Sərmayə’s question: According to the Article 5 of the “Law on Copyright and related rights”,

copyright extends to scientific, literary and artistic works that are the product of creative work.
We said that in national law originality is the main point and originality is the minimum level of
creativity coming from a natural person. On one hand we say product of creative work, on the
other hand we say that originality is minimum level of creativity. To what extent should it be
original?
The result is some expression, which is some product. There are several components of
originality. The first one is about the expression of the work, which is novel. The other one is
that, it’s certain way of expression and it comes from someone, it takes its origin from someone.
But it’s not about originality in Azerbaijani language, like “’əsllik’ or prominence. Origin means
“mənşə”, which comes from a person, who is intellectual, who has some work that is intellectual,
something to be understood. Sərmayə asks why is it written as “the result”? Creativity degree is
the main point. Minimum level of creativity means just like novelty, something like a new way
of expression. For example, AI, under the algorithms, is doing some work\production. To what
extent it is creative or not – that’s the case. Because in most cases those are automatic. A person
who uploads these algorithms to platform to create some work – this is the algorithm, which has
been thought by someone. To what extent, the person who has created the algorithm, can
imagine the product, the creative work? – This is challenging issue. Therefore, in most cases, we
are saying not AI originated work, but we are saying AI generated (generasiya olunmuş). Under
some terms, it’s done automatically.
In our legislation there are a lot of misconceptions. For example, “yaradıcılıq fəaliyyəti” is not
disclosed in our Supreme Court’s judgement. But it has been disclosed and interpreted by the US
Court, which is accepted as minimum level of creativity, which is just novel and comes from a
person. (2 main criteria).
Exceptions and Limitations:
The main component is 3 steps test. Almost in all jurisprudences it’s in such a way. It means that
you can acknowledge certain limitations and exceptions to some legal norm. But there should be
3 main steps:
1. It should be to certain special cases, so not in all cases you can do that - Limitations
yalnız xüsusi hallarda tətbiq olunur.
2. It should not conflict with normal exploitation of a work - İşin normal istifadəsinə mane
olmamaq şərtilə. It’s in respect to the economic rights.
3. It should not disproportionally harm the legitimate interest of the right owners\right
holders - Hüquq sahibinin hüquqlarına zərər vurmamaq şərtilə.

- Exclusions. When a work is excluded from protection? Bu istisnadır, müəlliflik

hüquqlarının şamil olunmadığı obyektlərdir.
- Exceptions and limitations. Here, we are mostly talking about limitations –
məhdudiyyətlər.
What kind of exceptions and limitations are applied generally?
 Fair use (sərbəst istifadə) or fair dealing.
- quoting from a protected work, provided that the source of the quotation and the name of the
author are mentioned, and that the extent of the quotation is compatible with fair practice; So,
there are 3 main components of quotation: the source should be indicated in there (1), the name
of the author should be mentioned (2), and extend of quotation should be within a reasonable
practice (3).
- use of works for teaching purposes;
- use of works for the purpose of news reporting. Sometimes, there’s such kind of situations that
the newspaper discloses all the details of the information. Here, it’s not acceptable. So, you have
to left the right owner an opportunity to get certain uses or exploitations, etc.
 Compulsory (non-voluntary) licenses - use of works in certain circumstances without
the permission of the right owner, but compensation must be paid for that use.

Jurisprudence of WTO (ümumdünya ticarət təşkilatı) – They have a dispute settlement

mechanism. But it is not working as a judge, judiciary, but it is in a different way. It means that
there are 168 countries member to this organization. In case there is any violation coming from
the legislative norms of any member country, the others may apply to the court, the dispute
settlement body, to make some corrections to their legislation. So, after that, certain period of
investigation starts and it shouldn’t be more than 1.5 years. There should be found some
settlement.

There was a US Copyright Act. Here, fair dealing is covered also Homestyle exemption (ev
istisnası) and Business exemption (biznes istisnası):

We said that fair use also includes private use.

-1st example: you have bought DVD of some movie, you go to your home and watch it alone. In
this case, there is no violation.
-2nd example: You and your relatives around 20 or 30 people together have gathered in your
house and watch this DVD. There is no any kind of commercial benefits for the person who
bought this DVD. This is also a private use, so there is no violation.
-3rd example: In each week, on Fridays, you organize a situation that people come, pay very
little amount of money (like 50 cents) to watch DVD. In the US system, homestyle exemption is
about the fair use, completely for personal purposes. But this kind of business exemption was
also considered as fair dealing in that system, under that Copyright Act. So, business exemption
should also be considered as fair use. But European Community applied to the dispute settlement
body of WTO, saying that this shouldn’t be considered as fair use.

We don’t have this kind measurement but, radios if they are used by restaurants, shops, bars,
they have to pay. There are 2 kinds of regimes of joining to these transformers: 1) for home –
you are getting some membership, using some package, and so on. 2) You are using radio in
your mall, restaurant, etc. For both of them, there is different payment regimes.
This homestyle exemption, in the end, considered by the court as violation\misuse of fair use.
Business exemption was considered as not fair from the point of the doctrine of fair use, which
comes from the copyright protection generally. Yəni, US sistemdə business exemption fair use
sayılırdı, ancaq Avropa Birliyi ölkələri işə yenidən baxdılar və qərara gəlindi ki, homestyle
exemption fair use hesab olunsun, ancaq business exemption hesab olunmasın. Buna görə də,
Amerika öz qanunvericiliyində dəyişiklik etdi və business exemption fair dealing hesab
olunmadı.

Homestyle və ya business exemption arasında insanların sayı baxımından limitlər var. Bu

müəssisənin yerləşdiyi yerdən, neçə nəfərlik olmasından asılıdır. Ancaq müəyyən say həddi
müəyyənləşir və bunu adətən məhkəmələr vəziyyətdən asılı olaraq özləri interprete edir.

Question: In US system, how can we differentiate business and fair use? They are checking the
number of people (how many people come to the enterprise), how many selling is there, to what
extent people are attracted by the music, and etc. Because it impacts the economic scale of the
enterprise.

Exhaustion of rights – Hüquqların tükənməsi. It’s called as first sell doctrine. Birinci satış
doktrinası. It means that if you sell your IP protected object in some material form, you have
exhausted your right on that object. If you bought this book, you can use it independently in the
country of origin. Sometimes, there can be such kind of regime that, even if you bought it, the
right owner should maintain these rights. We can define 3 types of regimes: 1)first sale doctrine:
if you sold, you don’t have a right. There are also reginal and international. In international,
anywhere of the world, if you have sold your IP protected object, then you exhausted your rights.
But in some other countries there can be a situation that, you have bought the object, but the
rights of the right owner are protected within the territory. But if you go to the abroad and use
that in the other country – this is different. There are different regimes and it left free for the
countries to define themselves.
1-ci satış doktrinası budur ki, obyekt satılan anda müəllifin onunla bağlı olan hüquqları bitir.
Məsələn, həmin obyekti siz götürüb evinizdə icarəyə verirsiniz. Tələbələrə elan verirsiniz ki,
sizdə hansısa kitab var, istəsələr gəlib 1 manatdan sizdən götürə bilərlər. Bu halda müəllifin
onunla bağlı olan hüquqları bitib və siz bu cür istifadəni həyata keçirə bilirsiniz. Bu exhaustion
of rights məsələsidir. Amma bu rejimdən asılıdır. Məsələn, elə ölkə var ki orada beynəlxalq
rejim tətbiq olunur – dünyanın istənilən yerində əgər siz obyekti satmısınızsa, deməli sizin
hüquqlarınız tükənib, başqa bir yerdə kim istəsə onu istifadə edə bilər. 2-ci rejim milli rejimdir –
siz obyekti satsanız da, kimsə alsa da, müəllif hüquqları Azərbaycan ərazisində qalır. Yəni, siz
onu yuxarıdakı misal kimi commercially istifadə edə bilmirsiniz. Regional da ola bilər – Daha
çox EU ölkələri və Afrikada belə rejimlər tətbiq oluna bilər. In that case the person who bought
the object can sell it again to the 3rd person, there will not be any kind of violation.
Related Rights:
Almost all main concepts like, exclusive rights, limitations, exceptions, and so on…they are
almost the same with copyright. Related rights are rights that create opportunity for the
community to percept the protected IP object – IP ilə qorunan obyekti dərk etməyə imkan verən
istənilən fəaliyyətdir. In classical, there were just 3 types of related rights:
• The rights of performers (rights of performing artists in their performances) –
performance of work;
• The rights of producers of phonograms (rights of producers of phonograms in their
phonograms)
• The rights of broadcasting organizations (rights of broadcasting organizations in their
radio and television programs);
But later there was a new change and nowadays, publishing rights are also considered as related
rights. Sometimes activities related with databases are also considered as related rights.
Who are the performers or right owners of these related rights? actors, singers, musicians,
dancers, broadcasters, etc. But why are we calling it related or neighboring rights (əlaqəli\qonşu\
qarışıq hüquqlar)? The main point is that whatever is performed\broadcasted\produced, those are
mostly the objects, that are the copyright objects. Müəlliflik hüququnun obyekti olan istənilən
nəsə related rights-da istifadə olunur, oxunur, çalınır, yayımlanır və s. By the way, it can be
folklore as well, which is in public domain, which is not protected.
In some countries there is some differentiation among related rights. First one is in respect to
performance. In most cases, performances are also considered as creative. İfaçıların hərəkətləri
müəlliflik hüququ altında qorunması məsələləri müzakirə olunur. What is performance? In our
legislation we refer it as ”ifa”. Qanunvericilik və interpretasiya baxımından “nümayiş” secondary
sayılır, bizim birinci baxdığımız “ifa”-dır. Çünki əgər müəlliflik hüququ nəzərindən baxırıqsa, bu
ifadır, amma related rights kimi baxsaq onda nümayiş kimi də başa düşə bilərik. İt is some
creativeness by the person put in it. For example, there is a song written by the composer and
there are also performers. Each performer will have different performances, all of them have
their own way of expression\creativity.
Who are the performers? Singers, actors, etc.
Broadcasting organizations – all kind of rights coming from radio and television programs.

Question: You have an account on Facebook. You have some wallpaper, music, etc. Is it subject
to copyright? It’s called at user generated content – istifadəçi tərəfindən yaradılan kontent. Is
user a creator? There’s some fixation. You put some words coming from philosophers, etc...so,
you have your own way of expression in there. It’s disputed question, but in generally, it can be
considered as the object of copyright protection. Here, there’s some creative work of a person.
But if that person just copies from somewhere and puts there, then it will not be the case. Or
there can be some platforms that they themselves generate information. To what extent those can
be considered as IP protected object or related rights object? Main points are about originality
coming from the person, some fixation. In podcasts the issue is about the work, the product
which you regard as IP protected subject matter. It depends on the circumsatnces of the case. Not
in all cases it is considered as copyrightable subject matter. For example, there can be classic
music channel which picks up several IP protected objects. In that case, if they have permission
from the right owners, then they can have some rights to these as database. But if they don’t have
permission, there will not be any arrangement.
Film production: There’s a book and a movie produced based on this book. The book is the
copyright object, the movie is both copyright and related rights object. Generally the director
(quruluşçu rejissor) is called as copyright owner. Ancaq oyunçu\aktyorların sadəcə related right-
ları var. Because the director instructs the people about how to play. But not in all cases the work
that is used must be IP protected, but those are also subject to certain rights like copyright and
related rights.
The object that is played, there should be something that’s protected by IP or something coming
from public domain. For example, “İskəndərnamə”. If it’s filmed, the object is out of copyright
protection, but there is some work. This depends on the situation, but the related rights also
deliver the protected object, either it’s copyright protected or in public domain.
Main Sources of protection of this rights:
• The Rome Convention 1961 for the Protection of Performers, producers of phonograms
and broadcasting organizations; Almost all countries are members to this Convention.
Because there’s a convention on “Phonogram producers and Broadcasting Organizations’
Works” later adopted by WIPO and those who are not member to Rome Convention
cannot be member to this WIPO Convention. But all those have been implemented in the
TRIPS Agreements, so they are all member to all of those.
Rome Convention has minimum protection. There’s no any data protection or such kind of
things regarded in this Convention. It’s very simple.
Issues that have been regarded in Rome Convention:
-The right of performers to prevent fixation and direct broadcasting or communication to the
public of their performance without their consent; The right to be mentioned as a performer;
Prevention of distortion; So, the main points are the consent of the right owner and any kind of
acts which is considered as violation (fixation, direct broadcasting or communication to the
public).
-The right of producers of phonograms to authorize or prohibit reproduction of their phonograms
and the import and distribution of unauthorized duplicates thereof;
-The right of broadcasting organizations to authorize or prohibit rebroadcasting, fixation and
reproduction of their broadcasts; prevention of illegal distribution of any program
 • The WIPO Performance and Phonograms Treaty adopted in 1996;
3 steps test has been regarded in this treaty as well (certain specific cases, no conflict with
normal exploitation of a work, no disproportional harm to the legitimate interest of the right
owner)
• TRIPS Agreement (Agreement on Trade Related Aspects of Intellectual Property Rights)
as in the Rome Convention;

Collective Rights Management - Hüquqların kollektiv idarə edilməsi. İt’s one of the most
important legal regimes. In all countries there is CRMO (Collective Rights Management
Organizations - Kollektiv Hüquqların İdarəermə Təşkilatları). The right owners or authors
license their rights to certain specialized organizations for gathering remunoration (istifadəyə
görə ödəniş). They control all kind of use of the right owner’s work by different institutions. For
example, even if in Azerbaijan it’s not working, almost all foreign publishers license their right
to CMO’s and they know that where is this author’s work, in which libraries, by whom it’s used,
if it’s used in Youtube, posted in sharing platforms – they are controlling all of those. But these
are differentiated in accordance with the field of activity. For example, for singers it’s different,
for actors different, etc. In Azerbaijan we have “Müəlliflik Hüquqları İctimai Birliyi” – they are
doing this. For example, In Azerbaijan, when singers perform their song on the radio, they pay.
But in fact, it shouldn’t be in such a way, the radio should pay to them (because they should be
interested in putting the songs in the radio). And CMO should control all the platforms, where
the songs, for example, are displayed or performed – and get remuneration for this and deliver
that to singer. In some countries, mostly in classic European countries, they try to have CMO’s
as governmental bodies. But in most cases, they are non-governmental. In Azerbaijan we have,
for example, “Bəstəkarlar İttifaqı”, but they are not working effectively, most of the times,
composers themselves do this work.
For example, there’s a big sport event. If Enrique Iglesias’ song is played there, it is under
control by the CMO. And they get remuneration.
Individuals themselves may apply and give their rights, at the same time, several people together
can apply to CMO’s.
Famous composers in Azerbaijan try to use the services rendered by the Russian Federation
CMO’s rather than Azerbaijan. Because maybe their work is profound in other post-Soviet
countries, maybe they have better capacity or relevant staff to control, to negotiate (about at what
amount to license the rights).
CRMO’s are not working for gaining revenue. There is certain amount that they have to extract
from all the incomes because of organizing the work. But generally, it is not business, it is
usually non-governmental organization, sometimes governmental organization, and there is some
public interest in their work.
There can be some CMO’s that have the opportunity to control almost in all over the world. But
there can be the one which is operating only in the territory of post-Soviet, in this case, people
will license their rights to this CMO that is operating in the territory of post-Soviet, while others
choose the other CMO’s.
There are the platforms where people can download the music – in most cases, they are illegal.
- One stop shop: If you want to download the song, in Google, you will find several
international platforms doing this, but you have to pay money. All incomes coming from
there will be shared with the singer and the people who maintain the platform. It’s
transparent and fair – everyone knows from where it comes, where it goes, who uploads,
who downloads, etc. It’s called digital collective rights management organization.
There is an international confederation for the societies of authors and composers in Hungary
(CSAC). It’s a general body in international level and covers all CMO’s. So, most countries are
members to his organization and they share the opinions, approaches, problems, etc.
Terms of Protection:
• 20 years in Article 14 of the Rome Convention (starting point of the validity period may
be different);
• 50 years for the performers and phonogram producers in the WIPO Performances and
Phonogram Treaty)