The Balance of Copyright

Hilty, Reto M.; Nérisson, Sylvie

doi:10.1007/978-94-007-2354-2_16

The Balance of Copyright

Reto M. Hilty³ &
Sylvie Nérisson³

Chapter
First Online: 25 November 2011

2454 Accesses

Abstract

This report considers the respective rights to be accorded the holders of copyrights and the users of their works. These interests have been considered in the TRIPS Agreement of 1994, the WIPO Treaty of 1996 regarding copyright, and the Berne Convention, all of which apply to many of the countries covered. Other fundamental rights, such as freedom of speech, expression, and competition, bear upon the appropriate balance of the different categories of rights holders. The reporters note that the lack of differentiation among different categories of works results in overprotection over some which impedes uses that lie in the public interest. Free-of-charge user rights exist for certain categories of consumers, to fulfill educational and cultural needs, but some countries that strongly support rights of the author resist the notion of a gratuitous license. Prospects for reform lie in the implementation of articles 7 and 8 of the TRIPS Agreement with an eye toward a balancing of rights and obligations to the mutual advantage of producers and users.

III.B.1 La mise en balance du droit d’auteur. National reports received from Argentina, D. Lipszyc and P. Wegbrait; Australia, A. Christie and J. Liddicoat; Belgium, B. Vanbrabant and A. Strowel; Brazil, A. Rocha de Souza; Canada, Y. Gendreau; China, L. Xiuqin; Croatia, I. Gliha; Cyprus, T. Sinodinou; Denmark, J. Schosvo; Egypt, A.H. Al-Saghir and H.A. Raslan; France, C. Alleaume; Germany, T. Dreier and L. Specht; Greece, D. Kallinikou; Hungary, P. Mezei; India, V.C. Vivekanandan; Israel, G. Pessach; Italy, S. Sica and V. d’Antonio; Japan, R. Kojima; Lithuania, V. Mizaras; Macau, R.J. Neuwirth and L. Min; Norway, O.A. Rognstad; Poland, J. Bleszynski; Portugal, D.M.L. Moura Vicente; Spain, R. Xalabarder; Taiwan, C.-H. Hsu; UK, J. Griffiths; USA, P. Maggs.

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Notes

1.
See questions 1 and 2a.
2.
See questions 1b.
3.
See questions 2c, 2d, 2e.
4.
On the way lawmakers handle this issue, see question 3.
5.
See answers to questions regarding user rights free of charge, subject to compensation and mandatory licenses, 2c, 2d, and 2e, and under Question 6.
6.
Art. 7 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) adopted in Marrakesh, Agreement Establishing the World Trade Organization, Annex 1, (1994).
7.
In the absence of explicit references, articles (Art.) and sections (Sec.) quoted in this report refer in following countries to following acts: Argentina: Copyright Act No. 11.723 1933; Australia: Copyright Act 1968 (Cth); Belgium: loi du 30 juin 1994 relative au droit d’auteur et aux droits voisins; Brazil: Copyright Act (Law 9.610 1998); Canada: Copyright Act, L.R.C. 1985, ch. C-42; China: Copyright Act (adopted in 1990, revised in 2001); Croatia: Copyright and Related Rights Act of October 1st 2003; Cyprus: Copyright Law 59/1976; Denmark: Lovbekendtgoerelse (Consolidated Act) No. 587/20.6.2008 om ophavsret; Egypt: Intellectual Property Law No. 82/2002 (EIPL); France: Code de la propriété intellectuelle 1992; Germany: German Copyright Act of September 9, 1965; Greece: Copyright Law (Law 2121/1993); Hungary: Copyright Act LXXVI of 1999; India: Copyright Act, 1957; Israel: Copyright Act, 2007; Italy: Law for the Protection of Copyright and Neighbouring Rights 1941; Japan: Copyright Act, Act No. 48 of May 6, 1970; Lithuania: Law of the Republic of Lithuania on Copyright and Related Rights 1999; Macau: Author’s Rights and Neighbouring Right Act 1999; Norway: Lov om opphavsrett til åndsverk, May 12, 1961; Poland: Act of February 4, 1994 on Copyright and Neighbouring Rights; Portugal: Code of Copyright and Related Rights, last amended by Law No. 16/2008, of April 1, 2008; Spain: Texto Refundido de la Ley de Propiedad Intelectual (Royal Legislative Decree 1/1996 of April 12), Taiwan: Copyright Act last amended on February 10, 2010; UK: Copyright Designs & Patents Act 1988; USA: title 17 of the United States Code, Copyright Act of 1976.
8.
Preamble of WCT, December 20, 1996.
9.
Brazil, Egypt, India, Macao, Norway and Taiwan are not contracting parties. Canada and Israel are signatories, but the WIPO treaties are not in force yet. Canada will probably begin parliamentary work this year.
10.
Directive 2001/29/EC of the European Parliament and of the Council of May 22, 2001 on the harmonization of certain aspects of Copyright and related rights in the information society, OJ L 167, June 22, 2001 p. 10.
11.
Heading 31 of the InfoSoc Directive.
12.
On the interaction of these legal areas in copyright law, see answers to Question 12.
13.
For instance: special provisions for cinematographic works, computer programs, etc.
14.
For instance: different treatment of literary works according to whether they are works of fiction or academic works.
15.
For instance: no possibility of substitution of a work marketed by only one of the right holders.
16.
For instance: Art. 2 para. 2 Berne Convention (BC).
17.
Argentina (special provisions for the vesting of rights: presumption they vest in the employer of the persons hired for the making of the program), Australia Art. 47b et seq., (only concerning some particular user rights, reserved to users of software), Belgium (specific Act), Brazil (specific Act, shorter protection, specific provisions for the ownership of the work in case of employment contract), China (specific Act but mentioned among the copyrighted work in the Copyright Act, specific provision for the rental right), Croatia Art. 17/6, 108 et seq., Cyprus Art. 7B, Denmark Arts. 36 and 37, Egypt Art. 147, France (Art. L. 122-6), Germany Sec. 69 et seq., Greece Art. 2 para. 3 and 45A, Hungary Arts. 58–60A, Israel Sec. 45 (no moral right), Italy Art. 64^bis–64^quarter, Japan Art. 47-2, Lithuania Art. 10 para. 1, Macau Sec. X Arts. 166–169, Norway Sec. 39h and 39i, Poland Arts. 74–77, Portugal Art. 36 and a specific act, Spain Act 16/1993, Taiwan Art. 59, UK Sec. 50A–C, USA Secs. 109 and 117.
18.
Belgium Art. 8 Sec. 1 para. 2 and Sec. 2 (mentions also any public speech delivered in political assemblies), Brazil Art. 8, Croatia Art. 8, Germany Sec. 5, Greece Art. 2 para. 5, Hungary Art. 1 paras. 4–5, Lithuania (which views as belonging to this category also: their official translations, official State symbols and insignia the protection whereof is regulated by other laws, officially registered drafts of legal acts, and folklore works), Macau Art. 6 para. 1 and para. 2 (in the same category: texts of treaties, laws and regulations and those of reports or decisions by authorities of any kind, and translations thereof), Portugal Art. 7 and 8. French law, on the opposite, urges works of State employee do not receive any derogatory treatment Art. L. 111-1.
19.
Croatia Art. 8.2, Greece Art. 2 para. 5, Cyprus traditional folk dances were excluded from copyright protection on the basis of case law (Supreme Court of Cyprus, Gregoris K. Ashiotis v. The Attorney General of the Republic and others, (1967) 1 C.L.R. 83) because they are considered as the common heritage of the Cypriot nation.
20.
Croatia Art. 8 para. 2, Greece Art. 2 para. 5, Japan Art. 10 para. 2, Lithuania, Macau Art. 5 (in the same category: texts presented and speeches given to assemblies or other collegiate, political and administrative bodies, or in public debates, on topics of common interest; political speeches).
21.
Hungary Art. 1 paras. 4–5.
22.
Croatia Art. 8 para. 2, Cyprus Art. 3 para. 3, Italy : Court of cassation, February 13, 1987, no. 1558, Lithuania, Macau Art. 1 para. 2, USA Art. 102(b) Leading cases on the line between protection of ideas and non-protection of expression are: Baker v. Selden, (1879), 101 U.S. 99 (accounting system not protected) and Nichols v. Universal Pictures Corp., (1930) 45F.2d 119 (2d Cir.) (plot scheme similar to Romeo and Juliet not protected).
23.
Belgium, Germany German Act on Publishing (Verlagsgesetz) of 1901 (it concerns in Germany also musical works, which is to be explained by the date of this act, stemming from the era before the commercial development of phonograms, as musical works were mostly spread through book notes).
24.
Belgium, Italy Arts. 33–37 (near dramatic and musical works, one finds in that category the choreographic works and pantomimes).
25.
France Art. L. 121-5, Germany Sec. 88 et seq., Greece Art. 34, Italy Arts. 44–50, Poland Art. 70, Spain Art. 87.
26.
See in Italy: beside the cases already listed, collective works, magazines and newspapers (Arts. 38–43), works broadcast (Arts. 51–60), works recorded on mechanical devices (Arts. 61–64), software (Art. 64^bis–64^quarter), databases (Art. 64^quinquies–64^sexies). The Spanish law also distinguishes between works of collaboration, collective woks and composite works.
27.
Cyprus, Germany Sec. 26, Hungary Art. 70, Italy Art. 145 para. 1, Art. 14^ter Berne Convention.
28.
Cyprus, Germany, Hungary Art. 70, Italy Art. 145 para. 1.
29.
The right of exhibition is only provided for works of fine art and photographic works (Canada, China, Hungary), architectural and applied art works (Hungary Art. 69), the right of presentation is only available for a work of the fine arts (China), a photographic work (China), a cinematographic work (China).
30.
UK.
31.
Japan Art. 26.
32.
UK Sec. 79 para. 2.
33.
Israel Sec. 45, UK Sec. 77.
34.
Israel Sec. 45, UK Sec. 81 para. 2.
35.
Portugal, Spain.
36.
Egypt Art. 148 expressly allowed for developing countries by the Annex to the Berne Convention Arts. I, II.
37.
China, Egypt, India .
38.
Canada, India.
39.
Canada, China, Egypt, India.
40.
In countries where private copying is compensated, sound recordings are the objects most often charged (for which a remuneration is foreseen and thereby the works used for the sound recording, like musical scores and texts). Apart from sound recordings, audiovisual and written works may also be concerned. See answers to Question 10.
41.
USA Sec. 117.
42.
UK.
43.
Canada.
44.
India.
45.
India.
46.
Norway Sec. 19.
47.
Australia Sec. 14 para. 1.
48.
Australia Desktop Marketing Ltd v Telstra Corporation Ltd (2002) 55 IPR 1, 107; IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 80 IPR 451, 491.
49.
Australia IceTV Pty Ltd v Nine Network Australia Pty Ltd (2002) 55 iPR 1, at 490–491.
50.
Spain Art. 86.
51.
Spain Art. 88 para. 1 in fine.
52.
See Art. 6 para. 4 al. 4 of the InfoSoc Directive, stating the scope of the user rights can be reduced in respect of works made available online when there is a commercial offer to access to those works. It has been implemented in Belgium Arts. 23^bis al. 3 and 79^bis Sec. 3, Germany Sec. 53a, and Greece Art. 22 in fine.
53.
Belgium Art. 22 para. 1 9°.
54.
China Art. 21, Cyprus Art. 11 para. 1b (private employment, commissioned works and works ordered for advertising), Greece Art. 8, Hungary Art. 63, Macau Art. 12 para.1, 13 para. 1, 164 para. 1.
55.
Brazil, China.
56.
Canada Art. 12, Israel Secs. 38–42 (shorter duration, 50 years after the making instead of 70 pma), UK Secs. 163–167.
57.
France Art. L. 132-35, Portugal Art. 173 para. 2.
58.
France Art. L. 113-5, Lithuania Art. 1 para. 1, Macau Art. 16 para. 1 and 162 para. 1.
59.
China.
60.
France Art. L. 113-2.
61.
France Art. L. 113-3.
62.
France Art. L. 113-4.
63.
See Cyprus Art. 11 para. 5: in the case of an unpublished work where the identity of the author is unknown, but where there are reasons supporting the view that he or she is a citizen of the Republic the copyright subsisting by virtue of the Law 59/1976 shall be deemed to vest in the Minister of Education; and Macau Art. 12 para. 3, where the name of the intellectual creator is not mentioned, it is presumed that the economic rights have been assigned to the entity for which the work was made. Regarding the protection term, see answers under Question 5.
64.
Australia Sec. 22 para. 1, Canada expressly required by Art. 2 only for computer programs, choreographic works or mime although the case law established it for every kind of work, see Canadian Admiral Corp. v. Rediffusion Inc. (1954) Ex. C.R. 382, Cyprus Art. 3 para. 2a, Egypt lectures, speeches, sermons and any other oral works must be recorded in order to be protected Art. 140 para. 4, Israel Sec. 4 para. a, UK Sec. 3 para. 2, US Federal law (with the exception of Sec. 1101 on “unauthorized fixation” of performances) protects only fixed works. In the USA, unfixed works, such as ad lib public lectures, are protected, but only by state law. For a critical analysis of the issue, see Y. Gendreau, “The criterion of fixation in Copyright law”, (1994) 159 R.I.D.A. January 1994, p. 111.
65.
The work shall be “capable of being reproduced in a tangible form.” A limit to this rapprochement to US law is that oral works are protected.
66.
Macau Art. 1 para. 3, Poland Art. 1, Portugal Art. 1 para. 1 and 2.
67.
Macau Art. 2 para. 1d.
68.
Macau Art. 10, Poland Art. 1 Sec. 4, USA Art. 102a.
69.
BC Art. 5 para. 2.
70.
On this matter, see Ginsburg, Jane C., “The US Experience with Copyright Formalities: A Love/Hate Relationship”. Columbia Public Law Research Paper no. 10-225; Columbia Journal of Law & the Arts 33, no. 4 (2010).
71.
RCPA for films in France, Urheberrolle for anonymous works in Germany, Macau Publication Information Department for newspaper titles (Art. 163 para. 1), Registro de la Propiedad Intelectual in Spain Art. 145.3.
72.
Germany Sec. 53 et seq., see also Sec. 15 para. 2.
73.
Brazil.
74.
Brazil Art. 48, China (any use but not foreseen by the Regulation on Information networks) Art. 22(10), Croatia Art. 91, Egypt (only reproduction), Europe (reproduction and making available) InfoSoc Directive Art. 5 para. 3h, Germany Sec. 59, Greece Art. 26, Hungary Art. 68 para. 1, Israel Sec. 23, Japan Art. 46, Lithuania, Macau Art. 61j, Poland Art. 33 point 1, Portugal Art. 75 para. 2q, Spain Art. 35 para. 2, Taiwan Art. 58, UK Art. 62 (but not if the copied work is two dimensional).
75.
USA Sec. 119 (The term “unserved household”, with respect to a particular television network, means a household that cannot receive, through the use of a conventional, stationary, out-door rooftop receiving antenna, an over-the-air signal of a primary network station affiliated with that network of Grade B intensity as defined by the Federal Communications Commission under section 73.683(a) of title 47 of the Code of Federal Regulations, as in effect on January 1, 1999).
76.
Brazil Art. 8 para. 7, Japan.
77.
For the rules outside copyright law see Question 12.
78.
For instance: Art. 10 para. 1 Berne Convention (permission to quote from a work).
79.
For instance: Art. 7 para. 3 WCT (right of rental of copies of works embodied in phonograms).
80.
For instance: Art. 13 para. 1 Berne Convention (authorization of sound recording of musical works).
81.
Belgium, Canada, China, France, Italy, Macau, Portugal.
82.
See for further developments the answer to question 6.
83.
See J. Boyle, The Public Domain: Enclosing the Commons of the Mind (Yale University Press 2008) at 165 and S. Teramoto, “Copyrightability and Scope of Protection for Works of Utilitarian Nature under Japanese Law”, 1997 IIC 51.
84.
Focusing the “room for choice”.
85.
Focusing the “effluent of personality”.
86.
Japan About this subjective creativity see Judgment of the Tokyo High Court on February 19, 1987, Hanrei Jiho No. 1225, p. 111 (case on expectancy table on an outcome of the election) and Judgment of the Tokyo District Court on October 11, 1972, Hanrei Taimuzu No.289, p. 377 (Confess of Minsei case).
87.
China, Germany, Italy, Macau, Portugal, Taiwan.
88.
Belgium Art. 2.
89.
Argentina, Australia, Brazil, Canada, China, Croatia, Cyprus, Denmark, Egypt, Germany, Hungary, Italy, India, Israel, Italy, Japan, Lithuania, Macau, Norway, Poland, Portugal, Spain, Taiwan, USA.
90.
See Question 9.
91.
Belgium, China, France, Germany, Italy, Japan, Macau, USA. Actually, according to the French reporter, authorizations for users to use Copyright protected works almost always achieve a balance. And the US reporter held this opinion actually only regarding privileges for reproduction by libraries and archives.
92.
Belgium, China, Italy and Macau.
93.
One should, however, mention here Art. 70.5 of the Canadian Copyright Act since it belongs to the copyright-specific provisions. This special provision foresees the enforcement of competition law considerations against agreements between a collective society and a user, if the Competition Commissioner considers the agreement contrary to the public interest.
94.
See the details in the answers to Question 6.
95.
Although, German case law opened the list of exceptions, see for example BGH GRUR 2002, 963 – Elektronischer Pressespiegel.
96.
That is the reason why the Japanese reporter relates the ongoing debate in Japan on the issue of introducing a standard rule in this matter. Egyptian reporters also mention the debate regarding the implementation of a provision similar to the three-step test so as to provide for a flexible rule.
97.
Spanish law is here an exception since several limits are interpreted broadly.
98.
Argentina, Australia (regarding remunerated user rights and the mandatory license), Belgium, Brazil, China, Croatia, Denmark, Egypt, Germany, Greece, Hungary, Italy, Japan, Lithuania, Macau, Norway, Poland, Portugal, UK.
99.
Australia (only regarding user rights free of charge), Cyprus (fair dealing clause + list), India, Israel (beside an enumeration of free-of-charge user rights, the Israeli Copyright Act contains a fair use defense clause and a provision allowing the judge to decide as to the appropriate sanction), Israel, Spain, Taiwan, USA.
100.
BC Art. 9.2.
101.
Argentina, Australia, Belgium, Canada, Cyprus, Egypt, Germany, India, Israel, Japan, Norway, Taiwan, UK, USA.
102.
China Art. 21, Croatia Art. 80, France Art. L. 122-5 9° para. 4, Greece Art. 28C, Hungary Art. 33 para. 2, Italy (also in several provisions, but as a general principle:) Art. 71^nonies, Lithuania Art. 19 para. 3 and 58, Macau Art. 62, Poland Art. 35, Portugal Art. 75 para. 4 and 81b, Spain Art. 40^bis (and 100 para. 7 sooner implemented for computer programs). Australian law did not implement the three-step test as a general clause leading the interpretation of limitations and exceptions. Yet, one provision on permitted acts for libraries or archives, educational institutions and disabled persons repeats the three steps and expressly refers to their meaning in Art. 13 of the TRIPS Agreements, see Sec. 200AB.
103.
Hungary Art. 33 para. 2.
104.
See the exceptions for reprography for private purposes, for reproduction and communication within a closed network for teaching or scientific research purposes, for reproduction and communication of databases for public security purposes or for judicial or administrative proceedings, for the preservation of cultural and scientific patrimony and in favor of handicapped persons.
105.
Belgium, Canada (“possibly”), Cyprus, Germany, Greece, Israel (the three-step test has not been mentioned in the explanatory notes of the new law, but several public officials of the Ministry of Justice evoked it during conferences and discussions dealing with the new law, stating for example the fair use defense of the new Copyright Act is in accordance with the three-step test), Norway, Poland, Portugal, Taiwan, UK, USA.
106.
Argentina, Australia, Belgium, Brazil, Croatia, Cyprus, Egypt, Israel, Japan, Lithuania, Norway, Portugal, USA.
107.
Belgium, Canada (only a recent decision of the Copyright Board), China, Germany, France, Italy (only in respect of private copy disputes), Norway (actually only by the Remuneration Commission), Poland (direct application of the national implementation), Spain, Taiwan, UK.
108.
Only very occasionally as a general background principle favoring the claimant in cases concerning the application of the “fair dealing” exceptions. See Hyde Park Residence Ltd v Yelland (2001) Ch 143 (CA) and Fraser-Woodward v BBC (2005) FSR 762.
109.
Belgium, see among others the judgement of February 13, 2007, A&M, 2007, p. 107.
110.
Belgium, Decision 29/09 of the Belgian Constitutional Court.
111.
France Cass. Civ. 1, February 28, 2006, IIC 2006 760.
112.
Hungarian Copyright Board 07/08/1.
113.
Geiger, Griffiths and Hilty, Towards a Balanced Interpretation of the “Three-Step Test”, (2008), EIPR 2008, 489, IIC 2008, 707: www.ip.mpg.de/files/pdf2/declaration_three_step_test_final_englishl.pdf.
114.
See for instance in Brazil and Spain.
115.
Argentina, Australia, Egypt, India, Israel, Poland, Taiwan.
116.
IceTV Pty Ltd v Nine Network Australia Pty Ltd (see note 49), at 463.
117.
Cour de cassation., ass. plén., March 7, 1986, Pachot, JCP E, 1986, II, 14713 et 14737^bis, note Mousseron, Tessier and Vivant; D., 1986, 405, concl. Cabanes et note Exelmans.
118.
Japan. For a call of Danish scholars in this sense, see Schovsbo and Rosenmeier, Immaterialret (2008), 63.
See also, subsequently, an Australian case refusing copyright protection to a “mold” for the hull of a boat, which cannot qualify as “artistic craftsmanship” as it is limited by functional constraints and aesthetic considerations form only a minor aspect of the work, Burge v Swarbrick (2007) 72 IPR 235, 256.
119.
China Qian Wang, Textbook on Intellectual Property Law (Chinese People’s University Press, 2007), 49–50.
120.
Australia Burge v Swarbrick (2007) 72 IPR 235, 256, Belgium, Japan, Portugal see judgment of December 16, 2008, case no. 8864/2008-5, available at http://www.dgsi.pt, Taiwan (but only in the literature of scholars).
121.
And in Brazil, where the creativity requirement is actually expressly required by the Copyright Act only for two kinds of works: derived and transformed works, Brazil Art. 7 caput XI, and anthologies, compilations, dictionaries and databases, Brazil Art. 7 caput XIII.
122.
Australia Sec. 14 para.1, and IceTV Pty Ltd v Nine Network Australia Pty Ltd (see note 49), at 458–9.
123.
Argentina, Belgium Art. 2, Brazil, Canada, Croatia, Cyprus Art. 11 para. 5, Denmark, France (L. 123-3), Lithuania, Macau Art. 23 para. 1, Norway Sec. 41 para. 1, (3rd sentence), Poland Art. 36, USA Chap. 3.
124.
The protection thereof lasts 50 years instead of 70 years.
125.
Australia Sec. 94, Brazil, Canada Art. 11.1 (only for cinematographic work not having a dramatic character), China, Taiwan Art. 34 I, Macau Art. 106.
126.
China.
127.
Argentina: 50 years, but running from the death of the last collaborators among: the producer, the script author, the director, and for musical films, the composer of the soundtrack.
128.
Japan Art. 54 (70 years from the creation of the work instead of 50 years following the 50 year period following the making public of the work).
129.
Japan Art. 54.
130.
Italy Art. 78^ter, Lithuania Art. 59 para. 4.
131.
Those co-authors are the principal director, the author of the screenplay, the author of the dialogue, the art director, and the director of photography and the composer of music, France, Lithuania Art. 35 para. 4, Portugal Art. 34.
132.
The duration runs from the public communication in Argentina, Brazil, China, India, Italy, Norway (for the producers of the photographic picture) Sec. 43a, Taiwan Art. 34 I; or from the completion of the work, Canada Art. 10.1 (for photographs of which the owner is a corporation), China (provided the work has never been published), Macau Art. 155. More discriminating, the term can be much shorter, Argentina 20 years instead of 70 years, running from the first publication, idem in Italy Art. 92, Macau 25 years Art. 155, Taiwan. A similar differentiation was removed in Germany in 1985. In Spain, “mere photographs”, meaning those not fulfilling the originality requirement, are protected 25 years from the making of the photograph, Art. 128.
133.
China (since implementation of the International Copyright Convention only for foreign works), Egypt Art. 164 (25 years after publication), Macau (actually also covering works of architecture and of graphic arts) Art. 148.
134.
Software only enjoys 50-year protection in Brazil (instead of 70 years for “regular” works), and the protection period runs from publication in Brazil, in Portugal in case of copyright originally vesting in a person other than the creator of the work Art. 36-2, and in Taiwan, but only if the author of the computer program is not an individual person Arts. 30 and 33.
135.
Denmark, Portugal, Lithuania Art. 64 para. 1 and 2, Norway.
136.
Italy Art. 86.
137.
The Chinese and German reporters mentioned it generally; for sound recordings and performances, see also Australia Sec. 93; China 50 years from the first fixation; Cyprus, 50 years from public communication or in default from recording Art. 3 para. 1b and Art. 10c for performers; Denmark, Hungary Art. 84 para. 2; Israel Art. 41 instead of 70 years pma, it is 50 years from the date of making the works; Italy 50 years running from the first publication or public communication instead of 70 years pma, Art. 75 for phonographic producers, Art. 78^ter for producers of cinematographic or audio-visual works, Art. 79 for radio and television broadcasting companies, and Art. 85 for performers; Lithuania Art. 59 para. 1 for performers and Art. 59 para. 2 for producers; Macau Art. 182 (the rights of performers lapse 50 years after the performance) and 188 (the rights of producers of phonograms and videograms shall lapse 50 years after fixation); Norway Sec. 42 for performers, Sec. 45 for producers; Taiwan Art. 34I running from the public release of the work; UK 50 years instead of 70. For broadcasts, see Australia 50 years from the broadcast Sec. 95, China 50 years from the first transmission, Cyprus 50 years from publication and in default the date of the broadcast instead of 70 years pma, Denmark, Hungary, Italy like in Cyprus Art. 79, Lithuania Art. 59 para. 3, Macau 20 years from the broadcast Art. 192, Norway Sec. 45a, UK 50 years instead of 70. For typographical arrangement, see Australia 25 years running the publication of the edition Sec. 96, China (10 years running from the first publication), UK 25 years instead of 70.
138.
Macau Art. 22, USA Chap. 3.
139.
Brazil, Macau (actually collective works and works created for others) Art. 22 para. 3, Taiwan Art. 33, Poland Art. 36.
140.
Canada Art. 5 para. 1, Israel Art. 42 instead of 70 years pma, it is 50 years from the date of making the works.
141.
Italy Art. 29 (20 years from the first publication).
142.
USA, Sec. 106A. Eldred v. Ashcroft, (2003), 537 U.S. 186 (2003) held that this period of protection did not violate the Constitutional provision providing that copyright protection could last only for a limited time.
143.
Greece Art. 20 para. 2.
144.
Egypt Art. 148.
145.
Italy Art. 29.
146.
For example in Spain, the private copying limitation expressly excludes databases and computer programs, see Art. 31 para. 2.
147.
Urged by the Egyptian, Hungarian, Lithuanian, Portuguese and Spanish reporters. Although parody, reporting of news, personal use in the family circle, and use in the course of teaching exception apply to databases works in Belgium, see Art. 22^bis para. 1(2).
148.
USA Sec. 117.
149.
Australia Sec. 47 B et seq., Belgium Art. 6 of the Computer Programs Act of June 30, 1994, Brazil Law 9.605 of 1998, Canada Art. 30.6, China Art. 16 et seq. of the regulation on the computer software protection, Croatia Art. 108 et seq., Cyprus Art. 7B para. 4 et seq., Denmark, Egypt, France Art. L. 122-6-1, Germany Sec. 69d–e, Greece Arts. 42–44, Israel Sec. 24a et seq., Italy Art. 64^bis et seq., India, Japan Art. 47-2, Lithuania Arts. 30–32, Norway Sec. 39, Poland Art. 74 et seq., Portugal Art. 6 of the decree-law 252/94, Spain Art. 100, UK Sec. 296A, USA Sec. 117.
150.
Belgium Art. 22^bis Sec. 1 para. 5, Croatia Art. 97 and 151, Cyprus Art. 7C para. 2a and 7C para. 3b, France Art. L. 432-3, Germany Secs. 55a and 87c, Hungary Art. 33, Italy Art. 64^{quinquies–sexies}, Lithuania Arts. 30–32, Portugal Art. 10 of the Decree Law 122/2000, Spain Art. 34, UK Sec. 296B.
151.
Brazil Art. 48, China (any use but not foreseen by the Regulation on Information Networks) Art. 22 para. 10, Croatia Art. 91, Egypt (only reproduction), Europe (reproduction and making available) InfoSoc Directive Art. 5 para. 3h, Germany Sec. 59, Greece Art. 26, Hungary Art. 68 para. 1, Israel Sec. 23, Japan Art. 46, Lithuania, Macau Art. 61 j, Poland Art. 33 point 1, Portugal Art. 75 para. 2q, Taiwan Art. 58, UK Art. 62 (but not if the copied work is two-dimensional).
152.
Croatia, Lithuania, USA.
153.
See for example Croatia Arts. 32 and 82, Cyprus Art. 7 para. 2p, France L. 122-10, Lithuania Art. 23 para. 1(1) and 3.
154.
Mostly implicit in copyright acts (except in Macau Art. 1, Poland, Art. 1 Sec. 2) and in the Berne Convention. It is however in the TRIPS Agreement, Art. 9.2.
155.
Australia Sec. 14 para. 1, Canada Canadian Admiral Corp. v. Rediffusion Inc. [1954] Ex. C.R. 382, Israel, UK Sec. 3 para. 2.
156.
“mis en forme”, in France and Belgium.
157.
Argentina, Belgium, Canada Art. 5 para. 1, Croatia in respect of clothing model, see Supreme Court – VSRH II Rev-2/94,1 September 1994, Gliha, I., Autorsko pravo – sudska praksa (Copyright law – Court’s Case-Law) o.c., 1996, Dec. 13, Cyprus Art. 3 para. 2 and see for the case law acknowledgement of the idea/expression dichotomy Supreme Court of Cyprus, Sokratous v. Gruppo: Editoriale Fabbri – Bompiani and “Gnosi” publications, 1997, Denmark, Egypt Art. 138 para.2, Greece Art. 2 para. 1, France (in the literature but neither in the Copyright Act nor in the case law), Hungary Art. 1 para. 3, India, Israel Sec. 4(a), Italia Art. 1, Lithuania Art. 4 para. 1 and Art. 2 para. 19, Macau Art. 1 para. 4 and 2, Norway, Portugal Art. 1, Taiwan Art. 31, for the requirement of being expressed and Art. 2 for the originality, UK Art. 1 para. 1 a (for literary, dramatic, musical or artistic works), USA Art. 102a and the Feist decision stating: “the sine qua non of Copyright is originality”, and international law: Art. 9.1 of the TRIPS Agreement.
158.
France.
159.
Belgium, Croatia Art. 5, Germany Art. 2, Hungary Art. 1 para. 3, Poland Art. 1.
160.
Belgium C. of Cass., February 24, 1995, Pas., 1995, I, 211 and Rec. Cass., 1995, p. 318, comment M. Buydens; C. of Cass., December 10, 1998, Pas., I, 516, Cyprus Art. 3 para. 2b, France, Italy, Lithuania similar to the French doctrine, Lithuanian legal literature explains that originality manifestsitself in the expression of the author’s personality in the work, S.A. Vileita. Lietuvos autorių teisių ir gretutinių teisių komentaras [Commentary on the Law on Copyright and Neighbouring Rights] (Vilnius, 2000), 33.
161.
Brazil Art. 7 caput XI (for derived and transformed works) and XIII (for anthologies, compilations, dictionaries, databases), Poland Art. 1, Lithuania Art. 4. para. 1, Macau Art. 1 para. 4.
162.
Germany, Portugal.
163.
Hungary, Portugal Art. 1. Cf. the originality requirement in Canada that implies the work should not be the result of only mechanical treatment, CCH Canadian Ltd. v Law Society of Upper Canada, (see note 102), at p. 356.
164.
See Art. 6 of the Directive 2006/116/EC of the European Parliament and of the Council of December 12, 2006 on the term of protection of copyright and certain related rights, “author’s own intellectual creation”.
165.
See for example in Belgium, Art. 2 para. 5 for photographic works, Art. 20^bis para. 1 on databases and Art. 2 of the Belgian Computer Program Act (Loi du 30 juin 1994 transposant en droit belge la directive européenne du 14 mai 1991 concernant la protection juridique des programmes d’ordinateur, M.B., July 27, 1994).
166.
This condition is implicit in several provisions of the Copyright Code (such as Art. 2, which defines original works) and has been recognized by the Lisbon Court of Appeal, according to which the creative nature of a work “depends upon the fact that such a work is not the copy of another work (minimum requisite), that it is not the result of the mere application of pre-established criteria, notably of technical nature, from which true choices or options of the author are absent, and that it expresses a result that is not obvious or trivial, and hence may be distinguished from other works and recognized in it its individuality as a work”, see the judgment of December 16, 2008, case no. 8864/2008-5, available at http://www.dgsi.pt.
167.
Court of Appeal Brussels (9e ch.), February 1, 2002, A.J.T., 2001-02, p. 748.
168.
Portugal Art. 1.
169.
Italy Cass. no. 425/2005, Cass. no. 5089/2004, Cass. no. 13937/1999 and Cass. no. 908/1995.
170.
Italian Court of cassation, February 13, 1987, no. 1558.
171.
Meaning it should fit in one of these categories: 1. literary works, 2. musical works, 3. choreographic or pantomimic works, 4. sculpture, picture and design, 5. architectural works, 6. cinematographic works, 7. photographic work, 8. software, 9. database and 10. industrial design (Art. 2).
172.
Japan Art. 2 para. 1 item 1.
173.
Some Japanese case law mentions that a sufficient level of creativity is satisfied if the work embodies “some kind of personality” (Judgment of the Tokyo High Court on February 19, 1987), Hanrei Jiho No. 1225, p. 111 (Case on expectancy table on an outcome of the election) or is “not an imitation of others” (Judgment of the Tokyo District Court on October 11, 1972), Hanrei Taimuzu No. 289, p. 377 (Confess of Minsei case).
174.
Concerning the details about “copyrighted works” under Japanese law, see Hisayoshi Yokoyama, Works, available at http://www.tomeika.jur.kyushu-u.ac.jp/ip/index.html (Last visited on October 18, 2010).
175.
France Art. L. 112-1, Hungary, Macau Art. 1 para. 1 and Art. 1 para. 3, Spain.
176.
IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 83 ALJR 585, 595.
177.
Australia, Macau Art. 1 para. 4.
178.
UK for recent application, see the decision of the Court of Appeal in Sawkins v Hyperion [2005] WLR 3281 (CA).
179.
See the Trademark cases 100 U.S. 82 (1879).
180.
Taiwan also uses this definition of originality.
181.
USA Bleistein v. Donaldson Lithographing Co. 188 U.S. 239 (1903).
182.
UK Sec. 3A para. 2.
183.
So the Indian reporter, referring to Eastern Book Co v. D. B. Modak [(2008) 1 SCC 1].
184.
Israel see, C.A. 513/89 Interlego A/S v. Exin-Line Bros. S.A., 48(4) P.D. 133 (1991).
185.
Feist Publications, Inc. v. Rural Telephone Service Company (1991) 499 US 340 (1991) (USA).
186.
That is why in a recent decision, the Tel Aviv District Court rejected the protection for a mere live television broadcast of a sporting event since it does not amount to an original creative work, see The Football Association Premier League, Ltd. v. Ploni, Tak-District 08(3) 2514 (2008). Waiting for the decision of the Supreme Court in this case, the reporter urges it is questionable whether this decision reflects the law in Israel since other judgments are satisfied with a minimum amount of skill, labor and judgment, see Kimron v. Shanks, C.A. 2811/93, 54 P.D. (3) 817.
187.
Cyprus Art. 3 para. 2b.
188.
Cyprus: Supreme Court of Cyprus in the Sokratous v. Gruppo Editoriale Fabbri – Bompiani and “Gnosi” publications decision (1997), referring to the famous UK decision University of London Press Ltd. v. University Tutorial Press Ltd (1916, 2 Ch. 601) andto the decisions Macmillan & Co. Ltd. v. Cooper (K. & J.) (1923, L.R. 51 Ind. App. 109, 93 L.J.P.C. 113, 40 T.L.R. 186), British Broadcasting Co. v. Wireless League Gazette Publishing Co (1926) Ch. 433 and Wham-O Manufacturing Co. v. Lincoln Industries Ltd, (1985, R.P.C. 127, New Zeeland Court of Appeal).
189.
So University of London Press Ltd. v. University Tutorial Press Ltd (1916, 2 Ch. 601) quoted by the Cypriot report.
190.
Israel Sec. 19.
191.
Australia Sec. 40 et seq. and 103 et seq., Canada Art. 29, Cyprus Art. 7 para. 2, India Sec. 52, Israel Sec. 19, Taiwan Sec. 65, UK Sec. 30 of the CDPA and 137 of the Broadcasting Act 1996 and USA Sec. 107.
192.
Parody and caricature, or any use of work thanks to humor, are only mentioned by the Australian, Belgian, Brazilian, Canadian, Croatian, French, Japanese, Lithuanian, and Spanish reports.
193.
China Years with Enthusiastic Passion Case (2004) Beijing Higher People’s Courts, Civil Affair Division, no. 627.
194.
China Case Wine of 9 ^th September, (2007) Wuhan, Intermediate People’s Court, Intellectual Property Division, no. 179.
195.
Maximum 1000 words for written works or eight bars for musical scores, Argentina Art. 10.
196.
Visual art works can be fully reproduced, Brazil Art. 46 VIII.
197.
It is noteworthy, also Brazil and Portugal provide for such a general clause.
198.
Germany Sec. 50.
199.
Cyprus Art. 7 para. 2f, France Art. L. 122-5 para. 3 b, Germany Sec. 49, Italy Art. 65, Hungary Art. 36 para. 2, Israel Sec. 19, Macau Art. 61b, Poland Art. 26, Portugal Art. 75 para. 2c.
200.
Belgium Art. 22 para. 1 12°, Croatia Art. 93, Denmark Sec. 24, Europe InfoSoc Directive Art. 5 para. 3j, France Art. L. 122-5 para. 3d, Germany Sec. 58, Greece Art. 28, Japan Art. 47, Lithuania Art. 24, Norway Sec. 24, Poland Art. 33 point 2, Portugal Art. 75 para. 2 l.
201.
Argentina Art. 27, Belgium Art. 8 Sec. 1 al. 2 and Sec. 2, Brazil Art. 46 para. Ib, Canada Art. 32.2 para. 1c and e, China Art. 22 para. 5 for fair use exception to copyright and Art. 6(4) of the Regulation on the Protection for the Right of Communication via Information Network, adopted on May 10, 2006, effective since July 1, 2006, Cyprus Art. 7 para. 2n, Denmark Sec. 26, Egypt, France Art. L. 122-5 para. 3c, Germany Sec. 45 and 48, Greece Art. 25 para. 1b and para. 2, Hungary Art. 36 para. 1 and Art. 41, Italy Art. 66, Japan Art. 40, Lithuania Art. 24, Macau Arts. 6 and 61a, Norway Sec. 26, Poland Art. 25, Portugal Art. 75 para. 2b, Spain Art. 31^bis para. 1 and Art. 33 para. 2, Portugal, Taiwan Arts. 50 and 62. And especially for judicial proceedings: Australia Sec. 43, Belgium Art. 8 Sec. 1 al. 2 and Sec. 2, Brazil Art. 46 VII, China Art. 22 para. 7 for fair use exception to copyright and Art. 6 (6) of the Regulation on the Protection for the Right of Communication via Information Network, adopted on May 10, 2006, effective since July 1, 2006, Croatia Art. 87, Cyprus Art. 7 para. 2m, Denmark Sec. 26, Egypt, Germany Sec. 45, Greece Art. 24, Hungary Art. 41 para. 2, Israel Sec. 20, Italy Art. 67, Japan Arts. 40 and 42, Lithuania Art. 27, Macau Art. 61L, Poland Art. 33, Portugal Art. 75 para. 2n, Taiwan Arts. 45 and 62.
202.
See for example Australia Sec. 40 and 103C, Cyprus Art. 7 para. 2, Israel Sec. 17, USA Sec. 107.
203.
China Art. 22 para. 6 for the fair use exception to copyright and Art. 6 para. 5 of the Regulation on the Protection for the Right of Communication via Information Network, adopted on May 10, 2006, effective since July 1, 2006, Japan Art. 35, Taiwan Art. 46. Especially for visual works, Hungary Art. 68 para. 2. Outside of the very broad scope of the quotation exception, Spanish law also foresees an exception for teaching in the classroom, explicitly referring to “teachers of officially regulated education”, Art. 32 para. 2.
204.
Canada Art. 29.5, Croatia Art. 88, Greece Art. 21 (only concerns short written works – articles from newspaper or periodical, short extracts of a work or parts of a short works – or lawfully published works of fine arts), Japan Art. 35, Macau Art. 61e, Poland Art. 27. See, only for reproduction, and provided it affects only short extracts of written or visual works, Lithuania Art. 22 para. 1(1).
205.
Belgium Art. 22 para. 1 7°, Israel Sec. 19, Norway Sec. 13a, Taiwan Art. 54. Greek law restricts the scope of the permitted use to articles lawfully published in a newspaper or periodical, short extracts of a work or parts of a short work or a lawfully published work of a work of fine art, Greece Art. 21. Furthermore, Japanese law requires for this permitted use that the institution operates on a non-profit basis, see Japan Art. 36.
206.
Cyprus Art. 7 para. 2q, Lithuania Art. 22 para. 1(1).
207.
See the very narrow permitted use in Canada, Art. 29.4, allowing manual reproduction of a work in order to display it. See also the Nordic exception, which explicitly refers to works of art and of a descriptive nature in critical and scientific presentation, Denmark Sec. 23, Norway Sec. 23 para. 1. Hungary also foresees a specific limitation (although broader here than in the Nordic countries) for works of visual art, see Hungary Art. 68 para. 1.
208.
Cyprus Art. 7 para. 2e, Germany Sec. 47, Norway Sec. 13.
209.
Australia Sec. 44, Greece Arts. 20 and 21, Japan Art. 33, Macau Art. 61g, Poland Art. 29 para. 2. Canadian Art. 30 is very narrow, as far as it grants the free use: The exceptions only cover short passages from published literary works in which copyright subsists and are not themselves published for the use of educational institutions. And, in addition to the necessary acknowledgement of the source and the author, one publisher may not proceed so in respect of more than two passages from works by the same author within 5 years.
210.
UK Sec. 36.
211.
See for example Canada Art. 29, Israel Sec. 19, USA Sec. 110 but also China Art. 22 para. 1 of the Copyright Act and Art. 6 of the Regulation on the Protection for the Right of Communication via Information Networks, and Poland Art. 27.
212.
Belgium Art. 22 para. 1 9°, Europe InfoSoc Directive Art. 5 para. 3n, France Art. L. 122-5 para. 8 of Code de la Propriété intellectuelle and Art. 132-4 du Code du Patrimoine, Hungary Art. 38 para. 5, Italy Art. 71^ter, Portugal Art. 75 para. 2o, Lithuania Art. 22 para. 1(3), Norway Sec. 16, Poland Art. 28, Portugal Art. 75 para. 2o. NB: Spanish law foresees a fair compensation for this use, see Spain Arts. 19 and 37 para. 2.
213.
Canada Art. 30.1.
214.
Reproduction for preservation of the cultural and scientific patrimony, (only phonograms and videograms in Italy), made by publicly accessible libraries, museums or archives (China Art. 22 para. 8 for the fair use exception to the reproduction right, Greece Art. 22, Italy Art. 69 para. 2, Japan Art. 31, Lithuania Art. 23, Spain Art. 37 para. 1, Taiwan Art. 48) which further are not for direct or indirect economic or commercial advantage (Belgium Art. 22, Sec. 1 8° (NB: in this provision the unique foreseen access right is the access by the author, provided he pays a fair remuneration of the services done by the institution for the conservation), Croatia Art. 87 (for public archive), Denmark Sec. 16, Europe InfoSoc Directive Art. 5 para. 2c, Greece Art. 22, Israel Sec. 30c), or for display (China Art. 22 para. 8 for the fair use exception to reproduction rights). The Italian Act only allows on this matter photocopying (Italy Art. 68 para. 2), Lithuania excludes the making available on information networks (Lithuania Art. 23), Canadian and Greek laws further require that an additional copy of the work at stake cannot be obtained on the market promptly and on reasonable terms (Canada Art. 30.1 para. 2, Greece Art. 22). And in Canada this exception requires from the institutions concerned that the original they own in their permanent collection is rare or unpublished, and deteriorating, damaged or lost or at risk of deterioration or becoming damaged or lost (Canada Art. 30.1).
215.
Italy Art. 68 para. 2.
216.
Lithuania Art. 23.
217.
Canada Art. 30.1 para. 2, Greece Art. 22.
218.
Canada Art. 30.1.
219.
Cyprus Art. 7 para. 2k in fine , Macau Art. 132 para. 4.
220.
Greece Art. 23.
221.
Israel Sec. 25c.
222.
USA Sec. 1201, the reporter states this section is of dubious constitutionality, because the Librarian of Congress is part of the Legislative branch of government, which normally can legislate only by a majority vote of both houses of Congress.
223.
Canada Library and Archives of Canada Act Art. 30.5.
224.
Argentina Art. 36, Brazil Art. 46 para. Id, Canada Art. 32, China Art. 22(12) for the fair use exception to copyright and Art. 6 para. 8 of the Regulation on the Protection for the Right of Communication via Information Networks, adopted on May 10, 2006, effective since July 1, 2006, France L. 122-5 para. 7, Lithuania Art. 22 para. 1(2), Macau Art. 65, Portugal Art. 75 para. 2I, Spain Art. 31^bis para. 2.
225.
Regarding temporary or incidental reproduction: Australia Sec. 43A and B, Belgium Art. 21 Sec. 3, Croatia Art. 81, Cyprus Art. 7 para. 5, Denmark Sec. 11a, Egypt see H.A. El Saghir, Suppl. 53 (Egypt) in International Encyclopaedia of Laws 61 (R. Blanpain & M. Colucci eds., Kluwer Law International 2009), Europe InfoSoc Directive Art. 5 para. 1, France Art. L. 122-5 para. 6, Germany Sec. 44a, Greece Art. 28B, Hungary Art. 5 para. 1, Israel Sec. 26, Italy Art. 68^bis, Lithuania Art. 29, Macao Art. 56i, Norway Sec. 11a, Poland Art. 23-1, Portugal Art. 71 para. 1, Spain Art. 31 para. 1, UK Sec. 31. Regarding ephemeral recording: ephemeral recordings made by broadcasters: Belgium Art. 22 para. 1 10°, Canada Art. 30.9, Croatia Art. 83, Cyprus Art. 7 para. 2k, Denmark Sec. 31, Europe InfoSoc Directive 5(2)d, Egypt see H.A. El Saghir, Suppl. 53 (Egypt) in International Encyclopaedia of Laws 61 (R. Blanpain & M. Colucci eds., Kluwer Law International 2009), Germany Sec. 55, Israel Sec. 25, Japan Art. 44, Lithuania Art. 29, Macau Art. 132 para. 1, Norway Sec. 31, USA Sec. 112 (according to US law, ephemeral recordings are not all free of charge, but the ones caused by the five time zones (six in the summer) are free of charge) and by programming undertaking, Canada Art. 30.8.
226.
Incidental inclusion of a work or other subject matter in other material (Canada Art. 30.7, Europe InfoSoc Directive Art. 5 para. 3 I, Israel Sec. 22, Portugal Art. 75 para. 2r), under following supplementary conditions in the following countries: the work at stake shall be in a public place (Belgium Art. 22 para. 1 2°, Cyprus Art. 7 para. 2b), it shall be in course of reporting (Germany Sec. 50, Greece Art. 25 para. 1a, Italy Art. 65 para. 2, Spain Art. 35 para. 1, Taiwan Art. 49) or insignificant (Germany Sec. 57); in Cyprus it concerns only artistic works (Cyprus Art. 7 para. 2d); in Hungary it covers expressly television broadcasts and expressly exempts from the requirement of giving the source (Hungary Art. 36 para. 3); it is otherwise defined in Australia: exceptions for public displays of artistic works that are included in broadcasts or films (Australia Secs. 65–73).
227.
India Sec. 52 para. 1a (we have already seen, however, that most copyright countries provide for fair use or fair dealing for private research and study).
228.
Brazil Art. 46 para. II, China Art. 22 para. 1, Denmark Sec. 12, Egypt, Greece Art. 18, Italy Art. 68, Japan Art. 30 (free of charge only for writings), Lithuania Art. 20 para. 1, Macau Art. 60, Poland Art. 23 (and 33 concerning the limit to this free use as regards architectural works), Taiwan Art. 51. The French reporter mentions in this context Art. L. 122-5 para. 2, although it seems to be in contradiction with Art. L. 311-1 et seq., which he mentions later in his report.
229.
Norway Sec. 12.
230.
See Belgian and Egyptian law.
231.
See for example Australian law devoting five different provisions to different situations of private use of specific works (Secs. 43C, 47J, 109A, 110AA and 111).
232.
Consider that the US provision in respect of the exemptions for bars and restaurants provides for the exact superficies of concerned establishments: “3,750 gross square feet of space (excluding space used for customer parking and for no other purpose)”.
233.
Most significantly in Belgium, France and Germany , also in the US . Ad hoc commissions such as the Canadian Copyright Board mostly deal with similar issues.
234.
See in France and the USA regarding Google Book Search, in France and Germany on the thumbnails used in Google Pictures, in Belgium on Google News.
235.
Belgium Google vs. Copiepresse, February 13, 2007, A&M , 2007, p. 107.
236.
Germany Sec. 53a.
237.
Spain Art. 37.
238.
Germany Sec. 47.
239.
Macau Art. 61d.
240.
Belgium Art. 23, Croatia Art. 33, France Art. L. 133-1 et seq., Germany Sec. 27 (where it actually is more a consequence of the exhaustion right than of a remuneration right), Lithuania Art. 16 para. 3, Spain Arts. 19 and 37 para. 2.
241.
Germany Art. 52.
242.
Australia Part VB division 3 and Sec. 47 A, Germany Sec. 45a and Japan Art. 33-2.
243.
Germany Sec. 49. Spanish law also has a similar distinction following the implementation of the InfoSoc Directive, see Art. 32 para. 1.
244.
Belgium Art. 22, Sec. 1 4°, Canada Arts. 79–88 (only for musical works), Croatia Arts. 32 and 82, Cyprus Art. 7 para. 2o, Denmark Secs. 12 and 39–46, France Art. L. 311-1 et seq., Germany Sec. 53 et seq., Greece Art. 18, Hungary Art. 35, Italy Arts. 68.3 and 71^sexies et seq., Japan Art. 30, Lithuania Art. 20 para. 6, Norway Sec. 12, Portugal Arts. 75 para. 2a, and 76 para. 1b, Spain Art. 31 para. 2.
245.
See Canada, UK and USA.
246.
Belgium Art. 22 para. 1 4°, Canada Art. 30.3 (for reprography made by educational institution or a library, archive or museum), Croatia Arts. 32 and 82, Cyprus Art. 7 para. 2p, France L. 122-10, Germany Sec. 53, Lithuania Art. 23 para. 1(1) et 3. NB: this is also the case in Spain thanks to a collective license scheme, without any limitation of the exclusive right.
247.
Germany Sec. 27 para. 1, Lithuania Art. 11 para. 4 and Art. 15 para. 4 for authors and Art. 53 para. 4 et 5 for performers, Taiwan Art. 38 para. 5 (Taiwanese law actually provides this right without requiring right holders’ agreement only for education institutions and non-profit establishments). The rental right follows a similar regime in Spain, although the Spanish report presents it under mandatory licenses, see Art. 90 para. 2.
248.
Regarding broadcasting Australia Sec. 47, Cyprus Art. 10C para. 2, Lithuania Art. 55, Macau Art. 130, and 137, USA Secs. 117 and 119; regarding communication to the public in different ways Australia Secs. 70, 108, and 135ZZK, Cyprus Art. 10C para. 2, Lithuania Art. 55, Macau Art. 130, USA Secs. 111, 114 and 116. Mixing both ideas, reproduction for the purpose of including a work in a television broadcast requires in Australia only remuneration, Sec. 70. Finally the specific Italian provision for reproduction of broadcasts made by hospitals, prisons or institutions helping youth and impaired people, provided those institutions do not act for commercial advantage.
249.
Cyprus Art. 7 para. 2h, Macau Art. 125(1), USA Sec. 115. The cable retransmission in Canada is also governed by a remuneration right, Art. 31.
250.
USA Sec. 112.
251.
Macau Art. 152.
252.
The US situation of derivative works in the context of restored works is a demonstrative example, USA Secs. 104A para. 3 and 111.
253.
Belgium Art. 21 para. 2.
254.
Canada Art. 29.6 for news programs, and Art. 29.7 for other programs.
255.
Canada Art. 30.3.
256.
UK Sec. 66.
257.
Australia Sec. 55, Germany Sec. 42a, Hungary Art. 19, Israel Sec. 32, Japan Art. 69, Taiwan Art. 69. The latter requires 6 months after the release of the first recording; Hungary also covers the making of multimedia works and the compilation for databases.
258.
Cyprus Art. 10B, France Art. L. 132-20-1, Germany Sec. 87 para. 5, UK Sec. 74 para. 4. NB: Spanish law foresees here a “limit” (meaning a user right) free of charge (Art. 36). “No compulsory licences on broadcasting are envisaged in the Spanish Copyright Law”. Furthermore, although compulsory licenses are not generally used within Spanish copyright tradition, Art. 20 para. 4 foresees a mandatory license via a CMO for cable distribution when the retransmissions of broadcasts are undertaken by a third broadcasting company.
259.
UK Sec. 135 A–G.
260.
Japan Art. 68.
261.
UK Sec. 176 and sch. 17.
262.
UK Sec. 301 and Sch. 6. Even though the exploitation rights expired, each performance of this play grants remuneration to the Trustees of the Hospital for Sick Children, Great Ormond Street, London.
263.
Germany Sec. 5 para. 3.
264.
Hungary Art. 57 A–C, Japan Art. 67.
265.
Macau Art. 175.
266.
UK Sec. 144.
267.
Cyprus Art. 15.
268.
Poland Arts. 21 and 70.
269.
Croatia Art. 98, Europe Art. 6 para. 4 InfoSoc Directive, Germany Sec. 95b.
270.
See answers to Question 9.
271.
France Art. L. 122-9.
272.
Argentina Art. 6: if heirs do not publish, republish, or allow translation 10 years pma, a third party may apply for it before the court; Macau Art. 38: similar provision, 25 years pma, and for works out of print, and 59 for posthumous works. Portugal Art. 70 para. 3: posthumous works may be published by third parties if the heirs of the author do not provide for it within 25 years pma. Spain Art. 40: if the work remains undisclosed after the death of the author, heirs are entitled to decide as to its publication for as long as the work remains protected, but any person holding a legitimate interest may request the adoption of any judicial measure to impose release.
273.
Lithuania Art. 14 para. 3.
274.
Israel Sec. 50.
275.
Israel Sec. 53.
276.
Greece Art. 23.
277.
Macau Art. 44.
278.
Expressly pointed out by the Greek report.
279.
See recital 32 of the Directive.
280.
For instance: only non-commercial use, only use for educational and research purposes, etc.
281.
For instance: preconditions of the kind contained in the three-step test.
282.
See for example: Australia Secs. 47F, 47J, 109A, 110A and 111, Cyprus Art. 7 para. 2aa, Italy Arts. 68, 71^bis, 71^{sexies–octies}, Portugal Art. 75 para. 2a, Spain Art. 31 para. 2 and ex Art. 34 para. 2a.
283.
See for example: Australia Secs. 40, 103C, 135E, 135F, 135ZMD, 135ZP, Cyprus Art. 7 para. 2aa, 7 para. 2e, Art. 7 para. 2r, Germany, Hungary Arts. 34 para. 2, Art. 35 para. 4 and para. 5, Spain Art. 32 para. 1, 21 para. 2, 34 para. 2b (and only for research, silent about teaching) Art. 37 para. 1 and 37 para. 3.
284.
See for example: Belgium (the requirement not to prejudice the normal exploitation of the work arises in four exceptions), China Art. 22 para. 7 and Art. 22 para. 9, Cyprus Art. 7 para. 2j and 7 para. 2o, Germany, Hungary Art. 35 para. 6, Art. 38 para. 1, Art. 41 para. 1, Spain Art. 31 para. 2, Art. 31^bis para. 2, Art. 32 para. 2, Art. 34 para. 2b, Art. 37 para. 1, Art. 37 para. 2 and Art. 38, USA (in the fair use clause).
285.
Australia Secs. 40 and 103C, Croatia Arts. 85, 89, 90, 91, 93, Cyprus Art. 7 para. 2aa, France Arts. L. 122-6-1 et seq. and L. 342-3, Germany Sec. 63, Italy, Japan Art. 48 and 60, Poland Art. 34, Taiwan Art. 64, Spain Art. 32 para. 1, 32 para. 2, 33 para. 1, and 32 para. 2b, UK.
286.
Belgium Art. 23^bis, Poland, Portugal Art. 75 para. 5, Taiwan.
287.
Australia, Croatia Arts. 97, 110, 111 and 151, Cyprus, France, Germany Sec. 69g para. 2 et 3, Secs. 69e and 87e, BGH February 24, 2000, GRUR 2000, p. 866, Italy Art. 64^quarter and 64^sexies para. 3, Spain Art. 34 para. 1 and Art. 100 para. 2, UK.
288.
See UK Sec. 36 para. 4 of the CDPA 1988 and 137 of the Broadcasting act.
289.
Argentina, Australia, Canada, China, Croatian, Egypt, Hungary, Israel, Italy, Japan, M. Kato (et.), Zadankai: Chosakukenho 100 Nen to Kongo no Kadai [Round-table discussion: 100 year’s Copyright legislation and future tasks], Juristo no. 1160 (1999), pp. 26 (a remark by M. Kato), Lithuania, Macao, US.
290.
So the German reporter.
291.
Australia Copyright Law Review Committee, Copyright and Contract, Executive Report (2002) 2.11.
292.
Canadian Supreme Court, CCH Canadian Ltd. v. Law Society of Upper Canada, (see note 102) at point 48.
293.
Canadian Supreme Court, Théberge v. Galerie d’Art du Petit Champlain inc., [2002] 2 S.C.R. 336, 2002 SCC 34, at point 30.
294.
Argentina, Brazil, Egypt, India, Israel, Poland.
295.
Belgium Art. 79, Croatia Art. 98 paras. 2 and 3, Cyprus Art. 14B para. 3, France Arts. L. 331-5 para. 4, 331-6 and 342-3-1, Germany Sec. 95b, Greece Art. 66A para. 5, Italy Art. 77^quinquies, Lithuania Art. 75 para. 4, Portugal Art. 221, Spain Arts. 160–162, UK Secs. 296–296ZF. Belgian, Portuguese and Spanish laws broadened the scope to private uses, although Belgian law actually still awaits an executive decree for this possibility to be enforceable, and Spanish law makes only non-digital, private copies enforceable. Croatian provisions foresee several possibilities for proceedings, whereas other countries refer to an ad hoc commission acting as a mediator to help users in case right holders do not supply the necessary means. Spanish law requires the application for the means allowing enjoyment of the limitation to be filed before ordinary courts.
296.
Australia Part V subdivision 2A, China Art. 12 of the Internet regulation, Taiwan Art. 80^bis, USA Sec. 1201: only for specific cases detailed in this section, and regarding classes of copyrighted works about which the Librarian of the Congress has stated in a rulemaking.
297.
USA Lexmark International, Inc. v. Static Control Components, Inc., 387F.3d 522 (6th Cir. 2004) (Maker of printers and printer cartridges could not use copyright to prevent competition in the sale of replacement printer cartridges). Chamberlain v. Skylink, 381F.3d 1178 (Fed. Cir. 2004) (Maker of garage door openers and remote controls could not use Copyright to prevent competition in the sale of remote controls).
298.
For instance: public authorities, general or special courts, etc.
299.
All remuneration rights in China and Italy, also in Portugal (except for covering of musical works already embodied in aphonograms). Being determined case by case: see for example for pedagogical use in France Art. L. 122-5 para. 3e (this should have come into effect on January 1, 2009. By December 2009, two contracts have been concluded, actually concerning only films and musical works), Croatia, Germany and Taiwan; for reprography, Croatia, France and Germany (in Spain also, but reprography is not subject to any user rights); for public lending right, Croatia, Germany, Lithuania and Portugal; for private copy in Croatia and Germany; for broadcasting and communication to the public of phonograms in Germany and Lithuania; for school broadcasting in Germany; for use of protected works for examinations in Japan; for manufacturing “cover versions sound recording” in Israel Sec. 32; all cases of mandatory licenses in UK and USA; publication of a work after the author’s death or after 10 years without any action of heirs or right holders; mandatory license for anthologies of deceased authors in Belgium.
300.
For example Hungary for the reprography, Art. 21 para. 4.
301.
In Belgium for the private copy, see arrêté royal of March 28, 1996.
302.
See the German Copyright Administration Act and Spain Art. 157.
303.
*Private (and analogue) copying: Spain Art. 25. *Private (and digital) copying: Spain Art. 25 para. 6 and Order PRE/1743/2008 of June 18, BOE 148. *Public lending fee: France Art. L. 133-3, Lithuania government resolution no. 905 of August 14, 2007. *Reprography in Greece and Portugal (private copy law no. 62/98 of September 1, 1998, last amended in 2004).
304.
*Private copy: France Art. L. 311-5, Lithuania Art. 20 para. 5 and government resolution no. 997 of September 19, 2007, Israel Sec. 3B–F Copyright Ordinance as they remain in effect pursuant to Sec. 69 of the Copyright Act. *Reprography: Lithuania government resolution n° 181 of February 6, 2002. *Reproduction in school books: Japan Art. 71, etc.
305.
India for all remuneration rights.
306.
Private copy Poland Art. 20 para. 1, Cyprus.
307.
Mandatory license for covers of musical works already embodied in phonograms, Australia Sec. 55. *Private copy Poland Art. 20 para. 1.
308.
Australia a copyright tribunal decides upon equitable remuneration or the appropriate royalty in respect of the mandatory license for sound recording Sec. 55; China (the commission is then the national Copyright Administration Department or the price administration department); Cyprus Art. 10C para. 2 and Art. 15 (“competent authority” means the authority consisting of not more than five persons appointed by the Minister from amongst persons having experience in and knowledge of matters of copyright, at least three of which are not members of the public service); Germany (Arbitration Board, at the German Patent and Trademark office) Sec. 14 et seq. Urheberrechtswahrnehmungsgesetz; India (Copyright Board); Lithuania (Council of Copyright and Neighbouring Rights) Art. 72 para. 4; Spain Art. 158 (Intellectual Property Commission); Taiwan a Copyright Examination and Mediation Committee intervenes especially in respect of statutory license for pedagogical use in Taiwan, in any case to examine the rate and in case of conflict; UK Copyright Tribunal; USA Copyright Board and the court supervising the antitrust consent decrees.
309.
Lithuania Art. 80, Poland Art. 47 and especially for collective management societies Art. 105.
310.
Canada Art. 83 para. 1.
311.
Germany Secs. 12–13 of the German Copyright Administration Act (Urheberrechtswahrnehmungsgesetz).
312.
Germany Sec. 13 Urheberrechtswahrnehmungsgesetz, Poland Art. 105.
313.
Italy Arts. 71^septies and 174^bis.
314.
Canada Art. 88 para. 2.
315.
With some exceptions, see for example the case of press-clipping compensation in Spain, about which the Spanish reporter notices: “Since the law does not require collective management, it is unlikely that this compensation becomes a reality”.
316.
For example broadcasters for broadcasting fees Lithuania, UK.
317.
For example France, Croatia, Poland.
318.
Belgium Art. 55, Croatia Art. 32, France Art. L. 311-4, Germany Sec. 54, Greece, Hungary, Israel, Lithuania Art. 10 para. 5, Poland Art. 20 para. 1, Spain.
319.
Belgium Art. 55, Croatia Art. 32, Germany Sec. 54, Spain Art. 25.
320.
Israel Sec. 3B–F Copyright Ordinance as they remain in effect pursuant to Sec. 69 of the Copyright Act, Norway Sec. 12.
321.
In Lithuania, the State pays the whole fees.
322.
France L. 133-3.
323.
USA.
324.
For instance: between the creators/performers and the producers; between the different creators involved in a production, etc.
325.
Expressly: Egypt, UK, USA.
326.
Hungary Art. 23/A para. 1.
327.
Distribution as follows: 40% for the principal director, 24% for screenplay author and dialogue author together, 15% for the operator, 12% for the music composer, and 9% for the painter .
328.
Urheberrechtswahrnehmungsgesetz of Septermber 9, 1965.
329.
Germany Sec. 7 Urheberrechtswahrnehmungsgesetz.
330.
Germany Secs. 7 and 8 Urheberrechtswahrnehmungsgesetz.
331.
Portugal Art. 5 para. 2e.
332.
Greece Art. 18.
333.
Hungary Art. 21 para. 4.
334.
Hungary Art. 20 para. 5.
335.
Lithuania government resolution no. 905.
336.
Spain Art. 132.
337.
France Art. L. 133-4.
338.
For instance: original right holders who are creators on the one hand and right holders who have acquired the copyright subsequently on the other (derivative right holders).
339.
For instance: non-transferability of certain rights, e.g. moral rights.
340.
Hungary, India, Macau, UK.
341.
Canada Art. 13.1 para. 2, Portugal Art. 42, USA Sec. 106A.
342.
Australia Sec. 195AN para. 3and 248N.
343.
Egypt Art. 145, Israel Sec. 45(b), Italy Art. 23, Macau Art. 41, Spain Art. 14 for authors and Art. 113 for performers, Taiwan Art. 21. Regarding only the revocation right, Croatia Art. 50.
344.
For instance *Rental and public lending right for example: Belgium Art. 24, Croatia Arts. 33, 115 and 126, Cyprus Art 12 para. 2, Lithuania Art. 11 para. 4 and Art. 15 para. 4 for authors and Art. 53 para. 4 et 5 for performers, Spain Art. 90 para. 2 (for rental right); * droit de suite, Croatia Art. 37, Cyprus Art. 12 para. 3; * private use Belgium Art. 55; *Reprography Croatia Art. 32, Poland Art. 18 para. 3; *Remuneration rights granted to co-authors of an audiovisual work, Spain Art. 90 para. 4 and para. 5; *Right of performers to receive a supplementary remuneration for the broadcasting of their performance Macau Art. 179 para. 5. See also the German general prohibition (Sec. 63a) allowing transfer in advance only to collective management societies.
345.
Egypt, France Art. L. 131-3, Lithuania, Poland Art. 41 para. 2, Taiwan Art. 36, Spain Arts. 43, 51, 69 for creators, and 75 for performers, see also Spanish case law of the Supreme Court October 29, 1999 Isla Beach Westlaw.ES RJ1999/ 8167 and October 29, 1999, Saminar Westlaw.ES RJ1999/8165.
346.
Belgium Art. 26 para. 2 and Portugal Arts. 83–106 in respect of publishers. Belgium Art. 32 para. 2 in respect of performance contract, USA Sec. 101 in respect of the employer.
347.
Canada Art. 13.
348.
Portugal Arts. 13–14, Spain Arts. 51 for “regular” works, 97 para. 4. for computer programs, and 110 for performances.
349.
Spain Arts. 48–49.
350.
Canada Art. 14.
351.
Lithuania Art. 40 para. 2 setting a 1-year period. See also the Spanish law, setting several periods depending on the kind of contract, Spain Art. 69.
352.
Belgium, Germany, India, Israel, Italy, Portugal. See on eventual collisions from a Portuguese point of view: J. de Oliveira Ascensão, “Sociedade da informação e liberdade de expressão”, in Direito da Sociedade da Informação, vol. VII, Coimbra, 2008, pp. 51 et seq.; A. Libório Dias Pereira, Direitos de Autor e Liberdade de Informação, Coimbra, 2008, pp. 169 et seq. and Droit d’auteur et liberté d’expression. Regards francophones, d’Europe et d’ailleurs, sous la direction d’A. Strowel et Fr. Tulkens, Brussels, Larcier, 2006.
353.
It is noteworthy those fundamental rights do not explicitly exist in Australian law, and that the debate about the relevancy of such an intervention of fundamental rights regarding copyright law is ongoing in Japan.
354.
Brazil, Croatia, Cyprus, France, Germany, Greece, Israel, Lithuania, Poland, and the USA.
355.
Germany, and the Israeli decision: CA 2790/93 Eisenman v. Qimron, 54(3) P.D. 817 (2000).
356.
Belgium Court of cassation, September 25, 2003, Pas., 2003, I, 1471, Arr. Cass. 2003, p. 1733, concl. G. Bresseleers, Germany, Canada, Spain.
357.
Israeli Supreme Court P.L.A. 2687/92 Geva v. Walt Disney Company, 48(1) P.D. 251 (1993).
358.
Italy Const. Court no. 108/1995.
359.
Cyprus (no related case, but the right to use a work for purposes of caricature, parody or pastiche is considered relying only on the freedom of communication, since the copyright law does not guarantee this liberty), Germany Heiner Müller case BVerfG, no. 1 BvR 825/98, June 28, 2000, Italy Const. Court no. 108/1995, USA “Copyright cannot legally be used to suppress criticism”.
360.
France Const. Court, decision no. 2009-580DC, June 10, 2009, point 12, the decision is available in English: http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank_mm/anglais/2009_580dc.pdf. “In the current state of communication means and given the generalized development of public online communication services and the importance of the latter for the participation in democracy and the expression of ideas and opinions, this right implies freedom to access such services.”
361.
Belgium, France, Germany, India, Israel, Japan, Lithuania (without judicial practice yet), Poland, Portugal, Taiwan, UK. Italy should also be mentioned here, but reporters consider unfair competition, whereas other reporters mostly considered antitrust law.
362.
See the Microsoft case http://www.justice.gov/atr/cases/ms_index.htm (Last visited on October 18, 2010).
363.
IMS case, Case C-481/01, IMS Health GmbH & Co. OHG v. NDC Health GmbH & Co. KG, 2004 O.J. (C3) 16 (April 29, 2004). This case is similar to the case mentioned by the French reporter, regarding a database, Cass. Com. December 4, 2001, Bulletin 2001 IV no. 193 p. 185. See also ECJ Cases C-241/91 and C-242/91 – Magill; CFI Case T-201/04 – Microsoft. The tie-in sale also was an issue in Japan.
364.
Canada Art. 70-5, UK Sec. 144.
365.
Spain Art. 100 para. 4 and para. 5, and Art. 104.
366.
See, for example, Israel Attheraces Ltd v British Horseracing Board Ltd [2007] ECC 7 (CA) and Murphy v Media Protection Services Ltd [2008] FSR 33 and Football Association Premier League Ltd v QC Leisure [2008] FSR 22.
367.
China Art. 55 of the China Antimonopoly Law.
368.
Australia Trade Practice Act 1974 (Cth), Sec. 46, 46A, 48 and 51 para. 3.
369.
See Italian cases: Cass. No. 5346/1993, Trib Milan September 28, 1976 or Trib Genoa June 19, 1993 Trib. Turin November 24, 1994 and Trib. Genoa December 3, 1997.
370.
The Japanese reporter mentions the public order in respect of mass market licenses (especially regarding computer programs such as shrink wrap license and clickwrap licenses) R. Kojima, “Information Transactions in a Digital Environment: From the Perspective of Intellectual Property Law”, 12 Intellectual Property Law and Policy Journal 185 (2006), available at http://www.juris.hokudai.ac.jp/coe/pressinfo/journal/vol_11/11_8.pdf (Last visited on October 18, 2010).
371.
Croatia, Egypt, Germany, Japan, Lithuania, Macao, Poland, Portugal, Taiwan, UK.
372.
See the Art. 328 of the Chinese Contract Law.
373.
Australia , Beck v Montana Constructions Pty Ltd [1964-5] NSWR 229, 23 approved of by the High Court in Copyright Agency Ltd v New South Wales (2008) 233 CLR 279, 304.
374.
Australia Copyright Agency Ltd v New South Wales (2008) 233 CLR 279, 306.
375.
Belgium, Brazil, Germany, Greece, Israel, UK. Yet, in Brazil and Israel cases reported mention the possibility to apply general rules on misuse to copyright cases, but did not use it.
376.
Brazilian Court case, in 1977, RE 75.889, available at http://redir.stf.jus.br/paginador/paginador.jsp?docTP=AC&docID=171495&pgI=1&pgF=100000 (last visited on October 18, 2010), Israel ACUM v. Galei (P.L.A. 6142/02 ACUM Ltd v. Galei Zahal Radio Station, 57(2) P.D. 625 (2003)).
377.
Belgium Civil Tribunal Brussels, January 5, 1996, I.R.-D.I. 1996, p. 97.
378.
Belgium Tribunal 1st instance Brussels, March 9, 2005 Ing.-conseils 2006, p. 135.
379.
Greek Court of cassation, 1009/2007.
380.
Greece Multimember Court of First instance of Athens 2028/2003.
381.
Greece see also One-member Court of First Instance of Athens, 276/2001, and Multimember court of first instance of Thessaloniki 13300/2004, see also One-member Court of First Instance of Athens, 276/2001, and Multimember Court of First Instance of Thessaloniki 13300/2004.
382.
Greece One-member Court of First Instance of Athens 36247/1999.
383.
Court of Appeal Jena, MMR 2008, 408 [413] – Thumbnails.
384.
German Federal Supreme Court (BGH) NJW-RR 2009, 1047 [1049]: for reasons of competition law.
385.
UK Sec. 171 para. 3.
386.
UK cf. Hyde Park Residence Ltd v Yelland [2001] Ch 143 (CA); Ashdown v Telegraph Group Ltd [2002] Ch 149 (CA).
387.
Belgium Test achats v. EMI case, Brussels, September 9, 2005, A&M 2005, p. 301. It also was the case in France regarding the leading case re private copy vs. DRM on DVD, Stéphane P. and UFC – Que Choisir v. Universal Pictures Vidéo France, Court of cassation February 28, 2006.
388.
Spain Art. 34 para. 1, 100 para. 5 and para. 6.
389.
Art. 6 para. 49 (4) of the Israeli Communications Act, 1982.
390.
Art. 6 para. 49(1)(A) ibid.
391.
UK Sec. 137 Broadcasting Act 1996.
392.
UK Sec. 176 and sch. 17 Broadcasting Act 1990 and the must carry provision for cable retransmission Sec. 73 para. 4 and 138, and sch. 9 Broadcasting Act 1996.

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Reto M. Hilty & Sylvie Nérisson

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Hilty, R.M., Nérisson, S. (2012). The Balance of Copyright. In: Brown, K., Snyder, D. (eds) General Reports of the XVIIIth Congress of the International Academy of Comparative Law/Rapports Généraux du XVIIIème Congrès de l’Académie Internationale de Droit Comparé. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-2354-2_16

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