Limitations and exceptions to copyright are provisions, in local
copyright law
A copyright is a type of intellectual property that gives its owner the exclusive 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, education ...
or the
Berne Convention
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 to agree on a set of leg ...
, 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, 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
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to b ...
, 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. 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 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. 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.
Attempts at expansion of copyright limitations and exceptions are sometimes regarded as a threat by publishers.
Competition law / antitrust law
Copyright is typically thought of as a limited, legally sanctioned
monopoly.
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 is the field of law that promotes or seeks to maintain market competition by regulating anti-competitive conduct by companies. Competition law is implemented through public and private enforcement. It is also known as antitrust ...
in the
European Union,
antitrust law
Competition law is the field of law that promotes or seeks to maintain market competition by regulating anti-competitive conduct by companies. Competition law is implemented through public and private enforcement. It is also known as antitrust ...
in the
United States, and anti-monopoly law in
Russia
Russia (, , ), or the Russian Federation, is a transcontinental country spanning Eastern Europe and Northern Asia. It is the largest country in the world, with its internationally recognised territory covering , and encompassing one-eight ...
and
Japan.
Competition issues may arise when the licensing party unfairly leverages market power, engages in
price discrimination
Price discrimination is a microeconomic pricing strategy where identical or largely similar goods or services are sold at different prices by the same provider in different markets. Price discrimination is distinguished from product different ...
through its licensing terms, or otherwise uses a licensing agreement in a discriminatory or unfair manner.
Attempts to extend the
copyright term
The copyright term is the length of time copyright subsists in a work before it passes into the public domain. In most of the world, this length of time is the life of the author plus either 50 or 70 years.
Length of copyright
Copyright subsists f ...
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
A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."A p ...
, copyright, and
trade secrets
Trade secrets are a type of intellectual property that includes formulas, practices, processes, designs, instruments, patterns, or compilations of information that have inherent economic value because they are not generally known or readily asc ...
. 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
''Mutatis mutandis'' is a Medieval Latin phrase meaning "with things changed that should be changed" or "once the necessary changes have been made". It remains unnaturalized in English and is therefore usually italicized in writing. It is used i ...
'' 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
Fair dealing is a limitation and exception to the exclusive rights granted by copyright law to the author of a creative work. Fair dealing is found in many of the common law jurisdictions of the Commonwealth of Nations.
Fair dealing is an e ...
in the
UK and
Canada, as well as the
fair use
Fair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests ...
doctrine in the US. The undermining of copyright law, and in particular limitations and exceptions to copyright by
contract law
A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...
is an issue frequently raised by libraries, and library groups such as
. 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
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
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 na ...
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
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 to agree on a set of leg ...
, 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 (), officially the Argentine Republic ( es, link=no, República Argentina), is a country in the southern half of South America. Argentina covers an area of , making it the second-largest country in South America after Brazil, th ...
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.
National laws
Two important examples of limitations and exceptions to copyright are the
fair use
Fair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests ...
doctrine found in the United States, and the
fair dealing
Fair dealing is a limitation and exception to the exclusive rights granted by copyright law to the author of a creative work. Fair dealing is found in many of the common law jurisdictions of the Commonwealth of Nations.
Fair dealing is an e ...
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. Likewise, the U.S. courts have determined that
stock character
A stock character, also known as a character archetype, is a fictional character in a work of art such as a novel, play, or a film whom audiences recognize from frequent recurrences in a particular literary tradition. There is a wide range of s ...
s are also uncopyrightable.
['' Capcom U.S.A. Inc. v. Data East Corp.''
1994 WL 1751482 (N.D. Cal. 1994)]
Analysis at Patent Arcade
accessed June 18, 2009.
While
fair use
Fair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests ...
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 define
the exclusive rights in copyrighted works is subject t
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.
See also
*
Berne Convention
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 to agree on a set of leg ...
*
Fair dealing
Fair dealing is a limitation and exception to the exclusive rights granted by copyright law to the author of a creative work. Fair dealing is found in many of the common law jurisdictions of the Commonwealth of Nations.
Fair dealing is an e ...
*
Fair use
Fair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests ...
*
Freedom of panorama
*
Right to quote
*
Copyright law of the European Union
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 ...
**The
Information Society Directive lists most limitations and exceptions available to the European Union member states
References
Further reading
*
{{DEFAULTSORT:Limitations And Exceptions To Copyright
Copyright law
Intellectual property law