Limitations and exceptions to copyright
Encyclopedia
Limitations and exceptions to copyright are provisions in copyright law which allow for copyrighted works to be used without a license from the copyright owner.
Limitations and exceptions have a number of important public policy
goals such as market failure
, freedom of speech
, education and equality of access (such as by the visually impaired.) Some view "limitations and exceptions" as "user rights" - seeing user rights provide an essential balance to the rights of copyright owners. There is no consensus amongst copyright experts as to whether they are "rights" or not. See for example the National Research Council's Digital Agenda Report, note 1. The concept of user rights has also been recognised by courts, including the Canadian Supreme Court in CCH Canadian Ltd v. Law Society of Upper Canada (2004 SCC 13), 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.
, and the enactment of anti-circumvention rules in response to the WIPO Copyright Treaty. This is becoming increasingly a topic of political debate. Academics and 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. For example, at a European level in May 2010 a declaration entitled Copyright for Creativity
was launched supported by industry, artist, education and consumer groups. The declaration states that "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."
. Because of this, copyright licensing may sometimes interfere too much in free and competitive markets. These concerns are governed by legal doctrines such as competition law
in the European Union
, anti-trust law in the United States
, and anti-monopoly law in Russia
and Japan
. 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. 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.
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.
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 as well as international level such as WIPO - as part of the Development Agenda.
operates to constrain the kinds of copyright exceptions and limitations which individual nations can enact. On the other hand, international copyright treaties place almost no requirements on national governments to provide exemptions from exclusive rights; a notable exception to this 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
. This proposal was well supported by developing countries. A number of civil society bodies have been working on a draft Access to Knowledge, or A2K, Treaty which they would like to see introduced.
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 originality
, 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. Likewise, the US court systems have determined that stock character
s are also uncopyrightable.
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 USA, the United Kingdom, and several other countries, it is legal to produce alternate versions (for example, in large print or braille) of a copyrighted work to provide improved access to a work for blind and visually impaired persons without permission from the copyright holder. (See references at Copyright
.)
Limitations and exceptions have a number of important public policy
Public policy
Public policy as government action is generally the principled guide to action taken by the administrative or executive branches of the state with regard to a class of issues in a manner consistent with law and institutional customs. In general, the foundation is the pertinent national and...
goals such as market failure
Market failure
Market failure is a concept within economic theory wherein the allocation of goods and services by a free market is not efficient. That is, there exists another conceivable outcome where a market participant may be made better-off without making someone else worse-off...
, freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
, education and equality of access (such as by the visually impaired.) Some view "limitations and exceptions" as "user rights" - seeing user rights provide an essential balance to the rights of copyright owners. There is no consensus amongst copyright experts as to whether they are "rights" or not. See for example the National Research Council's Digital Agenda Report, note 1. The concept of user rights has also been recognised by courts, including the Canadian Supreme Court in CCH Canadian Ltd v. Law Society of Upper Canada (2004 SCC 13), which classed "fair dealing" as such a user right. These kinds of disagreements in philosophy
Philosophy
Philosophy is the study of general and fundamental problems, such as those connected with existence, knowledge, values, reason, mind, and language. Philosophy is distinguished from other ways of addressing such problems by its critical, generally systematic approach and its reliance on rational...
are quite common in the philosophy of copyright
Philosophy of copyright
The philosophy of copyright might be said to include several philosophical issues which are fundamentally linked to copyright policy, and other jurisprudential problems that arise in legal systems' interpretation and application of copyright law....
, where debates about jurisprudential reasoning tend to act as proxies for more substantial disagreements about good policy.
Changing technology and limitations and exceptions
The scope of copyright limitations and exceptions became a subject of significant controversy 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 TRIPSAgreement on Trade-Related Aspects of Intellectual Property Rights
The Agreement on Trade Related Aspects of Intellectual Property Rights is an international agreement administered by the World Trade Organization that sets down minimum standards for many forms of intellectual property regulation as applied to nationals of other WTO Members...
, and the enactment of anti-circumvention rules in response to the WIPO Copyright Treaty. This is becoming increasingly a topic of political debate. Academics and 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. For example, at a European level in May 2010 a declaration entitled Copyright for Creativity
Copyright for Creativity
Copyright for Creativity - A Declaration for Europe is intended as a positive statement of how good copyright policy needs to be constructed in the Internet Age, and comes against the background of increasing political debate within Europe as to the need to rethink copyright in the internet...
was launched supported by industry, artist, education and consumer groups. The declaration states that "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."
Competition law / anti-trust law and limitations and exceptions
Copyright is typically thought of as a limited, legally sanctioned monopolyMonopoly
A monopoly exists when a specific person or enterprise is the only supplier of a particular commodity...
. Because of this, copyright licensing may sometimes interfere too much in free and competitive markets. These concerns are governed by legal doctrines such as competition law
Competition law
Competition law, known in the United States as antitrust law, is law that promotes or maintains market competition by regulating anti-competitive conduct by companies....
in the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
, anti-trust law in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, and anti-monopoly law in Russia
Russian competition law
Russian competition law was ratified by the Supreme Soviet of the USSR in March 1991.In the final stages of glasnost and the deteriorating tethering of the USSR, the various member soviet republics saw the need for regulation and stabilisation of trade...
and Japan
Japanese competition law
Japanese competition law consists of the , officially the , and several other statutory laws.The AMA was introduced during the postwar Allied occupation. The U.S. Government, on 6 September 1945, issued a presidential directive instructing the Supreme Commander of the Allied Powers to dissolve...
. Competition issues may arise when the licensing party unfairly leverages market power, engages in price discrimination
Price discrimination
Price discrimination or price differentiation exists when sales of identical goods or services are transacted at different prices from the same provider...
through its licensing terms, or otherwise uses a licensing agreement in a discriminatory or unfair manner. Attempts to extend the copyright term
Copyright term
Copyright term is the length of time copyright subsists in a work before it passes into the public domain.- Length of copyright:Copyright subsists for a variety of lengths in different jurisdictions. The length of the term can depend on several factors, including the type of work Copyright term is...
granted by law – for example, by collecting royalties
Royalties
Royalties are usage-based payments made by one party to another for the right to ongoing use of an asset, sometimes an intellectual property...
for use of the work after its copyright term has expired and it has passed into the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
– raise such competition concerns.
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
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
published Commission Regulation No. 240/96 which applies to patents, copyright, and other intellectual property rights, especially regarding licenses. The guidelines apply mutatis mutandis
Mutatis mutandis
Mutatis mutandis is a Latin phrase meaning "by changing those things which need to be changed" or more simply "the necessary changes having been made"....
to the extent possible.
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
Monopoly
A monopoly exists when a specific person or enterprise is the only supplier of a particular commodity...
, 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
Fair dealing
Fair dealing is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, which is found in many of the common law jurisdictions of the Commonwealth of Nations....
in the UK and Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, as well as the fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
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
International Federation of Library Associations and Institutions
The International Federation of Library Associations and Institutions is the leading international association of library organisations. It is the global voice of the library and information profession, and its annual conference provides a venue for librarians to learn from one another...
. As a result of this, this issue is increasingly being looked at and discussed at a national governmental level e.g. UK as well as international level such as WIPO - as part of the Development Agenda.
International legal instruments and limitations and exceptions
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 testBerne three-step test
The Berne three-step test is a clause that is included in several international treaties on intellectual property. It imposes on signatories to the treaties constraints on the possible limitations and exceptions to exclusive rights under national copyright laws.- Berne Convention :The three-step...
operates to constrain the kinds of copyright exceptions and limitations which individual nations can enact. On the other hand, international copyright treaties place almost no requirements on national governments to provide exemptions from exclusive rights; a notable exception to this is Article 10(1) of the Berne Convention
Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...
, 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
Argentina
Argentina , officially the Argentine Republic , is the second largest country in South America by land area, after Brazil. It is constituted as a federation of 23 provinces and an autonomous city, Buenos Aires...
and Brazil
Brazil
Brazil , officially the Federative Republic of Brazil , is the largest country in South America. It is the world's fifth largest country, both by geographical area and by population with over 192 million people...
, 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
Geneva Declaration on the Future of the World Intellectual Property Organization
The Geneva Declaration on the Future of the World Intellectual Property Organization is a document signed in 2004 by a number of non-profit organizations, scientists, academics and other individuals urging the World Intellectual Property Organization to focus on the needs of developing countries...
. This proposal was well supported by developing countries. A number of civil society bodies have been working on a draft Access to Knowledge, or A2K, Treaty which they would like to see introduced.
National laws and limitations and exceptions
Two important examples of limitations and exceptions to copyright are the fair useFair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
doctrine found in the United States, and the fair dealing
Fair dealing
Fair dealing is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, which is found in many of the common law jurisdictions of the Commonwealth of Nations....
doctrine found in many other common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
countries. Other more fundamental boundaries of copyright are caused by thresholds of originality
Threshold of originality
The threshold of originality is a concept in copyright law that is used to assess whether or not a particular work can be copyrighted. It is used to distinguish works that are sufficiently original to warrant copyright protection from those that are not...
, a threshold below which objects cease to be copyrightable, the idea-expression dichotomy
Idea-expression divide
The idea–expression divide or idea–expression dichotomy limits the scope of copyright protection by differentiating an idea from the expression or manifestation of that idea.The case of Baker v. Selden was the first U.S...
, the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
and the effect of Crown copyright
Crown copyright
Crown copyright is a form of copyright claim used by the governments of a number of Commonwealth realms. It provides special copyright rules for the Crown .- Australia :...
. 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. Likewise, the US court systems have determined that stock character
Stock character
A Stock character is a fictional character based on a common literary or social stereotype. Stock characters rely heavily on cultural types or names for their personality, manner of speech, and other characteristics. In their most general form, stock characters are related to literary archetypes,...
s are also uncopyrightable.
While fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
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 USA, the United Kingdom, and several other countries, it is legal to produce alternate versions (for example, in large print or braille) of a copyrighted work to provide improved access to a work for blind and visually impaired persons without permission from the copyright holder. (See references at Copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
.)