Intellectual Property law- Lecture notes

Law of Intellectual
Property
INTELLECTUAL
PROPERTY RIGHTS IN
GENERAL

Introduction to Intellectual Property Rights
Definition and classification
 Intellectual property is an elusive concept to define.
 No authoritative definition exist
Because
1. the conceptualization of IPRs has been influenced and shaped by different theories and
legal traditions
2. Its concept has been continuously evolving and the purpose it serves has been changing
progressively
3.With rapid technology and scientific development, its subject matter expanded to include
computer program, data basis, plants , animals, cells and genes.

Property
Tangible Intangible
Movable immovable
industrial
copy right

It is known that intellectual property rights are property rights. On top of this, they are the domain
of properties.
 intellectual implies, this domain is composed of the fruits of human intellect. In view of the
extent of the required magnitude of ―intellectual labor instead of ―physical labor in the
production of
In its conception Intellectual property, very broadly, means the legal property which results from
intellectual activity in the industrial, scientific and artistic fields.
Intellectual property law is a branch of the law which protect some of the finer manifestations of
human achievements.
 intellectual property law regulates the creation, use and exploitation of mental and creative labor.
Intellectual property right is
i) can be treated as property
ii) to control particular use
iii) of for specific type of intangible assets
 IP is also a law which defines the property rights of owner of intangible assets
Countries have laws to protect intellectual property for two main reasons.
1. to give statutory expression to the moral and economic rights of creators in their creations and
such rights of the public in access to those creations.
2. to promote, as a deliberate act of government policy, creativity and the dissemination and
application of its results and to encourage fair trading which would contribute to economic and
social development

Intellectual property as property protection
Similarities and differences b/n IP and GP
1. Similar Doctrine –they tries to reconcile private Vs public interest tension.
2. There are bundles of judicially protected interest; those are uses, fructose, disposes'
3. There is owner ship
4.both are a source of wealth.
5.They need envestment
Difference
IP
• Intangible
• Statutory origin
• Specific duration
• Considered as public goods
• The Goal is not conservation/ It is there for promotion
• Intangible
• Statutory origin
• Specific duration
• Considered as public goods
• The Goal is not conservation/ It is there for promotion
TP
• Tangible
• Common law origin
• Perpetual duration
• Considered as private goods
• Conservation –since resource is limited

• IP
• Moral right – incorporation of other right
than monitory interest
• The use or reproduction by one does not
deprived other .
TP
• No moral right
• Use by one does deprived other
Classification of intellectual property
There is a conventional mode of classification of intellectual property as industrial property
and copyrights.
In other word Conventionally IPRs are divided in to industrial property right and literary and
artistic works
Industrial properties include inventions (patent), property interest on minor invention (Utility
model certificate) and commercial interests (trade marks, trade names, geographical
indications, and industrial design), plant breeder rights, biodiversity, etc.
literary and artistic works includes literary works (fiction and non fiction), artistic works,
maps, drawings, photography and audio visual works.

Nature of Intellectual Property
• Intellectual properties have their own peculiar features.
1. Territorial
• Any intellectual property issued should be resolved by national laws. Why is it an issue? Because
intellectual property rights have one characteristic which other national rights do not have. In ownership
of intellectual property of immovable properties, issues of cross borders are not probable. But in
intellectual properties, it is common. A film made in Hollywood can be seen in other countries. The
market is not only the local one but also international. If a design in China is imitated by another person
in France which law would be applicable?
2. Giving an exclusive right to the owner
• It means others, who are not owners, are prohibited from using the right. Most intellectual property
rights cannot be implemented in practice as soon as the owner got exclusive rights. Most of them need
to be tested by some public laws. The creator or author of an intellectual property enjoys rights inherent
in his work to the exclusion of anybody else.
3. Assignable
• Since they are rights, they can obviously be assigned (licensed). It is possible to put a dichotomy between
intellectual property rights and the material object in which the work is embodied. Intellectual property
can be bought, sold, or licensed or hired or attached.
4. Independence
• Different intellectual property rights subsist in the same kind of object. Most intellectual property rights
are likely to be embodied in objects.
5. Subject to Public Policy
• They are vulnerable to the deep embodiment of public policy. Intellectual property attempts to preserve
and find adequate reconciliation between two competing interests. On the one hand, the intellectual
property rights holders require adequate remuneration and on the other hand, consumers try to consume
works without much inconvenience. Is limitation unique for intellectual property?

6. Divisible (Fragmentation)
• Several persons may have legally protected interests evolved from a single original work without affecting
the interest of other right holders on that same item. ABecause of the nature of indivisibility, intellectual
property is an inexhaustible resource. This nature of intellectual property derives from intellectual
property‘s territorial nature. For example, an inventor who registered his invention in Ethiopia can use the
patent himself in Ethiopia and License it in Germany and assign it in France. Also, copyright is made up of
different rights. Those rights may be divided into different persons: publishers, adaptors, translators, etc.
• Theories of Intellectual Property (Justifications for Intellectual Property Protection)
1 Natural Right theory: Labor Theory (Locke’s Theory)
• Property right is a natural right. A person has a right to own the creation of his mind in the same manner
he owns creation of his labor. When a person is deprived of what he has created he becomes.
• At the beginning, everything was common but by using labor /intellect/ it has become private. We need to
protect somebody‘s labor because it is a natural right. So, it may take to conclude that intellectual property
rights are natural rights.
• The problem is that natural right theory doesn‘t cope with the temporal limitation of intellectual property
rights. It is true that temporal limitation is applicable to intellectual property. Intellectual property is most of
the time limited in time as to the protection accorded by law. This theory may be justifiable for corporeal
ownership in which its existence may be for indefinite period of time. In intellectual property, however,
after lapse of a certain time the work will be part of the public domainNothing can be called with greater
prosperity man‘s property than the fruits of his labor. The property in any article or reason of his own
mechanical labor is never denied him; the labor of his mind is no less worth of the protection of the law
• A person has a natural right to the fruits of his/her labor and that this should be recognized as her property,
whether in tangible or intangible term.

2. Personality Theory
• Intellectual property rights are important to create personal self assertion. As propounded by
Hegel, a person would be more self assertive when she/he owns property. He will feel more
equal (equality). He will be freer. It is believed that the work is the personal expression of the
author‘s or the inventor‘s thoughts.
• So he should be given the right to decide when and how his work may be produced or performed
in public, and the right to prevent mutilations and changes. Intellectual property laws are to be
there to protect the author‘s or the inventor‘s manifestation of his personality. This is also
backed by the need for the safeguarding of the individual‘s freedom of expression
3. Utilitarian Theory
• What do Intellectual Property Rights do? They make the public good a private, a non rivalorous
– rivalorous and the non-exclusive – exclusive, and the non-scarce scarce which are not scarce
by nature.
• The laws create artificial scarcity of knowledge. This is because creators do not have the
necessary incentive unless they have accorded some means to control their knowledge. Unless
this is done, they lack the necessary economic incentive. This is called utilitarian theory of
intellectual property.
• Utilitarian is institution socially beneficial. It states that we have intellectual property systems
because it has the effect on the betterment /economic/ of the society. Its correctness is to be
assessed in the economic success of the countries. So, it is more of an economic issue. We have
witnessed tremendous technological advancements both in the science and the arts.

• According to this theory, you do something because you will get something. Why should we care
about creations of society? Society should care about its creators because the ultimate beneficiary
is the society itself because they give solution to technical problems.
• Such theory has never been successful as we would expect them to be. There is an objection from
economists. When intellectual property is given exclusive rights, according to them, it is a creation
of a monopoly right. Monopoly is contradistinguished with a perfectly competitive market. If
monopoly is unrestricted it will result in market crush. How does intellectual property right create
monopoly? How do antitrust organizations fight monopoly?
• There are arguments counterfeiting this. Whenever the law gives an exclusive right to the
innovator, the right holder is not enabled to control the problem. There are so many ways of
resolving a problem. That means there is no intellectual property law which prohibits other
innovators from innovating a solution to the same problem. This is not sound in copyrights since
they protect expression of ideas .
• Patent for a drug for a certain illness does not prohibit innovating another drug for the same
illness. However, each monopolizes their right until another comes. So, the monopolistic nature is
undeniable. That is why governments try to control such monopolization.
• There is a counter argument to this, i.e., if we end up in giving different solutions to the same
problem, it will result in economic waste since there are different problems which we have to give
solutions to.
• The other version of utilitarian theory is incentive (bargain) theory. The protection given to
intellectual property is an incentive to individuals not only to create works of the mind but also to
publicize and disseminate them into the public. It is to encourage creativity and publicity. Works of
the mind are very important to a given society for its social, cultural and economic development.

• Through literature development, the cultural orientation of a given country will be promoted.
Invention promotes industrialization. Development of the west has to do much with intellectual
creativity.
• Those works require investment in terms of time, money and effort. So without protection people will
not invest on them. They are no less investment demanding than corporeal thing and the protection of
the law is needed.
In addition, creativity by itself is not adequate. If the work of a mind is not made available to the
public, that is not useful. With protection publicity will be encouraged thereby enabling their publicity
and serve their intended purpose.
Upon the expiry of their period of protection the public will start to use the properties. When right is
protected then the creator will make his work to be known. Without protection people may not make
their works known. The state is bargaining with individuals.
• The other question is: does the theory really work? Numerous assertions are made. There are factors
other than intellectual property rights which stimulate innovation.
• Before the existence of intellectual property rights there were innovations. Some say, even great works
of the mind are created without the existence of protection. As an example, we can take Shakespeare‘s
writings. What incentives encouraged these people? What they are saying is there are born creators,
who continue creating even without protection. People create for different reasons: to satisfy their
natural urge, necessity, fame… Some writers say copyright is unnecessary restriction on the public
favor of the author. For them, when there is shortage, a better system is needed and creativity follows
even without legal protection.
• However, the critics must be seen seriously in light of the world‘s development. In older days, people
may write books because violation itself is very difficult, there were no printing machines, no
mechanism of dissemination, no recording machines for reproduction and distribution.
• In history, works of the literature were even limited to certain groups, elites of the church. These days,
however, the situation the changed. The critics on incentive theory will not work firmly today.

Objections to incentive and reward theory may be summarized as:
• The need to pay the rights owner a royalty or fee may increase the price of the product or service
to which intellectual property right relates. It can be seen as a kind of tax on knowledge and
information.
• Even if consumers are prepared to pay the prices charged by the right owners, the latter may not
meet the demands of the public in sufficient quantities. This will lead to compulsory license.
• The grant of rights has little positive effect in promoting investment that is required for the
production of new inventions, technical innovation, literary and artistic productions and the like.
• Whilst no monopolies in the strict sense are applied by economists, intellectual property rights
have the potential to be used to anti-competitive effect, particularly where they are pooled
together or used as a lever to obtain other ends.
• Intellectual property rights can be used to suppress free speech and access to information.
• Regarding issues related to intellectual property rights, we have attached the following different
materials written by different scholars. Please read them critically.

Introduction to international intellectual property
treaties
1. Paris Convention -1883
2. Bern Convention – 1886
3. Rome Convention – 1961
4. TRIPs Agreement - 1995

1. The Paris Convention (1883)
The Paris Convention for the protection of industrial property rights
The 1873 Vienna international exhibition is considered the original source of the first
multilateral IPR regime in the area of industrial property rights.
Lack of protection for the works to be displayed at the exhibition and demanded protection (by
U.S and some European countries) resulting in the Austro-Hungarian government putting in place
a temporary IPR protection for foreign products to be displayed at he exhibition
Austro- Hungarian together with USA took initiative to sponsor an international congress on
legal protection for intellectual works in 1873.
This was followed by a series of conferences in Paris in 1878, 1880 and finally in 1883 during
which a diplomatic conference adopted it.
 An interpretive agreement, the Madrid protocol was later signed in 1891.
Paris convention revised six times
 Brussels -1900 – Belgium
Washington -1911- US
Hague- 1925
London -1934 -
Lisbon – 1958 -Portugal
Stockholm -1967 - Sweden
 The Paris Convention deals with inventions, trademarks, industrial designs, appellations of
origins, and repression of unfair competition.
Important Principles under the convention

 National treatment (Article 2)
A member should accorded to nationals of other members the same treatment with regards to
protection of IPRs as those accorded to its own nationals.
Right to property (Art. 4)
Filing of an application for protection in one member country gives rise to a right of priority
over third parties with respect to use and corresponding applications filed in another member
within the priority period.
At present the patent system at WIPO has TWO components: the Paris convention which deals
with the substantive standards and the patent cooperative treaty (PCT) which deals procedural
aspects. (1997 in Washington)
In 2000, the Patent Law Treaty (PLT) was adopted with the objective to facilitate compliance with
patent formalities at the international level, complementing the patent cooperative treaty (PCT).
2. The Bern convention (1886) (Switzerland)
The Bern convention for protection of literary and artistic works
The Bern convention establish
national treatment,
determining minimum protection for author and
 ensured automatic protection (protection with out any formality including registration as a
precondition for the enjoyment of rights )
Enshrined the principle of independence of protection (enjoyment and exercise of rights is
independent of the existence of such protection in the country of origin of the work) Art. 5 (2)

Article 2 of the convention gives a list of works eligible for protection which covers all literary,
artistic and scientific works
The convention provides a minimum protection for the work of the life time of the author plus
50 years but article 9(2) provides free use of protected work in certain cases.
 in December 1996, a diplomatic conference was held, which conclude the newest international
protecting copy right, the WIPO copy right treaty (WCT)
These treaty responded to the need to protect works when transmitted by digital means,
including via the internet.
The subject matter protected through copy right in WCT includes computer programs, whatever
maybe the mode or form of their expression, and complication of Data or other material
(database) in any form, which by any reason of the selection or arrangement of their content
constitute intellectual selections.
•The Paris and Bern conventions lack strict rules of enforcement and dispute settlement
mechanisms.
•Members have also significant discretion to design their IP governance through legislation.
•(at least 23 conventions are currently Administered by WIPO)
3. The Rome Convention (1961)
oThe international convention for protection of performers, producers of phonograms and
broadcasting organizations.
•The end of nineteenth century and the beginning of 20th
century saw the emergence of new
technologies with significant impact on the dissemination of authors work through sound
recording, films and broadcasting to a large cross boarder audiences.

• The end of nineteenth century and the beginning of 20th
century saw the emergence of new
technologies with significant impact on the dissemination of authors work through sound
recording, films and broadcasting to a large cross boarder audiences.
• Authors demanded to control the use of their works with in emerging technologies while sound
recording and film industries, broadcasting institutions and performers sought to protect their
own productions and performances.
• Two issues arose: authors rights in respect of the use of their works through the new
technologies; and separate protection from authors’ rights of sound recordings, films and broad
castings.
Those rights known as related rights or neighboring rights.
Related rights or neighboring rights, as their name indicates, are rights closely related to copy
right.
Ordinarily this include the right of performers, producers of phonograms and broadcasting
organizations
• While ordinarily these rights are the means of disseminating copy right works with modern
technology, essentially what is protected is the added substantial creativity, technical or
organizational skill to disseminating the work to the public.
The Rome convention provides protection for performers, phonogram producers and broad
casting organizations .
Performers are defined as actors, singers, musicians, dancers and persons who act, sing, deliver,
declaim, play in or other wise perform literary and artistic works.

Phonogram is defined as : any exclusive aural fixation of sounds of a performance or other
sounds and producer of phonograms means the person who, or the legal entity which, first fixes
the sound of a performance or other sound.
Broad casting is defined as: the transmission by wireless means for public reception of sound or
of images and sounds and rebroadcasting means the simultaneous broad casting by one
broadcasting organization of the broadcast of another broadcasting organization.
The property right of a performer corresponds to those of copyright owner.
 a song writer or composer owns copy right of the song used in the performance; the performer
has right over the performance and the recording company has rights over the sound recording.
 Art 2(1) provides national treatment.
4.The TRIPS Agreement (1994)- Marrakash
 The agreement on Trade Related Aspects of intellectual property right.
The TRIPS agreement define IPRS in terms of categories .
Part II
Section 1: copy right and related rights
Section 2: trade marks
Section 3: Geographical indication
Section 4: industrial designs
Section 5: Patents
Section 6: layout design of integrated circuits

Section 7: undisclosed information
 The TRIPS agreement has brought paradigm shift in international harmonization of IPRs
1st
it has integrated IPRs in to trade.
2nd
in addition to incorporating different IP standard, it has crated not only new rights in relation
to the existing IP
•But also new IPRs which were not the subject of any prior international agreement.
e.g. rental right for computer programs and cinematographic works
3rd
it is the first IP treaty to prescribe significant minimum standards to be implemented directly at
the national level
 4th
detail rules on enforcement
Intellectual property and developing countries
 Intellectual property (IP) is important for the future of developing countries, but the
implementation of IP systems in developing countries has been ungainly and, in many cases,
ineffective.
 If we are to move forward, we need to posit a framework for IP and development that is both
acceptable and workable to people in developing countries.
The long-term failure of the international community to produce an approach to IP laws that
promotes development in developing countries has eroded the trust and confidence that such
countries have in the international IP system.

 The adoption of the Development Agenda in 2007 at WIPO has provided new hope for
developing countries. However, this program will amount to little more than mere words on paper
if it cannot achieve real operational outcomes
The general long-term objective of ‘developing countries’ is to establish a sound economic base.
This requires agricultural self-sufficiency and the stimulation and maintenance of commercial
and industrial activities.
IP and Social and Economic Development
Scholars working in the field of IP have differing views on the relationship between IP and
development. Some hold the view that development will be promoted through the introduction of
IP systems in developing countries, whilst others are doubtful as to whether such systems are
sufficient to support development.
Theories on development originally formulated in the 1950s and 1960s suggest that a system of
IP protection is a necessary part of the evolution of states from being ‘underdeveloped’ to
becoming ‘developed’.
Introducing IP systems into developing countries without fulfilling the basic needs of those
countries will limit the effect of these laws and their contribution to society.
It is not enough simply to enact IP laws in developing countries; rather, these laws must also be
integrated into their national development strategies and policies
Some scholars believe that development can only be attained through the application of a human
rights-based approach to IP. Such an approach requires the facilitation and promotion of
scientific progress in a manner that benefits members of society on an individual level, as well as
on a corporate level.

Implicit in such an approach is a right of access to the benefits of science and a right of
protection from the potentially harmful effects of scientific and technological inventions.
Other scholars argue that IP by itself is not an answer to the problems of developing countries
and that several other issues must be addressed if development is to be achieved.
WIPO has also noted that it is not enough to have IP laws to achieve development, but there is a
need to integrate these laws into the national policies of developing countries.
Professor Ruth Okediji states that IP protection has not enhanced the social welfare of
developing countries, as it has done for developed countries, because developing countries do
not share the same history, culture, political organizations, and legal institutions as that of
developed countries
Many scholars and international organizations are critical of the failure of the international IP
system to assist developing countries and argue that it needs to be changed to meet the
development ambitions and objectives of these countries.
The desire of the international community to reach a consensus on international IP is not a new
phenomenon.
The first contact between developing countries and the global IP system occurred at the end of
the nineteenth century, when developed countries adopted the first multilateral agreements,
although new developing countries were also signatories to these treaties.
• Developing countries began to question the suitability of the international IP system to meet
their needs and to request specific adjustments to the two main treaties, the Paris Convention
and the Berne Convention.

The Paris Convention of 1883
Few developing countries were among the original signatories to the Convention, which
included Brazil, Ecuador, Guatemala, El Salvador, and Tunisia.
The vast majority of developing countries have adopted the Paris Convention through
colonization and the transplanting of European IP laws to their domestic laws as colonial powers
imposed their IP laws on those countries
The transplanting of European IP laws to developing countries was considered a civilized act
and a precondition for their progress from being ‘underdeveloped’ to becoming ‘developed’
•Revisions of the Paris Convention
the 1st
attempt to challenge the international intellectual property regime to failing to meet the
development needs of poor countries made in 1961
The government of Brazil, an original signatory to the Paris Convention, raised the question, in
1961, of the effects of patents on the economies of developing countries.
At the General Assembly of the UN, upon the call of Brazil, Resolution No. 1713 (XVI) was
issued on 19 December 1961, asking the Secretary-General of the UN, in consultation with
appropriate international and national institutions, to prepare a report on ‘the effects of patents on
the economy of underdeveloped countries’ and ‘recommend on the advisability of holding an
international conference in developing countries’ in connection with that matter.
The UN Department of Economic and Social Affairs (DESA) published the Report in 1964
under the title The Role of Patents in the Transfer of Technology to Developing Countries
It concluded that there was no urgent need to hold a conference to review the Paris Convention
for the purpose of addressing the special needs of developing countries, as capacity-building
effort at the domestic level was considered to be more important than the reform of the
international IP system.

Brazil was not satisfied with the conclusion reached and took up the matter in several other
forums and conferences
•In 1970, developing countries achieved a UN General Assembly Resolution on an ‘International
Development Strategy for the Second UN Development Decade’, which included a call for a
program to promote technology transfers from industrialized countries to developing countries
•Developing countries also called for an International Code of Conduct on the Transfer of
Technology because they felt that multinational corporations (MNCs) abused the power given to
them by national patent laws, as they demanded high prices from recipients in developing
countries and, as a result, constituted a barrier to their economic development
•Led by Latin American states (Brazil, Mexico, and the Andean Pact countries) and India,
developing countries called for a revision of the Paris Convention to balance patent holders’
rights with the public interest and the broader needs of economic development. They sought to
weaken the IP protection standards of the Convention by incorporating tough sanctions against
patent holders who abused their monopoly privileges
•One of the key revisions of the Paris Convention requested by developing countries related to art
5 (A, B, C, D) and particularly art 5A. Developing countries have asked for the exclusion of art 5
from the Convention because it does not regulate the question of protection of industrial property,
only the protection of the imported goods, which is outside the Convention and under the
jurisdiction of national legislation and international agreements.
Developing countries wanted also to revise, in particular, art 5A in relation to compulsory
licensing, so that it should be applied only in their case and without any time limitation.
In short, developing countries wanted to ‘reshape the notions of local-working, remedies to
abuses and the relationship between compulsory forfeiture or revocation of patents’ in the Paris
Convention.

• All the attempts by developing countries to revise the Paris Convention and change the
international patent system in Geneva, Nairobi, and again at Geneva between 1980 and 1983
were unsuccessful because developed countries, particularly the US, were against any
undermining of the international patent system.
Berne Convention of 1886
The Berne Convention has witnessed the real confrontation between developed and developing
countries in relation to how the international copyright system should be structured.
The Convention was signed by Belgium, France, Germany, Great Britain, Haiti, Italy, Liberia,
Spain, Switzerland, and Tunisia on 9 September 1886 and became effective on 5 December
1887
 From its inception, the membership of the Convention has comprised countries that were at
widely different stages in their economic development.
Only very few developing countries were among the original signatories of the Berne
Convention, and these include Tunisia and Haiti.
 It provides that ‘the provisions of this Convention shall not preclude the making of a claim to
the benefit of any greater protection which may be granted by legislation in a country of the
Union’.
This means that if European power (France, Great Britain, Belgium, Italy, and Spain) has
adopted a stronger copyright law, the citizens of the other country who are a party to the
Convention could request protection under such law.
Revisions of the Berne Convention
• Developing countries were not satisfied with the international copyright system and therefore
argued that the Berne Convention should be revised in order to take into consideration their
developmental interests and local conditions.

•On 14 November 1960, at the 11th
General Conference of UNESCO, India emerged as a
prominent advocate of the interests of developing countries in the context of copyright.
A series of conferences preparatory to the revisions of the Berne Convention were concluded in
a number of developing countries to provide specific recommendations for the improvement of
the Berne Convention and the international copyright system.
Among these, the African Study Conference on copyright organized a conference held jointly by
UNESCO and BIRPI (later WIPO) in Brazzaville (the capital of Congo) on August 1963
The purpose of the meeting was to assist the new African countries to formulate appropriate
principles for drafting their own copyright laws.
The meeting called for a review of art 7 (reduced term of protection) and art 20 (enable making
of bilateral agreements in promoting exchanges in derogation of the text) of the original Berne
Convention to be more compatible with the interests of developing countries.
The Brazzaville meeting described the international copyright conventions in their present form
as biased toward the interests of exporters of intellectual works and requested their re-
examination in the light of the specific needs of African countries and developing countries.
The recommendations of the Brazzaville meeting were met with significant opposition, and the
issues raised therein proved a discordant topic between developed and developing countries
In January 1967, and echoing the concerns of the Brazzaville meetings, a seminar was held in
New Delhi, India, to discuss a potential draft model copyright law for developing countries, in
addition to discussing proposals for the Berne revision

•Developing Country Concerns and the Intellectual Property Debate Despite the importance of
intellectual property to promoting economic growth and development, many developing
countries are concerned about how stronger protection will affect their interests.
•They fear that stronger protection will drive up prices and permit foreign interests to capture the
economic benefit of indigenous knowledge or biological resources.
•INTELLECTUAL PROPERTY AND PRICES
The greatest obstacle to enacting stronger intellectual property laws is the fear that adopting
intellectual property protection will increase prices, particularly for medicines.
Compared with older technology, new products may indeed be more expensive, whether or not
they are patented. It does not follow, however, that introducing patent protection will cause an
increase in prices.
•INDIGENOUS KNOWLEDGE AND NATURAL RESOURCES
Another objection sometimes raised is that developed-country interests might use the
intellectual property system to deprive a developing country of the economic benefits of its own
resources. Developing countries are particularly concerned about practices such as
“bioprospecting,” by which foreign interests obtain samples of biological materials that they use
to generate patentable products, and about patents for inventions that build on indigenous
knowledge.
•Fueling interest in this subject are reports of foreign patents being issued for naturally occurring
products to cure diseases, uses that are well-known in the developing country. The biggest worry
is that a patent will prevent people from continuing to make use of technology that has been part
of their culture for centuries, a situation unlikely to occur by virtue of a foreign patent because
patents apply only in the country where they are granted

CHAPTER TWO
Copy Right and Neighboring
right

Applicable Ethiopian law and
International Agreement
• Proclamation No 410/2004 copy right and neighboring rights protection proclamation
• Civil code of Ethiopia (1960) (articles 1947-1674, 2027-2178, 2672-2679)
• Criminal code of Ethiopia (2004) (article 721)
• The Bern (Switzerland) convention for the protection of Literary and Artistic Works (1886)
• The convention for protection of performers , producers of phonograms and broadcasting
organizations (Rome convention 1961)
• The TRIPs agreement (1995) (Articles 9-14)
• The WIPO copy right treaty (1996)
Objective of the chapter
• Explain the basic features of copyright;
• Identify the justifications for copyright protection;
• Discuss authors rights and their limitations;
• Explain the nature of neighboring rights;
• Distinguish neighboring right from copyright;
• Explain the scope of neighboring right.

• Copy right
After completing this chapter, the student will be able to:
• Define copyright
• Explain the reasons why copyright should be protected;
• Identify the proper subject matters of copyright law
• Distinguish the legal requirements for copyright protection;
• Identify the excluded works.
• Over view of copy right industry in Ethiopia
The history of literature in Ethiopia highly related with introduction and development of
Orthodox Christianity from abroad in fourth century.
Even though Ethiopia had its own Sabian scripts by which engravings were made on stones,
there are evidences that formal writing started after the acceptance of Christianity.
• Hence the New testament and the old testament were translated from Syrian language to Geez
language (the then government language)
• The unique characteristics of the then translators was the deliberate omission of their name for
the reason of modesty.
• In addition serving the religion considered as public domain

• Because of this one Ethiopian scholar has stated that there is no country like Ethiopia on which
religion had put strong influence on literature.
• This situation had given the freedom to the upcoming translators and writers to use freely the
anonymous or pseudonymous or works bearing the name of the author, and as a result the
indigenous concept of copy right could not easily develop out of this situation for along time.
• The ancient development of art in Ethiopia is also mainly attached to painting and drawings in
churches and monasteries which were considered as public domain.
• The other important point that may be raised to contributing factor in connection with the
absence of any restrictions on the use of literary and artistic works of others in ancient Ethiopia
is , may be the absence of economic value of the creation of minds.
• The issue is also similar with that of Music.
Ethiopia is reach in its own melody and reteam of music. Tizita, Anchi hoye, Bati and Ambasel
are Ethiopian original music style with no name of creators or inventors.
There are a lot of songs attributed to the public domain.
Being a musician was not considered as respected professional.
• Even introduction of the printing machine in 1906 could not be a land mark for the development
of literary work in Ethiopia.
• The establishment of Brehanina selam in 1921 had its own impact on literary work expansion.
• These all leads the need of recognition of authors work

• With increasing in production of news papers magazines and books , the emperor issued the first
regulation governing magazines and books in 1927 EC.
• Which was not as much to protect the rights of authors but rather to introduce censor ship of
authors and printers.
• The 1927 law is the first attempt to regulate printing of authors work.
• Specific rules on IPRs targeting authors and inventors emerged towards the end of the 1950s and
the beginning of the 1960s when Ethiopia embark upon codification of its laws.
• Title XI of the code entitled ‘literary and artistic owner ship’ dealing with different aspects of
copy right (Art 1647-1674)
• Provisions were also included on publishing contracts dealing with transfer or assignment of
copy right (Art 2672-2697)
• Now a day, while Ethiopia lack a specific IP policy, different policies of the country show
recognition of the necessity to encourage creativity and innovation.
• In 1993 the Transitional Government of Ethiopia declared the National science and technology
policy with the objective of “to build national capability to generate, select, import, develop,
disseminate and apply appropriate technologies for the realizations of the country’s socio –
economic objectives’
• Similarly, the 1997 cultural policy of Ethiopia clearly recognizes the need to protect copy right
in order to promote the creation of literary and artistic work.
• The FDRE Constitution state “the federal government shall patent invention and protect copy
right” (Art 51(19)
• The HPR is required to enact specific laws on patents and copy rights, while the council of
ministers is required to protect patents and copy right. (Art55(2) g)

• In addition, as part of the cultural objectives, the FDRE constitution obliges the government to
support the development of arts, science and technology the extent its resource permitted.
• Then, the copy right and neighboring right protection proclamation No 410/2004 came to live.
The two legal traditions
However, there are two legal traditions for protecting literary and artistic works: copyright
tradition that is associated with the common law legal system and author’s right (droit d’auteur)
tradition that is rooted in the civil law legal system.
The term copy right utilized in common law legal tradition but authors right used in civil law
tradition.
The premises of copyright system is utilitarian in that it stimulates the production of works of
authorship by providing rewards or incentives to the author.
The focus is on economic rights of the author
The authors right system is rooted in the natural right theory which propounds that authors be
entitled to protection of work stemming from their personality as a matter of right and justice.
Aspects of authors right under this traditions are economic and moral attributes of the work

The distinction of the two tradition decline over time
Nature of Copyright
 Copyright law is, in essence, concerned with the negative right of preventing the copying of
physical material existing in the field of literature and the art. Its object is to protect the writer
and artist from the unlawful reproduction of his material.
It is concerned only with the copying of physical material and not with the reproduction of ideas
and it does not give a monopoly to any particular form of words or design.
If it could be shown that two precisely similar works were in fact produced wholly
independently of one another, the author of the work that has published first would have no right
to restrain the publication by the other author of that author’s independent and original work.
Copyright protection is not in ideas but in the form of expressions (countenance) that has
embodied the idea.
The claim is not to ideas, but to the order of words, and this order has a marked identity and a
permanent endurance.
Copyright law, however, protects only the form of expression of ideas, not the ideas themselves.
The creativity protected by copyright law is creativity in the choice and arrangement of words,
musical notes, colors, shapes and so on.
 Copyright law protects the owner of rights in artistic works against those who “copy”, that is to
say those who take and use the form in which the original work was expressed by the author.

Copyright protects literary, artistic, and scientific work. It protects the economic and moral
rights of the author /creator/.
These are the two interests which the law recognizes in the copyright field.
Works protected are works of the intellect.
It protects the production and dissemination of the work but not of ideas. This introduces the
dichotomy of ideas and expression of ideas.
The question is why are ideas not protected? Ideas are inherently in appropriable.
Physically controlling of the idea is impossible.
Is there a difference between ideas and expressions of ideas in appropriability? There is no!
Granting monopoly of ideas is not advantages to the society. Even a person may be prohibited
from discussing ideas.
Copyright developed as the means by which ‘works’, i.e. materials deserving copyright
protection, reach the public.
At the beginning it was the invention of the printing press which gave copyright its impetus. The
protection of printed material against unauthorized reproduction was the main concern of
copyright and the right to prevent such reproduction.
The reproduction right was the basic and the main right, followed by the translation right in
literary works.
Copyright developed as the means by which ‘works’, i.e. materials deserving copyright
protection, reach the public.
At the beginning it was the invention of the printing press which gave copyright its impetus. The
protection of printed material against unauthorized reproduction was the main concern of
copyright and the right to prevent such reproduction.
The reproduction right was the basic and the main right, followed by the translation right in
literary works.

Purpose of Copyright Protection
Regarding the purposes of copyright protection, the preamble of Copyright and Neighboring
Rights protection proclamation No. 410 /2004 provides that “literary, artistic and similar creative
works have a major role to enhance the cultural, social, economic, scientific and technological
development of the country”.
Justifications of copy right protection
There are two theories about the justifications of copyright protection.
 The first theory is natural rights theory that states that copyright is not the creation of the law
but always existed in the consciousness of man.
The product of mental labor is by right the property of the person who created it.
It follows then that the public has no more right or justification to take away or impair the
originator’s property in his mental creation than it has to deprive him of any other of his
ownerships.
Thus, what the law has to do is just recognize this natural right which is deserving of protection.
The second theory is the bargain or contract theory. (utilitarian)
This theory starts with the premise that people will be encouraged to produce new creations if
there be some reward as an incentive.
It means a creation of mind is merely a contribution to a common stock of knowledge and
enjoyment of mankind in which the public have heritage.

In this theory, copyright is relegated to the level of an artificial right and a creature of the
municipal law of each country to be enjoyed for such time and under such regulations as the law
of each state may direct.
The theory dictates that had it not been for the need to encourage new creations, the creator or
works of the mind would have been denied of the right or ownership to his creations.
However, though there is controversy between these theories, they advocate that protection
should be given to copyright ownership.
On top of this, copyright is justified on a number of grounds.
However, though there is controversy between these theories, they advocate that protection
should be given to copyright ownership.
On top of this, copyright is justified on a number of grounds.
These royalties function as an intellectual worker’s remuneration. However, denial of protection
goes against the ideals of common social justice. The remuneration paid to authors is borne by
the ultimate ‘consumers’, that is, purchasers of books and records, or the paying customers of
the cinema or theatre
The second ground relates to cultural progress, which is ensured through the system of
copyright protection. By putting the results of his intellectual activities at the disposal of
mankind, he contributes to the spread of knowledge and cultural education of millions of people.
If his works are protected by copyright, the author will be encouraged to produce new creations
and thereby enrich his county’s store of literature, drama, music and science.

Listen to what a certain author had to say; “without copyright, there would be no incentive for
creative individuals to write novels, paint pictures or compose books. Nor would there be any
incentive for publishers, broad casters and record companies to invest in the exploitation of
those works.”
Thus cultural progress will be lost if there is no copyright protection in a country. But if his
works are protected, the intellectual laborer will engage in his work with more spirit and as a
result there will be progress in the culture of a given country.
Thirdly, copyright protection can also be justified on moral grounds. We can say that the work
is the personal expression of the author’s thoughts__ “the child of his thought.” Therefore, he
should be given the right to decide when and how his work may be reproduced or performed in
public and the right to prevent mutilations.
Taking the expressions of Cavendish and Kate pool, “the main purpose of copyright law is to
ensure that authors receive some share of any money and prestige resulting from the exploitation
of their own original work”.
In general, therefore, it is immoral as well as illegal for anyone to reproduce an author’s work
without his express permission.
This means that no one may safely copy or steal it and pass it off as his own unaided creation
because the law defends the real author’s prior rights. It also means that no one may publish a
work, or use in other ways, as it is immoral, without first reaching an agreement with the author-
an agreement, which will normally involve payment.

• The fourth justification for copyright protection will be on economic grounds.
• The necessary investment for the creations of intellectual works is easily obtained if protection
exists. Creating a property right in works enables them to be traded and permits copyright
owners to earn money from their works.
It provides a very useful and effective way of exploiting a work economically. It also envisages
a mechanism for allocation of risks and income derived from the sale of the work
Granted the fact that copyright is intangible, absent property right, the producer of works of the
mind will find it difficult to recover his expenses.
Thus, the investment that is necessary for the creation of works (e.g. filmmaking or architecture)
or for their exploitation (e.g. Book publishing, record manufacturing) will be more easily
obtained if protection exists.
In general, a creation of works of the mind is a result of tremendous cost – it needs time money,
labor, etc. Unless these creations are protected, the author will not be able to appropriate the
value of the information that he produced.
Finally, the justification for copyright is that without it “the freedom of expression in literature
and arts … would be in danger.”
Once it is conceded that copyright enhances the publication of creative works, it is obvious that
it enables the society to have access to new ideas and new works.
In addition, an idea becomes useful only in proportion to the degree of communication and its
supreme triumph would be achieved where it is known to all men..

To the extent that creative works are available, freedom of expression is enhanced because the
public will express its ideas in works of the mind published in abundance because of copyright
protection
Copyright protection is above all one of the means of promoting, enriching and disseminating
the national cultural heritage.
A country’s development depends to a very great extent on the creativity of its people, and
encouragement of individual creativity and its dissemination is a sine qua non for progress
Copyright constitutes an essential element in the development process. Experience has shown
that the enrichment of the natural cultural heritage depends directly on the level of protection
afforded to literary and artistic works.
Definition of copy right
Copyright encompasses the protection of cultural works in all media: literature, musical, arts,
architecture and audio visual productions
 Copy right is a legal protection provided works of authorship under specific conditions.
Copyright law is a branch of that part of the law which deals with the rights of intellectual
creators.
 It deals with particular forms of creativity, concerned primarily with mass communication.
It is concerned also with virtually all forms and methods of public communication, not only
printed publications but also with such matter as sound and television broadcasting, films for
public exhibition in cinemas, etc, and even computerized systems for the storage and retrieval of
information.

Copyright has been defined as the right to multiply copies of a published work, or the right to
make the work public and still retain the beneficial interest therein.
It has also been defined as the exclusive right of multiplying copies of an original work or
composition, and consequently preventing others from so doing
A copyright is a form of protection provided by a national government to authors of original
works of authorship including literary; dramatic, musical, artistic and certain other intellectual
works.
The Ethiopian copyright proclamation defines copyright as “an economic right subsisting in a
work and where appropriate includes moral rights of the author” (Art 2(8))
As can be seen, it is defined from the perspective of the rights of the author as it is based on the
bundle of the author’s economic and moral rights in his work that are provided under Art.7 and 8
of the Proclamation.
A critical component of copyright is the term ‘work’ defined by copy right in art 2(30)
"Work" means a production in the literary, scientific and Artistic fields. It includes in particular:
a) books, booklets, articles in reviews and
newspaper, computer programs;
b) speeches, lectures, addresses, sermons, and other oral works;

c) dramatic, dramatico-musical works, pantomimes, choreographic works, and other works created
for stage production;
d) musical compositions;
e) audiovisual works;
f) works of architecture;
g) works of drawing, painting, sculpture, engraving, lithography, tapestry, and other works of fine
arts;
h) photographic works;
i) illustrations, maps, plans, sketches, and three dimensional works related to geography,
topography, architecture or science.
J) Applied art – Art 2 (1) of Proclamation 8722014
From the definition accorded in Ethiopian law, it is an economic right
Art 7 Economic Rights
1) Subject to the provisions of Articles 9 to 19 of this Proclamation the author or owner of a work
shall have the exclusive right to carry out or authorize the following acts in relation to the work:
a) reproduction of the work;
b) translation of the work;
c)adaptation, arrangement or other transformation of the work
d) distribution of the original or a copy of the work to the public by sale or rental;
e) importation of original or copies of the work;

f) public display of !he original or a copy of the work;
g) performance of the work;
h) broadcasting of the work;
i) other communication of the work to the public.
2/ The Provisions of Sub-Article (1) (d) of this Article shall not apply to rental or public lending of
computer program except where the program is an essential
object of the rental or lending.
3/ In case of original work of art or original manuscript of a writer or a composer, the author or his
heirs shall have the inalienable right to have a share of the resell price of the work subsequent to
the first transfer of the
work by the author. The amount of the share as well as the condition of entitlement shall be
determined by the
regulation that may be issued under this Proclamation
From the definition accorded in Ethiopian law it includes Moral right
Art 8.Moral Rights
1) The author of the work shall have the following
moral rights irrespective of whether or not he is owner of economic rights;
a) to claim authorship of his work, except where the work is included, incidentally or
accidentally, in reporting current events by means of broadcasting;

b) to remain anonymous or to use a pseudonym ; and
c) to object any distortion, mutilation or other alteration of his work, where such an act is or would
be prejudicial to his honor or reputation.
d) to publish his work.
2) The rights enumerated in Sub-Article (1) of this Article shall not be transmissible during the
lifetime of the author. The rights, however, shall be transferred in accordance with the law to
heirs or legatees after the death of the author;
3) The author or his heirs or legatees may waive any of the moral .rights enumerated in Sub-
Article (1) of this Article in the following manner:
a) the waiver, shall be made in writing clearly specifying the right waived and the circumstances
in which the waiver applies,
b) the waiver specifies the nature and the extent of modification or the action in respect of which
the right waived.
4) Moral rights shall be enjoyed by heirs or legatees of the author until the expiry of economic
rights.
Which of the competing theories are given recognition in our law? Is it the natural right theory
or utilitarian theory?
It is possible to promote the cultural, scientific, technological development of a country when
creators are allowed to control their work.
It is the utilitarian theory which is included under the preamble.
In countries like the USA it is stated that copyright law is important for the society.
Similarly, copyright law in Ethiopia has the public purpose in that by rewarding authors, it is
possible to encourage them and produce works useful to the society.

It is a means to an end /the social end / in creating the creator’s interest.
However, in France, (the birth place of natural right theory), copyright law is important for the
recognition of the natural right of the author.
In the case of utilitarian theory, if a certain creation does not benefit the society in case of
conflicts of interest between the individual and the society, it will be rejected.
In a copyright word, there is always a conflict between the creator and the public because the
public want the work to be accessible and the creator not. In the preamble, moral rights are not
mentioned although inside the law all the moral rights are mentioned
To give more emphasis, if we see the preamble of the proclamation as to the question of why
copyright protection, it is because of the role of those works in bringing about overall change. It
is provided, in the Preamble of the Proclamation, that “literary, artistic and similar creative
works have a major role to the cultural, social, economic, scientific and technological
development of a country”. It seems the legislator wants to give incentive for societal benefit.
On the other hand, it can be argued under the Ethiopian copyright system, copyright includes the
economic and moral rights of the author though it emphasize the economic rights in the
definition part of the Proclamation. However, the moral rights of the author in his works are
equally treated like economic rights under Art.8 of the Proclamation.
Author is defined as a person who has intellectually created a work (Art2 (12) of the
Proclamation). To be an author it requires mental creation that the juridical person lacks.

Copyright taken as a natural right is also reflected in the Constitution of the Federal Democratic
Republic of Ethiopia (FDRE). The FDRE Constitution recognizes the right to private property as
one of the democratic rights. Private property as defined in Art.40 (2) of the constitution
includes any intangible product having value.
Copyright being a property right on an intangible product of labor and creativity, and having
value, becomes the private property of the author, thereby being recognized as one of the
democratic rights. Therefore, it is a natural right of a person to create an intellectual property,
have ownership right over it thereby making it private property. This implies that a natural right
theory is recognized in our copyright system.
Scope of Copyright Law
A protection accorded to a work of an author may arise either by virtue of the author's personal
relationship to a country_ his status- or the country is the first place of creation or of publication
or is where unpublished work is found in acceptable theory.
Thus a copyrightable work may be so either because of the personal status (nationality or
domicile) of the author or by virtue of the fact that the work was created, found or published in
acceptable theory.
While the work remains unpublished, the connection can only concern personal status of the
author or the place where it is created except where the work is no longer found at the place of
its creation where upon the place where it is found is taken into consideration to see whether the
unpublished work is in an acceptable theory.
Coming to our Law, in case of author ship Art 3(1) (a) envisages that the works of an author
whose nationality is Ethiopian is automatically protected by the proclamation. In addition, if the
author is a foreign national but his principal residence is Ethiopian, he will get the same
protection as of the Ethiopian author

In case of published works, if the work is firs published in Ethiopia, this work will be protected
regardless of the nationality of authors. In other words, though the author is a foreign national,
as long as his work is first published in Ethiopia, to protect his work, the proclamation will be
applicable.
However, if the work is first published abroad, it should be published in Ethiopia within 30 days
to get protection of the proclamation. Unless the work of the foreign national is first published in
Ethiopia or published abroad and published in Ethiopia within 30 days, it will not be a subject
matter of copyright protection. (See Art. 3(1) (b) of the proclamation)
Therefore, regardless of the nationality or residence of the author, his work will get copyright
protection and be the subject matter of copyright protection if the work is first published in
Ethiopia or first published abroad and published in Ethiopia or first published abroad and
published in Ethiopia within 30 days.
The question may be what does publication mean? Its definition can be inferred from Art.2 (22)
of the proclamation which, defines "published work" as a work or a sound recording, tangible
copies of which have been made available to the public in a reasonable quantity for sale, rental ,
public lending or for other transfer of the ownership or the possession of the copies, provided
that, in the case of a work, the making available to the public took place with the consent of the
author or other owner of copyright, and in the case of sound recording, with the consent of the
producer of sound recording.
Published Cont.
Therefore, publication will be considered as issuance of authorized copies to the public,
including making the work available by means of electronic retrieval systems.
Copies should also be reproductions of the work in any material term (not just in writing).
Works are published only when authorized reproductions in written form had been issued to the
public.

Published Cont.
An authorized publication is one made with the agreement of the copyright owner or someone to
whom the necessary control has been delegated.
The other thing for the existence of publication is that more than one reproduction must be
made. Making a single copy is not publication. Moreover, the actual text of the work should be
reproduced.
Regarding audiovisual works, they would be a proper subject matter of copyright protection if
the producer of those works had his headquarters or principal residence in Ethiopia. It means if
the person that undertakes the initiative and responsibility for the making of sound recording
works has a headquarter or principal residence in Ethiopia, his audio visual works will get
protection (see Art. 3 (1) (C) of the proclamation).
Art. 3 (1) (d) of the proclamation also provides other subject matter of copyright protection. This
is work of architecture erected in Ethiopia and other artistic works incorporated in a building or
other structure located in Ethiopia
Moreover, the protection envisaged under the proclamation shall apply to works that are eligible
for protection in Ethiopia by virtue of and in accordance with any international convention or
other international agreement to which Ethiopia is a party.
However, the provisions concerning copyright and neighboring right should not extend to a
material object. In other words, the protection given to the music or painting or dance will not
be applicable for the ownership of the musical instrument or the painting materials (see Art. 3(7)
of the proclamation).

Requirements for Copyright Protection
Art 6 provides that copyright protection is automatic-the protection comes upon creation of the
work. There is no formality. However, there are two conditions: originality and fixation. We will
see those requirements as formal and substantive.
Formal Requirement
i) Fixation
 The formality requirement stated under the proclamation is fixation. (See Art 6 of the
proclamation).
It means works that enjoy copyright protection have to be reduced to a tangible medium.
This is a requisite, a condition precedent for copyright to subsist in.
In order to attract copyright protection, a work that is a product of the creative activity of its
author must exist in some objective form before it is considered an object of copyright.
In other words, an expression of an idea is copyrightable when it is reduced to a concrete form
from which reproductions can be made.
Thus "copyright arises whenever a work is created and expressed in some external form such as
a manuscript, drawing, film, or mechanical recording or it can be expressed in the form of
speech.
The requirement that a work be expressed in a material form means that "the work must exist in
some form that may be perceived and reproduced by third parties." This requirement is an
explanation of the exclusion of ideas from the ambit of copyright protection.

Fixation is also defined under Art 2(11) of the proclamation as the “embodiment of works or
images or sounds, or of the representations thereof, from which they can be perceived,
reproduced or communicated through a device prepared for the purpose".
There are Two aspects of fixation
1. the work is embodied in unchanging physical objects not merely in human brain.
2. Situation where the work is static overtime. That is every time one looks or hears to the work
he/she perceives the same thing
Why fixation as requirement?
 may serve as evidentiary purpose, to confirm the author has indeed produce the work
Ensure that the author would less likely to change what s/he has created.
Encourage authors to reduce their works to something that is discernable so that it could easily
be reproduced/published and disseminated to the public.
 Argument against fixation
 it is a denial of copy right protection for unfixed creation b/s of different socio economic
factors.
Additional requirement for photographic work (Art 6(2))
 However, in case of photographic works, there are other additional requirements to be
considered as a copyrightable subject matter. In other words, they will be protected where they
form part of a collection or are published in a book or; bear the name and address of the author
or his agent.
• Bear in mind that forming part of a collection or publication in books or bearing the name and
address of the author is applicable for the protection of photographic works.

Substantive Requirement (originality)
A literary or artistic work which is an object of copyright and which is created by a subject of
copyright is not copyrightable if it lacks originality irrespective of the fact that it is reduced to a
material form.
The question is what is originality? Originality is not defined in the proclamation. Some
jurisdictions dictate that the work should originate from the author himself.
There are two approaches in answering the questions raised in relation to originality:
1. Anglo – American Approach
2. Continental law Approach
 In Anglo-American approach, the level of creativity is low (but existing), whereas in
continental law approach it is a high level.
• The Americans believe that if skill, judgment and labor are involved, it is original. In England,
schedules of Football soccer are protected under illustration. In the continental law, a work is
protected if the work shows the creative capacity of the author (የፀሐፊው የፈጠራ ችሎት
የተከተበበት). The author’s personality must be shown.
• Under the Ethiopian copyright law, artistic merit/quality irrelevant as those laws which have a
modern copyright law. It is not relevant to ask if the work meritorious. Or not. However, the
content may be illegal.

Is anything that comes out of the author’s mind worth copyright protection? Are immoral and
unlawful subject matters copyrightable? How do you see Art 640 of the criminal code on the
obscene and indecent? For example, the work may be phonographic works. Should this matter
(illegal or immoral) be relevant for purposes of copyright?
There are two standards.
 If the work is illegal, copyright should not exist as it will encourage unlawful activities and
different laws should coexist. The other is whether or not the content is unlawful; it should not
be the determinative factor for the copyright ability of the work as it will be against freedom of
expression and the law does not expressly require so.
• Which trend is given recognition in the copyright law? It may be argued that the preamble states
that the purpose of copyright law is for scientific, educational and cultural development. Laws
have to co-exist with each other. So, we should not grant a copyright for a work which does not
co-exist with other laws.
Subject matter not protected
The copy right protection proclamation excludes some subject matter in its Art 5
a) Any idea, procedures, system, method of operation, concept, formula, numerical tables and
forms of general use, principle, discovery or mere date, even if expressed, described,
explained, illustrated or embodied in a work; and
b) Any official text of a legislative, administrative or of legal nature, as well as official
translations.
As we know, historically copy right protects expression of ideas rather than ideas.
In other words, as we have already discussed, an author’s ideas, no matters how novel, are not
subject to copy right protection.

Non protection is not limited to ideas in Art 5 of the proclamation, it is extended to procedures,
systems, methods of operation, concepts, formula, numerical tables and forms of general use,
principles, discovery or a mere data.
 According to Fikremarkos book, similar provisions included in the copy right laws of a number
of countries.
Example , in US copy right act of 1976 states “ in no case does copy right protection for an
original work of authorship extend to any idea, procedure, process, system, method of operation,
concept, principle, or discovery, regardless of the form in which it is described, explained,
illustrated or embodied in such work”
Art 9.2 of the TRIPS agreement on the other hand stated, “ copy right protection shall extend to
expressions and not to ideas, procedures, systems and methods of operation, or mathematical
concepts as such”
Copyright is not merely protects the interest of the author; it also promotes the interests of the
public by encouraging scientific and artistic creativity.
 National Laws vary on whether official texts such as legislation should be subjects to copy right
protection or not?
Japan, US, German copy right laws excluded these documents from protection!
UK the crown has copy right over acts of the parliament.
Copyright proclamation is not conditional on registration or any other administrative
requirements and a work could be protected as long as it is original and fixed without further
conditions.

Owners of right and presumptions
(Categories of copy right owner ship)
 The owner of the copyrightable work is always either the actual author or someone who has
acquired the copyright from the author directly or indirectly, by agreement or by operation of
law.
 The first type of author is the original author who has created the work (Art. 21(1) of the
proclamation).
This person is the person who create, i.e., writes or composes the wok or who originates the
whole of one work.
 The stated provision (Art 21.1) states that, the original owner of the economic rights shall be the
author who has created the work.
co-authors.
However, it is not always a single author that creates a work. It is important to underline that
the actual authors, where from copyright descends to others can be more than one. The first type
of these authors may be co-authors. As per Art 21(2) of the proclamation, where the work is a
work of several authors, the coauthors shall be the original joint owners of the economic rights.
 In case of coauthors whose contribution of a work is clearly separable from the text of their
collaborators, all co-authors own the copyright in the text they themselves have written and they
have no claim on the rest of the work.
In case of collective works, the person at whose initiative and under whose direction the work
has been created shall be the original of the rights (Art. 21(3) of the proclamation).
Collective works are also defined under Art. 2(5) as literary and artistic works created by two or
more physical persons at the initiative and under the direction of a person with the
understanding that it will be disclosed in the name of the latter person without indicating the
identity of the contributor.

Works created in the course of employment or commissioned works
 an employee may create a work in an employment relationship. The question here is as to
whom owns the copy right on an work that created by an employee while in the course of
employment.
Generally in the civil law legal tradition, an individual employee is presumed owner of the copy
right unless there is specific agreement to the contrary.
In the common law legal tradition, the presumption is reserved and the copy right on a work
created in the course of employment primarily rests on the employer save to specific agreement
to the contrary.
• There are also works created by another employed or commissioned by a person in the course of
his employment contract of service. In this case, unless agreed otherwise, the original owner of
the rights shall be the employer or the person who commissioned the work. (See Art. 21(4) of
the proclamation)
• In other words, if an author produces a work under a contract of service or in the course of his
employment, the employer will own the copyright unless the author and employer agree
otherwise. A contract of service is a certain kind of relationship between a person and his work
and the person or firm for whom he does the work. The author may be a salaried employee or a
commissioned freelance
In this regard a contract of service should be taken as the work in which the employer closely
directs and controls it.
If the authors are given only a vague brief on none and the execution of the task is left to his
judgment, the Author is not under a contract of service but a “contract for services.”

It should also be taken as works unconnected with the daily work for the employer. Works
unconnected with the author’s duties and done in his spare time will not belong to the employer.
Moreover, the employer should have the power to hire or fire at will and/or the work is done for
a set remuneration
 In case of audiovisual works, the producer is the owner of economic rights. However, the script
writer, director, cameraman, lyricist, composer and other authors thereof shall enjoy the right of
authorship in the work. On top of this, the authors of the screen play, musical works and other
works that are incorporated in an audiovisual work and can be exploited separately shall be
entitled to exercise their copyright independently as envisaged under Art 21(5) of the
proclamation.
How ever the moral right is always belongs to the author. (Art 8.1)
Presumption of authorship
 Regarding presumption of authorship, Art 22 (1) clearly provides that the person in whose
name the work was published shall be deemed to be the author thereof unless there is a contrary
proof.
Also, writing anonymously or under a pseudonym doesn’t prevent authors from owning the
copyright in their work)
In other words, even though the author used a pseudonym in the publication, he shall be deemed
to be the author to be the author thereof, provided that there is no doubt as to his identity. (see
Art, 22(2)) of the proclamation


Lastly, save sub articles (1) and (2) of Art 22, a
publisher whose name appears on the work shall be
presumed to represent the author and, in this capacity,
shall be entitled to exercise and enforce the moral and
economic rights of the author.
But this presumption is reputable, i.e. there will be a
contrary propose. In other words, it uses is proof to
the contrary, the publisher can’t represent the author.
Moreover, this presumption shall cease to apply when
the author reveals his identity (see Art. 22(3) of the
proclamation).

Economic and moral right accorded by copy right
Copy right
Economic right
Art 7
It is property
right
Moral right
Art 8
it includes non-
property attributes
of an intellectual
and moral character

Economic right
consists of a temporary
monopoly over the
exploitation
of protected works.
It assures the author
of the exclusive right
to control the
reproduction,
derivative works,
performance or exhibition
of his creation.
Moral right
which give legal
expression to the
intimate bond that
exists between a
literary or artistic
work and its author’s
personality
It is intended to
protect his personality
as well as his work

 it is there to allow
the owners of the
rights to derive
financial reward
from the use of
his/her works by
others.
The moral right of
the author is a
recognition that
copyrightable works
are extensions of the
personalities of their
creators, i.e. it is the
"outward
manifestation of the
author’s inner self.”

Economic rights
The economic rights of the author involve his pecuniary interest.
They relate to the right to exploit, put his work to economic purposes.
The basis of economic rights is that the author should be compensated and rewarded, and is
entitled to receive remuneration from the use of his work by others.
A) Right of reproduction
 Reproduction, as an exclusive right of the author, is recognized under Art 7(1) (a) of the
proclamation.
As part of the economic rights of the author, reproduction allows the author or copyright
owner to exclude all others from reproducing the work in the form of a copy or phone record.
Art. 2 (25) of the proclamation defines reproduction as the making of one or more copies of a
work or sound recording in any manner or form, including any permanent or temporary storage
of work or sound recording in an electronic form.
 It is possible to say that reproduction is copying a literary, artistic and scientific work (or indeed
any copyrightable work) in any material form that includes writing and all the multitudinous
forms of ordinary printed matter (from a single coupon through magazines and news papers to
sheet music, books and encyclopedias), photocopies, video and cassette tapes, and soon.
It is illegal to reproduce the work in any material form (e.g. print of any size, video or audio
recordings, and films) and specifically includes storing the work in any medium by electronic
means (including on computer disk) without the permission of the author or copyright owner.

B) Right of derivative works
• An author has the right to exclude others from creating works based on his own. This right
safeguards an author from what otherwise might be unduly narrow interpretation of the
reproduction right, which could then permit another to vary elements of the work sufficiently to
assert that it is not actually a copy /reproduction
 A derivative work is so comprehensive a term that it includes such things as translations,
dramatizations, fictionalizations, Films, recordings, arrangements, and abridgments,
condensations in which a work may be recast, transformed or adopted.
Under the Ethiopian law of copyright and neighboring rights proclamation, derivative works are
categorized into translations, adaptations, arrangements, transformation or modification of
works and collection of works pursuant to Art 4 (1).
Among these, the right of translation is treated as an aspect of the economic rights of an author
as per Art 7(1) (b) of the proclamation.
It is clear that the author or owner of the work has exclusive right to translate his work or to
authorize others to translate it. Therefore, the author can derive benefits from his works by
authorizing its publication in different languages when he himself translates the work.
In addition, he can derive material benefits from his work that has been translated by a third
party.
This shows that an author or owner of a copyright can object to translation of his work.
Accordingly, a person cannot translate the work of another without the authorization of the
author. The basic reason behind this law is that it would be contrary to social progress to benefit
from an author’s intellectual work without granting him appropriate remuneration or
compensation.

In addition, he can derive material benefits from his work that has been translated by a third
party.
This shows that an author or owner of a copyright can object to translation of his work.
Accordingly, a person cannot translate the work of another without the authorization of the
author. The basic reason behind this law is that it would be contrary to social progress to benefit
from an author’s intellectual work without granting him appropriate remuneration or
compensation.
The second type of derivative work is adaptation. In this regard, like translation, the author or
owner of the work has exclusive right to carry out or authorization of adaptation of his work as
per Art 7 (1) (c) of the proclamation. If a work is to qualify as an adaptation, it is a requirement
that either it expressly refers to the original work or it is evident that it derives its inspiration
from the original work.
• Adaptation retains the intellectual content and general construction of the original but clothes it
in a different outward form.
• If a person seeks to adapt an original work, therefore, he must in advance secure the permission
of the author of the original. Put differently, the author has an exclusive right to adapt the work
himself, and to authorize others, if he so wishes.
 One form of adaptation may be dramatization of works. Dramatization is described as a version
of a non dramatic work in which it is converted into a dramatic work. A dramatic work will
normally be a play for performance in the live theater, a script for a TV or radio program, a
screen play for a film /or radio/ a work of dance or mime or words associated with music.

The other exclusive derivative right given to the author or owner of copyright is the right to
arrange or authorize other persons to arrange his works pursuant to Art 7(1) (c) of the
proclamation. However, the person who makes substantially a new arrangement of works after
authorization is entitled to copyright protection in the new version.
C) Right of distribution of works
• The other basic excusive right of the author or copyright owner is the distribution of the original
or a copy of the work to the public by sale or rental as envisaged under Art 7 (1) (d) of the
proclamation. The exclusive right of reproduction is nothing unless the author or copyright
owner gets an economic benefit from the reproduced works by sale or rent. The only means of
securing an economic benefit from the fruits of his work is either sale or rent.
• However, this shall not apply to rental or public lending of computer program except where the
program is an essential object of the rental or lending (see Art. 7(2) of the proclamation). Our
copyright law defines public lending as a temporary transfer of possession of an original work or
a copy of a work or sound record by libraries achieves or similar institutions whose service is
available to the public without making profit. Also, rental is defined under Art 2(27) of the
proclamation as a temporary transfer of possession of a work, sound recording or fixation of a
performance for a profit making purpose.
• The law also did not omit to define computer program. Under sub article 7 of Art 2, it is defined
as a set of instructions, expressed in words, codes, schemes or in any other form, which is
capable, when incorporated in a machine- readable medium, of causing a computer to perform or
achieve a particular task or result.

D) Right of importation of works
Apart from the above rights, the author or owner of a work has the exclusive right to carry out or
authorize importation of his works. It means he can import his original or copies of his works or
he can authorize importation of original or copies of his works. This exclusive economic right of
importation of the works is at the hand of the author or copyright owner as it is envisaged under
Art 7 (1) (e) of the proclamation.
• E) Right of public display of works
• Like those economic rights discussed above, the author or owner of a work has an exclusive
right to display his original or copied works to the public. However, to display the original or
copy of a work, the works should be fixed in a material form. This includes the public
presentation (exhibition) of works like figurative arts. This right of public display of works is
recognized under Art 7 (1) (f) of the proclamation.
• However, the display of works may be made in various ways. The author or copyright owner can
display his work by means of a film slide, television image, or otherwise on screen or by means
of any other device or process.
• F) Right of performance
• The author or owner is granted of a work exclusive right to perform (produce) his work by Art
7(1) g) of the proclamation. In other words, the performance right of the author protects one of
the channels through which economic benefits deriv from. The expression “performance” refers
to production and is used interchangeably in literatures on copyright. It is possible to define
performance from the word “performer” defined under Art, 2 (19) of the proclamation, as acting,
singing, delivering, declaiming or playing in or showing otherwise any literary and artistic
works.

• Art. 2 (24) of proclamation defines public performance as performing a work to the public by
recitation, playing, dancing, acting or otherwise, either directly or using any communication
media; in case of an audiovisual work, showing the images in sequence and; in case of sound
recording making the sound recording audible to the public. It can be said that performance is
reciting, rendering, playing, dancing or acting of a work either directly or by means of any
device or process.
• G) Right of broadcasting
• The other economic right of the author or owner of copyrightable work is broadcasting of his
work. Broadcasting is defined under Art 2 (3) of the proclamation as transmission by wireless
means for public reception of sounds or of images and sounds. Therefore, in order to transmit
his works with sounds or images and sounds through a wireless means, the author or owner has
an exclusive right.
• H) Right of communication of works to the public
• This kind of right is other than broadcasting of the work. Communication to the public is
defined under Art. 2 (6) of the proclamation as the transmission by wire or without wire images
or sounds or both of a work, a performance, a sound recording or a broadcast in such a way that
the images or sounds can be perceived by a person outside the normal circle of a family and its
closest social acquaintance at a place or places so distant from the place where the transmission
originates, that without the transmission the images or sounds would not be perceivable and,
further, irrespective of whether the person can receive the images or sounds at the same place
and time, or at a different place and/or time individually chosen by them.
In general, irrespective of the means of communication of works to the public, the author or
owner of a work has the exclusive right to carry out or authorize communication of the work to
the public.

Moral Rights
The doctrine which purports to protect the personal rights of the creator as distinct from their
mere economic rights is known as moral right.
A moral right, as the negative right, is to prevent violations of the personality of the author.
Its objective is to assure respect for the author’s thought and personality.
It is the right which confers upon the creator to dispose freely of the product of his creativity, to
modify it or to destroy it entirely, as he sees fit.
The various ramifications of the doctrine of moral right may be said to consist of the right to
create and to publish in any form desired, the creator’s right to claim the paternity of this work,
the right to prevent every deformation, mutilation or other modification thereof, the right to
withdraw and destroy the work, the prohibition against excessive criticisms and the prohibition
against all other injuries to the creator's personality.
The work bears the stamp of its author’s personality because in every man’s work, the character
of the writer is recorded.
Use and dissemination of the work, therefore, not only bring economic profit, they also enhance
the author’s name and fame.
The author seeks economic gain and the promotion of his reputation through his work.
Accordingly, independently of the economic aspect of copyright, and even after the transfer of
it, the author has the right to claim authorship of his work and to object to any distortion,
mutilation, modification or other “derogatory” action in relation to his work which would be
prejudicial to his honor or reputation.

Attached inalienably to the author as per Art 8 (2) of our proclamation, therefore, the moral right
always protects the personality of the author.
Like the economic aspect of copyright, the moral aspect has many ingredients that constitute the
bundle of rights in it and that is the reason, which calls for a discussion of the components of
moral rights.
A) Right of paternity
The right of paternity entitles the author to insist that he and not another person is credited with
the authorship of the work he created.
An author is a man who brought out of nothingness some 'child' of his thought and up on its
creation he is dubbed the ‘father’ of such ‘child’.
As a unique result of a unique temperament, the work of art is the most intense mode of
individualism that the world has ever known.
Its beauty is an external reflection, a projection of the creator’s inner self to the external world,
that is, its beauty comes from the fact that the author is what he is.

As a result, the author is given the right to require all others to associate his name with his work
and to prevent attribution of his name to a work that is not his.
The right to paternity is, therefore,
 Firstly, the right of the creator of the work to present himself to the public as such,
Secondly, to require others to present him as such, and
Thirdly, to prevent others from attributing works to him which he has not created.
In essence, the right of paternity protects the author not only against unauthorized denial but
also against false imputation of paternity as well.
Of the three ingredients of paternity right, the first is the right of the author to demand his name
to appear on all copies as well as on advertising or other publicity for the work.
The second component prevents plagiarism of his work. Out and out plagiarism presents at once
the most obvious violation of this interest and the most serious invasion of the author’s
pecuniary rights.
The third aspect provides protection against being named as the author of a work that has been
mutilated or altered.
In Ethiopia, the author of a work does have the right to claim authorship of his work. In other
words, he has the right to be identified as an author upon copies published to the public save the
work is included in reporting current events by means of broadcasting (see. Art 8(1) (a) of the
proclamation).

On the contrary, though he has the right to be identified (to claim authorship), he has the right to
remain anonymous or to use a pseudonym as per Art 8 (1) (b) of the proclamation.
In other words, the author of the work can remain silent without disclosing his name or the
identification can be in the form of a pseudonym, initials or 'any reasonable form of
identification' if the author prefers.
Moreover, the author may claim the benefit of presumption of authorship granted under Art. 22
(1) of the proclamation notwithstanding that he used a pseudonym provided that there is no
doubt as to his identify (see Art. 22(2) of the proclamation).
However, to be anonymous for his work or using pseudonym is a right reserved for the author
not an obligation for him. In other words, in Ethiopia an author is entitled to use pseudonym, or
publish his work anonymously.
• Therefore, if the author wishes to use pseudonym, he has the right to be identified in his
pseudonym. It means the obligation to disclose the name of the creator of a work extends not
only to his true name, but also to the pseudonym. The moral rights protect the identity of the
creator as he has chosen it.
• In this regard; I want to raise one foreign case that has a direct relevance for our law. The
plaintiff-author had published two un copyrighted stories under a pseudonym. Subsequently
after the plaintiff had acquired a reputation in his own name, the defendant published the two
stories under the plaintiff’s actual name, without permission. However, the plaintiff’s motion for
temporary injunction of these facts was granted by the court.
•

Also pursuant to Art 22 (1) of the proclamation, the person in whose name the work was
published shall be deemed to be the author there-of unless there is a contrary proof.
Thus, a creator of a work can demand others to identify him as the author once his name
appeared on the work.
This right is basic in the sense that it is the stake by virtue of which the author establishes his
name in the minds of consumers’ of his work thereby producing fans for himself.
The fact that he is permitted to have his work published under his name necessarily affects his
reputation and thus impairs or increases his future earning capacity.
Failure to associate his name with his work denies him recognition of his achievement while
attribution of his name to a work not his own preys on the value of his name and makes him
'heir’ to the consequences of another’s labor.
Alteration of an author’s work both misrepresents the author’s efforts and mischaracterizes the
personality to which the work is attributed.
Hence the right to paternity is a fundamental moral right
This right of paternity extends to a translator and the director of a film. In other words, like any
other authors, directors and translators have the right to be identified whenever their work is
published commercially (including by means of an electronic retrieval system); performed,
shown or exhibited in public; broadcast or included in a cable program service; or included in a
film or sound recording that is issued to the public.

Right to integrity of the work
The right of integrity is the right of the author to safeguard his reputation by preserving his work
from derogatory treatments.
A treatment of a work is derogatory if it is subject to addition to, deletion, alteration,
unauthorized adaptation that amounts to distortion or mutilation of the work or is otherwise
prejudicial to the honor or reputation of the author or his work.
Therefore, the author of a work has the right to object any modification up on his work in the
process of reproduction by the publisher, during translation act, and soon.
To put differently, the author has the right to have the integrity of his work respected i.e., he may
prevent all unauthorized deformations, mutilations or modifications.
This right does not arise until, after completion, the work has been put on the market by the
author, has been sold, or has been made the subject to contracts of publication or performance.
From that time on, the author has the right to insist that its integrity must not be violated by
measures which could alter or distort it.
Therefore, a non author cannot make changes in the work except upon securing the author’s
permission.
Thus, the right of integrity is infringed if a derogatory treatment of a copyright work, or part of a
work is published commercially: performed, shown or exhibited in public; broadcast, or
included in a cable program service; or if copies of a film or sound recording of, or including, a
derogatory treatment of a work are issued of the public.

The right of integrity is also infringed if a graphic work or a photograph of a derogatory
treatment of the model for a building, a sculpture or a work of artistic craftsmanship is
published.
In connection with integrity of the work, there is a situation where an extremely delicate
problem arises. This is a problem of protecting the integrity of the work when the author has
authorized its adaptation to a different medium, as in the case of adaptation of a novel for a
cinema or a theatre.
The problem here is to ascertain to what extent the author of the original work can insist on its
integrity when this claim conflicts with creative freedom of the adapter who is the would-be
author of the work which purports to be equally original. How may a conflict between these two
equally valid moral rights be resolved?
In the first category are contracts in which adaptation is authorized unconditionally.
All the adapter is required to do is that he executes the contract in good faith, and to refrain from
distorting the spirit of the original work with the intention of doing harm. In the absence of such
intention, the adapter is at liberty to make all changes he thinks necessary for the purpose of
adaptation.
• The second type of contract is one which contains clauses authorizing all changes and
modifications which do not distort the spirit and character of the original. Under such contracts
modification in the original work that is required by necessities arising from the need to
commercialize the adaptation are said to be reasonable in so far as they respect the work’s
psychological tenor and the essence of the author’s thought.

The third type of contract is such that the author who has authorized an adaptation of this work
actively participates in the process of adaptation-as a scenario or a dialogue writer, for instance.
Thus under this type of contract, the original author stipulates that his text be subject to no
modifications without his approval.
Under the Ethiopian law, undoubtedly the right of preservation of integrity of an author’s
copyrighted work is provided under Art 8 (1) (c) of the proclamation. It provides that the author
of the work has the right to object to any distortion, mutilation or other alteration of his work,
where such an act is or would be prejudicial to his honor or reputation.
Therefore, no person will be allowed to distort, mutilate or alter the work without the author’s
consent where the act is or would be prejudicial to his honor or reputation.
Giving permission by the author to alter, mutilate or distort his work that prejudices his honor or
reputation is unthinkable.
Thus, any one can’t alter or mutilate or distort the work of the author if this affects his honor or
reputation, unless he permits, though he is not an owner of economic rights.
Right to publish
The right to publish a work or to keep it secret is said to be a natural and incontestable as the
right to create.
So long as a work has not been completely created- of which the author alone can be the judge-
it remains a mere expression of the creator’s personality, as it has no existence beyond that
which he tentatively intends to give it.

It is exclusively for the author to determine whether the work shall be published at all, and if it
is to be published, when, where, by whom and in what form.
In other words, the author of an unpublished work, so long as he does not publish it, may keep it
as a private matter which he is not obliged to give to the world.
• Accordingly, the Ethiopian law of Copyright and Neighboring Rights proclamation under Art 8
(1) (d) gives the right to publish his work only to the author. The author is undoubtedly free to
publish his work irrespective of whether he is an owner of economic right or not. In other words,
the author has the exclusive right to decide whether and when a work is to be released to the
public.
The issuance of his reproduced word to the public is at the disposal of the author.
No one may publish a copyrightable work of the author without the permission of him.
Apart from this, a person publishing a work of the author cannot do so without infringing the
authors’ rights.
Right to create a work
The very basis of all creative works lies in the protection of the right to create, which is a
function of the right of individual liberty. This right is said to become part of the moral right
when the author, having concluded a contract with another to complete and deliver a work,
becomes unwilling to do so.

The effect of such a contract is said to depend on the moral right because creation is closely
related to the personal and moral interests of the author, his honor and reputation. An author
could not be forced to create a work against his will. “If I do not want to create an original
work,” says Pierre Recht, “surely that is my own business. The law cannot tamper with it. It is
my freedom-my prerogative-to create or not to want to create a work.”
This is, to be sure, the line followed by the Ethiopian law. Art. 2675 (1) allows the author of a
work to assign his work even if he has not yet executed it provided that the work is sufficiently
well-defined and that the author can complete it in a period not exceeding two years.
In addition, under Art 2270 (1), a sale contract may be concluded even if its object is a future
thing that has no existence at the time of the contract. Provided that the seller undertakes to
deliver such future thing-as, for instance, when the author contracts to write a dialogue for a
cinema-the contract is valid by virtue of Art 2270(1).
The immediate legal question presenting itself in exploring the extent of this aspect of moral
right is the treatment accorded by law to contracts obliging one party to create.
Once it is conceded that the right to create a work is an aspect of individual liberty, it will be
easier to admit the corollary, i.e., the right of an author not to create, to refuse to create.
A court cannot give a mandatory injunction compelling the author to create a work for so to do
goes against the creator’s individual liberty.
In line with this argument, Art. 1776 mandatorily provides that specific performance is not to be
ordered if and when such order affects the liberty of the debtor-the author in our case.

And there is no better liberty for the author than to be free to create or not to create. Thus, the
author is at absolute liberty to create or not to create a promised work without being obliged to
create it. If he refused to create the promised work, however, he is liable for any damages caused
to the promisee by his act of breach of the contract and that is the outrage of his liability for he
can’t be forced to create
E) Right to withdraw (disavow)
Notwithstanding the transfer of his right of exploitation, the author, even after his work has been
published, enjoys the right of withdrawal. He may not exercise this right, however, without
accepting the obligation to compensate the assignee for the losses, which the author’s act of
withdrawal might cause him.
• The usefulness of this right is difficult to see, however. Once the thought is expressed, circulated
and criticized, it cannot be erased. Copies of a work which have been sold cannot be destroyed.
Hence, the rationale for this right, i.e., the change of conviction of the author or his convictions
being obsolete due to changes that are brought about by the passage of time, cannot work even if
the author exercises his right to withdraw.
Thus the author whose conviction is changed has actually only one recourse: to set the creations
forth in a new edition.
This right of the author is not directly incorporated under Ethiopian law. It can be inferred from
Art. 2687 (1), however, when the law states that the author is at any time given the right to make
corrections or improvements.

These corrections or improvements may require the withdrawal of prior
editions and thereby prejudice the interest of the publisher. In such cases,
he will be indemnified by the author for the expenses he incurred by the
act of corrections or improvements (Art. 2687 (2).
Hence, the author can make any additions, suppressions and other
modifications, which he thinks necessary in order to make the work
conform to the state of his intellectual convictions. However, the right to
withdrawal is not incorporated in the new Copyright and Neighboring
Rights proclamation.
Limitations on Copyright
The exclusive right of the author or owner of copyright on reproduction
is not absolute, it has an exception.
Why limitation?
Because the ultimate aim of copy right is not benefit an author enjoys
but rather achieving a balance between an author’s exclusive rights and
other social, educational and cultural interest of the public, which may
results in limitation of authors exclusive rights.

The followings are limitations provided in the proclamation.
1. Reproductions for personal purposes
• There is limitation on the authors reproduction right. Art 9(1) provides the possibility of coping
works without the permission of the copyright owner.
The reproduction for personal purpose should fulfill the following
It should be for using it privately/ not for public service
It is for physical person/natural person/ not for juridical/legal person
The work published work
It should be in single copy/ not more than a single copy
However, reproduction of works for private (personal) purposes is not allowed under Art 9 (2) of
the proclamation
where reproduction is that of a
 work of architecture in the form of a building or other construction,
 musical work in the form of notations, or
 of the original or copy made and signed by the author of a work of fine art,
 the whole or a substantial part of a data base in a digital form,
 a computer program except as provided in Art 14 of the proclamation; or
 a work that would conflict with or causes unreasonable harm to the normal
exploitation of the work or the legitimate interest of the author.

Some argued that private reproduction without the consent of the author or copyright owner is
permitted only in the case of backup copy. That means a person, who bought the original may
copy it and will have a reserve copy for his personal purpose as per Article 9 of the
proclamation.
2. Quotation
It is possible to make quotations from a work which has already been available to the public.
Art 10 (1)
The law clearly provides that the owner of copyright cannot forbid the reproduction of a
quotation of a published work.
However definition for quotation is not provided in the proclamation.
 Quotation shall be compatible with fair practice and does not exceed the extent justified by the
purpose (see Art. 10(2) of the proclamation).
In this case, reproduction should not conflict with normal exploitation of the work and should
not unreasonably prejudice the legitimate interests of the author.
Besides, the person that quotes the work of another has to acknowledge the author. That is why
Art. 10(3) of the proclamation clearly envisages that where the quotation is taken from a source
which contains the name of the author; it shall indicate the source and the name of the author

3. Reproduction for teaching
A noteworthy limitation to the exclusive right of reproduction is where the work is out of print,
copies or reproductions thereof are authorized in several copies for educational purposes.
Accordingly, the proclamation envisages under Art 11(1) as the owner of copyright cannot forbid a
reproduction of a published work or sound recording for the purpose of teaching as long as the
reproduction doesn’t exceed fair practice and the extent justified by the purpose.
However, the copy shall indicate as far as practicable the sources of the work or sound recording
reproduced and the name of the author (see art 11(2) of the proclamation).
4. Reproduction by Libraries, Archives and Similar Institutions
As emphasized above, the ultimate goal of the copyright system is promoting an efficient
mechanism of dissemination of information and knowledge so that the required scientific and
cultural transformation will materialize.
To that end, it is necessary to make sure that institutions that are engaged in this blessed task of
dissemination of information are getting the necessary input which in turn is to be made available
for the benefit of the general public. These institutions are belongs there for providing information
for researchers too
Other additional reason for protection
Rare books and manuscripts are usually photocopied to secure against their destruction or loss.
Similarly, for the purpose of preservation, photocopies are made of newspapers and other items
printed in fast deteriorating paper

In our country law, the exclusive right of reproduction or authorizing the reproduction of
author’s work is limited when the reproduction is made by libraries, archives, memorial halls,
museums and other similar institutions that are engaged in gainful activities directly or indirectly
(see Art. 12(1) of the proclamation).
The provision provides conditions for the application of such exceptions (art 12 (1)
1st
only reproduction of article, short work or short extracted work allowed.
2nd
the institution should not work for gain, directly or indirectly. (exclusion of commercial
establishment)
 3rd
the following condition have to be met (Art 11(2))
a) It should for solely for the purpose of study, scholar ship or private research
b) Is an isolated case occurring, if repeated on separate and unrelated occasion
c) No available administrative body to provide collective license of reproduction
 Such reproduction is allowed for Art 12 (3) situations only
1. Preservation and replacement
2. Impossibility to obtain a copy
3. Stated under b in the above
5. Reproduction, Broadcasting and other Communication to the Public for Informatory
Purpose
However, this exclusive right is limited under Art 13 of the proclamation. In other words, the
owner of copyright cannot forbid the reproduction in a newspaper periodical, the broadcasting or
other communication to the public of an article published in a news paper or periodical on
current economic, political, social or religious or similar topics (see Art 13(1) of the
proclamation.

But in order to apply this limitation, the author or copyright owner should not lift such powers
in such works. If the right or authorized reproduction or broadcasting or the communication to
the public is expressly reserved on the copies by the author or owner of copyright or in
connection with broadcasting or other communication to the public of the work, no person can
reproduce, broadcast or communicate to the public without the permission of the author.
Moreover, the right of reproduction, broadcasting or other communication to the public of short
excerpts by the author is limited under Art 13(2) of the proclamation. Reproduction and
broadcasting other communication to the public of short excerpts of a work seen or heard for the
purpose of reporting current events is possible without requesting and blessing the permission of
the owner of copyright.
Lastly, the owner of copyright cannot forbid the reproduction in newspaper or periodical, the
broadcasting or other communication to public of a political speech, lecture, address, sermon or
other work of a similar nature delivered in public or, a speech delivered during legal proceeding
to the extent justified by the purpose of providing current information (see Art. 13(3) of the
proclamation).
6. Reproduction and adaptation of computer programs
The other limitation on the exclusive right of reproduction or adaptation of works is a single
copy reproduction or adaptation of computer program pursuant to Art 14(1) of the proclamation.

However, this kind of limitation under Art 14(2) of the proclamation is permissible when it is
found necessarily
to make use of a computer program with a computer for the purpose and extent for which the
computer program has been obtained;
a back-up copy by a person having a right to use the computer program in so far as it is
necessary to ensure future use, or
adaptation that is indispensable for using the computer program in conjunction with a machine
for the purpose, and to the extent of use, for which the program has been lawfully obtained
7. Importation for personal purposes
As we have seen, the author or owner of a work has the exclusive right to carry out or authorize
importation of original or copies of a work pursuant to Art .7 (1) (e) of the proclamation.
However, this exclusive right is limited to import copyrightable works for personal purposes
by physical persons.
Accordingly, the owner of copyright cannot forbid importation of a copy of a work by a physical
person for his own personal purpose.
8. Private performance free of charge
This limitation is performance of other works in private at family gathering or in a school.
This kind of limitation is evident because prohibiting each and every individual from
performing a copyrighted work exclusively for himself is rather absurd. Most importantly, since
private performances cannot by any stretch of imagination be prejudicial to the economic
interests of the copyright owner, there is no need to prohibit private performance of protected
works. Therefore, for such kind of works neither the authorization of the author is required nor
this unauthorized use of the works would entail copyright infringement

Coming to the Ethiopian law, Art 16 states that “the author may not forbid private performances
of his work given free of charge at a family gathering or in a school. So the intention of the
legislator in precluding the author form forbidding private performance should be construed in
light of the last limb of the provision which says, “At a family gathering or a school”
The feature that Art 16 shares with many foreign laws in this aspect is that it exempts non
commercial performances i.e. the author is prohibited from forbidding performances that are
given free of charge. Also, it is not enough that the performance be given free of charge, the
audience is also strictly limited. The performance, though given free of charge, will be an
infringement if it is presented to an audience than is outside of a family gathering or a school.
9. Issuance of Non- voluntary license
Relating to free use, servicing similar public purpose, there are other limitations, namely non-
voluntary license.
Non- voluntary license is justified on the ground that sometimes it is not practical to find the
copyright owner and secure his blessing, especially long after its publication.
It is also argued that introducing the concept is important to avoid the creation of monopoly that
may be against public interest.
Accordingly, copyright laws provide general limitations to facilitate this demand in favor of the
interest of the public and make works available without request from copyright owners and
irrespective of their opposition in some cases.
On the other hand, it is criticized on the ground that it creates difficulty to exercise moral rights
by the author, and it erodes the bargaining power of the right-holder as the latter is bound to
permit the use.

Generally, there are two forms of non-voluntary license systems.
The 1st
being statutory license where everything, including the royalty will be determined by the
statute recognizing the concept.
The 2nd
is named "compulsory license” in which the user must negotiate with either the author
or collective society representing the interest of the author where he wants to use the work. The
author or the society is bound to permit the use against the payment of remuneration
• In Ethiopia, the Office is empowered to grant license to authorize the reproduction or translation
or broadcasting of a published work even against the objection of the author, heirs or legatees as
per Article 17(1) of the proclamation.
• The Office pursuant to article 2(15) of the proclamation is the Ethiopian Intellectual Property
Office established by proclamation No 320 /2003.
• But the Office has to authorize reproduction, translation or broadcasting published work for
public interest. However, the requirement of public interest is not found in the English version
of the proclamation but in the Amharic version we can find as “ ”
ለሕዝብ ጥቅም . As the Amharic
version is the official text, we have to apply it.
• Also, as the provision is an exception it should be interpreted narrowly. The other reason is if
the office is empowered whenever it likes, it will be invasion of the rights of the author or
copyright owner. The conditions, forms of such authorization and in particular the fair
compensation to be made to the owner of copyright shall be determined by regulations (see Art.
17/2/ of the proclamation). However, no regulation is enacted up to now.

In fact, the compulsory license can be given only after the publication of the work to the public.
For the right to publish falls in the domain of the moral right of the author, which is exclusively
personal to him, the Office needs to wait for that moment to come.
• It is also to be emphasized that although the act is performed without the permission of the
copyright owner or even against his objection, non -voluntary licensing the use of the work is to
be made in return for the remuneration to the author.
• Thus in copyright law the effect of such licensing is that the exclusive right of the copyright
owner is reduced to a right to equitable remuneration. Nonetheless, pursuant to Art 17 /3/ of the
proclamation, the office may not authorize the alteration of the work, come what may.
10.Display of works and distribution of copies of works
• As per Article 18 of the proclamation, without the authorization of the author or owner of
copyright public display of originals or copies of works is permitted where the display is made
other than by means of film slide, television image or otherwise on screen or by means of any
other device or process and the work has been published or the original or the copy displayed
has been sold, given away or otherwise transferred to another person by the author or his
successor.
• The other limitation is on the distribution of copies of works. Where a copy of a published work
has been sold to the public such a copy may, without authorization and payment remuneration,
be redistributed by means of sale (see Art. 19 of the proclamation).

11. Lapse of Duration of Economic Rights
• Talking of copyright duration, two things must be understood at the outset as preliminaries of
primary importance. First, copyright term merely concerns itself with the economic aspect of
author’s rights for we cannot conceive of duration of moral right because it is "in general,
perpetual in duration, although certain of its incidents, such as the right to create or to modify,
must lie with the author".
• However, regarding the enjoyment of moral rights by heirs or legatees Art 8 (4) provides that
they will enjoy the moral rights until the expiry of economic rights. Therefore, there is duration
of moral rights for heirs or legatees in outlaw.
Secondly, the expiry of copyright marks the end of the protection accorded to the work to which
it has been given. Naturally no work can have a period of protection unless it qualifies for
protection to start with. If this term expires, the works which for all legal requirements deserve
protection will be stripped of copyright and be available to the world at large for use or abuse
without any restraint.
• Under the Ethiopian law, this period of protection is available for the life time of the author plus
fifty years.
• In other words, economic rights shall belong to the author during his life time and to the heirs or
legatees for fifty years from the death of the author (see Art. 20(1) of the proclamation).
• Likewise posthumous works will be protected for a period of fifty years from the date of
publication of works pursuant to Art 20 (3) of the proclamation.

In case of a work of joint authorship, the term of fifty years shall commence to run from the
death of the last surviving author (see Art. 20 (3) of the proclamation). Where the work is
collective work, other than an audiovisual work, the economic rights shall be protected for fifty
years from the date on which the work was either made or first made available to the public, or
first published, whichever date is the latest. (See Art. 20(4) of the proclamation.)
Our law also provides a period of protection for works published anonymously or under a
pseudonym. Sub articles 5 of Art. 20 provides that where the work is a work published
anonymously or under a pseudonym, the economic rights shall be protected for fifty years from
the date on which the work was either made or first made available to the public or first
published, whichever date is the latest.
However, in case where the identity of the author is revealed or is no longer in doubt, prior to
this period, where the author is a single author economic rights shall exist during his life time
and to the heirs or legatees for fifty years from the date of his death and where the authors are
joint authors, fifty years shall commence to run from the death of the last surviving author. (See
Art. 20 (6) of the proclamation).
• Sub articles 7 and 8 of Art. 20 of the proclamation puts down the life span of copyrightable
photographic and audiovisual works. For photographic works, economic rights shall be
protected for twenty five years from the making of the work. In case of audiovisual work, the
economic rights shall be protected for fifty years beginning from the date of making of the work
or communication of the work to the public, whichever date is the latest.

• In determining copyright duration, there are two interests at stake: creators of works of
the mind must not be deprived of their just reward for their ingenuity and labor, and the
world may not be deprived of the free enjoyment of the works of the mind. The longer
the duration, the more is the tiltation of the law in favor of authors; the shorter the term
the more unsympathetic is the law to them and that means the public interest is given
primacy. The question in issue is one of striking the balance between two interests and
this is recognized in our law.
• Be that as it may, when its term expires a copyrightable work is said to be out of
copyright or in the public domain. Once its term expires, the same work is not entitled to
more than one copyright and it will be a “historical document, a monument” which is
striped of copyright protection.
• Upon the lapse of the life span of the copyrightable works, the owner (s) of a work will
be denied of protection of copyright. Thus a person taking such work as his own without
the author’s consent infringes no right protected by copyright. In other words,
infringement of copyright, in general, is only conceived of when there is copyright in
work.
TRANSFER OF COPY RIGHT
The author may exercise his right of ownership either by his own or transfer it for others,
may be in part or in whole.
While discussing transfer of copyright, a point that must be emphasized is that what can
be transferred is merely the economic right of the author.
moral rights shall remain with the author even after the transfer of economic rights.

The transfer of copyright from its original owner to others may take the form of either
assignment or a license
Distinction b/n assignment and license
• Assignment
transfer of ownership of the whole right or part of it, whereas a license is.
makes the transferee exercise an exclusive right within his own domains.
• License
 the authorization of acts, without which such authorization would amount to infringement
securing the green light to act. Simply the licensee is authorized to act but that does not,
necessarily, make him an owner of the fruits of his acts
Forms of Transfer of Copyright
• As a property owner, an owner of copyright may transfer his monopoly rights in all legally
possible ways.
• An ownership (or a segment of it) of copyright may be transferred in any of the following four
ways:- a) will, b )operation of the law, c) contracts and d) judicial decisions

• Copyright is not extended to any right related to copyright.
• There are some rights which are recognized to have close relationship with copyright but cannot
be the subject matter of copyright law as such.
• Because of they are often closely associated with copyrights, any consideration of copyright
laws has to take into account this associated rights.
• These rights are named neighboring rights or related rights.
• Protection of neighboring right
The protection of author’s rights
 does not stop preventing the use of their creations and
cannot be limited to prohibiting infringement of the rights that laws afford to authors.
The authors works
made available to the public at large.
 In various way /intermediaries/
• live performances,
• sound recordings or
• broadcasts.
At This stage
interest of the performers themselves in relation to the use of their individual interpretation in
the performed work.
Therefore the problem for protection of performers, producers and broadcasting organizations,
i.e., protection of neighboring rights arise

• In this regard,
the Italian law, one of the first to recognize these new rights called them connected rights (diritti conessi);
German law related rights (verwandle Schutzrechte);
French law neighboring rights (droit voisins) and
 in the English law, the term neighboring rights is now commonly used.
The problem with regard to intermediaries has become more acute/ sensitive with rapid technological
developments
fixing of performances on a variety of materials, viz., records, cassettes, tapes, films etc become easy with
technology.
From before a limited audience in a hall to an - increasingly permanent manifestation
capacity of unlimited and repeated reproduction and use before an equally unlimited audience that went
beyond national frontiers.
To put it differently, “these technological innovations, have led to a reduction in the number of live
performances.”
 Because of this there is a new dimension to the protection of the interests of performers.
Similarly “the increasing technological development of phonograms and cassettes and, more recently,
compact discs (CDs), and their rapid proliferation, was pointing to the need of protection of producers of
phonograms.”
Finally, there were the interests of broadcasting organizations as regards their individually composed
programs.
The broadcasting organizations required their own protection for these as well as against the retransmission
of their own programs by other similar organizations.

In international laws, the first attempt towards neighboring rights was made by the Berne Union
for the Protection of Literary and Artistic Works at its Diplomatic Conference in Rome in 1928.
At this time there was a need for the revision of the Berne Convention that was adopted in 1886
for the protection of literary and artistic works to include the protection of neighboring rights.
In this Conference the members refused to grant a copyright to performers. But, at the end of the
conference of the Berne convention, they considered the possibility of measures intended to
safeguard the rights of performers and also other neighboring rights are given due consideration
At the international level, however, it was the development of the phonogram industry that
promoted the establishment of special protection for the so called related rights as the
phonogram industry looked for protection against unauthorized duplication of sound recordings
of musical performances.
Thus, the rights of performers, producers of sound recordings and broadcasting organizations
are given due recognition, after long discussions, under the Rome Convention in 1961 (Rome
Convention, International Convention Ratified in 1961 for the Protection of Rights of
Performers, Producers of Phonograms and Broadcasting Organizations).
Unlike most international conventions, which follow national legislations and provide a
synthesis of existing laws, the Rome Convention was an attempt to establish international
regulations in a new field (neighboring rights) where few national laws existed.

Besides the Rome Convention, two other international instruments
 1. The Convention for the Protection of Producers of Phonograms against Unauthorized
Duplication of Their Phonograms, “Phonograms Convention”, concluded in Geneva in October
1971, and
2. the Convention Relating to the Distribution of Program -Carrying Signals Transmitted by
Satellite, “The Satellites Convention” concluded in Brussels in May 1974.
• In Ethiopia, The Civil Code does not incorporate rights of performers, producers and broadcasting
organizations.
• In Ethiopia, neighboring right is recognized for the first time in the Proclamation.
. The Proclamation incorporates the legal protection of performances, sound recordings and
broadcasts.
Proclamation No.90/1997 Ethiopia’s membership to WIPO (ratification)
Nature of Neighboring Rights
The term “neighboring rights” comes from the French “droits voisins” referring to those rights
which have been developed parallel to and are related to copyrights.
They may be loosely defined as rights which do not arise directly from the five major types of
intellectual property (patents, copyrights, trade secrets, trademarks and industrial designs) but which
are “neighboring” to such rights.
 Neighboring rights are those rights granted to protect performers, producers of phonograms, and
broadcasting organizations in the performance of their works
“neighboring rights” are rights that are related but not identical with copyrights.
Example an actor almost invariably, is not the creator of the role he plays. He rather performs a role
in a play written by a playwright.

Similarly a musician may not necessarily be a composer. He may perform the creative woks of
another person.
Yet, their contribution does not make them subjects of copyright.
Identically the producers of phonograms produce works of authors as performed by the
performers; and broadcasting organizations broadcast such works on their station.
The fact that they have intervened in the channeling of the works does not entitle them to claim
copyright on the works.
However, their assistance in making the work available to the public entitles them to certain
rights that are called neighboring rights
Under Ethiopian legal system,
Neighboring rights are the rights performers, producers of sound recordings, broadcasting
organizations have over their works as per Art 2(14) of the Proclamation that defines
neighboring rights.
The most important categories are the right of performers to prevent fixation, broadcasting,
reproduction etc of their performances without their consent;
the rights of producers of phonograms to authorize or prohibit the reproduction of their
phonograms and the import and distribution of unauthorized duplicates thereof;
and the rights of broadcasting organization to authorize or prohibit rebroadcasting, fixation and
reproduction of their broadcasts.
• Some countries also protect the interests of broadcasting organizations by preventing the
distribution on or from their territory of any program carrying signal emitted to or passing
through a satellite, by a distributor for whom the signal is not intended.

Article 2(21) of the Proclamation defines a “producer of sound recordings” as a person that
undertakes the initiative and responsibility for the making of sound recording works.
The right owner is the person that first fixes the sounds.
This excludes both the technicians and operators employed by the recording company, and any
entity merely pressing records, i.e., duplicating the first fixation which is the original recording.
Meaning to “Sound recording” Article 2(28)
It does not, however, include a fixation of sound and images such as the sound track of an
audiovisual work.
It is important to note that the sounds could be sounds of a performance or other sounds or a
representation thereof whether fixed on cassette tape or compact disc etc from which fixed sounds
can be perceived, reproduced or otherwise communicated directly or with the aid of machine.
Broadcasting organizations enjoy neighboring rights. As to the rights of broadcasting organization, a
broadcasting organization shall have the exclusive right to carry out or authorize reproduction of its
broadcasts, fixation of its broadcasts and reproduction of a fixation of its broadcast as per Article 31
(1) of the Proclamation until the expiry of 20 years following the year in which the broadcast took
place.
• Justifications for the Protection of Neighboring Rights
 copyright and neighboring rights constitute an essential element in the development process of a
country.
The Preamble of the Proclamation asserts that the protection of works of artistic, literary and
scientific nature serves to enhance cultural, social, economic, scientific and technological
development of a country.

1. It will serve for the social, economic and cultural development of the country
2. they are the means for disseminating works of authors
3. They employ their talents or technical skills. Furthermore, they have economic interests on their works. They require economic
returns for their investment. Consequently, they have to be accorded with some sort of exclusive legal rights for their respective
works
Scope of Application of the Proclamation on Neighboring Rights
 Art 3(3) Performers
(a) Ethiopians
(b) Not nationals
i. ) take place in Ethiopian territory
ii. Incorporated under the work protected in this proclamation or
iii. Included in broadcasts eligible under this proclamation
 Art 3(4) sound recording
(a) Ethiopians producers
(b) First fixed in Ethiopia and
(c) First published in Ethiopia
Art 3(5) broad casting
(d) Head quarter in Ethiopia
(e) From transmitter situated in Ethiopia
Art 3(6) as per international convention or agreement
Owners and Scope of Neighboring Rights
1. Performers’ right (Art 26) –authorization power to performers
 Economic right (Art 26 (1))- Exclusive right
a) broadcasting or other communication to the public
b) Fixation of his unfixed work
c) Reproduction
d) Making available first fixed or copy thereof
e) Rental or public lending

 Moral right ( Art 26 (4)
I. To be identified as….
II. Objection to distortion, mutilation or other modification….
III. Application of art 8 (2) and (3)
 Time of protection (Art 26 (5))
 50 year from the date of fixation or from the performance took place
2. Rights of Producers of Sound Recordings and Affiliated Issues (Art 27)
 Exclusive right (Art 27 (1)) – exclusive right
a) Reproduction
b) Importation
c) Distribution to the public
d) Rental or lending
e) Making available to the public
 Time of Protection (Art 27 (2))
 50 years from publication or fixation
 Obligation of Producer of sound recording (Art 28)
 28 (1) Labeling of the recording on the container-
a) Title of the work
b) Name of authors and main performers
c) Right reserved
 28(2) a choir or orchestra reference
 Notice of protection (Art 29)- for commercial purpose
 29 (1) a) symbol (P)
 b) year
 Time of protection –1art 30 (3) 50 years from publication or from fixation
 Remuneration for sound recording (Art 30 (1)

3. Rights of broad casting Organizations
Exclusive right (Art 31 (1))
a) Rebroadcasting
b) Fixation
c) Reproduction
Time of protection (Art 31 (2))
- 20 years
Limitation on Neighboring Right (Art 32)
a) Using short excerpt for reporting current event
b) Reproduction solely for scientific purpose
c) Face to face teaching activity
d) Exceptions provided for copy right
Enforcement of Rights / Infringement of rights and remedies
the recognition of rights by itself cannot avoid infringement of rights.
The law should set the way by which the recognized rights will be enforced.

 Enforcement measure include Provisional measures, civil measures, criminal sanction and border
measures
1. Provisional measures (Art 33)
Have two purposes
 To prevent entry to the market
 To preserve evidence
• Art 33 (2) in audita altera parte (with our hearing the other party)
• Art 33 (3) application of temporary injection and courts power
• Art 33 (4) – application of civil and criminal procedure on search and seizure
• Art 33 (5) power of courts to demand evidence for certainty (imminence) of the infringement.
• Art 33(6) Notice for the party affected
2. Civil Remedies (Art 34)
Monetary Compensation (adequate)
 Art 34 (1) (a) injunction
 Art 34 (1) (b) confiscation
 Art 34 (1) (c) to impound packaging and implements to make documents, accounts or business papers.
 Art 34 (2) replacement of unjust enrichment in lieu of compensation
 Art 34 (3) Payment of net profit

Art 34 (4) Method of calculation of Compensation for material damage and Amount of moral
damage
Art 34 (5) limit of compensation to the profit when infringement done with out awareness
Art 34 (6) making copies out of channel of commerce.
3. Border measure (Art 35)
Art 35 (1) Retaining infringing goods under control
Art 35 (2) information provision about control taken
Art 35 (3) lifting of controlling
Art 35 (4) Liability for damage for retained goods
Art 35 (5) confiscation
4. Criminal sanction (Art 36)
Art 36 (1) 5 up to 10 Years imprisonment for intentional violation
Art 36 (2) 1 up to 5 years for gross negligence violation
Art 36 (3) seizure, forfeiture and destruction of goods and any materials.

Intellectual Property law- Lecture notes

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Intellectual Property law- Lecture notes