Cultural Dimension in Estonian Copyright Law

Author:Heiki Pisuke
Position:Professor of Intellectual Property Law, Acting Director, Institute of Law, University of Tartu

1. Estonian copyright (autoriõigus) - the right of an author or of an undertaking? - 2. International dimension - 3. Conclusions


Heiki Pisuke1

Professor of Intellectual Property Law, Acting Director, Institute of Law, University of Tartu

Cultural Dimension in Estonian Copyright Law

The objective of this article is to discuss some national and global issues of copyright law. The subject of the analysis is the relationship of Estonian copyright law today with culture and economic activities.

1. Estonian copyright (autoriõigus) - the right of an author or of an undertaking?

Estonia belongs to those Continental European countries where the terminology itself reveals the bases of legal regulation. The counterparts of the Estonian term autoriõigus in other civil law legal systems are droitd'auteur, Urheberrecht, dirittodiautore, upphovsrätt, tekijänoikeus, avtorskojepravo, etc. And although according to international practice autoriõigus is translated into English as 'copyright', the Estonian term expresses the content of the notion correctly.

Section 39 of the Constitution of the Republic of Estonia sets out: 'An author has the inalienable right to his or her work. The state shall protect the rights of the author'. The entire copyright regulation is based on the premise that the author is the creator of the work. Such a conclusion may be drawn even from § 1 of the Copyright Act2, titled 'Purpose of Copyright Act'. Subsection 1 of this provision reads as follows: 'The purpose of the Copyright Act is to ensure the consistent development of culture and protection of cultural achievements and the development of copyright-based industries and international trade, and to create favourable conditions for authors, performers, producers of phonograms, broadcasting organisations, producers of first fixations of films, makers of databases, and other persons specified in this act for the creation and use of works and other cultural achievements.'3

Upon the adoption of the Copyright Act in 1992, the provision setting forth the main objectives of the Act was worded with solely the cultural dimension in mind. Only by the amendments to the Copyright
Act, which entered into force on 6.01.20004, was a reference to the cultural industry and commercial activities introduced using the expression 'the development of copyright-based industries and international trade'.

On what grounds can we decide that the underlying element of the Estonian copyright law is the author as a creator of cultural achievements? Above all, by the regulation of protected works and the rights guaranteed in the Copyright Act to authors and the exercise of such rights.

The legal definition of a work protected by copyright has been set out in § 4 of the Copyright Act. The criteria for the protection of a work are traditional. Works mean any original results in the literary, artistic, or scientific domain that are expressed in an objective form and can be perceived and reproduced in this form either directly or by means of technical devices. The criterion of originality of a work as applied to all types of works is that a work is considered to be original if it is the author's own intellectual creation5.

The Estonian law clearly expresses the presumption of protection of a work6. The burden of proof lies on the person who contests the protection of a work by copyright.

Such a concept proceeding from the author's interests allows for the protection of oral works, photographs, designs, buildings and landscape architecture, etc. Such a broad range of protected subject matter manifests one of the functions set out in § 1 of the Copyright Act: to provide authors with favourable conditions for the creation of mental and material culture.

The Copyright Act grants to the author an extensive catalogue of rights that is much broader than provided for in any international standards established by intellectual property agreements and the majority of the copyright laws in the world. The list of personal or moral rights is especially extensive, comprising nine independent rights7. For example, the two rights of article 6bis of the Berne Convention for the Protection of Literary and Artistic Works have been detailed as five independent rights in the Estonian Copyright Act; for the violation of each, the application of a separate remedy may be sought. These rights are the right of authorship, the right to the author's name, the right of integrity of the work, the right of additions to the work, and the right of protection of the author's honour and reputation. In addition to these five, the principles of article 6bis of the Berne Convention have been developed further in the form of the independent right of disclosure of the work, the right of supplementation of the work, the right to withdraw the work, and the right to request that the author's name be removed from the work that is being used8.

Copyright, both moral and economic rights, in a created work belong to the author in all cases, according to the Estonian law9. This is an important legal and political starting point, which once again emphasises that copyright derives from the creator and belongs to the creator at the moment the work is created. The use of a work as a cultural phenomenon or an object of the economic activities of society derives from the author. Consequently, the whole system of economic exercise of copyright has been structured proceeding from the author and starts with nobody else but the author.

According to the Estonian law, the author may dispose of his or her proprietary rights in any manner and form. The economic rights can be assigned individually or as a set of rights, or they can be licensed. In such cases, an author is entitled to remuneration. The law does not impose any limits on the terms of authors' contracts. This means that by a contract, an author may assign all his or her economic rights until the copyright expires (70 years after the author's death). Permitting conclusion of authors' contracts without any time limits is not characteristic of the legal systems of several countries, which impose, for example, a maximum term of validity for authors' contracts or do not allow for the assignment of all the author's economic rights. In this respect, the applicable Estonian copyright law involves a certain contradiction between the granting of legal guarantees in the author's interests and the extremely liberal policy concerning conclusion of contracts. On the basis of complete freedom of contract, the author has the absolute right to decide on the use of the fruit of his or her creation. As demonstrated by practice, this provides an opportunity to take advantage of the ignorance of authors and to conclude contracts that are extremely unfavourable for authors. The Copyright Act does not provide any guarantees to authors regarding contracts already concluded. However, the interests of authors can still be protected under the provisions of the new Law of Obligations Act10, which govern withdrawal from or cancellation of a contract.

In the case of moral rights, the Estonian law does not expressly permit their assignment11. However, a licence may be granted with respect to all personal rights12.Such a licence may, analogously to economic rights, be an exclusive licence or a non-exclusive licence. In practice, this is a very important provision that is seldom found in the laws of other countries. Namely, the licensing of personal rights allows for solving the 'ghost authorship' issue. If a political speech is written by one person (who is the actual author) and is presented to the public by another person under his or her name (for example, a minister), then from the copyright perspective the situation is undetermined and even risky. The granting of an exclusive licence to moral rights is close in essence to the assignment of all these rights, and this can also be done with regard to the right of authorship. Thus, the provision is extremely important, for example, in relation to designs of trademarks, banknotes, official insignia, etc. created by an artist. From the point of view of the certainty of transactions, such a solution is a positive one. The hidden activity that has so far operated on the basis of custom has come to a clear legal solution. At the same time, it must be noted that in practice such contracts are seldom found. As a rule, this is caused by the fact that neither the user of the work nor the author is familiar with matters of law.

In practice, moral rights are violated rather frequently, and relevant judicial practice is developing in Estonia. The Supreme Court has rendered several decisions in the area13.

According to the Estonian law, only a natural person may be an author. A legal person cannot be an author as a creator of a work. A legal person as a subject of derived rights may naturally have copyrights on the basis of law or a contract14.

Following consistently the Continental European tradition based on the author, the Estonian Copyright Act still makes three reservations in relation to the ownership of economic rights that are typical of the Anglo-American copyright tradition. Namely, the copyright in works created under an employment contract or in public service in the execution of a person's direct duties and in audiovisual works...

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