Limitations and exceptions to copyright are provisions, in localcopyright law or theBerne Convention, which allow for copyrighted works to be used without a license from the copyright owner.
Limitations and exceptions to copyright relate to a number of important considerations such asmarket failure,freedom of speech,[1] education and equality of access (such as by the visually impaired). Some view limitations and exceptions as "user rights"—seeing user rights as providing an essential balance to the rights of the copyright owners. There is no consensus among copyright experts as to whether user rights are rights or simply limitations on copyright. The concept of user rights has been recognised by courts, including theCanadian Supreme Court,[2] which classed "fair dealing" as such a user right. These kinds of disagreements in philosophy are quite common in thephilosophy of copyright, where debates about jurisprudential reasoning tend to act as proxies for more substantial disagreements about good policy.
The scope of copyright limitations and exceptions became a subject of societal and political debate within various nations in the late 1990s and early 2000s, largely due to the impact of digital technology, the changes in national copyright legislations for compliance withTRIPS, and the enactment ofanti-circumvention rules in response to theWIPO Copyright Treaty.[3] TheEuropean People's Party concluded that international instruments for the protection of copyright no longer seem capable of guaranteeing creators and investors a fair return on their activities while ensuring the public's access to information and respect for privacy.
Defenders of copyright exceptions fear that technology, contract law undermining copyright law and copyright law not being amended, is reducing the scope of important exceptions and therefore harming creativity.
In May 2010 a declaration entitledCopyright for Creativity[4] was launched, stating: "While exclusive rights have been adapted and harmonised to meet the challenges of theknowledge economy, copyright's exceptions are radically out of line with the needs of the modern information society. The lack of harmonisation of exceptions hinders the circulation of knowledge based goods and services across Europe. The lack of flexibility within the current European exceptions regime also prevents us from adapting to a constantly changing technological environment." This ad-hoc coalition is being registered at the official EU Transparency Register in the section In-house lobbyists.[5] Coordinator of this project runs a Brussels-based public affairs & government relations firm specialised in the online environment, that mainly mentionsIndustry (a.o. Google) andTrade Associations as its clients.[6]
Attempts at expansion of copyright limitations and exceptions are sometimes regarded as a threat by publishers.[7][8]
Copyright is typically thought of as a limited, legally sanctionedmonopoly.[9] Because of this, copyright licensing may sometimes interfere too much in free and competitive markets.[10] These concerns are governed by legal doctrines such ascompetition law in theEuropean Union,antitrust law in theUnited States, and anti-monopoly law inRussia andJapan.[10] Competition issues may arise when the licensing party unfairly leverages market power, engages inprice discrimination through its licensing terms, or otherwise uses a licensing agreement in a discriminatory or unfair manner.[9][10] Attempts to extend thecopyright term granted by law – for example, by collectingroyalties for use of the work after its copyright term has expired and it has passed into thepublic domain – raise such competition concerns.[9]
In April 1995, the US published "Antitrust Guidelines for the licensing of Intellectual Property" which apply topatents, copyright, andtrade secrets. In January 1996, theEuropean Union published Commission Regulation No. 240/96 which applies to patents, copyright, and other intellectual property rights, especially regarding licenses. The guidelines applymutatis mutandis to the extent possible.[9]
The interplay of copyright law and competition law is increasingly important in the digital world, as most countries' laws allow private contracts to over-ride copyright law. Given that copyright law creates a legally sanctionedmonopoly, balanced by "limitations and exceptions" that allow access without the permission of the copyright holder the over-riding of copyright law by private contracts can create monopoly activity. Well known limitations and exceptions includefair dealing in theUK andCanada, as well as thefair use doctrine in the US. The undermining of copyright law, and in particular limitations and exceptions to copyright bycontract law is an issue frequently raised by libraries, and library groups such asInternational Federation of Library Associations and Institutions. As a result of this, this issue is increasingly being looked at and discussed at a national governmental level e.g. UK[11] as well as international level such asWIPO – as part of the Development Agenda.
Limitations and exceptions are also the subject of significant regulation by global treaties. These treaties haveharmonized the exclusive rights which must be provided by copyright laws, and theBerne three-step test operates to constrain the kinds of copyright exceptions and limitations which individual nations can enact.
On the other hand, there are very few requirements in international copyright treaties placed on national governments to provide any exemptions from exclusive rights. One such case is Article 10(1) of theBerne Convention, which guarantees a limited right to make quotations from copyrighted works.
Because of the lack of balance in international treaties in October 2004, WIPO agreed to adopt a significant proposal offered byArgentina andBrazil, the "Proposal for the Establishment of a Development Agenda for WIPO" also known simply as the "Development Agenda" - from theGeneva Declaration on the Future of the World Intellectual Property Organization.[12] This proposal was well supported by developing countries. A number of civil society bodies have been working on a draft Access to Knowledge,[13] or A2K, Treaty which they would like to see introduced.
Two important examples of limitations and exceptions to copyright are thefair use doctrine found in the United States, and thefair dealing doctrine found in many othercommon law countries. Other more fundamental boundaries of copyright are caused bythresholds of originalities l, a threshold below which objects cease to be copyrightable, theidea-expression dichotomy, thepublic domain and the effect ofCrown copyright. Even copyright maximalists might interpret these asdefining copyright, rather than being "limitations" or "exceptions" to it. In addition copyright can only protect the artist's expression of his/her work and not the ideas, systems, or factual information conveyed in it.[14] Likewise, the U.S. courts have determined thatstock characters are also uncopyrightable.[15][16]
Whilefair use in the United States is popularly understood as the only limitation to an author's exclusive rights, it is only one of several important limitations. Section 106 of the U.S. copyright law, which definesthe exclusive rights in copyrighted works, is subject tosections 107 through 122, which limit the copyright holder's exclusive rights.
In the U.S. in stark contrast to those copyright laws which have developed fromEnglish law,edicts of government are not subject to copyright, including edicts of foreign governments.
In Canada, items deemeduseful articles such as clothing designs are exempted from copyright protection under theCopyright Act if reproduced more than 50 times.[17]Fast fashion brands may reproduce clothing designs from smaller companies without violating copyright protections.[18]
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