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."
“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”
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.
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.
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.