Limitations and exceptions to copyright

Last updated January 24, 2024

Limitations and exceptions to copyright are provisions, in local copyright law or the Berne Convention, which allow for copyrighted works to be used without a license from the copyright owner.

Limitations and exceptions to copyright relate to a number of important considerations such as market failure, freedom of speech,^[1] education and equality of access (such as by the visually impaired). Some view limitations and exceptions as "user rights"—seeing user rights as providing an essential balance to the rights of the copyright owners. There is no consensus among copyright experts as to whether user rights are rights or simply limitations on copyright. The concept of user rights has been recognised by courts, including the Canadian Supreme Court,^[2] which classed "fair dealing" as such a user right. These kinds of disagreements in philosophy are quite common in the philosophy of copyright, where debates about jurisprudential reasoning tend to act as proxies for more substantial disagreements about good policy.

Changing technology

The scope of copyright limitations and exceptions became a subject of societal and political debate within various nations in the late 1990s and early 2000s, largely due to the impact of digital technology, the changes in national copyright legislations for compliance with TRIPS, and the enactment of anti-circumvention rules in response to the WIPO Copyright Treaty.^[3] The European People's Party concluded that international instruments for the protection of copyright no longer seem capable of guaranteeing creators and investors a fair return on their activities while ensuring the public's access to information and respect for privacy.

Defenders of copyright exceptions fear that technology, contract law undermining copyright law and copyright law not being amended, is reducing the scope of important exceptions and therefore harming creativity.

In May 2010 a declaration entitled Copyright for Creativity ^[4] was launched, stating: "While exclusive rights have been adapted and harmonised to meet the challenges of the knowledge economy, copyright's exceptions are radically out of line with the needs of the modern information society. The lack of harmonisation of exceptions hinders the circulation of knowledge based goods and services across Europe. The lack of flexibility within the current European exceptions regime also prevents us from adapting to a constantly changing technological environment." This ad-hoc coalition is being registered at the official EU Transparency Register in the section In-house lobbyists.^[5] Coordinator of this project runs a Brussels-based public affairs & government relations firm specialised in the online environment, that mainly mentions Industry (a.o. Google) and Trade Associations as its clients.^[6]

Attempts at expansion of copyright limitations and exceptions are sometimes regarded as a threat by publishers.^[7]^[8]

Competition law / antitrust law

Copyright is typically thought of as a limited, legally sanctioned monopoly.^[9] Because of this, copyright licensing may sometimes interfere too much in free and competitive markets.^[10] These concerns are governed by legal doctrines such as competition law in the European Union, antitrust law in the United States, and anti-monopoly law in Russia and Japan.^[10] Competition issues may arise when the licensing party unfairly leverages market power, engages in price discrimination through its licensing terms, or otherwise uses a licensing agreement in a discriminatory or unfair manner.^[9]^[10] Attempts to extend the copyright term granted by law – for example, by collecting royalties for use of the work after its copyright term has expired and it has passed into the public domain – raise such competition concerns.^[9]

In April 1995, the US published "Antitrust Guidelines for the licensing of Intellectual Property" which apply to patents, copyright, and trade secrets. In January 1996, the European Union published Commission Regulation No. 240/96 which applies to patents, copyright, and other intellectual property rights, especially regarding licenses. The guidelines apply mutatis mutandis to the extent possible.^[11]

The interplay of copyright law and competition law is increasingly important in the digital world, as most countries' laws allow private contracts to over-ride copyright law. Given that copyright law creates a legally sanctioned monopoly, balanced by "limitations and exceptions" that allow access without the permission of the copyright holder the over-riding of copyright law by private contracts can create monopoly activity. Well known limitations and exceptions include fair dealing in the UK and Canada, as well as the fair use doctrine in the US. The undermining of copyright law, and in particular limitations and exceptions to copyright by contract law is an issue frequently raised by libraries, and library groups such as International Federation of Library Associations and Institutions. As a result of this, this issue is increasingly being looked at and discussed at a national governmental level e.g. UK^[12] as well as international level such as WIPO – as part of the Development Agenda.

International legal instruments

Limitations and exceptions are also the subject of significant regulation by global treaties. These treaties have harmonized the exclusive rights which must be provided by copyright laws, and the Berne three-step test operates to constrain the kinds of copyright exceptions and limitations which individual nations can enact.

On the other hand, there are very few requirements in international copyright treaties placed on national governments to provide any exemptions from exclusive rights. One such case is Article 10(1) of the Berne Convention, which guarantees a limited right to make quotations from copyrighted works.

Because of the lack of balance in international treaties in October 2004, WIPO agreed to adopt a significant proposal offered by Argentina and Brazil, the "Proposal for the Establishment of a Development Agenda for WIPO" also known simply as the "Development Agenda" - from the Geneva Declaration on the Future of the World Intellectual Property Organization.^[13] This proposal was well supported by developing countries. A number of civil society bodies have been working on a draft Access to Knowledge,^[14] or A2K, Treaty which they would like to see introduced.

National laws

Two important examples of limitations and exceptions to copyright are the fair use doctrine found in the United States, and the fair dealing doctrine found in many other common law countries. Other more fundamental boundaries of copyright are caused by thresholds of originalities l, a threshold below which objects cease to be copyrightable, the idea-expression dichotomy, the public domain and the effect of Crown copyright. Even copyright maximalists might interpret these as defining copyright, rather than being "limitations" or "exceptions" to it. In addition copyright can only protect the artist's expression of his/her work and not the ideas, systems, or factual information conveyed in it.^[15] Likewise, the U.S. courts have determined that stock characters are also uncopyrightable.^[16]^[17]

While fair use in the United States is popularly understood as the only limitation to an author's exclusive rights, it is only one of several important limitations. Section 106 of the U.S. copyright law, which defines the exclusive rights in copyrighted works, is subject to sections 107 through 122, which limit the copyright holder's exclusive rights.

In the U.S. in stark contrast to those copyright laws which have developed from English law, edicts of government are not subject to copyright, including edicts of foreign governments.

In Canada, items deemed useful articles such as clothing designs are exempted from copyright protection under the Copyright Act if reproduced more than 50 times.^[18] Fast fashion brands may reproduce clothing designs from smaller companies without violating copyright protections.^[19]

Related Research Articles

A copyright is a type of intellectual property that gives the creator of an original work, or another owner of the right, the exclusive, legally secured right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educational, or musical form. Copyright is intended to protect the original expression of an idea in the form of a creative work, but not the idea itself. A copyright is subject to limitations based on public interest considerations, such as the fair use doctrine in the United States.

Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, copyrights, trademarks, and trade secrets. The modern concept of intellectual property developed in England in the 17th and 18th centuries. The term "intellectual property" began to be used in the 19th century, though it was not until the late 20th century that intellectual property became commonplace in most of the world's legal systems.

The World Intellectual Property Organization Copyright Treaty is an international treaty on copyright law adopted by the member states of the World Intellectual Property Organization (WIPO) in 1996. It provides additional protections for copyright to respond to advances in information technology since the formation of previous copyright treaties before it. As of August 2023, the treaty has 115 contracting parties. The WCT and WIPO Performances and Phonograms Treaty, are together termed WIPO "internet treaties".

The World Intellectual Property Organization is one of the 15 specialized agencies of the United Nations (UN). Pursuant to the 1967 Convention Establishing the World Intellectual Property Organization, WIPO was created to promote and protect intellectual property (IP) across the world by cooperating with countries as well as international organizations. It began operations on 26 April 1970 when the convention entered into force. The current Director General is Singaporean Daren Tang, former head of the Intellectual Property Office of Singapore, who began his term on 1 October 2020.

In international law, the Berne three-step test is a clause that is included in several international treaties on intellectual property. Signatories of those treaties agree to standardize possible limitations and exceptions to exclusive rights under their respective national copyright laws.

The copyright law of the European Union is the copyright law applicable within the European Union. Copyright law is largely harmonized in the Union, although country to country differences exist. The body of law was implemented in the EU through a number of directives, which the member states need to enact into their national law. The main copyright directives are the Copyright Term Directive, the Information Society Directive and the Directive on Copyright in the Digital Single Market. Copyright in the Union is furthermore dependent on international conventions to which the European Union or their member states are part of, such as TRIPS Agreement or the Berne Convention.

Anti-circumvention refers to laws which prohibit the circumvention of technological barriers for using a digital good in certain ways which the rightsholders do not wish to allow. The requirement for anti-circumvention laws was globalized in 1996 with the creation of the World Intellectual Property Organization's Copyright Treaty.

<span class="mw-page-title-main">Copyright law of Canada</span> Canadian statutes controlling copyright

The copyright law of Canada governs the legally enforceable rights to creative and artistic works under the laws of Canada. Canada passed its first colonial copyright statute in 1832 but was subject to imperial copyright law established by Britain until 1921. Current copyright law was established by the Copyright Act of Canada which was first passed in 1921 and substantially amended in 1988, 1997, and 2012. All powers to legislate copyright law are in the jurisdiction of the Parliament of Canada by virtue of section 91(23) of the Constitution Act, 1867.

Copyright in the Netherlands is governed by the Dutch Copyright Law, copyright is the exclusive right of the author of a work of literature or artistic work to publish and copy such work.

The Access to Knowledge (A2K) movement is a loose collection of civil society groups, governments, and individuals converging on the idea that access to knowledge should be linked to fundamental principles of justice, freedom, and economic development.

"Author's rights" is a term frequently used in connection with laws about intellectual property.

Copyright in Russia developed originally along the same lines as in Western European countries. A first copyright statute dated back to 1828, and in 1857, a general copyright term of fifty years was instituted. The copyright law of 1911 was inspired by Western laws of the continental European tradition. One noteworthy exception in Russian copyright law was the "freedom of translation"—any work could be freely translated into another language.

The following outline is provided as an overview of and topical guide to intellectual property:

Turkish copyright law is documented in the law number 5846 on Intellectual and Artistic Works.

The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, was an international assembly held in 1886 in the Swiss city of Bern by ten European countries with the goal of agreeing on a set of legal principles for the protection of original work. They drafted and adopted a multi-party contract containing agreements for a uniform, border-crossing system that became known under the same name. Its rules have been updated many times since then. The treaty provides authors, musicians, poets, painters, and other creators with the means to control how their works are used, by whom, and on what terms. In some jurisdictions these type of rights are referred to as copyright; on the European continent they are generally referred to as author' rights or makerright.

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all the member nations of the World Trade Organization (WTO). It establishes minimum standards for the regulation by national governments of different forms of intellectual property (IP) as applied to nationals of other WTO member nations. TRIPS was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) between 1989 and 1990 and is administered by the WTO.

The Copyright and Information Society Directive 2001 is a directive in European Union law that was enacted to implement the WIPO Copyright Treaty and to harmonise aspects of copyright law across Europe, such as copyright exceptions. The directive was first enacted in 2001 under the internal market provisions of the Treaty of Rome.

<span class="mw-page-title-main">Copyright infringement</span> Illegal usage of copyrighted works

Copyright infringement is the use of works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works. The copyright holder is typically the work's creator, or a publisher or other business to whom copyright has been assigned. Copyright holders routinely invoke legal and technological measures to prevent and penalize copyright infringement.

The copyright law of South Africa governs copyright, the right to control the use and distribution of artistic and creative works, in the Republic of South Africa. It is embodied in the Copyright Act, 1978 and its various amendment acts, and administered by the Companies and Intellectual Property Commission in the Department of Trade and Industry. As of March 2019 a major amendment to the law in the Copyright Amendment Bill has been approved by the South African Parliament and is awaiting signature by the President.

Copyright for Creativity - A Declaration for Europe issued on 5 May 2010, is intended as a statement of how copyright policy could be constructed in the Internet Age. It comes against the background of political debate within Europe to rethink copyright in an era where the use of digital content without paying fees to the creators is part of the business model for some of the largest global internet platforms. Interests of content creators and online platform providers collide. The declaration has been written by a group from political party "European People's Party (EPP)" The Declaration focuses on both the exclusive rights and the limitations and exceptions to existing copyright rulings and standards.

References

↑ P. Bernt Hugenholtz. Copyright And Freedom Of Expression In Europe (2001) Published in: Rochelle Cooper Dreyfuss, Harry First and Diane Leenheer Zimmerman (eds.), Expanding the Boundaries of Intellectual Property, Oxford University Press; Stavroula Karapapa, Defences to Copyright Infringement: Creativity, Innovation and Freedom on the Internet. (2020) Oxford University Press.
↑ Canada, Supreme Court of (1 January 2001). "Supreme Court of Canada - SCC Case Information - Search". scc-csc.lexum.com. Retrieved 7 March 2021.
↑ "Council of Europe Parliamentary Assembly". assembly.coe.int. Archived from the original on 11 September 2010.
↑ Copyright for Creativity.Broad coalition calls for European copyright to support digital creativity and innovation Archived 6 July 2011 at archive.today 5 May 2010.
↑ "EU Transparency Register - Display Lobbyist". European Union. Retrieved 25 June 2018.
↑ "N-square". YEP Foundation, C. De Cock. Retrieved 25 June 2018.
↑ Masnick, Mike (23 July 2012). "We Should Stop Calling Fair Use A 'Limitation & Exception' To Copyright; It's A Right Of The Public". Techdirt . Retrieved 12 February 2013.
↑ An open letter to the Russian President Dmitry Medvedev, prepared by publishers and signed by 20 people, including writers (at least one of whom regretted it), a translator and an heir, and sent to mass media in December 2010; which demanded to stop a bill allowing libraries to create, without a permission, single digital copies of works, and stating the limitations on liability of ISPs and hosters.Vladimir Kharitonov. Издатели подставляют писателей. Chastny Korrespondent (in Russian). Archived from the original on 25 April 2013.
1 2 3 WIPO Guide on the Licensing of Copyright and Related Rights. World Intellectual Property Organization. 2004. p. 7. ISBN 978-92-805-1271-7.
1 2 3 Kenneth L. Port (2005). Licensing Intellectual Property in the Information Age (2nd ed.). Carolina Academic Press. pp. 425–566. ISBN 0-89089-890-1.
↑ WIPO Guide on the Licensing of Copyright and Related Rights. World Intellectual Property Organization. 2004. p. 78. ISBN 978-92-805-1271-7.
↑ Consumer Project on Technology web site, Geneva Declaration on the Future of the World Intellectual Property Organization
↑ Consumer Project on Technology web site, Access to Knowledge (A2K)
↑ The Wrinkle in Your Research and Teaching: Copyright, DMCA, Guidelines, and Public Domain Archived 18 September 2006 at the Wayback Machine
↑ Nichols v. Universal Pictures Corp. , 45 F.2d 119 (2d Cir. 1930).
↑ Capcom U.S.A. Inc. v. Data East Corp. 1994 WL 1751482 (N.D. Cal. 1994). Analysis at Patent Arcade accessed June 18, 2009.
↑ Monastero, Alessia. "More Than Just a Trend: The Copyright Protection of Fashion Designs". Ontario Bar Association. Retrieved 31 August 2023.
↑ Moran, Padraig. "Dupes offer cheap fashion to Canadians, but small businesses say they're paying the price". CBC Radio. Retrieved 31 August 2023.