Copyright Exceptions Research Articles

Romantic Remixers: Hidden Tropes of Romantic Authorship in Creators’ Attitudes about Reuse

AbstractThis article draws from data generated in existing studies in Australia and the U.S. to examine how creators describe themselves and their creative acts when they are recombining or trying to combine copyrighted work with their own work. It finds a surprising congruence of self-perception across very different copyright regimes and creative practices. An undercurrent of Romantic notions about the originality of creative genius runs through even cutting-edge digital practices. This attitude then bolsters strategies used by large media interests to expand copyright monopoly rights and extend them internationally. Results have implications both for policy and advocacy, in particular, how creators respond to campaigns for expanded copyright exceptions, and a reluctance by even remix creators to challenge the legal structures that restrict their creative practice.

Comparative Study on Copyright Exception for Teaching Purposes: Australia, Malaysia and the United Kingdom

While education is considered a basic human right, the copyright system however seems to hamper public access to information and knowledge. This is especially so when information that largely comes from developed countries are used as commodities that have to be bought by developing countries. This paper compares the international and national laws in Malaysia, United Kingdom and Australia on the copyright exceptions to materials used for teaching purposes. It analyzes the different ways countries manage and balance between copyright owners and copyright users’ interest and shows that in many circumstances, copyright owners are over-protected by national copyright systems although this is not required by international copyright law. This paper also shows that international treaties governing copyright law do allow some flexibility for member countries to implement copyright systems based on their own needs and circumstances but such opportunity is not fully utilized by member countries for the benefit of the public.

Restrictive Conditions for Free Uses of Copyrighted Materials under Omani Law and Their Implications for Users’ of Copyrighted Materials

Omani Copyright and Neighboring Rights Law of 2008 contains a list of exceptions to the exclusive rights of copyright holders. These exceptions allow people to copy and use copyrighted materials in certain cases without paying any fees or obtaining any permission from the copyright holders. The exceptions cover free uses for purposes like teaching, education, quotation in another work, dissemination of news etc. However, the Omani Copyright and Neighboring Rights Law puts many conditions for such free uses. Some of these conditions mirror similar conditions under the Berne Convention and other copyright conventions to which Oman is a party. Other conditions under Omani law are more restrictive than those that appear under international conventions. These additional conditions restrict the scope of free uses of copyrighted materials in Oman. Yet, some countries like USA and Canada, despite their being parties to the same international conventions, have much wider exceptions under their national legislation. The paper, therefore, recommends that Oman should follow the legislative approach of those countries in order to widen the scope of copyright exceptions for the benefits of users of copyrighted materials in Oman.

Restrictive Conditions for Free Uses of Copyrighted Materials under Omani Law and Their Implications for Users’ of Copyrighted Materials

Omani Copyright and Neighboring Rights Law of 2008 contains a list of exceptions to the exclusive rights of copyright holders. These exceptions allow people to copy and use copyrighted materials in certain cases without paying any fees or obtaining any permission from the copyright holders. The exceptions cover free uses for purposes like teaching, education, quotation in another work, dissemination of news etc. However, the Omani Copyright and Neighboring Rights Law puts many conditions for such free uses. Some of these conditions mirror similar conditions under the Berne Convention and other copyright conventions to which Oman is a party. Other conditions under Omani law are more restrictive than those that appear under international conventions. These additional conditions restrict the scope of free uses of copyrighted materials in Oman. Yet, some countries like USA and Canada, despite their being parties to the same international conventions, have much wider exceptions under their national legislation. The paper, therefore, recommends that Oman should follow the legislative approach of those countries in order to widen the scope of copyright exceptions for the benefits of users of copyrighted materials in Oman.

The Constitutionalization of Intellectual Property Law in the EU and the Funke Medien, Pelham and Spiegel Online Decisions of the CJEU: Progress, but Still Some Way to Go!

In the first part of the new millennium, the rise of the use of fundamental rights in shaping and using intellectual property norms has led one of the authors of this article to predict that this movement will be “constitutionalizing” intellectual property law. More than a decade and a half later, the influence of fundamental rights on the scope and limitations of intellectual property has never been more important, as illustrated by three seminal copyright decisions (in the Funke Medien, Pelham and Spiegel Online cases) delivered in July 2019 by the Court of Justice of the European Union. These decisions, dealing with the relationship between copyright and freedom of expression (including freedom of the media, information, and freedom of artistic creativity), stand out in the European judicial practice on copyright and fundamental rights for a number of reasons. First, freedom of expression and its balancing factors play a crucial role in shaping the contours of the exclusive rights, starting from the definition of copyright law’s subject-matter and extending to the right of reproduction, as well as – most importantly – to copyright limitations and exceptions. In essence, the CJEU takes a quite liberal position towards the national courts’ interpretation of existing copyright norms in the light of the freedom of expression requirements. The CJEU goes even as far as to term the Art. 5 InfoSoc exceptions not as “exceptions” as such but as self-sufficient rights of users of copyright-protected subject-matter. It is also notable that, in applying freedom of expression to EU copyright, the CJEU has largely relied on the case law of yet another supranational European court – the European Court of Human Rights – manifesting eagerness to engage in a “dialogue” with the principal human rights tribunal in Europe in order to establish guiding principles for EU copyright law informed by freedom of expression. Such a liberal, “freedom-of-expression-driven” approach of the CJEU to the interpretation of EU copyright appears quite analogue in results that could be reached by applying an external and/or open-ended copyright exception. Nevertheless, the Luxembourg Court indicates in Funke Medien, Pelham and Spiegel Online that an externally introduced flexibility (by means of complementing that already existing in the EU list of exceptions) could be harmful to copyright harmonization and legal certainty. Therefore, despite having taken a more favourable position on the possibility of shaping EU copyright by fundamental rights norms, the CJEU does not go all the way, since it considers in quite categorical terms that an external freedom of expression exception beyond the exhaustive list of limitations of Art. 5 InfoSoc is clearly inacceptable. According to the Court, copyright’s own internal mechanisms present sufficient safety valves for balancing with freedom of expression. Such a position of the CJEU that relies on the fact that the legislature has anticipated all the potential conflicts between copyright and higher ranking norms such as fundamental rights might be incompatible with the EU legal order. Thus, despite visible progress in flexibilizing copyright norms via their interpretation “in the light of” fundamental rights, some further steps will still need to be taken in the future to make the “constitutionalization” of IP law a complete reality in the EU.

Study on Copyright Limitations and Exceptions for Libraries and Archives

This study of copyright exceptions for libraries and archives provides an overview of the nature and diversity of statutory provisions in the copyright law of the 184 countries that are members of the World Intellectual Property Organization. WIPO commissioned Dr. Kenneth Crews to conduct this study, and he presented the findings the WIPO delegates at a meeting of the Standing Committee on Copyright and Related Rights, in Geneva, Switzerland in November 2008. For the first time, it gathers library exceptions from nearly all WIPO countries and provides an analytical survey of the law. The statutory exceptions for libraries primarily address such issues as reproduction of copyrighted works for purposes such as private research and study, preservation and replacement of materials, and document supply and interlibrary lending. Some countries have statutes on the 'making available' of copyrighted works. This study also encompasses library exceptions to the prohibition against circumvention of technological protection measures.Of the 184 countries in WIPO, the research for this project collected current and translated statutes from 149 countries. Of those countries, 128 of them have at least one statutory library exception, and most of the countries have multiple statutes addressing a variety of library issues. Twenty-one countries have no library exception in their copyright law. (Three additional countries have no copyright law and hence no library exceptions: Afghanistan, Laos, and the Maldives.) These basic statistics demonstrate the widespread prevalence of library exceptions, suggesting that they play an important role in the law and in facilitating library services. The fact that statutes tend to center on pursuits such as research and preservation also suggests that copyright law has an important role in the ability of citizens to have continuing access to the rich variety of materials held in libraries.The statutes differ greatly from one country to the next. The statutes can be distinct in nearly all respects, from their scope of applicable libraries to the specific activities encompassed. Among statutes on one topic, such as reproduction of materials for research, the statutes set widely divergent standards with respect to the scope of materials that may be copied, the conditions and requirements for making the copies, the possible application of digital formats, and the circumstances under which the copies may be delivered to and subsequently used by individual researchers. These great variations among the statutes are one of the most important findings of this study, but patterns among the statutes are also evident. Some of the patterns are historical, such as the influence of British law in many countries. Other patterns are regional, such as the trend in many African countries to have either no library exception or a fairly general provision permitting libraries to make copies of works without many detailed requirements. Some patterns are the result of regional cooperation, most notably the European Union. As a result of a European Union directive from 2001, the library exceptions among the twenty-seven members of the E.U. bear some similarities to one another. Nevertheless, some E.U. countries have added their own distinctive touches to the legislation, leading to important variations among statutes drafted even in a context where harmonization of the law is a priority.The specific terms of the library exceptions reveal much about the relationship of copyright law to library services in different countries. These statutes do more than simply govern library activities. They are a reflection of cultural, historical, and economic objectives. Sometimes those objectives are in conflict with one another. The statutes are therefore often a compromise among competing interests, typically permitting libraries to make certain uses of copyrighted works, while setting limits and conditions to protect the interests of copyright owners, publishers, and other rightsholders. This study presents the law as it exists today, but it should establish a foundation for future studies related to the origins, purposes, and effects of the copyright exceptions. This study should also generate discussion about the feasibility and future of library exceptions. Many libraries may be served well by statutes allowing single copies of materials for research or limited copying for preservation. Other libraries are struggling with issues that usually reach beyond current law, such as large-scale digitization of collections and automated harvesting and collecting of Internet-based resources. The character of library exceptions today may offer good indications of the issues and complications that lie ahead as lawmakers begin to explore anew the expanding range of copyright issues affecting libraries.The full report in English, French, and Spanish is available at:http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=109192

The CJEU, EU Fundamental Rights and the Limitations of Copyright

It is now almost 20 years since the Charter of Fundamental Rights of the European Union was signed (hereinafter the ‘Charter’). Its importance as a further primary text has meanwhile regularly come into the focus of the CJEU. In the three recent cases Funke Medien NRW, Spiegel Online and Pelham, the CJEU had the opportunity to clarify the importance of the Charter’s fundamental rights regarding the limitations and exceptions to the exclusive rights of copyright. While clarifying certain issues, the CJEU, however, also raised some intricate issues with potentially far-reaching consequences. The three questions raised by the German Federal Supreme Court in this regard were: (1) do the provisions of EU law on copyright exceptions or limitations allow any discretion in terms of implementation in national law; (2) in what manner are the fundamental rights of the Charter to be taken into account when determining the scope of the exceptions or limitations provided for in the InfoSoc Directive; and (3) can the fundamental rights justify exceptions or limitations to the exclusive rights, beyond the exceptions or limitations provided for in Art. 5(3) of the InfoSoc Directive? The CJEU answered the first question with a general ‘yes’, and the third one with a clear ‘no’ and explained how fundamental rights should be taken into account regarding the second question. At the same time, this raises the question of the scope left to the Member States to apply their own fundamental constitutional rights. In short, the question is about locating and adjusting the protection of fundamental rights in the European multi-level system.

Documenting the copyright sphere: can festivals solve the problem of copyright clearance for documentaries?

The starting point of this article is a short documentary film that I and five colleagues produced in the course of the Business of Film module at Queen Mary University of London's Intellectual Property Law LLM Programme. During the process of production, we faced some borderline issues regarding our unauthorized uses of others’ copyright works. When we put ourselves into the copyright's author's shoes, three problems arose regarding our use of possible limitations and exceptions: the lack of guidance; the fear of liability; and the unharmonized status of limitations and exceptions at an international level. This article examines these problems from a copyright policy perspective and invites documentary festivals to undertake a mission of guiding new documentary directors through the complex, unharmonized world of copyright limitations and exceptions.

COPYRIGHT EXCEPTIONS AND LIMITATIONS IN THE EU-UKRAINE ASSOCIATION AGREEMENT

The article deals with the analysis of copyright exceptions and limitations in the EUUkraine Association Agreement and the procedure for their application. The principles of the free use of works are analyzed; an explanation of how to separate the provisions of the Association Agreement that are directly applicable and not directly applicable is given.The limitations on the fixation right, broadcasting and communication to the public, distribution right, reproduction right and exceptions related to computer programmes and databases are investigated. Conclusions on provisions of the Association Agreement which should be implemented into domestic law have been made.

Fair use and fairness in copyright: A distributive justice perspective on users' rights

Australia is once again considering how to best protect the public interest in copyright. One of the most contested current issues in Australian copyright law is the question of limits and exceptions to the rights of copyright owners. The recent Australian Law Reform Commission (‘ALRC’) review into copyright exceptions recommended broadening and simplifying the exceptions to better protect the interests of users to access and reuse copyright material for socially beneficial purposes. Despite the exhaustive consultation and report produced by the ALRC, and the support lent to it by the recent Productivity Commission Inquiry Report, there is little consensus about its recommendations. The proposal to introduce fair use is strongly contested by rightsholder groups, who are reluctant to cede further control over the use of information and cultural goods, particularly given the challenges they have faced transitioning to a digital environment.

Text and Data Mining: Articles 3 and 4 of the Directive 2019/790/Eu

Our society is in the midst of an explosion of data: ‘there was 5 exabytes of information created between the dawn of civilization through 2003, but that much information is now created every 2 days, and the pace is increasing’. In 2014, there were 2.4 billion internet users. That number grew to 3.8 billion in 2017 and new data is created by the quintillions of bytes every day. Together with mobile devices, the Internet of Things (IoT) contributes to this huge data production. In the big data era, orientating within this magma of online data has become an extremely complex but crucial task, also leading to complex issues in terms of regulation of this new environment. The European Union seems at first to have acknowledged the potential of monitoring data, putting in place measures to unlock TDM potentialities. On 14 September 2016, the European Commission published a Proposal for a Directive on copyright in the Digital Single Market, which was approved into Directive 2019/790/EU on 17 April 2019 (“DSM Directive”). Inter alia, this copyright reform would like to improve access to protected works across borders within the Digital Single Market (DSM) to boost research and innovation. To this end, the DSM Directive includes a set of new mandatory exceptions and limitations. In particular, the reform introduces two specific limitations for TDM. In this chapter, the introduction of mandatory TDM limitations in European law will be assessed against the international and European framework of copyright exceptions and limitations by considering the rationales for such an exception and the positive and negative impacts of the reform. Giving the importance of TDM activities for the economic development in the EU and its innovative environment, the question arises if the reform lives up to the expectations. Although, following our previous suggestions, the scope of the limitation has been broadened, the final text of the reform still limits the full exploitation of the potential of data for research and innovation, for start-ups as well as more generally for the broader access to works and the information they contain.

Algorithmic Copyright Enforcement and AI: Issues and Potential Solutions through the Lens of Text and Data Mining

Although digitalization and the emergence of the Internet has caused a long-term crisis for copyright law, technology itself also seems to offer a seemingly ideal solution to the challenges of digital age: copyright has been a major use case for algorithmic enforcement from the early days of digital rights management technologies to the more advanced content recognition algorithms. These technologies identify and filter possibly infringing content automatically, effectively and often in a preventive fashion. These methods have been criticized for their shortcomings, such as the lack of transparency, bias and the possible impairment of fundamental rights. Self-learning machines and semi-autonomous AI have the potential to offer even more sophisticated and expeditious enforcement by code, however, they could also aggravate the aforementioned issues. As the EU legislator envisions to make the use of such technologies essentially obligatory for certain online content sharing service providers (via the infamous Article 17 of the directive on copyright in the digital single market), the assessment of the situation in light of future technological development has become a current topic.This paper aims to identify the main issues and potential long-term consequences of creating legislation that practically requires the employment of such filtering algorithms as well as their solutions. This paper focuses on the potential role a broad copyright exception for text and data mining could play in counterbalancing the issues associated with algorithmic enforcement.

Human rights principles in the WIPO Marrakesh Treaty: driving change in copyright law from within

The number of countries joining the WIPO Marrakesh Treaty for the visually impaired has been gradually increasing since its adoption in 2013. This article evaluates the contribution of the WIPO Marrakesh Treaty to the untangling and understanding of the interface of intellectual property law and human rights law. It analyses the significance of the human rights language used in the Treaty as well as its mandatory copyright exceptions. It is argued that the significance of the Treaty mainly lies in its inclusion of human rights principles. This, together with the introduction of compulsory copyright limitations and exceptions, forms the innovative approach of the Treaty that reshapes the contours of the relationship between intellectual property rights and human rights.

USE OF COPYRIGHT PROTECTED WORKS IN THE EDUCATIONAL PROCESS

Copyright is one of the intellectual property rights whose main activity is to promote creativity and protect the ownership of the author. However, these rights are not absolute and are subject to certain restrictions.In the Berne Convention, Agreement on Trade-Related Aspects of Intellectual Property Rights and also WIPO Copyright Treaty embodied so-called “three-step test” allowing exceptions to copyright protection. They state that exceptions to copyright protection are admissible only in specific cases; if they comply with the rules of normal exploitation of the author's work; and do not unreasonably prejudice the legitimate rights of the author.While respecting the restrictions contained in international conventions, the Latvian Copyright Law also lays down various restrictions, when the author's work can be used without a special permit for the use of the author's work or for free, such as in the educational or research process. The free use of copyright-protected materials constitutes a restriction on the economic rights of copyright holders. These restrictions aim to strike a balance between the rights of the author and the interests of the public. Although copyright-protected works can be used in education almost everywhere in the world, restrictions on the exercise of these rights have not been clearly established.The aim of this paper is to research limits use of copyright-protected works in the educational process. Basis for this analysis will be the international and national legal framework about copyright exceptions in educational process.In the development of the research used an analytical method of scientific research, as well as a method of interpreting grammatical, teleological and historical legal norms. For the conclusions used inductive and deductive method of scientific research.

Fair Use As an Advance on Fair Dealing? Depolarising the Debate

Despite repeated calls for the introduction of a “fair use” defence to copyright infringement in Australia, there appears to be little prospect of Australia adopting such reform. Instead, the debate over copyright exceptions reform appears to be at impasse, with one camp arguing forcefully in favour of fair use and the other camp defending the status quo. In this paper we seek to revitalise the debate around the desirability of options for reform other than “fair use”, such as the addition of new fair dealing purposes or the development of other closed provisions that utilise a less prescriptive drafting style. We start from the premise that the exceptions regime in Australia has fundamental problems and is in need of reform. Our aim is to assess the value of a model that maintains but expands and improves upon a closed-list system, compared to one based around an open-ended “fairness” exception. In Part II we observe how exceptions debates in Australia and elsewhere have come to be focused around the issue of whether or not to adopt fair use. We note that while a focus on fair use is to be welcomed for highlighting inadequacies of the current closed-list system, this has led to the ousting of any meaningful consideration of alternative approaches. In Part III we turn to consider substantive arguments in favour of fair use and the status quo, noting how those arguments tend to converge into debates over “certainty versus flexibility.” Here we see the repetition of certain tropes, for instance that closed exceptions provide greater certainty in outcomes and practice but are unresponsive to changing conditions, whilst fair use affords a greater degree of flexibility and adaptability but is unpredictable. We seek to depolarise this aspect of the debate by providing a fuller account of what “increasing flexibility” actually entails, including by reference to recent experiences in Canada and the UK that demonstrate how closed systems may exhibit benefits usually associated with a fair use approach. While we remain of the view that fair use is the best reform option for a country such as Australia, we argue that it is important not to overestimate the merits of fair use in comparison with a substantially rehabilitated closed-list model. Expanded fair dealing, coupled with a range of specific exceptions, remains a viable option and is worthy of careful consideration. It ought not to be marginalised or repudiated in the rush to make a case that Australia’s system of exceptions should be liberalised.

The Limits of International Copyright Exceptions for Developing Countries

Development indicators in many developing and least-developed countries reflect poorly in precisely the areas that are most closely associated with copyright law’s objectives, such as promoting democratic governance, facilitating a robust marketplace of ideas, fostering domestic markets in cultural goods, and improving access to knowledge. Moreover, evidence suggests that copyright law has not been critical to the business models of the creative sectors in leading emerging markets. These outcomes indicate that the current configuration of limitations and exceptions (L&Es) in international copyright law has not advanced the human welfare goals that animate its leading justifications in developing countries. This Article considers the design of the international copyright system in light of what economists have learned about the conditions necessary for economic development and examines what changes to international copyright L&Es those insights demand. It concludes that a more realistic dialogue about the relationship between copyright and economic development compels new types of L&Es, thus underscoring where developing and least-developed countries should sensibly invest their limited economic and political capital when engaging with the international copyright framework.

Amending Chinese Copyright Law to Fulfil Obligations under the Marrakesh Treaty to Facilitate Access to Published Works for the Print Disabled

AbstractChinese copyright laws have not yet given sufficient consideration to copyright exceptions or limitations to facilitate access to copyright works for persons with a print disability. Now that China has become a signatory party of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, it would be significant if China could amend its copyright laws so as to end the “book famine” for a huge population with a print disability. The objective of this paper is to evaluate the effectiveness of Chinese copyright exceptions for the print disabled and propose amendment options for China's copyright law to ensure compliance with its signatory obligations. To this end, the paper provides an overarching examination of China's copyright exception arrangements for the print disabled, identifies the gap between Chinese copyright laws and the Marrakesh Treaty, and analyses previous proposals on copyright law reform.

Advocate General Szpunar in Spiegel Online (or why we need fair use in the EU)

Opinion of Advocate General Maciej Szpunar in Spiegel Online, Case C-516/17, EU:C:2019:16 (in progress) Advocate General (AG) Maciej Szpunar handed down his much-awaited Opinion in Spiegel Online, C-516/17 on 10 January 2019. The Opinion addresses a set of questions referred by the German Federal Supreme Court (BGH) on one of the most controversial provisions in the EU copyright acquis: Article 5 of Directive 2001/29 (InfoSoc Directive). The questions concern not only the interpretation of specific paragraphs of Article 5 but also the freedom of Member States in implementing copyright exceptions and their relationship with fundamental rights.

Human Rights Principles in the WIPO Marrakesh Treaty: Driving Change in Copyright Law from Within

The number of countries joining the WIPO Marrakesh Treaty for the visually impaired has been gradually increasing since its adoption in 2013. This article evaluates the contribution of the WIPO Marrakesh Treaty to the untangling and understanding of the interface of intellectual property law and human rights law. It analyses the significance of the human rights language used in the Treaty as well as its mandatory copyright exceptions. It is argued that the significance of the Treaty mainly lies in its inclusion of human rights principles. This, together with the introduction of compulsory copyright limitations and exceptions, forms the innovative approach of the Treaty that reshapes the contours of the relationship between intellectual property rights and human rights.

The Law and Economics of Copyright Law and Copyright Exceptions, Limitations, and Immunities

This paper provides a brief review of the law and economics of Copyright Law and Copyright Exceptions, Limitations, and Immunities. Copyright law requires the creator’s consent to copy, publish, convey, transfer or profit from their original work. Copyright exceptions are legal limitations on the requirement that the prior consent, or authorization of the rights holder is necessary to make use of creative works. Copyright exceptions thus permit certain acts (uses) which would otherwise constitute an infringement of the exclusive right to copy. Copyright exceptions characterize the circumstances in which copyright will not be infringed by an unauthorized reproduction or presentation of creative works. Copyright limitations limit the scope or duration copyright holders rights. Copyright immunities remove the sanctions imposed for breach of copyright law obligations e.g. immunity from civil damages. This paper consists of three sections: • First we briefly examine the origin and nature of copyright law, and copyright exceptions; and • Second we briefly examine the economic rationale for copyright; • Third we examine the rationale for copyright exceptions, (including the “fair use” rule), and various other limitations, and immunities (such as “safe harbours”) in detail. In the third section we discuss a number of economic rationales advanced for copyright exceptions, limitations and immunities including: - Transaction costs Rationales - Monopoly Pricing Rationales - Non-Rivalry and Non-divisibility rationales - Indirect Appropriability Rationales and - Externalities rationales including network externalise and anti-commons rationales The paper concludes that the economic case for greater copyright exceptions, (including the “fair use” rule), and various other limitations, and immunities (such as “safe harbours”) has been overstated.