Saturday, March 29, 2008

Fordham IP: Copyright Exceptions and Limitations

A. Copyright Law Exceptions and Limitations

The development agenda issues, library proposals, fair use, de minimus use, the role of the three-step test, new legislative developments


Prof. Justin Hughes, Benjamin N. Cardozo School of

Some argue that in a heightened-enforcement environment, it is more important—people have a right—to know what uses of copyrighted materials are allowed. Another key issue: whether exceptions and limitations should be harmonized. WIPO perceives this as a possible treaty subject.


Tamir Afori, Deputy State Attorney, Civil Dept., State Attorney’s Office, Ministry of Justice

Israel "Fair use" in Israel's new Copyright Act

Israel's copyright law has a new "fair use" clause. The legislative process sought and produced a compromise between certainty and flexibility. Generally based on the English tradition, giving a broad and flexible interpretation to terms like “work.” The previous act had a fair dealing section, with a closed list of purposes, and though it was interpreted broadly there were significant uncovered areas, particularly relating to libraries. Now: without prejudice to moral rights, fair use exists for the economic rights. Article 19: fair use of a work is permitted for purposes such as private study, research, criticism, review, journalistic reporting, quotation, or instruction and examination by an educational institution. “Such as” was a compromise—instead of “inter alia.” In determining fair use, courts may consider the prupose and character of the use; the character of the work used; the scope of the use, quantitatively and qualitatively, in relation to the work as a whole; and the impact of the use on the value of the work and its potential market.

Prof. P. Bernt Hugenholtz, Director, Institute for Information Law, University of Amsterdam

Conceiving an International Instrument on Limitations and Exceptions to Copyright

His institution has a report about conceptualizing an international instrument, rather than proposing substantive norms. Why do it? Promoting access to knowledge, eliminating barriers to trade (attractive even to people who don’t want lots of exceptions to exist), protecting creativity, producing legal certainty, protecting developing nations against bilateral agreements that keep ratcheting up copyright standards.

Where is the wriggle room in the international standards? Don’t focus too narrowly on what’s already in the international acquis in terms of exceptions, but also on the minimum rights, which are rarely precisely defined. Many of the terms (e.g., public; reproduction) allow national discretion and therefore also international discretion to interpret them. E.g., Austrian rule allowing cable retransmission.

Possible sources: WIPO or WTO; the latter would be connected with enforcement. But WIPO has advantages, including the connection with the development agenda.

Hon. Marybeth Peters, Register of Copyrights, U.S. Copyright Office, Wash. D.C.

The Section 108 report was posted today. In order for the Library of Congress to archive successfully, it needed to address copyright issues. The issue: have changes in technology meant that copyright owners are getting far more than they should be? A group of rightsowners, librarians, archivists, and museum representatives (including my late colleague Bob Oakley, who is much missed) tackled the issues.

They were able to reach consensus on some legislative changes, but not on others. The report also discusses important issues to libraries and copyright owners that don’t fall within 108.

A lot of the report focuses on what libraries can do for other libraries; for unpublished works, there’s a preservation right, but for published works, it’s more difficult.


First: add museums to 108; they’re similar to libraries in mission.

Second: Implement a distinction between undisseminated and unpublished works. If a work is publicly disseminated, treat it more like published.

Third: Eligibility requirements for institutions claiming 108 privileges: should require trained staff, public service mission, and lawfully acquired materials.

Fourth: Outsourcing of permitted activities should be allowed, subject to a number of limitations on profit and keeping copies.

Fifth: Allow a “limited number” of preservation copies—getting into the digital age, instead of a limit of 3, allow the number reasonably necessary to create and maintain a single (persistent) copy.

Sixth: Capture and reproduce publicly available online content, if not subject to a password or other gateway. To be viewable onsite. Remote access after a specific time—not recommended in the study. Opt-out available for nongovernment and nonpolitical sites. Even without opt-out, copyright owner could opt out of remote access. All captured material is to be properly labeled and marked “for private study.”

Prof. Pamela Samuelson, University of California, Berkeley (up to 12)

Rules vs. Standards in Crafting Copyright Exceptions and Limitations

The well-known advantages of rules include their greater predictability and precision, while standards are more flexible and adaptable over time. The copyright exceptions and limitations (L&E) of many nations tend to be rule-like, while U.S. copyright exceptions and limitations are mixed, with fair use serving as the preeminent flexible standard which often bemoaned as too unpredictable. This talk will consider how copyright L&E rules might be made more flexible and copyright L&E standards might be made more rule-like so that copyright can adapt more readily to new challenges without losing predictability.

There’s no doctrine in copyright as much loved and as much reviled as fair use, because of its unpredictability and flexibility. There have been a number of suggestions for fixing this. Some are procedural—adjudication outside of courts—others substantive, proposing quantitative limits or guidelines as with the documentary filmmakers. Samuelson’s response: fair use is being made to do too much work. Sometimes it’s about quotation, sometimes reverse engineering software, sometimes time-shifting, sometimes search engines, sometimes comparative advertising. When you try to do that much work, you’ll end up with incoherent and unpredictable law.

She proposes to break things up more. Free speech-promoting uses.

Authorship-promoting fair uses should include private copying, incidental use, mashups, etc.

Access to information-promoting fair uses are indexing, linking, thumbnails, snippets.

Innovation-promoting fair uses: Reverse engineering, interoperability, fixing bugs.

Other social policy-promoting fair uses: Education, learning, copying for adjudication (the Supreme Court put the entirety of the lyrics to Pretty Woman in the US Reports; that’s got to be fair use).

Personal uses in private spheres.

Market-failure-curing fair uses. Wendy Gordon has recently written an article identifying 6 different types of market failures; she says everything is!

Within each cluster, identify canonical fair and unfair uses, which help improve analysis. Some factors are relevant only in some clusters: chilling effects are more important in free speech cases than in some of the other clusters.

We can’t imagine all possible new uses of copyrighted works. We need more flexibility, so Europe should move towards a more flexible system, whether through adaptive rulemaking or allowing analogous uses to those on a list.


Mihály Ficsor, Director, Center for Information Technology and Intellectual Property (CITP), Budapest

Mandatory exceptions would fit badly into the present structure, which reflects minimum obligations and national treatment as its cornerstones. There are some mandatory exceptions in Berne, etc.: facts, ideas. (Comment: Don’t these two arguments conflict?) Even as far as quotation is concerned, he’s not sure it’s mandatory, even though quotation is specifically mentioned.

Prof. Jane Ginsburg, Columbia Law School

What Samuelson described makes a lot of sense: figure out the normative basis for each type of fair use. But when you get to seven categories, that’s a lot of work—less is more, by which she means not fewer exceptions but fewer standards.

She disagrees with Ficsor on mandatory exceptions. Her theory: there are Berne maxima as well as minima—Berne says copyright protects expression, not ideas, procedures, mathematical concepts, etc. Article 10 also says it shall be permissible to quote works lawfully made available to the public, providing the quote is compatible with fair practice: either that’s mandatory or extremely hortatory.

She would start with those two sections and try to work out principles stemming from those, rather than Samuelson’s seven.

Tilman Lüder, Head of Unit, Copyright and Knowledge-based Economy, DG Internal Market and Services, Brussels

There are 25 optional and 1 mandatory exceptions in EU law. He’s sympathetic to the idea of grouping them and making them mandatory, at least within the EU, as a testing ground. There are knowledge economy exceptions which promote inclusiveness and which should be mandatory and goods and services using them should be freely available in the common market. Archiving (libraries and museums, preserving common heritage); exceptions for disabled; possibly also exceptions for teaching and research.

Free speech exceptions: quotation, criticism, and review are also important safety valves. Those are his two big headings, and those are the ones that should be considered as potentially mandatory requirements in the EU.

Q from Canadian: People seem to take American fair use as a model as a paradigm for being open-ended v. fair dealing. How many countries have open-ended fair use?

A: Singapore, Austl., Phillippines are considering it; Israel and the US.

Ginsburg: One reform approach in the US literature is to have the Copyright Office or an administrative agency make rulings. How does that work?

A (from a Copyright Board guy from Canada): We don’t make fair use/dealing determinations, but we take arguments into account when setting tariffs—whether copying is legitimate when we’re setting the compensation. And sometimes we deny an orphan works application when we determine that no license is needed because it’s fair—but if we’re wrong, the person can be sued.

Comment: Canada basically created an open-ended approach by interpreting “research” so broadly it goes beyond US law.

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