Categoría: 'legal'
Copyright law is a set of rights belonging to authors and other rights owners (performers, producers, broadcasters …). Copyright laws provide procedures in cases of infringement of exclusive rights, protection of rights of remuneration, and, in some jurisdictions, provide moral rights. These laws offer protection to the holder of the copyright, whether the rights belong to the author, a third party, or holders of related rights.
In countries that have signed the main international copyright treaties, such as the Berne Convention, the registration in the national copyright services is voluntary. Enrollment in a public registry is not mandatory to acquire a copyright or to obtain the protection that laws grant to authors and other copyright holders. However, registration does serve to protect those rights, since they create a “iuris tantum”: rebuttable presumption of the existence of those declared rights.
Since international copyright treaties do not require formal requirements to protect the authorship and exploitation rights of works (which generally last for the creator’s lifespan plus 70 years), judges will assess all the evidence presented in case of conflict to resolve the competing rights, whether the evidence comes from public records or not.
Therefore, a private copyright registration has the same effctiveness and the advantage of offering evidence of authorship as public registration would in deterring plagiarism – in many cases free of charge – and has the advantage of generating the strongest technology based global evidence, immediately available and transparent online information, which facilitates interaction between rights holders and the users of the works.
If you want to know more about the Berne Convention you might visit this link:
http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works
Also you might be interested into reading some of the following articles:
Effectiveness in Spain (in Spanish): http://es.safecreative.net/2009/02/24/eficacia-juridica-y-probatoria-de-las-inscripciones-en-el-registro-de-safe-creative/
In Mexico (in Spanish): http://es.safecreative.net/2011/06/06/validez-como-prueba-del-registro-safe-creative-en-mexico/
In Argentina (in Spanish): http://es.safecreative.net/2011/05/16/%C2%BFes-posible-el-registro-de-obras-en-internet-validez-de-safecreative-en-argentina/
In the USA: http://en.safecreative.net/2009/04/06/legal-and-evidential-effectiveness-of-inscriptions-in-safe-creative%e2%80%99s-register/
Register your works in USCO with Safe Creative: http://en.safecreative.net/2011/06/07/register-your-works-in-the-u-s-copyright-office-from-safe-creative/
Text based in other by Juan Manuel Mielgo García from www.libargo.com with CC by-nc-sa license
Modified and translated by Mario Pena with CC by-nc-sa license
Here more information about rights: http://www.safecreative.org/work/1109270148319
September 27th, 2011
Mario Pena
What should we do if we find any our contents allegedly plagiarized or otherwise illegally used?
The first thing is to keep the cool. The worst thing we can do is to act impulsively or driven by anger. Take a deep breath, relax and wait 24 hours before doing anything. If you already have your work registered with Safe Creative, you have much of the way covered. That said there are several things you should do, but ultimately it all depends on the specific circumstances of each situation.
1 .- The ideal is to have a lawyer to advise you. This is the basic principle that we should always observe. While many times by one or another reason we do not have one, a good copyright lawyer, is the best guarantee for any initiative to succeed, avoid errors and waste time. However there are other factors to consider.
2 .- Evaluate the situation. Coldly analyze what do you want to happen. Do we want the content to be removed? Maybe to get some sort of compensation? Do we have been plagiarized by a large multinational or perhaps it’s been just a little blog that nearly nobody reads? Is it worth getting into legal disputes for a paragraph, or a complete ebook of us has been copied and is being sold out there without even proper attribution? We must respond these questions and from the answers we will know what to do next.
3 .- Friendly solution. This is something you really have to think about, but in most cases the plagiarism and in general any misuse happen becasue of a simple confusion or not malicious mistake, like the sheer ignorance that comes from the belief that what is on the Internet, for instance, is free to use in whatever way one might want. Many times you can solve everything with a friendly approach that saves troubles to all. Depending on the analysis of the situation we might try to prove a friendly approach to solve the problem. In a significant percentage of cases sending a friendly email to remove the content, properly credit or respect the creative commons license solves the problem. If despite this approach the issue is not settled, there are more things you can do. In the case you are sending emails to the alleged copyright infringer we suggest you to use our mailstamper service, to grab evidence of the outgoing communication.
4 .- Collect your evidence of authorship. If you haven’t already done so, download from Safe Creative (or from the online copyright registry you’re using) your registration certificate and the registered content. You might give this authorship to you lawyer. If your lawyer happens to need more technical information about the strength of the evidence, he or she might want to contact us. Our attorneys will be happy to provide any required documentation.
5 .- Collect proof of the alleged illegal use. Your attorney will take appropriate measures to ensure the evidence of the alleged offence doesn’t disappear. Usually this is something to do with a notary. Note that if you start a process and then the site that has allegedly plagiarized your work happens to “disappear” you might find yourself in the situation of not being able to show that your content has been illegally used. You can use our page.serialstamper.com service to record an evidence of the alleged infraction in the very web page where it occurs.
6 .- Send “cease and desist” letter. One option you have in our professional accounts, if you like to try in case it might work, is to send a “cease and desist” request letter from Safe Creative. Go to “My works” and to the drop-down “More Actions” on the right of the content, then select “Incidences” You will need the email address of the person who allegedly illegally used your content. Fill in the fields to send the letter. You can keep track of the incident and see if the person has agreed to your request or not.
7 .- Initiate legal action. If the delivery of the “cease and desist” request does not change the alleged plagiarist attitude or even if he or she does, you still can take legal action, yes, always advised and guided by a good lawyer.
Too often there are people who will not or can not afford a lawyer. If this is the case, and the letter of incidence has not taken effect, you might want to bring out the case -without defamation nor insult- using the tools the Internet gives you for the dissemination of information.
June 8th, 2010
Andy Ramos
Since it has become clear that copyrights on original and creative Works exist from the moment of their creation, as settled by the Berne Convention (article 5), Registers’ useness has been focused on a mere inscription where authors and rightholders declare their Rights. The goal is, therefore, to make a written record of a declaration of Rights before third parties, although, as mentioned before, this registration will not have formal effects (it does not generate nor recognise any right, it does only work as a recipient of the said declaration); in plain English, the main purpose of a Register is to be able to prove that one work was created before other, so as to give this work the originality upon which the law protects that work.
Inscriptions made in public Registers of Intellectual Property prove that at some point, someone registered a work in some place and declared the ownership of the Rights related to that work, which gives this registration an “iuris tantum” legal effectiveness, as it may be countered by an opposite proof (a third person could prove somehow his work was created sometime earlier). This is applicable for all kind of Copyright Registers, which is one of the elements that distinguishes Intellectual Property from Industrial Property (patents, trademarks, designs…), where the inscription in the relevant Register after having satisfied the administrative procedure is actually what makes the rights exist.
The assessment/value of the inscriptions in a judicial procedure
Everything that has been said before does not diminish the importance and value of the Copyright Registers. If, at some point, someone pretends to refute the authorship and those Rights related to that condition, or in case we are facing a plagiarism or any unauthorized use of a work, the inscription shall be very useful during a judicial procedure, as it can be used as a valid proof. In such cases, joining that declaration from the register to the demand itself would be enough to prove the Rights and the authorship.
This representation made by public registers, will be taken as a public document before any kind of jurisdiction (criminal, civil or administrative), giving the declaration complete evidential effects.
In the U.S., the Federal Rules of Evidence establish how the facts have to be proven by the parties in the federal courts and in some state courts. Under these rules, all relevant evidences are admissible by the court, defining “relevant evidence” as all evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence (Rule 401).
In the U.S. legal system, authentication of these private documents is a key issue, establishing Rule 901 that this requirement is satisfied when the evidence is able to support a finding that the matter in question is what its proponent claims. Some Safe Creative’s users are quite concerned about the validity of SC’s Registry in their jurisdiction, giving the fact that SC is a company legally established in Spain (Europe). The Federal Rules of Evidence, and in general almost all jurisdictions, admits or declare valid those documents that are proven sufficient to demonstrate the existence of a fact.
Safe Creative’s Copyright Registry
In this regard, Safe Creative is a private Register of digital contents where users can register their Works, establishing a proof of their authorship and copyrights. In accordance with the service’s terms and conditions, the user agrees to deposit her works and Safe Creative agrees to watch over the contents and informations according to the established conditions, publishing and allowing access to that information to any third person, but not being able to make any exploitation of such in prejudice of user’s rights and interests. In practical terms, Safe Creative becomes a third person who, through computing procedures, stores the content provided by users, allowing to register the mentioned information and the time they were stated.
The goal of this system is, just as in public copyright registers or in a escrow agreement made by a notary public, to have a valid evidence in order to prove a plagiarism or an unlawful use of a work. Safe Creative’s systems are based on strong technologies that encrypt contents uploaded by its users, adding some timestamps capable of proving the date of the registration, which form a solid structure that can be used in a court to prove the existence of a work before other of a potential infringer.
In addition, this service has the advantage that it is free, accessible through the Internet, global and neutral, and it allows to establish and record the right policy or licence of use defined previously by the user. Having this done, and for instance in the case of Copyleft licences, Safe Creative will incorporate the user’s declaration of will regarding the permitted uses of the work, which constitutes a guaranty before third’s use of the content according to those conditions.
Safe Creative can issue digital certificates based on the register’s data, regarding the date of the inscription, the author or authors and exploitation rightsholders, as much as regarding it’s content and pre-established use policy. Those certificates are free and double-signed digitally by the issuer, that is, Safe Creative.
In conclusion, authors who register their work in Safe Creative’s Registry have a valid way to prove that some content was created in a certain date, having a certificate issued by a company that has implemented in its systems technologies that are able to prove such statement.
April 6th, 2009
Andy Ramos
Copyright protects original and creative works of art, and other kind of contents that surround creation, like phonograms, audiovisual recordings, performances, etc. The legal protection for this protection differ worldwide; however, we are able to categorize it in two basic rights: exploitation rights and moral rights.
Exploitation rights are those that provide incomes to an author by granting her the exclusive control on her works, who has the right to prevent the reproduction, distribution, public performance, or transmission of her works of authorship. Those rights are granted by law often to the author or creator of the work (in an employer-employee relationship, the owner might be the employer, depending on the jurisdiction), with a term of protection which differs from one country to another (the life of the author and fifty years after his death, according to the Berne Convention, although most countries have adopted the life plus seventy years formula), although these rights can be assigned to others by license or transferred by contract.
However, legislators around the globe have introduced certain exceptions to those exclusive rights, limitation that diverge from one country to another. In the U.S., the Copyright Act establishes some exceptions, including for libraries, archives and schools that allows them to reproduce certain works in specific conditions, or other that permits the parody of the work, while most countries in Europe have accepted other exceptions for reporting current events, citing or private copying.
In some countries, specially in Europe, there are also the so called remuneration rights, which guarantee authors some revenues for the actual exploitation of the works. Some examples are the “droit de suite”, which is the right of the author to receive a fee from the resale of an artwork by a dealer or another buyer and is valid almost worldwide, or the infamous “private copying levy”, that is specially popular in central Europe.
The second category of rights are the moral rights or “droit moral”, whose nature and scope differ in each country, that the Berne Convention (the international treaty that has regulated intellectual property rights for over 100 years) defines as follows: “the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation”.
Accordingly, and thanks to these moral rights, certain rightholders (especially individual creators) can oblige others to respect the authorship of a work, and stop its distortion, mutilation and any other modification that affects its integrity. But, why does this right exist? Many European countries consider that when an author creates, she fixes her personality in the work, and that fixation of her spirit should be protected against any external intromission.
Berne Convention’ contracting parties, however, do not cover these rights in the same fashion, with countries like France, Germany or Spain, where moral rights are strongly protected, and other like the U.S. whose protection is minimal and only covers certain type of works. The U.S. scheme is frequently used as an example of a country where moral rights does not exist, which is not totally correct because certain moral rights are recognized to visual artists (painting, drawings, prints, sculptures and still photographic images) according to 1990 Visual Artists Rights Act. Notwithstanding this, waiver is allowed.
The duration of these moral rights is not the same in every country; in some nations like Spain, they are unlimited on time, while others like the U.S. protects them only during the natural life of the author. However, most of the countries prohibit the transfer of these rights because they affect the personality of the creator, and that cannot be claimed by any third party.
Safe Creative, as a global copyright registry, is potentially compatible with every legal system, allowing authors to register and protect their works. In this scenario, authors will retain their moral rights according to the applicable law and, for economic rights, their will is granted by the corresponding license.
By Andy Ramos and Javier Prenafeta
November 19th, 2008