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European IP Bulletin, Issue 29, February - Copyright

Copyright

2. Copyright on Papal Documents

Shortly after the election of Joseph Ratzinger to the Cathedral of St. Peter, the Vatican decided to embark upon a new initiative to ensure acknowledgement and enforcement of copyright on papal documents. In a decree of 31 May 2005, the Secretary of State declared that the Vatican publishing house, called Libreria Editrice Vaticana (LEV), was entrusted with the exercise and custody of all moral copyrights and exclusive rights arising from every deed and document through which the Pontiff exercises his own magisterium. Accordingly, LEV’s director has the power to dispose of the rights and, if necessary, he can start legal action against infringers, according to international treaties and conventions to which the Vatican adheres. This applies to all works created by Joseph Ratzinger even before he became Pope Benedict XVI together with all works of his predecessors over the prior 50 years.

Enforcing copyright in papal documents is not as revolutionary as it might sound. In 1978, another decree asserted that the LEV had been acting as official publisher for the Holy See. From that date, the Vatican publishing house was also entrusted with the enforcement of copyright in the works of John Paul II both before and after he became Pope. In a straightforward and exhaustive statement, the decree explained that any utilisation of the Pope’s works could only be done after obtaining explicit authorisation from the publisher. 

Given Ratzinger’s extremely wide literary production, both before and after his election as Pope, copyright over his works is a matter of primary importance. Authors and editors willing to publish a work containing some of the papal documents will have to address a request to LEV and possibly pay a fee or a royalty on the book’s sales. In order to have a better understanding of the new enforcement measures adopted by LEV, a meeting between the publishing house representatives and Ratzinger’s publishers was convened in December 2005. During this meeting, LEV provided guidelines on how papal documents were to be licensed.

Restrictions on the diffusion of papal documents were primarily established to provide order and avoid derogatory treatment. But the issues of freedom of speech and right to information naturally arise, especially when the media requires information to be widely available. According to the Vatican, availability is a non-issue given that all documents by the Pope are published and systematically posted on the Vatican’s official website.

The problem is probably an economic one. It has been reported that LEV requested the payment of a fee of £10,000 from a publisher for the use of short excerpts of two of Ratzinger’s recent speeches. While this sum seems to be disproportionate, one should bear in mind that the book in which the excerpts were included had significant commercial success, a point reiterated in a recent press release issued by LEV. Indeed, a second edition of the book has recently been released at the approximate price of £6.70. Therefore, from a legal point of view, it is arguable that the copyright holder should not be required to give away his material for free when subsequent exploitation generates profit for the licensee. But it is also clear that, in some circumstances, the purposes of dissemination must be superior to all economic matters and such a question would become redundant.

From the legal point of view there is nothing strange or scandalous in the decree by the Vatican as it does not conflict with common copyright practice. Nevertheless, from the point of view of dissemination a problem could arise in respect of the ability  of the LEV to deal promptly and efficiently with the worldwide demand for the Pope’s works. In view of the social function of the Church, Vatican authorities should monitor how papal works are handled and be ready to act when economic interest goes against the pastoral mission of the church to disseminate “the good news”.

3. Nova Productions v Mazooma Games: Copyright Infringement of Video Games

On 20 January 2006, the High Court of Justice gave its ruling in the matter of Nova Productions Limited v Mazooma Games Limited [2006] EWHC 24 (Ch).

The Claimant, Nova Productions, is a company that designs, manufactures and sells arcade video games. Among these games is one is called “Pocket Money”, which has proven to be very popular and a huge commercial success to the Claimant.

After several dealings with the Claimant regarding the commercialisation of “Pocket Money”, the Defendants designed and commercialised similar video games.

The key issues in this case were whether these similar video games were created by copying “Pocket Money” and, if so, whether this copying involved the reproduction of a substantial part of any work in which the Claimant owned copyright.

In order to address these issues, the court had previously identified the particular copyright works upon which Nova relied. Nova claimed to be the owner of artistic works, literary works, dramatic work and film copyright. However, the court only recognised the existence of the artistic and literary works, finding that, in accordance with Norowzian v. Arks (No. 1) [1998] FSR 394, film copyright can only be infringed by photographic copying from the film, and therefore “Pocket Money” could not be a dramatic work for the following reasons:

• it was not intended to be or was capable of being performed before an audience;
• the features described as features of a dramatic work cannot be described as so, taking into account that they are not capable of performance;
• the notes that were claimed to record the dramatic work were accepted as a literary work, so they cannot be, simultaneously, a dramatic work; and
• the claimant did not explain how the dramatic work upon which it relied was recorded in the object code of the video game.

After comparing the similarities and differences between the video games’ features, the court considered that the similarities mainly consisted of the ideas and principles at a high level of abstraction, which are not protected by copyright.

By reviewing in detail each class of copyright work related to these video games, and by analysing whether a substantial part of a video game has been reproduced, the High Court has provided an important contribution to the interpretation of copyrighted works and the limits of their protection. In particular, in relation to computer programmes, this case emphasises the difference between, on the one hand, ideas and principles, and, on the other hand, expressions of these ideas and principles. According to the High Court rule, due to the fact that an idea or principle is not expressed in the program code or program architecture, and are only reflected in its outputs, it does not form a substantial part of the computer program itself and cannot be protected by copyright.

4. The Performance (Moral Rights, etc.) Regulations 2006

The Performance (Moral Rights, etc.) Regulations 2006 came into force on 1 February 2006 to implement the UK government’s community obligation under EU law, pursuant to ratification of the World Intellectual Property Organization’s Phonograms and Performances Treaty 1996 (WPPT). Article 5 of this treaty gives performers, independent of economic rights, rights to claim identity with their performance and rights to object to any distortion, mutilation, or other modification of their performance that would be prejudicial to their reputation. Previously, there were no specific provisions for performers’ moral rights under English law.

The Regulations provide for two rights for performers:  (1) the right to be identified as the performer in a performance (the paternity right); and (2) the right to object to modifications made to performances that are prejudicial to the performer’s reputation (the integrity right). These rights are closely based on the existing moral rights legislation for authors and directors set out in the Copyright, Designs and Patents Act 1988.

Performers will be entitled to protection for any live performance given to the public, a performance that is broadcast live or a performance of which a sound recording is made and subsequently communicated or issued to the public. The person who organises or promotes the performance is responsible for identifying the performers. In the case of a group, then identification of the group as a whole will suffice. Other exceptions include: no obligation to identify a performer where it would not be reasonably practicable to do so, nor where performances are given for the purposes of reporting current events or advertising any goods or services.  There are exceptions from the right to be identified for acts relating to news reporting, incidental inclusion, things done for the purposes of examination, parliamentary and judicial proceedings and Royal Commissions and statutory inquiries.

Similarly the right to object to modifications does not apply in relation to any performance given for the purposes of reporting current events and is not infringed by modifications made to a performance which are consistent with normal editorial or production practice, nor by anything done for the purpose of avoiding the commission of an offence, complying with a duty imposed by enactment (such as the Acts licensing and monitoring broadcasters), or, in the case of the British Broadcasting Corporation, avoiding the inclusion of anything which offends against good taste. In the latter cases, there may have to be a disclaimer that the modifications were made without the performer’s consent.

Moral rights in performance last for as long as the property rights in performance (50 years from the end of the year in which the performance occured).  The rights cannot be transferred, except upon the death of the performer when they may be transfered by will.  A performer, or their agent, may consent to any act that would otherwise infringe their rights, and it is also possible for a performer to waiver their moral rights.

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