Author: Dr. Fodor Klaudia | 28th February 2020

Integrity, ghostwriting, live concerts and streaming - let’s look into the box of copyright!

As I described in my earlier article, copyright grants exclusive rights to the author. I summarized what kind of creations are subject to copyright. In this article I will elaborate the content of the copyright, the specific moral and economic rights, and I will give – as usual – many understandable examples. Integrity, ghostwriting, live concerts and streaming – let’s get is started!

In Hungary copyright includes two types of rights: moral rights and economic rights. Moral rights are attached to the person of the author and economic rights to the exploitation of the work.
  • ‘MORAL RIGHTS’. GHOSTWRITING, PUBLICATIONS AND DISTORTIONS.
In Hungary copyright holds a strong moral relation between the author and his creation. In most of the cases, copyright cannot be sold or otherwise transferred.
The connection between the authors and their work is personal and it remains the same regardless of what happens later to the work.

If someone created a work, he/she will be the author of it. As I described in my earlier article, authorship is a matter of fact like someone’s birthplace or mother’s name: this fact cannot change.

Authorship cannot be sold or transferred, and therefore legally it is not possible to pay someone for creating a work and then “obtaining” the authorship on that work.

This raises serious concerns regarding the ghostwriter-business,

where people write books, articles, or even dissertations for money, and the “purchaser” of it then claims that he is the author of that work.

This personal bond is not equally strong in other legal systems. In common law countries copyright can be sold, because the economical relevance of copyright is stronger than the personal.

You wrote it, you are the author. Photo: Flickr/Henti Smith (CC)

In Hungary, authors have three types of moral rights.
  • PUBLICATION
First, the author may decide if he releases his work or “keeps it in his drawer” forever.
Publication of the work has legal relevance for its later licensing,

because this is the point when the work reaches the world and will spread out like a piece of information. If it is a pop song, it will sneak into our head, and will never leave it, as I described in my previous article.

Only the author can give away important information about his unpublished work. If an author dies without publishing a work, and without leaving any instruction about it, the law presumes that the work was intended to be made public.

Once a work is made public, it will rarely be “taken back”. If it reached the people, it cannot be deleted from their mind, it is rather its further use that can be prohibited.

  • INDICATION OF THE AUTHOR’S NAME
Second, the author’s name must be indicated on his work.
The method how to indicate the author’s name may vary depending on the nature of the creation.

The name of the author will be indicated on the cover if it is a book, at the end of the record, if it is a movie, on a sign at the feet if it is a sculpture.

The author can enforce this, if it does not happen automatically. The author can claim appropriate addition, completion or substitution that serves as a name indication. If a book has more authors and one is left out from the cover, this author can claim that a piece of paper with his name is added manually to the books, even if they are in the bookstores already.

The author’s name must also be indicated on any communication about the work.
If there is news online or on TV about a new book, the author must be mentioned in this news.
  • INTEGRITY
Third, the author decides over the integrity of the work.
It is forbidden to distort or mutilate the copyright work even if you have a license to use the work.

Even if a user has the appropriate license to use a work, this does not mean that he can do with the work whatever he wants to.

Users must pay attention in which “surrounding” they use the work. Distortion can be an inappropriate illustration of a book, play of a music in an indecent TV show, or the erection of a monument in a tiny garden.

Distortion means that the work is used in a way that it was not “meant to be used” by the author.

Mutilation means cutting out parts of the work that changes the concept, the core message. It is normal to play only parts of a song on radio, but if it is done intentionally to make fun of the author, that can qualify as harming his rights.

Other alterations are also forbidden that harm the reputation of the author.

If a building designed for a museum will later be used as a casino, this can harm the reputation of the architect, who is the author of the design and the building.

  • ‘ECONOMIC’ RIGHTS. = ‘USES’.

Economic rights ensure that the authors can make income from their works. They have two sides.

First, authors have the exclusive right to utilize their own works in whole or any identifiable part. They can exploit their works themselves.

Second, authors have the possibility to authorize others to utilize their works.

Users must obtain a license on every use they carry out (or check the law if there is an exemption). If an activity includes more act of uses in the sense of copyright, each must be licensed separately. The permissions can mostly be obtained through licensing contracts from the respective right holders. (From whom and how – this will be the topic of the upcoming articles).

For the license, users must pay royalty.

This is the financial benefit of copyright.

Economic rights ensure that the authors receive royalties if others use their creations. Image: Flickr/ Petr Sejba (CC)

The acts that qualify as ‘licensable uses’ in the sense of copyright are the economic rights of the author listed in the copyright act.
  • REPRODUCTION. I WANT MORE.
Reproduction means fixing or recording the work to a carrier or device, or making digital or hard copies of it.
A copyright work exists in an abstract way and immaterially it can be multiplied as fast as information, as I desribed in my earlier article.

Unlike material objects, if you make a copy of a copyright work, the first copy will not disappear, but it will be reproduced on different devices.

Copyright and the copies of the work have a “separate legal life”. I explain the difference by some tangible examples.

If you buy a book and put it to your bookshelf, you will be the owner of the “hard copy” of the literary work – but never the copyright itself. If you download a musical album to your phone from Spotify, you will possess the digital files but will not be the owner of the copyright over the music. If an architect designs a house for you, and you build it, you will be the owner of the building but not the copyright of the architectural work.

Reproduction occurs by different technical ways depending on what kind of work we have at hand.
We can print out a novel on paper, copy it by hand, we can photocopy an image, we can record music by our phone or by professional studio equipment, we can record videos or films to our computer’s hard drive, a DVD or pendrive, we can upload them to a computer server, we can write down music as sheet music, or construct a building based on an architectural design.
p504
Earlier, people reproduced copyright works by hand. Today we have technical tools for this purpose. From a copyright perspective: it remained the same. Photo: Klaudia Fodor © (2019)
All these everyday activities are reproductions in the sense of copyright.
  • DISTRIBUTION OF THE WORK. SELL IT.

This means selling or renting the work that is recorded on a carrier or device.

Distribution means for example selling books, music CDs, film DVDs, reproductions or the original of an artistic works. Libraries do book, DVD (earlier VHS) rental that also serves as distribution.

  • PERFORMANCE OF THE WORK IN PUBLIC. BE PRESENT.
Performing a work is the simplest and most traditional way of making people enjoy someone else’s work.
It happens before an audience that is present

and has two types.

First type is live performance, when the work presented is not recorded. Artists, musicians and actors contribute to the show with their own performances, like on a music gig, a theatre show or poetry recitation.

The other type of performance is when the works are recorded, the performance thus occurs through technical means. For example, playing a film in the cinema, playing background music in a shop or hotel lobby.

  • COMMUNICATION TO THE PUBLIC. VIDEO KILLS THE RADIO STARS.
Technology made it possible that copyright works can be transferred to an audience that is not present.
Through technology, people can enjoy works of art, literature and science from the distance.

Communication to the public is linear, constructed and compiled by the initiator. The audience does not choose the works just enjoy the program flow.

We all know the broadcast through radio or TV, regardless of what technology it uses (cable, vire, by satellite). Cable or satellite retransmission is also one type of it.

p5 radio

The classical way of broadcasting through radio waves. Photo: Flickr/Allen (CC)

  • ON DEMAND MAKING AVAILBE. THE INTERNET.

When works are made available to the public, the audience choses the place and the time of the access.

I would describe it this way: the works are in a digital “storage”, and the audience individually picks the works they want to enjoy. In the sense of copyright, the first act is one sort of communication to the public, the second is a reproduction.

The biggest difference to broadcasting is that through making available copyright works don’t reach the audience as a linear program flow.
The audience interrupts the program flow, changes it, individually selects works to enjoy. It is also called ‘on demand’ making available, or with a non-legal term:
“uploading to the internet”.
This is how copyright works are shared on the internet. All online music and media service companies work by making works available to their subscribers (I-Tunes, Spotify, Deezer, HBO GO, Netflix). They either go by offering downloadable contents (end users make permanent copies of the works on their devices) or through streaming services (no permanent copies are made by the end users).
  • ADAPTATION OF THE WORK. CREATING SOMETHING ELSE.
If I should pick one, this one is my favorite economic right because it results in wonderful new works of art, literature or science.
Adaptation means that from the original work another work is made.

In this case users can be authors themselves – the authors of the derivative works. This does not exempt them to ask for permission from the author of the original work though.

The circle of the adaptations is colorful depending on what kind of work we have at hand.

Adaptation is the translation of a literary work, bringing a literary work to the stage, making a cover version or a remix version of a song, re-constructing a building, dubbing a movie, other alteration of a work that results in a work different from the original. If a music is used in an audiovisual work (video, movie), this kind of adaptation is commonly called “synchronization”.

  • EXHIBITION OF A PAINTING OR SCULPTURE. MUSEUMS.

As far as photos, works of fine art or applied art are concerned, the author’s approval is needed for the exhibition of the works.

As I said above

the “tangible” original and the copyrights in the work are two different matters.
If an art collector owns a painting, this does not mean that he has the right to exhibit it.
Exhibition and more. Photo: Klaudia Fodor © (Barcelona 2009)
  • THE MYTH OF INCOME AND PROFIT.

Users mostly benefit from the uses in a financial way.

However, we cannot presume that if the uses are not for commercial purposes then no permission is needed.

Using someone else’s copyright work for non-profit uses can be as bad as doing this for business. It destroys the possibility of a lucrative exploitation of the work by the author himself.

For example, someone publishes a writer’s novel and distributes it for free. He says, he does not want to make profit from it, just wants to spread it out, because it is such an important piece of the cultural heritage.

What is the result? The novelist cannot sell the book in the bookstores himself as it is already available for free.

The same happens, when someone uploads a copyright content (a book, a picture or a film) to the internet claiming that he only wants that everyone has access to it.

What is the result? The right holder cannot sell that product online as it is available for free.

No matter if profit is made, illegal uses harm the author’s interest. Photo: Flickr/Bruno (CC)

If the law maker wants to exempt users from the obligation of asking for permission, then it will establish a ‘free use’ in the copyright code.
I will come back to this topic in a later article.
  • SUMMARY
To wrap it up:
  • if you as an author or right holder want to grant licenses on your work,
  • if you need a licensing agreement for that,
  • if you have received a draft and you are concerned if it reflects your interests,
  • if you are a user and want to receive permission to use someone else’s work,
  • if you are before or in the middle of a copyright dispute,

contact me, I can help you to navigate through the maze.

In the upcoming article, I will write about how to get a license to use someone else’s work.

My mission: I realized that there are many misconceptions about copyright that I call “copyright myths”. Therefore, I have started a copyright awareness raising campaign on social media – the English blog series is one part of it. Follow me on Facebook and Instagram for the Hungarian contents (#kfodorlegal). Let’s kill copyright myths once and for all. #KillingCopyrightMyths
Dr. Klaudia Franciska Fodor is an attorney-at-law in Budapest, specialized in copyright, real estate and company law. She used to work for the Hungarian copyright organization, Society Artisjus. Don’t hesitate to contact her in civil law related legal matters in Hungary.

Billboard picture with boxes: Flickr/judy_and_ed (CC)

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