Copyright infringement generally refers to the nuisance caused to intellectual property. Going against the moral and material interests of the author is thus liable to criminal and civil liability action.
Basis of Copyright in Copyright infringement
Copyright is a component of intellectual property. By restricting the lawful uses of works to the payment of rights. It authorizes transactions and price-fixing in a market economy.
Copyright grants two distinct types of prerogatives over the intangible:
moral rights and the economic rights, which are limited in time, and which allow to authorize or prohibit the use of a work of the mind.
The use of a work, outside the field of legal exceptions is Copyright infringement, thus requires authorization from its author, and generally a financial consideration which allows the remuneration of the author’s efforts.
To promote the dissemination of his work, an author may assign or concede his property rights to a third party who has the means necessary to ensure commercial exploitation. In France, this valuation of reasons can be done individually, by contract with an operator (publisher, producer, etc.) and by collective management, via a society of authors.
The moral right of the author cannot be transferred, and it is “perpetual, inalienable and imprescriptible.”
Anglo-Saxon law, based on the copyright system, obeys different principles. First, copyright did not necessarily go to the author: it could go to the employer or the sponsor. Next, copyright ignores moral rights (authorship, disclosure, etc.). However, this distinction tends to diminish over time. Benhamou, Edelman: moral rights are taken into account by several American states while French law can limit specific effects.
Copyright infringement of this property, an individual or a company has a “legal arsenal” to protect its creation: company secrets, specific confidentiality clauses with employees and patent. Tools that can then supplement the protection granted by copyright.
Scope of copyright in Copyright infringement
Copyright infringement is independent of the distribution model and also concerns works published under a free license. Thus, in France, the validity and binding force of the GNU general public license were recognized by the Paris Court of Appeal6, which sanctioned a service provider for having removed the original copyrights as well as the text of the GNU license / GPL.
It is the total or partial reproduction of the work, “by any means whatsoever.” The small dissimilarities between the original and the copy that may exist are not sufficient to characterize the lawfulness of the reproduction.
Unauthorized representation, for example, by hyperlinks. Under American law, the embedded link technique does not constitute an infringement. On several occasions, companies hosting only hyperlinks have been released. Conversely, the French Court of Cassation confirmed that the “direct representation” system proposed by Google Videos was akin to counterfeiting since the user could watch the film while remaining, at least in appearance, on Google pages.
And distribution, outside the legal framework provided for by the INPI and publishing, which now concerns, beyond the book in paper format, other media such as discs, films, multimedia, CD-ROMs …
Violations of the author’s moral rights are also qualified as counterfeits. They can result:
- Unauthorized disclosure of work, even if abandoned.
- Non-compliance with the work, by “any alteration or modification, whatever the importance”.
- Or non-compliance with the author, who “has the right to require the mention of his name and his quality or, on the contrary, to silence them by requesting anonymity or by using a pseudonym.”
Harmonization of copyright throughout the world
During the 19th century, many states, following England, France, and even the United States, adopted legislation to protect authors and intellectual works. Despite the complete harmonization organized by the Berne Convention of 1886, disparities continue to exist between states. So, what do I know? “The counterfeiting” of 1986 denounces the “legal vacuum” and “the absence of an international will”. These mentions are absent from the 2006 edition which evokes on the contrary. A common right of literary and artistic property.
In Europe, Community law from 1991 to 2001 organized harmonization while in principle. Leaving the Member States absolute freedom in transposing directives. In May 2011, the European Commission proposed the development of a comprehensive European copyright code to further harmonize.