Centre for Flexible Learning (CFL)

What is Copyright?

Copyright is a property right that exists in accordance with this Act in original works of the following descriptions-

(a)     literary, dramatic, musical, or artistic works;
(b)     sound recordings;
(c)     audio visual works;
(d)     broadcasts;
(e)     cable programmes;
(f)     typographical arrangements of published editions.

(Fiji Copyright Act s14)

In short, a right of an author of a work to reproduce, distribute their work however they want.  Intangible property. You can’t touch it. It is a branch of intellectual property (others: trademarks, trade secrets, patents, industrial designs, merchandise marks, and in the Pacific: traditional knowledge, customs, protection of genetic resources).  It exists from the time of creation, but copyright law attributes duration of literary work from end of year of creation + 50 years. There are various lengths of duration depending of the type of work sought to be protected. Copyright law then is “a right to protect the expression of ideas, but not the ideas themselves (WIPO Guide on the Licensing of Copyright and Related Rights, World Intellectual Property Organisation).

In the Pacific, it seems the western concept of copyright laws is incompatible with preservation of oral traditions, sacred knowledge, rituals, protection of genetic plant material. The western concept speaks of recording, broadcast, attributable to one individual or a collective, whereas the Pacific concept is very much a group, passed down from generation to generation (see for example, “Intellectual Property Laws in the South Pacific: Friend or Foe?”, Miranda Forsyth, Journal of South Pacific Law (JSPL), 2003 Volume 7 Issue 1 2003 where the author refers to an anonymous commentator in a WIPO Report, above n7 Part II at 7).

Short History

Copyright encompasses legal rights including: a) the moral rights of the author who created a work; b) the economic rights of a benefactor who paid to have a copy made; c) the property rights of the individual owner of a copy; d) and a sovereign's right to censor and to regulate the printing industry. The origins of some of these rights can be traced back to ancient Greek culture, ancient Jewish law, and ancient Roman law. Copyright had its origins before the printing press.  Wikipedia (accessed on 27 March 2019) records that the Republic of Venice granted its first privilege for a particular book in 1486.

The Copyright Act of 1710, also known as the Statute of Anne, after Queen Anne was the first copyright law in the world. Its full title was "An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned". It granted publishers of a book legal protection of 14 years but 21 years for books already in print.  Booksellers started a 30-year period based on common law, falling outside the protection of the Statute of Anne.  By the Berne Convention in 1896 it extended to life of author + 50 years. There was intense debate about whether to have perpetual copyright or limited. Some classics were opening up into the public domain because their copyright periods expired, e.g. works from Shakespeare, John Milton and Geoffrey Chaucer.

International Treaties

This page discusses features of 3 main treaties:

Berne Convention 1886
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) – WTO, 1990
WIPO Copyright Treaty 1996

Berne Convention 1886 was re-negotiated in 1896 (Paris), 1908 (Berlin), 1928 (Rome), 1948 (Brussels), 1967 (Stockholm) and 1971 (Paris). The full title is: Berne Convention for the Protection of Literary and Artistic Works. It is about protection of works and the rights of their authors. It provides creators -authors, musicians- with the means to control how their works are used, by whom, and on what terms. It contains minimum protection for works, as well as special provisions available to developing countries that want to make use of them. For the purposes of this discussion, we refer to the 1979 version.

Art 2: The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.”.

States countries can prescribe that works in general or any specified categories of works are not protected unless they are fixed in some material form. Collections of literary or artistic works such as encyclopaedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations are protected. Works enjoy protection in all State countries. The protection operates for the benefit of an author and his successors in title. State countries determine the extent of application of their laws to works of applied art and industrial designs and models, as well as the conditions under which such works, designs and models are to be protected. Authors enjoy exclusive right of making a collection of works.

The performance of a dramatic, dramatico-musical, cinematographic or musical work, the public recitation of a literary work, the communication by wire or the broadcasting of literary or artistic works, the exhibition of a work of art and the construction of a work of architecture are not publications (art 3).

There are rules for determining country of origin (art 5).

Moral Rights are protected (art 6bis), as are rights of translation (art 8), rights of reproduction (art 9).

quotations from a work, including from periodicals, already lawfully made available to the public, are allowed in newspaper articles and press summaries on a justified amount (art 10).

reproduction by the press, broadcast or communication to the public by wire of articles published in newspapers or periodicals on current economic, political or religious topics, and of broadcast works is allowed (art 10bis).

Authors of literary or artistic works enjoy an exclusive right of authorizing adaptations, arrangements and other alterations of their works (art 12).

The term of protection granted by this Convention is life of an author + 50 years after his death (art 7).

For work of joint authorship, the term is measured from the death of the last surviving author (art 7bis).

Countries may provide that the term of protection cinematographic works expire 50 years after the work is made available to the public with the consent of the author. Countries can determine what limitations to place on authors’ exclusive right. Recordings made and imported without permission from publishers/authors into a country where they are treated as infringing recordings are liable to seizure (art 13).

Authors of literary or artistic works have the exclusive right to authorize cinematographic adaptation and reproduction, distribution of works thus adapted or reproduced; and the public performance and communication to the public by wire of works thus adapted or reproduced (art 14).

Infringing copies of a work are liable to seizure in any country where the work enjoys legal protection (art 16).

Countries can permit, control, prohibit, by legislation the circulation, presentation, or exhibition of any work or production (art 17).

Any work has fallen into the public domain of the country where protection is claimed, is not protected anew (art 18).

Appendix Special Provisions Regarding Developing Countries:
If an owner of the right cannot be found, a person may apply for a licence or publication of the translation or of the reproduction, as the case may be, in the territory of the country in which it has been applied for (art IV).
Countries may declare or admit to be bound by articles before treaty comes into force (art VI).

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) – WTO, 1990

Effective 1 Jan 1995. Not limited to copyright, but to intellectual property.
The treaty specifies minimum standards for the regulation of the broad field of intellectual property (IP) that WTO member countries should follow.

Most-Favoured-Nation Treatment grants protection of intellectual property, advantage, favour, privilege or immunity to nationals of Member states. Exceptions: international agreements on judicial assistance or law enforcement of a general nature, provided those agreements are notified to the Council for TRIPS and do not constitute an arbitrary or unjustifiable discrimination against nationals of other Member states (art 4).

The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations (art 7).
Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the TRIPS. Appropriate measures, provided that they are consistent with the provisions of TRIPS, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology (art 8).

WIPO Copyright Treaty 1996

This treaty is a special agreement under Berne Convention art 20 (art 1).

Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts (art 2).

Computer programs are protected as literary works (art 4).

Compilations of data or other material, in any form, which constitute intellectual creations, are protected, but does not extend to the data or the material itself and is without prejudice to any copyright subsisting in the data or material contained in the compilation (art 5).

Authors of literary and artistic shall enjoy exclusive right to authorize making available to the public the original and copies of their works through sale or other transfer of ownership. Contracting Parties enjoy freedom to determine conditions (art 6).
Authors of i) computer programs; ii) cinematographic works; and iii) works embodied in phonograms, as determined in State member’s laws enjoy the exclusive right to authorize commercial rental to the public of originals or copies of their works (art 7).
authors of literary and artistic works enjoy an exclusive right to authorize any communication to the public of their works, by wire or wireless means, including making available to the public their works from a place and at a time individually chosen by them (art 8).
State members may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author. Any limitations of or exceptions to rights are confined to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author (art 10).
State members are to provide adequate legal protection and effective legal remedies against circumvention of effective technological measures used by authors to exercise their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors or permitted by law (art 11).
State members must provide adequate and effective legal remedies which will induces, enables, facilitates or conceals an infringement of any right against any person knowingly removes or alter any electronic rights management information without authority; or distributes, imports for distribution, broadcasts or communicates to the public, without authority, works or copies of works knowing that electronic rights management information has been removed or altered without authority. “rights management information” means information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information (art 12).
State members undertake to adopt, in accordance with their legal systems, measures necessary to ensure application and enforcement of the Treaty (art 14).