Transcript Testing

Exceptions & Limitations
Prof. Tanya Aplin
King’s College London
[email protected]
Nature & purpose of E&L?
• Exceptions v Limitations
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Purpose?
Public interest - dissemination of knowledge
Human rights - freedom of expression; privacy
Pragmatic/economic - transactions costs or
problems with enforcement
• Influence of underlying copyright philosophies?
International
• Berne Convention
• Mandatory - Art 10(1) quotation
• Permissive - all others – e.g. Art 10(2) use for teaching purposes;
– Art 10bis(1) use of articles in newspapers &
periodicals; 10bis(2) use of works in reporting current
events;
– Art 13 reservations and conditions on exercise of
mechanical reproduction rights;
– Art 11bis - conditions on exercise of broadcasting
rights
International
• Art 9(2) Berne - introduced at Stockholm Revision
Conference 1967
• “It shall be a matter for legislation in the countries
of the Union to permit the reproduction of such
works in certain special cases, provided that such
reproduction does not conflict with a normal
exploitation of the work and does not
unreasonably prejudice the legitimate interests of
the author.”
• Known as three step test
International
• Extended via TRIPS Art 13; WCT Art 10 and
WPPT Art 16
• But note: Art 13 TRIPS refers to “the legitimate
interests of the rightholder” and applies this to all
exclusive rights
• WCT & WPPT apply 3 step test for the minimum
rights established by those treaties
3 step test
• For interpretation see Ricketson & Ginsburg; and
also WTO Panel Decision on s. 110(5) US
Copyright Act, 15 June 2000 - ‘homestyle
exception’ - exempts certain small businesses and
‘business exception’
• 1. Certain special cases
– Clearly defined
– Limited in its field of application
3 step test
• 2. Does not conflict with normal exploitation of
work
• Two possible connotations
• i) empirical - ie regular, usual use - factual
– Does the use fall within the range of activities from that
the copyright owner would ordinarily exploit?
• ii) normative - take into account technological
developments - potential uses or modes of
exploitation
3 step test
• WTO Panel: Normal exploitation should be
interpreted as including “in addition to those
forms of exploitation that currently generate
significant or tangible revenue, those forms of
exploitation which, with a certain degree of
likelihood and plausibility, could acquire
considerable economic or practical importance.”
3 step test
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Unreasonable prejudice
Includes both economic and moral interests
‘legitimate’ - normative question
Unreasonable - proportionality
3 step test
• WTO Panel Decision
• Homestyle exception - compliant
– Only exempted small percentage of establishments
– Did not conflict with normal exploitation of work because it
applies only to dramatic musical works
– Any loss of revenue was minimal
• Business exception - not compliant
– Not certain special cases - exempt 65-71% of eating & drinking
establishments
– In conflict with normal exploitation of work - music copyright
holders would normally expect to license the relevant performance
– Rightholders would suffer significant losses of revenue
United States
• Fair use - s. 107 US Copyright Act 1976
• “Notwithstanding the provisions of sections 106
and 106A, the fair use of a copyrighted work,
including such use by reproduction in copies or
phonorecords or by any other means specified by
that section, for purposes such as criticism,
comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or
research, is not an infringement of copyright.”
United States
• “In determining whether the use made of a work in any
particular case is a fair use the factors to be considered
shall include:
– the purpose and character of the use, including whether such use is
of a commercial nature or is for nonprofit educational purposes.
– The nature of the copyrighted work;
– The amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
– The effect of the use upon the potential market for or value of the
copyrighted work.
• The fact that a work is unpublished shall not itself bar a
finding of fair use if such finding is made upon
consideration of all the above factors.”
U.S. Fair use
• Purpose and character of the use
• If there is commercial use is the use presumptively unfair?
• U.S. Supreme Court decisions in Sony v Universal City
Studios 464 U.S. 417 (1984) and Harper & Row v Nation
Enterprise 471 U.S. 539 (1985) suggested yes
• BUT compare Campbell v Acuff Rose 972 F. 2d 1429
[1992] - commercial use does not automatically disqualify
a finding of fair use
• Transformative use theory - see Judge Pierre Leval and
criticisms by Weinreb
U.S. Fair use
• Transformative use
• Campbell v Acuff Rose 972 F. 2d 1429 [1992] - “the more
transformative the new work, the less will be the
significance of other factors”
U.S. Fair use
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Nature of the copyrighted work
Factual/functional vs fictional?
Unpublished nature of the work
Harper & Row v Nation Enterprise 471 U.S. 539 (1985)
Salinger v Random House 811 F 2d 90 (1987) cert denied
484 U.S. 1980 (1988)
• S.107 amended in 1992 add last paragraph on unpublished
works
• E.g. of where fair use for unpublished works is AV, KV,
EN and MN v iParadigms 562 F 3d 630 (2009)
U.S. Fair use
• Amount and substantiality
• Quantity and quality of the taking
• Entire works - Sony v Universal City Studios 464 U.S. 417
(1984)
• Small parts if distinctive - Bridgeport Music v UMG
Recordings 585 F 3d 267 (2009) - lyrics from ‘Atomic
Dog’
• Parody - Campbell v Acuff Rose
• it is the heart of the original work that readily conjures up
the song and it is the heart of the original at which parody
takes aim, therefore “copying does not become excessive
in relation to parodic purpose merely because the portion
taken was the original’s heart”
U.S. Fair use
• Effect on the potential market or the value of the original
• Is this factor the most important?
• Castle Rock Entertainment Inc v Carol Publishing Group
150 F 3d 132 (2nd Cir 1998) - book of Seinfeld trivia;
drew on a single episode quoting 3.6-5.6% of that episode
– The book substitutes for a derivative market that a tv program
copyright owner would in general develop or license others to
develop
• Bridgeport Music v UMG Recordings 585 F 3d 267 (2009)
– Could lose substantial licensing revenues for sampling
U.S. Fair use
• Flexibility
• Ability to deal with parody
• Campbell v Acuff Rose Music; SunTrust Bank v Houghton
Mifflin Co 60 USPQ 2d 1225 (11th Cir, 2001)
• Ability to deal with reverse engineering and decompilation
of software - see Sega Enterprises Ltd v Accolade Inc 977
F. 2d 1510 (9th Cir 1992)
• Compatibility with 3 step test?
EU
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Software Directive 2009/24
Reverse engineering exception - Art 5(3)
Decompilation - Art 6
Error correction; back up copying - Art 5(1)
& (2)
EU
• Database Directive 1996
• Lawful user exception - Art 6(1) - mandatory
• Optional exceptions - Art 6(2)
– reproduction for private purposes of a non-electronic
database
– use for the sole purpose of illustration for teaching or
scientific research, provided the source is indicated and
to the extent justified by the non-commercial purpose
– other exceptions to copyright which are traditionally
authorised under national law
EU Information Society Dir.
• Partial harmonisation created by Art 5
• Mandatory exception - Art 5(1) - transient reproduction
“shall be exempted”
• Optional but exhaustive list - Art 5(2) & (3) - “Member
States may provide for exceptions and limitations”
– Art 5(2) exceptions to reproduction
– Art 5(3) exceptions to reproduction and communication to the
public
– Art 5(4) where provide for R right may provide for exception or
limitation for distribution to the extent justified by the purpose of
the authorised act of R
EU Information Society Dir.
• Art 5(2) - for example:
• Private (tangible) copying provided receive fair
compensations
• Private use for ends that are neither directly nor indirectly
commercial on condition that fair compensation is received
• Specific acts of reproduction made by publicly accessible
libraries, educational establishments or museums or by
archives which are not for direct or indirect economic or
commercial advantage
EU Information Society Dir.
• Art 5(3) - for example:
• Use for the sole purpose of illustration for teaching or
scientific research, as long as the source, including
author’s name, is indicated (unless impossible) and to the
extent justified by the non-commercial purpose
• Reproduction by the press of published articles
• Quotations for purposes such as criticism or review,
provided they relate to a work that has already been
lawfully made available to the public, include source and
in accordance with fair practice
• Use for the purpose of caricature, parody or pastiche
EU Information Society Dir.
• Art 5(5) - 3 step test:
• Provides that “the exceptions and limitations provided
for…shall only be applied in certain special cases which do
not conflict with a normal exploitation of the work or other
subject matter and do not unreasonably prejudice the
legitimate interests of the rightholder”
• Does it apply when legislature crafting exceptions?
• Does it need to be introduced as a stand alone in
legislation?
• Does it apply when courts interpret the exceptions? If so
does it necessitate a strict interpretation?
Transient copying
• Art 5.1 of ISD
• Mandatory exception for temporary acts of reproduction
• Acts of reproduction must be:
– transient or incidental
– integral and essential part of a technological process;
– the sole purpose of the process being to enable:
• network transmissions between third parties via an
intermediary
• or lawful use
– acts must not have independent economic significance
– covers browsing, acts of caching - local & proxy - recital 33
Transient copying
• Was Art 5(1) needed? Why not restrict the concept of
reproduction?
• Eg see Netherlands where Art 5(1) was transposed as a
carve out of the reproduction right - acts of short lived
copying that are by products of a technical communication
process are not acts of R
Infopaq
• Art 2 - protection conferred must be given a broad
interpretation
• Art 5(1) conditions are cumulative; must be
interpreted strictly since a derogation from a right
& Art 5(5)
• But what about rec 31 ? “fair balance of rights and
interests between…the different categories of
rightholders and users of protected subject matter
Infopaq
• Infopaq argued that copies are transient because they are
deleted at the end of the electronic search process
• “Legal certainty for rightholders…requires that the storage
and deletion of reproduction not be dependent on
discretionary human intervention, particularly by the user
of protected works”
• supported by rec 33 (refers to browsing & caching) - “such
acts are, by definition, created and deleted automatically
and without human intervention”
Infopaq
“an act can be held to be ‘transient’…only if its duration is
limited to what is necessary for the proper completion of
the technological process in question, it being understood
that that process must be automated so that it deletes the
act automatically without human intervention, once its
function of enabling the completion of such a process has
come to an end.” [64]
Cannot be ruled out that creation of digital files are transient
if they are deleted automatically from computer memory
Not sure about storing of 11 word extract
Infopaq prints out files containing the extracts of 11 words this is not a transient act
C-403/08 & 429/08 FAPL v QC
Leisure
• Art 5(1) - applied
• Must be interpreted strictly because a derogation from Art
2
• But interpretation of the conditions must enable the
effectiveness of the exception
• “that exception must allow and ensure the development
and operation of new technologies and safeguard a fair
balance between the rights and interests of right holders on
the one hand, and of users of protected works who wish to
avail themselves of those new technologies on the other”
[164]
C-403/08 & 429/08 FAPL v QC
Leisure
• Acts satisfy the first three conditions - they are temporary,
transient and form an integral part of a technological
process carried out by means of a satellite decoder and tv
set in order to enable the broadcasts transmitted to be
received. [165]
• Is the sole purpose to enable lawful use to be made of the
work? YES to enable mere reception of broadcasts to be
received (in private circles)
• Independent economic significance? NO
C-403/08 & 429/08 FAPL v QC
Leisure
• Making access to the works possible has an economic value
• “However, if…Art 5(1)…is not to be rendered redundant, that
significance must also be independent in the sense that it goes beyond
the economic advantage derived from mere reception of a broadcast
containing protected works…” [175]
• “the temporary acts of reproduction, carried out within the memory of
the satellite decoder and on the tv screen, form an inseparable and nonautonomous part of the process of reception of the broadcasts
transmitted…performed without influence or even awareness on the
part of the persons thereby having access to the protected works” [176]
• “Consequently, those temporary acts of reproduction are not capable of
generating an additional economic advantage” [177]
Transient copying
• Infopaq II Case-302/10 17 Jan 2012
• Were the acts an integral and essential part of a
technological process - yes - nothing to suggest that the
process must not involve any human intervention such
manual activation of the process [manual insertion of
articles to be scanned]
• Whether sole purpose is to enable lawful use of protected
work? Yes to enable more efficient drafting of summaries
of newspaper articles
• Do the acts have independent economic significance? NO
Must not have economic advantage separable from the
economic advantage derived from lawful use of the work.
No economic gain from temporary reproductions
themselves
Private copying
• Padawan SL v Sociedad General de Autores y Editores de
España (SGAE) Case C-467/08, 21.10.10 (3rd chamber)
• CJEU ruling concerning Art 5(2)(b) of Directive
2001/29/EC, which provides:
• Members states may provide for exceptions or limitations
to the reproduction right: “in respect of reproductions on
any medium made by a natural person for private use and
for ends that are neither directly nor indirectly commercial,
on condition that the rightholders receive fair
compensation which takes account of the application or
non-application of technological measures referred to in
Article 6 to the work or subject matter concerned.”
Private copying
• Padawan SL - markets CD-Rs, CD-RWs, DVD-Rs &
MP3 players
• SGAE - collecting society which claimed payment of
private copying levy provided for in Art 25 of the Law of
Intellectual Property (CTLIP)
• Several questions referred concerning the interpretation of
‘fair compensation’, especially in relation to digital
reproduction equipment, devices and media
Private copying
• Qu 1 - fair compensation - autonomous EU concept
requiring uniform interpretation in those Member States
that have introduced a private copying exception
• Qu 2 - Art 5(2)(b) - must be interpreted as meaning that the
‘fair balance’ between rightholders and users must be
calculated on the basis of harm caused to authors by the
private copying exception
• It is consistent with a ‘fair balance’ that levies are payable
by those provide digital copying equipment, devices and
media and not individual private users
– Providers of equipment are a factual precondition to copying
– Those liable to pay can pass on levy via price charged for equipment, so
that the burden of the levy will ultimately be born by the private user
Private copying
• Qus 3 & 4 - there must be a ‘necessary link’ between the
application of the private copying levy to the digital
reproduction equipment, devices and media and their use
for private copying
– Therefore, indiscriminate application of the private copying levy
does not comply with Art 5(2)(b); but note that where equipment is
made available to natural persons for private purposes it is
unnecessary to show that they have in fact made private copies
with the use of the equipment
• Qu 5 - it is for the national court, in light of the ruling, to
determine whether the national provision is compatible
with Directive 2001/29, Art 5(2)(b)
Private copying
• C-457/11 to C-460/11 VG Wort and Others
• Do reproductions effected by means of printers fall within
Art 5(2)(a)?
• Can the requirements of fair compensation, having regard
to fundamental right of equal treated under Art 20 Charter
be fulfilled also where the appropriate reward must be paid
not by manufacturers, importers and traders of printers but
by the manufacturers, importers and traders of another
device of a chain of devices capable of making the relevant
reproduction?
Does the possibility of applying TPS abrogate the
condition of fair compensation?
Private copying
• C-521/11 Vienna v Austro Mechana
• Does a legislative scheme provide ‘fair compensation’
where persons have a right of equitable remuneration
exercisable only through a collecting society against
person who, acting on a commercial basis and for
remuneration, are first to place on the domestic market
recording media capable of reproducing the works of
rightholders?
– Irrespective of to whom media are marketed, or the person rexports
the media has a right to obtain reimbursement?
Private copying
• C-521/11 Vienna v Austro Mechana
• Does a scheme provide fair compensation when it applies
only to recording media marketed to natural persons who
use the media to make reproductions for private purposes?
Must private use be proven?
• What about if half of the funds received distributed to
social and cultural institutions?
• Does Art 5(2)(b) preclude the right of fair compensation if
in another Member State equitable remuneration for
putting the media on the market has already been paid?
Exceptions & TPMs
• Vexed issue of extent to which TPMs may override
exceptions
• Different models have evolved to reconcile this tension,
e.g.
– DMCA - certain specific exceptions; administrative rule making
procedure
– Information Society Directive 2001/29/EC (ISD) - Art 6(4) unique legislative mechanism that places the onus on rightholders,
with threat of state intervention
• What do these models tell us about how we value
exceptions?
Exceptions & Contract
• Vexed issue of extent to which contract may override
exceptions; has attracted less (legislative) attention
• For computer programs & databases, legislature has
identified those exceptions which may not be overridden
by contract
– Lawful user exceptions - Art 6(1), 8(1) Database Directive
96/9/EC
– Reverse engineering, decompilation, right to make back up copies
of computer programs - Art 9(1) Software Directive 91/250/EEC,
now 2009/24
• See rec. 45 InfoSoc Dir “The exceptions and limitations
referred to Art 5(2), (3) and (4) should not, however,
prevent the definition of contractual relations designed to
ensure fair compensation for the rightholders insofar as
permitted by national law”
Exceptions & Contract
• What about copyright works more generally?
• Unique legislative mechanism of Art 6(4) Information
Society Directive does not apply where there are on-line
contracts
– see sub para 4 of Art 6(4) & recital 53 ISD
• What does these provisions tells us about how exceptions
are valued?
Modernising exceptions
• Art 10 WCT; Art 16 WPPT
• Contracting parties may provide for exceptions &
limitations in respect of rights granted under WCT &
WPPT
• Intention is to allow Contracting parties “to carry forward
and appropriately extend into the digital environment
limitations and exceptions in their national laws which
have been considered acceptable under the Berne
Convention” (Agreed Statements)
• But to what extent have exceptions been modernised in
national laws?