The protection of multimedia products under international copyright law

The protection of multimedia products under international copyright law

Multimedia MULTIMEDIA The protection tional copyright Stephan Law LAW of multimedia law products under interna- Beutler This article, to be p...

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Multimedia

MULTIMEDIA The protection tional copyright Stephan

Law

LAW

of multimedia law

products

under

interna-

Beutler

This article, to be presented in two parts, examines the treatment of multimedia copyright law with specific reference to the EC Database Directive, the Berne Agreement, the WIPO Copyright Treaty and the WIPO Draft Treaty on Intellectual Databases.

I. Introduction In recent years multimedia has become an important economic reality. Millions of pounds are turned over with the sales of multimedia products and important amounts of money are invested in their development and production by the electronics, computer and entertainment industries for which multimedia has become a momentous pillar of their business. Nowadays, a steadily growing number of new and increasingly sophisticated multimedia products are put on the market and the turnovers which are realised by their sales are rising annually. The (partly new) legal issues connected to multimedia products have to some extent already been addressed in different jurisdictions. Also the question as to how multimedia products should be protected (under copyright, trademark, patent and competition law) has been discussed, although with (sometimes) different results.’ The aim of this article is solely to examine the protection of multimedia products under international copyright law, that is the European Community’s Directive on the legal protection of Databases as adopted in March of last year, the Berne Convention, the GATT’ TRIPS Agreement (Trade Related Aspects of Intellectual Property Rights) , the WIPO Copyright Treaty as adopted in December 1996 and, finally, the WIPO Draft Treaty on Intellectual Property Rights in Respect of Databases. However, the emphasis of this article will be on a detailed examination of the European Community’s Database Directive and the possible protection that it gives to multimedia products. The result of such an examination should be interesting as the new Directive, which has also been called “the Multimedia Directive”‘, is, apparently, meant to form “the basis for protecting multimedia rights in Europe”.3 Will the Directive meet this expectation and bring a clear and harmonized protection for multimedia products throughout the European Community? In order to assess this question one first has to define what is understood by a multimedia product and to summarize the important copyright problems which are connected to such products (II below)

II. The multimedia 1. Preliminary

products under international Convention, the GAlT TRIPS Property Rights in respect of

product

thoughts

Contrary to many other terms used in the computertechnology field, the term ‘multimedia’ does not suffer from the fact that nobody has an idea, but that everybody has a totally different one of what the term exactly stands for. This leads to a situation today where “everyone is talking about multimedia, but still no one seems quite sure (...) what it means ‘I.* The only thing which appears to be clear, is that even computer and media experts are not able or willing to agree about a common binding definition for this much used high-tech term. Not least responsible for the lack of a common definition for ‘multimedia’ is the computer and electronics industry. Since today the word multimedia has become a catchword which guarantees monetary success, all producers of computers or other electric devices try to bend the expression into shape, so that it fits their products, which can then be sold in much bigger quantities. From this point of view, it is not surprising that many products which have absolutely nothing in common are sold under the same label of ‘multimedia’. Everything going a little beyond usual wordprocessing nowadays gets this seal: the simplest computer games and presentations of pictures, networks, video-on-PC, sound cards, all are called multimedia. The enumeration of what is sold under this label is almost endless. In such circumstances, finding a definition for the term multimedia is difficult. All definitions, as there is no common agreement, will always - to some extent - be a result of personal value and emphasis. This, and the fact that there is not just one correct definition of the term, should be borne in mind when reading what follows. However, this does not mean that all proposed definitions and all uses of the term are allowed and appropriate. Certain boundaries are given by the sense and the root of the word ‘multimedia’ itseK5

2. Definition

of the term multimedia

In this essay, the term

Computer

‘multimedia

product’

will

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refer to a product combining text, (still or moving) pictures and/or sound in a digitized form made accessible to its user in an interactive way with the help of one or more computer programs6 This short definition needs some additional comments a. Combination of different forms of communication As the root of the term ‘multimedia’ suggests,’ multimedia products are a combination of more than one form of communication. Sole text, sole picture or sole sound therefore cannot be multimedia in the strict sense of the word.’ Since modern computers even have the ability to produce different smells also these (as a further means of communication) could be incorporated into a multimedia product. b. Interaction The compilation of text, picture and sound into a single audio-visual work is not a new invention. The conventional movie film already combines all these different media. The new aspect of multimedia products is the fact that they connect their different parts so that it becomes possible for their users to access text, pictures and sound in an interactive, that is, non-linear way. Up to now, the classic media like books, newspapers, radio or television provided their user with only a limited possibility of iniluencing the way information was presented to them: turning over a page of a book, winding a video forward or backwards and changing the selected radio or television program were virtually the only ways for a user to intluence the information presented. With the possibility of interactive information access, multimedia products change this situation dramatically: the user can select the information individually and he is no longer in a position of a mere passive information consumer.’ c. Digitization From a technical point of view, the fusion of different media (text, pictures, sound) to a single interactively accessible information document requires that all data contained in this document be available in a uniform digitized format,” as only digital information can (easily) be made interactively accessible. An important characteristic of multimedia products, therefore, is that they store their contents, whether poems, photographs, pieces of music or other materials, in a (compressed) digitized form. d. Computer program(s) Data stored within a multimedia product are made interactively accessible to its user by means of (one or more) which are also stored in the product computer programs” itself. The function of these computer programs is to give the computer on which the multimedia product is running the information on how the stored data can be accessed and how this data is interactively bound together. The combination of computer programs with the traditional copyright elements text, picture and sound is an important characteristic of multimedia products.” e. Storage and distribution methods Multimedia products can be stored in various locations and forms, both within the computer itself and on external media

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such as cards, tapes or disks. The most common form of storing multimedia products, nowadays, is the CD-ROM: a digital disk.13 With the advent of powerful broad band networks, however, multimedia products will increasingly be stored on central computers and then be distributed ‘online’14 by cable (or even satellite).15

3. Basic copyright

problems

Multimedia products raise a number of important copyright problems, especially the following: a. Licensing pre-existing material As producing original material can be very expensive. multimedia products are mostly made, at least to a certain extent, from pre-existing material: pre-existing texts, sound recordings, still or moving pictures and software or parts of it (e.g. compression software). Does the incorporation into a multimedia product of these different materials in their entirety or in part constitute a restricted act from a copyright l6 and, or alternatively, neighbouring rights point of view? Mostly it will. Exceptions only occur where the pre-existing material is not protected by neighbouring rights or copyright (e.g. because it does not qualify for protection due to a lack of originality, or because it has fallen into the public domain and protection has therefore ended) or where the legislation allows a (restricted) use of protected material (e.g. fair use, or copying of a nonsubstantial part). Where protected pre-existing material is incorporated (to a substantial part) into a multimedia product the primary issue for a multimedia producer is the need to obtain the necessary consents and licences from right owners or collecting societies for the use of these productions.” In order to avoid serious future problems,” great care must be taken to make sure that all different rights to all elements of the protected materials have been obtained.19 Obtaining these rights may be complicated in situations where, for example, the owner of the rights is unknown or where a work has several right owners or different right owners in different countries.” This often leads to the strange result that from a technical point of view multimedia products are quite easy to produce, but licensing problems and clearing rights will often make the production difflcult.21 This is the reason why multimedia products are mostly produced by companies which own already big amounts of intellectual property rights on pre-existing materials or which have clearance facilities. b. Copyright in the multimedia product Once the multimedia product is completed, two connected but different questions arise: first, is the multimedia product itself protected under copyright law? And if yes, who owns the copyright? The first question is answered quite unanimously in most European countries by the way in which multimedia products are to be protected under copyright law as compilations if they comply with the original requirements set out by the laws of the different countries. However, the issue of whether multimedia products should not better be protected as computer programs,‘* as cinematographic works,23 or if they should not even attract protection (also) under patent law24 are still discussed.25

Multimedia

If the multimedia product as such attracts copyright protection, who is the owner of this right? In the case where a single author creates the entire work, the answer is clear. But in situations where a number of persons have contributed to the work, or where a work is based on other preexisting works, the answer to the question can be difficult indeed.26 c. Right of adaptation and moral rights As stated before, all material placed in a multimedia product must be digitized. Digitization makes it extremely easy, on the one hand, for multimedia producers to modify, manipulate or combine pre-existing works which are incorporated into a multimedia product2’ and, on the other hand, for the user to alter the (copyright protected) multimedia product itself. As existing copyright protected works are not open to free adaptation, alteration or to free combination with other works, this raises on the one hand the problem of the right of adaptation of copyright protected works and on the other hand the problem of moral rights in general and particularly the right of integrity of authors.28 The problem of moral rights is especially important in Civil Law countries such as France, Germany and Switzerland, where these kinds of rights are (to some extent) mostly unwaivable. d. International aspect The few problems mentioned so far are even heightened as multimedia products are mostly produced for an intemational market with different legislations. A failure to consider the legal position in other jurisdictions could be fatal as, for example, a work which is incorporated into a multimedia product may be in the public domain in one country but not in another. The consequence of this is that the same legal process will have to be repeated by reference to the laws of every territory where to multimedia product will be sold. Indeed, a complicated, delicate, time consuming and in the end expensive procedure. III. The European Community’s protection of databases

Directive

on the legal

1. The history of the Directive The European Commission for the first time dealt with the European Communities need for harmonization of legislation in the field of the legal protection of databases in its 1988 “Green paper on Copyright and the Challenge of TechnolOgJ?29 Following the different reactions provoked by this publication the Commission submitted a proposal for a Directive for the legal protection of databases on April 1992.30 After initial feedback and the largely favourable responses of both the European Parliament3’ and the Economic and Social Committee,32 the Commission adopted an amended proposal on October 199?~.~~Based on this proposal the formal adoption of a Common Positiot? ready for a second consideration by the European Parliament was reached by the European Union’s Council of Ministers on 10 July 1995. After minor changes made to the wording of the Common Positions5 the final Directive3” was adopted in March 1996 with a deadline for implementation in the Member States expiring on 1 January 199B3’

2. The reasons for a Directive, and its main objectives

Law

its background

2.1. The background

to the Directive In recent years the world’s information market has changed dramatically: the online information sector as well as the market for CD-ROM products have grown quickly bringing along with them an information explosion3’ Never before has more information been available to the individual person. Moreover, the importance of information to modern business and life in general has also been revolutionized: technical, legal, commercial and financial information has, more than ever, become a resource of great value. In today’s competitive business environment the availability of up-to-date comprehensive sources of information is a key factor.39 With the need for comprehensive information constantly increasing, information has become a tradeable commodity being sold at high prices. In order to tackle the information explosion and the increasing need for up-to-date comprehensive information, it has become indispensable to provide effective information services!’ These services, today, are mostly provided by specialized companies producing or running databases, which store various kinds of information. Not least electronic databases built on the basis of modem technology (informatics and computer communication) being able to generate and process huge amounts of data have recently become of growing importance.41 Various of these modem databases are, today, connected together, so taking an increasingly international dimension. 2.2. The reasons for the Directive Referring to the above described developments of the information market, the increase of trans-border data flows and especially to the increasing importance of databases to modem business and life in general, the European Commission takes the view, that “databases are a vital tool in the development of an information market within the [European] Community”.42 Regarding this importance, the Commission is convinced that a harmonized and stable legal regime is needed in the Community so that database creators and operators can compete on equal terms with their leading rivals in the world information market. At the present time, an important number of divergences and anomalies exist in the legislation of the Member States on the question of the legal protection of databases, and the legal environment in which database authors, makers and operators have to function is far from mature.43 In the opinion of the Commission, such differences and incompatibilities in the treatment of databases under the various laws of the member states “have direct negative effects on the functioning of the internal market”44 and “can have the effect of preventing the free movement of goods or services within the Community ” .45 A first aim of the Directive, therefore, is to remove the uncertainty currently surrounding the protection of databases within the Community in order to support the functioning and the establishment of the internal market.46 A second aim of the Directive is to increase the investment in database creation throughout the Commu-

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n&y47and to remove the “great imbalance in the level of investment in the database sector both as between the Member States and between the Community and the world’s largest database-producing third countries”.48 The Commission expresses the view that unless a uniform legal environment “is created within Europe, investment in the creation of databases within the Community will not kee pace with the demand for online information services”. F9 This will have the negative effect that foreign database operators will transmit their services from outside the Community “to the potential detriment of the database sector in Europe and of those who rely on its services”.50 2.3. The main objectives of the Directive The broad objectives of the Directive are: - to harmonize, so far as possible,5’ protection of databases by means of copyright?* -

to provide, by means of an entirely new sui generis right, protection independent of copyright and

-

to leave unaffected the rights which may exist in the works contained in databases.53

3. The current protection national laws

of databases under

Despite their obvious economic importance, databases, in the sense of collections/compilations of different materials (works, facts or data in general) are not subject to uniform legal treatment in the European Community at the present time and none of the Member States in its legislation makes express reference to the legal protection of databases.54 Although it can be said that “the legislation of the Member States probably serves to protect collections or compilations of works or other materials by copyright’f,55 significant differences in the resulting protection will be obtained in practice, when applying these various legislations to a given database. This is due to important differences in the copyright laws of the Member States: - A first and most fundamental difference relates to the standard of originality which particular Member States might apply to determine whether a database is protected by copyright or not. So, for example, the criterion of originality in UK law solely requires that a database is not copied from another database, and that requisite skill and labour are involved in the making of the database.56 French Law, on the other hand, at present only protects databases when they are original in the sense that they reveal something of their author’s own personality or display an ‘intellectual contribution’.57 An originality requirement understood in this sense from the beginning rules out protection for databases which comprise works or other materials arranged only in a numerical, alphabetical or some other obvious way. This result stands in clear opposition to the result in the UK, where more databases fall within the scope of copyright protection. -

Important differences also exist as regards the ownership of the rights (where the database is created under a

---

Zbb

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contract of employment, as a collective work or by an entity having legal personality) or the ability of a user of a database to perform acts of reproduction of the database or of parts of it (e.g. exceptions for educational or private use vary in most Member States).58 Another important difference in the scope of protection of databases in the European Community results from the fact that some Member States give an (additional) noncopyright protection to various compilations of materials: in the Scandinavian countries Denmark, Finland and Sweden (as well as Norway, which is not yet Member of the European Community) a 10 year protection against copying exists independently of copyright legislation, for catalogues, tables and similar productions in which a great number of items of information have been compiled.59

4. The main features of the Directive The purpose of this section is to give a general overview of the main features of the Directive. Detailed examination of specific features relating to the legal protection of multimedia products will follow under the next section. 4.1. The subject matter of the Directive The scope of the Directive has undergone “much tinkering”60 during the legislative process and many substantial changes have been made to the definition of the term ‘database’. Contrary to the initial proposals,61 which dealt exclusively with the protection of electronic databases, the scope of the Directive now extends to “an form” of databases6* no matter whether electronic or not. CT 3 Three reasons mainlv lead to the decision to broaden the Directive’s scope.& Firstly, the new solution obviates the need to draw a clear distinction between electronic and non-electronic databases (a distinction which it could be difficult to draw in practice). Secondly, it eliminates the problem that two different databases with exactly the same content, but one electronic the other non-electronic, would not attract the same legal protection. Such a result would be totally inappropriate, as the required investment for the creation of both databases might have been identical. Lastly, the broadening of the scope brin s the Directive in line with both the TRIPS Agreement 5 and the ongoing discussions in the WIPO” on the possible adoption of a Database Treaty.67 Also the definition of the term ‘database’ has - compared with the Commission’s initial proposals - been extended, so reflecting the above mentioned wider scope of the current Directive.68 Article l(2) of the Directive now states that a database is to be seen as “a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means”. Prima facie, this definition seems to be very broad, extending to most collections of materials. Important limitations of its scope, are, however, provided by the implied words ‘independent’, ‘individually’ as well as the term ‘systematic or methodical’ and by Article l(3) which states that the Directive’s scope does not extend to computer programs used in the making or operation of electronic databases.69 Another limitation in scope, the express exclusion of phonograms, suggested in a recent

Multimedia

stage of the legislative process, however, has been dropped. By including databases which are ‘accessible by electronic (...) means’ the definition is not limited to traditional databases but also encompasses all forms of online databases so taking into account the rapidly increasing importance of modern communication networks. Considering the broad scope of the Directive, it is important to note that the mere fact that a database falls under Article 1 does not automatically mean that it will finalIy attract any protection under the Directive, as there are other protection requirements which have to be met.” Bearing this in mind, the broad scope seems reasonable and is to be welcomed. 4.2. The protection of databases by copyright Article 3( 1) of the Directive provides that databases “which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation shall be protected as such by copyright”. Clearly, this provision can only apply to those databases which fall within the scope of Article 1. The Directive’s copyright provisions are limited in scope insofar as they only cover the ‘structure’ of databases,‘l or, as Article 5 puts it: the ‘expression’ of the database. This means, that the provisions only relate to the structuring and not to the contents of databases,” which remain governed by the traditional (national) copyright laws and - as is to be shown below73 - by the new sui gene+ right which is introduced by the Directive. This is underlined by Article 3(2), stating that “the copyright protection of databases provided for by this Directive shall not extend to their contents and shall be without prejudice to any rights subsisting in those contents themselves”.‘* Databases are to be protected by copyright under the Directive only as far as they are original by reason of their ‘selection or arrangement’75 (the ‘selection or arrangement’ test having its origin in Article 2(5) of the Berne Convention76) and if they constitute “the author’s own intellectual creation”.” The latter criterion corresponds to the originality requirement set out in the Software Directive78 and follows a ‘droit d’auteur’ approach requiring intellectual creativity on the part of the author.79 No other criteria shall be applied to determine the databases’ eligibility for copy right protection.80 In particular, no aesthetic or qualitative merits may be considered.81 The copyright restricted acts listed in the Directive8’ are quite familiar as they are similar to those provided in most national Copyright Acts. They comprise, broadly speaking, temporarys3 or permanent reproduction, translation, adaptation or any other form of alteration, any form of distribution to the public and, finally, communication, display or performance to the public. Recital 31 clarifies that making a database available by means other than the distribution of tangible copies, e.g. by online transmission, also has to be regarded as restricted copyright act. According to Recital 28, moral rights are outside the scope of the Directive. Member States are free to apply to databases their own existing moral right provisions or to set new laws in this domain. The author of a database is defined as the natural person or group of natural persons who create the database, or

Law

where the legislation of the Member States so permits, the legal person designated by that legislation.@r It is noteworthy, that, unfortunately, the Directive does not harmonize the different existing rules concerning the matter of first ownership.s5 This, therefore, leaves an important issue of copyright to be decided under national law. 4.3. The protection of the content of databases by a sui generis right In addition to the copyright protection covering the structure of databases, the Directive provides for a new sui generis form of protection for the content of compilations. The rationale behind the introduction of the new right is an economical one: while copyright protects the author’s creativity in the selection or arrangement of the contents of databases, the sui generis right takes a total different approach, protecting investment made by database makers. This is underlined by Recital 40 which states that “the object of [the] sui gene& right is to ensure protection of any investment in obtaining, verifying or presenting the contents of a database”. This investment approach stands in clear opposition to the copyright’s originality approach. Consistently, the sui generis protection does not require any originality in the way that copyright does. According to Article 7(l) the new sui generis right subsists where “a substantial investment in either the obtaining, verification or presentation of the contents’@’ of a database has been made. Substantiality of an investment is to be measured by applying a qualitative and, or alternatively, quantitative standard.” Recital 40 makes it clear that the required ‘substantial investment’ may consist of the input “of financial resources and/or the expending of time, effort and energy”.ss It is interesting to see that the test of ‘substantial investment’ set out by the Directive applies effectively a ‘sweat of the brow’ or ‘skill and labour’ criterion respectively for the subsistence of the sui generis right.89 The new sui generis right consists of a bundle of rights defined in Article 7(2) protecting the contents of a database against unauthorized extraction and/or reutilization of the whole or a substantial part.” According to Article 7(2), ‘extraction’ covers all different forms of temporarya or permanent transfer of at least a substantial part of the contents of a database to another medium, however, this transfer is achieved. On the other hand, ‘reutilization is to mean any form of making available to the public all or a substantial part of the contents of a database by distribution of copies, by renting, by online or other forms of transmission. Public lending, however, does not conflict with the re-utilization right. It should be noted, that by contrast to the extraction right, which focuses on the taking and reproduction of the contents, the right of reutilization focuses on the (re)distribution of the contents and concerns in most cases acts of commercial nature.92 The sui generis protection applies to the contents of databases irrespective of the eligibility of such contents for protection by copyright or other rightss3 Moreover, the sui generis right applies also irrespective of the eligibility of the database as such for protection under the Directive’s copyright provisions. Thus, both copyright and sui generis right can subsist in parallel in the one and same database. The

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23/

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Directive also specifies that the sui gene&s right leaves untouched the pre-existing rights subsisting in the materials incorporated into the database. This is expressed in Recital 18 stating that the legal “protection of databases by the sui generis right is without prejudice to existing rights over their contents”?4 The holder of the sui generis right is the maker of the database. According to Recital 41, the maker has to be seen as the person who takes the initiative and the risk of investing: creative input is not needed. It is important to point out that the maker of the database may also be its author, but may also be (as, though, will mostly be the case when expensive databases are created) a different natural or legal person.

4.4. The term

4.5. The international

implications

By contrast to copyright,99 the sui generis right only applies to databases whose makers are nationals of a Member State or who have their habitual residence in the territory of the Community. loa The same rule applies to companies, which have to be treated in the same way as natural persons.1o1 Beyond this, protection may be extended to databases falling outside the general rule by means of reciprocal agreements.lo2

of protection

The term of protection by copyright is life of the author plus 70 years. This is not expressly stated in the Database Directive95 but results form the Term Directive.96 In contrast to copyright, the sui generis protection only

Footnotes ‘See, for example, for the UK: Henry, Publishing and Multimedia Law, Butterworths, London 1994; McCracken/ Gilbart, Buyhg and Clearing Rights: print, broadcast and multimedia, Blueprint, London 1995. For the USA Brimon/ Radcliffe, Multimedia Handbook, Ladera (Menlo Park) 1994; Smedinghoff, Multimedia Legal Handbook A Guide from the Software Publishers Association, Wiley Law Publications, 1994. For France: Gautier, Les oeuvres ‘multim@dia’ en droit Fruryuis, Rida 1995, p. 9 1 et seq; Ministere de la Culture et de la Francophonie, Industrie culturelle et nouvelle technique (Sirinelli report), La Documentation Francaise, Paris 1994. For Germany: Hoeren, Multimedia = Multilegia, Computer und Recht 7/1994, P. 390 and onward; Wachter, Multimedia und Recht, Grur Int. 1 l/1995, p. 860 et seq. For Switzerland: Egloff, Multimedia-Produkteund Urhebewecht, Pladoyer d/95, p. 38 and onward; WERRA, Le multimkdia en droit d’auteur, SMI 2/1995, p. 237 et seq. 2Kaye, The Proposed EU Directive for the Legal Protection of Databases: A Cornerstone of the Information Society?, EIPR 12/1995, p. 583. 3Cook, The Current Status of the EC Database Directive, Copyright World, 52/1995, p. 28. 4Thomas, Multimedia and Marketing in Great Britain, in: Reinhard Hi.inerberg/Gilbert Heise, Multi-Media und Marketing: Grundlagen und Anwendungen, Gabler Verlag, Wiesbaden 1995, p. 153. 5Therefore, for example, as happened, the advertising of a standard computer with integrated telephone or fax functions as a ‘multimedia computer’ is a clear case of misuse of the word. ?his definition follows mainly Egloff, supra note 1, p. 39. But see also for example: Davies, The developing law of multimedia, Computer Law 6~ Practice, l/19%, p. 6. ‘The term ‘multimedia’ is made of the Latin prefix ‘multi’ and the adjective ‘medius’ or the substantive ‘medium’ respectively. ‘Multi’ means plenty, a lot of or several. ‘At least two different means of communication must be combined. In practice, the most common multimedia products are audio-visual products combining sound and visual elements. Prhe different multimedia encyclopaedias which are on the market today (the most important ones are Microsoft’s ENCARTA Grolier’s Multimedia Encyclopaedia and Compton’s Encyclopaedia) are a good example to show the

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lasts for 15 years.97 However, in the case of a substantial new investment an additional term of protection of 15 years is granted.98 Accordingly, dynamic databases, which are constantly substantially up-dated, may in effect be protected indefinitely.

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Stephan Beutler, Attorney at Law, LL.M, Melchtalstrasse 3014 Bern, Tel/Fax:031 / 332 18 68 0s.

Beutler,

8,

1997

interactive functioning of a typical multimedia product. Assuming, for example, that information about ‘Mozart’ is needed: after typing the keyword into the computer, a text about Mozart immediately appears on the screen. Some words in this text are highlighted (so-called ‘hypertext links’), indicating that by clicking (with the computer mouse) on one of them more information about this word, itself containing highlighted elements, will be given. If the user of the encyclopaedia is not interested in more textinformation about Mozart, but would prefer to hear how his music sounds, just clicking the icon (a picture on the computer screen) with the note will do; or to see what Mozart looked like, the user just has to click on another icon and Mozart appears on the screen. If the user is interested in comparing Mozart’s music with Beethoven’s, there is the option to listen to a sample of the Ninth Symphony. Or there is the option to search information on a total different subject. Or to ‘jump back’ to information already viewed before. “In a digital format all information is reduced to a series of binary codes, i.e. strings of zeros and ones. “For example search and retrieve programs (used to step through the stored information) or compression software. 12See also: Egloff, supra note 1, p. 39. ‘?he abbreviation CD-ROM stands for Compact Disc Read Only Memory. Besides the CD-ROM there are many other kinds of Compact Discs (such as the CD-I) which can also be used to store digitised information. 141n contrast to ‘offline’, that is carrier based. 15To some extend, many Internet sites already distribute multimedia products. Walt Disney, for example, has an Internet (WWW) site that allows to interact and to download multimedia works relating to recent Disney movies. ‘?n this article, the term ‘copyright’ is used in a restricted (continental) sense to indicate the right protecting a work which is the author’s own intellectual creation. “See: Davies, supra note 6, p. 6. ‘?.f, for example, a pre-existing work is incorporated into a multimedia product without consent the original author may obtain an injunction restraining the distribution or use or in some jurisdictions even have a court order the destruction of the multimedia product. The potential consequences for a multimedia producer who infringes an author’s copyright can be severe indeed. “Not only must the rights e.g. for a movie be obtained, but

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also the rights for the therein contained sub-components ;uch as lyrics, script and music. And often not only copyrights, )ut also other rights such as trade mark rights (e.g. when the nultimedia product is showing a Coca Cola can) or contractual rights must be obtained. “Additionally to these problems, “the multimedia work >roducer is also faced with having to deal with a number of Different industries whose approaches to licensing have developed over a long period and differ dramatically from each other” (Davies, supra note 6, p. 6.). A very good werview of the problems in licensing rights is found by McCracken/GiIbart, supra note 1. See also: Sherwood-Edwards, It’s Cruel to be Clear: Clearing Rights in a Multimedia World, Entertainment Law Review, S/1995, p. 3 and onward; Sakkers, Licensing and exploiting rights in multimedia products, p. 244 et seq. “Same opinion: Sherwood-Edwards, supra note 20, p. 6. 22”The argument runs that the digitised text, images and sounds in a multimedia work are merely data for the computer program which is also stored on that disk and the whole work therefore constitutes a computer program” [Davies, supra note 6, p. 6.). See also: Thorne, Copyright and multimedia products - fitting a round peg in a square hole?, Copyright WorId, 49/1995, p. 20. 23See, for example: Hoeren, supra note 1, p. 391 and onward; Thome, supra note 22, p. 19 et seq. 24This is not least due to the contoversy over the so-called Compton’s new media patent. See thereto, for example: Bednarek, Comptons New Media’s Patent Saga: Lessons for the Software Industry and Others in Emerging Technology, Patent World, February 1995, p. 29 et seq; Hoeren, Compton und kein Ende?, Computer und Recbt, 9/1994, p. 525 et seq; Lennon, The controversy over the Compton’s multimedia patent, Computer Law G Practice, 3/1994, p. 66 and onward; Herberger, Compton (not) Inside?, Jur-PC 11/1993, p. 2343; Davies, supra note 6, p. 7 et seq. a5The question as to how multimedia products are protected is of great practical importance, as its answer wiU affect, for example, the term of protection or the identity of the right owner. 26See, for example, also: Scott/TaIbott, Interactive Multimedia: What is it, Why is it Important and What does one Need to Know about it?, EIPR a/1993, p. 286. 27Modifications can e.g. consist of the recolouring of film or photo material, the seamless blending of different (moving or stilI) images or the re-editing of a text. 28See also: Davies, supra note 6, p. 6; McCracken/GiIbart, supra note 1, p. 26 and 113. 29Green Paper on Copyright and the Challenge of Technology - Copyright Issues Requiring Immediate Action, COM(S8) 172 final, 7.6.1988, Chapter 6. 3oProposaI for a Council Directive on the legal protection of databases, COM(92) 24 final, 13.5.1992; OJ No C 156, 23.6.1992, p.4 and onward. The Proposal was accompanied by the Explanatory memorandum to the Proposal for a Council Directive on the legal protection of databases (cit. Explanatory Memorandum), COM(92) 24 final, 13.5.1992. 3’The European Parliament delivered its opinion at first reading on 23 June 1993. See: OJ No C 194, 19.7.1993, p. 144 et seq. 32The Economic and Social Committee delivered its opinion on 24 November 1992. See: OJ No C 19,25.1.1993, p. 3 et seq. 33Amended Proposal for a Council Directive on the legal protection of databases, COM(93) 464 final, 4.10.1993; OJ No C 308, 15.11.1993, p. 1 et seq. 34Common Position, (EC) No 20/95 adopted by the Council on 10 July 1995; OJ No C 288, 30 October 1995, p. 14 and onward accompanied by the Statement of the Council’s Reasons to the Common Position (cit. Statement of the

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Council’s reasons), OJ No C 288, 30.10.1995, p. 23 et seq. 35Common Position approved by European Parhament, second reading with amendments 14 December 1995. Approved by Council on 26 February 1996. 3%irective 96/9/EC of the European Parliament and of The European Parliament delivered its opinion at first reading on 23 June 1993. See: OJ No C 194,19.7.1993, p. 144 et seq. The Council Directive of 11 March 1996 on the legal Protection of Databases (cit. the ‘Directive’), OJ No L 77, 27.3.1996, p. 20 et seq. 37Article 16(l). Note: Recitals and Articles cited hereafter always refer to the final text of the Directive. 38’rIt has been estimated that the volume of the increase annually in information generated today equals the total information in circulation in the world fifty years ago” (Explanatory Memorandum, supra note 30, p. 26). 39ibid., p. 3. 40ibid., p. 5. *‘See: Recital 10. And: Pattison, The European Commission’s Proposal on the Protection of Computer Databases, EZPR 4/ 1992, p. 114. *‘Recital 9. See also: Dreier, Die Harmonisierung des Rechtsschutzes von Datenbanken in der EG, GRUR ht. lO/ 1992, p. 739. 43See: Explanatory Memorandum, supra note 30, p. 4. 44RecitaI 2. See also: Recital 3. 45RecitaI 4. *%ee: Recital 2 and 3; Metaxas, Protection of Databases: Quietly Steering in the wrong Direction?, EIPR 7/199O, p. 228 47See: Recital 10. 4sRecitaI 11. 49Explanatory Memorandum, supra note 30, p.4. “ibid., p. 4. 5’In the course of the long legislative process the harmonization concerning different aspects of copyright law has shown to be difficult and has, therefore, been cut back. 52See also: Recital 5. 53See: Cook, supra note 3, p. 27; Worthy/Weightman, Exploiting Commercial Information: A Legal Status Report, The Computer Law G Security Report, 12/1996, p. 97. 54See: Explanatory Memorandum, supra note 30, p. 13. 55ibid., p. 15. 56Subsection l(1) of the UK Copyright, Designs and Patents Act 1988 protects originat compilations under the category of ‘Iiterary works’. The Act defines ‘literary work’ as any work other than musical, dramatic or artistic works. Therefore, under UK law problems arise if a compilation contains dramatic, artistic or musical works as these categories may be excluded from the definition of ‘literary work’. 57rrApp~rt intellectuel”. See: Babolat Maillot Witt v Pachot, Cour de Cassation, 7 March 1986; RIDA 129/1986, p. 136. 58See: Explanatory Memorandum, supra note 30, p. 15. 59See: ibid., p. 16. This so-called ‘catalogue rule’, which has been applied since 1961, falIs within the scope of Recital 52 and wilI, therefore, also have some effect after the Directive’s implementation. 60Cook, supra note 3, p. 28. ‘iThe Commission’s original 1992 proposal and its amended proposal of 1993. 62Article l( 1). 63See: Recital 14. The scope of the term electronic database has to be interpreted widely: following Recital 22 it encompasses also optical devices such as CD-ROMs or CD-Is. &See: Statement of the Council’s Reasons, supra note 34, p. 24. 65Agreement on Trade-Related Aspects of InteIlectuaI Property Rights. The TRIPS Agreement is part of The World Trade

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Organization (WTO) Agreement. %orld Intellectual Property Organization. 67No distinction between electronic and non-electronic databases is made either by the corresponding TRIPS provisions (in relation to copyright, Article lO(2) TRIPS protects compilations “whether in machine readable or in other form”) or in the current WIPO Draft Treaty on Intellectual Rights in Respect of Databases. For details see section 2. %Yee: Statement of the Coucil’s Reasons, supra note 34, p. 24. @The meaning and the effect of these terms will be discussed in detail below under IV. 2. “A good example to underpin this, is an ordinary audio compact disc (storing several recordings of musical performances) which will - as it has the ability to select individual tracks - mostly fall under the Directive’s definition of the term database. Normally, however, such a compact disc will not attract any (copyright or sui gene&) protection as it does not confirm with the respective subsistence criteria. See: Recital 19. ‘lRecital 15. 721nsofar, the Directive follows the principle set out in Article 2(5) of the Berne Convention. 73See: III. 4.3. and IV. 3. ‘*In fact, this means, that the Directive creates a triple layer of protection where databases include contents which are, for example, already copyright protected: those contents will continue to be copyright protected, will perhaps also attract a sui gene& protection and, in addition, the database itself will attract copyright protection. See: IV. 4. below. 75This, interestingly, is the same test of originality which was adopted by the US Supreme Court in Feist, when rejecting the ‘sweat of the brow’ theory of compilation copyright (Feist Publications Inc. v Rural Telephone Service Co Inc., USPQ 2d 1275, 111 S.Ct. 182 1282, 113, L.Ed 2d 358 (1991)). It has to be pointed out that it is the selection or arrangement of the contents of a database which must be original, not the contents themselves. 76Article 2(5) of the Berne Convention speaks of “selection and arrangement” (emphasis added) but “the word ‘and’ (...) is not to be read conjunctively as meaning that both elements are required” (Ricketson, The Beme Convention for the protection of literary and artistic works: 1886-1986, Kluwer, Centre for Commercial Law/Queen Mary College/ University of London, 1987, p. 301). “The Directive’s originality test, if once adopted, will mean that countries such as the UK and the Republic of Ireland which still allow copyright protection for compilations meeting the lower ‘sweat of the brow’/‘skiU and labour’ originality standard may be obliged to reduce the scope of copyright protection for databases. 78Council Directive 91/250/EEC of 14.5.1991 on the legal protection of computer programs, OJ No L 122, 17.5.1991, p. 42 and onward Directive as last amended by Directive 93/98/ EEC (OJ No L 290, 24.11.1993, p. 9 et seq). 79This approach is also consistent with Article lO(2) of the TRIPS Agreement. ?ee: Article 3(l), last sentence. %ee: Recital 16. 32See: Article 5. Article 6 provides for different exceptions to the restricted copyright acts. Article 6(2) lists four optional exceptions (such as a fair use exception for teaching or scientific research purposes) which may be applied by the Member States. The extremely wide ‘catch-all-exception’ of Article 6(2)(d) enabling Member States to apply exceptions which “are traditionally permitted by the Member States concerned” could have far reaching consequences. s3This appears to mean that e.g. an on-screen display of an electronic database, which normally requires a (short-time)

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copy in the memory of the computer, also falls under the copyright restricted acts. See: Kaye, supra note 2, p. 584; Downing, Online Services and the EU Database Directive, International Review of Law Computers and Technology li 1996, p. 47. &See: Article 4( 1). 85See: Recital 29. The presumption contained in earlier proposals that the employee who creates a database in the course of his employment is the first owner of copyright in the database has been abandoned. See: Statement of the Council’s Reasons, supra note 34, p. 25. 86Emphasis added. *‘See: Article 7( 1). 8&le required investment may have been made in gathering the contents of the database (for example, by research, by making surveys) or by checking the accuracy of source materials or in the way how the material contained in the database is presented (this would, for example, include investment necessary to digitize existing material in order to include it into a digital database). See: Kaye, supra note 2, p. 585. @Since investment is the substance of the right, the criterion for eligibility is similar to the ‘not copied’ criterion of current UK copyright law. ?See: Article 7(l). ‘Substantial part’ has to be evaluated qualitatively and/or quantitatively. Insubstantial parts are, if not protected by other rights, in the public domain. But the repeated and systematic extraction and re-utilization of insubstantial parts may, nevertheless, conflict with Article 7(5). See also: Article 8(l). “See: Recital 44. This approach is in line with Article 5(a) which enumerates copyright restricted acts and appears to include the on-screen display of databases (see: 4.2. above). 92See: Gaster, The EU Council of Minister’s Common Position Concerning the Legal Protection of Databases: A First Comment, Entertainment Law Review, 7/1995, p. 261. The exceptions to the sui generis right, set out in Article 9, mostly refer to the extraction right and are largely identical with the - above mentioned - copyright exceptions. But contrary to the copyright chapter, no ‘catch-all-clause’ in favour of traditional national exceptions is provided for. This means that the Member States will not be free to apply other exceptions than those stated in Article 9. 93See: Article 7(4). It is noteworthy that the 1992 proposal withheld the sui generis protection from all databases which included copyright protected materials. 94See also: Article 7(4). 95But see: Article 2(c) and Recital 25. 96Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights; OJ No L 290, 24.11.1993, p. 9 and onward. The Term Directive contains a special rule concerning the term of protection of audio-visual works. See: Article 2(2). 97 See: Article 10(l), lO(2) and Recital 53. 98 See: Article 10(3), Recital 54 and 55. 99For copyright protection the rules of the Berne Convention (per se, or through the TRIPS Agreement) or the Universal Copyright Convention apply. lOoSee: Article 1 l(1). “‘See: Article 1 l(2). “‘See: Article ll(3); Recital 56. This discrimination of noncommunity database makers, has, not least, to be seen against the background of the American 1984 Semiconductor Chip Protection Act which discriminated, among others, European citizens and companies. (It appears that the old world strikes back!)