Week 10 Flashcards
How to limit copyright: exceptions in copyright’s system. Fair use in US/UK legal systems. How to justify new limitations in copyright? How to enforce creativity? Case studies
Quotations is ?
is a group of words taken from a text or speech and repeated by someone other than the original author or speaker, or a short musician passage of visual image taken from one piece of musical work of art and used in another.
Article 10 (1) of the Berne Convention
It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.
Article 5(3) (d) of the information Society Directive
“quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author’s names, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purposes”.
Art 10 (2) of the Berne Convention
The utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcast or sound or visual recordings for teaching, provided such utilization is compatible with fair practice
Article 5(3) (Z) of the Information Society Directive
use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author’s name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved
Two types of use by the press
1) articles published in newspapers or periodicals on current economic, political or religious topics,
2) broadcast works of the same character. Therefore, many categories of works are not covered by exception, such as: articles on other topics (e.g. on sports or science), film or book reviews and prose-writing
Article 5 (3) of the information Society Directive
(c) reproduction by the press, communication to the public or making available of published articles on current economic, political or religious topics or of broadcast works or other subject-matter of the same character, in cases where such use is not expressly reserved and as long as the source, including the author’s name, is indicated, or use of works or other subject-matter in connection with the reporting of current events, to the extent justified by the informatory purpose and as long as the source, including the author’s name, is indicated, unless this turns out to be impossible.
Article 10bis of the Berne Convention
(2) It shall also be a matter for legislation in the countries of the Union to determine the conditions under which, for the purpose of reporting current events by means of photography, cinematography, broadcasting or communication to the public by wire, literary or artistic works seen or heard in the course of the event may, to the extent justified by the informatory purpose, be reproduced and made available to the public.
1
According to the Deckmyn ruling, if someone wants to use a derivative work that is amusing or ridiculous, then he or she does not have to ask anyone for permission
Article 5(2) (c) of the Information Society Directive
in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage:
Article 5(3) (n) of the Information Society Directive
By communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of libraries, educational establishments or museums, or by archives.
Recital 43 of the preamble to the information Society Directive
It is in any case important for the Member States to adopt all necessary measures to facilitate access to works by persons suffering from a disability which constitutes an obstacle to the use of the works themselves, and to pay particular attention to accessible formats.
Article 5 (3) (b) of the Information Society Directive
uses, for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability.
Summary
Quotations
The exception for quotation applies to works “which have already been lawfully made available to the public” under following conditions:
The Berne convention mentions one specific type of quotation, i.e. “quotations from newspaper articles and periodicals in the form of press summaries”.
Legal provisions: Article 10(1) of the Berne Convention - this exception is mandatory, meaning that all Contracting States are obliged to introduce it; Article 10(3) of the Berne Convention – mentioning the source; Article 5(3)(d) of the Information Society Directive.
Use as an illustration for teaching
Article 10(2) of the Berne Convention provides the general framework, while the detailed regulations in this area are to be determined by the Contracting States. Features of permitted use:
Use of a work as a means of “illustration for the purpose of teaching” in publications, broadcasts or sound or visual recordings;
Permitted “to the extent justified by purpose”, provided such utilization is “compatible with fair practice”;
The source and of the name of the author should be mentioned if it “appears thereon” - article 10(3) of the Berne Convention.
In the EU there are some differences:
The work may be used “to the extent justified by the non-commercial purpose to be achieved”;
For the sole purpose of illustration for teaching (broadcasts are excluded)
Indication of the source is mandatory in all cases
Legal provisions:
Article 10(2) of the Berne Convention - this exception is mandatory, meaning that all Contracting States are obliged to introduce it; Article 10(3) of the Berne Convention – mentioning the source; Article 5(3)(a) of the Information Society Directive.
Use for scientific research
Article 5(3)(a) of the Information Society Directive also permits, under the same conditions as in the case of the illustration for teaching purposes exception, the use of a work for the sole purpose of scientific research.
The “use” of work with compliance to the Berne inludes:
It doesn’t include other forms of dissemination (e.g. broadcasting)
Legal provisions:
Article 9(2) of the Berne Convention; Article 5(3)(a) of the Information Society Directive.
Uses by the press
Traditionally, there are two exceptions that allow the press to use works. Both are listed in art. 10bis of the Berne Convention:
A. the reproduction of articles
Uses covered by this exception include: reproduction by the press, broadcasting and communication to the public by wire.
may be excluded if the author expressly reserves his or her rights.
scope of works that may be used is limited to two types:
o articles published in newspapers or periodicals on current economic, political or religious topics, and
o broadcast works of the same character.
Source of the article should be mentioned.
In the EU, a work may be reproduced, communicated to the public or made available to the public (this also includes the press on the Internet).
Legal provisions: Article 10bis(1) of the Berne Convention; Article 5(3)(c) of the Information Society Directive.
B. Use of works in the reporting of current events
Allows to reproduce or make available to the public works seen or heard in the course of an event for the purpose of reporting of that event.
In the EU:
- The scope of permitted uses is broader, it includes: the reproduction of a work, communicating it to the public or making it available to the public
- The source should be mentioned, including the author’s name, unless this turns out to be impossible.
Legal provisions:
Article 10bis(1) of the Berne Convention. Article 5(3)(c) of the Information Society Directive.
Freedom of panorama
Allows use of works that are located in public places. According to art. 5(3)(h) of the Directive:
It includes the use of works that are exposed in public places i.e. “located in such a way that they are visible from public places”;
Located permanently not only temporarily.
Legal provisions: Article 5(3)(h) of the Information Society Directive.
The parody exception
Permitted use for the purpose of caricature, parody or pastiche.
Justified by freedom of expression.
According to CJEU parody has only two features:
to evoke an existing work, while being noticeably different from it,
to constitute an expression of humour or mockery”.
Legal provisions:
Article 5(3)(k) of the Information Society Directive.
Use by libraries and archives
There are different uses that may be permitted for libraries and archives:
The reproduction of works – Article 9(2) of the Berne Convention; Article 5(2)(c) of the Information Society Directive;
The communication to the public or making available, by dedicated terminals on the premises of libraries or archives”.
Lending of copies for users of the library.
People with disabilities
Under the Berne Convention the reproduction of works for people with disabilities is allowed under the three-step test.
There is also article 4 of the Marrakesh Treaty (Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled – 2013).
In the EU exceptions for people with disabilities are allowed under:
o art. 5(3)(b) of the Information Society Directive
o and article 3 of the Directive 2017/1564 on certain permitted uses of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled and amending Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society.
Incidental inclusion
This permitted use allows for an incidental inclusion of a work in other material under following conditions:
the work has to be included in other material
the inclusion has to be incidental
Legal provisions:
Article 5(3)(i) of the Information Society Directive.
Other permited uses
use for judicial and administrative purposes;
use during official or religious celebrations;
use of lectures, addresses and other works of the same nature which are delivered in public when this is justified by the purpose of the information;
use for the purpose of advertising a public exhibition or public sale of works of art;
the use of works during a demonstration or repair of equipment
use in order to reconstruct a building;
use in other cases of minor importance, which in the EU is limited to analogue uses.
Mandatory exception regarding temporary acts of reproduction in EU
In the EU there is one mandatory exception concerning temporary acts of reproduction. The permitted use:
is a temporary act of reproduction;
has no independent economic significance;
is transient or incidental;
is an integral and essential part of a technological process;
is allowed when the sole purpose of it is:
a transmission in a network between third parties via an intermediary, or
a lawful use
Legal provisions:
Article 5(1) of the Information Society Directive.
Summary
The subject of exceptions and limitations is a very broad one. In last two modules we have discussed only the basic problems concerning this subject. It needs to be emphasized that the main perspective, both for the Berne Convention and for the EU law is the protection of the right of authors. Therefore most of the exceptions to these rights are optional. The provisions that we have discussed provide for maximum scope of the exceptions and limitations. The Contracting States are not allowed to introduce exceptions that have a broader scope of permitted use but they may introduce narrower exceptions. The only mandatory exceptions are: use for quotations in the Berne Convention and the exception regarding temporary acts of reproduction in the EU.
Another issue that has to be emphasized is that sometimes there are different categories of exceptions for different categories of works. In the EU, many of the exceptions that we have discussed do not apply to computer programs and databases (e.g. private copying exception is excluded).
THE BERNE CONVENTION and THE INFORMATION SOCIETY DIRECTIVE
THE BERNE CONVENTION
Article 10 [Certain Free Uses of Works: 1. Quotations; 2. Illustrations for teaching; 3. Indication of source and author]
(1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.
(2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.
(3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author if it appears thereon.
Article 10bis [Further Possible Free Uses of Works: 1. Of certain articles and broadcast works; 2. Of works seen or heard in connection with current events]
(1) It shall be a matter for legislation in the countries of the Union to permit the reproduction by the press, the broadcasting or the communication to the public by wire of articles published in newspapers or periodicals on current economic, political or religious topics, and of broadcast works of the same character, in cases in which the reproduction, broadcasting or such communication thereof is not expressly reserved. Nevertheless, the source must always be clearly indicated; the legal consequences of a breach of this obligation shall be determined by the legislation of the country where protection is claimed.
(2) It shall also be a matter for legislation in the countries of the Union to determine the conditions under which, for the purpose of reporting current events by means of photography, cinematography, broadcasting or communication to the public by wire, literary or artistic works seen or heard in the course of the event may, to the extent justified by the informatory purpose, be reproduced and made available to the public.
THE INFORMATION SOCIETY DIRECTIVE
Article 5 Exceptions and limitations
- Temporary acts of reproduction referred to in Article 2, which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable:
(a) a transmission in a network between third parties by an intermediary, or
(b) a lawful use
of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2. - Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases:
(a) in respect of reproductions on paper or any similar medium, effected by the use of any kind of photographic technique or by some other process having similar effects, with the exception of sheet music, provided that the rightholders receive fair compensation;
(b) 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 rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject-matter concerned;
(c) in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage;
(d) in respect of ephemeral recordings of works made by broadcasting organisations by means of their own facilities and for their own broadcasts; the preservation of these recordings in official archives may, on the grounds of their exceptional documentary character, be permitted;
(e) in respect of reproductions of broadcasts made by social institutions pursuing non-commercial purposes, such as hospitals or prisons, on condition that the rightholders receive fair compensation. - Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases:
(a) use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author’s name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved;
(b) uses, for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability;
(c) reproduction by the press, communication to the public or making available of published articles on current economic, political or religious topics or of broadcast works or other subject-matter of the same character, in cases where such use is not expressly reserved, and as long as the source, including the author’s name, is indicated, or use of works or other subject-matter in connection with the reporting of current events, to the extent justified by the informatory purpose and as long as the source, including the author’s name, is indicated, unless this turns out to be impossible;
(d) quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author’s name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose;
(e) use for the purposes of public security or to ensure the proper performance or reporting of administrative, parliamentary or judicial proceedings;
(f) use of political speeches as well as extracts of public lectures or similar works or subject-matter to the extent justified by the informatory purpose and provided that the source, including the author’s name, is indicated, except where this turns out to be impossible;
(g) use during religious celebrations or official celebrations organised by a public authority;
(h) use of works, such as works of architecture or sculpture, made to be located permanently in public places;
(i) incidental inclusion of a work or other subject-matter in other material;
(j) use for the purpose of advertising the public exhibition or sale of artistic works, to the extent necessary to promote the event, excluding any other commercial use;
(k) use for the purpose of caricature, parody or pastiche;
(l) use in connection with the demonstration or repair of equipment;
(m) use of an artistic work in the form of a building or a drawing or plan of a building for the purposes of reconstructing the building;
(n) use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of establishments referred to in paragraph 2(c) of works and other subject-matter not subject to purchase or licensing terms which are contained in their collections;
(o) use in certain other cases of minor importance where exceptions or limitations already exist under national law, provided that they only concern analogue uses and do not affect the free circulation of goods and services within the Community, without prejudice to the other exceptions and limitations contained in this Article.
In case of the exception for purpose of scientific research under the Berne Convention it is permitted to:
reproduce the work.
The mandatory exception under the Berne Convention is:
use in quotation
The main justification for the permitted use of works in reporting of current events is:
free flow of information
The mandatory exception under the EU law is:
exception regarding temporary acts of reproduction (e.g. in RAM memory).
In case of permitted use for illustration for teaching in the EU it is not allowed to:
broadcast the work
What is a quotation according to the Oxford Dictionary?
A quotation is a group of words taken from a text or speech and repeated by someone other than the original author or speaker; or a short musician passage of visual image taken from one piece of musical work of art and used in another.
Can quotation be taken from any category?
Yes.
What is the exception for quotation?
One of the basic exceptions to an author’s economic rights.
Where in the Berne Convention is the quotation explicitly mentioned?
In article 10 section 1.
Is the exception of quotation in article 10 section 1 of the Berne Convention mandatory?
Yes.
What are the conditions of the permissible quotation determined article 10 section 1 of the Berne Convention?
It shall be permissible to make quotations from a work, which has already been lawfully made available to the public, provided that they are making compatible with practice and their extent does not exceed that justified both by the purpose including quotations from newspaper articles and periodicals in the form of press summaries.
Does the provision in article 10 section 1 of the Berne Convention contain any restrictions regarding different categories of works?
No.
What is the criterion for assessing according to article 10 section 1 of the Berne Convention?
The wording.
Did the Berne Convention specify the individual purposes of the quotation?
No.
Which purposes were mentioned during preparatory legislative work?
scientific, critical, inflammatory, educational, judicial, political, entertainment.
What is the condition shaping the moral rights of the author according to article 10 section 3 of the Berne Convention?
The name of the author and the source shall be mentioned.
What specific type of quotation is mentioned by article 10 section 2 of the Berne Convention?
Quotation from newspaper articles and periodicals in the form of press summaries.
What does article 10 section 2 of the Berne Convention permit?
It permits words to be used in press reviews which are collections of quotations from various newspapers and journals.
Where is provided the exception for quotations in EU law?
The exception for quotations in European Union law is provided for in article 5 section 3 of the Information Society directive.
What does article 5 section 3 of the Information Society directive cover?
It covers the exception to the right of reproduction and the right of communication to the public.
What may member states allow according to article 5 section 3 of the Information Society directive?
Exceptions or limitations.
What is the use of literary and artistic works for educational purposes?
One exception to economic rights permitted under copyright law.
What does the Berne Convention provide regarding the use of literary and artistic works for educational purposes?
The Berne Convention only provides the general framework, while the detailed regulations in this area are to be determined by the contracting states.
What does article 10 section 2 of the Berne Convention provide regarding the use of literary and artistic works for educational purposes?
According to article 10 section 2 of the Berne Convention this exception allows for the utilization to the extent justified by the purpose of literary or artistic works by way of illustration in publications broadcasts, or sound, or visual recordings for teaching provided such utilization is compatible with fair practice. Generally speaking this provision allows a work to be utilized as a means of illustration for the purpose of teaching.
What does teaching mean?
Teaching means teaching at all levels of education and in all types of schools including distance learning. Teaching is a process of transferring knowledge to other people but this definition does not extend to the testing of such knowledge.
What is the term illustration itself?
The term illustration itself is a limitation on the use of a work.
Should the three step test to be considered in this matter?
Yes.
What is broadcasting by its very nature?
Broadcasting is by its very nature a means of dissemination in which control of the recipients is impossible; anyone can pick up a signal, not only those people whom it was aimed at for teaching purposes.
Is broadcasting permissible even if it reaches more people than intended?
Yes.
