What are Neighboring Rights?

 

Copyright is that branch of Intellectual Property (IP) that protects and covers all creations that are a culmination of the creative human mind, irrespective of what form or merit they hold and the audience that consumes them. Copyright in creative works is created automatically and immediately, and therefore, it does not require a formal procedure to seek protection from a third party.

Additionally, copyright also vests in people who are not technically the authors of the work created; instead, they are crucial supporters and participants who make the work possible. These could include artists, producers of phonograms & others involved in television, radio & broadcasting. In them, vest certain rights known as the neighboring rights.

Cracking the Basics

The term 'neighboring rights' can be found in the World Intellectual Property Organization (WIPO) Glossary, which can be understood as a right granted to protect the interests of performers, producers of phonograms, and broadcasting organizations relating to the activities of the public use of an author's work. Often the term 'related rights' is also used to mean the same as neighboring rights. The notion of different countries has varied in determining the scope of these rights.

These rights are not essentially the same as copyright, but they are based on works protected by copyright. Most importantly, they offer the same exclusivity as copyright, albeit they do not cover the actual work.

Categories of Neighboring Rights

Neighboring rights can be segregated into three different kinds of categories, which are mentioned below:

• Performer Rights: These rights vest in performers, which include musicians and actors. They protect their performances against any unauthorized and illicit recording or transmission. The same also gives the power to exploit and guarantee a certain degree of control over the exploitation and remunerations earned whenever these recordings, including their performances, are commercially exploited. It means that only when the performer's content has been legally obtained can the work be communicated to the public; otherwise, it shall be a violation of his neighboring rights.

 

• Broadcasting Rights: These rights are vested in a broadcasting organization, including television, radio, or other telecasting providers. It means that where a live performance is facilitated by a broadcaster, he has all the rights to authorize or prohibit the use of the program. Hence, if the same program is recorded and put on the internet for the public to see, it is a violation of the broadcaster's rights.

 

• Recording Rights: Similarly, by law, where a sound recording of someone has been recorded with the prior consent of a performer, the performer's consent is further required for any communication that is to be made to the public. Such rights can be enforced by the legal representatives of the performer or artist after his death.

What is the International Guiding Framework?

The Rome International Convention, also known as the International Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations, specifies that performers have the right to oppose the broadcast, communication to the public, fixing, or reproduction of their performances. The Convention is one of the most crucial conventions on an international level, which was adopted way back in 1961. It is jointly managed and directed by the United Nations Educational, Scientific, and Cultural Organization (UNESCO), the International Labour Organization (ILO), and WIPO.

 

Apart from the Rome Convention, it is also a part of the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement, 1994, which came into force on 1^st January 1995. The Rome Convention 1961 protects neighboring rights for up to 20 years from the end of the year in which the performance, the recording, or the broadcast of the work took place.

 

Other than the previously mentioned conventions, the WIPO Performance and Phonograms Treaty (WPPT) and the Beijing Treaty on Audio-Visual Performance (BTAP) also protect the performers, producers, and broadcasters in various ways that may appear to be more extensive in nature. They offer protection of neighboring rights for up to 50 years with an increased scope of protection of the rights of performers and producers while expanding into the digital era with the protection extended to the exploitation of protected works even over the internet.

 

Conclusion

It is imperative that the rights of each contributor in the creative ecology are sustained and preserved to give the due weightage of labor. Also, it is pertinent that in such preservation of rights, the freedom of information and access to knowledge are not compromised and liquidated. Therefore, it is integral to recognize the contribution of all artists related to the primary copyrighted work to incentivize further creation of art and culture by protecting rights underlying sounds, images, or both.

Till now, because of WIPO, authors, performers, and phonogram producers have been granted a broadly worded exclusive right of communication covering all the possible aspects of neighboring rights. It is essential to imbibe such international standards in national regimes to observe an expansion of such rights.

 

 

Safeguarding Fashion Shows: Copyright Laws on the Runway

Fashion shows in today's time are more than just a couple of models walking the ramp adorning beautiful clothes and accessories. Contemporary fashion shows involve the projection of stories and performances for which substantial investments and hustling of creative minds are required.

Consider the example of Fendi's iconic defile on the water of the Trevi Fountain in Rome or the angelic performances of Victoria's Secret models coupled with a live music performance by famous artists. These can and should be legally safeguarded to ensure that models ethically enjoy adequate protection.

The First Case to Provide Legal Protection: Ashby v. Gaulme, Kenzo et Lacroix

In the Ashby case, the Supreme Court opened new doors for including fashion shows in the non-exhaustive list of copyrightable works found in Article L.112-2. The case was brought forth by the French Federation of Couture, and five haute couture companies, which included Chanel, Christian Dior, and Hermes, against three photographers for uploading photographs and videos of the fashion shows on a website. A strict system to monitor and regulate the taking of photographs was developed by the French Federation of Couture, as per which Ashby and the other two photographers claimed that they were allowed to upload photographs on the internet to report the current event in consonance with the French Intellectual Property Code and the European Convention on Human Rights.

In the first instance, the photographers were not found guilty; however, the Paris Court of Appeal reversed the decision and gave a rather more elaborate form of protection to this form of art. The Court held that the photographers were guilty of Copyright Infringement not only of the claimants' apparel but also of the fashion shows themselves. Later, the photographers moved to the European Court of Human Rights (ECHR) for the alleged violation of freedom of expression. However, the matter was adjudicated in favor of the claimants again as the ECHR stated that the freedoms envisaged in the European Convention on Human Rights are not absolute in nature and are rather subject to some specific duties and responsibilities in addition to conditions, restrictions, or penalties.

Author of Fashion Shows

Now that it is ascertained that fashion shows can be safeguarded, it is crucial to determine who shall be considered the owner or author of this kind of work. Fashion shows are conducted through the cumulative efforts of several artists like architects, set organisers and designers, sound and light technicians, hairdressers, makeup artists, seamstresses, etc.

One way of safeguarding the rights of each of these contributors is utilizing the option of 'composite works,' where works cannot be segregated into parts. It allows everyone involved in the process to be recognized as a co-author of the component that is a part of the communion regime. Therefore, the same shall entitle all the co-authors to autonomously utilize and exploit the rights vested in the component, which is a culmination of their effort, unless the same is cited differently in writing.

Another way is to utilize the rights under the regime of 'collective works' where different components of the work can be broken down into separate segments. It allows individual and autonomous authorship.

The safest mode of safeguarding these rights is to transfer the rights vested in each individual to a company. It shall ensure that the rights are safeguarded well. Furthermore, it shall ensure that same or similar works are not replicated or slavishly imitated to promote fair competition and mutual appreciation of arts.

Fashion Models as Performers

Artists consist of several kinds of performers, not primarily limited to actors, singers, musicians, or dancers. A reflection of this can be found in the WIPO Performance and Phonograms Treaty stating that protection can be afforded to "actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works." The Rome Convention also extends a great deal of protection to performers, which can be deduced to be in favor of the rights of fashion models. Despite such interpretations, the national laws and regulations do not recognize the work of fashion models to be included in the definition of 'copyrightable work.' Therefore, this neglect of policymakers requires a shift from the traditional notions and understanding of Intellectual Property Rights (IPRs).

Objection to Treat Fashion Shows as Copyrightable Subject-Matter

One objection against safeguarding fashion shows under the copyright regime is they are a 'volatile' creation. Since they are displayed once and are most likely not to be repeated in the same medium and format, they have insufficient unity and definition. However, the fashion shows these days, as witnessed, often have a plot, a definite storyline, which could theoretically be repeated. However, 'fixation' of work or reproducing the same on paper is a prerequisite for claiming copyright in most parts of the world. But, there are some territories where less stringent laws apply in this aspect. As can be seen under Italian law, fixation is not required for Copyright Protection, and therefore, the oral manifestation of works is also protected. Furthermore, copyright protection in Italy can be granted to creations that vary over time within the lines of a given plot.

Another commonly raised objection is that unlike dramatic works or artistic performances, which primarily have a cultural aim, fashion shows have only an underlying commercial purpose. They are carried out only to support the launch and sale of fashion apparel and accessories. However, most laws do not impose any restrictions on the operation of copyright protection for works that have a commercial purpose. 

Conclusion

Although copyright protection in the domain of fashion shows and runways is comparatively ill-explored, it would be interesting to note how various national policymakers make way for such artists in their legal Intellectual Property (IP) regime. Until the stance on the matter settles, it would be a safer alternative for companies to conclude agreements clearly indicating and defining the scope of IPRs vested in the many contributors that aid in the facilitation of such fashion shows. The same would ensure the due exercise of economic rights in an orderly fashion.

  

Second Medical Use Claims

 The repurposing of drugs to find immediate solutions for new diseases is witnessed commonly in the pharmaceutical sector. In recent times, the same is instead a frequent instance to treat flues and viruses, as also perceived while identifying the solution for the Big-C, the 'Coronavirus.' The antivirals used to cater to diseases like HIV and SARS were clinically tested to adjudge their efficacy in the fight against COVID-19. Remdesivir, which was earlier utilized for the treatment of Ebola, is now used as a dose of Coronavirus vaccine. Similarly, acetylsalicylic acid, often known as Aspirin, was developed by Bayer in the year 1897 to treat pain and fever. However, it is now also utilized as an effective cardiovascular medicine that decreases the chances of suffering a heart attack or stroke. While the Patent Law safeguards the exclusive rights of an invention's proprietor up until a specific specified period, it also protects new uses of known drugs. Let us find out how.

Can a Patent be Sought for Second Medical Use Claims?

When a substance or composition is already known for primary medical use, it may still be safeguarded as a patent for a second or subsequent medical use; however, the proprietor must prove that such use is novel and inventive. Furthermore, such patents should be meticulously drafted and litigated.

 

There are several instances where existing medicines are being developed for new medical uses. Consider the following examples:

• Sildenafil citrate, which is primarily used for heart and vascular diseases, came to be later marketed as a drug for erectile dysfunction.
• Finasteride, primarily meant for the treatment of prostate disorders, was at a later stage found to be effective in the treatment of androgenetic alopecia.
• Thalidomide was patented for respiratory infections; however, its second use was found to help relieve morning sickness in pregnant women. Also, it was discovered to be useful in the treatment of diseases like leprosy and cancer.

The European Stance on Second Medical Use Claims

Second medical use claims were not permitted until a fairly long period in Europe. However, after 1984's landmark G5/83 decision, second medical use claims began to be acted provided they were written in the 'Swiss-type' format depicting:

"Use of Compound X for the manufacture of a medicament for use in the treatment of Disease Y."

 

This legal trend of the Swiss-type format was then substituted by the "purpose-related product claims" since it became the new mandate after the EPO Enlarged Board appealed the landmark G2/08 decision. A purpose-related product claim should be in the format depicting:

"Product X for use in the treatment of Disease Y."

 

The second medical use patent may address the following concerns:

 

1. The use of a known drug to treat a new disease ("Known drug/new disease")

In most patent claims, the phrase "for use" is interpreted as "suitable for use." However, second medical use claims are an exception to this generality and are fully use-limited product claims. They can be used for the treatment of multiple diseases by covering them in a single claim, but the treatment of all such diseases must form a single general inventive concept as stipulated under Art. 82 EPC.

2. The use of a known drug to treat a known disease using a new therapeutic method ("Known drug/known disease/new therapeutic use")

A second medical use claim can also be filed for the treatment of the very same disease in the form of providing a new therapeutic method in the form of a new dosage regime, administration mode, or patient group, as also provided under G2/08.

 

Issues Surfacing Second Medical Use Claims

Lord Justice Floyd once said, "Whilst it is widely recognized that there are valuable, sometimes life-saving inventions, which are made through the discovery of the new use of a known drug, their protection in patent law is problematic." Let us look into these problematic concerns.

 

The main reason for claiming a second medical use patent is to prevent third parties and competitors in the market from infringing upon the proprietary rights of the inventor. However, generic drug manufacturers are often seen flouting the laws to seek commercial gains. To prevent such acts of infringement, it is a settled law that purposeful arrangement should be proven. The purposeful arrangement can be understood as a form of use wherein there is a recommendation in the form of a packaging insert, labels, or on medical information slips or prescriptions, which are distributed along with the drug.

 

Also, it is considered infringement only if the generic manufacturer intends to use the second medical use claims for the treatment of the patented indication, proving which is undoubtedly an uphill battle. Therefore, generic manufacturers adopt the following measures to prevent being trapped in a series of endless litigations:

• Using "skinny labels" by carving the patented indication from the medical leaflet, which comes along with the medicine;
• "In-label use" - the use in an indication that is mentioned only generically on the label and not in the specific form that is patented; or
• "Off label-use" - the use in an indication for which the drug has not received regulatory approval.

 

Furthermore, the problem heightens when we look at certain jurisdictions that do not offer any protection to second medical use claims. It includes countries like those in Latin America. Even mass producers of generic medicines like India do not afford any rigid and concrete protection against such patents.

 

Conclusion

It should be understood that inventions in the domain of pharmaceuticals involve great capital expenses and abundant research and development initiatives. Bringing a new molecule itself does not cost any less than one billion, and therefore, this time-consuming process is cushioned if second medical use patents are safeguarded. It is a relatively cheaper route; however, qualifying clinical trials of all stages is yet another elaborate affair. Therefore, laws should address the infringement issue of second medical use patents to protect these claims adequately while also keeping misuse like doubt patenting and illicit activities under check. It shall be interesting to observe how lawmakers juggle around this issue to afford better and affordable protection.