Copyright enforcement puzzles

BY LUIS C. SCHMIDT
PARTNER
COPYRIGHT WORLD ISSUE #180, MAY 2008
Copyright enforcement is a puzzle that has troubled governments around the world. It does not exhaust or terminate just by the fact that rights are recognized in a given jurisdiction or that courts have the willingness to enforce them.
Creating rules to stop or deter infringement has been as challenging as enforcing copyright rights themselves. The truth is that enforcement will never be possible if the drafting of statutes or resolution is weak. Poorly drafted laws or decisions may lead governments to greater enforcement difficulties. Legislators need always consider that efficient legal writing requires a good understanding of copyright law as well as the use of an adequate technical terminology.

PUZZLE I

The law should be drafted by following copyright fundamentals. Legislators need to know the principles associated with their legislative project or target and the international framework on which they stand. The purpose is keeping a balanced system of rights among authors, producers and users of works, in benefit of society as the recipient of cultural products.

PUZZLE II

Copyright terminology is a mixture of technical and artistic words that can be difficult to digest for those unfamiliar with this field of law. Ignoring the copyright language or utilizing it inadequately can result in laws that cannot be enforced. Certainly, copyright experts are required to participate in the process of legal drafting, in order to avoid possible flaws and to ensure that laws are rendered as enforceable. For example, infringement of economic rights can trigger when copyrightable works are utilized by virtue of technologies that facilitate or enable the works’ reproduction, distribution, public performance or transformation. The manner that technologies have impacted the utilization of works has driven governments to find legal solutions against copyright infringement. However, only legislators worried about terminology and concerned about legal drafting rules have produced statutes that courts can enforce to protect copyright rights.

PUZZLE III

Legislators need also employ accurate general copyright language. A common mistake has been to identify “patrimonial” and “commercial” as synomym expressions. According with international treaties and doctrine, patrimonial or economic rights represent a main column of copyright law, together with moral rights, in a number of jurisdiction. In a vast majority of copyright systems in the world, rights to use a work-of-authorship are patrimonial assets of economic value. In keeping with this, authors can rightfully authorize third parties to place the original or copies of their works in the stream of commerce. In principle, copyright laws need to provide sanctions against infringement deriving from the use of works in commerce or made for the purpose of gain. However, the scope of copyright infringement should be broad enough to provide sanctions when use has been made for a profit or not.

PUZZLE IV

Sometimes legislators have had trouble to distinguish when copyright holders can license the use of works setting royalties or doing it for free; obtain remuneration from the user of a work without being able to impose any controls or restrictions on use; or make free use of a work, without the need of authorization or remuneration. Copyright laws need to be clear and precise enough to deal with these formulae so that rules can be applied smoothly and efficiently.

PUZZLE V

Legislators should regard contributory infringement as a copyright misconduct not necessarily restricted to situations when third parties offer or supply tangible means to a direct infringer. Infringement by intermediaries has a special connotation and importance, in particular when somebody induces or assist the infringer to violate the law. Certainly, contributory infringement should be balanced with a system of safe harbors.