Copyright in definitions

This article could very well have been called “copyright in keywords” or “copyright in summary” or even “little lexicon of copyright”. 

The objective is to give here, in a logical order, a brief schematic summary of copyright, accessible to all. 

References to more substantiated articles are each time offered to allow you to deepen one or the other subject. Just click on the words underlined in color! 

Copyright: 

Branch of intellectual property and, in particular, literary and artistic property, which governs works and their creators (authors). It should be noted that, unlike other intellectual rights, the term “copyright” directly refers to the person of the creator (the author); we say “copyright” and not “the right of works” (vs., for example, “patent law”; not “inventors’ rights”). This is because copyright – unlike other intellectual rights – is a very personalist right, which protects the author’s person above all (inalienable moral rights are the perfect illustration of this: these rights remain, whatever it happens, in the hands of the author; the author cannot cede them). 

Work: 

Within the meaning of copyright, the notion of “work” refers to literary and artistic works in the broad sense, including scientific works, computer programs and databases. The notion of work within the meaning of copyright is not to be confused with works of Fine Arts. Instructions for use, car spare parts, and insurance rates … have already been recognized as works within the meaning of digital trademark monitoring … In general, utilitarian works and applied art are susceptible of protection by the copyright, just like architectural works (including interior design). On the other hand, tastes and flavors are not works within the meaning of copyright (the question remains open for fragrances, perfumes, etc.). A work, within the meaning of copyright, is necessarily a human creation; a simple creation of nature or the discovery of something pre-existing does not constitute a work within the meaning of copyright; similarly: the creation of an animal or an artificial intelligence does not give rise to copyright (to this day, in any case…). 

Originality: 

Condition of the protection of a work by copyright. Originality implies an intellectual creation specific to the author, i.e. a creation which is the result of the author’s free and creative choices. Both adjectives are important: (I) the author must be free in the act of creation (he must have some leeway to express himself; not be totally constrained) and (ii) the author must be creative

A paparazzi who takes a photo is, in principle, not free in the act of creation (he is constrained by the scene or the star he wants to photograph “in the act”) and cannot, moreover, not be creative (he photographs the scene as is). No originality therefore! The same goes for a banal photograph of a subway entrance (there is nothing creative). Conversely, the photographer who asks Jimi Hendrix to take a certain pose (exhale a puff of a cigarette, give a half-smile, have your eyes closed, support the left arm at the level of the elbow, etc.) intervenes in an original way, without being constrained, at the level of the setting in scene and on the final rendering of the photograph. In doing so, the photographer was able to express himself creatively and his photograph was deemed original, and therefore protected. 

Be careful, originality is not synonymous with novelty (a new work may not be original; and a work which is not yet unpublished may, under certain conditions, be original); banality excludes originality. 

Ideas: 

Ideas, even original ones, are not protected by copyright. As Henri DuBois wrote, “ideas, as such, escape any appropriation, because, by their nature, they are intended for free circulation” (Proprietary Literary and Artistic, Libraries Armand Colin, Paris, 1953, p. 10). Everything that is (purely) ideal, conceptual…. is not, in itself, protectable by copyright; only the formatting of the idea (its concretization in a particular form) is susceptible of protection. Ideas, concepts, methods … are therefore not, in their raw state, works within the meaning of copyright. 

In practice, the border between idea / concept / method vs. formatting the idea / concept / method is not always easy to trace (it is to be examined on a case-by-case basis). An example that is often cited to illustrate the border between the idea (non-protectable) and its formatting (protectable) is to be found in the packaging by Christo du Pont-Neff in Paris: 

  • By concretely wrapping the Pont-Neff in a certain way, Christo achieved an original concrete layout; the Pont-Neff as thus packaged by Christo was protected by copyright and those who wanted to photograph this bridge “wrapped” by Christo had copyright problems (because to photograph is to reproduce ; however, to reproduce, you need the author’s permission!). 
  • On the other hand, Christo could not oppose those who wanted to wrap other bridges … simply because the fact of packing a bridge is a concept … and no one can monopolize the abstract concept of packing a bridge. 

Author: 

The original author, i.e. the natural person who creates the work, who shapes it and gives it its originality. Legal persons, employers, sponsors, principals, producers, promoters, publishers, etc. can only be holders of economic copyright (provided they obtain an express transfer of rights for their benefit; to be proven) in writing against the author). Whatever happens, moral rights always remain in the hands of the original author (= consequence of the personalist conception of copyright). Do not confuse the author and the performer: the author is the one who creates the work (copyright), while the artist is the one who interprets or performs the work (neighboring right). 

Copyright: 

Prerogatives available to the author over his work (on condition that it is protected, therefore original); two categories of prerogatives: economic rights and moral rights. 

Economic rights: 

1. The right of reproduction, including intellectual reproductions: the right of translation and the right of adaptation; as well as rental and lending rights. 

2. The right of communication to the public, including making it available to the public “on demand”. 

3. The right of distribution to the public (by sale or otherwise). 

Moral rights: 

  1. The right to the authorship of the work – the author has the right to claim the authorship of his work and to have his name associated with the work; or, on the contrary, to remain anonymous; he can also choose to disclose his work under a pseudonym. 
  1. The right of disclosure – the author chooses when and under what conditions the work is or may be disclosed. 
  1.  The right to integrity - the author can oppose any modification made to his work without his agreement. 

Duration: 

The term of protection by copyright is calculated according to the death of the author of the work (= again manifestation of the personalist conception of copyright). This period extends, in fact, up to 70 years after the death of the author. In other words, since the creation of the work and up to 70 years after the death of its author, this work is protected by copyright. After this 70-year term, the work is said to enter the public domain… So it does not matter the date of creation (it’s not 70 years from the date of creation!), what matters is the date of death of the author. Example: if an author writes a work at 25 and another at 80, both works by the same author will fall into the public domain at the same time: 70 years after his death. If there are several authors for the same work (what is called a collaborative work), the work will be protected for up to 70 years after the death of the last co-author. 

Assignment: 

Act by which the author transfers (all or part of) his copyright to a third party. Only economic rights can be transferred (moral rights being inalienable). The transfer must meet the requirements of article XI.167 of the Code of Economic Law and in particular detail precisely (I) the rights as well as the modes of exploitation that are the subject of the transfer, (ii) the duration of the transfer. the assignment (this can be the entire term of protection), (iii) the geographical scope of the assignment (it can be the whole world), (iv) the exclusive nature or not of the assignment, (v) the remuneration (lump sum, proportional, mixed, the method of calculation, etc.) or, on the contrary, the absence of remuneration (but this must be expressly provided for; if nothing is said about the remuneration or the absence of remuneration, 

The legislation often refers generically to the assignment, but in practice a distinction is made between the assignment (= definitive and irrevocable alienation of all or part of the rights) of the license (= temporary concession – therefore for a fixed period – of all or part Rights). The terminology (assignment or license) is not, however, decisive. It is necessary to examine in concerto what the contract or writing provides to determine whether it is a (definitive) assignment or a (temporary) license. Contrary to a common misconception, employers and contractors do not automatically own the rights to the creations of their workers and commissioned creators. We must insist: employers and contractors also need an express transfer for their benefit in order to be able to use the creations made by their workers and creators on order. In terms of labor relations and orders, article XI.167 of the Code of Economic Law certainly provides for a relaxed formalism for the assignment of rights, but this relaxed formalism nevertheless requires an express assignment and written proof of an assignment. (==> in the absence of an express writing stating the assignment, the employer or the creator on order will therefore not have the rights, even if he has paid a salary or a price for the order!). 

Copyright agreements: 

Apart from the assignments of copyright provided for by article XI.167 of the Code of Economic Law, our legislation has specifically governed several contracts relating to copyright. 

The best known is certainly the publishing contract. Contrary to popular belief, this contract does not only target the publishing of books, but can apply to all types of works (musical, software, etc.). What characterizes the publishing contract is not only an assignment of copyright (reproduction + distribution to the public), but also the obligation for the publisher to make copies of the works and to distribute these copies to the public (sell them), all at the publisher’s sole expense. As long as the publisher does not have the obligation to publish, it is not a publishing contract; similarly, from the moment the author finances the edition, it is not a publishing contract (but an author’s account contract). The obligation to publish (i.e. to make copies of the work and distribute them) is, in a publishing contract within the meaning of the law, the publisher must even do so before a certain deadline; otherwise, the author can claim and take back his rights. 

A thorny question is increasingly emerging: does the statutory publishing contract apply to dematerialized editions (egg e-Books)? The question is very delicate because our legislation dates from the beginning of the 90s; however, at the time, the question was not considered. In addition, the provisions governing the publishing contract in the legal sense of the term are not adapted to dematerialized publishing (the notion of making copies has little meaning on the Internet). Finally, the case law of the Court of Justice of the European Union has also created confusion since the Court very recently ruled that the provision of e-Books online was not an act of “distribution” but an act of “communication to the public” (CJEU, December 19, 2019, C-263/18, Tom Cabinet judgment). According to the Court of Justice, “distribution” (unlike “communication to the public”) can only refer to the distribution of physical or physical copies … However, the publishing contract in the Belgian sense of term implies an act of “distribution”. Legislative reform on this point would be useful; as was the case in France, where it was considered that the existing legislation on publishing contracts was not suitable for dematerialized or online publishing. 

Counterfeit: 

Any act of copyright infringement. 

Any exploitation of a work protected by copyright, without the authorization of the author or of the derivative owner of the copyright. 

Counterfeiting is therefore not just limited to servile copying, such as fake glasses or fake shoes stopped at customs! Counterfeiting can include slavish copying, but also intellectual copying or adaptation (e.g. an unauthorized translation of a novel or the unauthorized reuse, even in part, of a logo on a website). The fact for a publisher to modify the work that he must publish without the authorization of the author can also be an act of infringement (violation of the economic right of adaptation + violation of the moral right to integrity). 

Clearly, the term “infringement” is a legal term that is used to designate any violation of one or more copyright. It being further specified that this term is used even beyond copyright in all fields of intellectual property: the violation of a patent, a trademark, a model, etc. constitutes an act of infringement; and here too, it is not necessarily a question of slavish copying (e.g. the use of a sign may be considered infringing, even if this sign is not strictly identical to the earlier registered mark; trademark law allows to oppose identical signs, but also similar signs, etc.). 

Finally, a major principle in intellectual property (in general) and copyright (in particular) is that counterfeiting is judged more on the basis of similarities than on the basis of differences (which again shows that counterfeiting does not involve slavish copying). 

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