may be guided by the examples given in the
preamble to 107, looking to whether the use is for criticism, or comment, or news
reporting, [...] and the like, see 107. The central purpose of this investigation is to see, in
Justice Story's words, whether the new work merely "supersede[s] the objects" of the
or instead adds something new, with a further purpose or different
character, altering the first with new expression, meaning, or message; it asks, in other
words, whether and to what extent the new work is "transformative."
The fact that parody can claim legitimacy for some appropriation does not, of course, tell
either parodist or judge much about where to draw the line. Like a book review quoting the
copyrighted material criticized, parody may or may not be fair use, and petitioners'
suggestion that any parodic use is presumptively fair has no more justification in law or fact
than the equally hopeful claim that any use for news reporting should be presumed fair[...].
The Act has no hint of an evidentiary preference for parodists over their victims, and no
workable presumption for parody could take account of the fact that parody often shades
into satire when society is lampooned through its creative artifacts, or that a work may
contain both parodic and nonparodic elements. Accordingly, parody, like any other use, has
to work its way through the relevant factors, and be judged case by case, in light of the
ends of the copyright law.
Here, the District Court held, and the Court of Appeals assumed, that 2 Live Crew's "Pretty
Woman" contains parody, [...] commenting on and criticizing the original work, whatever it
may have to say about society at large. As the District Court remarked, the words of 2 Live
Crew's song copy the original's first line, but then "quickly degenerat[e] into a play on
words, substituting predictable lyrics with shocking ones . . . [that] derisively demonstrat[e]
how bland and banal the Orbison song seems to them." [...] Judge Nelson, dissenting
below, came to the same conclusion, that the 2 Live Crew song "was clearly intended to
ridicule the white-bread original" and "reminds us that sexual congress with nameless
The Court of Appeals, however, immediately cut short the enquiry into 2 Live Crew's fair
use claim by confining its treatment of the first factor essentially to one relevant fact, the
commercial nature of the use. The court then inflated the significance of this fact by
applying a presumption ostensibly [...] culled from Sony, that "every commercial use of
copy-righted material is presumptively . . . unfair. . . ." [...] In giving virtually dispositive
weight to the commercial nature of the parody, the Court of Appeals erred.
The language of the statute makes clear that the commercial or nonprofit educational
purpose of a work is only one element of the first factor enquiry into its purpose and
character. Section 107(1) uses the term "including" to begin the dependent clause referring
to commercial use, and the main clause speaks of a broader investigation into "purpose and
character." As we explained in Harper & Row, Congress resisted attempts to narrow the
ambit of this traditional enquiry by adopting categories of presumptively fair use, and it
urged courts to preserve the breadth of their traditionally ample view of the universe of
relevant evidence. [...] Accordingly, the mere fact that a use is educational and not for profit
does not insulate it from a finding of infringement, any more than the commercial
character of a use bars a finding of fairness. If, indeed, commerciality carried presumptive
force against a finding of fairness, the presumption would swallow nearly all of the
illustrative uses listed in the preamble paragraph of § 107, including news reporting,
The second statutory factor, "the nature of the copy-righted work,"
This factor calls for
recognition that some works are closer to the core of intended copyright protection than
others, with the consequence that fair use is more difficult to establish when the former
works are copied
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