Copyright Exceptions or Limitations
Exceptions are key factors in maintaining the balanced interests of copyright holders and users in the copyright system. They are developed taking into account not only exceptions to the rights, but also fundamental freedoms and fundamental public interests under copyright law.
Copyright exemption systems vary in accordance with the legal framework. Nevertheless, a careful analysis suggests that they are usually of two types: some are considered “open” if they provide for a general rejection in many situations, modeled on the American concept of fair use. Others are considered “closed” if they are listed on a list of well-defined circumstances in which there is no copyright. The latter system is mainly based on the legislation of continental Europe.
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The US fair use system is an example of an “open” system, since certain uses that usually give rise to copyright issues can be viewed by a court as falling within the scope of this general exception in terms of purpose and nature of use (especially if it is non-commercial in nature or serves purposes learning), the nature of the protected work, the volume and significance of the part of the work used, the impact of the use on the potential market or on the value of the protected The value you [1]. This system allows some flexibility in the assessment of copyright exemptions, although it does not guarantee that users of works will be legally reliable persons or that the consequences of use will be legally predictable.
On the other hand, in the European or model-based copyright system, mainly of French or German origin, the exceptions are an accurate and exhaustive list of actions that, in certain circumstances, bypass the author's monopoly. In general, the following exceptions are recognized [2]:
· Exclusion from copyright for personal or other private use;
· An exception for private communication, for example in the family;
· Exception for parody, potpourri or caricature;
· Citation exception;
· An exception for copying for scientific or educational purposes;
· Exceptions for news posts;
· Exception required for administrative needs of justice and public policy.
Adaptation of exceptions to the conditions of the digital environment is a serious problem. Right holders are demanding a review of their use and scope so that a new digital society does not threaten their credentials. The 1996 WIPO treaties in this regard recall the need to ensure a general limitation of the number of exceptions granted to contracting parties by their national laws. Article 10 The Copyright Treaty imposes a restriction on exceptions in respect of both copyright and neighboring rights, as well as special cases that do not interfere with the normal use of the work and do not unreasonably prejudice the legitimate interests of the author [3]. This three-step test was already present in the Bern Convention and in the TRIPS Agreement. According to article 10 of the Copyright Treaty: “Contracting parties may provide in their national law restrictions or exceptions to the rights granted to authors of literary and artistic works under this Treaty, in certain special cases, that do not damage the normal use of the work and are not unreasonably prejudiced the legitimate interests of the author "[4].
Thus, the triple condition, designed to serve as a touchstone of the system of exclusions and “one of the fundamental principles of the future copyright framework,” will serve as a guideline in evaluating exceptions to the sphere of copyright. These three conditions, or "steps", are the following: first of all, only exceptions are allowed that are included in the category of special cases. Therefore, general exclusions are not allowed, such as a general exemption for private use. However, fair use, although potentially and strictly limited, does not appear to be prohibited by this provision. The other two conditions (that exceptions should not interfere with the normal operation of the work or impair the legitimate interests of the authors) should be considered in the context of each of them. An exception is unacceptable if it allows a third party to exploit works in such a way as to create competition to the copyright owner, or if the use of exceptions affects the potential market for the work [5]. The agreed statement accompanying the Copyright Treaty provides that the provisions of Article 10 [a three-step test] allow Contracting Parties to transfer and appropriately extend to the digital environment limitations and exceptions in their national laws that are considered acceptable under the Berne Convention. Similarly, these provisions should be understood as allowing Contracting Parties to define new exceptions and limitations that are suitable in the field of digital computer networks. It is also understood that Article 10 (2) does not limit or expand the scope of application of the limitations and exceptions allowed by the Bern Convention [6].
Despite the ambiguous and complex wording, the Statement confirms that the three-step test can neither reduce nor expand the list of exceptions in the digital environment. Consequently, states can undoubtedly work out exceptions that would be acceptable in the information society. At the same time, Article 10 itself requires new reading, using a three-step test as a measure of the existing exceptions in terms of their transfer to the digital environment.
In any case, the current trend appears to be aimed at reducing both the scope and the number of exceptions to copyright in the digital world. This idea was behind the proposal contained in the European copyright directive in the information society, which reduces the exceptions to the few strictly and strictly regulated cases in which the provision on the payment of fair compensation to the author usually appears. However, the energetic plan for harmonization in its latest edition, and then at the stage of developing a common position, did not reach the goal set and gives states the opportunity to choose from a list of 22 exceptions. This list even left a private digital copy, despite the determination of copyright owners to eliminate the possibility of copying in a digital environment due to the ease of manufacture and high quality copies.
Technical progress makes it easy to establish a contractual relationship on the Internet, and you can negotiate and authorize each use of the work. Thus, the need to provide for exceptions in the law will lose its relevance. Suppose the author distributes his work through the Internet, while at the same time negotiating the citation for scientific purposes for a small fee [7].
Exemptions are key factors in maintaining the balanced interests of authors and the public in the copyright system. They are developed taking into account not only exceptions to the rights, but also fundamental freedoms and fundamental public interests under copyright law. Underlying certain copyright restrictions are freedom of expression, freedom of the press and the right to information. For example, exemptions related to private use are designed to protect privacy, while exemptions for educational and research purposes seek to ensure the right of people to knowledge and education. From this logic of exceptions to copyright, several consequences follow:
Exemptions must be preserved in the digital environment for the sake of copyright balance.
The problem of adapting seizures to the digital environment can only be solved by modern analysis of the grounds for their provision. The doctrine, as a rule, cites two types of considerations justifying the imposition of a copyright restriction: either these exceptions are necessary for practical or economic reasons, or they are justified by concerns about common interests or fundamental rights and freedoms. Here we give the distinction of Hugenholz in three categories:
First of all, some copyright exemptions express concern for guaranteeing fundamental freedoms, such as freedom of expression, information, freedom of the press, and the right to personal integrity. These exceptions are: parody, citation, critical reviews, news reports, or private use of works. Undoubtedly, the validity of these exceptions in the digital environment is unchanged. Therefore, these exceptions need to be kept and protected.
The second category of exceptions is justified by the requirements of public interest. These exceptions are limited to educational institutions and libraries, archives and museums, as well as the use of works for the needs of persons with disabilities, justice and the state. Here, too, the interests underlying the exceptions continue to exist in the digital environment. This applies particularly to the case of the educational or research community, in which an increasing number of works and information materials are available only through the Internet. Therefore, for researchers and students in the scientific community, it is especially important to get the same opportunities in the digital environment as in the analog world. Probably, the existing exceptions in favor of libraries, scientific and educational societies should be maintained in the conditions of electronic networks. However, in some cases, these exceptions are applied in a completely different way and, therefore, they can interfere with the normal operation of the work in a new way. Parties such as libraries or educators who enjoy the benefits of these exceptions play a completely new role in the information society. The virtual library is open to the general public and is fundamentally different from the material institution with its limited number of users and opening hours. The difference between the publisher or distributor of information and works and the library of the future is insignificant. The same applies to institutions offering educational courses. Therefore, even if we should speak in support of maintaining the exceptions already included in this framework, we should not shy away from the need to carefully weigh the role and functions of libraries and education on the Internet. Consideration of this problem may also lead to the idea of ​​the need for new exceptions in order to preserve the fundamental importance of access to culture and the transfer of knowledge.
Finally, some exceptions are introduced into the arsenal of copyright law in order to compensate for both market failures and the inability of some authors to effectively control and prevent certain uses. This refers to private audiovisual copying and reprography. When devices for graphic, audio, and audiovisual reproduction in the form of photocopiers, tape recorders, and video recorders were developed, there was a rapid increase in the number of copies of works. The author could not effectively control the production of these copies, especially if they were made for private use. Given this problem, lawmakers have recognized for the user the right to an exception for private copying, which is accompanied by the payment of remuneration to the author. Thus, this kind of exception is a concession to the practical inability of enforcing copyright. The development of technology has led to the elimination of this inability. Using technological mechanisms, authors can prevent others from making digital copies. As a result, a significant part of the arguments justifying the exception loses its force. Moreover, these exceptions have nothing to do with fundamental freedoms or concern for the interests of the general public. Therefore, their existence is questionable [8].
In favor of preserving the existing exceptions, at least, the argument about preserving the balance of interests inherent in copyright law speaks. In certain cases, it can even be argued that with the expansion of copyright, the scope of exceptions must increase in order to restore this balance. In fact, rights and exceptions are most complexly connected with the establishment of proper balance. To date, lawmakers have thought only of expanding exclusive copyright. It is time to think about the interests of users.
© Atanasov Sergey LOVATA Group 2007
Crosspost from webdev.lovata.com .
[1] Copyright Act 1976. Art. 107
[2] Detailed descriptions of exceptions made in different countries .: Les Frontieres du droit d'auteur: ses limites et exceptions, ALAI Study Days, 14-17 September 1998, Cambridge, Ed. Australian Copyright Council, 1999.
[3] WIPO Copyright Treaty. Adopted by the Diplomatic Conference on 12/20/1996; Russian text Law of the Republic of Belarus // Copyright and Related Rights. Ed. Chigir V.A. - Minsk: Amalthea, 1999. p. 277-290
[4] Ibid. Pp. 277-290
[5] Ibid. Pp. 277-290
[6] Severin Dusollier, Yves Pouillet, Mireille Buyden. Copyright and access to information in a digital environment // copyright.iile.ru/bullet/02_2001/2_2.html
[7] W. Fisher III, Property and Contract on the Internet, 1998; T. Bell, Fare Use v. Fared Use: Doctrine, NCL Rev., Vol. 76, 1998, p. 101.
[8] Severin Dusollier, Yves Pouillet, Mireille Buyden. Copyright and access to information in a digital environment // copyright.iile.ru/bullet/02_2001/2_2.html
Copyright exemption systems vary in accordance with the legal framework. Nevertheless, a careful analysis suggests that they are usually of two types: some are considered “open” if they provide for a general rejection in many situations, modeled on the American concept of fair use. Others are considered “closed” if they are listed on a list of well-defined circumstances in which there is no copyright. The latter system is mainly based on the legislation of continental Europe.
')
The US fair use system is an example of an “open” system, since certain uses that usually give rise to copyright issues can be viewed by a court as falling within the scope of this general exception in terms of purpose and nature of use (especially if it is non-commercial in nature or serves purposes learning), the nature of the protected work, the volume and significance of the part of the work used, the impact of the use on the potential market or on the value of the protected The value you [1]. This system allows some flexibility in the assessment of copyright exemptions, although it does not guarantee that users of works will be legally reliable persons or that the consequences of use will be legally predictable.
On the other hand, in the European or model-based copyright system, mainly of French or German origin, the exceptions are an accurate and exhaustive list of actions that, in certain circumstances, bypass the author's monopoly. In general, the following exceptions are recognized [2]:
· Exclusion from copyright for personal or other private use;
· An exception for private communication, for example in the family;
· Exception for parody, potpourri or caricature;
· Citation exception;
· An exception for copying for scientific or educational purposes;
· Exceptions for news posts;
· Exception required for administrative needs of justice and public policy.
Adaptation of exceptions to the conditions of the digital environment is a serious problem. Right holders are demanding a review of their use and scope so that a new digital society does not threaten their credentials. The 1996 WIPO treaties in this regard recall the need to ensure a general limitation of the number of exceptions granted to contracting parties by their national laws. Article 10 The Copyright Treaty imposes a restriction on exceptions in respect of both copyright and neighboring rights, as well as special cases that do not interfere with the normal use of the work and do not unreasonably prejudice the legitimate interests of the author [3]. This three-step test was already present in the Bern Convention and in the TRIPS Agreement. According to article 10 of the Copyright Treaty: “Contracting parties may provide in their national law restrictions or exceptions to the rights granted to authors of literary and artistic works under this Treaty, in certain special cases, that do not damage the normal use of the work and are not unreasonably prejudiced the legitimate interests of the author "[4].
Thus, the triple condition, designed to serve as a touchstone of the system of exclusions and “one of the fundamental principles of the future copyright framework,” will serve as a guideline in evaluating exceptions to the sphere of copyright. These three conditions, or "steps", are the following: first of all, only exceptions are allowed that are included in the category of special cases. Therefore, general exclusions are not allowed, such as a general exemption for private use. However, fair use, although potentially and strictly limited, does not appear to be prohibited by this provision. The other two conditions (that exceptions should not interfere with the normal operation of the work or impair the legitimate interests of the authors) should be considered in the context of each of them. An exception is unacceptable if it allows a third party to exploit works in such a way as to create competition to the copyright owner, or if the use of exceptions affects the potential market for the work [5]. The agreed statement accompanying the Copyright Treaty provides that the provisions of Article 10 [a three-step test] allow Contracting Parties to transfer and appropriately extend to the digital environment limitations and exceptions in their national laws that are considered acceptable under the Berne Convention. Similarly, these provisions should be understood as allowing Contracting Parties to define new exceptions and limitations that are suitable in the field of digital computer networks. It is also understood that Article 10 (2) does not limit or expand the scope of application of the limitations and exceptions allowed by the Bern Convention [6].
Despite the ambiguous and complex wording, the Statement confirms that the three-step test can neither reduce nor expand the list of exceptions in the digital environment. Consequently, states can undoubtedly work out exceptions that would be acceptable in the information society. At the same time, Article 10 itself requires new reading, using a three-step test as a measure of the existing exceptions in terms of their transfer to the digital environment.
In any case, the current trend appears to be aimed at reducing both the scope and the number of exceptions to copyright in the digital world. This idea was behind the proposal contained in the European copyright directive in the information society, which reduces the exceptions to the few strictly and strictly regulated cases in which the provision on the payment of fair compensation to the author usually appears. However, the energetic plan for harmonization in its latest edition, and then at the stage of developing a common position, did not reach the goal set and gives states the opportunity to choose from a list of 22 exceptions. This list even left a private digital copy, despite the determination of copyright owners to eliminate the possibility of copying in a digital environment due to the ease of manufacture and high quality copies.
Technical progress makes it easy to establish a contractual relationship on the Internet, and you can negotiate and authorize each use of the work. Thus, the need to provide for exceptions in the law will lose its relevance. Suppose the author distributes his work through the Internet, while at the same time negotiating the citation for scientific purposes for a small fee [7].
Exemptions are key factors in maintaining the balanced interests of authors and the public in the copyright system. They are developed taking into account not only exceptions to the rights, but also fundamental freedoms and fundamental public interests under copyright law. Underlying certain copyright restrictions are freedom of expression, freedom of the press and the right to information. For example, exemptions related to private use are designed to protect privacy, while exemptions for educational and research purposes seek to ensure the right of people to knowledge and education. From this logic of exceptions to copyright, several consequences follow:
Exemptions must be preserved in the digital environment for the sake of copyright balance.
The problem of adapting seizures to the digital environment can only be solved by modern analysis of the grounds for their provision. The doctrine, as a rule, cites two types of considerations justifying the imposition of a copyright restriction: either these exceptions are necessary for practical or economic reasons, or they are justified by concerns about common interests or fundamental rights and freedoms. Here we give the distinction of Hugenholz in three categories:
First of all, some copyright exemptions express concern for guaranteeing fundamental freedoms, such as freedom of expression, information, freedom of the press, and the right to personal integrity. These exceptions are: parody, citation, critical reviews, news reports, or private use of works. Undoubtedly, the validity of these exceptions in the digital environment is unchanged. Therefore, these exceptions need to be kept and protected.
The second category of exceptions is justified by the requirements of public interest. These exceptions are limited to educational institutions and libraries, archives and museums, as well as the use of works for the needs of persons with disabilities, justice and the state. Here, too, the interests underlying the exceptions continue to exist in the digital environment. This applies particularly to the case of the educational or research community, in which an increasing number of works and information materials are available only through the Internet. Therefore, for researchers and students in the scientific community, it is especially important to get the same opportunities in the digital environment as in the analog world. Probably, the existing exceptions in favor of libraries, scientific and educational societies should be maintained in the conditions of electronic networks. However, in some cases, these exceptions are applied in a completely different way and, therefore, they can interfere with the normal operation of the work in a new way. Parties such as libraries or educators who enjoy the benefits of these exceptions play a completely new role in the information society. The virtual library is open to the general public and is fundamentally different from the material institution with its limited number of users and opening hours. The difference between the publisher or distributor of information and works and the library of the future is insignificant. The same applies to institutions offering educational courses. Therefore, even if we should speak in support of maintaining the exceptions already included in this framework, we should not shy away from the need to carefully weigh the role and functions of libraries and education on the Internet. Consideration of this problem may also lead to the idea of ​​the need for new exceptions in order to preserve the fundamental importance of access to culture and the transfer of knowledge.
Finally, some exceptions are introduced into the arsenal of copyright law in order to compensate for both market failures and the inability of some authors to effectively control and prevent certain uses. This refers to private audiovisual copying and reprography. When devices for graphic, audio, and audiovisual reproduction in the form of photocopiers, tape recorders, and video recorders were developed, there was a rapid increase in the number of copies of works. The author could not effectively control the production of these copies, especially if they were made for private use. Given this problem, lawmakers have recognized for the user the right to an exception for private copying, which is accompanied by the payment of remuneration to the author. Thus, this kind of exception is a concession to the practical inability of enforcing copyright. The development of technology has led to the elimination of this inability. Using technological mechanisms, authors can prevent others from making digital copies. As a result, a significant part of the arguments justifying the exception loses its force. Moreover, these exceptions have nothing to do with fundamental freedoms or concern for the interests of the general public. Therefore, their existence is questionable [8].
In favor of preserving the existing exceptions, at least, the argument about preserving the balance of interests inherent in copyright law speaks. In certain cases, it can even be argued that with the expansion of copyright, the scope of exceptions must increase in order to restore this balance. In fact, rights and exceptions are most complexly connected with the establishment of proper balance. To date, lawmakers have thought only of expanding exclusive copyright. It is time to think about the interests of users.
© Atanasov Sergey LOVATA Group 2007
Crosspost from webdev.lovata.com .
[1] Copyright Act 1976. Art. 107
[2] Detailed descriptions of exceptions made in different countries .: Les Frontieres du droit d'auteur: ses limites et exceptions, ALAI Study Days, 14-17 September 1998, Cambridge, Ed. Australian Copyright Council, 1999.
[3] WIPO Copyright Treaty. Adopted by the Diplomatic Conference on 12/20/1996; Russian text Law of the Republic of Belarus // Copyright and Related Rights. Ed. Chigir V.A. - Minsk: Amalthea, 1999. p. 277-290
[4] Ibid. Pp. 277-290
[5] Ibid. Pp. 277-290
[6] Severin Dusollier, Yves Pouillet, Mireille Buyden. Copyright and access to information in a digital environment // copyright.iile.ru/bullet/02_2001/2_2.html
[7] W. Fisher III, Property and Contract on the Internet, 1998; T. Bell, Fare Use v. Fared Use: Doctrine, NCL Rev., Vol. 76, 1998, p. 101.
[8] Severin Dusollier, Yves Pouillet, Mireille Buyden. Copyright and access to information in a digital environment // copyright.iile.ru/bullet/02_2001/2_2.html
Source: https://habr.com/ru/post/11894/
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