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Synopsis from the lead framework chapter of the treatise International Copyright Law
and Practice (Paul Edward Geller, General Editor; Matthew Bender /
LexisNexis, publisher; Release 23 / Fall 2011). Copyright © Matthew Bender
& Co.,Inc. /
LexisNexis Group 2011
INTERNATIONAL COPYRIGHT:
THE INTRODUCTION
Paul Edward Geller*
____________
SYNOPSIS
Table of Abbreviations
§ 1 Consulting the Treatise
[1] Organizing Principle
[2] A Model for Analyzing Protection
[3] What to Read in Researching Issues
[a] Reading
Chapter by Chapter
[b] Researching
Globally: Analyzing Issues
[c] Taking Research
Beyond this Treatise
§ 2 Development of Key Concepts
[1] The Historical Rise of Copyright
[a] Pre-Copyright Institutions
[b] Classic Copyright Statutes
[2] Copyright and Author's
Rights
[a] Diverse Doctrines of Rights
[i] Property; Agency; Personality
[ii] Current Doctrinal Developments
[b] Representative National Laws
[i] Three Types of Systems
[ii] Affinities and Differences
[iii] Other Claims and Defenses
[c] The Consensus on Subject Matter
[i] Copyright in Creative Works
[ii] Related Rights in Other Productions
[3] The Framework of International Treaties
[a] Historical
Origins of the Framework
[b] National
Treatment and Minimum Rights
§ 3 Grounds for Protection Abroad
[1] Where, and Under What Laws, to Claim Protection?
[a] Which Laws Apply to Infringement?
[i] The Law of the Protecting Country
[ii] Even When Suit is Brought Elsewhere
[b]
Identifying Protecting Countries, Whose Laws Apply
[i] Pleading: Mapping Out Infringement
[A] Don’t Let Claims Fall Through the Cracks!
[B] Localizing Infringement Varies Under Diverse Laws
[ii] Applying Laws to Infringement Under the Treaty Framework
[A] Flexible Territoriality versus Extraterritoriality
[B] Provisional Relief: Where to Stop Infringement?
[C] Monetary Relief: Where Has Prejudice Occurred?
[iii] What Laws Apply in Hard Cases: Telecommunication?
[A] Distinguishing Broadcast/Cablecast Cases from Internet Cases
[B] Localization and Choice of Laws in Internet Cases
[2] What Grounds for Protection are Available in
Domestic Law?
[a] Treaty
Self-Execution or Not?
[b] Unilaterally
Granted Protection
[c] Reciprocally
Granted Protection
[d] Laws
Implementing Treaty Protection
[3] What Grounds for Protection are Available in
Treaty Provisions?
[a] Trade
Agreements
[i] W.T.O. and TRIPs
[ii] The Euroean Union
[iii]
NAFTA; Cartagena Decision 351
[b]
Copyright Conventions and Treaties
[i] The Berne Convention
[ii] The WIPO Copyright Treaty
[iii] The Universal Copyright Convention
[iv] The Inter-American Conventions
[c] Neighboring
Rights Conventions and Treaties
[i] The Rome Convention
[ii] The WIPO Performances and Phonograms Treaty
[iii] The Geneva Phonograms Convention
[d] Bilateral
Agreements
[4] How are Provisions Allowing for Protection
to be Construed?
[a] Domestic
Implementing Provisions
[b] Self-Executing
Treaty Provisions
§ 4 The Requirements for Protection
[1] Is the Work or Other Production at Issue
Covered
[a] Defining
Covered "Works"
[b] Effects of
Listing Types of Works
[c] At the Margins
of Copyright Coverage
[i] Industrial and Computer-Related Designs
[A] Industrial Designs
[B] Computer Programs
[C] Integrated Circuits
[ii] Performances, Recordings, and Broadcasts
[A] Diverging Nomenclatures
[B] Hypothetical Illustrations
[C] Hard Cases: Distinctions
[iii] Other Media and Data Productions: Databases
[2] Does the Work or Production Satisfy Any
Eligibility Criterion?
[a] Nationality of
Author or Other Maker
[i] Alternative Personal Factors
[ii] The Problem of Defining "Author"
[b] Place of
Publication, Fixation, or Making
[i] Alternative Geographical Factors
[ii] Treaty Criteria of "First Publication"
[iii] Analyzing First Publication as a Transaction
[3] Is Protection of an Older Work or Production
Still Timely?
[a] Establishing
Retroactivity or Prior Protection
[i] Retroactively Applying a Grounding Provision
[A] The Default Rule: No Retroactivity
[B] Berne/TRIPs/WIPO Qualified Retroactivity
[C] E.U. Super-Retroactivity; Revived Rights
[ii] Prior Provisions as Grounds for Protection
[b] Recurring
Procedures of Analysis in Certain Cases
[i] Meeting Requirements Under Successive Provisions
[ii] Settling the Meaning of the "Country of Origin"
§ 5 The Extent of Protection
[1] What Provision Dictates the Choice of
Dispositive Law?
[a] Between
Domestic and Treaty Provisions
[b] Between
Convention or Treaty Provisions
[i] Berne/TRIPs/WIPO Provisions Prevail
[ii] Conflicts Between Other Treaties
[A] Treaties on Neighboring Rights
[B] The Universal Copyright Convention
[c] Between E.U.
Law and Treaty Provisions
[i] Among E.U. Member States Themselves
[ii] Among E.U. Member States and Non-E.U. Countries
[2] Has Protection Lapsed Under the Rule of the
Shorter Term?
[a]
[b] Special
Problems of Method in Applying the Rule
[i] Classes of Works; the "Zero-Term" Work
[ii] Between an E.U. Member State and a Non-E.U. Country
[3] What are the Effects of Formalities on
Protection?
[a] Formalities of
the Country of Origin:
[b] Formalities
Within the Protecting Country: Notice
[4] How Far Does Protection Extend Once It is
Assured?
[a] What Minimum Rights
Apply?
[i] Substantive Minimum Rights
[A] Berne Minimum Rights
[B] Rome, TRIPs, WIPO-Treaty Rights
[C] Construing Minimum Rights
[ii] When Minimum Rights May Apply
[b] The Definitional
Scope of National Treatment
[i] Relative to Copyright or Neighboring Rights
[ii] At the Margins: Remuneration; Remedies
[c] Remaining
Permissible Derogations of Protection
[i] Retaliation against Non-Members
[ii] Specific Reservations Still in Effect
[iii] Licenses in Favor of Developing Countries
[5] How Else May Protected Interests
be Vindicated?
[a] Self-Help: Collective Management; Digital Uses
[i] Collecting and Managing Royalties Across Borders
[ii] Controlling Uses Online; Technological Safeguards
[b] Assuring Rights through Trade Treaties
[i] The TRIPs Agreement and Others
[ii] Dispute Settlement; Retaliation
[A] Interpreting Berne Standards in TRIPs Disputes
[B] Channeling Retaliation for Non-Compliance
§ 6 Further Conflicts Issues
[1] Jurisdiction over Cross-border Cases
[a] European
Approach
[b] Anglo-American
Approaches
[2] What Rules Apply to a Contract Transferring Foreign
Rights?
[a] The
Copyright-Conflicts Regime: National Treatment
[i] Reversionary Interests and Termination Rules
[ii] Moral Rights; Other Author-Protective Rules
[b] The
Contract-Conflicts Regime: the Law of the Contract
[i] Party Choice of Contract Law; Other Principles
[ii] Formalities; Construction; Standard Terms; Etc.
[c] Cases Subject
to Both Conflicts Regimes
[i] Overriding Principles and Policies
[ii] Hard Cases: Moral Rights and Contracts
[3] How Can Copyright "Chain of Title"
Be Traced Worldwide?
[a] Presuming
Standing to Sue versus Proving Entitlement
[b] Anchoring Chain of Title in the Initial Vestees of
Rights
[i] The Problem of Determining the Initial Vestee
[ii] Hard Cases: Team and Employees' Works
[c] Transfers by Law or by Contractual or Other Instruments
[i] Inheritance; Marriage; Creditors’ Claims; Etc.
[ii] Priorities Among Diverse Transfers