Author's Right, Copyright and Free Licenses for Culture on the Web/Definitions

1. What does authors’ rights/copyright mean?
The set of rules that protect original literary and artistic works is called "author’s rights" in civil law countries (Italy, France, Germany, etc.) and "copyright" in common law countries (United Kingdom, United States, Australia, Canada).

Author’s rights/copyright provides for a series of rules that regulate the relationship between the author, the work and the public. It is part of intellectual property’s regulation which includes both copyright/author’s right and industrial property (patents, trademarks, designations of origin, utility models, topographies of semiconductor products, trade secrets and new plant varieties).

Author’s right consists of moral rights, aimed at protecting the author’s personality, and economic rights, aimed at guaranteeing the author a remuneration through the economic exploitation of the work. Author’s right arises at the moment of the creation of the work, without any formality and protects "literary and artistic works", whatever the way or form of their expression. The Berne Convention (an international agreement that established for the first time the mutual recognition of copyright/author’s right among the signatory parties) recognizes to the subscribing States the faculty to prescribe that literary and artistic works are protected only if fixed on a material support. The requirement of fixing the work on a material support, admitted by the Berne Convention, is typical of common law countries and, for example, has not been adopted by the Italian legislation on the matter. It should nevertheless be noted that, while different from fixation, recent CJEU case law requires an element of “objectivity” or “stability” for a work to qualify for protection (Levola case). The two systems of author’s right and copyright traditionally focus on two different profiles: the first on the author as "person", and the second on the "right to copy the work". Although these different approaches have some differences between each other (such as, for example, the different regulation of moral rights), they have evolved to play a very similar function and increasingly tend to converge over time in relation to the evolution of forms of online exploitation of works and, in the EU, to the process of harmonisation of copyright law.


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2. Which works are protected by Copyright Law?
Copyright rules are territorial and can potentially vary significantly from country to country. However, mainly due to international conventions such as the Berne Convention, the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT) and the TRIPs Agreement there is a body of rules that finds if not common, at least coordinated application, internationally. Within the European Union, the process of copyright harmonization has greatly reduced the differences between the Member States’ legislation through at least 12 different directives starting since the early 1990s. In particular, aspects such as: main economic exploitation rights, exceptions and limitations, technological measures of protection, originality, concept of work and the duration of economic rights have been almost fully harmonized and we can certainly say that, right now, works receive very similar protection at the European level. However, copyright remains a national prerogative and therefore there is the Italian, French, German, etc. Copyright Act which will be similar in the many aspects subject to harmonization indicated above, but will maintain their own peculiarities. Original works within the literary, scientific and artistic field, are protected by the law whatever the mode or form of their expression (even if it must have a certain stability) if they are original in the sense of the author’s own intellectual creation. Originality is manifested through free and creative choices that allow the author to imprint their own personality onto the work. Databases are protected by copyright only if the selection or arrangement of the material can be considered as the author’s own intellectual creation. In this case, the protection regards the structure of the database and does not extend to the contents of the database, without prejudice to any other rights.


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3. Do all works have an author?
Yes, the work must be the result of the author’s own intellectual creation.

The author can choose how to reveal his authorship if under his own name, or under a pseudonym, or to remain anonymous. There are also some works, called orphan works, which are presumed to be still under Copyright Law protection, but whose rights holders are unknown or untraceable.


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4. What do joint works and collective works mean?
Joint works are formed by several authors’ contributions that cannot be separated or distinguished from each other (as in the case of a book written by several authors); collective works are, instead, created by several authors but the individual contributions remain distinct and autonomous and, therefore, separable from each other (such as an anthology).

5. What are moral rights and economic rights’ characteristics?
All European States grant the author a series of exclusive rights that fall into two categories: moral and economic rights. Moral rights are born with the intent to protect the artistic personality of the author. The Berne Convention requires the adhering States to recognize two forms of moral rights: the right of attribution and the right of integrity of the work, i.e. to oppose any deformation, mutilation or other modification, as well as any other act to the detriment of the work itself, which would harm the honor or reputation of the author. The specific regulation is left to the legislation of the individual States. Moral rights, which have not been subject to specific harmonization, are non transferable and often not renounceable (even if in some jurisdictions renunciation is possible). Their duration can vary considerably: the minimum established at international level is at least the same duration as economic rights, but often, particularly in continental Europe, they last much longer, for example in Italy they are not subject to any term, i.e. they are perpetual. Economic rights, on the other hand, concern the use and economic exploitation of the work. The author, in fact, can decide to transfer or license the use of these rights, freely or in exchange of a payment. Economic rights are the right to exploit the work in any manner and in any way, e.g.: to publish, reproduce, transcribe, perform, represent or act in public, communicate and make available to the public, distribute, translate, elaborate, modify, lend or rent the work.


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6. What is the term of protection granted by copyright?
According to Berne Convention, the national legislation can determine the conditions for the exercise of economic rights, which have an effect territorially limited to the Country which established them. The duration of the economic rights includes the author’s life and a period of 50 years after his death, but the States have the right to establish a longer duration. In the Countries of the European Union, economic rights expire 70 years after the death of the last of the authors (when the work enters the public domain). Specific provisions are indicated for certain categories of works (collective work, joint work, anonymous or pseudonymous work, unpublished work).

As indicated above, under the Berne Convention, the moral rights’ term cannot be shorter than the economic rights’ one and Member States may establish a longer term or make it imprescriptible.

Moreover, the 1947 Peace Treaty, which gave only the winning countries the possibility to extend the term of protection of the rights of their authors, adding also the years of war, extends the duration established by law by a further 7 years and 8 months. Subsequently, with the stipulation of the TRIPS Agreement of 1994 by most of the countries of the world, any discrimination between States at war was eliminated, therefore even countries that lost the war (e.g. Italy) can apply, in their own territory and in Europe, the same duration of the rights (76 years and eight months).


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7. To whom does the copyright belong when the work is created by an employee or in case of commissioned work?
In general in Europe, moral rights and economic rights belong to the author for the fact of creation and from the moment the work comes into existence. In some cases, economic rights belong to different subjects. For example, for works created on commission or by an employee, economic rights do not belong to the author but to the commissioning party or the employer, always within the limits indicated by the law (e.g. software, database) or the contract.


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8. What do related rights mean?
Related Rights (or “neighbouring rights”) intend to recognize and encourage the artistic effort (such as performing artists of musical or audiovisual works) or the economic investment of those who make a work accessible by the public (phonographic producers, radio and television broadcasters, film producers and now also publisher of press publications shared on the web, to whom the new DSM Directive recognizes a particular and short-time related right to receive economic compensation in case of online uses).


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9. Which materials are protected by related rights?
The materials protected by related rights provided by European Copyright law are:
 * for performers, the fixations of their performances;
 * for phonogram producers, the phonograms;
 * for the producers of the first fixations of films, the original and copies of their films;
 * for broadcasting organisations, the fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite;
 * for press publishers, their press publications made available online to the public by information society service providers.

There are also other cases of works protected by EU Copyright law that are not mandatory (e.g. non-original photographs, critical editions, fonts, etc.).


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10. Are there any exceptions or limitations to the copyright?
Yes, the system of exceptions and limitations allow to correctly balance between the copyright with the public’s right of access to culture and free expression. In practice, in these cases it is possible to use content protected by copyright law without the authorization of the rights holder. The exceptions (e.g. illustrative purposes for educational use or scientific research, quotation, criticism...) exclude the applicability of Copyright, making free the use of the work; the limitations make the work usable without the need to seek the prior permission of the rights-holder, but provide for the payment of an equitable compensation (e.g. reprography, personal use). Directive 2001/29/EC identified a closed list (meaning that Member States cannot introduce unlisted exceptions) of non-mandatory exceptions leaving the national legislator the choice on their implementation and identifying in article 5, paragraph 1, only one mandatory exception in relation to certain temporary acts of reproduction. Other specific exceptions may be found in specific areas (e.g. Software, Databases, etc). On the contrary, the recent Directive 2019/790/EU overturns the previous approach by providing for three mandatory exceptions and, therefore, ensuring the effective reception of them by Member States (text and data mining for the purposes of scientific research, digital and cross-border teaching activities, preservation of cultural heritage).


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11. What does “public domain” mean?
From a literal point of view, the public domain indicates something that “belongs to everyone”. Although there is no legislative definition of public domain, it can be defined as the condition under which the work can be freely used by anyone, for any purpose (without prejudice to moral rights, at least for most civil law legal systems) without asking permission and without paying anything. The public domain, in this sense, represents the opposite situation to copyright, which normally grants the authors of the work exclusive rights over it. The legislator, in fact, has considered that in the balance between the author’s interest in the economic exploitation of the work and the public’s interest in access to culture, in some cases the latter should prevail.

Works in the public domain are:
 * 1) works that the legislator defines in the public domain since their first publication (e.g. laws, judgements, etc.);
 * 2) works whose terms of economic rights have expired;
 * 3) works that have been freely "dedicated to the public" by the authors.

12. Can I freely publish works on the web or are there any rules to respect?
The web is not exempt from the obligation to respect the law. If you publish work protected by Copyright law it is necessary to comply with the rules governing the proper use of them. The publication, therefore, will be free if (1) the work is in the public domain, (2) it falls within an exception or limitation provided by law, or (3) you have the permission of the rights holder (e.g. the work is released under Creative Commons license). By default, it’s not possible to publish a work without the permission of the rights holder. Publishing work with a mention of the author or the web site from which they are taken is not sufficient to avoid copyright infringement. For the sake of completeness, please note that the publication on a web site also requires you to respect all the rules involved in relation to the type of content (e.g. privacy policy).

13. What is an out-of-commerce work?
Out-of-commerce works are works that have never been in circulation, works no longer in circulation or not available through ordinary commercial channels. Out-of-commerce works are still protected by European Copyright law unless copyright has expired. Directive 2019/790/EU offers two mechanisms to allow cultural institutions holding out-of-commerce works to use them. Specifically, Member States shall provide that, under certain conditions, a collective management organisation (e.g. the societies or associations that manage collectively copyright performing and mechanical rights), in accordance with its mandates from rights holders, may conclude a non-exclusive licence for non-commercial purposes with a cultural heritage institution for the reproduction, distribution, communication to the public or making available to the public of out-of-commerce works or other subject matter that are permanently in the collection of the institution, irrespective of whether all rights holders covered by the licence have mandated the collective management organisation.

Alternatively, if no sufficiently representative collective management organisation exists, Member States shall provide for an exception or limitation to the rights, in order to allow cultural heritage institutions to make available, for non-commercial purposes, out-of-commerce works or other subject matter that are permanently in their collections, on condition that the name of the author or any other identifiable right-holder is indicated, unless this turns out to be impossible; and such works or other subject matter are made available on non-commercial websites.


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14. What is an orphan work?
Orphan works are works protected by Copyright law where the rights holders are unknown or very difficult or even impossible to trace. There are millions of orphan works in European libraries, museums, archives and public institutions. The British Library, which holds over 150 million volumes, estimates that orphan works make up about 40% of its collection. The information needed to identify the rights holders may be incomplete for a number of reasons, for example the work was published anonymously or under a pseudonym or is extremely dated and therefore the information has been lost. The Orphan Works European Directive, which came into force in 2012, has provided for a number of cases in which the orphan work may be used by cultural heritage institutions. For the purposes of establishing whether a work or phonogram is an orphan work, the legislation requires a diligent search in the Member State of first publication. The declaration of “orphan work” allows Member States to limit the exclusive right to reproduce and make available to the public for the benefit of cultural heritage institutions.


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15. Is copyright waivable?
Economic rights are subject to a limited term of protection and the rights holder can freely decide to renounce, transfer or license them to a third party in exchange for economic compensation or not. In some legislation, specific remuneration rights are not waivable. Moral rights don’t expire (and therefore they are imprescriptible) in many EU Member States, and are not waivable and/or transferable by the rights holder (e.g. excepted for the United Kingdom).