The boundaries of copyright

Westlaw UK Delivery SummaryRequest made by: IPUSERCP3395681957IPUSERCP3395681957Request made on: Saturday, 19 July, 2008 at 03:02 BSTClient ID: kclkkxj4157Title: The boundaries of copyright: its properlimitations and exceptions: internationalconventions and treatiesDelivery selection: Current DocumentNumber of documents delivered: 1© 2008 Sweet & Maxwell LimitedIntellectual Property Quarterly1999The boundaries of copyright:its proper limitations and exceptions:international conventions and treatiesSam RicketsonSubject: Intellectual property. Other related subjects: International lawKeywords: Copyright; International law*I.P.Q.56 1.INTRODUCTIONThe purpose of this paper is to sketch the international framework against which the topic of exceptions and limitations to copyright protection falls to be considered. As will be seen, this framework is far from precise or complete in the prescriptions which it contains. Furthermore, matters of fundamental principle are more frequently hinted at, or left as a matter for implication, rather than contained in clear and unambiguous statements. This is particularly so when one comes to consider the limitations and exceptions which can be made to protection. Nonetheless, the international framework sets the broad parameters within which policy makers and legislators at the national level must work; while other policies and purposes will be relevant, no nation can depart lightly, and without some attempt at principled justification, from the obligations they have assumed under international instruments relating to the protection of authors' rights.2.SCOPE OF THE PAPERIn the discussion which follows, I have focused on the following international conventions and agreements, both existing and proposed:• the Berne Convention for the Protection of Literary and Artistic Works 1886, as amended up to the Paris Act 1971;• the Agreement relating to Trade-Related Intellectual Property Rights 1995 (the “ TRIPs Agreement” ); • the W.I.P.O. Copyright Treaty, Geneva, 1996.*I.P.Q.57 The membership of the first two is now so extensive that it covers virtually all nation states in the developed, developing and former socialist bloc categories; the third, while not yet in force, is the focus of present policy making at the national level in most of these countries. An omission from the above list is the Universal Copyright Convention 1952, as amended in Paris 1971. This has been done on the (possibly) arbitrary assumption that this Convention no longer remains of direct relevance in light of the wide coverage of the Berne Convention and TRIPs Agreement.3.SOME GENERAL CONSIDERATIONS1Although there are markedly different philosophical and policy attitudes that underlie national copyright laws, almost all laws are familiar with the concepts of “ exclusive rights” , “ compulsory licences” and “free uses” . Historically, authors' rights have been defined as exclusive rights, meaning rights to exclude third parties from the use covered by the right in question. Thus, if third parties wish to use protected material, they must seek the permission of the owner, make such payment as is required, and use the work in accordance with any conditions laid down by the owner. In civil law countries, this exclusive formulation of rights would seem to have some natural law backing, in the sense that the legal prescriptions in such systems can be seen as giving effect to rights already existing in nature, with the logical consequence that these rights should therefore be of perpetual duration and universal in character. While this is not, in fact, the case under any existing national law, it seems true to say that, under such an approach, the author is viewed as the subject or focus of rights, which should therefore be framed in as absolute a manner as possible. Exceptions or limitations to these rights should accordingly only be made in unusual or extraordinary circumstances, with the onus being upon those seeking the exception or limitation to establish their case in the clearest and most unambiguous way. In common law systems, however, authors' rights have usually been viewed in a more instrumentalist fashion, as a means of advancing and achieving certain desired and desirable social and economicgoals. As a consequence, the grant of exclusive rights is more usually viewed as a device for achieving ulterior goals, such as the advancement of learning, the progress of science, and wider economic and social development. This approach was apparent in the preamble to the first modern British copyright law (the Statute of Anne 1709):“ An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.”Likewise, in the United States, the Congress was empowered under the Constitution “ to promote the progress of science and the useful arts, by securing for limited times *I.P.Q.58 to authors and inventors the exclusive right to their respective writings and discoveries” .2Under instrumentalist approaches of this kind, exceptions or limitations to protection are more readily justified, in that interests other than those of individual creators are given a more equal weighing with those of authors. In other words, the laws of these countries are predicated as involving a balancing of competing interests, a process which has been described by Professor Goldstein as a “ calculus” of both private and public benefit.3 Indeed, the balancing of interests seems to be unavoidable under any copyright law, even those in which the exclusive rights of authors are apparently given a more central place. The following reasons can be advanced for this:1. The continuing impact of technological development, which makes the administration and enforcement of exclusive rights more difficult, perhaps even impossible, and makes the recognition of lesser rights to remuneration, or even free use, more acceptable. In economists' terms, transaction costs become over-whelming, and individual right owners are incapable of identifying and negotiating with those who are using their material. Hence, collective solutions and/or compulsory licences appear to be the most acceptable way of resolving this problem, on the basis that “ half a loaf of bread is better than none at all” . However, the balance sheet is not entirely one-sided in this regard, as technological advances can also bring great benefits to authors, both in the shape of new modes of exploitation and in the reduction of transaction costs that is sometimes made possible by the use of new communications and computer technologies.2. The fact that there are some uses and applications of copyright works which are truly de minimis or incidental in character, and can lead to no measurable detriment to the interests (economic and non-economic) of authors. For copyright laws to insist upon “ capturing” the fruits of such uses would add unacceptably to transaction costs, and might lead ultimately to a reduction in creative activity.3. The fact that some other uses and applications of copyright works have always been regarded as possessing a social or cultural significance to which the interests of authors should be deferred. As will be seen below, even the Berne Convention has long acknowledged the existence of such claims in the areas of education and reporting of news. More recently, the claims of developing countries have been accepted as justifying the curtailment of authors' exclusive rights in particular circumstances. Others are clearly possible.In all national copyright systems, it will be clear that the notion of exclusive rights is under considerable pressure. Questions of principle and practicality become readily mixed, as one tries to determine how rights should be reformulated or modified, and there can be no doubt that the emphasis of particular countries will differ according to *I.P.Q.59 whether they fall within what may be crudely described as “ authors' rights” regimes or instrumentalist regimes. Yet under both approaches (and any falling in between), it will become necessary, at some point, to accept limitations or abridgments of exclusive rights, either in the form of some kind of compulsory licensing system or free use provision. In this regard, “ compulsory licence” refers to any mechanism under which third parties can have access to copyright material upon payment of a stipulated fee or royalty. The net effect of such schemes is that the right is question loses its exclusive character, and becomes limited to a right to remuneration, with the owner no longer having the untrammelled right to control the identity of those using her work or the conditions under which this occurs (these might be termed “ limitations” to copyright). “ Free use” , on the other hand, can be simply explained as any provision which provides for unauthorised use by third parties without payment, although it may be subject to other conditions such as precise quantitative restrictions, careful limitations as to purpose, requirements of sufficient acknowledgment, and so on (such uses could be described as “ exceptions” to copyright, rather than limitations). When does one move along the spectrum from “ exclusive right” at one end through “ remuneration right” to “ free use”at the other? Economic considerations suggest certain guidelines that can be taken as a starting point: 1. No exclusive right, however precious, will be worth maintaining unless it is capable of being administered or enforced. In economic terms, this will occur when it becomes difficult to recover some at least of the externalities or free rider effects created by the use, or when the costs of transactingpermissions outstrip the fees that the user is prepared to pay.2. In the event that these circumstances arise, collective administration may then represent a viable alternative, although inevitably this involves a diminution of the exclusive right in question as the individual's interest is absorbed into that of the collective.3. Transmutation of the exclusive right into a right to remuneration represents an attempt to approximate what would otherwise be freely negotiated by the rights owner (whether individually or collectively) and the user. In economic terms, this means that there must be some kind of market breakdown or market failure before compulsory licensing should be adopted.4There must exist externalities which arise from the use in question, or transaction or other costs, which the parties cannot deal with in their bargaining, even collectively. It is only in these circumstances that regulated solutions should be adopted, and, even then it is always an uncertain enterprise to attempt simulated market solutions. Furthermore, such solutions should not be set in concrete, as circumstances can change rapidly, for example, with the introduction of new technologies which can now reduce transaction and information seeking costs in ways unthought of even a short time ago.*I.P.Q.60 4. Free use provisions should only arise where the benefit of allowing the use in question outweighs the losses to the right owner and where transaction costs would otherwise prevent a negotiated licence. By way of illustration, Professor Goldstein gives the example of the use of a short extract of a work for the purposes of a review in a newspaper or magazine. This has some value to the copyright owner as well as to the public, and it is likely that the use would not occur if the newspaper or magazine had to sustain the necessary transaction costs required to obtain permission. Accordingly, so long as the value of the proposed use outweighs the value of any alternative use that is foreclosed, it is sensible to allow this as a free use.5Economic considerations cannot be applied exclusively in determining the matters referred to above; at the same time, they provide a useful starting point for analysis. It then remains to add in the other values or interests of a more public kind that should be included in the calculus, for example, educational and literacy concerns, religious and social requirements, the needs of economic and cultural development, and so on. These will all be matters on which individuals and nations will have differing views, but ultimately both private and public benefit will need to be weighed in the balance in determining where the dividing lines between exclusive rights, compulsory licences and free use respectively should be drawn. It must be acknowledged, from the outset, that these matters are only incompletely addressed in the international instruments that provide the present framework for national laws, and some of the gaps have been filled in by the use of commonsense constructions and the technique of implication. Moreover, very recent developments have seen a move towards greater coherence in approach, involving the articulation of broad criteria rather than the continued accumulation of specific exceptions and limitations. It remains to be seen, however, whether these developments will really meet the challenges now posed by converging technologies and digital networks.4.THE INTERNATIONAL FRAMEWORK--GENERAL PRINCIPLESAt both the national and international levels, it has become the practice in recent years to begin with broad statements as to the objectives sought to be achieved by the particular instrument under consideration. In my own country, Australia, this has almost become something of an art form, as successive amendments to legislation will commence with a useful list of objectives or reasons for the adoption of the particular measure, followed by a mass of detailed provisions which often make it easy to lose sight of those objectives.6 In the European Union, an obvious parallel is to be found in *I.P.Q.61 the weighty list of “ whereas” statements which appear in the preambles to Directives and which may often exceed in length the specific provisions of the Directive.7International agreements in the area of copyright have tended to be more economical in this regard, but general statements of reasons and objectives in a preamble or the like can nonetheless be of considerable assistance in interpreting and applying the specific obligations contained in such agreements.8 In the case of the Berne Convention, this is a matter of elegant simplicity: the preamble states that this is a Convention which has been “ animated by the desire [on the part of countries of the Union] to protect, in as effective and uniform a manner as possible, the rights of authors in their literary and artistic works” . Nothing more is said, and there is no reference to any other competing principle or concern. At the time of its formation (in 1884-1886), this is understandable enough, given that the Berne Convention was the culmination of a long series of efforts to bring about a multilateral arrangement for the protection of authors' rights that would replace the previous piecemeal and incomplete network of bilateral agreements.9 At the same time, it is worth noting that, even at this time, and within the civil law countries which constituted the vast majority of original Berne signatories, it was recognised that therewas a need for there to be some restrictions or limitations upon the exercise of authors' rights in particular situations. These matters were raised in several of the sessions of the 1884-1886 Diplomatic Conferences that had preceded the formation of the Convention, where concerns over translation rights and the need for more general exceptions or limitations for particular purposes such as teaching, instruction and news reporting was raised by a number of delegates.10 In addition, Numa Droz, the distinguished Swiss official who presided over the first diplomatic conference in 1884, reminded delegates in his closing speech that “limitations on absolute protection are dictated, rightly in my opinion, by the public interest” .11 He went on to state that:“ The ever-growing need for mass instruction could never be met if there were reservation of certain reproduction facilities, which at the same time should not generate into abuses. These were the various viewpoints and interests that we have sought to reconcile in the draft Convention ”12In consequence, it was accepted, even from the outset, that there was a need for the new Convention to strike a balance between authors' rights and the competing public *I.P.Q.62 interests of education, news reporting and the like. As will be seen below, from its original version and through its subsequent revisions, the Berne Convention has come to contain a number of express and implied exceptions to, and limitations on, the exclusive rights of authors, although it is, perhaps, difficult to enunciate any coherent principle or criteria on which these exceptions or limitations are based.By contrast, the W.I.P.O. Copyright Treaty adopted in 1996 is more explicit about such matters. While its preamble begins by reiterating the desire of members to “ develop and maintain the protection of the rights of their authors in their literary or artistic works in a manner as effective and uniform as possible” , it goes on to state that members also recognise (among a list of other things, including the need to adopt to the changing technological environment):“ the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention, ”Likewise, in the TRIPs Agreement, while emphasising the need to reduce distortions and impediments to international trade, the preamble states the need for Contracting States to recognise, among other things:“ that intellectual property rights are private rights;[and]the underlying public policy objectives of national systems for the protection of intellectual property, including developmental and technological objectives;” .Both these later instruments, therefore, acknowledge directly the need for there to be limits to protection and this obviously takes us to the central concern of this paper, namely what latitude is allowed by the present international framework governing the protection of authors' rights to take account of these other interests? To what extent may authors' rights be made subject to exceptions and limitations?5.THE PRESCRIPTIONS OF THE BERNE CONVENTION13This is obviously the starting point. While the number of exceptions and limitations provided under the Berne Convention is relatively small, directly or indirectly they can be justified by reference to the kind of criteria discussed above. For purposes of analysis, they can be categorised as follows:*I.P.Q.63 1. Provisions excluding protection altogether in the case of particular categories of works. 2. Provisions (both express and implied) permitting free use for particular kinds of purposes or in particular circumstances.3. Provisions permitting certain uses subject to payment of remuneration to the copyright owner (compulsory or obligatory licences).These are examined in more detail below.Provisions excluding protection altogether in the case of particular categories of works These provisions apply to those limited categories of works where claims of authorship and exclusivity might be thought to be secondary to the predominant public purpose that such works serve. For this reason, official texts of a legislative, administrative and legal nature, and official translations of these texts may be denied protection under national laws: Article 2(4). In the same way, protection is denied to “news of the day”and “miscellaneous facts having the character of mere items of pressinformation” : Article 2(8). Finally, Member States are free to determine for themselves the copyright status of political speeches and speeches delivered in the course of legal proceedings: Article 2bis (1). In the first and third of these exceptions, the Convention is permissive: countries may provide for the exclusion of protection if they wish, but not all do so by any means.14 In the second case, however, the exception appears to be mandatory, although its correct interpretation is probably more restricted than might at first appear. Thus, it does not withhold protection from the writings of journalists and reporters, but only with respect to the facts or items of news which they recount. Viewed in this way, it is no more than a restatement of the basic proposition that copyright does not extend to the protection of ideas and information per se, which has now been expressly adopted as Article 2 of the W.I.P.O. Copyright Treaty 1996. As such, Article 2(8) of Berne is probably unnecessary, but it serves to underline this basic principle of copyright law. Although this interpretation is arguable, it seems to find support in the various background papers of the various revision conferences of the Berne Convention, most recently at the time of the Stockholm Revision Conference.15At the same time, such an exclusion can be readily supported by reference to the public interest in the free flow of information.*I.P.Q.64Provisions permitting free use for particular kinds of purposes or inparticular circumstancesThere are a number of provisions which are of interest here. The first three are of a fairly specific character; the fourth is more general in its scope. In addition, underpinning these are a number of implied limitations which may be taken advantage of by Member States, as well as an exception relating to cinematographic work and certain other restrictions (express and implied) relating to matters of public order and restrictive trade practices.Rights of quotationQuotation of short passages of works has generally been seen in national laws as a permissible use. In the example given above by Professor Goldstein, such usages are usually of advantage to the copyright owner (in bringing knowledge of the work to a wider public), the loss to the copyright owner is minimal in the sense that no alternative use of the work is thereby foreclosed, and the transaction costs involved in obtaining permission would usually lead to no use occurring if permission were required. In addition, other obvious public benefits from allowing free rights of quotation can be readily postulated, including the promotion of critical discussion, the free circulation of ideas, and the general enhancement of scientific and intellectual discourse. Article 10(1) of the Convention contains reasonably generous boundaries within which such usage may occur, providing that it is permissible to make quotations from a work which has been “ lawfully made available to the public so long as their making is compatible with fair practice and their extent does not exceed that justified by the purpose ” . This provision has only been in the Convention since the Brussels Revision of 1948 and its present form dates from the Stockholm Revision of 1967. However, there has been some provision for the making of quotations in the Convention from the outset, although there was continuing debate about the scope of such an exception.16As noted above, the scope of the present Article 10(1) is generous:1. It is not limited to “ published works” , but extends to works “ lawfully made available to the public” . The latter phrase is wide enough to include works which have been disseminated by means of public performance or broadcasting, although neither forms of dissemination would fall within the scope of publication under Article 3(3). It would also apply to works which have been made available pursuant to some kind of compulsory licence provision (another question, of course, would be whether the making of copies under such a provision would itself be within the parameters of the Convention, as to which see below).*I.P.Q.65 2. Although the act of “ quotation” usually arises in the context of reproduction rights, there is nothing in Article 10(1) to indicate that it is so limited. Accordingly, it extends to quotations made in the course of non-material disseminations of a work, such as public performance, recitation or broadcasting.3. No limitation is placed on the amount which may be taken: this is left as a matter to be determined in each case, subject to the general criteria of purpose and fair practice. In some instances, for example, quite lengthy quotations may be justified in order to ensure that it is presented properly, as in the case of critical review or work of scholarship. In others, quotation of the whole work may be justified, as in the example given by Professor Nordemann of a commentary on the history of twentieth century art where representative pictures of particular schools of art would be required by way of illustration.174. It applies generally to “ works” , not simply to one or more categories such as literary works.5. The making of the quotation must be “compatible with fair practice” . Little guidance as to the meaning of this expression is to be found in the discussions at the Stockholm Conference,18 and it is clear that what is “fair practice”may depend upon the particular case. However, it also seems reasonable to suppose that the criteria referred to in Article 9(2) (discussed below) are equally applicable here, namely that the quotation will be “ fair” if it does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. As noted below, in certain circumstances this may permit the imposition of compulsory licences.6. No guidance is provided as to the kinds of purpose that are relevant to satisfy the requirement that the quotation must “ not exceed that justified by the purpose” . No list of suitable purposes was included at the time of the Stockholm Revision because of the difficulties of making such a list exhaustive. However, it seems clear from the preparatory work for the Revision and from the discussions in Main Committee I of that Conference that quotation for “scientific, critical, informatory or educational purposes”are within the scope of the Article19; use for judicial, political (perhaps satirical?) and entertainment purposes have also been suggested as appropriate,20as has quotation for “artistic effect” .21 Article 10(1) also makes reference to one particular kind of quotation, namely quotation from newspaper articles and periodicals in the form of press summaries. This reference is difficult to understand, as the making of a summary is not the same thing as the making of a quotation, and this appears to be a remnant of a provision of an earlier text of the Convention.22*I.P.Q.66 7. Any quotation that occurs in accordance with Article 10(1) requires explicit protection of the author's right of attribution: mention must be made of the source and the name of the author, if it appears on the work.23 No explicit mention is made of integrity rights, but it would hardly be consistent with “ fair practice” if an author were quoted out of context, inaccurately or the extract was edited in some inappropriate way.Use for teaching purposesEducational use of copyright material is clearly one of those uses where a strong public interest can be placed in the balance against the private interests of the copyright owner. Nonetheless, the scale of such usage can clearly have profound effects on the owner's pecuniary and non-pecuniary interests, particularly where the work in question has been written with an educational purpose and audience in mind. In such cases, it can be forcefully argued that the copyright owner should not have to subsidise educational activities, however worthy the latter may be. Educational use of copyright material has therefore been a highly contentious issue in most countries. This has also been the case with the Berne Convention, Article 10(2) of which deals with particular kinds of usage which can be made for “ teaching purposes” . This provision leaves it to national law, or to any special agreements existing, or to be concluded, between Union members, to permit:“ the utilisation, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided that such utilisation is compatible with fair practice” .The origins of this provision are to be found in the original 1886 text of the Convention,24 but the range and magnitude of permitted uses25 is now considerably wider. Thus, it extends beyond utilisations in printed form ("?ublications”) to broadcasts and sound and visual recordings. There is also no necessary quantitative limitation on the amount that may be utilised, as was the case with earlier versions of the provision which referred to “ portions” and “ extracts” . Thus, the provision is more open-ended, and might include the use of the whole of a work in appropriate circumstances, subject to the conditions that this be only to the extent that this is necessary “ by way of illustration for teaching”and is “ compatible with fair practice” . Thus, in the case of works such as pictures or short poems, the use of the whole might be justified, but this would clearly not be so in the case of longer works. The word “ illustration” is clearly of vital significance here, and it would be difficult to argue in the case of longer works *I.P.Q.67that the use of the whole could be justified “by way of illustration for teaching purposes” .26 In this regard, it should also be noted that “ teaching” is to be interpreted in a restrictive fashion, and does not extend to instruction outside the normal primary, secondary and tertiary sectors. That is, it would not include uses in adult education and other public educational activities.27Finally, while Article 10(2) contains no limit on the number of copies that may be made in the case of publications and sound or visual recordings, the making of such multiple copies, even if justified by teaching purposes, will need to be compatible with “ fair practice” . As in Article 10(1), the concept of “ fair practice” is not defined, but it seems reasonable to apply the criteria referred to in Article 9(2), namely that it does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. In certain circumstances, this might extend to justifying。