IPTango: moral rights

Showing posts with label moral rights. Show all posts

Monday, 4 September 2017

Explain that to me, ‘despacito’ –step by step-

Patricia Covarrubia September 04, 2017 No comments:

This week we open it up with a Guest Post from David Felipe Alvarez Amezquita, a Colombian lawyer currently working on his PhD at University of Nottingham.

Explain that to me, ‘despacito’ –step by step-

Copyright and politics. Why is important for an author to keep his rights?

In support for the elections to the constitutional assembly that was recently voted in Venezuela, during a rally, President Maduro publicly used a transformed version of the song “Despacito”. The song, an unprecedented hit this year, has been used on many occasions, but this particular case has created the total rejection from its authors.

Luis Fonsi said it clearly: “I have never been consulted nor I have given permission for the change or use of the lyrics of <<Despacito>> for political purposes…” See here (Spanish).

This has not been the first case, though. During the recent presidential race in the US, the use of certain songs by Trump’s campaign was fiercely rejected.

This has been a clear example of how the role that authors play in the protection of copyright goes beyond the mere economic interests and touches the limits of freedom of expression and the exercise of democracy. But, what if the rights of the author do not belong to her or him anymore?

The General Comment 17, on “The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author (article 15, paragraph 1 (c), of the Covenant)” published by the Committee on Economic, Social and Cultural Rights, highlights the fact that author’s moral interests should be understood as the protection of the “intrinsically personal character of every creation of the human mind”. This results in the right to be recognised as the creator of the works and the right to object any distortion, mutilation or other modification or derogatory action that would be prejudicial to author’s honour and reputation.

Nevertheless, in some cases, moral rights can be transferred or eventually waived. The legal tradition in which continental copyright (author’s rights) is inscribed avoid this possibility. Instead, the legal tradition for common law copyright allows that these rights can be transferred or waived. For instance, most, if not all of the Latin American countries protect author’s moral rights under conditions of inalienability, non-waiver, and perpetuity. Instead, the US has developed a complex system of protection of moral rights to produce conformity with their adhesion to the Berne Convention, article 6.2. (See for example the case of visual arts, Section 106). The UK, on the other hand, prohibits the assignation of the moral rights but accepts their waiving under written contract (sections 94 and 87).

Why is this important? Because moral rights have not been a peaceful issue in the international arena. One of the best examples of this is the express exclusion of these rights from the main elements of protection of copyright within the TRIPS agreement. By this way, moral rights have been situated outside of the international trade law. Instead, on the area of human rights, author’s moral interests have been enacted since the UDHR. How these two spheres interact on this matter is a question yet to be solved.

In this video time lapse, it can be seen how different countries have accessed to the international systems that protect copyright and author’s human rights. It calls the attention that it was not until the late 1980’s that the US adhered to the Berne Convention and that once they did, in the next decade the TRIPS agreement was adopted and the cascade of countries following this was immediate. A similar cascade occurred when the ICESCR was adopted, but the US was out of it (this country signed the Covenant but has never adopted it). Unfortunately, the ICESCR lacks on swift tools of enforceability that the TRIPS agreement has.

Nevertheless, protecting author’s moral interests can impact areas situated beyond commerce and closer to democracy. This shows that the interface between human rights and copyright towards the protection of author's fundamental rights is not something to disregard.

Even if in some cases countries with a continental tradition have tilted their policies towards a possible transferability or waiver of moral rights, as in the case of works created by a commission or under employment, it looks like a weak author within society is bad for democracy and not only for business.

David's research is related to the protection of author’s fundamental rights through copyright in a comparative perspective. He has been awarded the COLCIENCIAS and the University of Tolima scholarships for doctoral studies. He has worked as researcher and lecturer in HEIs in Colombia, as Head of the Register Office of Copyright and as Copyright Advisor for CERLALC-UNESCO.

David can be contacted here.

Graffiti work - more than creativiy

Patricia Covarrubia November 28, 2016 No comments:

Copyright Beyond Law - Regulating Creativity in the Graffiti Subculture is the title of a new IP book ready for your Christmas Stockings. The title should be interpreted as “it is what it says on the tin”.

Copyright law and the subculture of graffiti are so well interwoven in the book that you forget you are reading a book about law. I noticed this because essentially I do not to take work home and suddenly the book was in my night table and I was engaging on it as it were a novel.

I became more aware of this topic at the Society of Legal Scholars Conference (SLS) 2013 in Edinburgh where I was presenting a paper. Marta Iljadica was presenting also a paper, her topic was ‘Graffiti, copyright and culture: urban space/public domain.’ We then have the opportunity to chat and I found myself totally absorbed by the topic, or perhaps by Marta’s passion for her work. Either way, this is transferred into the book.

Selfie :) my early Christmas present.
Thanks Emma at Hart Publishing

By reading the introduction you understand that the book is not just about copyright and the law – extending theories to graffiti. It starts by using a quote “Graffiti breaks every rule but within itself still has rules” (Anon 29). This clearly tells you that you are going for a ride! I felt myself into different worlds: graffiti the vandalism; graffiti the work capable of copyright protection and even trade mark (see chapter 4); and graffiti and the framework among the graffiti writers (I learnt from the book this word – I used to call them ‘graffiti artists’ –chapter 1 covers the fine line between graffiti writers and street art). Marta manages to emerge you in the graffiti world because her work was based on empirical research and thus, she in a way directs you on how to understand graffiti in its own right rather than fixing it into any other type of copyright work.

The book not only see graffiti as a subject matter of protection under copyright but supervises the expectations that graffiti writers have in the society i.e. use of graffiti outside their cultural environment e.g. photographer, commercial exploitation (used as logo); and on the other hand, the subculture of sharing, creating, attributing, territory (claimed by a graffiti writer), to name a few. Chapters that I enjoyed the most were 7 and 8 ‘Graffiti rules – be original, don’t bite’ and ‘moral rights’. The latter I was not expecting since the book is based on UK – while common law recognises them, it does so up to a lesser extent than civil law jurisdictions.

Who should read this book?
Anyone! colleagues and even friends who are not actually linked to law.
Well done Marta!

Oops! Where can you get it?
Hard copies and e-books are available in this link. Blog readers can claim a 20% discount on the book - the discount code is CV7.

Red card for Mexican composer: passion for football

Patricia Covarrubia October 26, 2016 No comments:

From Mexico and Spain we read a debate about a potential case of copyright infringement.
The Mexican football club ‘Club America’ has released this month a new hymn celebrating its centennial. The song was launched during the half time of the game against Tijuana on Saturday October 15th.

The hymn created much controversy in social media since it is claimed that the hymn is similar to another football club, that is the ‘Sevilla’ from Spain (the hymn can be heard here).

Image result for club america himno centenario

laixb.com

The authorship of the alleged infringed song belongs to the Mexican group Matute, headed by Jorge D'Alessio. After the social media war, he claimed that "there is no copying or plagiarism" in the hymn while the football club separated from any responsibility. The band also noted that there was no ‘intention’. In this regards it is important to note that intention is not needed for an action of infringement since it is strict liability.

Finally, the Mexican football club released a communication stating that "although the musical work is an original work, it has caused some discomfort, therefore this song will never be used by the Club". Why this reaction? the work was commissioned and depending on the contract, they may be the owner of the song and even if the club wants to separate itself from this controversy and keep using it, they are liable (Art 231 of the Mexican Federal Law on Copyright) .

Jorge D'Alessio also published a statement: “Club America asked me to conduct, through the figure of commissioned work, the anthem of the 'centenary', not the official anthem, which I lovingly did as I am fond of the America. You should know that there is no mutilation, copy, distortion, or so-called plagiarism, nor in the letter or the music composed.” It continues “experts in the field are already making the necessary expertise in order to compare the two compositions.”

Good to know:

The Mexican Federal Law on Copyright for the purpose of ensuring legal security of authors and owners of copyright, advice authors to register the work in the Public Copyright Register (art 162). However the same provision of law clarifies that even if literary and artistic works and neighbouring rights are not registered, the law still protect them. This goes in line with the Berne Convention which grants this right without the need of any formality.
Practice of infringement can be for direct or indirect profit-making purposes (art 231).
The use of language in D’Alessio’s statement i.e. ‘distorted, or mutilated’ are type of infringements covered in art 231(iv).
The author of a work is the perpetual owner of the moral rights in works created by him (art 18).

Sources and more info here, here and here.

A Presidential candidate that finished in a copyright infringement battle - welcome to Peru

Patricia Covarrubia September 16, 2016 No comments:

Back in February 2016 the blog reported about a suspected plagiarism case (s) blaming Mr César Acuña Peralta who was running at the time for the Peruvian Presidency.

Mr Acuña was accused of copying his doctoral thesis (submitted at the Universidad Complutense, Madrid, in 2009) as well as his master’s thesis (submitted at the Universidad de los Andes, Colombia) and a whole book (authored in fact by Peruvian Professor Otoniel Oyarce Alvarado). As these accusations were so strong the Peruvian National Institute for the Defence of Competition and Protection of Intellectual Property (Indecopi) decided to investigate the accusations (Organization and Functions Act and Decree Legislative 822 gives INDECOPI the powers to investigate acts affecting copyright and related rights within the country).

Last week INDECOPI finally came to a conclusion sanctioning Mr. César Acuña Peralta and the Universidad César Vallejo (UCV) for copyright infringement in relation to the authorship of the book “Política Educativa – concepto, reflexiones y propuestas”. INDECOPI also sanctioned Mr César Acuña Peralta for his the doctoral thesis “Competencia Docente y Rendimiento Académico del Estudiante de la Universidad Privada en el Perú”.

In the procedure, INDECOPI’s Copyright Commission concluded that:
• Mr Acuña Peralta infringed the moral right of paternity: claiming to be co-author of the book although the only author is Otoniel Alvarado Oyarce.
• The UCV infringed the moral right of paternity since it published the book, attributing sole authorship to Mr César Acuña; and so giving authorship to the book to a third party other than its creator.
• The UCV made another publication which although correctly attributed authorship to Otoniel Oyarce Alvarado, on the credits page of that book the copyright sign ( © ) was added next to Mr Acuña Peralta name, who is also mentioned as an author in the preface. By this the publisher granted authorship to the book to a third party other than its creator.
• In these two published books the Commission noted that the moral right of integrity of the author was also infringed since at least one paragraph of that work was mutilated.
• The patrimonial right of distribution was also infringed since both publications are kept and loaned at the Resource Center for Learning and Research of the UCV. The INDECOPI has ordered to withdraw from circulation such copies.
• In the proceedings against the UCV INDECOPI also found that there was infringement of the moral right of paternity of the author of the prologue of such books. The prologue was written by the priest Otoniel Ricardo Morales Basadre for Oyarce Alvarado. Both publications were altered and so, changing the name for the person for whom he wrote the foreword.

• As the prologue of the infringing copies were distributed for loan in the Resource Center for Learning and Research of the UCV, the Commission determined that the patrimonial right of distribution was infringed.
In regards to the doctoral thesis the Copyright Commission sanctioned with fines to Mr Acuña Peralta due to reproducing fragments of works of others without acknowledging the authorship of them; therefore the Commission concluded that Mr Acuña Peralta infringed the moral right of paternity of those authors.

INDECOPI notes that this “decision may be appealed to the Special Branch Intellectual Property of INDECOPI, which is the second and final administrative authority” of the INDECOPI.

Cut & Paste: plagiarism in the faith

Patricia Covarrubia August 19, 2015 No comments:

Reading one of the main Peruvian newspaper ‘El Comercio’ I became aware of a debate among religious, academics, newspapers, blogs and the like that is occurring in the country. The debate is around copyright and the idea/expression dichotomy regarding teaching a religious faith.

Background

A proper cardinal: are you talking to me?

Several times Lima's Roman Catholic archbishop, Cardinal Juan Luis Cipriani has written a column in the newspaper ‘El Comercio’. Last week a blog called ‘utero.pe’, which is about religious experience, noted that Cardinal Cipriani has plagiarized his writings in the newspaper. The allegation was that Lima's archbishop included six paragraphs from the book Communio by Cardinal Joseph Ratzinger (Pope Benedict). When this accusation was published the readers started a wish hunt! And many has taken the trouble to go through the Cardinals’ newspaper writings and placed into the google search box…and …yep…the results have shown several writings (whole paragraphs) that have been taken from other sources and have not being properly attributed to their authors (screen shots can be seen here).

Cardinal Cipriani then took the time to apologise for not having mentioned his sources but continue to say that popes do not have intellectual property rights over their words since they are part of the “heritage of the faith”. Here is where the debate has been quite heated because of this idea/dichotomy that exist in copyright. Ideas as such are not protected and thus the teaching by popes are indeed part of the heritage of the faith. Giving an example, my teaching comes part of the legacy of the alumni and they are free to use those teaching – teaching is a learning tool. However, another matter and quite contrary to what has been claimed in this debate is that there is not property right on the teaching. In my example as said, the teaching is a learning tool but another issue would be to record the teaching (audio or verbatim) and copy it and pass it as if it were coming as their own. The latter is what happen in the newspaper column. What Cardinal Cipraini was doing was not using the idea but the expression of it – indeed a copyright infringement. For example:

Art 42 of the Peruvian Copyright Law says “Lectures given either in public or in private by the lecturers of universities, higher institutes of learning and colleges may be annotated and collected in any form by those to whom they are addressed, provided that no person may disclose them or reproduce them in either a complete or a partial collection without the prior written consent of the authors.”

Cardinal Cipriani even suggested that because of the type of column he was writing, there was not space for indicating the source. And this misconception is followed by others that have taking the social media to say that because it is different when you write a book, or academic paper, or a column in a newspaper Cardinal was right not to acknowledge the sources. There is indeed exception to quotations for copyrighted material such as reviewing or criticism. However in the present case the Cardinal used the quotations to impart a teaching – the quotes were neither reviewed nor criticised. And even in this legal exception such quotes need to be fairly used.

Art 44 of the Peruvian Copyright Law says “It shall be permissible to make quotations from lawfully disclosed works without the author’s consent or payment of remuneration, subject to the obligation to state the name of the author and the source, and to the condition that such quotations are made in accordance with proper practice and only to the extent justified by the aim pursued.”

However note that there is another exception that can be thought of which is enclosed in Art 43 Copyright Law as follows:

“With regard to works that have already been lawfully disclosed, the following shall be permitted without the author’s consent:(a) reproduction by reprographic means, for teaching or the holding of examinations at educational institutions, provided that there is no gainful intent and to the extent justified by the aim pursued, of articles or brief extracts from lawfully published works, on condition that the use made of them is consistent with proper practice, involves no sale or other transaction for consideration and has no direct or indirect profit-making purpose;”

Indeed, imparting the info disclosed by the Cardinal may have not needed ‘authorization by the author or payment of any remuneration’ (even though he was not imparting the teaching in an educational institution) BUT it was not exempt from the obligation to state the name of the author and the source. Even in the 'space' given in the column there was still the need to accommodate the paragraph with ‘quotations’ marks and to put in brackets the author for example Pope VI or Pope Benedict.

Finally, an issue that has not been debated is the issue of moral rights which the Peruvian law also regulates under Chapter II of the Copyright Law. In this case the right infringed was the ‘rights of authorship’ also known as the ‘paternity right’.

Due to this debate and the assertion by the Cardinal that he did use the writings of former popes without attributing them, the newspaper El Comercio made the decision to delete two articles by the cardinal and said it would not publish him again. This measure could have been taken due to the fact that Art 218 (c) of the Criminal Code establishes a penalty of either imprisonment or a fine when knowing that the copy or reproduction is illicit, it still distributes the said copy/reproduction to the public by any medium, or stores it.

Chile: lights, camera, action

Patricia Covarrubia May 11, 2015 No comments:

On May 7^th the Chamber of Deputies of Chile open a debate regarding an initiative presented by the Executive, which seeks to modify Law 20,243. The draft Bill (bulletin 9889) seeks to modify the law that establishes rules on the moral and economic rights of performers and artistic performances which are fixed in audio-visual format.

The debate was discussed by the Committee on Culture, Arts and Communications together with representatives of the National Society of Authors of Theatre, Cinema and Audio-visuals (ATN) as well as Chile Actor’s president Ms Esperanza Silva. The debate put forward the need to add that both, directors and screenwriters, have a patrimonial right on the registration of the work.

In this context, the actress Esperanza Silva acknowledged how important it is to be granted rights over works, specially to writers and audio-visual directors and said that this is in need and just. She noted that music authors have enjoyed many rights since way back and she felt that it was an appropriate policy to be extended to directors and screenwriters. Another interesting proposition is seen in Art 4 which establishes as an ‘obligation’ that any payment/royalties must be paid through the corresponding collective management.

After hearing the proposals of the guests, Deputy Marcos Espinosa (PRSD), said the project should pick up the signs for ‘safeguarding’ under the law what is happening in the reality. Additionally, the President of the Commission, Deputy Roberto Poblete (IND), said that "today was a tremendous contribution to listen to the representatives of ATN and Chile Actors, since our directors and script writers are very vulnerable and justice is of paramount to them”.

Finally, the deputy Poblete said the next guidelines to be followed with respect to the project is to "try to establish a very clear definition of the different roles inside of audio-visual production” and which ones are under the umbrella of intellectual property.

Source Camara de Diputados de Chile.