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The Tension Between Creative Freedom and Copyright Law

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The Tension Between Crea/ve

Freedom and Copyright Law

Julien Cabay Postoc Researcher FNRS Associate Professor ULg Lecturer ULB jcabay@ulb.ac.be

(2)

Basics of Copyright Law

• 

What can be protected by copyright ?

• 

Requirements for copyright protec/on

• 

The rights of the copyright holder

• 

The excep/ons to copyright protec/on

• 

The dura/on of copyright

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Basics of Copyright Law

• 

What can be protected by copyright ?

– 

Literary and ar/s/c works

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Basics of Copyright Law

• 

Requirements for copyright protec/on

– 

Expression (>< idea)

– 

Originality (= « author’s own intellectual

crea/on » with « personnal touch »)

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Basics of Copyright Law

• 

The rights of the copyright holder

– 

2 types of rights

• 

Economic

–  Reproduc/on –  Communica/on (making available) to the public –  Distribu/on

• 

Moral

–  Divulga/on –  Paternity –  Integrity

– 

Broad interpreta/on

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Basics of Copyright Law

• 

The excep/ons to copyright protec/on

– 

Exhaus/ve list (>< general « Fair use » in US law)

•  Quota/on •  Parody •  Incidental uses •  ...

– 

« 3 step test »

•  Certain special cases •  Do not conflict with a normal exploita/on of the work •  Do not unreasonably prejudice the legi/mate interests of the rightholder

– 

Strict interpreta/on

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Basics of Copyright Law

• 

The dura/on of copyright

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Tension Between Crea/ve Freedom

and Copyright Law

• 

Open defini/on of work + low treshold for protec/on

= lots of copyrighted works

• 

Broad rights + strict excep/ons + long dura/on

= lible crea/ve freedom

• 

General defini/ons of copyright concepts

= no clear-cut boundaries

• 

Copyright infringement depending on « similarity »

= greay area between (infringing) copying and (free) inspira/on

• 

Copyright protec/on is not a defense to copyright

infringement

= copyrighted work in its own sake can be a copyright infringement

• 

Balance between crea/ve freedom and copyright protec/on

already struck in the law

= lible space for freedom of (ar/s/c) expression defense

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Tension Between Crea/ve Freedom

and Copyright Law

From copyright theory to ar/s/c prac/ce...

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