Legal framework of textual data processing for Machine Translation and Language Technology research and development activities/Copyright and Related Rights

Key Copyright Concepts

Copyright/Author’s Right

Copyright is a form of Intellectual Property (IP) that protects the fixation of the original expression of an idea. Another definition is that of the right granted for the protection of literary, dramatic, artistic, musical and other works resulting from the author’s own intellectual creation. It may be differentiated from Related or Neighbouring rights that include rights granted to contributors of subservient works (such as actors performing a dramatic work) or non-creative contributors (e.g. producers). It is also differentiated from the sui generis database right (SGDR), that is a property right of limited duration granted to the producer of a non-original database. The term copyright is used here as a catch-all phrase to describe rights granted to authors or rights-holders in any legal system.

Differences between Copyright and Author’s Right

The most important differences between the two systems of protection are the following:

1. Copyright gives greater emphasis on the protection of the work, whereas the Author’s Right system gives more emphasis to the author. The most important implication of this difference is that in a Copyright system we may have a legal person as the first owner of the work, whereas in the Author’s Right system, the norm is that the right originates in the individual.
2. In the Copyright system the general rule is that the employer is the first owner of the work, whereas in the Author’s Right system, the employee gets to be the first owner of the work, though there may be presumptions as to how it is transferred to the employer, achieving the same end-result.
3. In the Copyright system the threshold of originality is generally lower than that of the Author’s Right system: in the former, the “sweat of the brow” or “skill, judgement and labour test” conditions will suffice to grant a work, whereas in the latter, the work has to be the “author’s own intellectual creation” or “bear the stamp of her personality”. Whereas the two systems appear to have different tests, in most cases, a work judged as original in one system will probably be judged as original to the other system as well.

Related (or Neighbouring) Rights

Related rights are the rights granted for the protection of performers, producers, broadcasters and other non creative or subservient work producers. In some jurisdictions, notably in Commonwealth jurisdictions, the term copyright is used to cover both the rights of the authors and some or all the related rights.

Sui Generis Rights

These include rights that the legislator has chosen to differentiate from author’s rights and related rights and characterise them as special nature rights, also known as sui generis rights. The one which is relevant for this report is the sui generis database right (SGDBR), found mostly in EU jurisdictions and related mostly to digital technology. Other sui generis rights are the right granted to the semiconductor topographies makers.

Technological Protection Rights

Some authors classify the rights to Technical Measures of Protection as a separate category of rights, whereas others number them among the economic rights comprising Copyright.

Differentiating Copyright from other Intellectual Property Rights (IPR)

Copyright and the rights presented above are to be differentiated from other forms of IPR, mostly patents, trademarks, industrial designs, trade secrets and other forms of IPR, including unfair competition, contracts and tortious acts. Whereas Copyright infringement may often involve the infringement of other IPR as well, these are beyond the scope of this paper and we will not endeavor in a full explanation of each one of them. Very briefly:

• Patents are monopolies limited in time granted to protect inventions and new methods of manufacture. In general they last 20 years from their registration.
• Trademarks are marks protecting the origin of a product or a service.
• Industrial Designs are designs used for industrial manufacture of article in quantity.
• Trade secrets are protected under the terms of confidential information and are often characterized as such through confidentiality or Non Disclosure Agreements (NDAs).

Copyright Boundaries

The copyright boundaries are set by a number of elements, the most relevant of which for this paper are as follows:

• Beneficiaries: these are the owners of the right. They are useful to know as they are the ones the licences (if required) should be obtained from.
• Subject matter of protection: it describes the categories of protected material. What is not protected (e.g. ideas, facts) is excluded from copyright protection.
• Moral and Economic Rights: these are the range of rights that can be exercised over the protected subject matter by the beneficiaries or the licensed rights holders.
• Limitations and exceptions: they include acts that because of different reasons (social, economic, practical) may be exercised by a user of the work without requiring the permission of the rights-holders
• Term of protection: it sets the term of the protection for copyright, related rights or sui generis rights. The general rule is that it is the author’s life plus 70 years for literary and artistic works (Copyright) and 70 years from the making of recordings or other related rights protected subject matter. The SGDBR has a duration of 15 years from the creation or substantial modification of a database.

Public Domain

If a work is:

• exempted from Copyright; or
• outside the term of protection; or
• the acts related to it are within the limitations and exceptions; or
• not covered by copyright law

then it is in the Public Domain. If the work is licensed under an open licence, then it is considered to be in the functional Public Domain, i.e. while it is legally copyrighted, the range of rights granted by the licensor to the licensee are such that it is effectively as if it were in the public domain.

Works excluded from Copyright

There is no international harmonization as to the works that are excluded from Copyright protection. However, the following categories are highly likely to be outside the scope of copyright protection: Works of applied art and industrial designs and models (art. 2(7) of the Berne Convention)

• Illegally made works:
  • That infringe copyright (only in the US to the extent that the infringing material has unlawfully used other material (s.103(a) of the US Copyright Act). In other jurisdictions infringing material attracts copyright protection irrespective of its legality (e.g. UK, Germany, France)
  • That breach other types of laws, particularly property laws (e.g. a graffiti over someone else’s wall - see “Berlin Wall Pictures” case )
• News of the day and press Information (art. 2(8) of the Berne Convention)
• Official material, which is frequently qualified as Public Sector Information (PSI) as well (see respective section).
  • In some jurisdictions, such as Italy, Germany and Greece, material such as laws, orders, government reports and decisions are excluded from copyright protection. Similarly, in the US copyright protection is not available for any works of the US government.
  • In the UK, the Crown has copyright in Acts of Parliament and other items of official material.
  • Four points have to be highlighted here:
    • In most jurisdictions, government reports are copyrighted subject matter.
    • Foreign Official Material is protected outside the country of origin
    • Court judgements may be excluded from copyright protection; however, reporting of the judgements is not
    • Licensing seems to be a prevailing practice with regard to Official Material (or PSI) and this is always to be examined.
• Political Speeches and speeches delivered in the course of legal proceedings may be excluded from Copyright protection in accordance to the Berne Convention (Art.2bis(1))
• Seditious or Obscene Material may be refused protection by the courts, where the national laws allow them to take such a decision.

Systems of Copyright Exceptions

The system of copyright exceptions serves as a mechanism to ensure that access to certain types of works is ensured on considerations of public interest, balancing of rights, practical concerns or other. These appear as:

• permitted uses that do not require a special permission or a fee but are based on some requirements (e.g. attribution of the source, limited use of material etc.)
• compulsory or statutory licences.

The restrictions may be further classified in two categories:

• exceptions that are part of the copyright law
• exceptions that stem from other types of laws (e.g. competition law, property law, constitutional restrictions)

The most frequently found exceptions are:

• private copying
• time, space and format shifting
• criticism or review
• education
• preservation of copies or use of them by libraries
• research and private study
• certain aspects of use of computer programs
• use of databases, particularly the uses which are necessary for the regular use of the database by its lawful user
• circumvention of technical measures of protection
• text and data mining (in the UK as of 2014).

From the exceptions mentioned above, only the research and, more recently, the text and data mining exceptions are relevant for MT & MP purposes. All limitations and exceptions have to be implemented in the national jurisdictions following the three step test (art. 9(2) of the Stockholm Act of the Berne Convention):

1. the limitation or exception may only apply in certain special cases;
2. the limitation or exception must not conflict with the normal exploitation of the work; and
3. the limitation or exception must not unreasonably prejudice the legitimate interests of the author.

Fair Use vs. EU limitations and exceptions approach

The Fair Use approach, which is the US system for copyright limitations and exceptions contrasts to the EU system of limitations and exceptions in the following ways:

• the Fair Use system is doctrine-based and open ended: it is based on rules that are then further specified by the courts, whereas the EU system is based on a limited list of limitations and exceptions
• it is more flexible and future proof as it is not based on a particular technology or a closed list of exceptions.

The Fair Use system provides that the fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship or research is not an infringement (s.107 of the US copyright Act). The following factors have to be considered in order to decide whether a work infringes copyright or not:

1. the purpose and character of the use, including whether such use is of a commercial nature or is of nonprofit educational purposes;
2. the nature of the copyrighted work;
3. 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 work.

The user-creator rights movement

It is important to highlight that both Fair Use and limitations and exceptions do not constitute positive rights and can only be used as a defence against an action for copyright infringement. The lack of a harmonised international system of limitations and exceptions as well as the lack of a balanced approach with regard to the treatment of current and future creators has led to the emergence of the user-creator rights movement that aims at the establishment of international or regional instruments providing a harmonized horizontal system of positive rights for the users of content that potentially are future creators.