LEGAL INFO@>Legal Info>Intellectual Property Law>Copyright
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1.What is the copyright?
The copyright is the right of an author of an intellectual creation to allow or forbid other persons to use his/her work.
Dan Livescu

2.Which are the intellectual creations protected by the copyright?
According to Article 7 of the Law 8/1996 on copyright and related rights, the intellectual creations protected by the law are "original literary, artistic or scientific intellectual creations, regardless of the modality of creation, of the way or the concrete form of expression...such as:
a) literary or press writings, conferences, sermons, pleas, speeches and any other written or oral works, as well as computer programs;
b) scientific works, oral or written, such as: conferences, studies, university courses, school manuals, projects or scientific documentation;
c) musical compositions with or without lyrics;
d) dramatic, dramatic-musical, choreographic and pantomime works;
e) cinematography works, as well as any other audiovisual works;
f) photographic works, as well as any other work expressed through a procedure analogous to photography;
g) plastic art works, such as: sculpture, painting, graphics, engraving, lithography, monumental art, stagecraft, tapestry, ceramics, metal and glass plastic, as well as art work applied on products destined for practical use;
h) architecture works, including sketches, lay models and graphic works that are part of the architecture projects;
i) plastic works, papers and drawings belonging to topography, geography and science in general."
According to Article 8, original works are also protected, without any prejudice brought to copyright. By original work it is understood " derived works which were created starting from one or several preexistent works, such as:
a) translations, adaptations, annotations, documentary works, musical arrangements and any other transformations of a literary, artistic or scientific works which represent a work of intellectual creation:
b) anthologies of literary, artistic or scientific works such as: encyclopedias and anthologies, collections or compilations of materials or dates, protected or not, including databases which, through the choice or the arrangement of the material constitute intellectual creations.
To be noted that the original or derived works enumerated by Articles 7, letter a-i and 8, letter a-b have only an orientating character and the protection may extend to other expressions of the intellectual creation, as well.
Dan Livescu

3.Can inventions be protected by copyright?
No, inventions are not protected by copyright. However, they are under the specific protection of the legislation referring to inventions.
Dan Livescu

4.How can an author or the owner of the copyright cede it?
First of all, only patrimonial copyrights can be ceded. This is done in a contract and can be limited to specific rights, territory and duration. The ceding of patrimonial copyrights may be exclusive or non-exclusive.
Exclusive cession is characterized by the fact that the titular (owner) of the copyright:
- may no longer use the work in the situations specified by the contract (this right exclusively belongs to the cessionary);
- may not transmit the copyright to another person;
- the exclusive character of the cession must be expressly specified in the contract;
Non-exclusive cession is characterized by the fact that the titular (owner) of the copyright:
- may use the work, as well;
- may transmit the non-exclusive right to other persons;
- the non-exclusive cessionary may only cede the right to use the work only with the explicit agreement of the titular of the copyright.
Dan Livescu

5.What are the mandatory clauses that should be contained by a patrimonial copyright cession contract?
According to Article 41-(1), the patrimonial copyright cession contract must contain:
- transmitted patrimonial rights;
- modalities of utilization;
- the time-frame and the extension of the cession;
- the remuneration of the titular of the copyright;
If any of these elements is missing, the interested party has the right to demand the annulment of the contract.
Besides these specific clauses, the copyright cession contract must also contain the essential elements of any contract.
Dan Livescu

6.Is the written form mandatory for a contract of patrimonial copyrights cession contract?
Yes, the cession contract of the patrimonial copyrights is one of the contracts for which the written form is provided by the law. In this sense, Article 42 explicitly specifies: "The existence and the contents of the patrimonial copyrights cession contract can only be proven by the written form of the contract. Exception to this law are the contracts having as object works used in the press."
Dan Livescu

7.Is it possible to cede the patrimonial rights regarding ALL the future works of the author?
No. Such a contractual clause is null and void from the start.
Dan Livescu

8.What can the author do in case the remuneration was not established in the contract?
In this situation, the titular of the copyright has two options:
1) to require the annulment of the contract;
2) to solicit a competent Court to establish a remuneration. In this case, the Court will establish the remuneration "taking into account the sums usually paid for the same category of works, the destination and the duration of the utilization, as well as other circumstances of the case". (Article 43-2 of the Law 8/1996).
Dan Livescu

9.What can the author do in case there is a significant disproportion between his/her remuneration and the benefits of the cessionary?
The author has the right to ask a competent Court to revise the contract or to augment the remuneration. The law does not specify a quantum for the disproportion between the remuneration and the benefits of the cessionary. The term "obvious disproportion" is used in the law. Therefore, it is the Court which decides. According to the particularities of each case, the Court will rule in favor of an augmentation of the remuneration if it appreciates that the disproportion is obvious and that it is equitable that the remuneration be increased. Last but not least, the attorney holds a very important role in the success of such an action. An attorney specialized in copyright matters will be able to persuade the Court of the equity of such a request.
Dan Livescu

10.Who has the copyright in case of a work created while in an individual work contract?
The patrimonial copyright over the works created as a result of a work contract may belong both to the author and to the employer. Thus, the patrimonial copyrights belong to:
- the author of the created work in the situation in which there is no contrary clause in the work contract;
- the employer, in case the contract contains express clauses in this sense.
These clauses must also contain the extent of time over which the patrimonial copyrights have been ceded. If the term is not specified, it is considered to be 3 years from the date the work was turned in.
Therefore, watch out! The fact that certain clauses regarding the beneficiary of the patrimonial copyrights are missing from the individual work contract is only in the advantage of the author.
Specific, explicit clauses must be put in the contract, in order for the patrimonial copyrights to belong to the employer.
There is an exception from this rule in case of computer programs.
Dan Livescu


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