21st Century Copyright Law 101: Works are Protected under Copyright Law

Foreword

Thanks to the booming internet era and the rapid development of digital technology, literary and artistic works are known worldwide. At the same time, creative works increase in terms of quantity and quality, raising concerns about copyright protection worldwide. While applicable copyright laws are strictly governed by national legislation and international treaties, many questions still arise about protecting the works, especially on digital platforms. Therefore, the 21st Century Copyright Law 101 series aims to summarise some of the introductory provisions of international copyright law and then analyse specific aspects of protecting works under copyright law, thus trying to answer about copyright protection in both traditional and digital markets.

This series is divided into the following chapters:

1. 21st Century Copyright Law 101: What is Copyright Law?

2. 21st Century Copyright Law 101: Works are Protected under Copyright Law

3. 21st Century Copyright Law 101: Copyright and AI-Generated Artwork

4. 21st Century Copyright Law 101: How to Protect Works under Copyright Law?

5. 21st Century Copyright Law 101: Copyright Infringement in Cyberspace

6. 21st Century Copyright Law 101: Compensation for Damage Caused by Copyright Infringement

7. 21st Century Copyright Law 101: Responsibilities of Online-sharing Platform Operators in Copyright Protection

Most global copyright legislation automatically protects works when they are created without registration, as long as they are created by humans, have creativity, and are expressed in a specific material form. Examples of legislation that protects such works are Article 2 of the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention), Section 2 of the Act on Copyright and Related Rights, Germany (the German Copyright Act) or Article 14 of the Vietnamese Intellectual Property Law (the Vietnam IP Law). In general, protected works include different forms that are analysed in this article.

Literary and Artistic Works

According to the Berne Convention, the category of protected works is stipulated in the general term "literary and artistic works" in Article 2(1). These works shall include every literary, scientific and artistic domain. After that, this Convention gives a list of works' expressions which include inter alia (among other things): Books, pamphlets and other writings; Lectures, addresses, sermons and other works of the same nature; Dramatic or dramatico-musical works; Choreographic works and entertainment in dumb shows; Musical compositions with or without words; Cinematographic works or Photographic works; Works of drawing, painting, architecture, sculpture, engraving and lithography; Works of applied art; And illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

The same works listed in the Berne Convention are also listed in the German Copyright Act and Vietnam IP Law. Folklore is added to the list of protected works as literary and artistic works in Vietnam IP Law but with more relaxed criteria than other works and no royalty fees, despite not being mentioned in the Berne Convention or the German Copyright Act (Vietnam IP Law, Article 23). In addition, works with content contrary to social ethics, infringing upon national interests, defaming great people or "insulting the honour and dignity of others" is not protected by law (Article 8(1) of Vietnam IP Law).

Figure 1. A painting work by Tran Quang Dai, Vietnam

Collections and Database Work

The collections of literary or artistic works or data or independent elements collected by intellectual creations without prejudice to the original work shall be protected as independent works (Article 2(5) of the Berne Convention, Section 4 of the German Copyright Act and Article 14(1)(m) of Vietnam IP Law). Furthermore, based on the German Copyright Act, database work is copyrightable, and the definition of database work is given in Section 2(4) as follows:

For the purposes of this Act, ʻdatabase workʼ means a collection whose elements are arranged systematically or methodically and the individual elements of which are individually accessible by electronic or other means. A computer program (section 69a) used in the creation of the database work or to provide access to its elements does not constitute an integral part of the database work.

One interesting example can be seen in 'law reports' also known as case digests. For instance, individual judgments are published but not copyrighted by the courts. Anyone can read, store or use these judgments to teach and research without paying a royalty. Despite this, there are many published judgments which are collected by individuals and organisations that collect the judgments. These collections can then be copyrighted. For example, a collection of copyright judgements worldwide in 2022 could be considered a copyrighted work.

Figure 2. UNITED STATES REPORTS. OFFICIAL EDITION. 20 VOLS. United States Supreme Court

Computer Programs – Software

Another aspect of global copyright law applies to software. "Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971)" based on Article 10(1) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPs Agreement). Therefore, while the Berne Convention does not mention computer programs, they are still protected. At the European Union level, computer programs are protected by copyright under Directive 2009/24EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (Software Directive). Accordingly, the Member States must protect this work by copyright as a literary work. Furthermore, the term 'computer program' includes preparatory design material. Simultaneously, computer programs are contained in the list of literary works in the German Copyright Act and Vietnamese IP Law (Section 2(1)(1) German Copyright Act and Article 14(1)(m) Vietnam IP Law). In Vietnam, a computer program is defined as a collection of instructions expressed in the form of instructions, codes, diagrams or any other form that, when attached to a computer-readable medium, with the ability to make a computer do a job or achieve a particular result. This is protected as a literary work even though it is expressed in source code that might only be read by a machine (Article 22(1) Vietnam IP Law).

It can be said that copyright law only protects the expression of the work, not the idea. Therefore, the provision of copyright protection of computer programs prevents the unauthorised copying and use of works and allows other subjects to analyse and decode that computer program to invent new programs and promote technological development.

Figure 3. Is copyright an appropriate protection for computer programs?

Derivative or Adaptation Works

Derivative or adaptations works are also copyrightable. According to Article 8(4) of Vietnam IP Law, derivative work is defined as "[...] works translated from one language into another, adapted, compiled, annotated or selected." These works can be copyright protected when it does not prejudice the copyright in the adapted or original work and has to be created by intellectual creativity. To be protected by copyright, a derivative work must be permitted by the author or the copyright owner of that work (Vietnam IP Law, Article 28(7) and Article 25(1)(i)). The same section creates an exception for transfer of works into Braille or other languages for the visually impaired.

For example, when covering a rock song with an acoustic version, the new version is considered a new work independent from the original song. However, this acoustic song is protected by copyright when it is transformed by intellectual creativity without compromising the integrity of the original work. Foremost, it is necessary to ensure that the author or owner licenses the cover of the song.

Figure 4. Weezer’s cover album

Unprotected Works

In addition to providing a list of types of copyrighted works, the legal documents on copyright also indicate cases that are not protected by copyright, such as ideas, news, legal documents, official works, titles, names, short phrases and slogans. In terms of ideas, as stated above, copyrighted work must be expressed in a tangible form. Therefore, ideas are not subject to copyright law protection. When the idea is expressed in any tangible form, this expression will be considered a copyrighted work. However, if the idea is recorded or written down, the content of that idea is still not protected. Thereby, the copyright only protects the idea's expression, not the idea itself. For instance, a movie about trees' conversation in the forest is protected by copyright, but the idea that the trees can communicate with each other can not be copyrighted. Nevertheless, an idea may be protected by intellectual property law in the form of a patent if the idea is novel, inventive, and likely to be industrially applicable. At the same time, the purpose of copyright protection is to protect the intellectual creativity of the author expressed in tangible form. Therefore, titles, names, short phrases, and slogans are not enough elements to constitute a creative work based on the author's own labour. Moreover, the protection of names or short phrases and slogans is protected by law from the perspective of trademark or unfair competition law. "Just do it", a slogan of Nike, is an excellent example for this case. This slogan can be trademarked based on design, colour, and font, but "just do it" content cannot be copyrighted.

Figure 5. Brand slogan of Nike

In the case of Ed Sheeran v. Chokri, Chokri sued Ed Sheeran, alleging that the singer and his team copied the "Oh I" phrase into the song "Shape of You". Chokri claimed that "The OI Phrase is copied from the eight-bar chorus of Oh Why, in which the phrase "Oh why" is repeated to the tune of the first four notes of the rising minor pentatonic scale, commencing on F#. This catchy and memorable phrase is clearly central to the song Oh Why, and I will refer to it as the "OW Hook"." (Ed Sheeran v. Sami Chokri, 2022). The judge considered the similarities and differences between 2 phrases to determine whether the second was a copy of the first and concluded that: "Finally, again taking into account all the matters I have considered above, I am satisfied that Mr Sheeran did not subconsciously copy Oh Why in creating Shape." (Ed Sheeran v. Sami Chokri, 2022).

However, in the author's opinion, the main point of this case law is not about copying a musical work but copying an idea when composing the song or a short phrase "Oh I" and "Oh Why" in two songs. Therefore, although the author agrees with the judge's conclusion that there is no copyright infringement, the author does not give the ground as mentioned in this case law. Accordingly, the grounds may be based on whether the idea or the short phrase is protected or unprotected work. It can be said that the melody of the chorus is somewhat similar, but the creation of a new song based on the idea of a piece of music is not banned. In addition, the two whole songs overall have no similarities. On the other hand, the phrases "Oh I" and "Oh Why" are not exclusive phrases but are used frequently in everyday life. Therefore, using ideas and short phrases is not a matter of copyright infringement because it is not a protected work list.

Figure 6. Ed Sheeran Shape Of You copyright trial, Pic: Elizabeth Cook/PA

Talking about news, legal documents, and official works, due to the specific nature of the press and media industry, with the purpose of news being transmitted to all subjects, pure current news is not protected by the Berne Convention (The Berne Convention, Article 2(8)). Therefore, member states also do not protect daily news and current affairs. Based on Article 49 German Copyright Act, there is more regulation regarding newspaper articles and broadcast commentaries, as below:

It is permitted to reproduce and distribute individual broadcast commentaries and individual articles, as well as illustrations published in connection therewith, from newspapers and other information sheets devoted solely to current affairs in other newspapers or information sheets of this kind, and it is permitted to communicate such commentaries, articles and illustrations to the public if they concern current political, economic or religious issues and do not contain a statement reserving rights... (Article 49(1) German Copyright Act).

Figure 7. BBC iPlayer - BBC News

Similarly, official works published in the official interest for general information purposes shall not be protected by copyright law. These works include legal documents, acts, statute instruments, official decrees and official notices (Section 5(1) of the German Copyright Act and Article 15(2) VietNam IP Law). However, the Berne Convention give this matter for the legislation of its member states to determine which kind of official texts are copyrightable (Article 2(4) of the Berne Convention).

Conclusion

In general, copyright law specifies the types of works that are copyrighted and those that cannot be protected. Accordingly, works protected by copyright include literary and artistic works, collections and database work, computer programs and derivative works. In addition, works must be expressed in a tangible form, creative, and created by humans. The protection of these works is automatic without registration. However, the registration of work protection is encouraged to ensure the authors’ rights and avoid disputes.

Bibliographical References

Act on Copyright and Related Rights (Urheberrechtsgesetz – UrhG). (n.d.). Www.gesetze-Im-Internet.de. Retrieved October 21, 2022, from https://www.gesetze-im-internet.de/englisch_urhg/englisch_urhg.html

Berne Convention for the Protection of Literary and Artistic Works. (2019). WIPO.int. Retrieved October 21, 2022, from https://www.wipo.int/treaties/en/ip/berne/

Ed Sheeran v. Sami Chokri, The High Court of Justice of UK. (2022, April 6). Retrieved October 21, 2022, from https://www.judiciary.uk/judgments/ed-sheeran-v-sami-chokri/

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Văn bản hợp nhất 07/VBHN-VPQH 2019 Luật Sở hữu trí tuệ năm 2005. (n.d.). Thuvienphapluat.vn. Retrieved October 21, 2022, from https://thuvienphapluat.vn/van-ban/so-huu-tri-tue/van-ban-hop-nhat-07-vbhn-vpqh-2019-luat-so-huu-tri-tue-nam-2005-424231.aspx

WTO | intellectual property (TRIPS) - agreement text - contents. (2019). Wto.org. Retrieved October 21, 2022, from https://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm

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