Week 9 Flashcards
How to limit copyright: exceptions in copyright’s system. Limitation system in continental Europe (so-called exception list in the InfoSoc directive). Fair use system in US/UK legal systems. How to justify new limitations in copyright? How to enforce creativity? Case studies.
Limitations and Exceptions takes two forms:
- permitted uses, when a work can be used without the author’s consent and such use does not have to be paid for (e.g. in the case of quotations)
- compulsory licenses when a work can be used without the author’s consent, subject to the payment of remuneration to the copyright owner. Examples of such licenses can be found in Article 11bis and 13 of the Bern Convention.
What it is three step test?
- in article 9(2) of the Convention and concerns the right to reproduce copyrighted works.
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- private copying exception
- judicial and administrative use
- use for educational, research and scientific purposes
- use for teaching purposes
- use by libraries and archives
- use for handicapped or blind readers
- use of works for cultural purposes (social and religious functions)
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Use for quotation purposes (article 10) the introduction of this exception is obligatory
- use for teaching purposes (article 10(2))
- Exceptions made for the benefits of the press (article 10bis)
- an exception that allows lectures, addresses and other works of the same nature delivered in public to be reproduced by the press, broadcast, communicated to the public by wire and made the subject of public communication (article 2bis(1)
Article 9(2) Berne Convention
Article 9(2) Berne Convention
It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
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- the reproduction of a work can only be permitted in ‘certain special cases”
- it should not conflict with the normal exploitation of the work
- it should not unreasonably prejudice the legitimate interests of the author
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WTO panel from 15th June 2000
an exception or limitation should be narrow in a quantitative as well as in a qualitative sense. This suggests a narrow scope as well as an exceptional or distinctive objective.
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WTO panel from 15th June 2000
not every use of a work, which in principle is covered by the scope of exclusive rights and involves commercial gain, necessarily conflicts with a normal exploitation of that work.
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WTO panel form 15th June 2000
an exception or limitation to an exclusive right in domestic legislation rises to the level of a conflict with a normal exploitation of the work (…), if uses that in principle are covered by that right but exempted under the exception or limitation, enter into economic competition with the ways that right holders normally extract economic value from that right to the work (..) and thereby deprive them of significant or tangible commercial gains.
Limitations and exceptions to author’s economic rights:
· are an instrument used to achieve a balance between the interests of the author and those of society as a whole;
· allow a work to be used without the consent of the author;
· take two forms:
o permitted use, when a work can be used without the author’s consent and such use does not have to be paid for;
o “compulsory license”, when a work can be used without the author’s consent, subject to the payment of remuneration to the copyright owner.
The international framework
All the basic international treaties on copyright law, i.e. the Berne Convention, the TRIPS, and the WIPO Copyright Treaty, address the issue of limitations and exceptions.
· Exceptions to copyright are regulated in two ways in the Berne Convention. Firstly, there is the general exception to the right of reproduction set out in article 9(2) – the three-step test. Secondly, there are certain specific exceptions mentioned in the Berne Convention (e.g. use for quotation purposes – Article 10).
· The three-step test allows a Contracting State to introduce an exception to the right of reproduction under conditions that has to be met cumulatively:
o the reproduction of a work can only be permitted in ‘certain special cases’,
o it should not conflict with the ‘normal exploitation’ of the work” and
o it should not unreasonably prejudice the ‘legitimate interests’ of the author.
· The TRIPS Agreement and the WIPO Copyright Treaty have since expanded the test to include exceptions or limitations to any of the economic rights.
· The basic provision dealing with limitations and exceptions in the European Union is article 5 of the Information Society Directive, which contains a list of exceptions. Other relevant provisions, including specific exceptions, may be found in Database, Software and Rental and Lending Rights Directives.
How is exceptions to copyright are regulated in two ways in Berne Convention?
Firstly, there is the general exception to the right of reproduction set out in article 9(2) – the three-step test. Secondly, there are certain specific exceptions mentioned in the Berne Convention (e.g. use for quotation purposes – Article 10).
The three-step test:
o the reproduction of a work can only be permitted in ‘certain special cases’,
o it should not conflict with the ‘normal exploitation’ of the work” and
o it should not unreasonably prejudice the ‘legitimate interests’ of the author.
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The basic provision dealing with limitations and exceptions in the European Union is article 5 of the Information Society Directive, which contains a list of exceptions. Other relevant provisions, including specific exceptions, may be found in Database, Software and Rental and Lending Rights Directives.
Section 107 of the US Copyright Act
The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright
Second sentence of Section 107, of the US Copyright Act
In determining whether the use made of a work in any particular case is fair use the factors to be considered shall:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work..
There are two different models of limitations and exceptions:
“fair use” doctrine (US) and “permitted use” model (countries of continental Europe).
what it is a fair use
The “fair use” model utilises open-ended catalogue of exceptions combined with an enumeration of the factors that courts take into account when deciding whether the use of a work is acceptable (i.e. fair) or not. The factors considered in determining whether the use made of a work is fair use in particular case include:
o the purpose and character of the use;
o the nature of the copyrighted work;
o the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
o the effect of the use upon the potential market for or value of the copyrighted work”.
The “fair use” system is uncertain, but more flexible, while the solutions applied in European countries, based on detailed lists seem to guarantee a higher level of legal certainty, but lack flexibility
What it is a permitted use?
The “permitted use” model is based on an enumerative (closed) catalogue.
Art.5 of the information Society Directive
Member State may provide for exceptions or limitations to the reproduction right (…) in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the right holders receive fair compensation which takes account the application or non-application of technological measures referred to in Article 6 to the work or subject matter concerned
CJEU judgement in the ACI Adam case (C-435/12) from 10 April 2014
The CJEU held that “national legislation which makes no distinction between private copies made from lawful sources and those made from counterfeited or pirated sources cannot be tolerated.
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The first exception concerns private copying, which in the Berne Convention falls within the limits of the three-step test.
· Private copying exception allows a natural person to reproduce a work for a private purpose and to use it in a private sphere, including for friends and family.
· The technological progress has led to a huge scale of private coping with no benefit to the authors. To meet the requirements of the three-step test many countries have introduced a system of copyright levies.
· Copyright levies are fees paid to collective management organizations by the producers or importers of carriers or devices that may be used to reproduce works. The fees are included in the sale price of such devices or carriers. Collective management organizations redistribute the resulting funds among authors.
· Main reason to maintain private copy exception is that the author wouldn’t be able to exploit works in private sphere of other people because it is difficult to enforce the law here. Moreover, the author should not be able to exploit works in this sphere because it would mean a violation of privacy, which is protected by the right to privacy.
The common feature of the exceptions and limitations to economic rights is that they allow works to be used:
without the consent of their authors;
Exceptions or limitations that allow works to be used without the consent of their authors and without payment of remuneration or fee are known as:
permitted uses;
Exceptions and limitations in the Berne Convention are mentioned:
as a general exception (the three-step test) and as a list of specific exceptions.
Article 9(2) of the Berne Convention specifies three conditions that must be met if a Contracting State wants to introduce an exception to:
the reproduction right;
Within the Berne Convention three-step test exception the use of works that have not yet been disclosed is:
not permissible.
Private copy exception form Information Society Directive fulfils the third step of the Berne Convention three-step test because:
the authors obtain fair remuneration.
According to CJEU private copying exception is permissible:
only when the used work originates from lawful source;
The Berne Convention three-step test condition that exceptions and limitations may only be introduced in “certain special cases” means that:
exceptions or limitations should be narrow in a quantitative as well as in a qualitative sense;
Which of the following is not the factor used to determine whether the use of the work is fair use?
The influence on the moral rights of the author.
The advantage of the fair use model is:
flexibility only.
What grants copyright to the author?
A set of exclusive economic rights.
What must be balanced with the interests of the users of work?
The severity and inflexibility of economic rights.
What do limitations of economic right allow?
They allow a work to be used without the consent of the author and the author cannot oppose its use.
How many forms do limitations of economic rights take?
Two.
