Unit 1: Additional resources
1.1 Copyright basics
The difference between idea and expression
An explanation of the ‘idea-expression dichotomy’ and additional resources [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)] (UK copyright law focus).
Author’s rights
Distinguishing copyright from other types of intellectual property
Trademark law generally protects the public from being confused about the source of a good, service or establishment. The holder of a trademark is generally allowed to prevent uses of its trademark by others if the public will be confused. Examples of trademarks are the golden arches used by McDonald’s, or the brand name ‘Coca-Cola’. Trademark law helps producers of goods and services protect their reputation, and it protects the public by giving them a simple way to differentiate between similar products and services.
Patent law gives inventors a time-limited monopoly to their inventions. Patents typically give inventors the exclusive right to make, have made, use, have used, offer for sale, sell, have sold or import patentable inventions.
Other types of intellectual property rights include trade secrets, publicity rights and moral rights as a few examples.
For a brief introduction to the different types of intellectual property, watch the three-minute video ‘How to register a trademark (Canada): trademarks, patents and copyrights – what’s the difference?’
More information about copyright concepts
Liability and remedies:
- Generally, to establish a claim of copyright infringement, a creator or copyright holder only needs to show that they have a valid copyright in the work and that the defendant copied protected expression from the work. However, the intention of the alleged infringer may be relevant in some cases, such as if the defendant asserts that an exception or limitation applied to their use or that their work was independently created.
- The copyright laws of some countries grant copyright holders statutory remedies for infringement. The type and amounts of remedies including damages are established by law. Be aware of the existence of statutory damages and other remedies permitted by applicable law, including statutory provisions that award legal fees in some circumstances.
- Licensing and transfer: many creators and copyright holders need help to fully exercise the exclusive rights or simply give others permission to exercise the right granted by copyright law. Several options exist to do so. Some creators choose to license some or all of those rights, either exclusively or non-exclusively. Others choose to sell their rights outright and allow others to exercise them in their place, sometimes in exchange for royalty payments. There are often formalities associated with selling or licensing copyrights, including when a copyright licence must be in writing depending on the copyright law that applies.
- Termination of copyright transfers and licences: the laws of some countries grant copyright holders the right to terminate transfer agreements or licences, even if the transfer agreement or licence doesn’t allow it. In the United States, for example, copyright law provides two mechanisms depending on when the transfer agreement or licence became effective. For more information on these rights and a tool that allows creators and copyright holders to figure out if they have those rights, visit https://rightsback.org.
- CopyrightX by Harvard Law School: a course on copyright provided by the Harvard Law School’s HarvardX distance learning initiative/ (Click here for more details.)
- ‘Copyright basics’: a circular by the US Copyright Office.
- Copyright for Educators & Librarians: a course on copyright provided by Coursera.
- Copyright for Librarians (English): an online open curriculum on copyright law developed by EIFL and Harvard’s Berkman Center for Internet and Society.
1.2 Myanmar copyright law
Articles on Myanmar copyright law
- ‘Myanmar enacts copyright law’ (Chua and Aye, 2019, Tilleke & Gibbins)
- ‘Copyright reforms in Myanmar’ (EIFL, n.d.)
- ‘Draft Myanmar copyright law: key points’ (EIFL, 2015)
- ‘Myanmar: the Copyright Act of 1911’ (WIPO, n.d.)
- ‘Myanmar passed copyright law’(Zaw, 2019, Law Plus)
Copyright notices and takedowns
‘Copyright infringing works should find no safe haven on the internet’ [on the updating of US Copyright Law] (May and Cooper, 2020, Washington Post).
1.3 Global aspects of copyright
| No. | Name of treaty | Enforcement/establishing date | Rectification/accession |
|---|---|---|---|
| 1 | Convention concerning the Protection of the World Cultural and Natural Heritage | 16 November 1972 | 29 April 1994 |
| 2 | Convention on Biological Diversity | 29 December 1992 | 25 November 1994 |
| 3 | World Trade Organization (WTO) | 1 January 1995 | 1 January 1995 |
| 4 | Trade Aspect of Intellectual Property Rights (TRIPS) | 1 January 1995 | 1 January 1995 |
| 5 | ASEAN Framework Agreement on Intellectual Property Cooperation | 8 August 1967 | 23 July 1997 |
| 6 | World Intellectual Property Organization (WIPO) Convention | 26 April 1970 | 15 May 2001 |
| 7 | International Plant Protection Convention | 3 April 1952 | 29 June 2004 |
| 8 | International Treaty on Plant Genetic Resources for Food and Agriculture | 29 June 2004 | 29 June 2004 |
| 9 | Cartagena Protocol on Biosafety to the Convention on Biological Diversity | 11 September 2003 | 13 May 2008 |
Copyright terms around the world
Review the Wikipedia article on copyright terms, and view the page that lists the duration of copyright based on country.
1.4 Exceptions and limitations
Fair use in the Berne Convention
The Berne Convention first established the concept of ‘fair’ use in Article 9, Section 2. This is known as the ‘three-step’ test, and has been adopted in some form in several other treaties:
It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. [Emphasis added]
For more information about the scope and use of the three-step test, read this short primer published by the Electronic Frontier Foundation.
The fair use doctrine is found in the United States, and the fair dealing doctrine is found in many other common law countries. Learn more about limitations and exceptions on the WIPO website and Wikipedia.
Flexible guidelines and fair use in the United States
This is the approach used in the United States with fair use, although US copyright law also has some specific exceptions to copyright written into the law as well. In the United States, fair use is determined using a four-factor test, where a federal court judge considers:
- the purpose and character of your use
- the nature of the copyrighted work
- the amount and substantiality of the portion taken
- the effect of the use upon the potential market.
Read about US court cases related to fair use here.
- Fair Use Evaluator: an online tool to help users understand how to determine the ‘fairness’ of use under US copyright law, and work with materials under fair use.
- Program on Information Justice and Intellectual Property by American University Washington College of Law (CC BY 3.0): this programme’s ‘Publications on fair use’ to understand the underlying principles and best practices of fair use.
‘Copyright and exceptions’ by Kennisland (CC0 1.0 Public Domain Designation): an interactive map of European copyright exceptions:
- ‘A fair(y) use tale’by Eric Faden (CC BY 3.0):a creative educational fair-use mash-up that ironically makes use of clips from Disney films as it explains how copyright works. The discussion of fair use begins at around 6:30 in the video.
Further resources
An introduction to the philosophy of copyright can be found on Wikipedia.