Copyrights encompass a non-exhaustive list of original “works” (Infopaq). These are Literary and artistic work (Arts.1 and 2(1) of the Berne Convention, models and designs as copyrights Article 2(7)of the Berne Convention and Article 17 Design Directive, Databases as Copyrights Article 10(2) of the TRIPS agreement and 3(1)Design Directive, software is also protected as per (Article 1 Computer Program Dir, and 10(1) of the TRIPS agreement. Protection is granted irrespective of the value, quality, merit or mode, form of the work. Copyrights do not require registration; they are based on territoriality and not internationality, set minimum standards. [1]
Prerequisite: Originality
One of the core pre-requisites stated under the Article 9(2) of the TRIPS agreement is that copyrights, in order to gain protection have to be a result of the work of an expression and not the idea itself. [2]
In the Infopaq case ECJ 16 July 2009 (C-5/08): a combination of 11 words was sufficient to amount to the originality criteria of the author as it was the result of the expression of the author. Here, the ECJ held that 11 word extracts from newspapers are protected as copyright because firstly they apply to parts of the work, and secondly, the presentation of the work and the linguistic expression are taken into account to determine an own intellectual creation. It is held that this also applies to industrial designs, and databases and software. In the case, the ECJ looked at the standard of originality in the Design Directive for databases protected as Copyrights since the Copyrights Directive is silent on such standards. Important to note is that the standard of originality is harmonized by CJEU through Art. 3(1) of the Design Directive 97/71/EC. But this was badly received by Member States since the Design Directive actually leaves the standard of originality up to the Member States to determine as per Article 17 of the Design Directive.
Interesting to note is that copyright only requires originality (and expression) as a prerequisite for protection (no novelty) and therefore simultaneous creations of similar copyrights are possible. Furthermore, no registration is required as long as condition is of originality (expression) is met, as per Article 5(2) of the Berne Convention.
Limitations: Mandatory: Art. 5(1) CRD Optional: Art. 5(2)-5(4) CRD, Art. 13 TRIPS , both subject to three step test of Art. 5(5) CRD, 9(2)BC.
Rationale:
Respecting the Union’s rich cultural and linguistic diversity, and ensuring that cultural heritage is safeguarded and enhanced (article (3(3)TEU). Furthermore, Copyrights support for public offer and communication, Periodisation of costs and remunerations of the author. Calls for better quality control & guarantee enabling authenticity. They also protect moral rights and endorse the authors credibility i.e. financier liaison. They ensure certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity etc.
[1] Annette Kur et al, European Intellectual Property Law Text, Cases and Materials( 2nd edn, Edward Elgar publishing 2019). [2] http://www.wptn.com/wptn-in/Mailing/Nov_22/details/6.html ( fatboy beanbag is the closest case to the TRIPS article on the matter)
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