Restrictions on the Exercise of Rights: Limitations and Exceptions (Articles 2bis (2), 9(2), 10, 10bis, 11bis (2), 13, 17; later Agreements)

Abstract

This chapter identifies the limitations and exceptions in the rights of authors under the Berne Convention. Although the need for limits on copyright protection is generally recognized, there have been lengthy debates throughout the history of the Convention as to how these are to be set. In ‘machinery terms’, this can be done in three main ways: subject matter limitations; restrictions on use; and uses subject to payment of compensation. The Berne Convention contains instances of all three kinds of provision. For the most part, these are not made mandatory, but are left as matters for the national legislation of member states to ‘permit’. The chapter then focuses on permitted uses and compulsory licences. It examines each of the relevant articles in turn, beginning with the most general, which deals with exceptions to the reproduction right (article 9(2)), then with specific exceptions, such as rights of quotation (article 10(1)), uses for teaching purposes (article 10(2)), press usage (articles 10bis(1) and (2), and 2bis(2)), reservations and conditions on the exercise of mechanical reproduction rights under article 13, and conditions for the exercise of broadcasting and other rights under article 11bis. The chapter also considers how the question of limitations and exceptions has been taken up and extended in the TRIPs Agreement and the WIPO Copyright Treaty.