[pd-discuss] How to build a public domain calculator?

[Angelopoulos, C.J.]

Hello Rufus, Thomas and all!

I'll try keep this as brief as possible:

>> -       I am a bit confused by the second question as it seems to
>> conflate the issues of parallel ownership by multiple owners over a 
>> single work with the issue of works that have been published in 
>> multiple parts, instalments, issues or episodes...
>
>The idea here was that in both cases the "work" (be i the television or 
>a musical "work" with separate lyrics and music) were really two 
>"works" and that once considered separately you could go back to the 
>start of a flow-chart and apply to each work separately. As such the 
>two cases -- at least from the perspective of copyright term -- were 
>identical in that they required subdividing the "work" into two or more 
>smaller "works."

That is precisely what I think needs to be clarified. In some cases, collaborative works are not considered to be separate works at all -  works of joint authorship are granted one term of protection and not multiple for the separate contributions. The same won't necessarily be true for compilations or collective works (although there might still be one overarching work, as it were, which also has its own term of protection in addition to the components - but this will again depend on the jurisdiction) or works that have been published in multiple parts, instalments, issues or episodes (although I don't know what the rules for such works might be outside the EU - maybe the parts don't receive individual protection everywhere?). Isn't this something we should know, i.e. when national law considers that there are two or more works as opposed to one single work? 

>
>> -       On that note, even when handling the question of multiple
>> authors alone, I think a distinction should be made between works of 
>> joint authorship, collective works and compilations. Are these
>
>I think we should be careful with our term "work" here or use some 
>specific terminology to refer to some general object in which copyright 
>might adhere (e.g. a book, a recording) and the distinct atomic 
>copyright "works" which may exist therein

They are (or may be depending on the applicable law) all works of copyright however. The question is who's protected and for what....

>
>> possibilities offered different legal treatment in national law? (I'm 
>> using the terms in their British work here, i.e.:  works of joint 
>> authorship = works produced by collaboration where the contributions 
>> of the various authors are not distinct from each other / collective 
>> work = works produced by collaboration where the contributions of the 
>> collaborators are separate from each other / compilations = the 
>> compiler is author of the whole, although there may be several 
>> different works by other authors represented in the collection.)
>
>Yes these are treated distinctly here in that only the first would 
>really be considered a work for the purposes of the flowchart/algorithm 
>(the others would all involve a preliminary subdivision before 
>application of the flowchart/algorithm). We thought about adding this 
>as a preliminary step but it was voted against as it was felt that 
>correct determination of what was a work was separate from determining 
>copyright term for a work.
>

I remember that and certainly do very much agree! I still think however that understanding how national law makes these distinctions is essential, if not for any other reason than because a work may be a work of joint authorship in one jurisdiction and a collective work consisting of separate parts to which copyright individually attaches in others. If we don't know that then we can't correctly make the subdivision you mention... I don't know what others think, but it does seem to me that just because we've circumvented this issue in the flowchart doesn't necessarily mean we shouldn't address it in the expert questions...


>> -       At any rate, I think it is important at least for EU Member
>> States to include a question asking how works of joint authorship and 
>> collective works are defined in the national jurisdiction, given that 
>> the terms are mentioned in the Term Directive, but not harmonised...
>
>This is what question 2 was about.

Again, Q. 2 is not clear - it conflates too many different things. Especially since we are directing the questions to experts who are familiar with these issues themselves, these distinctions should be made, otherwise they'll probably just have the same questions themselves... But again, I don't know how others feel about this...?

>
>> -       Should we include a question about anonymous or pseudonymous
>> works?
>
>Isn't that included in the question: "[FC:2] What are the author 
>categories that result in different protection?" (if that isn't obvious 
>we could put explanatory text there ...)

Well, my mind at least did not spring to anonymous or pseudonymous works here... Explanatory text should indeed help. What are the other author categories that might appear here?

>
>> -       Should we include a question about maybe cinematographic and
>> audiovisual works or other types of copyright-protected works that 
>> might still get separate treatment? (or is this intended to be covered by Q.4?
>> I actually find its wording rather confusing...)
>
>Do you not mean qu 3? "[FC:1] Are there categories of work that result 
>in different protection from that shown in the flowchart? "
>Do you want to suggest alternative wording that is less confusing?

What threw me off here is the fact that the explanatory remarks to the question are associated with section [1] of the flow chart, which would seem to refer to rights akin copyright, so related rights, the sui generis right, etc. We can add cinematographic and audiovisual works here, but I think this should be clarified that they are copyright works and as such would belong to a different part of the flowchart.

What I would suggest is either taking away the reference to the flowchart, perhaps somewhat like this: "Is there material, whether protected by copyright or by other rights akin to copyright, for which the term of protection is different from that shown in the flowchart? E.g. government material, non-original photographs, unoriginal databases may receive special treatment."

Alternatively, we could have two different questions dealing with the two separate issues, so something like this:

"Are there categories of works of copyright that result in different protection from that shown in the flowchart? E.g. government material or cinematographic or audiovisual works may receive special treatment"

And

"[FC:1] Are categories of subject matter protected by rights akin to copyright that result in different protection from that shown in the flowchart? E.g. related rights, the sui generis right for unoriginal databases, the sui generis rights for non-original photographs."




>
>> -       Should we include a question about related rights?
>
>What kind of related rights?

Well, the rights of performers, phonogram producers, broadcasting organisations and the producers of the first fixation of a film were what I was referring to, as those are mentioned in the Term Directive. But I suppose these are considered to be covered by Q.3? Again, in this case we really need to clarify Q.3 or split it up...

>
>> -       Should we include a question about moral rights?
>
>Moral rights was the one item we left out of the diagram though it was 
>discussed a lot.

Well, I agree that including moral rights in the flow chart would be inconvenient, but I think a separate question might be interesting nevertheless. Unless we simply want to add a proviso to the whole tool that it does not deal with moral rights at all, although that might be a pity given that in some countries moral rights do actually expire.

>The idea I thought was that it was included in:
>
>"[FC:4] How does term calculation for published and unpublished works 
>differ from the chart?"

I'm not sure I understand this. Both published and unpublished works are protected by moral rights, right?


>> -       Perhaps we can expand on the last question a bit (or add
>> separate questions) to include examples of provisions such as the 
>> French ones for works created during the First and Second World Wars 
>> or works that are granted protection longer than the national norm 
>> (e.g. Peter Pan)?
>
>We could though there is a trade-off between keeping this reasonably 
>short (and therefore increasing the likelihood someone fills it in) and 
>getting something that is really comprehensive. We also hope the 
>questionnaire/diagram can/will be used outside of the EU

I agree - what we might want to consider however is a very general question along the lines of "Can you think of any exceptions to the general rule for the term of protection of works of copyright and subject matter protected by rights akin to copyright (neighbouring rights, sui generis rights, etc.) in your country?"

Thomas, thanks for your input!

Best,

Christina

P.S. Can't we number the questions?



 

-----Original Message-----
From: okfn.rufus.pollock at googlemail.com [mailto:okfn.rufus.pollock at googlemail.com] On Behalf Of Rufus Pollock
Sent: maandag 23 november 2009 18:05
To: Angelopoulos, C.J.
Cc: Jonathan Gray; pd-discuss at lists.okfn.org
Subject: Re: [pd-discuss] How to build a public domain calculator?

2009/11/23 Angelopoulos, C.J. <C.J.Angelopoulos at uva.nl>:
[...]
> -       I am a bit confused by the second question as it seems to 
> conflate the issues of parallel ownership by multiple owners over a 
> single work with the issue of works that have been published in 
> multiple parts, instalments, issues or episodes...

The idea here was that in both cases the "work" (be i the television or a musical "work" with separate lyrics and music) were really two "works" and that once considered separately you could go back to the start of a flow-chart and apply to each work separately. As such the two cases -- at least from the perspective of copyright term -- were identical in that they required subdividing the "work" into two or more smaller "works."

> -       On that note, even when handling the question of multiple 
> authors alone, I think a distinction should be made between works of 
> joint authorship, collective works and compilations. Are these

I think we should be careful with our term "work" here or use some specific terminology to refer to some general object in which copyright might adhere (e.g. a book, a recording) and the distinct atomic copyright "works" which may exist therein

> possibilities offered different legal treatment in national law? (I'm 
> using the terms in their British work here, i.e.:  works of joint 
> authorship = works produced by collaboration where the contributions 
> of the various authors are not distinct from each other / collective 
> work = works produced by collaboration where the contributions of the 
> collaborators are separate from each other / compilations = the 
> compiler is author of the whole, although there may be several 
> different works by other authors represented in the collection.)

Yes these are treated distinctly here in that only the first would really be considered a work for the purposes of the flowchart/algorithm (the others would all involve a preliminary subdivision before application of the flowchart/algorithm). We thought about adding this as a preliminary step but it was voted against as it was felt that correct determination of what was a work was separate from determining copyright term for a work.

> -       At any rate, I think it is important at least for EU Member 
> States to include a question asking how works of joint authorship and 
> collective works are defined in the national jurisdiction, given that 
> the terms are mentioned in the Term Directive, but not harmonised...

This is what question 2 was about.

> -       Should we include a question about anonymous or pseudonymous 
> works?

Isn't that included in the question: "[FC:2] What are the author categories that result in different protection?" (if that isn't obvious we could put explanatory text there ...)

> -       Should we include a question about maybe cinematographic and 
> audiovisual works or other types of copyright-protected works that 
> might still get separate treatment? (or is this intended to be covered by Q.4?
> I actually find its wording rather confusing...)

Do you not mean qu 3? "[FC:1] Are there categories of work that result in different protection from that shown in the flowchart? "

Do you want to suggest alternative wording that is less confusing?

> -       Should we include a question about related rights?

What kind of related rights?

> -       Should we include a question about moral rights?

Moral rights was the one item we left out of the diagram though it was discussed a lot. The idea I thought was that it was included in:

"[FC:4] How does term calculation for published and unpublished works differ from the chart?"

but if this isn't clear we can add a note.

> -       Perhaps we can expand on the last question a bit (or add 
> separate questions) to include examples of provisions such as the 
> French ones for works created during the First and Second World Wars 
> or works that are granted protection longer than the national norm 
> (e.g. Peter Pan)?

We could though there is a trade-off between keeping this reasonably short (and therefore increasing the likelihood someone fills it in) and getting something that is really comprehensive. We also hope the questionnaire/diagram can/will be used outside of the EU

> I hope this helps a bit! Comments and suggestions most welcome of 
> course!

Very much so. Any suggestions for explicit amendments to the questions or explanatory texts would be very useful.

Rufus