Module 4: Rights, Exceptions, and Limitations - Revision history

Ecrowley: /* 50px| Assignment and discussion questions */

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50px| Assignment and discussion questions

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	'''[[image:assignment.png\|50px\|]]Assignment'''		'''[[image:assignment.png\|50px\|]]Assignment'''

	1. Are the restrictions that copyright law places on librarians in your country too strict, too loose or the right balance? Use the references in the list of Additional Resources (~~below~~) to locate the list of library exceptions applicable in your own country. Summarize the principal exceptions.		1. Are the restrictions that copyright law places on librarians in your country too strict, too loose or the right balance? Use the references in the list of Additional Resources (above) 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.		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.
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	Comment upon some of the amendment proposals of your colleagues.		Comment upon some of the amendment proposals of your colleagues.


	== Contributors ==		== Contributors ==

Ecrowley: /* Exceptions and Limitations */

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Exceptions and Limitations

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	''(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.''		''(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.''

	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."		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 serve "uses for the benefit of people with a disability" and are not for "economic or commercial advantage."

	That said, the set of exceptions contained in Article 5 of the EU Copyright Directive is surely not the only example of the enumerated-list approach. The three-step test, discussed in [http://cyber.law.harvard.edu/copyrightforlibrarians/Module_2:_The_International_Framework Module 2], gives individual countries considerably more latitude in selecting exceptions and limitations than the EU has exercised. Some countries have gone a good deal further.		That said, the set of exceptions contained in Article 5 of the EU Copyright Directive is surely not the only example of the enumerated-list approach. The three-step test, discussed in [http://cyber.law.harvard.edu/copyrightforlibrarians/Module_2:_The_International_Framework Module 2], gives individual countries considerably more latitude in selecting exceptions and limitations than the EU has exercised. Some countries have gone a good deal further.

Ecrowley: /* Rights Relating to Reproduction and Distribution of a Work */

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Rights Relating to Reproduction and Distribution of a Work

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	In most countries, the reproduction right and the adaptation right are closely aligned. In other words, the majority of activities that violate the adaptation right also violate the reproduction right. However, there are exceptions. For example, cutting up a photograph to include it in a collage may violate the adaptation right (unless of course that behavior is excused by one of the exceptions or limitations). But, because that activity did not entail making a new copy, it would not violate the right of reproduction. However, the degree of overlap between these two rights varies somewhat by country. Which of the two rights is implicated by a particular case will sometimes make a difference -- for example, if the copyright owner has granted a license for one of the rights but not the other.		In most countries, the reproduction right and the adaptation right are closely aligned. In other words, the majority of activities that violate the adaptation right also violate the reproduction right. However, there are exceptions. For example, cutting up a photograph to include it in a collage may violate the adaptation right (unless of course that behavior is excused by one of the exceptions or limitations). But, because that activity did not entail making a new copy, it would not violate the right of reproduction. However, the degree of overlap between these two rights varies somewhat by country. Which of the two rights is implicated by a particular case will sometimes make a difference -- for example, if the copyright owner has granted a license for one of the rights but not the other.

	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 [http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P85_10661 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.		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 [http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P85_10661 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''' copies of 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.		Finally, a copyright holder also has the exclusive '''right to distribute''' his or her work and the '''right to import''' copies of 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.

	====Rights Relating to Communication of a Work to the Public====		====Rights Relating to Communication of a Work to the Public====

Tfisher: /* Creating Course Packs for Students */

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Creating Course Packs for Students

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	In the United States, many universities used to assemble course packs without obtaining permission from the copyright holders of the individual articles, believing that such copying qualified for the “fair use” exception for academic purposes. However, court decisions in the 1990s held that the preparation and sale of such course packs by commercial "copy shops" did not constitute fair use. It is not certain that those decisions would apply to universities, but the lawyers advising most universities have taken a cautious approach. At their urging, most US universities have now adopted systems for obtaining licenses to all materials included in course packs.		In the United States, many universities used to assemble course packs without obtaining permission from the copyright holders of the individual articles, believing that such copying qualified for the “fair use” exception for academic purposes. However, court decisions in the 1990s held that the preparation and sale of such course packs by commercial "copy shops" did not constitute fair use. It is not certain that those decisions would apply to universities, but the lawyers advising most universities have taken a cautious approach. At their urging, most US universities have now adopted systems for obtaining licenses to all materials included in course packs.

	~~Countries~~ that, unlike the United States, ~~rely~~ upon a list of specific exceptions and limitations, rather than a general fair use doctrine, to set the limits of copyright protection may have specific ~~provisions~~ that ~~authorize~~ the creation of course packs. If not, librarians in ~~those countries~~ must obtain a written license from the copyright holders in order to create course packs. To reduce the administrative burden of seeking permission from many different copyright holders, librarians may wish to contract with collective management organizations like those described in [http://cyber.law.harvard.edu/copyrightforlibrarians/Module_5:_Managing_Rights Module 5]. These private services who enter into affiliations with academic publishers and obtain blanket clearance licenses for the publisher’s entire catalog, or enter into agreements with a collective management organization representing publishers.		It is possible that a country that, unlike the United States, relies upon a list of specific exceptions and limitations, rather than a general fair use doctrine, to set the limits of copyright protection may have a specific provision that authorizes the creation of course packs. If not, librarians in such a country must obtain a written license from the copyright holders in order to create course packs. To reduce the administrative burden of seeking permission from many different copyright holders, librarians may wish to contract with collective management organizations like those described in [http://cyber.law.harvard.edu/copyrightforlibrarians/Module_5:_Managing_Rights Module 5]. These private services who enter into affiliations with academic publishers and obtain blanket clearance licenses for the publisher’s entire catalog, or enter into agreements with a collective management organization representing publishers.

	=====Adapting Materials for the Blind, Visually Impaired and other Reading Disabled Persons=====		=====Adapting Materials for the Blind, Visually Impaired and other Reading Disabled Persons=====

Tfisher: /* Cases */

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Cases

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	Buffet v. Fersig, Judgment of May 30, 1962, Cour d'appel, Paris, 1962 Recueil Dalloz [D. Jur.] 570 (described in [http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/hastlj27&div=45&id=&page= Merryman, The Refrigerator of Bernard Buffet], 27 Hastings L.J. 1023 (1976)) (moral rights)		Buffet v. Fersig, Judgment of May 30, 1962, Cour d'appel, Paris, 1962 Recueil Dalloz [D. Jur.] 570 (described in [http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/hastlj27&div=45&id=&page= Merryman, The Refrigerator of Bernard Buffet], 27 Hastings L.J. 1023 (1976)) (moral rights)

	[http://www.law.cornell.edu/supct/html/92-1292.ZO.html Campbell v. Acuff Rose Music, Inc., 510 U.S. 569 (1994)] (~~fair use~~)~~(red~~)		[http://www.law.cornell.edu/supct/html/92-1292.ZO.html Campbell v. Acuff Rose Music, Inc., 510 U.S. 569 (1994)((.link_red))] (fair use)

	~~[http://merlin.obs.coe.int/iris/1998/3/article10.en.html Germany: Bundesverfassungsgericht, Urteil vom 17. Februar 1998, - 1 BvF 1/97~~] (~~Right to Short Reporting) (green~~)

			[http://merlin.obs.coe.int/iris/1998/3/article10.en.html Germany: Bundesverfassungsgericht, Urteil vom 17. Februar 1998, - 1 BvF 1/97((.link_green))] (Right to Short Reporting)

	== [[image:question.png\|50px\|]] Assignment and discussion questions ==		== [[image:question.png\|50px\|]] Assignment and discussion questions ==

Tfisher: /* 50px|Back to the case study */

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50px|Back to the case study

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	== [[Image:casestudy.png\|50px\|]]Back to the case study ==		== [[Image:casestudy.png\|50px\|]]Back to the case study ==

	~~Nadia should tell Angela that~~, ~~most likely, she will be able to make a digital copy of each of~~ the compositions in ~~the~~ collection ~~that Maria has donated to~~ the ~~library~~, ~~but~~ Nadia ~~will have~~ to ~~check~~ the ~~terms~~ of ~~their nation~~'s copyright ~~statute~~ to ~~be sure. However~~, she ~~should tell Angela that~~, ~~unless a particular composition has fallen into the public domain~~, the library ~~will probably not~~ be permitted to post the digital copy of it on the library's servers.		Unfortunately, unless the compositions in Angela's collection have fallen into the public domain, there is no simple answer to Angela's question. Nadia would be obliged to review the details of the particular system of exceptions and limitations contained in her country's copyright law to ascertain, first, whether she would be permitted to make a digital copy of each piece of sheet music and, second, whether the library would be permitted to post the digital copy of it on the library's servers. It is more likely that the first of these activities would be permitted than that the second activity would be permitted, but neither issue could be definitively resolved without consulting the country's laws.

	</div>		</div>


	==Additional Resources==		==Additional Resources==

Tfisher: /* Compulsory Licenses */

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Compulsory Licenses

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	== Compulsory Licenses ==		== Compulsory Licenses ==

	In addition to the exceptions and limitations surveyed above, many countries limit the rights of copyright holders with so-called "compulsory licenses." Compulsory licenses are often seen a compromises between the economic interests of copyright holders and the public’s interest in using copyrighted material. For example, [http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P170_31589 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 public lending 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]].		In addition to the exceptions and limitations surveyed above, many countries limit the rights of copyright holders with so-called "compulsory licenses." Compulsory licenses are often seen as compromises between the economic interests of copyright holders and the public’s interest in using copyrighted material. For example, [http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P170_31589 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 public lending 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]].

Tfisher: /* Adapting Materials for the Blind, Visually Impaired and other Reading Disabled Persons */

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Adapting Materials for the Blind, Visually Impaired and other Reading Disabled Persons

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	=====Adapting Materials for the Blind, Visually Impaired and other Reading Disabled Persons=====		=====Adapting Materials for the Blind, Visually Impaired and other Reading Disabled Persons=====

	In most countries, specific exemptions allow librarians to provide modified copies of works to serve the needs of visually impaired patrons. 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 [http://www.wipo.int/edocs/mdocs/copyright/en/sccr_15/sccr_15_7.html#P421_37845/ here].		In most countries, specific exemptions allow librarians to provide modified copies of works to serve the needs of visually impaired patrons. 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 [http://www.wipo.int/edocs/mdocs/copyright/en/sccr_15/sccr_15_7.html#P421_37845/ here]. This situation may change soon if a treaty currently being considered by WIPO is adopted.

	=====Inter-Library Loans=====		=====Inter-Library Loans=====

Tfisher: /* Creating Course Packs for Students */

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Creating Course Packs for Students

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	University librarians are sometimes asked to create “course packs.” Course packs are typically a collection of excerpts from journals, articles, book chapters, and so forth that a teacher assigns for students enrolled in a particular course.		University librarians are sometimes asked to create “course packs.” Course packs are typically a collection of excerpts from journals, articles, book chapters, and so forth that a teacher assigns for students enrolled in a particular course.

	In the United States, many universities used to assemble course packs without obtaining permission from the copyright holders of the individual articles, believing that such copying qualified for the “fair use” exception for academic purposes. However, court decisions in the 1990s held that such ~~copying~~ did not constitute fair use, ~~and that~~ the universities ~~must obtain~~ a ~~license from the copyright holders~~ to ~~be able to reproduce their articles~~ in a course ~~pack~~.		In the United States, many universities used to assemble course packs without obtaining permission from the copyright holders of the individual articles, believing that such copying qualified for the “fair use” exception for academic purposes. However, court decisions in the 1990s held that the preparation and sale of such course packs by commercial "copy shops" did not constitute fair use. It is not certain that those decisions would apply to universities, but the lawyers advising most universities have taken a cautious approach. At their urging, most US universities have now adopted systems for obtaining licenses to all materials included in course packs.

	Countries that, unlike the United States, rely upon a list of specific exceptions and limitations, rather than a general fair use doctrine, to set the limits of copyright protection may have specific provisions that authorize the creation of course packs. If not, librarians in those countries must obtain a written license from the copyright holders in order to create course packs. To reduce the administrative burden of seeking permission from many different copyright holders, librarians may wish to contract with collective management organizations like those described in [http://cyber.law.harvard.edu/copyrightforlibrarians/Module_5:_Managing_Rights Module 5]. These private services who enter into affiliations with academic publishers and obtain blanket clearance licenses for the publisher’s entire catalog, or enter into agreements with a collective management organization representing publishers.		Countries that, unlike the United States, rely upon a list of specific exceptions and limitations, rather than a general fair use doctrine, to set the limits of copyright protection may have specific provisions that authorize the creation of course packs. If not, librarians in those countries must obtain a written license from the copyright holders in order to create course packs. To reduce the administrative burden of seeking permission from many different copyright holders, librarians may wish to contract with collective management organizations like those described in [http://cyber.law.harvard.edu/copyrightforlibrarians/Module_5:_Managing_Rights Module 5]. These private services who enter into affiliations with academic publishers and obtain blanket clearance licenses for the publisher’s entire catalog, or enter into agreements with a collective management organization representing publishers.

Tfisher: /* Exceptions and Limitations */

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Exceptions and Limitations

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	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."		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 United States, which is embodied in section 107 of the U.S. Copyright Act:		That said, the set of exceptions contained in Article 5 of the EU Copyright Directive is surely not the only example of the enumerated-list approach. The three-step test, discussed in [http://cyber.law.harvard.edu/copyrightforlibrarians/Module_2:_The_International_Framework Module 2], gives individual countries considerably more latitude in selecting exceptions and limitations than the EU has exercised. Some countries have gone a good deal further.

			The second general approach is to state some general guidelines for permissible uses and then delegate to the courts responsibility for applying those factors to individual cases. The premier example of this approach is the fair use doctrine in the United States, which is embodied in section 107 of the U.S. 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.''		''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.''
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	Courts in the United States have relied on this provision to recognize exceptions for a wide range of activities, including the making of a parody of a copyrighted work, reproducing a portion of a copyrighted work for the purpose of scholarship, and using a videocassette recorder to record a television program or movie for viewing at a later time.		Courts in the United States have relied on this provision to recognize exceptions for a wide range of activities, including the making of a parody of a copyrighted work, reproducing a portion of a copyrighted work for the purpose of scholarship, and using a videocassette recorder to record a television program or movie for viewing at a later time.

	~~Countries with civil law traditions rely almost exclusively on the first approach~~. ~~Countries with common law heritages often employ both approaches~~. ~~Developing countries that formerly were colonies~~ of ~~other countries often employ the strategy associated with the~~ legal ~~tradition they inherited~~.		In between these two general approaches is a strategy sometimes known as "fair dealing." A good example is the system used in Australia. The Australian Copyright Act (as amended in 2006) identifies some broad circumstances in which an unauthorized use of a copyrighted work might be considered fair: research, criticism or review, news reporting, legal advice, and parody or satire. Merely falling into one of these boxes does not mean, however, that a particular activity will be deemed fair. Rather, the courts consider individual cases by consulting a set of factors that loosely parallel the factors used in the US system. In general, the courts will excuse conduct within these boxes if they deem it appropriate "judged by the criterion of a fair minded and honest person." The Australian approach is generally thought to be less unpredictable -- but also less flexible -- than the US approach.

	~~When adopting or interpreting exceptions~~ of ~~either type~~, ~~countries~~ that ~~are members~~ of ~~international copyright agreements (and today,~~ that ~~includes almost all countries) must comply with one or another version of~~ the ~~three-step test~~, the ~~meaning~~ of ~~which was discussed in detail in [[Module 2:~~ The ~~International Framework]]~~.

	A separate 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 rights. 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.		A separate 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 rights. They may restrict or require compulsory licenses for certain uses of copyrighted works. For example, as indicated above, 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. (This so-called "droit de suite" only exists in a few jurisdictions, and even there only applies to unique works of fine art.)

	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.”		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 (even if she deletes her original copy) because the original recording has been “reproduced.” There remains a serious policy question as to whether the first sale doctrine to govern such cases, but as yet that has not occurred.

	== Library Exceptions ==		== Library Exceptions ==