Consumers’ FAQs on copyright: copyright and virtual worlds

There has been published a very useful guide for consumers and for anyone who is curious about copyright. This guide explains different things, relating to IP rights, in simple way. The project has been commissioned by the European Union intellectual property office.

The Guide aims to give ‘answers to the most frequently asked questions (FAQs) average consumers have in relation to copyright for all twenty-eight EU Member States.’ The present Summary Report highlights the convergences and differences in national copyright laws in relation to the 15 consumer questions.

Since the issue of avatars is not specifically addressed by regulation or case-law, most answers were given on a hypothetical basis. In Malta, exclusive rights are infringed ‘when a substantial part of such character (e.g. the face of a cartoon character) is reproduced/distributed/displayed to the public etc. – either in its original form or in any form recognisably derived from the original’.

Several objects may be protected by copyright: cartoon characters (e.g. DK, DE, EL, FR, CY, LV, LT, LU), original logos (e.g. FR, LV, FI), the name of a sport club (e.g. LV), fictional characters (e.g. film or novel characters) (e.g. CY), a photograph representing a film star or an athlete (e.g. CY, FI).

It is noted that ‘in general, use for the creation of an avatar of elements from the image of movie stars, cartoon character or sports clubs would not infringe the rights in the works, since such would not undermine the functions these rights are meant to ensure’. It appears that in Belgium, Spain, Croatia and Slovenia, the risk that a rights holder will take any legal actions is very low due as long as the use of the avatar is non-commercial. This would mean that the rights are infringed but will probably not be enforced.

First, the user may obtain the author’s authorisation. This would be especially important when the avatar is made available to the large public, and not only to a small circle of friends. Next, a number of exceptions or limitations to copyright may be invoked. In that case, the use would have to fulfil the conditions of application of the relevant exception in the relevant Member State. Where the elements protected by copyright are used in a humoristic way, the exception for parody may be applicable. In Portugal or Finland, the use might under certain circumstances qualify as a quotation. In Denmark, a consumer may lawfully use only smaller, insignificant parts of the character in the creation of his or her avatar.

In addition, it might be possible in certain cases to invoke fundamental rights, such as freedom of expression. Other principles outside copyright law that might strengthen the user’s position are abuse of rights or the principle of good faith. It was pointed out that ‘if the avatar is created by the end-user in a pre-established framework of limited options, for example, in a computer game, this end-user (who has not programmed the game) cannot be held liable for copyright or other IP infringement’.

Users always have the option to use copyright-protected works (or elements of such works) only as sources of inspiration (LV, NL, PL, SI, FI). In that case, there is no need to receive the rights holders’ permission. In Austria, for example, ‘in case that copyright protected elements are used, though completely absorbed in the avatar (so that the used elements take a “backseat”), the avatar is an entirely new creation that does not need approval for its use’.

Trade mark rights may often protect the distinctive signs in the logos of sports clubs or film stars or a cartoon character’s or sport club’s name. In most Member States, it appears that the user does not risk any actions for infringement when the use of the sign is non-commercial. However, the use ‘must not, without due cause, take unfair advantage of or be detrimental to the distinctive character or repute of the trademark’.

In Lithuania the image of a film star may be used ‘if his/her photo is taken in relation to his public activities or in the public place; however, this photo or its part should be used in such a way as to not damage his/her honour, dignity and professional reputation’. In Poland, consumers ‘can also use a picture without infringing image rights when the person presented is constituting only a detail of a whole, such as a meeting, a landscape, or a public event’.