Exceptions or limitations to copyright

    Exceptions are key factors in maintaining the balanced interests of copyright holders and users in the copyright system. They are developed taking into account not only exceptions to rights, but also fundamental freedoms and fundamental public interests in the framework of copyright.



    Copyright exemption systems are changing in accordance with the legal framework. Nevertheless, a careful analysis allows us to conclude that, as a rule, they are of two types: some are considered “open” if they provide for a general refusal in relation to many situations, similar to the American concept of fair use. Others are considered “closed” if they are listed on a list of precisely defined circumstances in which copyright does not apply. The latter system is based mainly on the legislation of continental Europe.

    The US fair use system is a model of an “open” system, since certain uses, usually giving rise to a copyright issue, may be considered by the court to fall within the scope of this general exception in terms of purpose and nature of use (especially if it is of a non-commercial nature or serves purposes training), the nature of the protected work, the volume and significance of the used part of the work, the impact of use on a potential market or on the value of the protected The value you [1]. This system allows some flexibility in evaluating copyright exemptions, although it does not guarantee that users of the works will be legally reliable or that the consequences of use will be legally foreseeable.

    On the other hand, in a European or built on its model copyright system, mainly of French or German origin, exceptions constitute an accurate and exhaustive list of actions that, in certain circumstances, circumvent the copyright monopoly. In general, the following exceptions are recognized [2]:

    · exclusion from copyright for personal or other private use;

    · An exception for private communication, for example in the family circle;

    · Exception for parody, potpourri or caricature;

    · Exception for citation;

    · An exception for copying for scientific or educational purposes;

    · Exceptions for news posts;

    · The exception necessary for the administrative needs of justice and public policy.

    Adaptation of exceptions to the digital environment is a serious problem. Rightholders require a review of their application and scope so that the new digital society does not threaten their authority. The 1996 WIPO treaties in this regard recall the need to ensure a general limit on the number of exemptions granted to contracting parties by their national laws. Article 10 of the Copyright Treaty imposes a restriction on exceptions with respect to both copyright and related rights, as well as special cases that do not interfere with the normal operation of the work and do not unreasonably prejudice the legitimate interests of the author [3]. This three-step test was already present in the Berne Convention and the TRIPS Agreement. According to Article 10 of the Copyright Treaty:

    Thus, the triple condition, designed to serve as the touchstone of the system of exceptions and “one of the fundamental principles of the future framework of copyright”, will serve as a guideline in assessing exceptions to copyright. These three conditions, or “steps”, are as follows: first of all, only exceptions included in the category of special cases are allowed. Therefore, general exceptions, such as a general exception for private use, are not allowed. However, fair use, although potentially strictly limited, is apparently not prohibited by this provision. The other two conditions (that exceptions should not impede the normal operation of the work or infringe upon the legitimate interests of the authors) should be considered in the context of each of them. An exception is not allowed if it allows a third party to exploit the work in such a way as to create competition for the copyright owner, or if the use of exceptions affects the potential market for the work [5]. The Agreed Statement accompanying the Copyright Treaty provides that the provisions of Article 10 [three-step test] allow Contracting Parties to transfer and appropriately extend to the digital environment the limitations and exceptions in their national laws that are considered acceptable under the Berne Convention. Likewise, these provisions should be understood as allowing Contracting Parties to define new exceptions and limitations that are applicable in the field of digital computer networks. Also understood

    Despite the ambiguous and complex wording, the Statement confirms that the three-step test cannot contribute to either reducing or expanding the list of exceptions in the digital environment. Consequently, states can certainly make exceptions that are acceptable in the information society. At the same time, article 10 itself requires a new reading, using a three-step test as a measure of existing exceptions in terms of their transfer to the digital environment.

    In any case, the current trend seems to be aimed at reducing both the scope and the number of exceptions to copyright in the digital world. It was this idea that was behind the proposal contained in the European Directive on Copyright in the Information Society, which reduces exceptions to a few strictly and clearly regulated cases in which the provision for the payment of fair compensation to the author usually appears. Nevertheless, the energetic harmonization plan, in its most recent version, and then at the stage of developing a common position, did not achieve the set goal and provides states with the opportunity to make a choice from a list of 22 exceptions. This list even contains a private digital copy,

    Technological progress makes it easy to establish contractual relationships on the Internet, and you can negotiate and authorize each use of a work. Thus, the need to provide exceptions to the law will lose its relevance. Suppose the author distributes his work through the Internet, while negotiating a citation for scientific purposes for a small fee [7].

    Withdrawals are key factors in maintaining the balanced interests of authors and the public in the copyright system. They are developed taking into account not only exceptions to rights, but also fundamental freedoms and fundamental public interests in the framework of copyright. At the heart of certain copyright restrictions is freedom of expression, freedom of the press, and the right to information. So, for example, exemptions relating to private use are designed to protect the integrity of personal life, while exemptions for educational and research purposes seek to ensure the right of people to knowledge and education. Several consequences follow from this logic of copyright exemptions: The

    exemptions must be stored in a digital environment for the sake of copyright inherent balance.

    The problem of adapting exemptions to the digital environment can only be solved by a modern analysis of the grounds for their provision. The doctrine, as a rule, provides two types of considerations justifying the imposition of copyright restrictions: either these exceptions are necessary for practical or economic reasons, or they are justified by concerns about common interests or fundamental rights and freedoms. Here we give Hugengolz’s distinction in three categories:

    First of all, some exceptions to copyright express concern for guaranteeing fundamental freedoms, such as freedom of expression, information, freedom of the press and the right to security of person. These exceptions are: parody, citation, critical reviews, news reports, or private use of works. Undoubtedly, the validity of these exceptions in the digital environment is unchanged. Therefore, these exceptions must be maintained and protected.

    The second category of exceptions is justified by the requirements of public interest. These exceptions are limited to educational institutions and libraries, archives and museums, as well as the use of works for the needs of persons with disabilities, justice and the state. Here, also, the interests that underlie exceptions continue to exist in the digital environment. This is especially true of the case of the educational or research community, in which an ever-increasing number of works and information materials are available only via the Internet. Therefore, for scientists, researchers and students in the scientific community, it is especially important to get the same opportunities in the digital environment as in the analog world. It is likely that the existing exceptions in favor of libraries, scientific and educational societies should be preserved in electronic networks. However, in some cases, these exceptions are applied in a completely different way and, therefore, they can prevent the normal use of the work in a new way. Parties such as libraries or educators who benefit from these exemptions play a whole new role in the information society. The virtual library is open to the general public and is fundamentally different from a material institution with its limited number of users and hours of work. The difference between the publisher or distributor of information and works and the library of the future is not significant. The same applies to institutions offering educational courses. Therefore, even if we should support the retention of exceptions already included in this framework, we must not shy away from the need to carefully weigh the role and functions of libraries and education on the Internet. Consideration of this problem may also lead to the thought of the need for new exceptions in order to preserve the fundamental importance of access to culture and the transfer of knowledge.

    Finally, some exceptions are introduced into the arsenal of copyright law in order to compensate for both market failures and the inability of some authors to effectively control and prevent certain uses. This applies to private audiovisual copying and reprography. When devices were developed for graphic, audio and audiovisual reproduction in the form of photocopiers, tape recorders and video tape recorders, there was a rapid increase in the number of copies of works. The author could not effectively control the production of these copies, especially if they were made for private use. Given this problem, lawmakers recognized the user’s right to an exception for private copying, which is accompanied by the payment of remuneration to the author. Thus, this type of exclusion is a concession to the practical inability to enforce copyright. The development of technology has led to the elimination of this inability. Using technological mechanisms, authors can prevent others from making digital copies. As a result, a significant part of the arguments justifying the exception becomes invalid. Moreover, these exceptions are not related either to fundamental freedoms or to concern for the interests of the general public. Therefore, their existence is in question [8]. Moreover, these exceptions are not related either to fundamental freedoms or to concern for the interests of the general public. Therefore, their existence is in question [8]. Moreover, these exceptions are not related either to fundamental freedoms or to concern for the interests of the general public. Therefore, their existence is in question [8].

    At least the argument for maintaining the inherent balance of interests inherent in copyright speaks in favor of maintaining existing exceptions. In certain cases, it can even be argued that with the expansion of copyright, the scope of exceptions must increase in order to restore this balance. In fact, rights and exceptions are most complexly connected with the establishment of proper balance. So far, lawmakers have only thought about expanding exclusive copyrights. It's time to think about the interests of users.

    © Sergey Atanasov LOVATA Group 2007

    CrossPost from webdev.lovata.com .

    [1] Copyright Act 1976 Art. 107

    [2] Detailed description of exceptions accepted in different countries: Les Frontieres du droit d'auteur: ses limites et exceptions, ALAI Study Days, September 14-17, 1998, Cambridge, Ed. Australian Copyright Council, 1999.

    [3] WIPO Copyright Treaty. Adopted by the Diplomatic Conference on 12/20/1996; Russian text Law of the Republic of Belarus // Copyright and Related Rights. Ed. Chigir V.A. - Mn .: Amalfey, 1999. S. 277-290

    [4] In the same place. S. 277-290

    [5] In the same place. S. 277-290

    [6] Severin Dusolier, Yves Poulier, Mireille Buiden. Copyright and access to information in a digital environment // copyright.iile.ru/bullet/02_2001/2_2.html

    [7] W. Fisher III, Property and Contract on the Internet, 1998 ;. T. Bell, Fare Use v. Fared Use: The Impact of Automated Rights Management on Copyright's Fair Use Doctrine, NCL Rev., Vol. 76, 1998, p. 101.

    [8] Severin Ducosier, Yves Poulier, Mireille Buiden. Copyright and access to information in a digital environment // copyright.iile.ru/bullet/02_2001/2_2.html


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