Copyright limitations

Question 1

Two forms of limitations

Answer 1

permitted use

“compulsory license”

Question 2

International framework of limitations and exceptions

Answer 2

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.

Question 3

Berne Convention - 2 ways to deal with exceptions

Answer 3

the right of reproduction set out in article 9(2) – the three-step test

specific exceptions

Question 4

Art 9(2) Three Step Test of Berne allows a Contracting State to introduce an exception to the right of reproduction under conditions that have to be met cumulatively:

Answer 4

the reproduction of a work can only be permitted in ‘certain special cases’,

it should not conflict with the ‘normal exploitation’ of the work” and

it should not unreasonably prejudice the ‘legitimate interests’ of the author.

Question 5

TRIPS Agreement and the WIPO Copyright Treaty have since expanded the three-step test from Berne

Answer 5

to include exceptions or limitations to any of the economic rights

Question 6

Article 5 Information Society Directive

Answer 6

Deals with limitations and exceptions in the European Union

Question 7

Two different models of limitations and exceptions

Answer 7

“fair use” doctrine (US)

“permitted use” model (countries of continental Europe)

Question 8

“Fair use” model

Answer 8

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

Question 9

Factors considered in whether a work is fair

Answer 9

the purpose and character of the use;

the nature of the copyrighted work;

the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

the effect of the use upon the potential market for or value of the copyrighted work”.

Question 10

“permitted use” model

Answer 10

based on an enumerative (closed) catalogue

Question 11

Fair use system is uncertain, but more flexible

Answer 11

Permitted use model based on detailed lists seems to guarantee a higher level of legal certainty, but lack flexibility.

Question 12

Private copying exception

Answer 12

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

Question 13

Copyright levies

Answer 13

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.

Question 14

Reasons for private copying exception

Answer 14

the author wouldn’t be able to exploit works in private sphere of other people because it is difficult to enforce the law here

author should not be able to exploit works in this sphere because it would mean a violation of privacy

Question 15

Exception for quotations

Answer 15

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.

Question 16

Use as an illustration for teaching

Answer 16

Art 10(2) Berne Convention Permitted “to the extent justified by purpose”, provided such utilization is “compatible with fair practice”

Question 17

Legal provisions for use as an illustration for teaching

Answer 17

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.

Question 18

Differences in EU for use as an illustration for teaching

Answer 18

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

Question 19

Use for scientific research

Answer 19

Article 9(2) of the Berne Convention;
Article 5(3)(a) of the Information Society Directive

Question 20

Uses by the press - two exceptions mentioned in Art 10bis of Berne Convention

Answer 20

reproduction of articles

use of works in reporting of current events

Question 21

reproduction of articles

Answer 21

Article 10bis(1) of the Berne Convention;
Article 5(3)(c) of the Information Society Directive.

Question 22

use covered by reproduction of articles exception

Answer 22

reproduction by the press, broadcasting and communication to the public by wire.

Question 23

scope of works that reproduction of articles is limited

Answer 23

articles published in newspapers or periodicals on current economic, political or religious topics, and

broadcast works of the same character.

Question 24

In the EU, the scope of permitted reproduction of articles is broader

Answer 24

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.

Question 25

Use of works in the reporting of current events

Answer 25

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.

Question 26

Use of works in the reporting of current events provisions

Answer 26

Article 10bis(1) of the Berne Convention.
Article 5(3)(c) of the Information Society Directive

Question 27

Freedom of Panorama (Article 5(3)(h) of the Information Society Directive)

Answer 27

Allows use of works that are located in public places.

It includes the use of works that are exposed in public places

Located permanently not only temporarily.

Question 28

CJEU - parody exception features

Answer 28

to evoke an existing work, while being noticeably different from it,

to constitute an expression of humour or mockery”.

Question 29

Parody exception

Answer 29

Article 5(3)(k) of the Information Society Directive

Permitted use for the purpose of caricature, parody or pastiche.
Justified by freedom of expression.

Question 30

Use by libraries and archives

Answer 30

The reproduction of works
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.

Question 31

In the EU exceptions for people with disabilities are allowed under:

Answer 31

art. 5(3)(b) of the Information Society Directive

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.

Question 32

People with disabilities

Answer 32

Under the Berne Convention the reproduction of works for people with disabilities is allowed under the three-step test.

article 4 of the Marrakesh Treaty 2013

Question 33

Incidental inclusion

Answer 33

Article 5(3)(i) of the Information Society Directive

the work has to be included in other material
the inclusion has to be incidental

Question 34

Other permitted uses

Answer 34

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

Question 35

Mandatory exception regarding temporary acts of reproduction in EU

Answer 35

temporary act of reproduction;
no independent economic significance;
transient or incidental;
an integral and essential part of a technological process;
allowed when the sole purpose of it is:
a transmission in a network between third parties via an intermediary, or
a lawful use

Question 36

Permitted use

Answer 36

work can be used without the author’s consent and such use does not have to be paid for

Question 37

compulsory license

Answer 37

work can be used without the author’s consent, subject to the payment of remuneration to the copyright owner.