Scope Limitations

Abstract

Copyright is not infringed in instances where the defendant’s activity falls outside the scope of exclusive rights. This is likely to be the case when the factual background of an alleged infringement does not meet the statutory prerequisites of a restricted act, for instance, when taking from an original work has not been such to amount to an act reserved by copyright, and hence falls beyond the scope of exclusive rights. As the Court of Justice of the European Union has affirmed in numerous cases, copyright protection is not absolute and exclusive rights are subject to a variety of internal limits that can serve as the basis of defensive claims in a practical sense. For instance, the court has indicated that exclusive rights are subject to internal scope limitations, some of which are relevant in the context of new technological uses. Hyperlinks, for example, do not infringe copyright when they are not addressed to a ‘new’ public, namely an audience that the rightsholders did not have in mind while making the work available online. Another example is the exhaustion principle, according to which the first authorized sale of content exhausts the authorial entitlement to further distributions. This principle is available in the online context only in relation to the resale of software, and this hinders innovative activity through the creation of electronic marketplaces for digital goods. Subject to examination in this chapter are the statutory and doctrinal limitations that inherently limit the scope of rights and remain outside the spectrum of proprietary entitlements.