Module 4: Rights, Exceptions, and Limitations

By Emily Cox, Melanie Dulong de Rosnay and William Fisher

Learning objective

This module explains the rights that are held by a copyright owner, and the exceptions to and limitations on those rights that allow others to use the copyrighted work without permission.

Case study

Making the course pack entails the reproduction of works. When should permission be sought?

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, - 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

At the heart of copyright law is (not surprisingly) the right to make copies of a copyrighted work – known, technically, as the right of reproduction. The copyright holder is the only person who can make or authorize such copies. The making of unauthorized copies, without an exception like those discussed later in this module, constitutes infringement. The right of reproduction is widely acknowledged by international agreements as well as by statutes within countries. For example, Article 2 of the European Union Copyright Directive (signed by Finland, France, Portugal, and all other members of the European Union with the exceptions of the Czech Republic and Spain), requires that member states provide an exclusive right of reproduction to authors, performers, producers, and broadcasters of works.

The Berne Convention's Article 9 likewise requires member countries to recognize the right of reproduction, but allows members to provide certain exceptions to this right, so long as the exceptions do not “unreasonably prejudice the legitimate interests” of the copyright holder. This section of the Berne Convention is reaffirmed by the TRIPS Agreement, and is made to apply to digital copying by the WIPO Copyright Treaty of 1996, discussed in Module 2: The international framework It is important to note that the right of reproduction encompasses not only photocopying and other physical reproductions, but also includes the transfer of a physical copy into digital form, under the WIPO Copyright Treaty.

The closely related right of adaptation gives a copyright owner the exclusive right to adapt the work from one form of expression to another (for example, to adapt a copyrighted story from a book to a play or movie). This too is found in virtually all copyright systems. For example, Article 12 of the Berne Convention requires member countries to grant authors the exclusive right to authorize “adaptations, arrangements, and other alterations of” copyrighted works. The right of adaptation also encompasses the right to translate the work into other languages, which is mandated by Article 8 of the Berne Convention. The right of adaptation is sometimes 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.

In thinking about the right of adaptation and the restrictions this places on subsequent works, recall from Module 3: The Scope of Copyright Law that copyright only protects the expression of ideas, rather than ideas or facts themselves. For this reason, a work that is inspired by the ideas of another work but does not use any of the protected expression from the initial work is not an adaptation of the initial work for purposes of copyright protection. Also, note that under Article 2(3) of the Berne Convention, which is incorporated by the TRIPS Agreement, authorized adaptations are protected by their own copyright, aside from the copyright protection given to the original work.

A copyright owner also has the exclusive right to distribute his or her work, and the right to import or export the work (subject to statutory limitations we will consider in a moment). The right to distribute encompasses the right to sell or authorize the sale of copies of the work. In many countries, a copyright owner also has the exclusive right to authorize commercial rental and public lending of his or her work. (In some countries, that right is subject to a compulsory license – of the sort considered at the end of this module.

Rights Relating to Communication of a Work to the Public

A third economic right held by copyright owners is the right of public performance and public display. The right of public display is relevant, for example, to artwork such as paintings and sculptures. The right of public performance is relevant, for example, to plays, movies, and music. Article 11 of the Berne Convention], requires member countries to give the owners 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 and a playing of a recording); it also extends the right of public performance to translations of a copyrighted work. Article 11bis of the Convention also requires that copyright owners be given the exclusive 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 right of public display and the right of public performance only include activities that are public. Thus, the owners of 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 copyrighted movie may play the movie in her home to a group of social guests without infringing the right of public performance, so long as the gathering is not open to the public. Similarly, the owner of a copyrighted painting or sculpture may display the work in her home without infringing on the right of public display.

The copyright holder’s exclusive right to publicly perform her work extends to many communications that might not initially seem like “performances.” For example, as indicated above, it grants a copyright holder the exclusive 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.

Internet distribution of copyrighted works can implicate several of these rights. Transmitting a copy of a work over the Internet can give rise to a reproduction, because a “copy” of the work is created in random access memory of the recipient’s computer, and it can also qualify as public performance or communication because the work is made available to a wide audience in a non-personal setting.

Moral Rights

In addition to economic rights, many jurisdictions provide moral rights to authors. Moral rights, unlike economic rights, usually cannot be transferred by the copyright owner to other persons, though they may be waived in some countries. This reflects the rationale behind the moral rights system: that the works produced by an author are an extension of his or her self, an inprint of her personality. Accordingly, moral rights protect the 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 a civil law tradition.

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 right of the author to claim authorship of the work (commonly known as the right of attribution), and the right to object to the destruction or modification of a work that would be prejudicial to the author’s honor or reputation (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. The generous protection given moral rights by the Berne Convention is somewhat misleading however, because Article 6bis is the only provision in the Convention that is not incorporated by the TRIPS Agreement. Thus the “teeth” provided by the WTO dispute resolution system [link] are not available to compel member countries to recognize moral rights.

The right to attribution 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 work under a pseudonym.

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 – a right that will take 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, because nations vary considerably on the rights they recognize, the duration of those rights, whether they may be waived, etc.. For example, in Spain, seven moral rights are recognized: the right of disclosure, the right to publish under a 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 owner of the copy).

Neighboring Rights

“Neighboring rights” is the term used to describe the rights of those who assist the author of a copyrighted work, but who do not have 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 owner, when considering what uses of a given work are permissible.

In addition to the neighboring rights that result from a recording or performance of a copyrighted work, 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 of material that is not copyrightable, such as factual information. 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 owner 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, but such 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.

Exceptions and Limitations

The international copyright agreements permit countries to make certain exceptions to the rights we have described thus far, and every country has indeed made such exceptions. The purposes of these exceptions are various. Some are justified by the need to respect freedom of expression or privacy, others are necessary to prevent copyright law from frustrating rather than fostering creativity, still others recognize the impossibility of monitoring and charging for some uses. The list is very long. In general, the exceptions should be regarded as 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.

The exceptions take one of two forms. Exceptions of the first type identify specific permissible activities. See, for example, Article 5, Section 3 of the EU Copyright Directive, which provides fifteen specific exceptions that member countries can enact. Among these exceptions are: the use of a work for scientific or teaching purposes, as long as credit is given to the author; the use of a work during religious celebrations or other celebrations authorized by a public authority; the use of a work for the purpose of parody; and the use of an artistic work that is a building plan for the purpose of reconstructing a building.

The second method is to provide some general guidelines for what types of uses are permissible and to allow the courts to decide on a case-by-case basis whether a given use falls within these guidelines. The premier 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.”

Countries with civil law traditions rely almost exclusively on the first approach. Countries, such as the United States and the United Kingdom, with a common law heritage, employ both approaches.

Exceptions of all sorts must comply with Article 9(2) of the Berne Convention, which sets forth what it widely known as the “three-step test.” Article 9(2) provides that member nations may provide statutory exceptions as long as the exceptions (1) are for “special cases,” (2) do not “conflict with a normal exploitation” of the copyrighted work, and (3) do not “unreasonably prejudice” the copyright holder’s “legitimate” interests. Other provisions of the Berne Convention give member countries discretion to create more specific exceptions. For example, Article 2bis authorizes member countries to make exceptions excluding certain political speeches or parts of government information from copyright protection. Therefore, it may be possible to freely disseminate such information through methods that would normally infringe on the right of public communication.

Another important and nearly universal exception to the rights of a copyright owner is the so-called first sale doctrine, which provides that, once a consumer has lawfully purchased a copy of a work, the copyright owner 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 this right, by restricting certain uses of copyrighted goods, or requiring compulsory licenses for certain uses. 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.

The operation of the first sale doctrine is less intuitive with digital works, because what may seem like normal use from a consumer’s perspective may actually involve the making of additional digital copies, which 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 (even if she deletes her own copy), 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’ Study on Copyright Limitations and Exceptions for Libraries and Archives, available here, on which the following comments are based. Crews’ 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.

For countries that have signed the Berne Convention, a statutory library exception must comply with Article 9(2), which allows member countries to make legislation for “special cases.” This article is incorporated into the TRIPS Agreement, and is echoed by Article 10(1) of the WIPO Copyright Treaty (WCT). Article 9(2) contains the previously discussed “three-step test,” which has been incorporated into many countries’ statutory exceptions for libraries. For example, the library exception statutes for Australia, Bolivia, and South Africa all incorporate the language of the three-step test. In some cases, where a country does not have a statutory library exception, many of the same exceptions are in place because the country has a statute that provides for exceptions (for any citizen, including librarians and patrons) that comply with the three-step test. 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.

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. 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.

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 latitude that they permit 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, 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 forbidden, 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.

In some countries, the preservation copying exception also applies 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, usually a smaller library with fewer resources. Sometimes the statutory exception for inter-library loan will require the library to pay a licensing fee in order to make the reproductions. 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. In other countries, the exception may only be invoked if the copyright owner is paid a fee – the amount of which is typically determined by the government or a collecting society.

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 exceptionsbut 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

Although these exceptions are widespread, they vary widely by jurisdiction, and 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. Because many jurisdictions allow the library exceptions to be waived in agreements between a library and a copyright holder, you need also to determine whether your freedom has been limited by agreements pertaining to specific works.

Compulsory Licenses

Another way that a country can limit the rights of copyright owners is through statutory provisions establishing compulsory licenses. A compulsory license typically requires the owners of copyrights in a particular type of work to allow others to use their 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 paper reprography for which institutions pay royalties, the right of public lending with remuneration paid by libraries, and the right of private copy with a levy on blank CDs. This will be better 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 reproductions envisioned covered by exceptions and limitations to exclusive rights for libraries or education? - I want to reuse entire works, but I want also to translate excerpts of works, and comment on them, will such a usage be considered as non substantial?

When these questions have a positive answer, Angela and Nadia are able to reproduce preexisting works without seeking permission.

Assignment and discussion questions

Round 1 questions

1. Use the references in the bibliography listes 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.

Round 1 questions

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.

Adopting a conservative interpretation of the three-step test (imagine you are representing the publishing industry), comment upon and criticize some of the amendment proposals of your colleagues.

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