Copyright limitations Flashcards
Two forms of limitations
permitted use
“compulsory license”
International framework of limitations and exceptions
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.
Berne Convention - 2 ways to deal with exceptions
the right of reproduction set out in article 9(2) – the three-step test
specific exceptions
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:
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.
TRIPS Agreement and the WIPO Copyright Treaty have since expanded the three-step test from Berne
to include exceptions or limitations to any of the economic rights
Article 5 Information Society Directive
Deals with limitations and exceptions in the European Union
Two different models of limitations and exceptions
“fair use” doctrine (US)
“permitted use” model (countries of continental Europe)
“Fair use” model
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
Factors considered in whether a work is fair
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”.
“permitted use” model
based on an enumerative (closed) catalogue
Fair use system is uncertain, but more flexible
Permitted use model based on detailed lists seems to guarantee a higher level of legal certainty, but lack flexibility.
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
Copyright levies
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.
Reasons for private copying exception
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
Exception for quotations
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
Art 10(2) Berne Convention Permitted “to the extent justified by purpose”, provided such utilization is “compatible with fair practice”
Legal provisions for use as an illustration for teaching
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.
Differences in EU for use as an illustration for teaching
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
Use for scientific research
Article 9(2) of the Berne Convention; Article 5(3)(a) of the Information Society Directive
Uses by the press - two exceptions mentioned in Art 10bis of Berne Convention
reproduction of articles
use of works in reporting of current events
reproduction of articles
Article 10bis(1) of the Berne Convention; Article 5(3)(c) of the Information Society Directive.
use covered by reproduction of articles exception
reproduction by the press, broadcasting and communication to the public by wire.
scope of works that reproduction of articles is limited
articles published in newspapers or periodicals on current economic, political or religious topics, and
broadcast works of the same character.
In the EU, the scope of permitted reproduction of articles is broader
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.
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.
Use of works in the reporting of current events provisions
Article 10bis(1) of the Berne Convention. Article 5(3)(c) of the Information Society Directive
Freedom of Panorama (Article 5(3)(h) of the Information Society Directive)
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.
CJEU - parody exception features
to evoke an existing work, while being noticeably different from it,
to constitute an expression of humour or mockery”.
Parody exception
Article 5(3)(k) of the Information Society Directive
Permitted use for the purpose of caricature, parody or pastiche.
Justified by freedom of expression.
Use by libraries and archives
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.
In the EU exceptions for people with disabilities are allowed under:
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.
People with disabilities
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
Incidental inclusion
Article 5(3)(i) of the Information Society Directive
the work has to be included in other material
the inclusion has to be incidental
Other permitted 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
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
Permitted use
work can be used without the author’s consent and such use does not have to be paid for
compulsory license
work can be used without the author’s consent, subject to the payment of remuneration to the copyright owner.
