Having recently embarked on the path leading to Creative Commons certification, I’ve decided to share my logbook with you, as the training units are completed. This second article deals with copyright and authors' rights, so that you can better grasp the potential of Creative Commons licenses. Don’t hesitate to let me know what you think: as always, I’ll be happy to share more widely what I’ve learned & my resources on the subject.
— Preamble
The aim here is not to give legal advice (I’m not a lawyer, by the way), but rather to gather and share information on the mechanics of copyright. Copyright is specific to each country, but is tending more and more to harmonize its international rules.
The english term copyright means “right to copy” (which initially evokes material duplication) and is usually translated into French as “droit d’auteur” (which more strongly contains a moral approach): these 2 subtleties often converge, as you will see in this article.
The symbol ©️ for copyright corresponds to the system of protection for literary and artistic works in place in Anglo-Saxon countries, equivalent to “droits d’auteur” in France. These works are often identified by the symbol ©️, which has a precise meaning, notably in the United States of America ↗ . However, it has no legal meaning or scope in France (nor does the term copyright itself), where it is often mistakenly confused with a reference to “credits”. [source: French Intellectual Property National Institute (INPI)]
— Intellectual Property
The term “intellectual property” refers to works of the mind: inventions; literary and artistic works; designs and models; and emblems, names and images used in commerce. Intellectual property is protected by law, for example through patents, copyright and trademark registrations, which enable creators to gain recognition or financial benefit from their inventions or creations. [source: WIPO]
In France, intellectual property covers :
- intangible rights, grouped within Industrial Property (IP) relating to patents, trademark registrations, designs and models
- moral rights, grouped under Literary & Artistic Property (LAP), covering copyright, neighboring rights and sui generis rights. These protect literary works such as novels, poems, plays, reference works or newspaper articles; films, musical compositions and dramatic or choreographic works; artistic works such as paintings, drawings, photographs and sculptures; works of architecture; computer programs, databases; advertising creations…
🖋 The copyright
Copyright is a “legal term designating the rights enjoyed by creators over their literary and artistic works.” [source: WIPO] It is defined in French law by L 111-1 article of the Intellectual Property Code ↗ .
« The author of a work of the mind enjoys, by the singular fact of its creation, an exclusive intangible property right which is enforceable against all. This right comprises attributes of an intellectual and moral nature, as well as attributes of a patrimonial nature » [source: Intellectual Property Code].
📜 Patents
Like copyright, patents are considered to be governed by territorial law, i.e. specifically applicable in the region or country in which they are registered. It is an “exclusive right conferred on an invention”, for a limited period (usually 20 years). The invention thus protected “may not be made, used, distributed or sold without the consent of the patent owner”. [source: WIPO]
🎗 Trademark registration
Registering a trademark avoids confusion or usurpation of its identity. A trademark can be a combination of words, letters and numbers, designs, symbols, product shapes and packaging, sounds, fragrances, colors… The ®️™ confers “an exclusive right on the use of the registered trademark”, for a limited period, usually 10 years.
🗺 Drawings & models
In France, the registration of drawings & models falls within the legal framework of the so-called “unity of art” theory (industrial craftsmanship rather than creative art). It confers the dual protection of copyright and industrial property. This lasts initially for 5 years, and can be renewed for up to 25 years.
🧀 Let’s not make a big deal of it
In France, where there are as many varieties of cheese as there are days in the year, the issue of intellectual property is a serious subject. The aim is to protect each appellation by combining the various legal levers available: trademark registration, geographical origin of the terroir, recipe, raw materials, maturing, production specifications, protection of producers… There are a number of authenticity and quality designations commonly used to protect these products. They are not directly governed by intellectual property law, but are based on it and consolidate the quality of the product. They complement specific dénominations protected by law. These include Controlled Origin Appellation, Protected Origin Appellation, Protected Geographical Indication, Red Label and Organic Farming Label.
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Intellectual property organizations worldwide
The following are some of the major organizations that defend intellectual property in favor of economic development and issue industrial property titles (trademarks, patents, designs, geographical indications, etc.):
- World Intellectual Property Organization (WIPO) wipo.int ↗ : United Nations agency responsible for services, policies, information and cooperation in the field of intellectual property.
- European Union Intellectual Property Office (EUIPO) euipo.europa.eu ↗
- French National Institute of de la Propriété Intellectuelle (INPI) inpi.fr ↗
- United States Patent and Trademark Office (USPTO) in the United States of America uspto.gov ↗
- African Intellectual Property Organization (OAPI) oapi.int ↗
— History of copyright
🛎 Context
The question of property, particularly intellectual property, naturally follows the evolution of technology: stage spaces, paper & manuscripts, printing, the phonograph, radio waves, the development of the audiovisual media, the emergence of the Internet, computer programs & databases, “artificial intelligence”… each period has its new “technological revolution” which reshuffles the deck and offers new opportunities for financial development.
In a way, copyright is closely linked to the development of capitalism (one of whose founding acts is the enclosure movement, Cf. below) if we consider the mechanics of wealth accumulation (not always to the benefit of the author incidentally) without resource limits. Indeed, while a piece of furniture (a tangible good) can only be sold to one person at a time, a digitized work (an intangible good) can be sold ad infinitum, in as many copies and many more. This may encourage counterfeiting, but it mainly enriches the rights owner.
🫂 Fundamental freedoms
A study of the terminology used by the various parties is quite edifying. Where some will evoke the protection or even the fight for authors (in a proprietary approach), others will stand up for the defense of fundamental freedoms. The fundamental human rights ↗ [source: UNESCO] can sometimes clash with or even contradict the copyright model. When it comes to public service or the promotion of the public interest, these rights are the bedrock of democracy: the right to education, freedom of expression & information, the right to participate in cultural life, or the right to benefit from scientific progress.
The free software activists of the 80s, whom I mentioned in the previous chapter, defined 4 fundamental freedoms for free software: freedom to use the software, to copy it, to study its source code, to modify it & to redistribute new versions. These attributes were laid down to guarantee respect for fundamental freedoms and human rights, and to maximize the reproductive potential of such software.
The protection afforded by copyright can thus create certain obstacles to these fundamental rights, for example by preventing free access, distribution or adaptation, sometimes on financial terms.
📅 Chronological milestones
❏ During the Middle Ages in Europe, authors were primarily copyists: monks copied and reproduced books by hand to disseminate knowledge to a literate and very small audience.
❏ 1048: invention in China of the clay movable type printing press by Bi Sheng (990-1051), a copyist and wood engraver. This technique replaced xylogravure (printing by wood engraving) and made it possible to print several million copies of a single work. Bi Sheng’s invention greatly inspired Johannes Gutenberg to create, in 1454, his letterpress machine with movable metal type, which enabled him to print the famous Biblia Sacra Latina ↗ . The reproduction of books using this technology opens up the field of a new industry, of intellectual property and of control or even censorship - “the set of institutional constraints that weigh on the ability or freedom of expression” - of publishing… 📚 Michela Bussotti, L'imprimerie chinoise traditionnelle, BnF ↗ | Laurent Martin, Penser les censures dans l'histoire, IN. Sociétés & Représentations ↗ , n°21, 2006
❏ 18th century: “The enclosure movement began at the end of the Middle Ages. It affected a quarter of all land in the 17th century. Between 1727 and 1815, Parliament passed over 5,000 laws (acts) authorizing enclosures (The Enclosure Acts covered 20% of the land).” 📚 J.M. Neeson, Land enclosure and British rural society: a critical review ↗
❏ April 10, 1710: England’s very first Copyright Act: “The Statute of Anne” or “An Act for the encouragement of learning, by the vesting of copies of printed books in the authors or purchasers of such copies, during the times therein mentioned. of such copies, during the times therein mentioned.” The text granted book publishers a 14-year copyright (21 years for books already printed), then a further 14 years to the author, if still alive, once this period had elapsed. 📚 The Status of Anne, Yale Law School ↗ | Copyright Act of 1710, Wikipedia ↗ | Christophe Geiger, 1710-2010 : Quel bilan pour le droit d'auteur ? L'influence de la loi britannique de la Reine Anne en France ↗ , Revue internationale de droit comparé, 2011, p.53-68
❏ December 9, 1780, France: at a time when “the actor is the author”, playwright Pierre Augustin Caron de Beaumarchais founded the “Dramatic Legislation Office”. Its aim was to defend the rights of playwrights against the hegemony of the Comédiens du Français (today’s la Comédie française ↗ ). The forerunner of the “Society of Dramatic Authors and Composers” (SDAC), it protected the rights of these authors for 5 years by decision of the State Council.
⭐ September 9, 1886: the Berne Convention lays the foundations for the protection of literary, scientific and artistic works. Originally signed by 8 founding members (including France), it has now been ratified by 181 contracting countries ↗ (out of 197 UN-recognized countries worldwide, i.e. 92% of the world’s countries). While the Convention sets minimum copyright standards for signatory countries, they are free to add additional rights: this is the case, for example, with the term of protection, set at 50 years after the death of the creator by the Convention, and notably extended to 70 years post mortem in France. The Convention offers creators (authors, musicians, poets, painters, etc.) the means to control how their works can be used, by whom and under what conditions. [source: WIPO] It is based on 3 fundamental principles:
- the principle of national treatment: requires each Member State to grant nationals of other Member States the same level of copyright protection as that granted to its own citizens
- principle of automatic protection: no formalities are required to protect one’s work
- principle of independence of protection: protection is independent of the existence of protection in the country of origin of the work, except where the term of protection is longer than the minimum prescribed by the Convention, and where the work ceases to be protected in the country of origin.
The rights opened by the Convention cover translation of the work, adaptations and arrangements, performances in public, recitations in public, communications in public, broadcasts, reproductions, or uses as a starting point for an audiovisual work… 📚 Texte authentique de la Convention de Berne ↗ | List of different countries and their standard copyright duration in years ↗
❏ 1903: Lucien Vivés sues Pathé Frères, opening up mechanical reproduction rights by phonograph 📚 The arrival of the phonograph and mechanical reproduction rights, SACEM ↗
❏ June 19, 1970: International Patent Cooperation Treaty (PCT), enabling a single patent to be asserted in a large number of countries.
❏ 1983: first DRM, introduced by Nintendo. Digital Rights Management (DRM), or Mesures Techniques de Protection (MTP) / Gestion des Droits Numériques (GDN) or Gestion Numérique des Restrictions, “aims to control the use of digital works by encrypting them. These devices can be applied to all types of physical digital media (discs, DVDs, PDFs, software…) or transmissions (broadcasting, Internet…) through a system of conditional access or locking.” [source: Wikipedia]
❏ October 4 1985: Richard Stallman founded the Free Software Foundation to promote free software and defend its users.
❏ 1989: birth of the World Wide Web ↗ at CERN (now the European Organization for Nuclear Research), under the leadership of Tim Berners-Lee. This technology for exchanging, disseminating and sharing digitized information worldwide (initially for a network of academics and researchers) also opened up new industries… CERN registered the WWW software in the public domain on April 30, 1993.
❏ 1991: start of the Open Access movement. Paul Ginsparg (Los Alamos National Laboratory) founds the arXiv ↗ archive to make physics preprints freely accessible.
⭐ Law n°92-597 of July 1, 1992 creating the Intellectual Property Code ↗ , in France. The text brings together “all the laws relating to works of the mind”, and in particular lists the penalties incurred in the event of infringement of the code, for counterfeiting or copyright infringement.
❏ April 14, 1994: creation of the World Trade Organization (WTO) ↗ , notably concerning trade in services and intellectual property.
❏ July 1st, 1995: European Directive 93/98/EEC ↗ on the harmonization of the term of protection of copyright and certain related rights. It sets the term of protection for European Union countries at 70 years post-mortem.
❏ December 20, 1996: WIPO Copyright Treaty (WCT) ↗ , a “special arrangement within the meaning of the Berne Convention” which deals with the international protection of works and authors in the digital age.
❏ May 22, 2001: InfoSoc Guideline ↗ on the harmonization of certain aspects of copyright and related rights in the information society.
❏ October 22, 2003: Berlin Declaration on Open Access ↗ , free access to knowledge in the sciences and humanities.
⭐ April 15, 2019: European Union Copyright Legislation ↗ . The text protects authors and their beneficiaries. In particular, it ensures better remuneration for artists and press publishers from the traffic generated by their content on platforms such as Google or YouTube.
— Aims of copyright
Copyright, described as “property” under French law, is based on 2 main objectives:
The author of a work of the mind enjoys an exclusive incorporeal property right in this work, enforceable against all, by the sole fact of its creation. This right comprises attributes of an intellectual and moral nature, as well as attributes of an economic nature » Cyrill P. Rigamonti [Deconstructing Moral Rights ↗ , Harvard International Law Journal, vol.47, n°2, Summer 2006, p.353-412 ]
👤 Moral Rights
Moral rights protect the strong, intimate link between a work of the mind and its author (“author’s right”). It includes 4 main attributes:
- right of paternity: recognition of the author, respect for his or her name and status, mention of his or her name on / in direct connection with the work, right to remain anonymous or use a pseudonym
- right to respect for the work: protection of the integrity of the work to prevent distortion or unwanted modifications.
- right of disclosure: guarantees the author the right to make his or her work known to the public, and to determine the means of distribution.
- right of repentance & withdrawal: recognizes the author’s right to modify his or her work and to revoke the transfer of rights entrusted to a third party +++ characteristics: inalienability, imprescriptibility, public order, personal and perpetual.
“A legally protected link, uniting the creator with his work and conferring on him sovereign prerogatives with regard to users, once the work has entered the economic circuit” [source: Pierre-Yves Gautier, Propriété littéraire et artistique ↗ , Paris, Presses Universitaires de France, 1991 ]
For the record, moral rights were first recognized in France, by law no. 57-298 of March 11 1957 on Literary and Artistic Property. Pre-dating the Berne Convention, it is considered a personality right, “attached to one’s person”, embodied in the literal sense by the author. It has gradually been adopted internationally, but France remains the country where moral rights are most firmly anchored.
🪙 Property Rights
Patrimonial rights are based on a utilitarian and financial guarantee. Its origins date back to the signing of the Statute of Anne, 1710. It concerns what the author (or later his heirs) can earn from the exploitation of his original work by publishers/companies. Thanks to the exclusive monopoly he holds, the author (or his successors) has complete freedom to exploit the work in any form whatsoever. This right protects the author throughout his lifetime, and his successors for 70 years after his death.
⚖ Related Rights
Related rights (“neighboring rights” in french) grant additional exclusive rights over and above the previous two. Rights are granted to certain “auxiliaries” of intellectual creation, such as performers, producers of phonograms & videograms, or audiovisual communication companies. Protection is guaranteed for 50 years from the time of performance, first fixation or communication of the work.
Considered as “similar rights”, they are covered by Creative Commons licenses, and as “related rights” they are integrated into CC0.
📚 Intellectual Property Code, Book II Les droits voisins du droit d'auteur ↗ , articles L211-1 to L219-4
🔖 Orphan Works
The mechanics of copyright, based on automatic, long-term protection, have given rise to a large number of works with no clearly identified author. These orphan works, whose author or rightful owners are unknown, or cannot be found despite “diligent, proven and serious research”, are increasingly numerous. The massive, even exponential, digitization of our cultural heritage further raises the question of the future of these orphan works. This is prompting institutions to question how to optimize these massive digitization plans, and to invent new ways of mobilizing the community, through participatory indexing for example (public contribution to the identification of orphan works).
📚 The Orphan Works Data Base ↗ , EUIPO
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Copyright organizations in France
Here are just a few of the organizations protecting authors' rights in France. In general, they defend authors individually but above all collectively, as a professional organization dedicated to a specific creative sector:
- Society of Dramatic Authors and Composers sacd.fr ↗ : 200 years of “fight for the authors” of the performing arts (theater shows, concerts, circus, festivals…), all types of works can be submitted, on various media : text, video, cassette, CD-ROM…
- Society of Authors, Composers and Music Publishers sacem.fr ↗ : founded in 1851, it protects and represents authors, composers, music publishers, dubbing and subtitling, and directors of all artistic genres.
- Society of People of Letters sgdl.org ↗ : protects the copyright of manuscripts in paper or digital form (CD-ROM) of novels, short stories, stories, screenplays, poetry…
- National Union of Authors and Composers snac.fr ↗ : concerns works of all those who write or compose as a profession, in particular texts for broadcast projects, synopses, scripts (for audiovisual television or cinema works) as well as musical compositions and arrangements of musical compositions, whatever whether the genre, the merit or the destination (variety, cinema, television, radio, credits, advertising…)
- Civil Society of Multimedia Authors scam.fr ↗ : negotiates, collects and distributes the copyright of its members for audiovisual works, defends their individual & collective interests and takes action cultural & social.
— Nature of protection
🔋 What we protect
As we have seen above, the exclusive rights conferred by copyright, inherited from the Berne Convention, are essentially of two types:
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Property rights, which allow the rights holder to receive financial compensation for the exploitation of their work by third parties. These rights are defined by national laws. In France, it covers the right to authorize or prevent certain uses (right of reproduction, performance or representation in public, recording, broadcasting, translation and adaptation) in relation to one’s work or even to receive remuneration for the use of his work. These rights can be assigned and transferred to a company, for remuneration and are limited in time until 70 years after the death of the author, at which point the work will enter the public domain.
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Moral rights, which protect the non-economic interests of the author. They cover the right to claim authorship of a work or to oppose modifications to a work which risk harming the reputation of the creator. These rights are non-transferable (they cannot be transferred to third parties), perpetual (remain even after the death of the author), inalienable (remain attached to the author) and imprescriptible (do not expire over time, as long that the work exists).
Protection extends to expressions of creation.
- in the United States of America, works produced in the course of employment belong to the employer. In France, a civil law country, “the law presumes that copyright is vested in the employee-author, unless an employment contract imposes or implies the contrary”
- in the case of co-creation of a unique original work, the producers are co-owners, which implies reciprocal consent. This is not the case for a contribution to a collective work, such as an encyclopedia for example, where the creator holds the rights relating to his contribution.
🪫 What we don’t protect
- possession of a physical work does not confer copyright: example in the case of purchasing a copy of a contemporary novel in a bookstore. Although I have the right to give this work to whomever I wish, I cannot in turn make full copies of it for distribution, either for financial consideration, or even for free.
Protection does not extend to ideas, procedures, methods of operation or mathematical concepts as such.
⚗ Special case of an adaptation
The term “adaptation”, or “derivative work” or “remix” means any new original work created from a pre-existing work with the authorization of the holder of the right (authors or rights holders) and “displaying sufficient new creativity “. The creation of a derivative work does not eliminate the copyright held by the creator of the pre-existing work. On the other hand, it triggers new copyrights for the creator of the adaptation.
Example: The graphic novel 'Le premier homme' by Jacques Ferrandez ↗ , published in September 2017 by Gallimard BD, is a graphic adaptation of the original posthumous work of Albert Camus (tragically passed away in January 1960) published by his daughter Catherine Camus in 1994 (Cahiers Albert Camus n°7: Le premier homme ↗ , Paris, Gallimard NRF, April 13, 1994).
« I built a relationship of trust with Catherine Camus by involving her in my work, by showing her the plates etc. She is very keen on this relationship of loyalty. When I told her about ‘The First Man’, she was a little reluctant, because it’s a book that talks about her family, her father, her grandmother, her grandfather. But I insisted, telling him that I would draw the story from the side of fiction, and from the character of Jacques Cormery. » Jacques Ferrandez (for FranceTV, 2017-09-22, author of other adaptations of Albert Camus and numerous graphic novels about Algeria)
➽ The comic strip is protected by copyright, for Jacques Ferrandez, subject to prior negotiations and agreements with the rights holders of Albert Camus, until January 1st, 2088.
➽ The original work from 1994 remains under copyright, for the rights holders of Albert Camus, and will turn into the public domain on January 1st, 2031.
🔌 Copyright Exceptions
In France, there are several exceptions relating to copyright, established by law no. 2006-961 relating to copyright and related rights in the information society ↗ of August 1st, 2006. This law thus authorizes the use of works without authorization from the author, in very specific limiting cases, including in particular:
- Benefiting a sector of activity:
- Subject to explicit indication of the author’s name & source: short quotations, press reviews, broadcast of public speeches for information purposes, extracts from works for exclusive purposes of illustration in the context of teaching or research
- Educational exception: “teachers in schools, colleges, high schools or universities may use and distribute, in return for the payment of a negotiated remuneration, extracts from works without authorization from the rights holders”
- Exception in favor of libraries, museums and archives, for any reproduction or representation, for purposes of conservation or preservation of on-site consultation conditions (for example in the case of an original that is too damaged or illegible)
- most legal texts, government works…
- Relating to a specific use:
- Free & private representation in the circle restricted to the family
- Reproduction for strictly private and individual use
- Exception in favor of people with disabilities, for a strictly personal consultation, in particular to facilitate Braille transcriptions
- Parody, pastiche & caricature
- in the United States of America & in certain Commonwealth countries: “fair use” or “fair dealing” [Copyright Uncovered: Fair Use v Fair Dealing ↗ , DACS, 2018]
— Public Domain
The public domain concerns works that are not subject to copyright. It includes a growing number of works free of proprietary rights. These enter the public domain in 4 ways:
- the copyright has expired, 50 to 70 years after the death of the author for example
- the work has never been protected by copyright
- the author renounces his or her rights (implied before their expiration) and places his or her original work in the public domain. For this, Creative Commons offers a legal tool called CC0 Public Domain Dedication ↗ (for “No rights reserved”), which guarantees international application as complete as possible.
- the owner of the right “did not comply with the formalities for acquiring or maintaining his copyright” (on the other hand, these cases are increasingly rare given the imprescriptible content of this right today )
Another vision of the public domain: “The paradoxical risk of the public domain is that the end of the exclusive right represents the erasure of the work”, Alban Cerisier, Gallimard [source: Les Echos ↗ ]
Once in the public domain, you can do anything with this work, within the limits of respect for moral rights (which always persists after the end of copyright). On the other hand, possible adaptations of this work may remain protected for many years to come. Furthermore, some works may be in the public domain in one country and under copyright in another…
Traditional or indigenous cultural expressions may not be protected by copyright. This does not mean, however, that their use is free and unconditional. These expressions deserve particular care and involve prior consultation with the community responsible for them in order to ensure that their use complies with the wishes of their holders. Sometimes this knowledge can be identified, in particular by Traditional Knowledge Labels ↗ .
🔍 Where to find public domain works
Here are some references to help you find public domain works:
- CC Search ↗ : a meta-engine to search all types of files on several platforms
- Gutenberg Project ↗ : +70,000 digital books
- Public Domain Review ↗ : exploration of public domain works
- Wikimedia Commons ↗ : nearly 100 million documents
- Internet Archive ↗ : millions of web pages, texts, videos, audios, TV films, software, images, concerts and collections
- don’t forget the digitized heritage & matrimonial collections of museums and libraries: for example in the funds of the French National Library on Gallica ↗ (the French Digital Library) or on Data.BnF ↗ (the Open Data Portal)
You should explicitly look for the public domain mark or the CC0 mention, without forgetting to credit the author of the original work (or the institution from which it comes if it is a GLAM ).
The public domain opens up tremendous opportunities for access, circulation and reproduction of works. It also represents an extremely powerful creative & generative lever for all open cultural resources.
… to be continued …
␥ Find out more
- All my articles about Creative Commons / CC-Cert Logbook
- Understanding Copyright and Related Rights ↗ (WIPO)
- The Copyright ↗ (WIPO)
- Video channel You Can Fix Copyright ↗
- Map of World copyright terms lengh ↗ (Wikimedia Commons)
- Public Domain Guidelines ↗ (CC)