Limitations and exceptions to copyright

Limitations and exceptions to copyrightare provisions, in localcopyright lawor theBerne 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 asmarket 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 theCanadian Supreme Court,^[2]which classed "fair dealing" as such a user right. These kinds of disagreements in philosophy are quite common in thephilosophy of copyright,where debates about jurisprudential reasoning tend to act as proxies for more substantial disagreements about good policy.

Changing technology[edit]

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 withTRIPS,and the enactment ofanti-circumvention rulesin response to theWIPO Copyright Treaty.^[3]TheEuropean People's Partyconcluded 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 entitledCopyright for Creativity^[4]was launched, stating: "While exclusive rights have been adapted and harmonised to meet the challenges of theknowledge 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 mentionsIndustry(a.o. Google) andTrade Associationsas 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[edit]

Copyright is typically thought of as a limited, legally sanctionedmonopoly.^[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 ascompetition lawin theEuropean Union,antitrust lawin theUnited States,and anti-monopoly law inRussiaandJapan.^[10]Competition issues may arise when the licensing party unfairly leverages market power, engages inprice discriminationthrough its licensing terms, or otherwise uses a licensing agreement in a discriminatory or unfair manner.^[9]^[10]Attempts to extend thecopyright termgranted by law – for example, by collectingroyaltiesfor use of the work after its copyright term has expired and it has passed into thepublic domain– raise such competition concerns.^[9]

In April 1995, the US published "Antitrust Guidelines for the licensing of Intellectual Property" which apply topatents,copyright, andtrade secrets.In January 1996, theEuropean Unionpublished Commission Regulation No. 240/96 which applies to patents, copyright, and other intellectual property rights, especially regarding licenses. The guidelines applymutatis mutandisto 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 sanctionedmonopoly,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 includefair dealingin theUKandCanada,as well as thefair usedoctrine in the US. The undermining of copyright law, and in particular limitations and exceptions to copyright bycontract lawis an issue frequently raised by libraries, and library groups such asInternational 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 asWIPO– as part of the Development Agenda.

International legal instruments[edit]

Limitations and exceptions are also the subject of significant regulation by global treaties. These treaties haveharmonizedthe exclusive rights which must be provided by copyright laws, and theBerne three-step testoperates 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 theBerne 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 byArgentinaandBrazil,the "Proposal for the Establishment of a Development Agenda for WIPO" also known simply as the "Development Agenda" - from theGeneva 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[edit]

Two important examples of limitations and exceptions to copyright are thefair usedoctrine found in the United States, and thefair dealingdoctrine found in many othercommon lawcountries. Other more fundamental boundaries of copyright are caused bythresholds of originalities l,a threshold below which objects cease to be copyrightable, theidea-expression dichotomy,thepublic domainand the effect ofCrown copyright.Even copyright maximalists might interpret these asdefiningcopyright, 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 thatstock charactersare also uncopyrightable.^[16]^[17]

Whilefair usein 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 definesthe exclusive rights in copyrighted works,is subject tosections 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 fromEnglish law,edicts of governmentare not subject to copyright, including edicts of foreign governments.

In Canada, items deemeduseful articlessuch as clothing designs are exempted from copyright protection under theCopyright Actif reproduced more than 50 times.^[18]Fast fashionbrands may reproduce clothing designs from smaller companies without violating copyright protections.^[19]

References[edit]

^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.Retrieved7 March2021.
^"Council of Europe Parliamentary Assembly".assembly.coe.int.Archived fromthe originalon 11 September 2010.
^Copyright for Creativity.Broad coalition calls for European copyright to support digital creativity and innovation Archived6 July 2011 atarchive.today5 May 2010.
^"EU Transparency Register - Display Lobbyist".European Union.Retrieved25 June2018.
^"N-square".YEP Foundation, C. De Cock.Retrieved25 June2018.
^Masnick, Mike (23 July 2012)."We Should Stop Calling Fair Use A 'Limitation & Exception' To Copyright; It's A Right Of The Public".Techdirt.Retrieved12 February2013.
^An open letterto the Russian PresidentDmitry 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 stopa billallowing 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 fromthe originalon 25 April 2013.
^^a ^b ^cWIPO Guide on the Licensing of Copyright and Related Rights.World Intellectual Property Organization.2004. p. 7.ISBN 978-92-805-1271-7.
^^a ^b ^cKenneth 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 Archived18 September 2006 at theWayback 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 Arcadeaccessed June 18, 2009.
^Monastero, Alessia."More Than Just a Trend: The Copyright Protection of Fashion Designs".Ontario Bar Association.Retrieved31 August2023.
^Moran, Padraig."Dupes offer cheap fashion to Canadians, but small businesses say they're paying the price".CBC Radio.Retrieved31 August2023.