Lernzettel: Fundamentals of Copyright Law

📋 Course Outline

1. Copyright’s historical emergence and economic drivers
2. Berne Convention scope: literary and artistic works
3. Originality requirement for copyright protection
4. Idea versus expression in copyright
5. Official texts and legal exemptions across countries
6. Automatic protection under Berne eligibility criteria
7. National treatment and minimum standards of protection
8. Communication to the public: act and new public
9. Making available right for online access
10. CJEU cases on hotels and dental background music
11. Framing and embedding: consent versus technical restrictions
12. Linking versus embedding definitions and effects

📖 1. Copyright’s historical emergence and economic drivers

🔑 Key Concepts & Definitions

• Patronage system : Patronage is an arrangement where artists are supported by wealthy patrons and paid for commissioned work rather than earning from copy sales.
• Independent professional creator : An independent professional creator is an artist who earns income through market activity such as selling copies once patronage weakens.
• Mass reproduction : Mass reproduction is the ability to produce many copies quickly and cheaply, making copying widespread and economically significant.
• Intangible property : Intangible property is legal control over non-physical creations like texts and songs, which can be used by many people at once.
• Berne Convention 1886 : The Berne Convention is an international treaty that coordinates copyright protection across countries using shared minimum principles.

📝 Essential Points

• Copyright emerged mainly in the 17th–18th centuries because creators increasingly needed legal protection to secure income from selling copies.
• Patronage declined as monarchies weakened and governments faced debt, reducing regular support from kings, nobles, and the Church.
• Before printing, books were handwritten and rare, so copying was limited and the need to control reproduction was weaker.
• Printing enabled thousands of copies at low cost, turning copying into a large-scale economic issue that copyright could address.
• Later technologies like sound recording further increased the value of controlling reproduction and distribution.
• Roman law treated property as physical objects, so separating the manuscript from the intellectual content was not yet a clear legal idea.

💡 Memory Hook

Patronage fades → creators sell copies → printing/recording multiplies copies → law protects income.

📖 2. Berne Convention scope: literary and artistic works

🔑 Key Concepts & Definitions

• Literary and artistic domain : The literary and artistic domain is the category of creations of the mind that can receive copyright under the Berne framework.
• Expression not idea : Copyright protects the specific expression of a work, not the underlying idea, facts, or information that expression conveys.
• Intellectual content over physical object : Copyright covers the creative intellectual content of a work rather than the physical medium used to present it.
• Originality requirement : Originality is the legal threshold that makes a work eligible for copyright beyond merely belonging to a protected domain.
• Whatever the mode or form : Copyright protection applies regardless of the mode or form of expression, as long as the work is identifiable and perceptible.

📝 Essential Points

• Qualification of an object as “literary or artistic” is flexible and depends on legal interpretation by national courts, not on a fixed list.
• Aesthetic industrial products may be protected under industrial design law, which is distinct from copyright even when both relate to appearance.
• Copyright can extend to non-traditional creations like hairstyles, but courts differ: some traditions apply broader criteria while others restrict due to the long monopoly.
• The Berne Convention protects intellectual content (e.g., the novel or composition) rather than the physical object (e.g., the printed book or paper/canvas).
• The Berne Convention’s “scientific” wording does not create a separate category: scientific material is protected only when it has literary or artistic expression.
• Facts and geographical information are not protected by copyright; only creative representation (e.g., an original map style) can be protected as artistic expression.

💡 Memory Hook

Expression, not idea: protect the “how,” not the “what.”

📖 3. Originality requirement for copyright protection

🔑 Key Concepts & Definitions

• Copyright originality : Copyright originality is the requirement that a work reflects the author’s own creative choices rather than being a mere copy or mechanical reproduction.
• No test no cost model : The no test no cost model means copyright arises automatically without an authority checking originality or charging a registration fee.
• Fixation requirement : Fixation is the rule that a work must be expressed in a sufficiently identifiable form, which some systems require to be recorded in a durable medium.
• Idea–expression dichotomy : The idea–expression dichotomy is the principle that copyright protects the specific expression of an idea, not the underlying idea, facts, or concepts.
• Merger doctrine : The merger doctrine applies when an idea and its expression are so tightly linked that separating them becomes meaningless for copyright analysis.

📝 Essential Points

• Copyright protection is automatic upon creation in an identifiable form, even if no formal registration is made.
• Optional deposits (where available) do not create copyright; they mainly provide dated evidence for disputes.
• Some systems require fixation in a tangible, durable medium, while others allow protection even for oral or transitory expression if it is identifiable.
• A sandcastle may be protectable as an original artistic work, but in fixation-requiring systems it typically needs to be photographed or filmed to qualify.
• Copyright protects form of expression, so copying the same subject matter or general theme is not enough for infringement without copying the protected expression.

💡 Memory Hook

Originality is “your creative fingerprint,” and copyright guards the “how,” not the “what.”

📖 4. Idea versus expression in copyright

🔑 Key Concepts & Definitions

• Idea–expression distinction : Copyright distinguishes between protected creative expression and unprotected underlying ideas or concepts.
• Conceptual art : Conceptual art often makes the artwork’s meaning depend on simple objects or arrangements, making idea and expression hard to separate.
• Derivative work : A derivative work is a new creation based on an earlier work, raising questions about how much copying is allowed.
• Freedom of creation : Freedom of creation is the policy goal that others should be able to make new works without an overly broad monopoly.

📝 Essential Points

• If idea and expression are treated as too close, copyright can block reuse of basic artistic choices like objects or arrangements.
• A broad infringement view could imply that once an object is used in a conceptual artwork, similar uses anywhere could be restricted.
• Overly wide protection would limit both public communication and private creative activity, even in everyday settings.
• Copyright law must balance protecting against unauthorized copying with preserving freedom of expression and freedom to create.
• In conceptual-art scenarios, taking the same kind of object (e.g., apple vs. similar object) and creating a comparable installation tests how the distinction is applied.

💡 Memory Hook

Balance the scales: protect the artwork’s form, but leave the raw idea/object choices free to reuse.

📖 5. Official texts and legal exemptions across countries

🔑 Key Concepts & Definitions

• Collective societies inspectors : Collective societies inspectors are public or authorized officers who verify whether venues use music under the correct licenses and can trigger additional fees or fines.
• Public performance : Public performance is any music use that is accessible to a broader audience, including private events open to the public, and it requires a license.
• Private copying remuneration : Private copying remuneration is a levy system where device/storage purchases include a fee to compensate rights holders for lawful private copying.
• Berne Convention minimum standards : Berne Convention minimum standards are mandatory baseline rules that set the lowest level of copyright protection member states must guarantee.
• WIPO Copyright Treaty Berne-plus : WIPO Copyright Treaty Berne-plus provisions expand the Berne framework by adding or clarifying rights suited to the information society.

📝 Essential Points

• Inspectors can require extra payments and impose significant fines when a venue plays music outside its licensed repertoire.
• In Italy and many European countries, inspectors’ reports can carry legal weight comparable to official police records.
• Even small public performances can create copyright obligations, including when music is played in pubs, event spaces, or other accessible venues.
• Church music can require tariffs even for composers in the public domain when the performance involves copyrighted arrangements or performers.
• Broadcasting is transmission to the public by wireless means (radio, TV, satellite, or Internet) enabling a distant audience to receive simultaneously or potentially.
• The Berne Convention sets a mandatory minimum copyright term of at least 50 years after the author’s death, but countries may extend it (e.g., to 70 years).

💡 Memory Hook

Licensing is policed (inspectors) + access is “public” + devices pay (levies) + treaties set floors (Berne) + digital rights expand (WCT).

📖 6. Automatic protection under Berne eligibility criteria

🔑 Key Concepts & Definitions

• Communication to the public : Communication to the public is a copyright act requiring both a communication and a public that is distinct from the original audience.
• New public : A new public is a group of recipients not contemplated when the work was first made available, which can trigger authorization needs.
• Making available right : The making available right covers online access where users can reach the work at a time and place of their choosing.
• Simple hyperlink : A simple hyperlink is a link that points to content hosted elsewhere without transmitting the work itself.
• Technological protection measures : Technological protection measures are digital “locks” that restrict access or copying and whose circumvention is separately unlawful.

📝 Essential Points

• Communication to the public requires an act of communication plus a public different from the original audience, often framed as a “new public.”
• In Rafael Hoteles, providing television in hotel rooms was treated as communication to the public, extending the concept to traditional broadcast contexts.
• In Del Corso, playing background music in a dentist’s office was not treated as communication to the public even if patients could hear broadcasts.
• Under the WIPO Copyright Treaty, making available means uploading/placing a work online so the public can access it on demand, even if only one person accesses at a given moment.
• For hyperlinks, the general rule is that a simple link to freely accessible content is not communication to the public because it does not transmit the work.
• Linking to paywalled or subscription content generally does not itself grant access; bypassing access would require unlawful circumvention (e.g., hacking), not the link alone.

💡 Memory Hook

Act + New public = authorization; link is a pointer (not transmission); TPMs are the digital locks.

📖 7. National treatment and minimum standards of protection

🔑 Key Concepts & Definitions

• National treatment : National treatment is the rule that foreign right holders must receive the same treatment as domestic right holders in the host state.
• Minimum standards of protection : Minimum standards of protection are baseline IP protections that states must provide, even if their domestic rules differ.
• Technological protection measures : Technological protection measures are DRM or similar systems that restrict unauthorized acts by controlling access or copying.
• Two-layer protection : Two-layer protection is the idea that copyright can be enforced both for the underlying act and for unlawful circumvention of technological measures.
• InfoSoc Directive Article 6 : InfoSoc Directive Article 6 is the provision governing legal protection for technological measures used to secure copyrighted works.

📝 Essential Points

• Circumventing DRM can trigger liability both for copyright infringement and for unlawful circumvention of the technological protection system.
• Courts may treat certain online framing or embedding practices as generally lawful unless effective technological measures block that use.
• The InfoSoc Directive links technological-measure protection to international standards reflected in the WIPO Copyright Treaty.
• Technological measures must not interfere with the normal operation of electronic equipment or prevent lawful use of devices.
• A key balance problem is distinguishing legitimate anti-infringement restrictions from overly restrictive measures that block lawful playback.
• The InfoSoc Directive’s recitals explain that technological progress enables right holders to prevent unauthorized acts, while also creating risks of easy circumvention.

💡 Memory Hook

DRM = “double trouble”: bypassing it can mean two claims—copyright infringement plus illegal circumvention.

📖 8. Communication to the public: act and new public

🔑 Key Concepts & Definitions

• Originality requirement : Originality requirement : Copyright protects only works showing a minimal level of creative choice, not mere effort or mechanical production of facts.
• Low originality vs high originality : Low originality vs high originality : The more original a work is, the broader its protection and the smaller the differences needed to infringe.
• Mirror principle : Mirror principle : A work’s protection level tracks its originality, so higher originality means stronger protection and easier infringement.
• Unfair competition liability : Unfair competition liability : Even without copyright infringement, copying can be sanctioned when it free-rides on another’s investment of time and resources.
• Salting technique : Salting technique : Deliberately inserting harmless errors into data helps later prove that a reproducer copied rather than independently compiled.

📝 Essential Points

• In Feist, a telephone directory organized alphabetically was not copyrightable because the arrangement and contact data were treated as raw facts lacking creativity.
• The US Supreme Court rejected “sweat of the brow” as sufficient for copyright, requiring creative expression rather than labor or investment alone.
• In the Shining example, repeating an old proverb across many pages is weakly original, so protection (if any) would not cover the proverb itself.
• If a repeated phrase is given deliberate visual or structural variation (e.g., a calligram), protection can attach only to that specific creative arrangement, not to the underlying words.
• In Feist, no copyright infringement occurred, but unfair competition liability could still arise from copying without independently collecting the data.
• Salting works as evidence because reproducing the same inserted errors strongly indicates copying of the original dataset rather than independent compilation.

💡 Memory Hook

Originality drives scope: low originality → weak protection; high originality → strong protection (mirror principle).

📖 9. Making available right for online access

🔑 Key Concepts & Definitions

• Making available right : A communication right covering situations where a work is placed online so that users can access it from the moment it is made available.
• Communication to the public : A copyright category covering acts that enable members of the public to access a work, including online accessibility.
• Right of reproduction : A copyright right covering the making of copies of a protected work, including partial or technical reproductions.
• InfoSoc Directive Article 3 : A directive provision that protects communication to the public, including making works available online.
• WIPO Copyright Treaty Article 8 : A treaty rule addressing communication to the public, used to interpret online making available under EU law.

📝 Essential Points

• The making available right is treated as part of communication to the public when the work is accessible online.
• Accessibility is sufficient; the audience size does not need to be large for the act to count as communication to the public.
• Even if only one person accesses an online pirated work, that person can still be part of the “public.”
• Uploading a work to the internet can qualify as communication to the public under the InfoSoc framework.
• The Rafael Hoteles dispute concerned whether TV in hotel rooms is “public” communication under Article 3 InfoSoc and Article 8 WCT.
• The ECJ approach expanded “communication to the public” beyond the idea of purely private-home viewing, despite earlier national distinctions.

💡 Memory Hook

Think “online = public access”: if it’s accessible on the internet, it’s communication to the public even with tiny audiences.

📖 10. CJEU cases on hotels and dental background music

🔑 Key Concepts & Definitions

• Rafael Hoteles case : A CJEU decision that broadened what counts as communication to the public when hotel rooms provide television access to guests.
• New public requirement : A CJEU criterion that communication to the public exists when the audience was not contemplated in the original authorization.
• Cumulative effect theory : A reasoning that successive users over time can together form a “public” even if only a few are present at once.
• Making available right : An InfoSoc right that covers providing access to the public, and which the CJEU treated as extending beyond interactive uses in hotel TV contexts.
• Del Corso case : A CJEU ruling that background music in a dentist’s practice did not amount to communication to the public under the specific facts.

📝 Essential Points

• In Rafael Hoteles, hotel-room TVs showed free-to-air channels, so broadcasters had already paid/authorized the underlying content for home viewing.
• The CJEU rejected the “private room = private use” approach and treated hotel guests as a different audience needing separate authorization.
• The Court required (i) a communication and (ii) reach of a “new public,” and it treated hotel guests as a public because many different guests use the same rooms over time.
• The Court held that making a work available can be enough even if only one or a few people actually watch at a given moment.
• The Court extended the “making available” concept to traditional broadcasting in hotel rooms, despite it being designed for interactive services like on-demand TV.
• In Del Corso, the dentist played background music in the waiting room and during treatment from free radio broadcasts with no extra fee paid by patients for listening.

💡 Memory Hook

Hotel TV = “new public” + cumulative guests; Dentist music = no real economic link, so no public under the Court’s test.

📖 11. Framing and embedding: consent versus technical restrictions

🔑 Key Concepts & Definitions

• Passive intermediary model : A legal view treating platforms as neutral conduits where liability is limited when they do not actively control or enable access.
• Active participant in communication : A legal view where a platform can be treated as taking part in communicating works when it organizes, indexes, or facilitates access with sufficient control.
• Contributory infringement : A liability category where a party facilitates infringement carried out by users without being the direct uploader of the infringing material.
• Knowledge-based platform liability : A liability approach where responsibility can arise if a platform knows or should reasonably know that protected content is being made available without authorization.
• Communication to the public : A copyright concept covering acts that make protected works available so that they reach an audience, potentially requiring authorization.

📝 Essential Points

• Courts increasingly treat platforms as direct participants when they actively organize, index, or facilitate access to infringing works rather than acting purely passively.
• Under the 2019 Directive, enabling access to copyrighted material can, in certain circumstances, lead to direct liability even without uploading the content.
• A platform may avoid liability only if it takes appropriate and effective measures to prevent access or remove infringing material once it is aware or should be aware of unauthorized availability.
• Even small fragments can still amount to a protected work when reassembled, supporting protection despite non-complete or non-immediately recognizable transmission.
• The Pirate Bay is legally significant because it facilitates reconstruction and distribution through user cooperation rather than hosting full files itself.
• Hyperlinks and embedding can trigger different outcomes depending on whether they create a new act of communication and whether a new public is involved.

💡 Memory Hook

Shift: from passive conduit → active control; liability follows knowledge + effective takedown duties.

📖 12. Linking versus embedding definitions and effects

🔑 Key Concepts & Definitions

• Hyperlinking : Hyperlinking is a method that sends users to another website where the protected content is hosted.
• Embedding or framing : Embedding or framing is a display technique that shows externally hosted content inside a webpage without storing it on the embedding site.
• Reproduction of content : Reproduction is copying a work onto a new website or server, creating a separate lasting copy under copyright control.
• Communication to the public : Communication to the public is an act that makes a protected work available to an audience, potentially requiring authorization under EU copyright law.
• Effective technological measures : Effective technological measures are technical restrictions that rights holders use to prevent or limit unauthorized access or framing.

📝 Essential Points

• A link typically does not create a new copy, so the content disappears only if the original host removes it.
• A reproduction creates a permanent new copy on the reproducing site, so the content can remain available even after removal from the original.
• Embedding/framing can be more legally sensitive than linking because users view the content within the embedding page.
• In VG Bild-Kunst, embedding is generally not a communication to the public when the work is freely available on the original site.
• In VG Bild-Kunst, bypassing effective technological measures that restrict framing can turn embedding into a communication to the public under Article 3(1).
• Originality for copyright protection can come from creative choices like angle, timing, lighting, framing, and composition, not only from a unique subject.

💡 Memory Hook

Link = redirect; Embed = display-in-page; Reproduce = copy-on-new-server; TPM bypass can flip Embed into “new public”.

📅 Key Dates

Date	Event
17th and 18th centuries	Copyright developed to protect authors’ income as patronage declined and mass reproduction rose
1886	Berne Convention for the Protection of Literary and Artistic Works signed
1996	WIPO Copyright Treaty (WCT) adopted to adapt copyright to the information society

📊 Synthesis Tables

Originality standards across legal traditions

Tradition	Originality focus	Key idea
British/Common law	Skill, labor, and judgment	Originality based on applied skill and effort plus judgment among possibilities
European/Continental	Creativity/personal imprint	Work must reflect the author’s personal creative choices (more subjective/selective)
United States	“Sweat of the brow”/labor	Labor and investment can suffice (utilitarian approach), though Feist rejects labor alone

⚠️ Common Pitfalls & Confusions

1. Confusing patronage with copyright: patronage paid commissioned/salaried work, while copyright became necessary when creators had to earn from selling copies.
2. Thinking copyright protects ideas/facts: it protects the specific expression, so using the same subject matter/theme is not automatically infringement.
3. Assuming originality is about effort only: Feist rejects “sweat of the brow” as sufficient; originality requires creative choice/personal imprint.
4. Mixing linking and embedding: a hyperlink usually does not transmit content, while embedding/framing can be legally sensitive, especially if effective technological measures are bypassed.
5. Believing “public” means many simultaneous viewers: CJEU treats “public” as distinct/new audiences and can rely on cumulative effect over time; one access can still count.
6. Assuming DRM circumvention is only “copyright infringement”: TPM bypass can trigger a separate liability layer for unlawful circumvention.
7. Treating any short excerpt as automatically infringing or automatically exempt: Infopaq/Pelham show that even small parts can be protected, but exceptions/quotation-like minimal uses may matter.

✅ Exam Checklist

1. Explain the three historical drivers of copyright’s emergence: economic (decline of patronage + independent creators), technical (printing + later recording), and legal (Roman law’s physical-property view).
2. Define intangible property and distinguish it from material property using non-rivalry and ubiquity as described in the course.
3. State the Berne Convention’s role as an international backbone: minimum standards, national treatment, and why coordination was needed for non-rival/ubiquitous works.
4. Apply Berne scope rules: copyright protects literary/artistic domain creations, protects expression not idea, and does not create a separate “scientific” category.
5. Use the “expression not idea” test with examples (Madonna and Child; Napoleon biographies; Edison lamp/patent contrast).
6. List the two requirements for copyright protection from the course: belonging to the literary/artistic/scientific domain and meeting originality.
7. Contrast originality approaches (skill/labor/judgment vs creativity/personal imprint vs “sweat of the brow”) and connect them to Feist’s rejection of labor alone.
8. Explain “whatever may be the mode or form of expression” and the “no test, no cost” model, including optional deposit as evidentiary only.
9. Describe fixation and its role as a permissible requirement in some systems, including the sandcastle example (photograph/film as fixation).
10. Apply the idea–expression dichotomy and merger doctrine, including conceptual art examples (Fountain/banana installation) and why overly broad protection would harm freedom of creation.
11. Under Berne art. 2(4)/Italian approach, state how official texts/administrative acts may be exempt and how modified versions can become protected.
12. Explain communication to the public as requiring an act plus a public distinct from the original audience (new public), and connect it to making available online.
13. Use Rafael Hoteles vs Del Corso to articulate how “new public” and cumulative effect can lead to different outcomes (hotel TV vs dentist background music).
14. State the general rule on hyperlinks (simple links to freely accessible content are not communication to a new public) and the conditions where linking can become unlawful (bypassing restrictions/paywalls).