15 questions

from consumers on copyright

for all EU Member States

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1. What does copyright and related rights mean and cover, and is it the same all over the world?

Copyright gives rise to a set of moral and economic rights and prerogatives granted to authors of original works (e.g. literary, dramatic, didactic and religious) as well as musical compositions, theatrical and choreographic works, pantomimes, films, photographs, architectural works, computer programs and databases. In addition to author’s rights, copyright law creates ‘related’ (or ‘neighbouring’) rights, which are designed to reward and/or incentivise creative endeavour and the investments of those who make creative works accessible to the public: music and audiovisual performers, record producers, radio and TV broadcasters, etc. Copyright rewards creators through exclusive rights (i.e. the right to say ‘yes’ or ‘no’ to a certain usage) and remuneration rights, which guarantee a given income to creators regardless of the transfer of the original rights to other parties. For instance, in addition to the exclusive rights to authorise copying, distribution and communication to the public of their music performances and sound recordings, performers and record producers are entitled to receive compensation for the use of their works in radio and TV broadcasts or films, for any kind of public use of music recordings involving or produced by them. Copyright also grants moral rights, independently from ownership rights, such as the right to be recognised as the author of a creative work (i.e. the right to paternity) and the right to authorise (and object to) modifications, alterations, translations or adaptations of the work that might be prejudicial to their reputation (i.e. the right to integrity of the creative work). Moral rights, historically a prerogative of continental-European legal systems (e.g. France), justify copyright primarily for the purpose of protecting the personality of creators and, in general, of all who contribute to making creative works. Copyright law is governed by the principle of territoriality, which means that each State has a separate system of rules, although international conventions from the end of the 19th century and European directives since the early 1990s have significantly harmonised these rules. The Ministry of Cultural Heritage and Activities and Tourism (MiBAC) — Directorate-General Libraries and Cultural Institutes is the authority in charge of copyright-related matters.

 

2. Who owns copyright and how does copyright benefit creators, 'rights holder(s), consumers, society, economy and culture as a whole?

The ownership of works of art, literature, music, multimedia and other protectable works in general resides in their creators. The copyright system is shaped in such a way that it guarantees a share in the copyright of a given work, and recognition as co-authors, for all those who significantly contribute to the creative process, especially when their individual contributions to the final creation cannot be distinguished. Rights are often shared among authors, especially when dealing with creative works that rely on the involvement of multiple creative voices or involve a variety of skillsets and roles: this is the case for collective works in the publishing sector (newspapers, encyclopaedias) or for audiovisual works, such as films. In specific cases, remuneration rights guarantee fair income to individual authors and performers of musical or audiovisual works. This is the case of radio or television broadcasts of recorded musical or audiovisual works (e.g. films), and of copies made purely for personal use. This system of economic rewards is aimed at fostering cultural creation and at putting creators and the creative industries in a position to continue to create in an economically and intellectually independent manner, for the benefit of consumers, society and culture as a whole.

 

3. Do I automatically get copyright protection, for example, if I take a photograph with my phone, or do I have to register my work to get protection?

Copyright subsists independently of registration. In order to protect the interests of authors, international copyright law embodies the principle of ‘no formalities’, which means that the rights granted to creators subsist from the moment in time a work, for example a photograph, is  fixed in a tangible form. This means that protection is granted automatically. However, in order to be able to prove authorship of a work at a given moment in time, it is wise to formalise the date of creation of the work; this is easily achieved by depositing the work with the General Public Register of Protected Works run by the Ministry of Cultural Heritage and Activities and Tourism (MiBAC), by filing the unpublished work with the Italian Society of Authors and Publishers (SIAE), or through the use of online registries. With regard to photographs, in particular, the protection for this specific type of work can vary significantly, depending on its originality and creative value — if the picture is not particularly original and consists just of images of people or of aspects, elements or facts of natural and social life (including photographs of figurative works of art and film frames), it will be protected by a special right, with a fixed duration of 20 years from the moment the photograph was taken.

 

4. What is copyright infringement? Can I get in trouble for copyright infringement? What if I wasn't aware that I infringed something protected by copyright?

A copyright infringement arises whenever a protected work is used without having obtained the authorisation of the copyright holder, and this activity cannot be regarded as free use under one of the applicable exceptions or limitations to copyright that the law creates in order to balance copyright protection with the preservation of competing goals and values, such as freedom of expression and communication, privacy, progress of science and arts, etc. The consequences of violating copyright will depend on the gravity of the infringement and the kind of enforcement measures sought by copyright holders (who can even apply online in the case of large-scale infringements), and granted and implemented by regulatory authorities such as the AGCOM (Autorità per le garanzie nelle comunicazioni) or by the courts. In the internet era, copyright infringement has become easier, even when committed on a vast scale — one need only think of unauthorised large-scale file-sharing on peer-to-peer or torrent sites. A lack of awareness of the infringing nature of certain uses of copyrighted material may mitigate a sentence or lead to an acquittal under criminal law, but will not serve as protection from fines issued by regulatory authorities or damages awarded to copyright holders by the courts.

 

5. Under which conditions can I use a work protected by copyright created by another? I was told that using works created by others is simply a quote and thus is always allowed.

Creative works — or parts of works — created by others can be used freely with the consent of the copyright owner. Consent can also be granted, especially in the digital environment, through standard licences included on a website or in the file or folder containing the work, which state the forms of use which, with the permission of the author and/or copyright holder, can be engaged in without incurring any risk of infringement. A notable example of such licences would be the terms and conditions of use that come with a product or a service subscription, especially in the digital environment (think of online stores selling music or films for download or providing access to the same via streaming services). An example of standard non-profit licencing would be the Creative Commons licenses, which cover a variety of use cases. In the absence of specific consent or one of the standard licences described above, the intended use of a creative work may be allowed under one of the exceptions or limitations to copyright provided by law to protect and stimulate socially and/or economically valuable uses. Quotes and extracts from copyrighted works are allowed under specific exceptions insofar as the unlicensed user references the name of the author and the source of the work and uses them in the context of a review or discussion of the work, or uses them for non-commercial purposes in teaching or research activities, within the limits justified by these purposes, and in a way that this use does not cause prejudice to the commercial use of the protected work, which the law establishes as the exclusive domain of the copyright holder.

 

6. Am I allowed to use music protected by copyright as a soundtrack for a home video that I made and want to upload on a video platform?

Under prevailing law, a musical composition or its respective recording cannot be used in the production of a home video without the consent of the copyright holder and the holders of the related rights (these include the rights of the composers, performers and producers). The unauthorised use of a pre-existing musical work and of its sound recording for a video uploaded to an online platform would not only involve making an unauthorised copy of the work, but also airing it in front of the public in a way reserved by law for the authors, performers and producers of the piece. Such an act would entail substantially altering or reworking the piece in a way that would infringe both the economic and the moral rights of the rights holders, insomuch as playing the music over the images could deny the rights holders their right to be recognised as the authors of a creative work (i.e. the so-called right to paternity, which is infringed when failing to mention, for example, the authors, performers and the record producer of a sound recording) and/or harm their reputation (to the extent that playing the music over the images alters the original nature of the work; infringing their right to the integrity of their work).

 

7. Am I allowed to give a copy of a work protected by copyright to a family member or a friend?

Giving a copy of a copyrighted work to a family member or a friend without having a licence or the consent of the rights holders is illegal. The law makes it clear that private copies are only allowed for personal use and on condition the copyrighted work was accessed lawfully. The law is very strict on this point in order to protect the distribution rights of the copyright owner and their right to earn money by selling additional copies of the work.

 

8. Am I allowed to download a work protected by copyright from the internet and does it matter which technology is used and whether I download only parts of the work?

Downloading a copyright-protected work from the internet is allowed if permission is obtained from the copyright holder. This is what normally happens when subscribing to an online content store (e.g. Apple iTunes) which, following the acceptance of a series of terms and conditions, and in exchange for payment, allows downloading music, films, TV series and smartphone applications on demand. It is also possible to download all works and materials that are made available under open content licences (e.g. those offered by Creative Commons). It is not legal, however, to download copyright-protected works without the copyright owner’s consent, as often happens through file-sharing and peer-to-peer networking, for which there is no entitlement to invoke the application of the so-called private copying exception. This exception, which refers to copying for strictly personal and non-commercial use, is reserved for the user who has accessed or acquired a copy of the work in a legitimate way (i.e. with the authorisation or licence of the copyright owners). The technology used to download copyrighted content is irrelevant, as is the fact of whether or not the work was downloaded in its entirety (copyright is equally applicable to parts of a creative work).

 

9. I tried to copy a movie from a DVD to my computer, but could not do it because of something called ‘Technical Protection Measures’. What is that and am I allowed to get around them in order to make private copies?

Technological protection measures (TPM) include devices (e.g. a copy-protection system) or software (such as a digital rights management — DRM — program) that enables a content creator or a content provider to control the way a user can access and use a protected work. The idea behind a TPM is that it applies, through technical means, the contractual conditions of access and use that are attached to a certain work and set out in a licence that the user accepts when accessing or purchasing the work. Circumventing TPMs is illegal, and it is a criminal offence to remove rights management information and make the ‘freed’ copyright protected works accessible by others. However, there is one exception to the protection of TPMs that allows the user to make at least one private copy of a DVD onto an analogue medium (not a computer) on the condition that they own a legitimate (i.e. non-pirated) copy of it. Nevertheless, after circumventing and deactivating the TPM, the user is not legally allowed to make private digital copies. Any such copy would infringe the exclusive right of reproduction, which is reserved for the copyright owner, in this case the film producer.

 

10. What are copyright levies?

Private copying levies are a form of remuneration for authors, performers, record producers, audiovisual producers and book publishers. Levies apply to private copies made exclusively for personal use of sound recordings and audiovisual works, such as films, for example, and for the photocopying of books or periodicals (with the exception of music scores and sheets). Levies apply in circumstances such as the above, where the copyright owners cannot authorise the use of their works or gain financial compensation from such use: it is not possible to negotiate compensation for a privately made copy of a sound recording or a film or for photocopying an extract from a book. A copyright levy, which is either a fixed fee charged on top of the sale price of a product, or a variable amount proportionate to the storage capacity of the levied device, currently charged on both copying devices and blank media. Levies have been extended recently to all digital equipment used to copy and store content, which includes computers, mobile phones, memory sticks and other portable hardware. The list of devices is determined and periodically revised through a decree from the Ministry of Cultural Heritage and Activities and Tourism (MiBAC). The criteria by which the levy revenues are distributed are set by law and revised every three years. The law rigidly predetermines how levy revenues should be allocated in each sector in which the levy system applies. This rigid allocation ensures that all copyright holders, including those with weaker bargaining power (i.e. individual authors and performers) do not end up giving up their remuneration by contract. For sound recordings, for instance, 50 % of the revenue is granted to authors, while the remaining 50 % is equally divided between record producers and music performers. In the audiovisual sector meanwhile, 30 % is assigned to authors and 70 % is equally shared between producers of audiovisual and film works and performers (i.e. actors).

 

11. Am I infringing copyright if I watch a movie by streaming it instead of downloading it from the internet?

There is little difference between downloading a film and watching it by streaming: an unauthorised temporary reproduction of the copyrighted work is also created on the user’s device when the content is streamed. Moreover, streaming is a form of making content available to the public, which is an act reserved for the copyright owner, namely, the film producer. Since streaming a film affects both the right of reproduction and the right of communication to the public, online services such as Netflix, Chili and Infinity have to obtain authorisation for the exercise of both rights and to grant an equivalent authorisation to their subscribers.

From a consumer’s perspective, streaming is lawful on condition that the consumer has subscribed to one of the abovementioned services, which have cleared both the rights of reproduction and communication to the public via digital means for the benefit of the consumer.

 

12. If copyright-protected works are included into my posts automatically by social media platforms, am I responsible for this and is this a copyright infringement? What if I link to them or embed them in my own website or blog?

Whenever using a social media platform one is contractually bound by its terms and conditions of use. Creating an account normally involves undertaking the promise to publish and make available on the platform works and other materials for which the user holds or has cleared the necessary rights. If, despite this contractual promise, they end up posting unauthorised copyright works by creating a hyperlink to them and/or by embedding them into their webpage or sharing them with their contacts (which could potentially number in the thousands), they will be held directly responsible. Furthermore, the publication and communication to the public of such works is likely to constitute a copyright infringement. It goes without saying that the content platform operator is entitled to take the infringing materials down acting on its own initiative; the platform operator may even be obliged to respond to any notice sent by a copyright holder about infringements. Liability may be avoided if the posts and publications of copyright-protected works have already been made available elsewhere on the internet (e.g. on YouTube) with the copyright owner’s consent. This finding comes from an interpretation of EU copyright rules by the European Court of Justice, whose implementation at national level needs to be assessed more in depth.

 

13. When I create a work and upload it online, terms and conditions of many sites ask for me to transfer my copyright to the site. Does that mean I lose all those rights in them for the future?

The use of a social media platform requires the acceptance of their terms and conditions. These types of transfers are normally regarded as mere licences (i.e. authorisations) which give the website owner the sole permission to use the work in the functioning of its platform, without depriving rights holders of all the rights that copyright law grants them for their works and original materials. The terms and conditions of each social media platform should be read carefully before deciding whether or not to create an account and what kind of works to publish there. Copyright law provisions on transfers of rights might be of help if the platform deviser claims copyright ownership of the works — bear in mind that copyright law requires each exclusive right to be exercised independently from the others, so that use of the works through different media has to be acquired separately and for specific ends.

 

14. My avatar is based on my favourite movie star, cartoon character or sports club. Can I get in trouble for infringement of copyright or any other legislation because of this?

In virtual worlds, the creation of avatars based on film stars, cartoon characters or sport clubs may constitute illicit conduct, insofar as the authors of the work used (for instance a cartoon) or the holders of other intellectual property rights or exclusive third party rights (such as the rights to the image of a famous footballer owned by a football club) have not authorised the operator of the virtual world platform to use their names, images, logos or trade names. This can involve not only copyright, but also other rights related to obtaining financial advantage from the image of a person or entity, especially in business or advertising.

 

15. How do I know whether a work is offered legally or illegally online? 

A copyright-protected work is offered legally on the internet only when its owner has given users and/or online content suppliers permission to use their work. The existence of copyright-related permissions can be determined by checking whether the copyright holder’s chosen digital distribution model is non-profit or for-profit. For instance, many copyright-protected works nowadays are legally provided online for free under open content licences (such as those offered by Creative Commons), as this makes finding them online through dedicated search engines much easier. These licences accompany the works and, often  through the use of metadata in the website or media where they are kept, make it clear that the copyright owner grants the freedom to access, copy, disseminate and, possibly, edit/modify the work for free without infringing their copyright. Normally, open content licences include contact details and information about the identity of the copyright owner, so that they can be contacted to ascertain the authenticity of the permission. As regards commercial offerings of content however, obtaining a legal copy normally requires payment and/or accepting the terms and conditions of an online service, where the copyright owners are duly mentioned. A copy found on a given website, platform or even on a file-sharing network is unlikely to be legal if it does not include clearly indicated commercial terms or authorisation for non-profit distribution. Usually, the author themselves will indicate their intention to make their work freely available if that is the case. Users could also consider that legitimate online content providers acquire the relevant online rights for a certain work or repertoire, and will therefore offer authorised protected copies of the work in order to be able to promote their own services and attract customers without incurring in massive copyright infringement.

A useful tool for identifying legal creative content online is the European online content portal agorateka. Italy participates in this project developed by the EUIPO through Mappa dei contenuti, an Italian platform which is a safe and reliable guide for discovering legal content online. Through its six constantly updated sections — e-books, films, video games, specialised publishing, TV and music — users can choose the solution that best suits their needs.

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Disclaimer

The answers to the Frequently Asked Questions (FAQs) were finalised on the date indicated as the status date on the website. Gathering up-to-date information from 27 Member States is an extensive exercise. While the EUIPO tries to keep the information up-to-date, new case-law or legislative reforms may impact the content of the FAQs. Neither the EUIPO nor any person acting on behalf of the EUIPO is responsible for the use which might be made of the FAQs.