3. Copyright Limitations and Exceptions for Education and Research: Unity in Diversity

May (2003), p. 1; Sell (2003), pp. 8–10 and Finger (1999), pp. 432–434.

See WIPO Standing Committee on Copyright and Related Rights Proposal by Chile on the Analysis of Exceptions and Limitations SCCR/13/5 (2005). The proposal requested the WIPO Standing Committee to investigate national models of copyright limitations and exceptions and urged it to establish an agreement on limitations and exceptions for public interest. WIPO Provisional Committee Provisional Committee on Proposals Related to a WIPO Development Agenda PCDA/1/2 (2006). In this proposal Chile requested WIPO to appraise the importance of the public domain where users can use works without copyright restrictions. Chile also requested the WIPO to investigate such complementary measures as open licensing systems that can stimulate creativity.

Gervais (2002), p. 936.

Netanel (1998), p. 222 and Ryan (2000), pp. 660–661.

World Intellectual Property Organization and Sirinelli (1999), p. 3.

Some scholars consider fair use as a defence against copyright infringements, while others regard it as a privilege granted to users, see Meeropol v Nizer 560 F 2d 1061 1068 (2nd Cir 1977). In Canada, certain uses of copyrighted works are users’ rights; see CCH Canadian Ltd. v Law Society of Upper Canada 2004 SCC 13 para 48. See also Vaver (2000), p. 170. Some scholars consider fair dealing is a right of the public, see Laddie et al. (2000), p. 749. This study considers fair use a defence against copyright infringements. Simply considering fair use a user’s right is impractical and weakens or even disguises the current imbalance between copyright owners and users. For example, although Canadian copyright law generally favours a users’ rights approach, the Courts do not always follow this approach, Vaver Copyright Law 171 cited a case in which the Court interpreted exceptions narrowly: Cie générale des éstablissements Michelin/Michelin & Cie v CAW Canada (1996) 71 CPR (3d) 348 at 381 (Fed. TD) [Michelin].

The word ‘limit’ is used in Germany and Spain, while ‘limitation’ is used in Sweden, Greece and the United States. ‘Restriction’ is used in Switzerland, and ‘free use’ is used in Portugal. See WIPO and Sirinelli (1999), p. 2.

Miller and Davis (1990), p. 349.

Burrell and Coleman (2005), p. 9.

It is also called the difference principle, see Rawls (1971), pp. 60 and 83. See also Crocker (1977), pp. 262–266 and Fleischacker (2004), p. 109.

Rawls (1971), p. 28 and Bedau (1963), pp. 284–305, argues that Bentham’s utilitarian theory is unable to account for moral rights that are at the heart of justice theory; Parekh (1970), pp. 478–495 presented a similar argument; Goldworth (1969), pp. 315–321 and Goldworth (1987), pp. 67–68, argues Bentham’s theory cannot accommodate the principles of distributive justice and individual entitlements.

Rawls (1971), p. 303.

Drahos (1996), p. 177.

Id 179–180.

Rawls (1971), p. 303 and Drahos (1996), p. 180.

Sun (2011), p. 125.

Landes and Posner (2003), pp. 11–24; Gordon (1982), pp. 1600–1657 and Coase (1960), pp. 15–17. However, some economists argue that markets do not fail, see Simpson (2005).

Coase (1960), p. 3.

It is debatable whether private use should be fair use in a digital environment anymore; see Ginsburg and Gaubiac (1998), pp. 149–155.

Id 149.

Gordon (1982), p. 1600.

Denicola (1979), p. 289 and Samuelson (2008), pp. 2546–2567. A landmark case in favour of the finding of fair use for free speech is Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

Directive 2001/29/EC of the European Parliament and the Council (2001) OJ L 167/10.

Burrell and Coleman (2005), pp. 2–3.

Fair dealing exempts infringements of copyright for the purposes of news reporting, criticism and review. Such activities are a part of the right of freedom of expression, a basic human right that is found in Art 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No 11, Rome, 4.XI. 1950. Fair dealing operates in judicial activities, see Hyde Park Residence Ltd. v Yelland [2000] 3 WLR 215 (CA); Ashdown v Telegraph Group Ltd. [2001] EWCA Civ 1142, [2002] ECDR 32337; Pro Sieben AG v Carlton Television Ltd. [1999] 1 WLR 605.

May (2003), p. 2.

Burrell and Coleman (2005), pp. 79–80.

Id 79–80.

Lester and Mitchell (1989), p. 160.

Ss 32–36 of CDPA 1988.

S 29.

Ss 28–30.

S 32 of CDPA 1988.

S 33.

S 34.

S 35.

S 36.

S 36A.

S 36(2).

S 36(4).

S 130. It requires the Tribunal to consider:

(a) the extent to which published editions of the works in question are otherwise available, (b) the proportion of the work to be copied, and (c) the nature of the use to which the copies are likely to be put.

S 174(1) of CDPA 1988.

It is suggested that some types of institutions of higher education would be included, see Lester and Mitchell (1989), p. 161.

Burrell and Coleman (2005), pp. 78–79 and 162–163.

Lester and Mitchell (1989), p. 165.

The Royal Society (2003) and Hilty (2007), p. 322.

(1975) 133 CLR 1.

In particular, in CBS Songs Ltd. v Amstrad Plc [1988] RPC 567 held ‘it is thought that UK courts would reach a similar conclusion to that in Moorhouse’, though the House of Lords appeared to take a very different approach to the question of authorisation.

CCH Canadian Ltd. v Law Society of Upper Canada 2004 SCC 13 para 51.

Id para 41.

The idea/expression dichotomy means copyright only protects expressions fixed in certain forms.

See Campbell v Acuff-Rose Music Inc. 114 S Ct 1164 (1994) 1170; Harper & Row Publishers v Nation Enterprises 471 US 539 (1985) 549; Wright v Warner Books Inc. 953 F 2d 731 (2nd Cir 1991) 740; HR Rep No 94-1476 94th Cong 2nd Sess 65–66 (1976) (‘no generally applicable definition [of fair use] is possible, and each case raising the question must be decided on its own facts’).

Gordon (2002), pp. 149–192.

Rahmatian (2005), pp. 371–378 and Brennan (1994), pp. 151–168.

Brown (1985), pp. 579–609.

Akester (2006), pp. 16–33.

464 US 417 (1984).

Time-shifting is to record a television show and then to store it in order to view the show at a time more convenient to the consumer.

American Geophysical Union v Texaco Inc. 802 F Supp 1 (SDNY 1992); Re American Geophysical Union v Texaco Inc 37 F 3d 881 (2nd Cir 1994) (Texaco).

American Geophysical Union v Texaco Inc. 37 F 3d 881 (2nd Cir 1994) 5–12. As the dissent points out, however, only a tiny fraction of research actually involves laboratory experiments. Jacobs J, dissenting at 4–10.

The Copyright Crash Course ‘Professional Fair Use after Texaco’ University of Texas Libraries.

Id.

Id.

Thomas (1992). This Memorandum was submitted to the Association of Research Libraries and the Coalition for Networked Information which described and assessed the impact of this decision on library community.

Thomas et al. ‘Memorandum’, cited HR Rep 1476, 94th Cong, 2nd Sess (1976).

Thomas et al. ‘Memorandum’. See also ‘Texaco’ http://​fairuse.​stanford.​edu/​primary_​materials/​cases/​texaco/​settlement.​html (accessed 17-07-2016) and Crews (1992).

284 F 3d 1091.

P2P architecture means individuals can identify and transfer files from other individuals. In other words, it enables peers to obtain files from other peers. Although Napster’s service is not what one might call complete P2P architecture because there is a centralised database to provide information to on-line users, the effect is peer to peer.

Lessig gives an example of some kinds of music that have had never received copyright protection. He points out ‘music that has never existed in the history of music production’ as:

The important factor is not that a user can get Madonna’s lasted songs for free; it is that one can find (emphasis added by the author) a recording of New Orleans jazz drummer Jason Marsalis’ band play “There’s a Thing Called Rhythm”.

Lessig (2001), p. 131.

Id 196.

The Authors Guild Inc., et al. v. Google, Inc. October 16, 2015 (2d Circuit).

Page 3 of the judgment.

https://www.authorsguild.org/where-we-stand/authors-guild-v-google/ (accessed 27/08/2017).

Samuelson (2015), p. 854.

Id 853.

Travis (2015), p. 724.

Art 9(2) of the Berne Convention 1986; Heide (1999), pp. 105–109.

WIPO and Sirinelli (1999), p. 42.

World Intellectual Property Organization and Ricketson (2003), pp. 17–18 and Ricketson (1987), p. 482.

Ginsburg (2001), pp. 2–65. Some experts supported the non-normative approach; see World Intellectual Property Organization and Bogsch (1978), pp. 55–56. Also see Nordemann et al. (1990), pp. 108–109.

World Trade Organization United States—Section 110(5) of the US Copyright Act: Report of the Panel (2000) WT/DS160/R 33.

Ibid.

Id 33–34.

Ginsburg (2001), pp. 51–53. Gervais suggests an alternative application of the three-step test is to apply the third step of the test at the first stage, see Gervais (2005), pp. 27–30.

Koelman (2006), p. 409.

WIPO and Ricketson (2003), p. 18.

American Geophysical Union v Texaco Inc. 37 F 3d 881 (2nd Cir 1994) 898–899. Although the majority held that photocopying journal articles without a licence infringed copyright, the dissenting opinion was:

… there is no normal market in photocopy licenses, and no real consensus among publishers that there ought to be one

at 904.

WTO Panel Decision 48. The precedent value of the WTO Panel’s decision is limited as it binds only the parties to the legal proceedings. Neither other Member States nor domestic courts are bound by the decision for even a later Panel would arguably not be legally obliged to follow the decision. Oliver (2001–2002), pp. 132–133.

WTO Panel Decision 48.

WIPO and Ricketson (2003), p. 19.

Arts 2(4) & 2bis (1) of the Berne Convention.

Art 10(1).

Art 10(2).

Arts 10bis (1) & (2).

WIPO and Ricketson (2003), p. 20.

Yoo argues from an economics perspective that a transformative use of a copyrighted work could create a work to compete with the original one. In other words, a transformative work is an indirect substitution of the original one. A ‘narrow’ copyright regime that generously allows transformative uses would increase users’ entry to a particular type of works. Moreover, such a narrow copyright regime does not necessarily reduce right holders’ incentive to create if two conditions are met. First, copyright owners can profit from many different types of copyrights. Second, the copyright protection is strong enough for right owners to profit. See Yoo (2005), pp. 103–119. See also Yoo (2004), pp. 212–280.

Geiger et al. (2008), p. 491.

World Intellectual Property Organization Records of the Intellectual Property Conference of Stockholm, June 11 to July 14, 1967 (The Stockholm Conference Records) vol I & II (Geneva: WIPO, 1971) Preparatory Doc S/1 71, p. 113.

WIPO and Ricketson (2003), p. 21 and Gervais (2005), pp. 27–30.

Hugenholtz and Okediji (2008).

For example, D H Lawrence’s works have been banned in the UK for many years because they were considered to be pornography.

Ulmer stated that:

… a rather large number of copies for use in industrial undertakings … may not unreasonably prejudice the legitimate interests of the author, provided that, according to national legislation, an equitable remuneration is paid. If a small number of copies is made, photocopying may be permitted without payment, particularly for individual or scientific use.

See Stockholm Conference Records II 1145–1146.

Senftleben (2004), pp. 219–220.

WIPO and Ricketson (2003), p. 12.

Stockholm Conference Records II 1148.

1148.

Art 13(1) of the Berne Convention.

Art 11bis (2).

Senftleben (2004), pp. 198–201.

Art 2 of the Protocol Regarding Developing Countries to the Berne Convention of 1967 (the Protocol).

Art 1 of the Protocol.

Appendix to the Berne Convention.

For the history’s Protocol and Appendix, see Ricketson Berne Convention ch 11.

Okediji (2005), pp. 162–168.

WIPO and Ricketson (2003), p. 55.

Hugenholtz and Okediji (2008), p. 17 & accompanying n 49.

Art 11 of the TRIPS Agreement.

Agreed statement concerning Article 10 of the WCT.

Art 6 of the WCT.

Art 7.

Arts 8 & 10(2).

World Intellectual Property Organization Seminar for Asia and the Pacific Region on the Internet and the Protection of Intellectual Property Rights (1998) WIPO/INT/SIN/98/4 (1998), pp. 11–12.

World Intellectual Property Organization Records of the Diplomatic Conference on Certain Copyright and Neighboring Rights Questions volume I & II (1996) CRNR/DC/2 (1996), p. 188.

Diplomatic Conference Records II 672.

Vinje (1997), p. 231.

Ficsor (2002) para C8.24; Reinbothe and von Lewinski (2002), p. 112.

Diplomatic Conference Records II 670.

Agreed statement concerning Article 1(4) of the WCT that requires Contracting Parties to comply with Articles 1 to 21 and the Appendix of the Berne Convention. The statement reads:

Agreed statements concerning Article 1(4): The reproduction right, as set out in Article 9 of the Berne Convention, and the exceptions permitted thereunder, fully apply in the digital environment, in particular to the use of works in digital form. It is understood that the storage of a protected work in digital form in an electronic medium constitutes a reproduction within the meaning of Article 9 of the Berne Convention.

Art 31 (2) (a) of Vienna Convention on the Law of Treaties provides that when an interpretation of a treaty is in need, in addition to the text of the treaty, any agreement relating to the treaty which is made between all parties should be taken into consideration.

Diplomatic Conference Records II 670.

WIPO and Ricketson (2003), pp. 56–57, citing Diplomatic Conference Records I 189 and II 628 and 674–675.

WIPO and Ricketson (2003), p. 57.

Above 57–60, discusses the legal effect of the agreed statements under the guidance of the Vienna Convention. Ficsor argued that an agreed statement does not need unanimity to be effective because it is not a ‘treaty’ under Article 31(2)(a) of the Vienna Convention. On the contrary, Sinclair argues just the opposite writing that unanimity is necessary when referring to the Vienna Convention’s other articles.

They enjoy a number rights, for example, a right of broadcasting and rebroadcasting, a right of communication to the public, a right of reproduction of phonograms and a right of fixing performances to tangible media.

Art 15 of the Rome Convention provides that exceptions could be granted for (a) private use; (b) use of short excerpts in connection with the reporting of current events; (c) ephemeral fixation by a broadcasting organisation by means of its own facilities and for its own broadcasts; (d) use solely for the purposes of teaching or scientific research.

Another argument is that Art 15(1) of the Rome Convention is not mandatory. Therefore, Art 16(1) does not annul the obligations the Rome Convention has imposed. See WIPO and Ricketson (2003), p. 65.

Ayoob (2010), p. 179.

McMains (2009), pp. 1246–1256. The Free Software Foundation is concerned ACTA would threaten free software, see http://​www.​fsf.​org/​campaigns/​acta/​. The Wellington Declaration also states that copyright exceptions and limitations should be properly addressed to balance copyright protection with the fundamental purposes of copyright, see PublicACTA ‘The Wellington Declaration’ (2016).

Geist (2016) http://www.michaelgeist.ca/content/view/4829/125 (accessed 27-08-2017) and M Geist ‘New ACTA Leaks: Criminal Enforcement, Institutional Issues, and International Cooperation’ (27-07-2016) Michael Geist http://​www.​michaelgeist.​ca/​content/​view/​4886/​125/​ (accessed 27-08-2017).

Pegoraro (2009) and Anderson (2009).

Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Vietnam.

Fergusson et al. (2015).

Electronic Frontier Foundation ‘Trans-Pacific Partnership Agreement’ by at https://​www.​eff.​org/​issues/​tpp. These include obligations for countries to expand copyright terms, to adopt DMCA-like provisions, to impose greater liability on Internet intermediaries and to adopt heavy criminal sanctions.

‘The United States Officially Withdraws from the Trans-Pacific Partnership’ at https://​ustr.​gov/​about-us/​policy-offices/​press-office/​press-releases/​2017/​january/​US-Withdraws-From-TPP.

Joshua Rich, partner at Chicago-based IP law firm McDonnell Boehnen Hulbert & Berghoff LLP, in an interview by Inside Counsel, ‘U.S. Withdrawal from TPP Impact on Intellectual Property’ http://​www.​insidecounsel.​com/​2017/​03/​03/​us-withdrawal-from-tpp-impact-on-intellectual-prop.

Art 8 s 5 ch 2 of the ACTA. Also see art 18.15 of TPP that recognises the importance of ‘a rich and accessible public domain’.

Drahos (2016), p. 1.

Recital 14 of the Information Society Directive.

Recital 19.

Recital 14.

Art 53(3) Law on Copyright and Neighboring Rights of 1965 Federal Law Gazette Part I page 1273 (as amended in 2008).

S 13(1) of the Copyright Act of 1995 Act No 395 of June 14, 1995 amended by Consolidated Act on Copyright of 2006 Consolidated Act No. 763 of 2006 (WIPO English version).

S 50.

For example, Art 53(3) of the German Copyright Law of 1965 and Art 40(1A) of the Australia Copyright Act of 1968.

Art 5(3)(a) of the Information Society Directive.

See above para 3 5 1 1.

Hugenholtz and Okediji (2008), p. 12.

Senftleben (2004), p. 256.

Commission of the European Communities.

COM (2008) 466/3, pp. 19–20. Gowers (2006) Recommendation 11.

http://​www.​official-documents.​gov.​uk/​document/​other/​0118404830/​0118404830.​pdf (accessed 27-07-2016).

Hugenholtz and Senftleben (2011), p. 4.

S 107 of the Copyright Act of 1976.

Beebe (2006).

11.

Fisher (1988), p. 1783.

Beebe (2006), p. 10.

Ibid.

Beebe (2006), p. 11.

Id 12.

Id 12.

Id 13–14.

Campbell v Acuff-Rose Music Inc. 510 US 569 (1994) 580 n 12. The Court upheld a parody work as a fair use because it was a transformative use. The transformative nature of the use outweighed commercial consideration.

See, eg, Leibovitz v Paramount Pictures Corp 137 F 3d 109 (2nd Cir 1998) 113. Newman J wrote:

The Court’s emphasis on an aggregate weighing of all four fair use factors represented a modification of the Court’s earlier view that the fourth factor, effect on the potential market for, or value of, the original, was “the single most important element of fair use”.

Campbell v Acuff-Rose Music Inc. 510 US 569 (1994) 590 n 21, the Court’s reference to the fourth factor was that

the importance of this factor will vary, not only with the amount of harm, but also with the relative strength of the showing on the other factors.

Beebe (2006), pp. 10–11.

WIPO and Ricketson (2003), pp. 68–69.

Art 5(2)(e) of the Information Society Directive.

Recital 35 provides that:

In cases where rightholders have already received payment in some other form, for instance as part of a licence fee, no specific or separate payment may be due. The level of fair compensation should take full account of the degree of use of technological protection measures referred to in this Directive. In certain situations where the prejudice to the rightholder would be minimal, no obligation for payment may arise.

When social institutions do private copying and reproduce broadcasts they should pay royalties, see Arts 2(a), (b) & (e) of the Information Society Directive.

WIPO and Sirinelli (1999), p. 22.

See above para 3 2.

WIPO and Sirinelli (1999), pp. 11–12.

Id 6.

WIPO and Ricketson (2003), p. 65.

Gutteridge (1946), pp. 155–157.

Goldman (2007), p. 47.

van Creveld (1999), p. 385.

Id 70–74.

Gutteridge (1946), p. 160.

Ibid.

Ibid.

Goldman (2007), pp. 1–21.

Id 292–295.

Id 292.

Gutteridge (1946), p. 160.

Arts 40–43 of the Copyright Act of 1968.

Davison et al. (2008).

Copyright Amendment Act 2006, No 158.

Art 200AB of the Copyright Act of 1968.

S 28. For more details, see http://​www.​unimelb.​edu.​au/​copyright/​information/​amendments2006.​html

See Copyright Act of 1968 Act No. 63 of 1968 http://​www.​unimelb.​edu.​au/​copyright/​information/​amendments2006.​html

Id.

S 40(2).

S 200AB provides that a copyright in a work is not infringed by a use of the work if the use is a special case prescribed by the Copyright Act and the use is for libraries, educational institutions and the disabled. The use should neither conflict with a normal exploitation of the work nor unreasonably prejudice the legitimate interests of the copyright owner.

S 200AB (7).

WIPO and Sirinelli (1999), p. 41.

See above para 3 2.

Hugenholtz and Okediji (2008), pp. 42–43.

Fitzpatrick (2003), p. 222.

Ibid.

Ibid.

Id 224.