Module 4: Rights, Exceptions, and Limitations

Learning objective

This module will teach you about the rights of a copyright holder and about the exceptions to and limitations on those rights, which allow other people to use the work freely.

Case study

Angela still wants to make her course pack. Producing the pack requires her to reproduce some works by other people. When should she seek permission and when may she use works freely?

The right of reproduction will be involved at various stages of the work of Angela, the professor, and Nadia, the librarian:

• some resources are available in other libraries only,
• the professor wants to copy large portions of some works, and
• the course pack should be made available to students, hopefully under a digital format.

Economic Rights

Rights Relating to Reproduction and Distribution of a Work

The heart of copyright law is the right to make copies of a protected work. This is called the "right of reproduction." The copyright holder has the exclusive right to make or authorize such copies. Creating a copy without the authorization of the holder infringes upon the copyright, unless permitted by an exception or limitation on the reproduction right. As we saw in Module 2: The International Framework, the right of reproduction is widely acknowledged by international agreements. As we will soon discuss, however, those same agreements also empower member countries to create exceptions and limitations to this (and other) rights. The copyright statutes of virtually all countries also recognize the right of reproduction.

What does "reproduction" mean? Most obviously, it includes making a copy in the literal sense -- for example, by photocopying a book or article. It also includes converting a copyrighted work into a new format -- such as using a tape recorder to copy a vinyl album. Less obviously, it includes making a new work that is "substantially similar" to an existing work, while having that existing work in mind. So, for example, an art student who stands in front of a painting and paints a faithful replica of it would violate the original painter's right of reproduction (unless the student could invoke one of the exceptions or limitations mentioned above). As one might imagine, the question of how close one work must be to another to be "substantially similar" is highly controversial and is often litigated.

Closely related to the right of reproduction is the right of adaptation, which provides copyright holders with the right to adapt a copyrighted work from one form of expression to another, or to authorize another to do so. Examples of adaptations include transforming a book into a movie or a song into a musical. The right of adaptation is also found in virtually all copyright systems. For example, Article 12 of the Berne Convention requires member countries to grant authors the right to authorize “adaptations, arrangements, and other alterations of” copyrighted works. The right of adaptation also encompasses the right to translate a work into other languages. Article 8 of the Berne Convention requires member countries to recognize this right of translation. In some legal systems, the right of adaptation is expressed as the right to make “derivative works,” which use the original work as a starting point but are not direct copies of the original work.

How far do these rights reach? Recall from Module 3: The Scope of Copyright Law that copyright only protects the expression of ideas, not the ideas or facts themselves. Thus, a work that is inspired by the ideas contained in another work but does not use any of the protected expression from the initial work is neither a reproduction nor an adaptation, and will not violate the copyright holder's rights. Also, note that Article 2(3) of the Berne Convention provides that authorized adaptations are protected by their own, separate copyright, in addition to the copyright protection given to the original work.

Finally, a copyright holder also has the exclusive right to distribute his or her work, and the right to import the work subject to certain exceptions. The right to distribute encompasses the right to sell or authorize the initial sale of a copy of the work. An in-depth discussion of the ways different countries administer and create exceptions to the rights of distribution and importation is available here.

Rights Relating to Communication of a Work to the Public

Another economic right of copyright holders is the right of public performance and public display. The right of public performance relates to showings of plays, movies, and music. The right of public display relates to the display of artwork such as paintings and sculptures. Article 11 of the Berne Convention requires member countries to grant the holders of copyrights in “dramatic and musical works” the right to control public performances of those works “by any means or process” (including, for example, a live performance or playing a recording of a performance). Article 11 also extends the right of public performance to translations of a copyrighted work. It also requires that copyright holders be given the right to authorize the broadcasting or public communication of the copyrighted work by wire, loudspeaker, “or any analogous instrument transmitting, by signs, sounds, or images.”

As their labels indicate, the rights of public display and public performance only control activities that are public. Thus, persons who own authorized copies of copyrighted works may display or broadcast the works in non-public settings without risk of infringement. For example, a person who owns a copy of a movie may play the movie in her home to a group of social guests without infringing the right of public performance. Similarly, a person who owns a painting or sculpture may display the work in her home without infringing on the right of public display.

The copyright holder’s right to control the public performance of her work extends to many communications that might not initially seem like “performances.” For example, as indicated above, it grants a copyright holder the right to authorize broadcasts of her work. This includes television broadcasting, cable distribution, satellite distribution, and re-broadcasts of a work. It can also encompass on-demand digital transmissions and pay-per-view broadcasts.

Moral Rights

Many countries provide authors moral rights in addition to economic rights. Unlike economic rights, moral rights usually cannot be transferred to other persons, although some countries allow them to be waived. This reflects the rationale behind the moral rights system that the works produced by an author are an extension of his or her self and bear the an imprint of his or her personality. Accordingly, moral rights protect certain copyrighted works from destruction or mutilation, partially to protect the author’s expression of her personality, and partially to protect the author’s reputation from harm. Moral rights are recognized especially broadly in countries with civil law traditions.

Recognition of a subset of moral rights is mandated by Article 6bis of the Berne Convention. Article 6bis requires that the author of a work be given at least two types of moral rights. The first is commonly know as the "right of attribution." It encompasses not only the right of an author to have her name associated with her works, but also the right to not have her name associated with works that are not hers. The right of attribution also gives an author the right to publish a work under a pseudonym. The second moral right required by is Article 6bis is the author's right to object to the destruction or modification of her work in a way that would harm her honor or reputation. This is commonly known as the "right of integrity."

Although Article 6bis recommends that these moral rights extend after the author’s death, at least until the economic rights expire, it also allows member countries to limit moral rights to the life of the author. However, the protections of Article 6bis are not as strong as the may seem, because it is the only provision in the Berne Convention that is not incorporated by the TRIPS Agreement. Thus the “teeth” provided by the WTO dispute resolution system are not available to compel member countries to recognize moral rights.

In addition to the right of attribution and the right of integrity, many countries also recognize a right of disclosure and a right of withdrawal. The former gives an author the exclusive right to determine when she will release a work to the public. This right takes precedence even over a contractual commitment by the author to transfer the work to a client or patron. The latter permits an author to withdraw works from publication or circulation if she determines that she no longer wants to be represented by or associated with those particular works.

It is important to check your country’s statutory provisions relating to moral rights. Nations vary considerably on the rights they recognize, the duration of those rights, whether they may be waived, and so forth. For example, in Spain, seven moral rights are recognized: the right of disclosure, the right to publish under the author's real name or a pseudonym, the right to be acknowledged as the author of the work, the right to the integrity of the work (which includes the right to prevent distortion or modification of the work), the right to modify the work (limited by other statutory provisions), the right to withdraw the work, and the right of access to a single or rare copy of the work, even if that copy is owned by a third party (though the author’s exercise of this right is limited by certain considerations for the holder of the copy). Under US copyright law, moral rights can be waived by contract, but France does not allow such a waiver.

Neighboring Rights

“Neighboring rights” (also called related rights) consist of the rights of those who assist the author of a copyrighted work, but who do not qualify for a copyright in the work. They include the rights of broadcasters and broadcasting organizations in their transmissions of programs (as opposed to the copyrights in the programs themselves), the right of an artist in her performance of a piece (as distinguished from the copyright in the underlying work itself), and the right of the producer of a record (as opposed to the copyright in the musical compositions that the record embodies). It is important to keep these neighboring rights in mind, in addition to the rights of the copyright holder, when considering what uses of a given work are permissible.

In addition to the neighboring rights attached to performances, some countries also recognize neighboring rights in databases or compilations. These rights are known as sui generis rights. They supplement the copyright and neighboring rights applicable to the works that are gathered in the databases. They also apply to databases where the information itself cannot be copyrighted, such as a database of facts. In the European Union, sui generis rights grant to database producers the right to control substantial extraction and reuse of their databases. In Australia, the holder of a copyright in a protected database or compilation has the right to reproduce, publish and communicate that compilation to the public. Individuals other than the copyright holder are not permitted to reproduce all or a “substantial part” of the database or compilation without permission. The protection for the database under Australian law covers databases where “intellectual effort” was expended in the selection or ordering of the data. However, creativity is not necessarily required: the compilation can be protected even if it is uncreative, provided that the author expended a significant amount of resources to create it. The protection also extends to forms and tables. Examples of works that are protected under these provisions include betting tickets, telephone directories, and form contracts.

Such database protection rules are controversial. Critics contend that they are unnecessary to provide incentives for the creation of databases and merely impede the flow of factual information. However, efforts to test the criticism empirically by comparing the rates of database innovation in countries with and without database protection rules have thus far been inconclusive.

Exceptions and Limitations

As was shown in Module 2: The International Framework, all of the international copyright agreements permit countries to make certain exceptions to the rights we have described thus far. Every country has indeed made such exceptions. The purposes of these exceptions vary. Some are justified by the need to respect freedom of expression or privacy. Others are intended to prevent copyright law from frustrating rather than fostering creativity. Still others recognize the impossibility of monitoring and charging for some uses. The list of exceptions is very long. In general, the exceptions should be considered just as important as the rights they qualify. Together, they are intended to strike a balance between the interests of authors and the interests of users and the public at large. For this reason, it is sometimes said that the exceptions create "user rights."

The exceptions take one of two forms. Exceptions of the first type identify specific permissible activities. A good illustration of this approach is Article 5 of the EU Copyright Directive. Section 2 of that article authorizes EU member countries to provide for the following exceptions to the right of reproduction:

(a) in respect of reproductions on paper or any similar medium, effected by the use of any kind of photographic technique or by some other process having similar effects, with the exception of sheet music, provided that the rightholders receive fair compensation;

(b) in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject-matter concerned;

(c) in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage;

(d) in respect of ephemeral recordings of works made by broadcasting organisations by means of their own facilities and for their own broadcasts; the preservation of these recordings in official archives may, on the grounds of their exceptional documentary character, be permitted;

(e) in respect of reproductions of broadcasts made by social institutions pursuing non-commercial purposes, such as hospitals or prisons, on condition that the rightholders receive fair compensation.

Section 3 then authorizes member states to create any of the following exceptions both to the right of reproduction and to the right to communicate or make works available to the public:

(a) use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author's name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved;

(b) uses, for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability;

(c) reproduction by the press, communication to the public or making available of published articles on current economic, political or religious topics or of broadcast works or other subject-matter of the same character, in cases where such use is not expressly reserved, and as long as the source, including the author's name, is indicated, or use of works or other subject-matter in connection with the reporting of current events, to the extent justified by the informatory purpose and as long as the source, including the author's name, is indicated, unless this turns out to be impossible;

(d) quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author's name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose;

(e) use for the purposes of public security or to ensure the proper performance or reporting of administrative, parliamentary or judicial proceedings;

(f) use of political speeches as well as extracts of public lectures or similar works or subject-matter to the extent justified by the informatory purpose and provided that the source, including the author's name, is indicated, except where this turns out to be impossible;

(g) use during religious celebrations or official celebrations organised by a public authority;

(h) use of works, such as works of architecture or sculpture, made to be located permanently in public places;

(i) incidental inclusion of a work or other subject-matter in other material;

(j) use for the purpose of advertising the public exhibition or sale of artistic works, to the extent necessary to promote the event, excluding any other commercial use;

(k) use for the purpose of caricature, parody or pastiche;

(l) use in connection with the demonstration or repair of equipment;

(m) use of an artistic work in the form of a building or a drawing or plan of a building for the purposes of reconstructing the building;

(n) use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of establishments referred to in paragraph 2(c) of works and other subject-matter not subject to purchase or licensing terms which are contained in their collections;

(o) use in certain other cases of minor importance where exceptions or limitations already exist under national law, provided that they only concern analogue uses and do not affect the free circulation of goods and services within the Community, without prejudice to the other exceptions and limitations contained in this Article.

Section 5 qualifies both lists by indicating that all of these exceptions may "only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder." (This, of course, is a version of the famous three-step test, the meaning of which was discussed in detail in Module 2: The International Framework.)

Many of these exceptions plainly benefit the libraries (and their users) in the EU countries that have recognized them. Especially noteworthy are the exceptions for "specific acts of reproduction made by publicly accessible libraries" so long as they are not for "economic or commercial advantage" and "uses for the benefit of people with a disability."

The second sort of exception allows states to provide guidelines for permissible uses and have the courts decide each case. One example of this second method is the “fair use” or “fair dealing” exception, which permits courts to exempt from liability activities they deem “fair,” after taking into account various broad “factors.” The premier example of this approach is the fair use doctrine in the USA, which is embodied in section 107 of the US Copyright Act:

Notwithstanding the [statutory provisions granting copyright holders exclusive rights], the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Countries with civil law traditions rely almost exclusively on the first approach. Countries with a common law heritage, such as the United States and the United Kingdom, employ both approaches. Those developing countries that are former colonies of these countries often inherited the legal systems of their colonizers.

Exceptions of all sorts must comply with Article 9(2) of the Berne Convention, and Article 13 of the TRIPS Agreement, which contain different versions of the “three-step test” -- which is discussed in Module 2. Other provisions of the Berne Convention give member countries discretion to create more specific exceptions. For example, Article 2bis authorizes member countries to exclude certain political speech or parts of government information from copyright protection. Therefore, it may be possible to freely disseminate such works by methods that would normally infringe on the right of public communication.

Another important and nearly universal exception to the rights of a copyright holder is the first sale doctrine. The first sale doctrine says that once a consumer has lawfully purchased a copy of a copyrighted work, the copyright holder no longer has the ability to control that particular copy. For this reason, resale, lending, or rental of a lawfully purchased copyrighted work is generally permissible. However, countries can impose certain limitations on these right. They may restrict or require compulsory licenses for certain uses of copyrighted works. For example, a nation may prohibit the rental of goods that are easily and frequently copied, such as software or phonorecords. Additionally, a nation may require that the author of the work be paid a certain fee upon resale of a copy of a copyrighted work.

The operation of the first sale doctrine is less intuitive with digital works. This is because what may seem like normal use from a consumer’s perspective may actually involve the making of additional digital copies. This in turn could be prohibited by the author’s exclusive right of reproduction. For example, if a consumer purchases a CD, she can listen to it on any CD player without worrying about infringing the author’s copyright. She can also, because of the first sale doctrine, lend that CD to a friend who can listen to it on a CD player and then give it back, without worrying about infringing the author’s rights. However, if that same consumer purchases a sound recording online, listens to it, and then emails a copy to a friend, she will have violated the copyright law because the original recording has been “reproduced.”

Library Exceptions

There are also certain exceptions to copyright that apply specifically to libraries. These vary by country, but tend to follow regional trends, especially in areas with formal structures of cooperation between nations, such as that in place for the European Union. For a detailed account of library exceptions in general, as well as their application in many different countries, see Kenneth Crews’s Study on Copyright Limitations and Exceptions for Libraries and Archives, on which the following comments are based. Crews’s study contains a helpful chart explaining the various types of library exceptions, and the number of countries that employ each type, as well as an appendix summarizing the library exception statutes of 128 countries.

Activities commonly covered by library exceptions include: making copies for preservation purposes; permitting patrons to make copies for research, educational, or private purposes; and lending copyrighted materials to patrons or to other libraries. The flexibility permitted by library exceptions is sometimes different with respect to paper copies and digital copies.

Librarians may generally provide modified copies of works to serve the needs of visually impaired patrons, in accordance with the three-step test of Article 9(2) of the Berne Convention, discussed above. The modification of a work for a visually impaired person is likely to be considered a “special case,” so it should meet the first step of the test. Assuming that the modification is necessary because a visually impaired person is not able to use a regular copy of the work, and would therefore not purchase the work in its standard form, modification of the work for visually impaired patrons would not impact the market for the work and would thus cause no economic loss to the author. For that reason, the modification would neither conflict with the normal exploitation of the work nor unreasonably prejudice the author’s legitimate interests, and would satisfy the second and third steps. A more detailed discussion of the copyright exception for visually impaired persons can be found in Judith Sullivan’s report of the Fifteenth Session of the WIPO Standing Committee on Copyright and Related Rights, which is available here.

Many countries also permit a librarian to make copies for research and scholarship. In some countries, this exception allows the librarian to distribute the copies she has made to patrons conducting research; in other countries, it does not. However, the copying of an entire work is usually not allowed, even if the copy is made for purposes of research.

Reproduction of a work for preservation or archival purposes is also commonly permitted, but usually only when the original version of the work is in poor condition. In some countries, preservation copying is only permitted if a replacement copy cannot be obtained at a reasonable price. Additionally, some countries, such as Mexico, require that the preservation copy be unaltered by the librarian, so as not to infringe upon the moral rights of the author. The preservation copying exception applies in some countries to works whose format has become technologically obsolete. For example, converting slides of photographs into a digital format may be permissible under this exception, because the motive is to update the works from their obsolete format to a new, technologically relevant format.

The copyright statutes of some countries also contain exceptions for inter-library loans. This enables a library to make a copy of a work for the purpose of giving it to a patron of another library. Sometimes the statutory exception for inter-library loan will require the library to pay a licensing fee in order to make the reproduction, the amount of which is typically determined by the government or a collecting society. In certain countries, such as Australia, New Zealand, and Singapore, a librarian must determine that the article or work is not commercially available before the inter-library loan exception can be invoked.

Similar to inter-library loan statutes are so-called “supply” statutes, which allow a library to make a copy of a work for another library, but do not require that the purpose of the copy be for the private use of a patron. Supply statutes vary among jurisdictions. Some countries (for example, Fiji) require that the librarian first attempt to purchase the work at market value, others (for example, Antigua) allow such copying only when it is not practicable to purchase a copy, and others (for example, Ireland) only allow such copying if it would not be reasonable to ask the copyright holder’s permission.

Many libraries contain equipment, such as scanners and photocopiers, that allow patrons to make copies that are covered by these exceptions but this same equipment could also be used to make copies that are not covered by any exception, and constitute infringement. Without an exception providing that the library is not liable for a patron’s infringement, the risk for liability could be high. Many countries address this hazard by providing that libraries are not liable when patrons use library equipment for infringing purposes, as we will discuss in Module 7: Enforcement.

In attempting to discover whether a particular activity will fall under a statutory library exception to copyright, it is important not only to determine whether your country has enacted such a statute, but also whether the statute applies to your library. Additionally, you should determine whether the exception allows copies to be taken out of the library, or only to be used on-site. For example, some countries have a legal deposit requirement, which is a statutory provision requiring publishers to deposit original copies of all materials in a designated library. Provisions regulating public communication of these original copies may be limited to on-site consultation by researchers, and might not allow for further distribution.

In some cases, a country may not have a specific statutory library exception. Yet libraries may still be entitled to excercise many of the same rights discussed above, if those countries have a broader statute that would permit any citizen, which would include librarians and library patrons, to undertake these activities. This is true, for example, in Iraq and Namibia. Some countries limit their exceptions to a list of designated libraries; in other countries, the exceptions are available to all libraries that meet certain requirements, such as being open to the public and acting for non-commercial purposes.

Not all countries provide exceptions for library activities; 21 countries still have no library exceptions whatsoever. For this reason, it is very important that you check your country’s laws before undertaking any of the activities described above. Many jurisdictions also allow a contract between the library and copyright holder to limit the country's library exceptions. Accordingly, you will also need to determine whether these exceptions have been limited by agreements pertaining to specific works.

Compulsory Licenses

A country may also grant more expressive freedoms by establishing compulsory licenses for certain uses of a copyrighted work, as described previously. A compulsory license typically requires a holder of copyright in a particular type of work to allow others to use his works in particular ways, provided that they pay a designated fee. Compulsory licenses are often seen as a compromise between the economic interests of copyright holders and the public’s interest in using copyrighted material. For example, Article 13 of the Berne Convention gives countries the authority to impose compulsory licenses for the use of musical compositions. Examples of compulsory licenses existing in some countries include the right of photocopying for academic institutions, the right of public lending paid for by libraries, and the right of private coping of audio recordings in exchange for a tax on blank CDs. This will be further discussed in Module 5: Managing Rights.

Back to the case study

Nadia (the librarian) should help Angela (the professor) understand rights and exceptions questions in the set of materials she has gathered by asking a series of questions such as:

• Are the planned reproductions covered by exceptions or limitations on exclusive rights for libraries or educational purposes?
• If Angela wants to reuse entire works, but she also wants to translate excerpts of the works and comment on them, will such a usage be considered as non-substantial?

If the answers to both of the above questions are yes, Angela and Nadia may reproduce the copyrighted works without seeking permission from the copyright holder.

Assignment and discussion questions

Assignment

1. Use the references in the bibliography bellow to locate the list of library exceptions applicable in your own country. Summarize the principal exceptions.

2. Imagine and describe a project that you would like to develop at your library but that would not be permitted by the copyright laws in your country. Draft an amendment to your national copyright statute that would cover this use.

Discussion Question(s)

Read the European Union Copyright Directive implementation best practices guide, pages 13-20. http://cyber.law.harvard.edu/home/uploads/1112/EUCD_Best_Practice_Guide_December_2006.pdf

Compare (1) the national laws and (2) the amendment proposals of your colleagues to determine which country has the most favorable pattern of library exceptions.

Comment upon and criticize some of the amendment proposals of your colleagues from the perspective of (a) a copyright holder and (b) a librarian.

Bibliography

Copyright Exceptions in the UK, http://www.ipit-update.com/copy36.htm

Crews, Kenneth, Study on Copyright Limitations and Exceptions for Libraries and Archives, http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=109192

International Federation of Library Associations and Institutions, Limitations and Exceptions to Copyright and Neighbouring Rights in the Digital Environment: An International Library Perspective, http://www.ifla.org/III/clm/p1/ilp.htm

WIPO Study on Copyright Limitations and Exceptions for the Visually Impaired, http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=75696

WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment, http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=16805

Contributors

This module was created by Emily Cox. It was then edited by a team including Sebastian Diaz, William Fisher, Urs Gasser, Adam Holland, Kimberley Isball, Colin Maclay, Andrew Moshirnia, and Chris Peterson.