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Copyright exceptions

Introduction


A copyright exception is a statutory rule that allows users to perform certain acts that would normally be restricted, without the authorisation of the rightholder. The acts covered by exceptions may be described as ‘islands of freedom’ in the ocean of monopoly.

Art. 5 of the Infosoc Directive contains a list of exceptions that can be adopted in national laws of the EU Member States. This article does not apply directly in national laws (i.e. it does not grant any rights to users), but is rather intended to limit the freedom of national legislators by prohibiting them from adopting exceptions that would go beyond that list (see Recital 32 of the InfoSoc Directive). In other words: exceptions transposed in national laws can be narrower (or they can not be transposed at all), but they cannot be broader than in the Directive. This does not apply to the temporary reproduction exception, which is the only mandatory exception in the Directive and as such has to be adopted by every Member State ‘as-is’. In general, every other exception is transposed in a much narrower way than allowed by the Directive.

 


Exceptions and contracts


In most jurisdictions, copyright exceptions are overridable by contracts, i.e. a contractual clause (e.g. in a license) can restrict the uses allowed by a copyright exception. Therefore, if you access content on a contractual basis (which is often the case on the Internet, where in order to access the content of a service, the user usually has to accept the Terms of Service), make sure that the contract does not preclude the applicability of copyright exceptions. Many public licenses (like Creative Commons) contain a clause that expressly does NOT limit the benefits of copyright exceptions.

This may not apply in every jurisdiction. In jurisdictions like Belgium or Portugal, copyright exceptions may not be overridable by contracts (i.e. a contractual clause that limits the uses allowed under an exception is void).

Note: The following paragraphs will discuss those exceptions that are important from the point of view of language resources. It will focus mostly on the limits laid down by the InfoSoc Directive, but some national implementations will also be briefly mentioned. For detailed information about the exact scope of each exception in your jurisdiction (which is indispensable if you want to rely on an exception), contact a lawyer specialised in your local law.    

Note: The exceptions described below do not apply to software. The Software Directive contains a different list of exceptions which are described in a relevant section below [see Copyright and Software].

 

Temporary acts of reproduction

According to art. 5.1 of the InfoSoc Directive, temporary acts of reproduction which are an essential part of a technological process and whose sole purpose is to enable transmission of a work in a network or other lawful use of the work shall be exempted from the reproduction right.

This is the only ‘mandatory’ exception in the Directive and therefore it can be found in national law of every EU Member State.

This exception allows such activities as browsing and caching, which necessarily include reproductions. In order to enter within the scope of the exception, a reproduction has to be necessary for the completion of and inseparable from the technical process of which it is part. It has to be deleted automatically after a certain period of time. Cache copies made while browsing the Internet meet these requirements (CJEU C-360/13, Meltwater).

 

Quotation

Quotation is probably the most important copyright exception. Art. 5.3 (d) allows Member States to adopt exceptions for ‘quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author's name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose’. Quotation has therefore to be justified by its purpose (which may include research and teaching). In some jurisdictions, only excerpts of works can be quoted (e.g. in France), while others allow whole works to be quoted as long as it’s justified by the purpose (e.g. in Germany). Some jurisdictions may require that the citation is included in an independent work (both France and Germany, but e.g. not Slovakia), which means that a mere compilation of citations, without any original contribution, is not allowed. The CJEU ruled (C-145/10, Painer), however, that the Directive does not require the citing work to meet the criteria for copyright protection. Member States are thus allowed to abandon this requirement (which is what Slovakia did recently), but are not obliged to do so.

 

Teaching and research exception

According to art. 5.3 (a) of the InfoSoc Directive, Member States are allowed to provide for an exception from both the reproduction right and the communication to the public right for ‘use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author's name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved’. Minimum requirements include therefore: attribution and use for a non-commercial purpose. It is indeed difficult to define where to draw a line before a commercial and a non-commercial activity, especially in case of applied research. ‘Commercial’ should be interpreted as ‘intended towards direct or indirect economic advantage’.

Unfortunately, the national implementations of this exception vary greatly between Member States. While the UK provides for a relatively large research exception (s. 29 CDPA), its German implementation is narrower (s. 52a and 53(2) UrhG), and the French one is extremely narrow. Some countries may even not have it at all (e.g. Spain).

Member States may only allow excerpts of works to be used within the scope of this exception, or require that an equitable remuneration be paid for those uses to a collecting society.

 

Private copy

Art. 5.2 (b) allows Member States to adopt exceptions from the reproduction right ‘in respect of reproductions on any medium made (…) for private use and for ends that are neither directly nor indirectly commercial’. This exception allows for ‘private copies’  of works to be made for personal purposes, but does not allow to share these copies with a public. The CJEU requires that the copy be made from a lawful source (C-435/12, ACI Adam) -- i.e. an illegally downloaded movie (that someone uploaded without authorisation of the right holder) cannot be exempted under this exception. Some jurisdictions may allow private copies to be made for work-related purposes (i.e. when a researcher makes a copy of a newspaper article that is interesting from the point of view of his research) as long as no communication to the public is involved.