Module 9

Question 1

What grants copyright to the author?

Answer 1

A set of exclusive economic rights.

Question 2

What must be balanced with the interests of the users of work?

Answer 2

The severity and inflexibility of economic rights.

Question 3

What do limitations of economic right allow?

Answer 3

They allow a work to be used without the consent of the author and the author cannot oppose its use.

Question 4

How many forms do limitations of economic rights take?

Answer 4

Two.

Question 5

What is the first limitation of economic rights?

Answer 5

First is permitted use when a work can be used without the author’s consent and such use does not have to be paid for.

Question 6

What is the second limitation of economic rights?

Answer 6

Second is compulsory license when a work can be used without the author’s consent subject to the payment of remuneration to the copyright owner.

Question 7

Where can be found examples of compulsory licenses?

Answer 7

In article II bis and 13 of the Bern Convention.

Question 8

Do all basic international treaties on copyright law address the issue of limitations and exceptions?

Answer 8

Yes.

Question 9

What is article 9 section 2 of the Bern Convention?

Answer 9

…

Question 10

What kind of exception is set out in article 9 section 2 of the Bern Convention?

Answer 10

The general exception which specifies three conditions that must be met if a contracting state wants to introduce an exception to the right of reproduction.

Question 11

Would a full list of exceptions be practical on the international level?

Answer 11

No.

Question 12

Name some typical exceptions which can be found in the national laws of different countries.

Answer 12

• private copying exception
• judicial and administrative use
• used for educational research and scientific purposes
• used for teaching purposes
• used by libraries and archives
• used for handicapped or blind readers
• use of works for cultural purposes

Question 13

What are the specific excluded uses mentioned in the Bern Convention?

Answer 13

• used for quotation purposes in article 10 and this exception is obligatory
• used for teaching purposes also in article 10
• exceptions made for the benefit of the press in article 10 bis
• exception that allows lecture lectures addresses
• 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 when this is justified by the purpose of the information.

Question 14

What is the three step test from article 9 section 2 of the Bern Convention?

Answer 14

It is a general guide according to which a contracting state can introduce an exception to the right of reproduction in its national law.

Question 15

What is article 9 section 2 of the Bern Convention?

Answer 15

…

Question 16

What are the three conditions set out by article 9 section 2 of the Bern Convention?

Answer 16

• 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.

Question 17

What does the first condition set out by article 9 section 2 of the Bern Convention indicate?

Answer 17

It indicates that exceptions cannot be too general and that contracting states do not have a completely free hand in making them.

Question 18

What does the second condition set out by article 9 section 2 of the Bern Convention indicate?

Answer 18

It indicates that the reproduction should not impinge on the economic interest of the author in this context.

Question 19

What is necessary to consider when determining what constitutes a normal use of work?

Answer 19

It is necessary to consider non-economic aspects whether the author should have exclusivity in an area of question.

Question 20

What does the third condition set out by article 9 section 2 of the Bern Convention indicate?

Answer 20

It requires determining whether a given type of use does not unreasonable prejudice the legitimate interest of the author. The notion of unreasonable are unreasonable prejudice to the legitimate interest of an author that implies that even in cases where normal exploitation of work is not affected, the right owner may suffer prejudice and such prejudices should not exceed a certain level which can be justified as a matter of public policy.

Question 21

What kind of uses may be allowed by the operation of the law with no remuneration or fee owing to the copyright owner and without the latter’s authorization?

Answer 21

Uses which are of minor importance.

Question 22

How can uses of higher importance be permitted?

Answer 22

Only against the payment of remuneration or a fee.

Question 23

Has every prejudice to be rectified by means of remuneration?

Answer 23

No.

Question 24

The permission to use a work on the basis of the three step test applies to which right?

Answer 24

Right of disclosure.

Question 25

To which right applies the three step test under the Bern Convention?

Answer 25

Right of reproduction.

Question 26

In what way have the TRIPS agreement article 13 and WIPO copyright treaty article 10 expanded the three step test?

Answer 26

They have expanded it to include exceptions or limitations to any of the economic rights.

Question 27

What was the three step test originally intended to be?

Answer 27

A guideline for national legislators in the context of the Bern Convention.

Question 28

Is there a tendency for national courts to employ the three step test?

Answer 28

Yes.

Question 29

What does the three step test itself aim?

Answer 29

It aims to reflect the very balance in copyright law between on one hand the protection of interests of the authors and right holders and on the other hand the interest of the general public which include facilitating effective access to copyright works.

Question 30

Are limitations and exceptions harmonized in EU directives?

Answer 30

Yes.

Question 31

What does article 5 of the information society directive contain?

Answer 31

It contains a list of 21 exceptions.

Question 32

Is there any mandatory exception?

Answer 32

Yes, one.

Question 33

In which directives can be found exceptions and limitations beside the information society directive?

Answer 33

In database, software and rental and landing rights directives.

Question 34

What are the two different legal solutions dealing with limitations?

Answer 34

One was applied in US as a fair use doctrine and the other applied as a permitted use model in countries of continental Europe.

Question 35

What does the fair use model utilize?

Answer 35

It utilizes an open-ended catalog of exceptions combined with an enumeration of the factors that cause what to take into account when deciding whether the use of a work is acceptable, that is fair or not.

Question 36

What does the Court determine in a fair use system?

Answer 36

It determines on a case-by-case basis what is permissible according to these conditions.

Question 37

What is the advantage of the fair use system concept?

Answer 37

Its flexibility in view of the non-exclusive character of fair use that causes adoption of exceptions in line with social and technological changes.

Question 38

What is the disadvantage of the fair use system concept?

Answer 38

There is less legal certainty because the exceptions are not explicitly described. Instead there are only general criteria for assessing compliance of certain uses of the law.

Question 39

On what is based the second model applied in continental Europe?

Answer 39

It is based on an enumerative catalog in which each permitted use is exhaustively listed and described in legal provisions.

Question 40

What is the advantage of the model applied in continental Europe?

Answer 40

It provides greater legal certainty and the exceptions to economic rights are well-known because they are fairly precisely described.

Question 41

What is the disadvantage of the model applied in continental Europe?

Answer 41

It is completely inflexible, because the courts cannot allow other exceptions than those explicitly mentioned in copyright legislation.

Question 42

What does the section 107 of the United States Copyright Act provide?

Answer 42

Examples of uses that may constitute fair use.

Question 43

What additional requirements must be met according to section 107 of the United States Copyright Act?

Answer 43

• the purpose and character of the use including whether such use is of commercial nature or is for non-profit educational purposes.
• the nature of the copyrighted work
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole.
• the effect of the use upon the potential market for or value of the copyrighted work.

Question 44

What is the purpose and character of the use?

Answer 44

It is the first factor that must be considered should ascertain whether such use if of commercial nature or is for non-profit educational purposes. Also matters whether and to what extent they use concerns a transformative work.

Question 45

What is transformative work?

Answer 45

Work that contains additions or changes.

Question 46

What is the second factor, nature of the work?

Answer 46

Works that are highly original fictitious and non-fact not functional enjoy stronger copyright protection. Hence the use of these works without the consent of the author needs stronger justification. The use of works that are informative or functional is more likely to be classified as cases of fair use.

Question 47

Do courts take into account whether a work has been published?

Answer 47

Yes.

Question 48

What is the third factor, the amount and substantiality of the portion used in relation to the copyrighted work as a whole?

Answer 48

The smaller the portion of the work that is used, the more acceptable it is. It is the important issue when assessing quantitative substantiality is the purpose of use.

Question 49

When will courts assess the qualitative substantiality?

Answer 49

Whether the part taken is important, valuable or secondary and not important.

Question 50

What is the final factor?

Answer 50

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

Question 51

What is the fair use?

Answer 51

The most basic and most characteristic exception in US copyright law.

Question 52

Where falls private copying in the Bern Convention?

Answer 52

Within the limits of the three step test.

Question 53

What does private copying allow a natural person?

Answer 53

To reproduce a work for private purpose and to use in a private sphere.

Question 54

When was private copying included first in Poland?

Answer 54

In the Copyright Act of 1926.

Question 55

What kind of system have many countries introduced?

Answer 55

A system of copyright levies.

Question 56

What are copyright levies?

Answer 56

Fees.

Question 57

What do collective management organizations do?

Answer 57

Redistribute the resulting funds among authors.

Question 58

Could there be an exception to the right of reproduction?

Answer 58

Yes.

Question 59

Would the author exploit his work in someone’s private sphere?

Answer 59

No, because of the difficulty to enforce law there.

Question 60

What would be violated if an author would exploit his work in someone’s private sphere?

Answer 60

Right to privacy.

Question 61

Explain the ACI Adam case.

Answer 61

…

Question 62

What did the Court of Justice held in the ACI Adam case?

Answer 62

It held that national legislation which makes no distinction between private copies made from lawful resources and those made from counterfeit or pirated sources cannot be tolerated.