IPDM

MULTIMEDIAWORKS

Suggested Reading:

Stamatoudi, Copyright and Multimedia Works (CUP, 2003)

Aplin, Copyright Law in the Digital Society, (Hart Pub., 2005)

Loewenheim [1996] IIC 41

Turner [1995] EIPR 107.

Aplin [1999’ EIPR 633.

Stamatoudi [2001] 48 J. Copyright Soc'y U.S.A. 467;

GINSBURG [1995] 25 Seton Hall L. Rev. 1397;

Caroline Saez [1995] 21 Rutgers Computer & Tech. L.J. 351;

Scott/Talbot E.I.P.R. 1993, 15(8), 284-288.

Pullaud-Dullian, F., The Authors of Audiovisual Works (1996) 169 RIDA 51 (

Examples:

  1. Consider a digital collection of Picasso’s paintings on a CD-ROM. Users may click on specific digitised images portraying individual paintings. The painting is then shown on screen with texts by art historians.
  2. An interactive gallery set up so that users can take a virtual walk.

Problems:

-no definition of multimedia works as such; multi media works combine different subject matter

-as a matter of legal regulation, the following initial problem can be observed

  • Category: Specific Problems in UK law; insistenceand strong emphasis on categorisation.
  • Ownership of MM work if classifiable as a discreet subject matter
  • Ownership of Content
  • ‘Layers’ of rights –
  • How can producers of MM works acquire rights?
  • Underlying problems
  • Application of traditional work categories with (potentially) unintended consequences
  • Multiplication of rights in one discreet work
  • Creation of (yet another) sui generis category?
  • Licensing and ownership.

Classification

  1. Initial Considerations: what can be protected
  2. a work that falls in a specified category.
  3. The content of a work – ‘scenes a faire’ doctrine.
  4. The arrangement of a work (i.e. sequence, structure, selection etc.)
  1. Protection as Software

Software is the underlying tool on the basis of which multimedia works operate, i.e. the sequence of images or sounds is calculated by a computer program. Sega Enterprises v Richards [1983] FSR 73 (‘Frogger’) – computer game includes protected computer program. Images may be expression of that program (and maybe nothing more) and therefore not protected unless computer program is copied (i.e. no protection against imitation). If only expression, see discussion on form/content relating to computer programs.

In UK/US, initial ownership of employer (US: works made for hire doctrine) but different ownership models in author’s right systems: cf German CA 1965, Article 69b

1) Where a computer program is created by an employee in the execution of his duties or following the instructions given by his employer, the employer exclusively shall be entitled to exercise all the economic rights in the program, unless otherwise agreed.

(2) Paragraph (1) shall apply mutatis mutandis to service relationships.

  1. Protection as Database

This raises the same general issue as discussed. problems: are contents sufficiently independent and, if intended to be shown as a sequence?

a)Database Copyright

Sec. 3A CDPA: ‘own intellectual creation’ required + ‘literary work requirement. It seems doubtful, for instance, whether a collection of partly still, partly moving images can be classifies as a literary work, thus rendering database copyright inapplicable. Also, standard of protection is higher than in other case.

b)Compilation Copyright

Compilations are protected under sec. 3 which has been left unaffected. There is a very specific problem as regards UK copyright law. Databases are defined more narrowly than compilations and tables and at the same time the originality threshold is higher. Therefore, can sec. 3 be applied to compilations not conforming to the database definition, and similarly is a database that does not reflect the originality threshold protected as compilation? There is no straightforward answer to this though the result (the more sophisticated the multimedia work, the less it is likely to be protected under database right but more mundane compilations will be protected as compilations) is absurd as it would undermine the harmonisation aspect). Second, why are compilations literary works? ‘literary’ seems to refer to the content since the arrangement of items is neither literary nor anything else. If a multimedia work comprises images, will this be an ‘artistic compilation’?

c)Database SUI GENERIS

If applicable, maker of database acquires rights in addition to copyright in selection/arrangement. Ownership of copyright is different and requires license. Suppose the collection of items has been commissioned to a third party, the arrangement is carried out by a database engineer, who ‘owns’ copyright. no joint ownership in two different Intellectual Property rights. potentially joint ownership in selection and arrangement.

d) Effects: Joint ownership vs. sole ownership[1]

  1. Dramatic Work
  1. Secs. 1(1)(a), 3(2) CDPA: ‘recorded in writing or otherwise’; ‘a work of dance or mime’ and not static ‘movement, story or action’.[2]
  2. skill and labour – general requirements;
  3. Nowrozian v Arks[3]-- dramatic works may include films; showing of dancing man in advertisement film held to be dramatic work[4].
  4. Requirements and infringement – general test of substantial taking
  1. Film Copyright

a)UK: sec. 5B CDPA. ‘a recording from which a moving image may by any means. Protection for cinematographic works is based on fixation on a recording medium. The images must be reproduced from that medium.

(i)Medium specific recording ?

Normally, images are generated by software (rather than initially reproduced). In relation to computer games, the definition might fit: Galaxy Electronics v Sega Enterprises [1997] 37 IPR 462. images may be the result of computer program. (‘by any means’).

(ii)Material to be included (must necessarily be somewhat ‘moving’)

(iii)Meaning of moving image

Reference to traditional films may suggest that (at least some) multimedia works do not portray moving images (fort example, a digital anthology) and thus only very few works could be granted protection. Limited applicability if non-linear presentation of ‘moving images’ such as a narrative.

(iv)Interactivity vs. ‘moving image’

(v)Originality? Consequences:infringement of films = literal reproduction of actual images; protection against non-literal forms of copying not present, but see Nowrozian.

(vi)Ownership in film is initially vested in producer AND principal director as co-authors (Sec. 9 (2) CDPA). Previously, producer only[5] (UK). Film is distinct from contents – legal assumption that works have been licensed applies.

  1. Audiovisual Works

Berne Convention, Article 2 (1)

Films (cinematographic works) constitute works of authorship and must be protected accordingly. A cinematographic work combines a number of distinct categories into one work. This has led to a number of problematic issues, in particular with regard to the beneficiaries of protection. Ownership of films is one of the more complex problems under the Berne Convention. Traditionally, copyright systems vest the copyright in cinematographic works in the producer (i.e. the person taking the commercial risk), whilst author’s right system only recognises authorship of the film’s director (as the person who has created the work) Under Article 14ter, the problem of determining “ownership of copyright” is left to the national law of member states. In addition, the term “film” not only includes the film work as such, but also the accompanying soundtrack.

  1. US approach: ‘tangible medium of expression’ including motion pictures and audiovisual works. § 101 US CA:

‘“Audiovisual works” are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied”.

Protection of video games: Atari Inc v Amusement Worlds 547 F Supp 222 (DC Maryland, 1981);

Scope; ‘series of related images’ problem: MidwayManufacturing Co v Arctic Int Ltd 704 F 2d 1009 (7th Circ. 1983): problem that video games entailed different, non-linear sequences appearing on screen. Broader interpretation allowed: can accommodate anything (based on visual images) that qualifies as a unit.

Fixation: addressed in Stern Electronic v Kaufman 669 F 2d 852 (2nd circ. 1982). Necessary variations in images did not preclude fixation requirement.

Infringement may thus be based on imitation rather than mere copying, i.e.substantial similarities in sounds and images would qualify.

  1. Film Copyright in Author’s Right Systems
  1. France
Phonogram and video gram manufacturers are protected due to their commercial efforts. The reason for specific protection under a separate neighbouring right is to protect the investment necessary for the manufacture of music and films. The person protected is the person who took the (commercial) initiative and responsibility for the first fixation. It is not necessary that the fixation itself contains material which attracts copyright protection. The rights thus afforded are the rights to permit the reproduction, sale, exchange, rental or lending, as well as the public communication. The right to permit public communications is limited in that the direct communication for commercial purposes of published phonograms in public places, radio transmissions or cable re-transmissions is subject to a right in remuneration only (i.e. the owner of the right cannot prohibit theses uses after publication). This right must be exercised by a collecting society.
Audio-visual communication enterprises: Businesses in the audio-visual sector are defined as undertakings, providing the service of audio-visual communications (i.e. by way of telecommunication). Telecommunication is defined as the transmission of signals to the public, including wireless and wired transmission. Examples include broadcasting by television and radio or cable communications. The nature of the content is immaterial but protection is, approximately, limited to transmitting both picture and sound. These undertakings are protected against the reproduction (including the sale, rental or lending), broadcast, cablecast and satellite re-transmission of the information transmitted. In addition, protection is afforded against public uses if an entry fee is charged.
  1. Germany

In Germany, films are protected as a specific category and defined as artistic expression using moving images. The necessary individuality requirement is thus not the act of compiling the still frames which physically constitute the work but, of creating a discreet communicated idea and meaning. Television works created (similar to such film works), are also afforded protection.

The distinction between neighbouring rights and author’s rights becomes very clear in the area of films. Unlike the common law systems, copyright is not vested in the producer but in each person who creatively contributed. In addition, Article 88 specifies certain derivate rights vested in the film producer. Article 94 affords the right to reproduce, distribute, rent or communicate the carrier of the film (i.e. the physical copy of the sound or motion track) and to publicly perform, broadcast or make available the work from such fixation. In addition, Article 88 contains certain presumptions for the benefit of the producer which are intended to facilitate commercial exploitation.

Article 88 The Right of Cinematographic Adaptation

(1) If an author permits another person to make a cinematographic adaptation of his work, he shall be deemed, in doubt, to have granted the following exploitation rights:

1. the right to use the work in its original form or as an adaptation or transformation for the purpose of producing a cinematographic work;

2. the right to reproduce and distribute the cinematographic work;

3. the right to publicly present the cinematographic work if it is a work intended for presentation;

4. the right to broadcast the cinematographic work if it is a work intended for broadcasting;

5. the right to exploit translations and other cinematographic adaptations or transformations of the cinematographic work to the same extent as the work itself.

(2) In doubt, the rights referred to in paragraph (1) shall not be deemed to include the right to remake the cinematographic work. In doubt, the author shall be deemed to have the right, after the expiration of 10 years from the conclusion of the contract, to utilize his work otherwise for cinematographic purposes.

(3) The foregoing provisions shall apply mutatis mutandis to the rights referred to in Articles 70 and 71.

Article 89 Rights in Cinematographic Works

(1) Any person who undertakes to participate in the production of a film shall be deemed, in doubt, to have granted, should he acquire a copyright in the cinematographic work, to the producer of the film an exclusive right to utilize the cinematographic work as also translations and other adaptations or transformations of the cinematographic work in any known manner.

(2) If the author of the cinematographic work has in advance granted to another person the exploitation right referred to in paragraph (1), he shall nevertheless remain entitled to grant that right to the film producer, with or without limitation.

(3) Authors' rights in works used to produce the cinematographic work, such as novels, screenplay and film music, shall remain unaffected.

Article 90 Limitation of Rights

The provisions concerning the need for the author's consent to the transfer of exploitation rights (Article 34) and to the grant of non-exclusive rights (Article 35) and the provisions on the right of revocation for non-exercise (Article 41) or for changed conviction (Article 42) shall not apply to the rights referred to in Article 88(1), items 2 to 5, and Article 89(1). The author of the cinematographic work (Article 89) shall have no claims by virtue of Article 36.

Licenses:

NB: This is a general overview and will be dealt with later in more detail. The following remarks focus on basic licensing issues.

  1. identification of owner.
  2. Assignments; licenses in content
  3. Possibly licenses in entrepreneurial rights; scope of what is needed depends upon national rules on ownership; in cases of joint ownership, each owner must agree.
  4. Individual licensing
  5. Statutory licenses – term used to describe a limitation coupled with some kind of remuneration or compensation payable. This may be paid via levies, though not in the UK.
  6. Collective licensing: license agreements based on certain purposes between right holder associations and/or collecting societies.
  7. Compulsory licensing
  8. Exempted uses

[1]Marchese, [1999] EIPR 364

[2] Creation Records v News Group Newspapers [1997] EMLR 444.

[3] Nowrozian v Arks (No 2) [1999] FSR 79; [2000] FSR 363 (C.A.)

[4] James [2000] EIPR 131; Stamatoudi [2000] IPQ 117.

[5] Beggars Banquet Records Ltd v Carlton TV Ltd [1993] EMLR 349.