YEARBOOK 2015 / III2015 aippi world congress – rio de janeiro october 10, 2015 - october 14, 2015...

ASSOCIATION INTERNATIONALEPOUR LA PROTECTIONDE LA PROPRIETE INTELLECTUELLE

INTERNATIONAL ASSOCIATIONFOR THE PROTECTIONOF INTELLECTUAL PROPERTY

INTERNATIONALE VEREINIGUNGFÜR DEN SCHUTZ DESGEISTIGEN EIGENTUMS

YEARBOOK 2015 / III

2015 AIPPI WORLD CONGRESS – RIO DE JANEIRO OCTOBER 10, 2015 - OCTOBER 14, 2015

Q246: EXCEPTIONS AND LIMITATIONS TO COPYRIGHT PROTECTION FOR LIBRARIES, ARCHIVES AND EDUCATIONAL AND RESEARCH INSTITUTIONS

WORKING GUIDELINES, GROUP REPORTS,SUMMARY REPORTS, RESOLUTIONS

The reports and the summaries from the National and Regional Groups are normally reproducedwithout alteration in content, style and spelling.

Dans le cas normal, les rapports et les résumés des Groupes nationaux et régionaux sont publiéssans corrections du contenu, du style et de l’orthographie.

Die Berichte und Zusammenfassungen der Landes- und Regionalgruppen werden im Normalfallohne Korrekturen von Inhalt, Stil und Orthographie wiedergegeben.

AIPPI General Secretariat

© AIPPI, Zurich 2016

Edited in the name of AIPPI by the AIPPI General Secretariat, Zurich (Switzerland)

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2015 AIPPI WORLD CONGRESS – RIO DE JANEIRO OCTOBER 10, 2015 - OCTOBER 14, 2015

THE QUESTIONS ON THE AGENDA

WORKING GUIDELINESGROUP REPORTS

SUMMARY REPORTSRESOLUTIONS

LES QUESTIONS A L’ORDRE DU JOUR

ORIENTATIONS DE TRAVAILRAPPORTS DES GROUPESRAPPORTS DE SYNTHESE

RESOLUTIONS

DIE FRAGEN DER TAGESORDNUNG

ARBEITSRICHTLINIENBERICHTE DER LANDESGRUPPENZUSAMMENFASSENDE BERICHTE

ENTSCHLIESSUNGEN

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I.

THE QUESTIONS ON THE AGENDA

LES QUESTIONS A L’ORDRE DU JOUR

DIE FRAGEN DER TAGESORDNUNG

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The Questions on the Agenda

Q244 Inventorship of Multinational Inventions

Q245 Taking unfair advantage of trademarks: parasitism and free riding

Q246 Exceptions and limitations to copyright protection for libraries, archives and educational and research institutions

Q247 Trade secrets: overlap with restraint of trade, aspects of enforcement

Les Questions à l’ordre du jour

Q244 La qualité d’inventeur pour les inventions multinationales

Q245 Tirerindûmentprofitdesmarques:parasitismeet«free-riding»

Q246 Exceptions et limites de la protection du droit d’auteur pour les bibliothèques et archives et pour les instituts de recherche et d’enseignement

Q247 Secrets d’affaires: interaction avec les restrictions au commerce, aspects de mise en oeuvre

Die Fragen der Tagesordnung

Q244 ErfinderschaftanmultinationalenErfindungen

Q245 Unlauteres Ausnutzen von Marken: Schmarotzerei und Trittbrettfahrerei

Q246 Ausnahmen und Beschränkungen des Urheberrechtsschutzes für Bibliotheken und Archive sowiefürBildungs-undForschungseinrichtungen

Q247 Betriebsgeheimnisse: Schnittstelle zu Handelsbeschränkungen, Aspekte der Durchsetzung

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II.

QUESTION Q246

EXCEPTIONS AND LIMITATIONS TO COPYRIGHT PROTECTION FOR LIBRARIES, ARCHIVES AND EDUCATIONAL AND RESEARCH INSTITUTIONS

QUESTION Q246

EXCEPTIONS ET LIMITES DE LA PROTECTION DU DROIT D’AUTEUR POUR LES BIBLIOTHÈQUES ET ARCHIVES ET POUR LES INSTITUTS DE RECHERCHE ET D’ENSEIGNEMENT

FRAGE Q246

AUSNAHMEN UND BESCHRÄNKUNGEN DES URHEBERRECHTSSCHUTZES FÜR BIBLIOTHEKEN UND ARCHIVE SOWIE FÜR BILDUNGS- UND FORSCHUNGSEINRICHTUNGEN

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Working Guidelines

by Sarah MATHESON, Reporter GeneralJohn OSHA and Anne Marie VERSCHUUR, Deputy Reporters General

Yusuke INUI, Ari LAAKKONEN and Ralph NACKAssistants to the Reporter General

Question Q246

Exceptions and limitations to copyright protection for libraries, archives and educational and research institutions

Introduction

1) This Working Question concerns the issue of what, if any, exceptions and limitations to copyright protection should be recognized for the benefit of libraries, archives and educational and research institutions.

2) Copyright law grants to the copyright owner certain exclusive rights to use the copyrighted work in certain ways, e.g. reproduction, distribution, performance, display and making available online. A person who uses a copyrighted work in such way without the authorization of the copyright owner will generally be liable for copyright infringement, and may be subject to an injunction or payment of damages.

3) However, in certain circumstances, a person may use a copyrighted work without the copyright owner’s authorization and without being liable for infringement, either because the law provides for an exception to copyright protection or because the copyright protection is limited in some way.

4) Article 9(2) of the Berne Convention of 1886, which provides for the protection of literary and artistic works, also provides for exceptions to the right of reproduction. This is commonly referred to as the “Three-Step Test”. Article 9(2) states:

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.

5) According to the Three-Step Test, reproduction of a copyrighted work is permissible:

a. in certain special cases;

b. when the reproduction does not conflict with a normal exploitation of the work; and

c. when the reproduction does not unreasonably prejudice the legitimate interests of the author.

6) The Three-Step Test is also found in Article 10 of the WIPO Copyright Treaty of 1996 (WCT), which expands the test to all rights granted to authors of literary and artistic works.

Scope of this Working Question

7) This Working Question focuses on exceptions and limitations that are for the benefit of libraries, archives and educational and research institutions. Other possible exceptions and limitations to copyright protection (such as exceptions and limitations for private/personal

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use, exceptions and limitations for visually impaired persons and persons with disabilities, exceptions and limitations for religious or cultural use, and exceptions and limitations for orphan works) are outside the scope of this Working Question, unless they relate to libraries, archives and educational and research institutions.

8) While limited to exceptions and limitations to copyright protection, neighbouring rights and moral rights recognized under copyright law are included within the scope of this Working Question.

9) Instances in which a person may use a copyrighted work without the authorization of the copyright owner, but where remuneration is payable for such use, is also within the scope of this Working Question.

Previous work of AIPPI

10) AIPPI has previously studied exceptions and limitations to copyright protection.

11) Q216A – “Exceptions to copyright protection and the permitted uses of copyrighted works in the hi-tech and digital sectors” (Paris, 2010) focused on exceptions and limitations to copyright protection in the context of the digital environment.

12) The Resolution on Q216A confirmed that effective and enforceable copyright protection should be safeguarded in the digital environment, and that the Three-Step Test should apply to exceptions and limitations to copyright in such environment. Further, Q216A studied the specific issues of liability of internet service providers (ISPs), format shifting, and orphan works. With respect to orphan works, AIPPI resolved that a diligent inquiry so as to ascertain the relevant right holder’s identity should be required, that the right holder should be guaranteed a fair remuneration for the use of the work and retain the option to re-claim the work for his further exclusive exploitation, and that the user’s continued bona fide reproduction and use of the copyrighted work should be reasonably protected.

13) The following year, AIPPI studied Q216B – “Exceptions to copyright protection and the permitted uses of copyrighted works in the hi-tech and digital sectors” (Hyderabad, 2011), focusing on the exceptions and limitations to copyright protection in general, and certain issues that were not resolved in the Resolution on Q216A.

14) The Resolution on Q216B confirmed that, in respect of exceptions and limitations to copyright protection, in general, national laws should be harmonized relying on the Three-Step Test. Q216B also studied issues relating to user generated content (UGC) providers, hyperlinks, search engines, transient or temporary copies and private copying.

15) While AIPPI confirmed in the Resolution on Q216B that the Three-Step Test should apply to exceptions and limitations to copyright protection in general, how to implement the test in each specific circumstance was left to future studies. Neither Q216A nor Q216B studied the issue of exceptions and limitations to copyright protection for libraries, archives and educational and research institutions.

International treaties

16) As mentioned above, Article 9(2) of the Berne Convention established the Three-Step Test as an exception to the right of reproduction in general. It does not, however, specifically reference libraries, archives or educational or research institutions.

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17) Article 10(2) of the Berne Convention deals with utilization of literary or artistic works for teaching:

It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, 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 such utilization is compatible with fair practice.

18) The Rome Convention of 1961, which provides for the protection of performers, producers of phonograms and broadcasting organizations, deals with this issue to some extent. Article 15(1)(d) of the Rome Convention deals with use for the purposes of teaching and scientific research:

Any Contracting State may, in its domestic laws and regulations, provide for exceptions to the protection guaranteed by this Convention as regards:...(d) use solely for the purposes of teaching or scientific research.

19) The Bangui Agreement of 1977, relating to the creation of an African Intellectual Property Organization, deals with the use for teaching in Article 13 of Annex VII:

Notwithstanding the provisions of Article 9, it shall be permitted, without the consent of the author and without payment of remuneration, but subject to the requirement of stating the source and the name of the author if such name is given in the source,

…

(ii) to reproduce, by reprographic means for teaching, or for examinations within teaching establishments whose activities are not directly or indirectly profit-making, and to the extent justified by the intended purpose, lawfully published individual articles from a newspaper or periodical, and short extracts from a lawfully published work.

Article 14 of Annex VII deals with the reproduction by libraries and archives:

Notwithstanding the provisions of Article 9, a library or archive service whose activities are not directly or indirectly profit-making may, without the consent of the author or other holder of copyright, make individual copies of a work by means of reprographic reproduction,

20) The preamble of the WCT mentions that there is a need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information. However, the WCT does not have a provision that specifically deals with the issue of exceptions and limitations for education or research.

21) Article 5(2)(c) of the EC Directive 2001/29/EC1 deals with a number of institutions specifically:

Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases:

...

(c) in respect of 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;

1. Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights and the information society.

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22) So does the EU Directive 2012/28/EU2, which according to Article 1(1) concerns:

…

certain uses made of orphan works by publicly accessible libraries, educational establishments and museums, as well as by archives, film or audio heritage institutions and public-service broadcasting organisations, established in the Member States, in order to achieve aims related to their public-interest missions.

23) In each instance cited above, the issue of whether to create exceptions and limitations to copyright protection to national legislation is left to the relevant member states.

Work of WIPO

24) The WIPO Tunis Model Law on Copyright for Developing Countries of 1976 includes an exception for a number of institutions in Section 7 (v):

Notwithstanding Section 4, the following uses of protected work, either in the original language or in translation, are permissible without the author’s consent:

…

(v) the reproduction by photographic or similar process, by public libraries or non-commercial documentation centers, scientific institutions and educational establishments of literary, artistic or scientific works which have already been lawfully made available to the public, provided that such reproduction and the number of copies are limited to the needs of their activities, do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author;

25) The WIPO Standing Committee on Copyright and Related Works (SCCR) has been working on the issue of exceptions and limitations to copyright protection, including those for the benefit of libraries, archives and educational and research institutions. Various studies on this issue have been conducted and reported to the WIPO SCCR.

26) In 2010, WIPO sent a questionnaire to the member states and the EU, asking for an explanation of the position in each jurisdiction in relation to exceptions and limitations to copyright protection. The answers were compiled in a consolidated paper entitled “Updated Report on the Questionnaire on Limitations” (SCCR/21/7). This report provides useful insights regarding the issues to be studied in this Working Question.

Discussion

27) There are various circumstances under which exceptions and limitations to copyright protection raise issues in relation to libraries, archives, and educational and research institutions.

28) Libraries and archives. One instance in which libraries might wish to make use of copyrighted works is when there is a need to reproduce a work for the purpose of preservation or replacement. A copyrighted work in physical form (such as paper books and tapes) may deteriorate, be damaged or lost, or the format of the copyrighted work might become obsolete with the passage of time. Therefore, it may become necessary to create a new copy of the work for the purpose of converting the work into a format that is more amenable to preservation (such as digital format).

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29) Libraries may also wish to reproduce a copyrighted work in the context of interlibrary lending. If a library wishes to add a book to its collection but that book is out of print or only available at a very high price, the library might wish to obtain a copy from another library that already has the book in its collection. In such a case, in order for the second library to retain the book in its collection, it would be necessary for the second library to create a copy of the book and provide that copy to the first library.

30) Further, the activity of lending books may involve reproduction of copyrighted works. Traditionally, libraries lent physical copies of copyrighted works to users, thereby temporarily losing possession of such physical copies. However, if libraries can create further hard copies or digital copies to lend to users, damage to or loss of works could be avoided. It may also be more convenient for users because more than one user can borrow the same work at the same time.

31) The above discussion has focused mostly on libraries. However, there are other organizations that serve archival purposes, such as museums and educational institutions. Thus, if exceptions and limitations to copyright protection for the above purposes are to be recognized, another issue is what other organizations should also be entitled to the benefit of such exceptions and limitations.

32) Educational and research institutions. With respect to educational and research institutions, one instance in which educational institutions may wish to make use of copyright materials is when performing or displaying a copyrighted work for educational purposes. For example, a school teacher may sing a song, play music or read literature to students. Students may make presentations or perform school plays, where audiences could be from inside or outside the school. In these instances, a right of (public) performance and display may be an issue.

33) Another instance is reproduction and distribution of copyrighted works for educational purposes. Course packs, compilations and anthologies created in the course of educational activities may reproduce various existing copyrighted works. Further, examinations given by schools may use copyrighted works.

34) A further instance is translation of copyrighted works for educational purposes. Material in another language may need to be translated into the native language of the students to be used in teaching.

35) Educational activities increasingly involve the use of information technology. Schools use communication networks. Course packs and submissions from students are often uploaded on servers and communicated via the Internet. Some educational institutions provide distance education, also through communication networks. These may give rise to issues with the right of reproduction, the right of distribution and the right to make material available online.

36) Further, there could be an issue as to whether all educational institutions should be entitled to the exceptions and limitations mentioned above, or whether only certain institutions (e.g. non-profit institutions) should be so entitled.

37) The above discussion focuses mostly on education, but similar issues may arise in the context of research. Research papers often include extracts from existing copyrighted works, and such papers may be further reproduced and uploaded on servers to be made available to the public. Whether these activities may be conducted without the copyright owner’s authorization is another issue.

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38) Article 5(3)(a) of the EC Directive 2001/29/EC deals with some but not all of these issues, providing that:

Member States may provide for exceptions or limitations to the rights provided for in Articles 2 [reproduction] and 3 [communication / making available to the public] in the following cases:

(a) 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 be impossible and to the extent justified by the non-commercial purpose to be achieved;

39) Other conditions. Assuming that one or more of the exceptions or limitations to copyright protection for the above purposes should be recognized, the next issue is under what conditions such exceptions and limitations should apply.

40) One issue is the manner and scope of activities that may be permitted under any exceptions and limitations. For example, even if one is entitled to reproduce copyrighted work, a limit may be imposed on the number of copies that may be created. In some cases, it might be sufficient to make an extract of a work, rather than reproducing the entire work.

41) Further, in the case of performance for educational purpose mentioned above, there may be an issue as to who may make such performances, e.g. teachers, students.

42) Another issue is possible preconditions of such exceptions or limitations. For example, if a library is permitted to engage in activities mentioned above, that might be limited to circumstances in which the library owns at least one original (physical or digital) copy of the book, and not just a copy of an original, or has at least lawfully obtained a copy of the original. A further precondition might be that the work is a published work, thereby excluding for example, unpublished manuscripts.

43) Also, it may be the case that only certain types of copyrighted works may be used under any relevant exceptions and limitations, e.g. only computer software.

44) Another issue is whether use of copyrighted works under any exceptions and limitations should be permitted automatically, or whether any procedure (such as court proceedings) should be necessary in order to use the copyrighted works.

45) Another issue is remuneration. While certain activities may be conducted without the authorization of the copyright owner, should the copyright owner have a right to receive a fair price? Would this ensure that the copyright owner would not be unreasonably prejudiced by such activities? If such remuneration is payable, there will be additional issues of how the amount should be determined or calculated, and what the mechanism for the payment should be.

46) Additional issues: In addition to the above points, there may be an issue when the work to be used is an orphan work. While orphan works were dealt with to some extent in Q216A (Paris, 2010), given the prevalence of orphan works, this Working Question re-visits this issue in the context of libraries, archives and educational and research institutions.

47) Further, this Working Question considers whether exceptions and limitations provided in the law (statute or otherwise) can or should be overridden by contract, where the parties have decided to adopt a scheme different from what is provided in the law.

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48) Finally, this Working Question also explores the possibility of resolving the issue of use of copyrighted works by libraries, archives and educational and research institutions, not through individual legal means, but through efforts of private sectors. For example, there may be private collective licensing organizations that grant licenses to educational institutions and libraries. This question examines whether such private sector efforts may in some circumstances provide better outcomes than a strictly legal approach.

You are invited to submit a Report addressing the questions below. Please refer to the ‘Protocol for the preparation of Reports’.

Questions

I. Current law and practice

1) Does your law provide for exceptions or limitations to copyright protection for libraries and archives? If so, please provide details of such exceptions or limitations, including in relation to the following activities:

a. reproduction and/or distribution for the purpose of preservation or replacement;

b. reproduction and/or distribution for the purpose of interlibrary lending;

c. reproduction and/or distribution for the purpose of providing copies (either in a physical or a digital form) to users of libraries or archives; or

d. any other activities, and if so, what activities?

2) Do any of these exceptions or limitations apply to libraries, archives or other organizations (e.g. museums) generally, or only to certain organizations (e.g. public and/or commercial libraries and archives)? If so, which organizations?

3) Are there any conditions as to the type or scope of any permitted activities (e.g. number of copies that may be created, whether only a portion of a work may be used, whether certain forms of reproduction (e.g. digital reproduction) are excluded)? If so, please explain the conditions.

4) Are there any conditions as to the type of copyrighted work that may be used (e.g. lawfully created copies, copies existing in the library’s or archive’s collection, published works)? If so, please explain the conditions.

5) Does your law provide for exceptions or limitations to copyright protection for education and research institutions? If so, please provide details of such exceptions or limitations, including in relation to the following activities:

a. performance and/or display for educational purposes;

b. reproduction and/or distribution for educational purposes (e.g. preparation of course packs, compilations or anthologies, exams);

c. making translations;

d. making available in digital networks for educational purposes (e.g. uploading course packs onto on-line platforms, compilations or anthologies, providing distance education);

e. reproduction and/or distribution for research purposes; or

f. any other activities, and if so, what activities?

6) Do any of these exceptions or limitations apply to educational and research institutions generally (e.g. non-profit institutions), or only to certain institutions? If so, which institutions?

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7) Are there any conditions as to the type or scope of the activities and the persons who may engage in such activities (e.g. number of copies that may be created, whether only a portion of a work may be used, whether both a teacher’s and student’s performance is covered, or only one or the other)? If so, please explain the conditions.

8) Are there any conditions as to the type of copyrighted work that may be used (e.g. only lawfully created copies, only certain kinds of copyrighted works)? If so, please explain the conditions.

For the questions below, please provide an answer for each exception or limitation mentioned above.

9) Is there any statutory provision that specifically provides for such exception or limitation? Is it alternatively or additionally recognized in case law? If neither, does your jurisdiction have a more general or broad exception or limitation that is interpreted as covering such specific exception or limitation?

10) Does your law adopt the Three-Step Test (or equivalent wording) in relation to such exception or limitation?

11) Is use under the exception or limitation permitted automatically (without any further action), or must certain criteria be fulfilled/procedure(s) followed (e.g. seeking a compulsory licence)? If it is the latter, please explain the criteria/procedure(s).

12) Is remuneration payable for use under such exception or limitation? If so, how is the amount of remuneration determined or calculated? Who is liable for making such payment, and to whom must such payment be made?

13) Is there any special treatment for orphan works for use within such exception or limitation? If so, please explain.

14) Does the law of your jurisdiction allow the exception or limitation to be overridden by contract?

15) Other than what is provided in the law of your jurisdiction, are there any efforts by private organizations (such as a private licensing organizations) to address use by libraries, archives and educational and research institutions? If so, please explain those efforts.

II. Policy considerations and proposals for improvements of the current law

16) Should there be any exceptions or limitations to copyright protection for libraries and archives? If yes, in relation to what activities? If no, why not?

17) Should there be any exceptions or limitations to copyright protection for education and research institutions? If yes, in relation to what activities? If no, why not?

18) Is the Three-Step Test a useful test for determining any exceptions or limitations to copyright protection? Why/why not?

19) Should the exception or limitation be capable of being overridden by contract? Why/why not?

20) Should remuneration be payable for any of the activities described in 16) and 17) above? Why/why not?

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21) How can your current law as it applies to exceptions and limitations to copyright protection for libraries, archives and educational and research institutions be improved?

III. Proposals for harmonisation

22) Is harmonisation in this area desirable?

If yes, please respond to the following questions without regard to your national or regional laws.

Even if no, please address the following questions to the extent you consider your national or regional laws could be improved.

23) If your answer to question 16) or 17) is no, should this be explicitly set out in any international treaty/convention?

24) If yes to question 16):

a. to what libraries, archives and other organizations should these exceptions or limitations apply;

b. to what activities should these exceptions or limitations apply;

c. under what conditions should the activities be undertaken or the copyrighted work used?


a. to what educational and research institutions should these exceptions or limitations apply;

b. to what activities should these exceptions or limitations apply;

c. under what conditions should the activities be undertaken or the copyrighted work be used?

For the questions below, please provide an answer for each exception or limitation mentioned above (as applicable).

26) Should use under the exception or limitation be permitted automatically (without any further action), or should certain criteria or procedure(s) be required? If so, what criteria/procedure(s)?

27) How should any remuneration for use that falls under such exception or limitation be determined or calculated? Who should be liable for making such payment, and to whom should such payment be made?

28) What special treatment, if any, should there be for use of orphan works within such exception or limitation?

29) In what circumstances should the exception or limitation be capable of being overridden by contract?

30) How should any efforts by private organisations to address use by libraries, archives and educational and research institutions, be reconciled with any exception or limitation provided by law?

Please comment on any additional issues concerning the multinational inventions you consider relevant to this Working Question.

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I.)I.)

1)1)

a)

b)

ArgentinaArgentina

Report Q246Report Q246

in the name of the Argentina Groupby Juan Gregorio POZZO

Grace period for patentsGrace period for patents

QuestionsQuestions

The Groups are invited to answer the following questions under their national laws.

Current law and practiceCurrent law and practice

DoesDoes youryour lawlaw provideprovide forfor exceptionsexceptions oror limitationslimitations toto copyrightcopyright protectionprotection forfor librarieslibrariesand archives?and archives?

no

The Argentine Intellectual Property Act No. 11.723, (approved on 1933), contains only spe-cific exceptions or limitations to copyright:a. RightRight ofof CitationCitation (Òdroit de courte citation)Ó, it means the possibility to use certain parts

of a third partyÕs work with an absolute maximum length of thousand words (for liter-ary works) or eight bars (for musical compositions). In these cases, it must be taken intoaccount the extension of the original work and the didactical, scientific and illustrative(explanative) purposes. In all cases, only the necessary parts of the text can be used forthat purpose.

b. GeneralGeneral InterestInterest InformationInformation: News of general interest may be used (including Politicaladdresses and conferences) transmitted or retransmitted but the source (of the originalversion) shall be mentioned (articles27 and 28, Law No. 11.723 and the Berne Conven-tion, article 2.8, Act of Paris 1971).

c. UsesUses forfor EducationalEducational PurposesPurposes: ItÕs allowed the representation, execution, and recitationof literary and artistic (published) works in public and free performances organized byeducational institutions.

d. PublicPublic ExecutionExecution byby certaincertain NationalNational GovernmentGovernment InstitutionsInstitutions: The right to performmusical works by Orchestras, Choirs, Bands pertaining to the National State, provincesor municipalities.

e. PersonalPersonal ImageImage: Publication of a portrait of a person is allowed and free only if it is[strictly] related with scientific, didactical or cultural purposes, or related with public in-terest facts or with those facts occurred in public scene. This exception shall be interpret-ed in a restrictive way and all publications under it shall be seriously justified, otherwisewould be considered a multiple violation of rights (copyright, right of privacy, right ofhonour, etc).

f. SoftwareSoftware BackupBackup CopiesCopies: The right to backup, in a single copy, a software work dulylicensed for replacement purposes, to be used in case when the original and licensedsupport is broken or lost. That backup copy shall be identified with the licensee nameand the date of original purchase. This exemption is only applicable to software works.

These exceptions and limitations although they can be exercised by libraries, archives, mu-seums, etc, in certain cases, are not particularly aimed to or created for their own purposes.ÒFair UseÓ and ÒPrivate CopyÓ doctrines are not covered by the law and are not applicablein Argentina

reproduction and/or distribution for the purpose of preservation or replacement;

reproduction and/or distribution for the purpose of interlibrary lending;

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c)

d)

2)2)

3)3)

4)4)

5)5)

a)

b)

c)

reproduction and/or distribution for the purpose of providing copies (either in a physi-cal or a digital form) to users of libraries or archives; or

any other activities, and if so, what activities?

DoDo anyany ofof thesethese exceptionsexceptions oror limitationslimitations applyapply toto libraries,libraries, archivesarchives oror otherother organiza-organiza-tionstions (e.g.(e.g. museums)museums) generally,generally, oror onlyonly toto certaincertain organizationsorganizations (e.g.(e.g. publicpublic and/and/oror com-com-mercial libraries and archives)? If so, which organizations?mercial libraries and archives)? If so, which organizations?

No. These exceptions are not specifically aimed to or created for libraries, archives, muse-ums, etc.¥ The General Interest use and Educational Use exceptions are aimed only to journalism

and educational activities.¥ The Right of Citation is not aimed to a particular activity or profession.¥ The exception of Public Execution by certain National Government Institutions is only

aimed to Orchestras, Choirs and Bands of governmental institutions.¥ The Backup Copy is only aimed to software purposes and only one copy is allowed.

AreAre therethere anyany conditionsconditions asas toto thethe typetype oror scopescope ofof anyany permittedpermitted activitiesactivities (e.g.(e.g. numbernumberofof copiescopies thatthat maymay bebe created,created, whetherwhether onlyonly aa portionportion ofof aa workwork maymay bebe used,used, whetherwhethercertaincertain formsforms ofof reproductionreproduction (e.g.(e.g. digitaldigital reproduction)reproduction) areare excluded)?excluded)? IfIf so,so, pleaseplease ex-ex-plain the conditions.plain the conditions.

N/A

AreAre therethere anyany conditionsconditions asas toto thethe typetype ofof copyrightedcopyrighted workwork thatthat maymay bebe usedused (e.g.(e.g. law-law-fullyfully createdcreated copies,copies, copiescopies existingexisting inin thethe library'slibrary's oror archive'sarchive's collection,collection, publishedpublishedworks)? If so, please explain the conditions.works)? If so, please explain the conditions.

N/A

DoesDoes youryour lawlaw provideprovide forfor exceptionsexceptions oror limitationslimitations toto copyrightcopyright protectionprotection forfor educationeducationand research institutions?and research institutions?

no

Limitation of copyright in Uses of Educational Purposes (Educational Use Exception), allowsthe representation, execution, and recitation of literary and artistic (published) works [only] inpublic and free performances organized by educational institutions. This limitation was orig-inally inserted in the law for cases of public performances made by educational institutions,like drama representations by students (theatre), musical performances by the students at theschool, etc.As all above mentioned exceptions shall be restrictively interpreted, the rights of reproduc-tion, distribution and transformation of a work, (whether are digital or physical), even foreducational purposes, shall not be permitted without the consent of the author or owner ofthe work.Regarding the research institutions, Argentinean law does not offer any provision that includethem as educational institutions. In this regard, it shall be interpreted that are not covered bythe Educational Use Exception.

performance and/or display for educational purposes;

reproduction and/or distribution for educational purposes (e.g. preparation of coursepacks, compilations or anthologies, exams);

making translations;

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d)

e)

f)

6)6)

7)7)

8)8)

9)9)

10)10)

making available in digital networks for educational purposes (e.g. uploading coursepacks onto on-line platforms, compilations or anthologies, providing distance educa-tion);

reproduction and/or distribution for research purposes; or


DoDo anyany ofof thesethese exceptionsexceptions oror limitationslimitations applyapply toto educationaleducational andand researchresearch institutionsinstitutionsgenerallygenerally (e.g.(e.g. non-profitnon-profit institutions),institutions), oror onlyonly toto certaincertain institutions?institutions? IfIf so,so, whichwhich institu-institu-tions?tions?

The law does not provide any element which differences between educational and researchinstitutions or different types of them.

AreAre therethere anyany conditionsconditions asas toto thethe typetype oror scopescope ofof thethe activitiesactivities andand thethe personspersons whowhomaymay engageengage inin suchsuch activitiesactivities (e.g.(e.g. numbernumber ofof copiescopies thatthat maymay bebe created,created, whetherwhether onlyonlyaa portionportion ofof aa workwork maymay bebe used,used, whetherwhether bothboth aa teacher'steacher's andand student'sstudent's performanceperformance isiscovered, or only one or the other)? If so, please explain the conditions.covered, or only one or the other)? If so, please explain the conditions.

N/A

AreAre therethere anyany conditionsconditions asas toto thethe typetype ofof copyrightedcopyrighted workwork thatthat maymay bebe usedused (e.g.(e.g. onlyonlylawfullylawfully createdcreated copies,copies, onlyonly certaincertain kindskinds ofof copyrightedcopyrighted works)?works)? IfIf so,so, pleaseplease explainexplainthe conditions.the conditions.

N/A

For the questions below, please provide an answer for each exception or limitation mentionedabove.

IsIs therethere anyany statutorystatutory provisionprovision thatthat specificallyspecifically providesprovides forfor suchsuch exceptionexception oror limitation?limitation?IsIs itit alternativelyalternatively oror additionallyadditionally recognizedrecognized inin casecase law?law? IfIf neither,neither, doesdoes youryour jurisdictionjurisdictionhavehave aa moremore generalgeneral oror broadbroad exceptionexception oror limitationlimitation thatthat isis interpretedinterpreted asas coveringcovering suchsuchspecific exception or limitation?specific exception or limitation?

The Argentine Intellectual Property Act No. 11.723, (approved on 1933), contains specificexceptions or limitations to copyright in the following articles:¥ Article 9 (Software Backup CopiesSoftware Backup Copies)¥ Article 10 (Right of CitationRight of Citation)¥ Articles 27 and 28 (General Interest InformationGeneral Interest Information)¥ Article 31 in fine (Personal ImagePersonal Image)¥ Article 36 (Uses for Educational PurposesUses for Educational Purposes)¥ Article 36 in fine (Public Execution by certain National Government InstitutionsPublic Execution by certain National Government Institutions)None of them are specifically for libraries, research institutions or archives.

DoesDoes youryour lawlaw adoptadopt thethe Three-StepThree-Step TestTest (or(or equivalentequivalent wording)wording) inin relationrelation toto suchsuch ex-ex-ception or limitation?ception or limitation?

The three-Step Test is not incorporated within the Argentinean Law and was not applied bycase law in the country.

23

11)11)

12)12)

13)13)

14)14)

15)15)

II.)II.)

16)16)

IsIs useuse underunder thethe exceptionexception oror limitationlimitation permittedpermitted automaticallyautomatically (without(without anyany furtherfurther ac-ac-tion),tion), oror mustmust certaincertain criteriacriteria bebe fulfilled/fulfilled/procedure(s)procedure(s) followedfollowed (e.g.(e.g. seekingseeking aa compulso-compulso-ry licence)? If it is the latter, please explain the criteria/procedure(s).ry licence)? If it is the latter, please explain the criteria/procedure(s).

All exceptions may be exercised without any procedure. Nevertheless all exceptions shall beinterpreted and exercised in a restrictive way taking into account its own nature (as an ex-ception).

IsIs remunerationremuneration payablepayable forfor useuse underunder suchsuch exceptionexception oror limitation?limitation? IfIf so,so, howhow isis thetheamountamount ofof remunerationremuneration determineddetermined oror calculated?calculated? WhoWho isis liableliable forfor makingmaking suchsuch pay-pay-ment, and to whom must such payment be made?ment, and to whom must such payment be made?

N/A

IsIs therethere anyany specialspecial treatmenttreatment forfor orphanorphan worksworks forfor useuse withinwithin suchsuch exceptionexception oror limita-limita-tion? If so please explain.tion? If so please explain.

No.

DoesDoes thethe lawlaw ofof youryour jurisdictionjurisdiction allowallow thethe exceptionexception oror limitationlimitation toto bebe overriddenoverridden bybycontract?contract?

No.

OtherOther thanthan whatwhat isis providedprovided inin thethe lawlaw ofof youryour jurisdiction,jurisdiction, areare therethere anyany effortsefforts byby pri-pri-vatevate organizationsorganizations (such(such asas aa privateprivate licensinglicensing organizations)organizations) toto addressaddress useuse byby libraries,libraries,archives and educational and research institutions?archives and educational and research institutions?

yes

Yes, for example in Libraries. The Subcommittee on Intellectual Property, Access to Informa-tion and Freedom of Expression of ABGRA (Graduate Librarians Association of Argentina)drafted and submitted in 2010 a Draft Law on exception for libraries which modifies the Law11,723. The aforementioned draft entered the National Congress, but failed to make it tothe Committee of Culture for treatment approval. Until these days there arenÕt law projectsor drafts in this sense.

Policy considerations and proposals for improvements of the current lawPolicy considerations and proposals for improvements of the current law

ShouldShould therethere bebe anyany exceptionsexceptions oror limitationslimitations toto copyrightcopyright protectionprotection forfor librarieslibraries andandarchives?archives?

yes

The ABGRA Subcommittee says that a common case in the academic and university librariesare requests for journal articles by users, distant or foreign libraries. In many cases, librarieshave a single copy of each issue of a journal after payment of expensive subscriptions andscientific research work would be highly difficult if not possible to consult these articles. Inthat cases, it would be advisable that local regulations allow libraries to make copies of thoseissues in order to preserve the work and maintain the constitutional right of access to infor-mation.Another example given by ABGRA, is the collections of digital books saved on CD ROMS.That CD ROMS have a limited life and if backup copies are not made maybe the works con-tained in the CD ROMS should be lost permanently. Another case is when the software usedto read those CD ROMS becomes obsolete by the pass of time, the formatting changes arenecessary to read these works by new versions of software.

24

17)17)

18)18)

19)19)

20)20)

21)21)

All tasks to preserve the works by libraries in these cases are under the actual law, subject topermissions and payments of management societies of collective rights.An specific exception to [at least Public] libraries and archives would be advisable in orderto allow them to preserve and custody the literary, scientific, artistic and cultural assets of thecountry without any interference.

ShouldShould therethere bebe anyany exceptionsexceptions oror limitationslimitations toto copyrightcopyright protectionprotection forfor educationeducation andandresearch institutions?research institutions?

yes

Yes. Limitation of copyright in Uses of Educational Purposes (Educational Use Exception), al-lows the representation, execution, and recitation of literary and artistic (published) works[only] in public and free performances organized by educational institutions. This limitationwas originally inserted in the law for cases of public performances made by educational in-stitutions, like drama representations by students (theatre), musical performances by the stu-dents, all of them within the structure of the school building, etc.As all permitted exceptions shall be restrictively interpreted, the rights of reproduction, distri-bution and transformation of a work, (whether are digital or physical), even for educationalpurposes, shall not be permitted without the consent of the author or owner of the work.In that sense, a broader Educational Use Exception would be advisable in order to permitany student to access to literary, scientific, artistic and cultural works at the educational stage.Regarding the research institutions, Argentinean law does not offer any provision that con-sider them as educational institutions. In this regard, it shall be interpreted that are not cov-ered by the Educational Use Exception. In this regard, it would be advisable to allow publicresearch institutions to have limited exceptions for some copyright law provisions in order tofacilitate it labor and beneficiate the entire society with less costs and better results.

IsIs thethe Three-StepThree-Step TestTest aa usefuluseful testtest forfor determiningdetermining anyany exceptionsexceptions oror limitationslimitations toto copy-copy-right protection?right protection?

yes

It could be an excellent tool in case our country decides to modify the actual legislation andinclude more exceptions and limitations. ( i.e. Libraries, Archives and research institutions).

ShouldShould thethe exceptionexception oror limitationlimitation bebe capablecapable ofof beingbeing overriddenoverridden byby contract?contract? Why?Why?Why not?Why not?

No. The nature of the exception is conceived in cases in which the author or the owner of thework is not aware of the use of any right [nor affected in] by a third party. In that sense, itwould be unreasonable to permit that the exceptions may be overridden by a private docu-ment between parties that are different from the author or owner of the work.

ShouldShould remunerationremuneration bebe payablepayable forfor anyany ofof thethe activitiesactivities describeddescribed inin 16)16) andand 17)17)above? Why? Why not?above? Why? Why not?

N/A

HowHow cancan youryour currentcurrent lawlaw asas itit appliesapplies toto exceptionsexceptions andand limitationslimitations toto copyrightcopyright protec-protec-tion for libraries, archives and educational and research institutions be improved?tion for libraries, archives and educational and research institutions be improved?

N/A . The Argentine Intellectual Property Act No. 11.723, (approved on 1933), containsspecific exceptions or limitations to copyright. None of them are specifically for libraries, re-search institutions or archives.

25

III.)III.)

22)22)

23)23)

24)24)

a)

b)

c)

Proposals for harmonisationProposals for harmonisation

Is harmonisation in this area desirable?Is harmonisation in this area desirable?

yes

Is desirable.

If yes, please respond to the following questions without regard to your national or regional laws.Even if no, please address the following questions to the extent you consider your national or re-gional laws could be improved.

IfIf youryour answeranswer toto questionquestion 16)16) oror 17)17) isis no,no, shouldshould thisthis bebe explicitlyexplicitly setset outout inin anyany interna-interna-tional treaty/convention?tional treaty/convention?

no

N/A

If yes to question 16):If yes to question 16):

to what libraries, archives and other organizations should these exceptions or limita-tions apply;

Public Libraries and Archives.

to what activities should these exceptions or limitations apply;

All necessary activities to preserve the access to scientific, literary, artistic and culturalassets. In this regard, according to ABGRA fundamentals the following activities shouldbe taken into account:¥ Reproduction of material for end users of the library for research or education, ac-

cording to criteria of "fair use" ("fair use"). This doctrine allows limited reproductionof material protected by copyright without the need to request permission from theholders of such right and restricted to educational or review material.

¥ Backup for high-value documents and possible replacement for prevention in hy-pothetical cases of loss, theft or catastrophe.

¥ Backup copies [for temporary moving purposes] of documents, for instance whenthose documents are moved from libraries for an exhibition or fair.

¥ An Access Copy in order to avoid the manipulation of a single original, fragile ordamaged, or which its replacement is impossible and in cases that it should be re-moved from public exhibition for preservation purposes.

¥ Chance of make copies and/or to migrate the works in order to prevent loss ofdata or inability to access documents in the digital environment for format or me-dia obsolescence issues.

¥ Reproduction of sold out works in the publishing market for research purposes orfor educational and cultural activities.

¥ Right of Private Copy, which means the reproduction of a work for strictly personalpurposes, for a non-profit use in the private sphere.

under what conditions should the activities be undertaken or the copyrighted workused?

All activities should be exercised as an exception and strictly focused on the accom-plishment of their own specific purposes of every institution.

26

25)25)

a)

b)

c)

26)26)

27)27)

28)28)

29)29)

30)30)


to what educational and research institutions should these exceptions or limitations ap-ply;

¥ Educational Institutions: Public and Private.¥ Research Institutions: Public only.


All necessary activities to improve the research results and general education. In thisregard, the following activities should be taken into account:¥ Allow educational institutions to access the rights of reproduction, distribution and

transformation of a work for free only in connection with educational activities andwithin the scope of a certain educational non-profit criteria.

¥ Private Copy for students only in connection with educational purposes and withinthe Educational Institution structure.

under what conditions should the activities be undertaken or the copyrighted work beused?

All activities should be exercised as an exception and strictly focused on the accom-plishment of their own specific purposes of every institution.

For the questions below, please provide an answer for each exception or limitation mentionedabove (as applicable).

ShouldShould useuse underunder thethe exceptionexception oror limitationlimitation bebe permittedpermitted automaticallyautomatically (without(without anyanyfurtherfurther action),action), oror shouldshould certaincertain criteriacriteria oror procedure(s)procedure(s) bebe required?required? IfIf so,so, whatwhat criteria/criteria/procedure(s)?procedure(s)?

N/A

HowHow shouldshould anyany remunerationremuneration forfor useuse thatthat fallsfalls underunder suchsuch exceptionexception oror limitationlimitation bebe de-de-terminedtermined oror calculated?calculated? WhoWho shouldshould bebe liableliable forfor makingmaking suchsuch payment,payment, andand toto whomwhomshould such payment be made?should such payment be made?

N/A

WhatWhat specialspecial treatment,treatment, ifif any,any, shouldshould therethere bebe forfor useuse ofof orphanorphan worksworks withinwithin suchsuch ex-ex-ception or limitation?ception or limitation?

N/A

InIn whatwhat circumstancescircumstances shouldshould thethe exceptionexception oror limitationlimitation bebe capablecapable ofof beingbeing overriddenoverriddenby contract?by contract?

N/A

HowHow shouldshould anyany effortsefforts byby privateprivate organisationsorganisations toto addressaddress useuse byby libraries,libraries, archivesarchives andandeducationaleducational andand researchresearch institutions,institutions, bebe reconciledreconciled withwith anyany exceptionexception oror limitationlimitation pro-pro-vided by law?vided by law?

N/A

27

SummarySummary

The Argentine Intellectual Property Act No. 11.723, (approved on 1933), contains only spe-cific exceptions or limitations to copyright (RightRight ofof CitationCitation (Òdroit de courte citation)Ó, Gen-Gen-eraleral InterestInterest InformationInformation, UsesUses forfor EducationalEducational Purposes,Purposes, PublicPublic ExecutionExecution byby certaincertain Na-Na-tionaltional GovernmentGovernment Institutions,Institutions, PersonalPersonal ImageImage andand SoftwareSoftware BackupBackup Copies)Copies) .. These ex-ceptions and limitations although they can be exercised in certain cases by libraries, archives,

museums, etc, are not particularly aimed to or created for their own purposes. ÒFair UseÓ

and ÒPrivate CopyÓ doctrines are not covered by the law and are not applicable in Argenti-

na

PleasePlease commentcomment onon anyany additionaladditional issuesissues concerningconcerning exceptionsexceptions andand limitationslimitations toto copyrightcopyrightprotectionprotection forfor libraries,libraries, archivesarchives andand educationaleducational andand researchresearch institutionsinstitutions youyou considerconsider rele-rele-vant to this Working Question.vant to this Working Question.

28

I.)I.)

1)1)

a)

AustraliaAustralia


in the name of the Australia Groupby Warwick ROTHNIE, Niloufer SELVADURAI and Scott JOBLIN


QuestionsQuestions




yes


yes

A library or archive may reproduce a work held in manuscript form and may reproducean original artistic work for purposes of preservation against loss or deterioration (s51A(1)(a)). "Work" is defined by s 10 to mean a literary, dramatic, musical or artisticwork. "Manuscript" in relation to a literary, dramatic or musical work is defined tomean the document embodying the work Òas initially prepared by the authorÓ, whetherin hardcopy, electronic or any other form. Hence s 51A(1)(a) is limited to original ma-terial, and does not apply to the reproduction of published literary works or commer-cially reproduced artistic works.

Further, a library or archive may make up to three preservation copies of significantworks in key cultural institutions' collections (s 51B). Section 51B(1) applies to worksheld in the collection of a library or archives where the body administering the libraryor archives has, under a law of the Commonwealth or a State or Territory, the functionof developing and maintaining a collection of works which are of Òhistorical or culturalsignificance to AustraliaÓ. As with s 51A, s 51B is limited to original material.

Corresponding exceptions are created in relation to ÒfirstÓ records of sound recordingsand cinematograph films by s 110B and s 110BA and published editions by s 112AA..A library or archive is permitted to reproduce a work held in published form in a librarycollection (s 51A(1)(b) and (c)) for purposes of replacement. If a published literary, dra-matic or musical work has either been damaged or deteriorated (s 51A(1)(b)) or lost orstolen (s 51A(1)(c)), it may be reproduced and communicated for replacement purpos-es. However, prior to any such reproduction and communication, an authorized officerof the library or archive must conduct a Òreasonable investigationÓ to ascertain that anew copy is unavailable commercially within a reasonable time, and make a formaldeclaration as to this finding (s 51A(4)).Similar exceptions are created in relation to ÒfirstÓ records of sound recordings andcinematograph films by s 110B and s 110BA.Additionally, s 51AA permits the National Archives of Australia to reproduce and com-municate works in its care which have been lost, damaged or destroyed without in-fringing copyright. For purposes of s 51AA, "replace" means a reproduction of the workfor the purpose of replacing the lost, damaged or destroyed work.

29

b)

c)


yes

A library may, pursuant to s 50, request another library to supply a reproduction of anarticle, or a part of an article, contained in a periodical publication, or of the whole ora part of a published work. Section 50(2) permits the requisitioned library to then makea reproduction to which the request relates, and supply the reproduction to the request-ing library. Section 50(3) stipulates that such a reproduction will not infringe copyright.Section 50 does not however encompass the reproduction of audiovisual items by onelibrary on behalf of another.If the reproduction is to be made from a hard copy and is for the whole of the work ormore than a reasonable portion, however, an authorised officer of the library makingthe copy must first make a declaration that, after reasonable inquiry, he or she is satis-fied that a copy of the work (not being a second hand copy) cannot be obtained withina reasonable time at an ordinary commercial price. The same requirement applies toworks in electronic form even where the amount to be copied is not more than a rea-sonable portion. In general terms, a Òreasonable portionÓ is 10% of the work or, if it ispublished in chapters, not more than 1 chapter. More specifically, the concept of Òrea-sonable portionÓ is defined in the Act by reference to the nature of the copyright workused. Where the use involves a literary, dramatic or musical work (except a computerprogram), or an adaptation of such a work, that is contained in a published edition ofat least 10 pages, a reasonable portion constitutes 10% of the number of pages in theedition or if the work or adaptation is divided into chapters, a single chapter. Wherethe use involves a published literary work in electronic form (except a computer pro-gram or an electronic compilation, such as a database), a published dramatic work inelectronic form or an adaptation published in electronic form of such a literary or dra-matic work, a reasonable portion constitutes 10% of the number of words in the workor adaptation or if the work or adaptation is divided into chapters, a single chapter.Similar provision is made in respect of sound recordings and cinematograph films by s110B.Distribution for purposes of interlibrary lendingDistribution for purposes of interlibrary lendingThe right to lend copyright material (in the absence of reproduction) is not one of therights conferred by the Copyright Act on copyright proprietors. Hence as lending copy-right material does not in itself infringe copyright, there is no need for the Act to cre-ate exceptions for libraries and archives in relation to this activity. The Copyright Actdoes confer, however, a right to control commercial rental of computer programs andsound recordings (and underlying works to the extent they are included in the record-ing): ss 31(1)(c) & (d), 85(1)(d). A commercial rental arrangement is defined by s 30Aand broadly requires that the arrangement be entered into in the course of carrying onbusiness and provides for the copy to be provided on terms of payment in money ormoneyÕs worth.


yes

A library or archive is permitted to reproduce a literary, dramatic or musical work andcommunicate it to users for purposes of research and study (s 49). An officer in chargeof a library or archive may reproduce and supply such material in response to a specif-ic request by a user or student who wishes to use the material for purposes of research

30

d)

2)2)

or study. The person making the request must provide a declaration that the request-ed material is for the purpose of research or study, and will not be used for any otherpurpose. The terms Òresearch or studyÓ are not defined in the Act.It is relevant to note that the amount to be copied must form a reasonable portion ofthe whole. As noted in 1(b), a Òreasonable portionÓ consists of an entire journal articleor one chapter or 10% of a book of 10 or more pages, or 10% of the words of a workthat is in electronic form. In order to determine that they do not supply more than areasonable portion, the requisitioned library must, before supplying the requested ma-terial, be satisfied that it has not previously communicated a reproduction of the samematerial to the person making the request. However, an exception to the reasonableportion requirement exists where the library is satisfied that a new copy of the workcannot be obtained in a reasonable time at an ordinary commercial price. If the li-brary is satisfied after reasonable investigation that the work cannot be obtained in areasonable time at an ordinary commercial price, the library may reproduce and com-municate more than a reasonable portion of the requisitioned work.The distribution may be in either hardcopy or electronic form. A library may make anelectronic reproduction of the relevant work or part of the work for purpose of supply.Hence the communication can be via email or via posting on a secure site on the insti-tutionÕs website.Finally, s 49 prescribes a highly detailed procedure for the making, receipt and pro-cessing of requests for reproduction and communication, including various declara-tions that need to be made by both the requesting party and the library, and the docu-mentation to be maintained.If the user has requested a copy of material not held in the libraryÕs collection but inanother libraryÕs collection, s 50 provides that the library or archives may request thatother library or archives to supply the copy for the userÕs research or study on similarconditions to those applicable under s 49 including satisfaction about the unavailabilityof new copies within a reasonable time at an ordinary commercial price.Section 110B(2)(B) provides that a library or archives does not infringe copyright ina sound recording or cinematograph film (or the underlying works embodied in therecording or film) if the copy is made from a ÔfirstÕ record by communicating a copy ofit to another library or archives where the second library or archives makes the record-ing or film available via a terminal installed within its premises for research that is be-ing carried on at that library or archives.


yes

Additionally, exceptions to copyright for libraries and archives exist in relation to the ac-tivity of reproducing and communicating works to Parliamentarians, National Archives,and reproduction works of historical and cultural significance in key cultural institutions'collections. These are considered in the response to Question 2, as in each case, theseexceptions are contingent on the nature of the organisation. Finally, the special case orflexible dealing option created by s 200AB of the Act (discussed at 5(b) below) can alsobe relied upon by libraries and archives.


Libraries and archivesLibraries and archives

There is no definition of ÒlibraryÓ in the interpretation section of the Copyright Act. Ratherthe Act provides varying definitions of ÒlibraryÓ, contingent on the nature of the exception tocopyright. For example, for purposes of the exception created by s 49, "library" is defined by

31

s 49 itself to mean a library, all or part of whose collection is accessible to members of thepublic directly or through interlibrary loans. In comparison, for the purposes of the excep-tion created by s 50, ÒlibraryÓ is defined to be: (a) a library all or part of whose collectionis accessible to members of the public directly or through interlibrary loans; or (b) a librarywhose principal purpose is to provide library services for members of a Parliament; or (c) anarchives all or part of whose collection is accessible to members of the public. Whilst refer-ring to libraries, s 51 does not provide any definition of ÒlibraryÓ, causing the application ofthe section to be dependent on the commonly understood meaning of library. There is nodefinition of ÔlibraryÕ for the purposes of ss 110B and 110BA.

Previously, to qualify as a library for the purposes of ss 49 and 50, the library must not havebeen conducted for profit. This appears to have required examination of the libraryÕs ownoperation and funding as s 18 provides that a library is not taken to be conducted for profitby reason only that it is owned by a person which carries on business for profit.

There is however an overarching definition of ÒarchiveÓ in the interpretations provision of s10 that is consistently applied throughout the Act. ÒArchiveÓ is defined as: (a) archival mate-rial in the custody of: (i) the National Archives of Australia; or (ii) the Archives Office of NewSouth Wales established by the Archives Act 1960 (NSW); or (iii) the Public Record Officeestablished by the Public Records Act 1973 (Vic); or (iv) the Archives Office of Tasmania es-tablished by the Archives Act 1965 (Tas); or (aa) archival material in the custody of a person(other than the National Archives of Australia) in accordance with an arrangement referredto in section 64 of the Archives Act (Cth) 1983.

Therefore, the exceptions in ss 49, 50 and 51 apply to libraries (as variously defined in theprovision creating the exception) and archives (as defined in s 10). In addition to the aboveexceptions for libraries and archives, there are other exceptions that relate to specific formsand activities of libraries and archives. These are outlined below.

Parliamentary librariesParliamentary libraries

Section 48A governs copying by Parliamentary libraries for members of Parliament. A ÒPar-liamentary libraryÓ is defined by s 48A to be ÒlibraryÓ the Òprincipal purpose of which is toprovide library services for members of that ParliamentÓ. Sections 50, 110B and 110BA pro-vide that copyright in a work is not infringed by anything done by an authorised officer ofsuch a library for the sole purpose of assisting a person who is a member of a Parliament inthe performance of the person's duties as such a member.

National Archive of AustraliaNational Archive of Australia

Section s 51AA permits the National Archives of Australia to reproduce and communicateworks in its care without infringing copyright for purposes of replacement. "Replace" meansa reproduction of the work made from a working copy for the purpose of replacing a ref-erence copy of the work that has been lost, damaged or destroyed. There is no counterpartprovision in relation to sound recordings and films.

Libraries overseeing works in key cultural institutions' collectionsLibraries overseeing works in key cultural institutions' collectionsFurther, s 51B permits libraries to make preservation copies of significant works in key cul-tural institutions' collections. Section 51B(1) applies in relation to a work held in the collectionof a library or archives where the body administering the library or archives has, under a lawof the Commonwealth or a State or Territory, the function of developing and maintaining acollection of works that are of Òhistorical or cultural significance to AustraliaÓ. Section 110BAmakes corresponding provision in relation to sound recordings and cinematograph films.

32

3)3)

4)4)

5)5)

a)


The exceptions for libraries and archives created in Part 3, Division 5 and Part 4, Division 6delineate the scope of the permitted activities. These have been incidentally noted when de-scribing the scope of the permitted reproduction and communication in Question 1 (a). Thesignificant points are reiterated below. Section 49, which permits libraries and archives toreproduce and communicate material to users for purposes of research and study, is limitedto original literary, dramatic, musical or artistic works included in the article or publicationand does not extend to electronic and audiovisual works such as videos and CDs. Section50, which permits a library to make reproduction to supply a requesting library, does notencompass the reproduction of audiovisual items by one library on behalf of another. Wherethe copy is to be supplied to a user for that personÕs research or study under s 49, there isa requirement that the person not previously have been supplied with a copy of the samematerial. Also, under ss 49 and 50, where the work is an article in a periodical publication, itis permissible to copy more than one article from the same issue only if they are for the sameresearch or course of study. Section 110B, however, makes provision in relation to soundrecordings and cinematograph films which are ÔfirstÕ records and permits them to be madeavailable to another library or archives for research at that second library by being madeavailable on a terminal in that library. Section 51A (1)(a), which permits the reproductionof a work for the purposes of preservation against loss or deterioration or for research orstudy, is limited to the reproduction of original material. Similar provision is made for soundrecordings and films by s 110B. Finally, s 51B, which permits a library or archive to makepreservation copies of significant works in key cultural institutions' collections, is also limitedto original material. Similar provision is made for sound recordings and films by s 110BA.


All the exceptions for libraries and archives relate to copies existing within their collection.


yes


yes

Where a literary, dramatic or musical work is performed by a teacher in the course ofgiving educational instruction to a class, or otherwise in the presence of an audienceand not for profit, it shall not be deemed to be a performance to the public, and there-fore not constitute an infringement of copyright. As such the performance does notrequire the consent of the copyright proprietor (s 28(1)-(3)). "Perform" in relation to adramatic work as defined by this section or a musical work, means make an acousticrepresentation of the work or a visual representation of a dramatic action in the work,and includes the making of such a representation by means of a mechanical instru-ment (s 204). The term Òeducational instructionÓ is not defined in the Act and is to bedetermined by reference to the common law.

33

b)

The same exception applies to sound recordings and cinematograph films except thatin the case of recordings or films, the reference to ÒperformanceÓ is read as a refer-ence to the Òact of causing the sounds concerned to be heard or the visual imagesconcerned to be seenÓ (s 28(4)).Hence, as such a screening of a film, DVD or video in class is not deemed a perfor-mance to the public, it does not require the consent of the copyright proprietor.Similarly, a communication of a television broadcast or sound broadcast is not a com-munication to the public if the communication is made merely to facilitate the televisionbroadcast being seen and heard, or the sound broadcast being heard in class or oth-erwise in the presence of an audience (s 28(6)).Finally, a communication of an artistic work is not a communication of the work to thepublic if the communication is made merely to facilitate the work being seen in class orotherwise in the presence of an audience, in the course of educational instruction thatis given by a teacher (s 28(7)).In all cases, it is pertinent to note that the exception relating to performance and displaydoes not apply where the performance or display is for entertainment rather than ed-ucational purposes. The teacher, or student, must give the performance or display inthe course of giving the course of actually giving the instruction. Further, the exceptionsare not available if the education instruction is provided for profit."Profit" does not include any advantage, benefit, or gain that is received by a personand results from, or is associated with, the person's private or domestic use of anycopyright material (s 132AA). Finally, the exceptions does not apply if people, otherthan students are present or if people who are no directly connected to with the placewhere the instruction is taking place are present at the performance or screening.


no

The Act does not create a general exception in relation to the reproduction and/or dis-tribution for educational purposes. Instead, Part VB of the Copyright Act creates a com-pulsory statutory licensing regime to govern the copying and communication of textand images. Hence the reproduction and distribution of copyright materials, such asthe use of copyright material for preparation of course packs, compilations or antholo-gies, exams, is governed by this compulsory licensing framework.

Under this regime, where an educational institution wishes to make multiple copiesof published copyright material (original literary, dramatic, musical and artistic works,sound recordings and cinematograph films) solely for the educational purposes of theinstitution, it must give a remuneration notice to the relevant collecting society, keep therelevant records in respect to the making of copies (including marking the copies somade) and pay equitable remuneration. Part VB also provides for copying by organ-isations representing people with print or other intellectual disabilities. Part VA makessimilar provision in respect of the copyright in radio and television broadcasts.

In practice, the educational institutions and collecting societies generally enter into con-tractual arrangements with simplified administrative arrangements.

Section 40 (1A) creates a limited exception, providing a fair dealing with a literary work(other than lecture notes) does not constitute an infringement of the copyright in thework if it is for the purpose of, or associated with, an approved course of study or re-search by an enrolled external student of an educational institution. This provision islimited to a copy made by, or perhaps for, the external student individually. It is con-strained by the requirement that the dealing be ÔfairÕ and consequently, if the copy is

34

c)

d)

e)

one of multiple copies being made for the class generally, it will typically not qualifyfor the exception as the making of multiple copies in such situations is covered by thestatutory licence in Part VB.Further, s 200AB creates what has been termed a Òspecial caseÓ or Òflexible dealingÓexception that permits an educational institution to use copyright material for edu-cational instruction. However, the provision may only be invoked where the use ofcopyright is not expressly governed by another specific exception in the Copyright Act.Hence, if the contemplated use relates to copying and communicating text and images,such a use would be governed by the compulsory statutory licensing regime createdby Part VB and would not be covered by the more general s 200AB.Similarly, if thecontemplated use relates to recording and communicating television and radio pro-grammes, such a use would be governed by the statutory licensing regime created byPart VA and is not likely to fall within the purview of s 200AB.


no

Reproduction for the purpose of making translations is not the subject of an exceptionto copyright.


no

The Copyright Act does not create an express exception in relation to making worksavailable in digital networks for educational purposes. Instead, this issue has beendealt with by extending the statutory licences provided in Part VB of the Copyright Act.Therefore, the copyright in a published work is not infringed by making a copy of itavailable online if the institution has given a remuneration notice to the elegant col-lecting society and the communication is solely for the educational purposes of the in-stitution. In broad terms, this requirement effectively limits those who may access thematerial to the teaches and students participating in a relevant course. For works otherthan articles in published periodicals, what is made available may not exceed morethan a reasonable portion unless the institution is satisfied that an electronic copy is notavailable in electronic form within a reasonable time at an ordinary commercial price.In the case of articles, two or more may be made available from the same issue onlyif they relate to the same subject matter creates a statutory licensing regime to governthe copying and communication of text and images, the reproduction and distributionof copyright materials, such as uploading course packs onto on-line platforms, compi-lations or anthologies, providing distance education, is likely to fall within the ambit ofthe compulsory licensing framework.When enacted, it was envisaged that s 200AB might provide educational institutionswith some scope to engage in more extensive activities than covered by Part VB but inpractice that has not eventuated to any consistent extent due to uncertainty about theinterpretation of the provision.


yes

Copyright material may legitimately be used for the purpose of research or study. How-ever there are a variety of conditions attaching to this exception. Firstly, the use mustprimarily be for Òresearch or studyÓ. Whilst the term is not defined in the Act, De Garis

35

f)

6)6)

v Neville Jeffress Pidler Pty Ltd (1990) 95 ALR 625 held that if the primary purpose ofthe research or study was commercial, such as the supply of published material for afee, the exception would be unavailable. Secondly, the research and use must be a fairdealing. If the use is confined to a reasonable portion, fairness is established. See 1(b)above for an outline of the concept of Òreasonable portionÓ.However, where the person conducting the research or study exceeds the reasonableportion limits, the use may still be deemed fair pursuant to the relevant circumstancesprescribed by the Act. The Act outlines the matters to be taken into account when de-termining whether a dealing by way of reproducing the whole or a part of the work,adaptation or audiovisual item is fair. The factors include the character of the dealing,the nature of the copyright work or adaptation used, the possibility of obtaining thework, adaptation or audiovisual item within a reasonable time at an ordinary commer-cial price, the effect of the dealing upon the potential market for, or value of, the work,adaptation or audiovisual item, and the substantiality of the part copied in relation tothe whole (s 40(2) and s 103C(2)).


yes

As noted at 5(b), s 200AB creates what has been termed a Òspecial caseÓ or ÒflexibledealingÓ exception that permits an educational institution to use copyright material foreducational instruction. However, as noted, the provision may only be invoked wherethe use of copyright is not expressly governed by another specific exception in theCopyright Act.Further, the s 200AB exception is only available where the circumstances of the useconstitute a Òspecial caseÓ, the use does not conflict with a normal exploitation of thework or other subject-matter, and the use does not unreasonably prejudice the legit-imate interests of the owner of the copyright. The terms "special case", "unreasonablyprejudice the legitimate interestsÓ and "conflict with a normal exploitation" all have thesame meaning as in Article 13 of the TRIPS Agreement (s 200AB). Article 13 of TRIPSgoverns limitations and exceptions to copyright and stipulates that Members shall con-fine limitations or exceptions to exclusive rights to certain special cases which do notconflict with a normal exploitation of the work and do not unreasonably prejudice thelegitimate interests of the right holder.


The exceptions discussed above relate to educational institutions. The term Òeducational in-stitutionÓ is expansively defined in s 10 to encompass a wide range of organisations, such asschools, universities and colleges of advanced education, nursing schools and teaching unitswithin hospitals. Further, an institution in relation to which a declaration has been made thatits principal function is the provision of training for a general education, the preparation ofpeople for a particular occupation or profession or the teaching of English to people whosefirst language is not English, are also encompassed within the term (s10A(4).There are similar, more limited schemes for the making of copies and communication ofcopyright material by institutions assisting persons with a print disability or intellectual dis-ability.

36

7)7)

8)8)

9)9)

10)10)


The conditions as to the type of scope of the activities and the persona who may engagein such activities relating to the performance and display exception are also integrated intothe discussion at 5(a) above. The conditions relating to the fair dealing are outlined aboveat 5 (e). The conditions relating to the special case of flexible dealing exception are outlinedabove at 5(f).


The conditions as to the type of copyright that may be used relating to the performance anddisplay exception are also integrated into the discussion at 5(a) above. The conditions relat-ing to the fair dealing are outlined above at 5 (e). The conditions relating to the special caseof flexible dealing exception are outlined above at 5(f).



As outlined in the individual responses to Questions 1-8, each of the exceptions are foundedon provisions of the Copyright Act, as interpreted by case law.


The only exception that precisely adopts the Three-Step Test is the special case or flexibledealing exception created by s 200AB. The special case exception is only available where thefollowing three steps delineated in the TRIPS Article 13 test are satisfied:1. The circumstances of the use amount to a special case (s 200AB(1)(a));2. The use does not conflict with a normal exploitation of the work or other subject-matter

(s 200AB(1)(c)); and3. The use does not unreasonably prejudice the legitimate interests of the owner of the

copyright (s 200AB(1)(d)).Additionally, the factors to be taken into account pursuant to s 40(2) and s 103C(2) in deter-mining whether a use for research or study that exceeds the reasonable portion requirementcan be deemed fair also echo the rationale of the Three-Step Test. The factors to be takeninto account include character of the dealing, the nature of the copyright work used, thepossibility of obtaining the work within a reasonable time at an ordinary commercial price,the effect of the dealing upon the potential market for, or value of, the work, and the sub-stantiality of the part copied in relation to the whole. Hence whilst the criteria does not ex-pressly adopt the Three-Step Test, it is underpinned by the same policy rationale of balancingthe needs of an individual special need user and the commercial interests of the copyrightproprietor.

37

11)11) IsIs useuse underunder thethe exceptionexception oror limitationlimitation permittedpermitted automaticallyautomatically (without(without anyany furtherfurther ac-ac-tion),tion), oror mustmust certaincertain criteriacriteria bebe fulfilled/fulfilled/procedure(s)procedure(s) followedfollowed (e.g.(e.g. seekingseeking aa compulso-compulso-ry licence)? If it is the latter, please explain the criteria/procedure(s).ry licence)? If it is the latter, please explain the criteria/procedure(s).

Libraries and archivesLibraries and archivesIn certain circumstances, the Act requires declarations to be made before the exceptions setout in ss 49, 50, 51A and 110B can be relied on. These are set out in more detail below,however, in general terms they require that a reasonable investigation has been made intowhether a copy can be obtained within a reasonable time at an ordinary commercial price.In addition, s 203H provides that the exceptions for making reproductions of works set outin ss 49, 50 and 51A are not available unless there has been appropriate notation of thereproduction. That is, at or about the time the reproduction was made, there must be a no-tation made on the reproduction stating that the reproduction was made on behalf of therelevant institution, or person or body administering the library or archives, and specifyingthe date on which the reproduction was made. Notation is also required for copies of soundrecordings and cinematograph films made pursuant to s 110B.

In addition, the exceptions in ss 49 and 50 require the destruction of the electronic repro-duction remaining with the library or archives as soon as practicable after the reproductionis communicated.

Each exception in Part 3, Division 5 of the Copyright Act 1968 (Cth) is considered below.

Copying for members of Parliament (s 48A) [s 104A]

Use under s 48A relating to copying for members of Parliament is permitted automatically.

Reproducing and communicating works by libraries and archives for users (s 49)

Section 49, dealing with the reproduction and communication of works for users, sets out arequest and declaration procedure to be followed before the exception applies and use canoccur. The person who requires a copy makes a written request to the officer in charge of thelibrary or archives. They should also provide a signed declaration that the copy is requiredfor the purpose of research or study, that they will not use it for any other purpose and thatthey have not previously been supplied with a reproduction of the same article or work (orthe same part of the article or work) by an authorised officer of the library or archives (s49(1)). Section 49(2A)-(2C) provides an alternative process if a person is located too remote-ly to provide the written request and declaration provided for in s 49(1).

In addition, where an electronic reproduction is made in response to a request under s 49,the person receiving the reproduction must be notified that the reproduction has been madeunder that section and that the article or work might be subject to copyright protection. Thereproduction held by the library or archives must also be destroyed as soon as practicableafter it has been communicated (s 49(7A)).

If the request is for a reproduction of the whole, or more than a reasonable portion, of apublished work, then an authorised officer of the library or archive which makes the repro-duction must also, after a reasonable investigation, make a declaration stating that he orshe is satisfied that a reproduction (not being a second-hand reproduction) of the work can-not be obtained within a reasonable time at an ordinary commercial price (s 49(5)). Factorsthat the authorised officer must take into account in making this determination are listed in s49(5AB).

Notation on any reproduction is also required pursuant to s 203H. This notation must be inthe terms set out above.

38

Reproducing and communicating works by libraries or archives for other libraries or archives(s 50)

Section 50, dealing with the reproduction and communication of works for other libraries orarchives, requires declarations to be made in certain circumstances.

Where the work from which the reproduction is made is in hardcopy form, and the repro-duction is of a whole of the work (other than an article contained in a periodical) or of morethan a reasonable portion of the work, then the exception is not available unless certain pro-cedures are followed. That is, as soon as practicable after the request relating to the repro-duction is made, an authorised officer of the library must make a declaration: (i) setting outparticulars of the request; and (ii) stating that, after reasonable investigation, the authorisedofficer is satisfied that a reproduction (not being a second-hand copy) of the work cannot beobtained within a reasonable time at an ordinary commercial price (s 50(7A)). The factorsset out at s 50(7BB) must be taken into account for this purpose.

A declaration in similar terms is required as soon as practicable after a request for reproduc-tion of a work is made, where that work is in electronic form, and the reproduction is madeof the whole of the work (including an article contained in a periodical) or any part of thework (s 50(7B)).

In addition, if the reproduction is made in electronic form, the reproduction remaining withthe supplying library must be destroyed as soon as practicable after it has been supplied (s50(7C)).


Reproducing and communicating unpublished works in libraries or archives (s 51) [s 110A]

Section 51(1) and s 110A create exceptions for the reproduction and communication of un-published works, sound recordings or cinematograph films held in the collection of a libraryor archives to a person for the personÕs research or study or with a view to publication. Theexception applies to works only after the expiry of 50 calendar years from the authorÕs deathor, in the case of sound recordings and cinematograph films, the making of the record orfilm. The person who requests the copy must satisfy the officer in charge of the library orarchives that he or she requires the reproduction for the purposes of research or study, orwith a view to publication, and that he or she will not use it for any other purpose (51(1)(d),110A(d)).

Section 51(2), relating to unpublished theses in university libraries or archives, requires theperson to whom it is being supplied to satisfy an authorised officer of the library or archivesthat he or she requires the reproduction for the purposes of research or study.

Publication of unpublished works kept in libraries or archives (s 52)

Section 52, relating to the publication of unpublished works, requires that the prescribednotice of the intended publication of the work is given before the new work is published (s52(1)(b)). The prescribed notice of intended publication is made pursuant to reg 5 of theCopyright Regulations 1969. This is a notice given by advertisement published in the Gazettenot earlier than three months, and not later than two months, before the date of the publi-cation or subsequent publication of the new work, and including the information specified inreg 5.

Reproducing and communicating works in Australian Archives (s 51AA)

39

Some of the provisions contained in s 51AA, relating to the reproduction and communicationof works in the Australian Archives, require a request in writing to be made (see ss 51AA(1)(c)and 51AA(1)(d)).

Reproducing and communicating works for preservation or replacement (s 51A) [s 110B]

This exception does not apply in relation to works held in published form in the library orarchives, unless an authorised officer has, after reasonable investigation, made a declara-tion stating that he or she is satisfied that a copy (not being a second-hand copy) of thework, or of the edition in which the work is held in the collection, cannot be obtained withina reasonable time at an ordinary commercial price. In addition, if he or she is satisfied that acopy (not being a second-hand copy) of another edition of the work can be obtained withina reasonable time at an ordinary commercial price, the declaration must state why the re-production should be made from the copy of the work held in the collection (s 51A(4)).


Making preservation copies of significant works in key cultural institutionsÕ collections (s 51B)[110BA and 112AA]

Before use can be made under this exception, the authorised officer must be satisfied thatthe work is of Ôhistorical or cultural significance to AustraliaÕ (s 51B(1)). Depending on theform in which the significant work is held, there may also be further requirements.

If the work is held in the form of an original artistic work, the authorised officer must be sat-isfied that a photographic reproduction (not being a second-hand reproduction) of the workcannot be obtained within a reasonable time at an ordinary commercial price (s 51B(3)). Ifthe work is held in published form, the authorised officer must be satisfied that a copy (notbeing a second-hand copy) of the work, or of the edition in which the work is held in thecollection, cannot be obtained within a reasonable time at an ordinary commercial price. Inaddition, if the officer is satisfied that a copy of another edition of the work can be obtainedwithin a reasonable time at an ordinary commercial price, he or she must be satisfied that itis appropriate that the reproduction should be made from the copy of the work held in thecollection (s 51B(4)).

ÔSpecial caseÕ exception for a body administering a library or archives (s 200AB)

Use under the exception is permitted automatically if the conditions set out in s 200AB exist(these are set out in Question (5)(f) above).

Educational and research institutionsEducational and research institutions

Statutory licensing scheme (Part VA and Part VB)

All uses under Part VA (relating to the copying and communication of broadcasts) and someuses under Part VB (relating to the reproduction and communication of works and periodi-cal articles) require a remuneration notice to be in force at the time. This is a notice that isgiven by the body administering an institution to a collecting society in which the institutionundertakes to pay equitable remuneration for the use. The remuneration notice must specifythe basis on which equitable remuneration will be assessed. This is considered in more detailbelow.

40

12)12)

There are various administrative requirements provided in relation to the statutory licensingscheme contained in the Act. These include various marking and record-keeping require-ments (s 135K for Part VA; s 135ZX for Part VB) and notice requirements (s 135KA for PartVA; s 135ZXA for Part VB) which the body administering the institution must comply with asthe case requires. For example, s 135ZXA requires a specific notice to be given in relation toall digital copies and communications of material made under Part VB. That is, each copy orcommunication made must contain statements to the effect that the copy or communicationhas been made under Part VB and that any work or other subject-matter contained in thecopy or communication might be subject to copyright protection. Furthermore, in relation todigital communications, the administering body must take all reasonable steps to ensure thatthe communication can only be received or accessed by persons entitled to receive or accessit (s 135ZXA(b)).

Performance and communication of works or other subject-matter in the course of educa-tional instruction (s 28)

The exception in s 28, relating to performance and communication in the course of educa-tional instruction, applies automatically.

Fair dealing for purpose of research or study (s 40)

The fair dealing exception in s 40 applies automatically.

ÔSpecial caseÕ exception for a body administering an educational institution (s 200AB)

Use under the exception is permitted automatically if the conditions set out in s 200AB exist(these are set out in Question (5)(f) above).



No remuneration is payable for use under the Copyright Act exceptions for libraries andarchives.


No remuneration is payable for the exceptions contained in ss 28 and 40 of the CopyrightAct.

There is, however, remuneration payable under the statutory licensing scheme set out in PartsVA and VB of the Copyright Act. Remuneration is payable for all copying or communicationthat falls under Part VA of the Act (relating to broadcasts). That is, there are no provisions inthat Part that allow for copying or communication without a remuneration notice. In addition,remuneration is payable for most instances of copying or communication that falls underPart VB of the Act. However, remuneration is not payable for reproduction or communicationunder Part VB (i.e. a remuneration notice is not required) where very small parts of certainworks are reproduced or communicated for educational purposes (ss 135ZG; 135ZM; 135ZMB; 135ZME).

As noted above, the remuneration notice sets out the basis for assessing the equitable remu-neration. For Part VA notices this can be a records system, a sampling system or an agreedsystem (s 135G(2)). For Part VB notices this can be a records system, a sampling system oran electronic use system (s 135ZU(2)). For example, a Ôrecords systemÕ involves the payment

41

13)13)

14)14)

of a specified amount for each copy or communication allowed. This system requires copiesto be marked and records to be kept and sent by the administering body. Furthermore, aÔsampling systemÕ involves payment by the administering body of an annual amount. Thissystem requires copies to be marked.

There is no definition of Ôequitable remunerationÕ in the Copyright Act, however, case lawtreats the term as meaning remuneration that is fair and reasonable. For each type of sys-tem, the amount of equitable remuneration to be paid is as determined between the collect-ing society and the administering body of the institution. If an agreement cannot be reached,the Copyright Tribunal determines the relevant amount to be paid.

The administering body which gave the relevant remuneration notice is liable for making thepayment of equitable remuneration to the relevant ÔdeclaredÕ collecting society. The collect-ing society is entitled to give notice to the administering body requesting payment within areasonable time (ss 135N; 135ZZA).



The only exception that specifically refers to orphan works is s 52, which relates to the pub-lication of unpublished works kept in libraries or archives. It is a requirement under that sec-tion that the identity of the copyright owner in the unpublished work (the Ôold workÕ) was notknown to the publishers of the Ônew workÕ immediately before publication. If s 51(1) appliedto the old work immediately before the new work was published, and the prescribed noticeof intended publication was given (as set out above), then the exception will apply and theorphan work (or part thereof) can be published as part of a literary, dramatic or musicalwork.


There is no specific exception that provides special treatment for orphan works in relation toeducational institutions. Statutory licences pursuant to Parts VA and VB apply whether or notthe materials are orphaned.


The Copyright Act does not contain provisions that prevent contracts from excluding or limit-ing the relevant exceptions. Given that there are such provisions in the Act in relation to thereproduction of computer programs, it is arguable that both the exceptions for libraries andarchives under the Act, and the statutory licence scheme and other exceptions for education-al and other institutions, can be excluded or limited by contract. Indeed, this is not an un-common practice in Australia (particularly where copyright materials are dealt with online).Nevertheless, legislation and general law principles may still have an impact on whethercontractual provisions that exclude or limit the exceptions are enforceable (e.g. consumerprotection legislation or contract principles concerning public policy).Research by the Copyright Law Review Committee in 2002 and again by the Australian LawReform Commission in 2013/2014 identified many educational institutions reporting that li-cence agreements, particularly for access to online databases, purported to exclude the in-stitutionÕs ability to provide copies of material to users under the fair dealing exception forresearch or study and for use pursuant to the Part VB statutory licence.[1] It is less clear theextent to which institutions comply with such contractual restrictions.

[1][1] ALRC, Copyright and the Digital Economy (DP 79) paragraphs 17.10 Ð 17.22.

42

15)15)

II.)II.)

16)16)

17)17)


yes

Given there is limited coverage of the use of music by the statutory licensing scheme and oth-er exceptions in the Copyright Act for educational institutions, some institutions have licenceswith various music industry collecting societies to use music in ways that are not covered bythe Act.



yes

In principle, yes.First, to the extent that an individual may exercise a right to make a copy for his or her ownpersonal use (for example, for research or study), a library or archives should be able tomake a copy for the individual rather than requiring the individual to make the copy him- orherself. If the request relates to a copy of the whole of the copyright material, or more thansome reasonable portion of it, the library or archives should first be satisfied that the materialcannot be obtained in a reasonable time at the usual commercial price. (The amounts spec-ified for a Ôreasonable portionÕ in answer to questions 1(b) and (c) seem appropriate limits.)Similarly, in modern conditions, the library or archives should be able to provide the copyto the individual by electronic means and not be limited to providing the copy in hardcopyform. AIPPI Australia acknowledges concerns about the ease with which digital copies maybe reproduced and distributed. If the library or archives is satisfied that the ÔuserÕ has re-quested the copy for a purpose within that userÕs rights, the responsibility for what is donewith the copy should lie with the user, not the library or archives.The library or archives should be limited to cost recovery in respect of any charges for makingor supplying the copy otherwise the library or archives would be unduly competing with thecopyright owner.Secondly, libraries and archives should have power to make a copy of the material for thepurposes of preservation or replacement (in their own collection or the collection of anoth-er library or archive) where the material is not otherwise available at the usual commercialprice.Thirdly, if the library or archive holds material in its own collection in digital form (rather thanbeing supplied through an online database by a third party), the library or archive should beable to make and maintain a back up copy of the material.


yes

In principle, yes.In common law countries, copyright protection is not an end in itself, but rather a tool tofacilitate the progress of science and the arts. Educational institutions are key and crucialmeans in the dissemination and transmission of the information and knowledge embodiedin materials protected by copyright. The access to the materials, however, must not unrea-sonably undermine the copyright ownersÕ incentives to produce and publish the materials. Itappears impractical and prohibitively expensive both for the institutions and their users suchas students to be required to buy multiple copies of text books, journals and other materials

43

18)18)

19)19)

20)20)

where what is needed for, for example, a course of study on a particular subject is a particu-lar chapter or article. Accordingly, educational institutions should have the ability to providecopies of such materials to faculty and students in connection with the teaching and researchfunctions of the institution. As with Question (16) above, however, the ability to make a copyin connection with a particular course of study or to a researcher should be subject to quan-tification controls such as a Ôreasonable portionÕ requirement and, where more than that iscopied from the one publication, subject to a commercial availability test.


yes

At the level of policy, yes. But at the level of inter partes dealings, no.The three-step test provides guidance and sets necessary limits on the extent to which acountry may adopt exceptions and limitations that compromise copyright ownersÕ rights. Theterms in which the three-step test is expressed, however, are very general and uncertain inapplication. A legislative body may take advice and give careful consideration to the inter-pretation of the test and its application in deciding whether to introduce a new exceptionand in defining it. In practical terms, however, there is very little guidance available to Aus-tralian courts and the public generally about how the test should be applied in day to daysituations. Copyright owners in general are likely to have stronger incentives to challenge thelegitimacy of a particular usage under the three-step test than most users. Those incentivesare compounded by the uncertainty about the meaning and application of the elements ofthe three-step test.


The exceptions and limitations for libraries and archives addressed in question (16) shouldnot be capable of being overridden by contract. This is addressed further in answer to ques-tion (29).Although it reported that the incidence of licences to educational institutions prohibiting useunder statutory licences such as addressed in question (17) had increased since 2002, in itsreport, Copyright and the Digital Economy (Report No. 122), the ALRC did not recommend-ed that there should be a prohibition on contracting out.


Given the nature and purpose of the library and archives exceptions in question (16), no.However, the library or archives should not be able to charge more than costs recovery forany copy supplied pursuant to the exception as that would lead to the library or archivescompeting unfairly with the copyright owner.Where multiple copies are made and/or supplied pursuant to the exceptions contemplatedin question (17), or the copies are made and/or supplied on a systematic basis, the educa-tional institution should be required to pay equitable remuneration.As noted in the answers to questions (16) and (17) where the quantity of copying from a par-ticular work exceeds some reasonable portion, the availability of the exception should alsobe contingent on the copyright material in question not being available on normal commer-cial terms in a reasonable timeframe. If such a constraint is not imposed, the library, archivesor educational institution would be usurping the position of the copyright owner and com-peting unfairly with the copyright owner.

44

21)21)

III.)III.)

22)22)

23)23)

24)24)

a)

b)


In its report Copyright and the Digital Economy report (Report No. 122), the ALRC recom-mended (recommendation 12-1) that s 200AB be repealed and replaced by a new generalÒfair useÓ exception. If a general Ôfair useÕ defence were not introduced, the ALRCÕs alterna-tive recommendation was to introduce a new ÔconsolidatedÕ fair dealing defence, with oneof the specific fair dealing purposes to be included being a fair dealing for Ôlibrary or archiveuseÕ. This was largely intended to cover at least the existing exceptions with further considera-tion being given to broadening to include activities relating to Ôcultural heritageÕ or the Ôpub-lic interest purposes of cultural institutionsÕ. As envisaged by the ALRC, the main constrainton reliance on this exception would be the application of the fairness criteria in relation tothe purpose of the exception.By recommendation 12-2, the ALRC further recommended that ss 51A, 51B, 110B, 110BAand 112AA also be repealed and replaced with a new exception permitting the making ofpreservation copies with no limit on the number of copies that could be made. This was seento be in line with international archiving best practice and would include format shifting Ðfrom hardcopy to digital copying. According to the ALRC, rights holders were not so muchconcerned with copying for preservation, archival purposes as with access to the preserva-tion copy and the use that might be made in competition with the rights holder.



yes

In principle, yes.



no

Not applicable



As understood in Australia, a library need not be a separate legal entity in its own right;it may be a ÒlibraryÓ maintained within a company or other organisation. The defini-tion provided by s 50, referred to in answer to question 1(d) above appears to providea suitable definition.


Reproduction of a copy and communication of a digital copy to the individual, libraryor archive which has requested the copy for a purpose the individual, library or archiveis permitted to make a copy for itself. Generally, the permitted purposes should coverresearch or study, criticism or review, reporting of news. There may well be other useswhich are, or should be, permitted.

45

c)

25)25)

a)

b)

c)

26)26)


Refer to the answers to questions (16) and (26).



In Australia, it appears to have found impractical or otherwise undesirable to distin-guish between educational institutions according to whether or not they are conductedfor profit. Instead, qualification has focused on:1. whether the, or a, main focus of the institution or undertaking within an organisa-

tion is the provision of education and/or training; and

2. whether the copy is provided for a charge in excess of costs.

It has not mattered whether the education or training is directed to pre-school,school or post-school education, full-time or part-time or directed to training for aparticular occupation, trade or profession and extends to language training cours-es.

In addition to educational institutions, Australian law provides limited rights to copyand communicate copyright materials to institutions assisting people with a print dis-ability or intellectual disability. As the market for copyright materials in a form suitablefor use by persons with such disabilities may be too small, or too small for the copiesto be made available at a reasonable price, this is an appropriate extension.AIPPI Australia has not recommended specific provision for research institutions overand above any extent that they are not engaged in providing education or training. Al-though it has not finally been determined in Australia, it is likely that individuals withinsuch organisations may take advantage of the fair dealing exceptions for research orstudy in the course of their work.


Reproduction of a copy and communication of a digital copy to the staff and studentsparticipating in the relevant education or training activity.


See question (26) below.



The library or archives should be required to keep a record of each copy made and to whomit was supplied. The record should also include:1. details of the person who made any inquiries about commercial availability of the mate-

rial, the date the inquiries were made and what search or searches were made;2. what steps were taken to identify the name and address and the person to whom the

copy was made, the purpose for which the recipient claimed the copy was required andwhether or not a copy had previously been supplied to that person.

46

27)27)

28)28)

Similarly, in relation to question (17), the educational institution should be required:1. to give a notice to the relevant copyright owner or collecting society undertaking to pay

equitable remuneration in respect of copies made and supplied pursuant to the excep-tion; and

2. to pay the remuneration.The mechanics of how the number of copies made and of what materials are recordedshould ultimately be determined by negotiation and agreement or, in default be determinedby an independent body such as the Copyright Tribunal. Legislation could specify certainminimum requirements about record keeping and procedural matters to protect both ownersand users from unreasonable behavior by the other. However, Australian experience indi-cates such provisions have tended to preclude development of alternative solutions and havenot reduced the amount and technicality of disputation. Hence, the Australian Law ReviewCommission in its Copyright and the Digital Economy report (Report No. 122) recommend-ed (recommendation 8-4) their repeal.In the case of copies made under the exceptions contemplated by both questions (16) and(17), there should be a requirement to include on, or in, the copy a notice setting out whatprovision it was made under.


This does not arise under our response to question 16.In relation to question (17), the educational institution should be liable for the payment. Itshould be possible to make the payment either directly to the relevant copyright owner or, ifapplicable, a collecting society representing copyright owners in respect of the relevant inter-est.The amount the remuneration is set at should be equitable remuneration in the circum-stances. This involves a balancing exercise recognizing the need to provide compensation tothe rights owner so that the incentive to create new works is not unreasonably underminedwhile ensuring that access to the material is not unduly impeded by rates which are not af-fordable. What is fair in any particular case or class may depend on the amount copied, thenature of the material copied (so that in Australia rates per page with illustrations or artisticworks are often higher than text) and the use being made (so for example a higher rate mayapply to copying by universities and tertiary institutions compared to secondary and primaryschools).


In its Copyright and the Digital Economy report (Report No. 122), recommendation 13-1,the Australian Law Reform Commission has recently recommended that the remedies for in-fringement of copyright in Òorphan worksÓ should be limited where, before the infringement,the person using the copyright material:1. had made a reasonably diligent search for the rights holder and had not been able to

locate the rights holder; and

2. as far as reasonably possible, the user had clearly attributed the authorship of the work.The ALRC considered a number of options for the limitation of remedies, without finally de-ciding on one. It reported broad support for limitation of monetary relief to a reasonablelicence fee or reasonable compensation.

47

29)29)

30)30)


A prohibition on contracting out of exceptions and limitations represents a significant con-straint on freedom of contract. The ability of parties to freely negotiate and agree on theterms of their contractual relations Ð freedom of contract Ð is generally recognized as in thepublic interest. However, it is not an absolute freedom.The ALRC in its Copyright and the Digital Economy report (Report No. 122) (recommenda-tions 20-1 and 202) recommended that contracting out of the Ôfair dealingÕ exceptions andthe library and archives exceptions should be prohibited on the grounds that these were ex-ceptions designed to protect and preserve overriding public interests. At paragraphs 20.92Ð 20.96, it did not recommend prohibition of contracting out if, instead of Ôfair dealingÕ, itsrecommendation to introduce a general fair use exception was adopted. This was becausethe general fair use exception is intended to be open ended and so it could not be predictedwith any certainty that a particular Ôfair useÕ warranted protection from contracting out.The recommendation on prohibiting contracting out does not appear to extend to the statu-tory licences for educational institutions on the basis that these are intended to set minimumthresholds.


Any conduct by private organisations should be consistent with the exceptions and limitationson copyright provided by law.

SummarySummary

Libraries, archives and educational institutions play a vital role in disseminating informationand learning. Exceptions and limitations that facilitate that role are necessary, but must notunreasonably prejudice the incentive to create new works. On that basis:1. libraries and archives should be able to supply an individual with a copy where the in-

dividual has a right to make the copy him or herself, such as for research or study and,where the material is not available at an ordinary price, to preserve damaged, lost orstolen items;

2. educational institutions should be able to make copies for their educational purposes onpayment of equitable remuneration where multiple copies are made.

These rights should not apply where more than a reasonable portion is copied if the materialis available at an ordinary commercial price. Contracts should not be able to exclude theserights. Use of orphan works should be subject to payment of equitable remuneration.


48

I.)I.)

1)1)

a)

BelgiumBelgium


in the name of the Belgium Groupby Benoit MICHAUX, Benoit MICHAUX, Sari DEPREEUW, Sarah VAN DEN BRANDE and Timothy

VAN DE GEHUCHTE


QuestionsQuestions




yes


yes

************************************************************************************Preliminary remark:

The Belgian copyright law[1] provides for a number of exceptions to the exclusive rightof reproduction and the exclusive right of communication to the public, in particular forlibraries and archives, and also for the purpose of education and research, as detailedhere below.By contrast, these exceptions are not explicitly extended to the right of distribution (aspermitted under the Information Society Directive 2001/29), even when said materialshave been previously reproduced in compliance with statutory exceptions. When takenliterally, this would mean that, while the law contains a provision allowing a teacher tomake a copy (reproduce) a copyright protected material for teaching purposes, subjectto certain conditions, it does not contain any provision allowing the teacher to distributethe copy to his students without the consent of the right holder. However, in practice,it seems to be accepted that in such a situation, the statutory exception allowing the

making of the copy also covers the subsequent act of distribution of that copy[2]. Thispragmatic solution can be supported by the argument that generally speaking, accord-ing to the wording of the Belgian copyright act, the right of distribution is part of the

right of reproduction[3], and that in this specific case, the act of distribution is a merecontinuation of the act of reproduction.************************************************************************************a)a) reproductionreproduction and/and/oror distributiondistribution forfor thethe purposepurpose ofof preservationpreservation oror replace-replace-mentmentArticle XI.190 of the (Belgian) Code of Economic Law (ÒCELÓ) provides that (free trans-lation):ÒWhen a work has lawfully been published, the author cannot prohibit:ÉÉ12¡. the reproduction limited to a number of copies, to be determined and justified bythe goal of safeguarding the cultural and scientific heritage, by publicly accessible li-braries, museums or by archives that do not pursue a direct or indirect commercial oreconomic advantage, and to the extent that it does conflict with the normal exploitationof the work and does not unreasonably prejudice the legitimate interests of the author.

49

b)

c)

Material thus created remains the property of these institutions that renounce any com-mercial or profitable use thereof.The author may obtain access thereto on condition of strictly respecting the preserva-tion of the work and subject to fair compensation for the work done by these institu-tions.Ó

FootnotesFootnotes

1. ^ The Code on Economic Law, hereinafter ÒCELÓ, Book XI.2. ^ P. LAURENT, "Les nouvelles exceptions au droit d'auteur en faveur de l'enseignement: l'ère de

l'e-learning", A&M 2008, 3, (180) 192.3. ^ Article 165 ¤1, CEL.


no

The CEL does not provide for a specific exception in respect of interlibrary lending.However, article XI.192 ¤1 of the CEL provides an exception which may be relevant inthis respect. It permits the lending for educational or cultural purposes, as follows (freetranslation):ÒThe author cannot forbid the lending of literary works, databases, photographicalworks, sheet music, audio recordings and audio-visual works, for educational or cul-tural purposes by institutions recognized or established by government.ÓAccording to article XI.243 CEL, this exception is subject to a remuneration which isdetermined by the Government.


yes

¥ From a library or archive perspectiveThe CEL provides that (free translation):ÒWhen the work has lawfully been published, the author cannot prohibit:É..8¡. the communication of works by institutions officially recognized or established bythe government when the communication is made for the purpose of illustration forteaching or scientific research, it is justified by the non-commercial purpose to beachieved, it takes place in the course of the normal activities of the institution, it ismade only through its closed transmission network of the institution, and it does notconflict with the normal exploitation of the work, as long as the source, including theauthorÕs name, is indicated, unless this turns out to be impossible.É..13¡. the communication, including the making available to individuals, for the purposeof research or private study, of works which are not subject to purchase or licensingterms and which are part of the collections of publicly accessible libraries, scientific-or teaching institutions, museums or archives that do not pursue a direct or indirecteconomic or commercial goal, through dedicated terminals on the premises of theseinstitutions.ÓThe scope of article XI.190, 8¡ BCEL is limited to teaching staff, students and re-

searchers having an access to the closed transmission network[1] whilst articleXI.190.13¡ CEL can be invoked by all members of the public visiting the institutions de-scribed in this article.Article XI.190.13¡ refers to communication, not to reproduction (e.g. digitisation). Ad-

mittedly, the Court of Justice[2] allows the national legislator to grant the right to digi-tise. But that right is not (yet) recognized in CEL.

50

d)

¥ From a user perspective:The CEL provides that an author of a work that has lawfully been made public cannotobject to the following (free translation):ÒWhen the work has lawfully been published, the author cannot prohibit:É5¡. the reproduction in whole or in part, on paper or any similar medium, of articles,works of visual and graphic art or the reproduction of short extracts from other works,when this reproduction is made by the use of any kind of photographic technique or bysome other process having similar effects, with the exception of sheet music, solely forprivate use and does not conflict with the normal exploitation of the work.6¡. the reproduction in whole or in part, on paper or any similar medium, of articles,works of visual and graphic art or the reproduction of short extracts from other works,when this reproduction is made by the use of any kind of photographic technique orby some other process having similar effects, for the purpose of illustration for teach-ing or scientific research, it is justified by the non-commercial purpose to be achieved,and it does not conflict with the normal exploitation of the work, as long as the source,including the authorÕs name, is indicated, unless this turns out to be impossible.7¡. the reproduction in whole or in part, of articles, works of visual or graphic art orshort extracts from other works, when this reproduction is made on any medium otherthan paper or a similar medium, for the purpose of illustration for teaching or sci-entific research, it is justified by the non-commercial purpose, and is does not conflictwith the normal exploitation of the work, as long as the source, including the authorÕsname, is indicated, unless this turns out to be impossible.É9¡. the reproduction on any medium other than paper or a similar medium of works,made within the family circle and only intended therefor.Ó

The foregoing provisions, read together, enable the users of libraries or archives tomake copies of the works concerned, subject to certain conditions that are determinedby the medium on which the reproduction is made (paper or other), and the purposeto be achieved (private use, illustration for teaching scientific research, use within thefamily circle). These exceptions are subject to compensation of the relevant right hold-ers (articles XI. 229, XI.235, XI.240 CEL).

It is reminded here that, in its September 11th 2014 judgement in Case C-117/13 (TU

Darmstadt / Eugen Ulmer KG[3]), the Court of Justice has confirmed that article 5(3)(n)of Directive 2001/29, read together with article 5(2)(c) of that same Directive, must beunderstood not to preclude Member States from granting to publicly accessible librariescovered by those provisions the right to digitise the works in their collections, if suchact is necessary for the purpose of making those works available to users by meansof dedicated terminals within those establishments. In the same judgement, the Courtdecided that the reproduction of works on paper or on a USB stick carried out by usersfrom dedicated terminals, may be permitted under national legislation transposing theexceptions or limitations provided for in article 5(2)(a) or (b). The cited provisions of theCEL indeed allow such use.

FootnotesFootnotes

1. ^ M.-C. JANSSENS in F. BRISON en H. VANHEES (eds.), Hommage ˆ Jan Corbet, 3rd edition,Brussels, Larcier, 2012, 164.

2. ^ See the judgment in TU Darmstadt (C-117/13), commented here below.3. ^ Judgment in Technische UniversitŠt Darmstadt v Eugen Ulmer KG, C-117/13,

ECLI:EU:C:2014:2196.


no

51

2)2)

3)3)

There are no other exceptions for libraries and archives than those mentioned above.


Article XI.190,8¡ CEL (the exception for the communication of works through closed trans-mission networks) refers to institutions Òrecognized or established by governmentÓ, leaving itopen to government to add or remove institutions falling under the scope of this exceptionwithout having to change the law.Article XI.190,12¡ CEL (the exception for the reproduction for the purpose of preservation)refers to Òpublicly accessible libraries, museums or archives that do not pursue a direct or in-direct economic or commercial advantageÓ and does not provide that such institutions mustbe recognized or established by government.Article XI.190,13¡ CEL (the exception for the communication and making available or worksthrough dedicated terminals) refers to Òpublicly accessible libraries, scientific- or teaching in-stitutions, museums or archives that do not pursue a direct or indirect economic or commer-cial goalÓ and does not provide that such institutions must be recognized or established bygovernment.


Response (from a library or archive perspective)::

¥ With regard to the number of copies.Only article XI.190.12¡ CEL refers to a number of copies determined and justified Òby thegoal of safeguarding the cultural and scientific heritageÓ without putting forward an exactnumber. In case of dispute, it will be left to the discretion of the courts what is reasonablein light of the purpose and taking into consideration that no prejudice may be caused to thenormal exploitation of the work and the legitimate interests of the author.For the other exceptions, there is no reference to an exact number of copies. As will be ex-plained below (question 10), it is however accepted under Belgian law that the Three-StepTest applies to each exception mentioned above.

¥ With regard to the size (portion / integral reproduction) of the work that is used.Articles XI.190.8¡, 12¡ and 13¡ CEL, which can all apply to communications, reproductionsor the making available of works by libraries and archives do not refer to an explicit sizelimit. The Three-Step Test, as partially repeated in the text of articles XI.190.8¡ and 12¡ CELhowever applies.

¥ With regard to the form of reproduction.Articles XI.190.8¡ and XI.190.13¡ CEL stipulate that works may only be communicated ormade available under these exceptions via either a closed transmission network (articleXI.190,8¡ CEL) or a dedicated terminal (article XI.190, 13¡ CEL).As indicated above, the response is different from a user perspective. As elaborated on subquestion 1 (c) above, restrictions as to the applied medium (carrier), reproduction size andpurpose are to be respected by library or archive users.

52

4)4)

5)5)

a)


The first sentence of article XI.190 CEL states that the copyright exceptions provided in thisarticle only apply for works that have been Òlawfully publishedÓ. In recent years, there hasbeen discussion about the correct interpretation of the reference to works that have beenÒlawfully publishedÓ. A part of Belgian scholars have argued that this condition only refers to

the authorÕs right of divulgation[1] whilst others have analysed this as excluding illegal copies

as a source of reproduction[2]. Given the recent jurisprudence of the Court of Justice (see

case C-435/12 of April 10th 2014, ACI Adam BV / Stichting de Thuiskopie) Ð and althoughthis judgement only concerns the interpretation of article 5.2(b) of Directive 2001/29 (privateuse copy) Ð there is reason to believe that the reference to Òlawfully publishedÓ works ex-cludes illegal copies of works as a source for (authorized) reproductions or communicationsas provided in article XI.190 CEL.

FootnotesFootnotes

1. ^ S. DUSSOLIER, Droit dÕauteur et protection des Ïuvres dans lÕunivers numŽrique Ð Droits et excep-tions ˆ la lumière des dispositifs de verrouillage des Ïuvres., Brussels, Larcier, 2007, nr. 587.

2. ^ A. BERENBOOM, Le nouveau droit dÕauteur et les droits voisins, Brussels, Larcier, 2005, 313.


yes


yes

Article XI.190.4¡ CEL provides that (free translation):ÒWhen the work has lawfully been published, the author cannot prohibit:É4¡. the free of charge performance within the framework of school activities, whetheror not within the premises of the teaching institution;ÓIt is clearly accepted that the term ÒperformanceÓ covers the communication of copy-right protected materials such as power point presentations. By contrast, it is disputedwhether that term also covers the use of works in the context of communication at dis-

tance (video conferences, etc.), e.g. for the purpose of teaching at distance[1]. The ex-ception of article XI.190.4¡is limited to Òschool activitiesÓ, which is generally viewed asrequiring an element of teaching and excludes for example playing music at school

festivities[2].Article XI.190.11¡ CEL provides a specific exception for the performance of a work dur-ing public examinations and states that an author cannot prohibit (free translation):Òthe free of charge performance of a work during a public examination, when the pur-pose of the performance is not the work itself but rather the assessment of the per-former or performers in consideration of granting a certificate of qualification, degreeor title related to a recognized education program.ÓUnlike in article XI.190.4¡ CEL, the term ÒperformanceÓ is generally interpreted in aclearly restrictive way for this exception.

FootnotesFootnotes

1. ^ See in favour of this position, M.-C. JANSSENS o.c., 157.2. ^ See M.-C. JANSSENS, o.c., 158.

53

b)

c)

d)


yes

Article XI.189 CEL states:Ò¤1. Citing of a work that has lawfully been published, for the purpose of criticism,polemic, review, teaching, or in the framework of scientific work, does not infringe oncopyright, to the extent it takes places in accordance with fair professional practicesand is justified by the intended effect. Citing as described above must include a sourceand name of the author, unless this turns out to be impossible.¤2. Composing an anthology for education that does not pursue a direct or indirecteconomic or commercial advantage, requires the consent of the author out of whosework extracts are being compiled. If the author has died, the consent of the right hold-ers is not required to the extent that the extract, including its place and presentation,respects the authorÕs moral rights and that a fair compensation is paid as agreed uponbetween parties or, by lack of agreement, by a judge in accordance with fair practices.ÓArticle XI.189 CEL regulates two distinct hypotheses: ¤1 permits limited citations for thepurpose of inter alia teaching (corresponding to Article 5(3)(d) Directive 2001/29). Thecomposing of anthologies is dealt with in ¤2 of the same article and does not amount

to an actual exception while the author is alive (his/her consent is required[1]), but afterhis/her death, the anthology can be published on condition that his/her moral rightsare respected, the parties find an agreement on the fair compensation to be paid (ab-sent which the court will decide upon the compensation).This consent will not be necessary when applying the copyright exceptions included inarticles XI.190.6¡, XI.190.7¡, 190,8¡ and XI.190.13¡ BCEL as cited above.

FootnotesFootnotes

1. ^ This consent will not be necessary when applying the copyright exceptions included in articlesXI.190.6¡, XI.190.7¡, 190,8¡ and XI.190.13¡ BCEL as cited above.


yes

Whether or not making translations is included in the copyright exception for educa-

tional purposes, is subject to discussion[1]. There are no (published) Belgian court de-cisions on the matter and scholars have signalled that clarification by the legislatorwould be appropriate.

FootnotesFootnotes

1. ^ M.-C. JANSSENS o.c., 162.


yes

Article XI.190.8¡ CEL states that an author cannot prohibit (free translation):Òthe communication of works by institutions officially recognized or established by thegovernment for the purpose of illustration for teaching or scientific research, when it isjustified by the non-commercial purpose, made in the course of the normal activities

54

e)

f)

6)6)

of the institution and through its closed transmission network, and it does not conflictwith the normal exploitation of the work, as long as the source, including the authorÕsname, is indicated, unless this turns out to be impossible.ÓThe exception here above only concerns the communication of a work. As far as theprior reproduction of this work is concerned (i.e. the reproduction of the work beforeits communication through a closed transmission network), other conditions need tobe fulfilled in order for the user to benefit from a statutory exception to the exclusivereproduction right. Such prior reproduction on a medium than paper will need to fulfilthe conditions of article XI.190.7¡ CEL as cited sub question 1c above.


yes

Reproduction of works for the purpose of research is included in articles XI.190.6¡,

XI.190.7¡ CEL as cited above. As already mentioned[1], the distribution of copies is in-cluded in the constraints of the exceptions.

FootnotesFootnotes

1. ^ See preliminary remark above.


yes

Article XI.190.13 CEL Ð cited with regard to libraries and archives Ð is also relevantfor scientific and teaching institutions and provides that an author cannot prohibit (freetranslation):Òthe communication, including the making available of works not subject to purchaseor licensing terms which are part of the collections of publicly accessible libraries, sci-entific- or teaching institutions, museums or archives that do not pursue a direct or in-direct economic or commercial advantage, consisting of communicating or making thework available to individual members of the public through dedicated terminals on thepremises of these institutions and this for the purpose of research or private study.Ó


Article XI.190,8¡ CEL (the exception for the communication of works through closed trans-mission networks) refers to institutions Òrecognized or established by governmentÓ, leaving itopen to government to add or remove institutions falling under the scope of this exceptionwithout having to change the law.The other exceptions (articles XI.190.6¡, XI.190.7¡, XI.190.11¡) refer to a purpose of educa-tion or scientific research and add the requirement of a non-profit seeking goal. This latterterm should be interpreted in line with recital 42 of Directive 2001/29 which reads: ÒWhenapplying the exception or limitation for non-commercial educational and scientific researchpurposes, including distance learning, the non-commercial nature of the activity in questionshould be determined by that activity as such. The organisational structure and the means offunding of the establishment concerned are not the decisive factors in this respect.Ó

55

7)7) AreAre therethere anyany conditionsconditions asas toto thethe typetype oror scopescope ofof thethe activitiesactivities andand thethe personspersons whowhomaymay engageengage inin suchsuch activitiesactivities (e.g.(e.g. numbernumber ofof copiescopies thatthat maymay bebe created,created, whetherwhether onlyonlyaa portionportion ofof aa workwork maymay bebe used,used, whetherwhether bothboth aa teacher'steacher's andand student'sstudent's performanceperformance isiscovered, or only one or the other)? If so, please explain the conditions.covered, or only one or the other)? If so, please explain the conditions.

¥ With regard to the scope of activities.

Article XI.189, ¤1-2 CEL provides that only citations or anthology for educational purposesfall in the scope of the exception.Article XI.190.4¡ CEL (performance during school activities) limits the performance to aschool activity.Articles XI.190.6¡ and 7¡ CEL (reproduction on paper (6¡) and other medium (7¡)) requirethat the reproduction is made for the purpose of illustration for teaching or for scientific re-search.Article XI.190.8¡ CEL (communication through a closed transmission network) requires thesame and adds that only institutions recognized or established by government can rely onthis exception.Article XI.190.11 CEL (performance during public examination) limits the exception to a per-formance for the purpose of assessing a performance in light of granting a degree or title.Article XI.190.13 CEL (communication through dedicated terminals) is limited to communi-cation for private study and research.

¥ With regard to the number of copies.

None of the educational / scientific research exception makes reference to an exact max-imum number of copies. As will be explained below (question 10), it is however acceptedunder Belgian law that the Three-Step Test applies to each exception mentioned above.

¥ With regard to the size (portion / integral reproduction) of the work that is used.

Article XI.189, ¤1CEL (citations) is limited to an extract justified for the purpose of criticism,review, etc. (citation right).Article XI.189, ¤2CEL (anthologies) refers to fragments out of works without stating an exactsize limit. As an anthology requires the authorÕs consent (unless he/she is no longer alive),the size of the anthology will be subject to negotiation.Article XI.190.4¡ CEL (performance during school activities) does not provide a size limit.Article XI.190.6¡ CEL (reproduction to paper for illustration for teaching and scientific re-search) and article XI.190.7¡ CEL (reproduction to a medium other than paper for illustrationfor teaching and scientific research) provide no size limit for reproductions of articles andworks of visual or graphic art. For other works, the reproduction should be limited to ÒshortextractsÓ.Article XI.190.8¡ CEL (communication through a closed transmission network) does not men-tion any size limit. As flagged sub question 5.d. above, one should however take into con-sideration that a size limit may apply for the reproduction of the source of digitization.Article XI.190.11¡and 13¡ CEL do not refer to an explicit size limit. The three-step test how-ever applies.

¥ With regard to performing persons.

Article XI.189, ¤1CEL (citations) is not limited to beneficiaries acting in a specific capacity(teacher, student or other).Article XI.189, ¤2CEL (anthologies) does not explicitly refer to people acting in a specific ca-pacity (teacher or student) and merely states that the anthology should be created Òfor edu-cationÓ. This does not seem to rule out students making an anthology as an assignment.Article XI.190.4¡ CEL does not explicitly refer to people acting in a specific capacity (teacheror student) and applies to both.

56

8)8)

9)9)

Articles XI.190.6¡ and 7¡ CEL (reproduction on paper and medium other than paper for il-lustration for teaching and scientific research) applies to students, teachers or staff making

copies for students[1].Article XI.190.8¡ CEL (communication through a closed transmission network) is limited toinstitutions recognized or established by government.Article XI.190,11¡ CEL (performance during public examination) logically only applies to theperson performing for the purpose of the examination.Article XI.190.13¡ CEL (communication through dedicated terminals) is limited to dedicatedterminals owned or controlled by publicly accessible libraries, scientific or educational insti-tutions, museums and archives.

¥ With regard to the form of reproduction.

Article XI.189, ¤1 and ¤2 CEL (citations - anthologies) is not limited to a specific form (medi-um) of reproduction.Article XI.190.4¡ CEL is limited to a ÒperformanceÓ of a work. As explained above, it is dis-puted whether the term ÒperformanceÓ includes both the use of a work through a live pre-sentation such as power point presentations and a communication at distance (e.g., videoconferences, etc.), for example for the purpose of distance learning.Articles XI.190.6¡ and 7¡ CEL explicitly refer to the allowed medium: either on paper or equiv-alent medium (article XI.190.6¡ CEL) or on other medium than paper (article XI.190.7¡ CEL).Article XI.190.8¡ CEL (communication through a closed transmission network) is limited to in-stitutions recognized or established by government. Teaching staff, students and researchersare allowed access to the works.Article XI.190,11¡ CEL (performance during public examination) logically only applies to theperformance by the person that is being assessed.Article XI.190.13¡ CEL (communication through dedicated terminals) is limited to digital ver-sions that are to be consulted on terminals within publicly accessible libraries, scientific oreducational institutions, museums and archives. Individuals of the general public consultingsuch terminals are allowed to access the works. (Also see reference to the Darmstadt judge-ment sub question 1c above).

FootnotesFootnotes

1. ^ F. DE VISSCHER and B. MICHAUX, PrŽcis du droit dÕauteur, Brussels, Bruylant, 2000, 114.


See question 4 above.



Relevant statutory provisions were cited above.

57

10)10)

11)11)

12)12)


Belgian law does not provide a specific overarching clause stipulating the Three-Step Test[1].Nevertheless, Belgian copyright law partially repeats the Three-Step Test in particular excep-tions and limitations, i.e.¥ Art. XI.190.5¡ CEL (re reproduction on paper for private use)¥ Art. XI.190.6¡ CEL (re reprography for education or scientific research)¥ Art. XI.190.7¡ CEL (re reproduction on other carriers than paper for education or scien-

tific research)¥ Art. XI.190.8¡ CEL (re communication to the public to teaching staff, students and re-

searchers with access to the closed transmission network)¥ Art. XI.190.12¡ CEL (re reproduction for safeguarding the cultural and scientific heritage)¥ Art. XI.190.13¡ CEL (re communication and making available or works through termi-

nals)¥ Art. XI.190.15¡ CEL (re reproduction and communication in favour of disabled persons)¥ Art. XI.191 ¤ 1 CEL (re reproduction and communication of databases)¥ Art. XI.217 CEL (re neighbouring rights).Even though this disparate textual approach might cause confusion at first sight, it has beengenerally accepted under Belgian copyright law that the Three-Step Test applies to each and

every exception mentioned in Belgian copyright law[2], even without a specific reference tothe Three-Step test.

FootnotesFootnotes

1. ^ M.-C. JANSSENS, o.c., 161 and the references cited there.2. ^ M.-C. JANSSENS o.c., 151 and the references cited there.


As a principle, the use under the exceptions or limitations is permitted automatically underBelgian copyright law.An exception to this rule is stated in Art. XI.189 ¤ 2 CEL (see above sub 5.B), which provides

for a compulsory license for the use of works in an anthology Ð in case the author has died[1].This compulsory license consists in a Òfair compensationÓ that is to be Òagreed upon betweenpartiesÓ (copyright owners and anthology compilers) Òor, by lack of agreement, by a judge inaccordance with fair practicesÓ. Only when such a fair compensation has been determined,one can rely upon the anthology exception when the author of the particular copyrightedwork has died.

FootnotesFootnotes

1. ^ When the author is still alive, his/her authorization is required.


Not all but various exceptions and limitations under Belgian copyright law provide in amandatory compensation/remuneration:

i. CompensationCompensation forfor thethe exceptionexception onon thethe privateprivate useuse reproductionreproduction (art.(art. XI.229-XI.234XI.229-XI.234BCEL)BCEL)

58

Art. XI. 229 CEL provides a mandatory compensation for the author, performing artist, pub-lisher of literary works and graphic art and producer of audio works in the private use repro-duction exception (on another carrier than paper) and the exceptions for disabled people.These compensations consist of fixed fees that have to be paid by the manufacturer, importeror purchaser of:¥ carriers that are clearly used for making private use reproductions on an any medium

other than paper or similar carrier, or¥ devices that are clearly used for such reproductions.These fixed fees have to be paid on the date on which the carriers and devices are introducedto the Belgian market. These compensations are to be collected by collecting societies whichwill subsequently allocate the compensations to the authors, performing artists, publisher ofliterary works and graphic art and producers.

ii. Compensation for the exception reCompensation for the exception re reprographyreprography (art. XI. 235-239 BCEL)(art. XI. 235-239 BCEL)

Art. XI. 235 CEL provides a mandatory compensation/remuneration for the author or pub-lisher of literary works and databases in the reprography exception, i.e. the reproduction onpaper or a similar carrier for private use, education or scientific research and for disabledpeople.These compensations consist of fixed fees that have to be paid by the manufacturer, importeror purchaser of devices that are clearly used for making private use reproductions on paperor a similar carrier.These fixed fees are paid on the date on which the devices are introduced to the Belgian mar-ket. These compensations have to be proportionate to the amount of reproductions madeand they are due by:the persons or entities that exploit the acts under these exceptions; orthe persons or entities that put such a device to the disposal of the persons mentioned in theprevious bullet (in such a case, those persons mentioned in the previous bullet are exemptedfrom payment).These compensations are to be collected by collecting societies which will subsequently al-locate the compensations to the authors, performing artists, publisher of literary works andgraphic art and producers.

iii. CompensationsCompensations forfor reproductionreproduction and/and/oror communicationcommunication forfor educationeducation andand scientificscientificresearchresearch (art. XI.240-242 BCEL)(art. XI.240-242 BCEL)

Art. XI.240 CEL provides a mandatory compensation/remuneration:¤ 1 for the author or publisher of literary works or databases for the reproduction on anycarrier other than paper with the purpose of education or scientific research;¤ 2 for the author or publisher of literary works or databases for the communication throughtransmission networks with the purpose education or scientific research¤ 3 for the performing artists, producers of sound recordings and of first fixations of cine-matographic works for (i) the reproduction of short fragments for education and research(art. XI. 217 ¤ 5¡) and (ii) the communication through transmission networks with the purposeeducation and research (art. XI. 217 ¤ 6¡).These compensations have to be proportionate to the exploitation acts that are performedunder these exceptions and they have to be paid by the persons exploiting these exceptions.This means that these compensations are in first instance due by the users themselves, beingphysical persons or entities. As a consequence, the researchers and teachers are often liablefor making such payment. However, Belgian copyright law provides that these persons orentities can be exempted from payment, when the payment is made by the education and

research institution that reproduces or communicates the works under these exceptions[1].

iv. Compensation for the exception onCompensation for the exception on public lendingpublic lending (art. XI.243-245 BCEL)(art. XI.243-245 BCEL)

Art. XI.243 CEL provides a mandatory compensation/remuneration:

59

13)13)

14)14)

15)15)

II.)II.)

16)16)

¤ 1 (see above 1.B) for the author and publisher of literary works, databases, photographicalworks and sheet music;¤ 2 (see above 1.B) for the author, performing artist(s) and producer of audio works andaudio visual works.These compensations are determined by Royal Decree taking into account, a.o. the volumeof the collection of the lending institution and the amount of loans.The compensations are collected by collecting societies and are subsequently allocated asfollows:

- 70% to the authors and 30% to the publishers pursuant to Art. XI.243 ¤ 1 CEL;- Pro rata with each share of the author, performing artist(s) and producer pur-

suant to art. XI.243 ¤ 2 CEL.

FootnotesFootnotes

1. ^ M.-C. JANSSENS in F. BRISON en H. VANHEES (eds.), Hommage ˆ Jan Corbet, 3rd edition, Brussels,Larcier, 2012, 375.


Currently under Belgian law, there is none. Nevertheless, by lack of any specific treatmentfor orphan works, Belgian scholars presume that the above-mentioned exceptions and limi-

tations also apply to orphan works[1].

FootnotesFootnotes

1. ^ M.-C. JANSSENS, ÒOp zoek naar een adoptieregeling voor wezen in het auteursrecht (A Ç diligentsearch È into the issue of orphan works)Ó I.R. D.I. 2009, 12 and 14.


Pursuant to articles XI.193 and XI.219 CEL all exceptions under Belgian copyright law aremandatory, which means that they cannot be overridden by contracts.


yes

There is no official information available in this respect.According to unofficial sources, it appears that some public libraries started with a test projectto lend e-books. The lending fees were determined in cooperation with the publishers. Itseems that due to technical issues, this project has been recently aborted. Nevertheless, thelibraries announced that they intended to re-launch a new version of a similar project in anear future.



yes

Yes: in relation to the activities that pertain to the public interest mission that libraries and

archives are supposed to pursue[1]:

60

17)17)

¥ Preservation,¥ Restoration (including format shifting),¥ Making accessible (dissemination) to the public of cultural, scientific or informational

works[2].The public interest mission of libraries and archives can be related directly to fundamentalrights (protected in the EU Charter of Fundamental Rights) such as the right to freedom ofexpression and information, right to privacy, the freedom of the arts and sciences, the rightto education.Consequently, there should be exceptions to copyright protection (reproduction, communica-tion to the public including the making available right, and distribution including lending) forlibraries and archives to the extent that such is required to achieve the public mission theseinstitutions are entrusted with.The exact formulation of such exception should however reconcile diverse interests, especiallythe interest of the libraries and archives (whose mission is to preserve and disseminate cul-tural and scientific works), of the general public and the individual user (who wishes to enjoythe opportunities created by digital and online technologies to access cultural, scientific andinformational works) and of the authors, performers and other right holders (who have exclu-sive rights protecting the exploitation of their works and creations Ð including new emergingexploitation models). Particular attention should be paid to the digitisation of the collection(transforming an analogue format to digital format) and, independently from the digitisa-tion, the availability to the public of the work in the digital format (onsite or online).The taking into account of the interest of the right holders should include the payment of afair compensation in appropriate cases.

FootnotesFootnotes

1. ^ See on the role of libraries, archives and museums : S. DUSOLLIER, ÒThe limitations and exceptionsto copyright and related rights for libraries, research and teaching usesÓ in J.P. TRIAILLE e.a. StudyOn The Application OfDirective 2001/29/Ec On Copyright And Related Rights In The Information So-ciety(The "Infosoc Directive"), available at http://ec.europa.eu/internal_market/copyright/docs/studies/131216_study_en.pdf , p. 258 et s.

2. ^ In TU Darmstadt, the CJEU stated that the core mission of publicly accessible libraries is the dis-semination of knowledge. In relation to this mission, the exception contained in art. 5(3)(n) promotesÒthe public interest in promoting research and private studyÓ (judgment in TU DarmstadtECLI:EU:C:2014:2196, par. 27).


yes

Yes. In the course of teaching and research, many activities may have some copyright rele-

vance[1]:¥ TeachersTeachers may reproduce protected subject matter while preparing their classes, include

some in the teaching materials, they may hand out protected subject matter (such asnewspaper articles or graphic illustrations) as study material, they may make such pro-tected material available in an electronic version (by e-mail or e-learning platforms) andthey may display protected creations in the class room (e.g. powerpoint presentations,show videos or listen to audio fragments).

¥ StudentsStudents may copy works while preparing exercises, exams or (written) assignments, theymay quote fragments for the same purposes or otherwise use existing materials in schoolprojects, they may display protected works in presentations in the class room and makesuch available to their fellow students (via e-mail, the e-learning platform of the schoolor otherwise),É

¥ ResearchersResearchers may copy materials while conducting their research (e.g. while preparinga research paper or a conference presentation), they may include some protected ele-ments in their ÒoutputÓ (e.g. quoting existing materials in articles or presentations), dis-

61

18)18)

19)19)

20)20)

tribute this output (e.g. publication in a journal) or make it available to the public (onlinepublication, possibly through Òopen accessÓ or other repositories). ÒData miningÓ is alsorelevant in this context (be it by the researcher or her institution).

¥ The teachingteaching oror researchresearch institutionsinstitutions may deploy activities in support of the teachingand research by their teachers and students.

These activities are commonly considered as a public interest objective and can be relateddirectly to fundamental rights as protected in the EU Charter, e.g. freedom of expression andinformation, freedom of the arts and sciences, right to education.The protection of these fundamental rights is (and should be) accommodated in copyright inthe form of statutory exceptions.The precise formulation of the exceptions should reconcile the interests of the various stake-holders, including the protection of the exploitation of protected works (also through newbusiness and exploitation models) and the legitimate interests of the right holders. This maybe a delicate matter, especially for authors and publishers of educational and scientific works(e.g. school books, teaching material, educational software,É).

FootnotesFootnotes

1. ^ S. DUSOLLIER gives an extensive overview of the acts teachers, students, researchers and institutionsmay engage in: S. DUSOLLIER, l.c., 353-355.


yes

At the legislative level, it is a useful test: it requires the legislature to draft a carefully formu-lated exception, with precise conditions in order to achieve the delicate balance between thevarious stakeholders.After that, the courts assess whether any given use falling within the scope of an exceptionalso complies with the three-step test.


Under Belgian law, the application of an exception cannot be overridden by contract (excep-tions to the exclusive rights being mandatory Ð see art. XI.193 CEL). It should be verifiedwhether that rule is actually in compliance with the balance of interests of the various stake-holders and whether it is reasonably justified on the ground of the public interest objective ofthe exceptions concerned.


The need for a compensating remuneration right should be assessed on the economic effectthat any exception could have on the author or right holder, in conformity with the CJEUdecisions on this point. It could be argued that the exception allowing libraries or archiveswithout commercial or economic objective to make specific reproductions in the context oftheir public interest mission (e.g. preservation of the collection) is not likely to have a signif-icant impact on the exploitation of the work. By contrast, other uses such as the (digital oranalogue) copying of protected works by students, teachers, researchers or the teaching orresearch institution may have a bigger impact, which justifies a compensation by means of aremuneration.

62

21)21)

III.)III.)

22)22)


A number of questions should be further examined in relation to the exception for librariesand archives, in order to improve the current law where needed:

¥ DigitisationDigitisation ofof collectionscollections andand makingmaking thesethese accessibleaccessible toto thethe public.public. Librariesand archives are increasingly involved in (international, European) projects pursuingthe preservation and opening up of their collections. It is uncertain whether suchlarge-scale digitisation efforts fall within the scope of the exception covering repro-ductions for the preservation of cultural or scientific her-itage. It is certainthat such projects exceed the scope of the exception for communicating the library orarchive collection via dedicated terminals on the premises of the establishments wherethe digitised collections are accessible to the general public (online, using their own de-vices). The strict conditions imposed by the exception under current law constitute an im-portant obstacle to such projects and therefore it should be verified whether these con-ditions cannot be replaced by other conditions which would enhance the accessibility ofthe collection without compromising the exploitation of the work.

¥ E-lending.E-lending. Libraries are experimenting with e-lending initiatives[1]. Such experiments arecurrently not so much based on the exception for lending by public libraries but on nego-tiated licences with publishers. It should be examined whether the limitation to the rightsfor the purpose of public lending should also cover works in electronic formats (books,music, video, video games,É), considering the educational and cultural objective of theexempted use and the beneficiary of the exemption (public institutions).

¥ TeachingTeaching andand research.research. The exceptions covering teaching and research are fairly largeand allow the students, teachers, researchers and institutions to pursue their studying,teaching or researching activity. Some conditions could be clarified, such as the exemp-tion of protected acts for teaching or research to the extent that such is justified by theÒnon-profit objectiveÓ, the beneficiaries of some exceptions (institutions recognised orfounded by the governmentÓ) or the type of activities covered (Òschool activitiesÓ).

FootnotesFootnotes

1. ^ S. DUSOLLIER, "A manifesto for an e-lending limitation in copyright", JIPITEC 2014, Vol. 5.(urn:nbn:de:0009-29-40961), available at http://www.jipitec.eu/issues/jipitec-5-3-2014/4096.



yes

see below.


63

23)23)

24)24)

a)

b)

c)

25)25)

a)




Libraries, archives or other institutions that are publicly accessible, without commercialpurpose (direct or indirect), with a public interest mission (preservation of cultural orscientific heritage, restoration and dissemination of culture and/or science).


¥ Constitution and preservation of the collection, including digitisation of the collec-tion;

¥ Accessibility of the collection through onsite consultation (including through dedi-cated terminals on the premises, possibly relaxing this condition in the current tech-nical environment); considering the international and European efforts on digitallibraries and the e-accessibility of scientific and cultural heritage, the definition ofthe exception should be aligned to these objectives;

¥ Lending (including possibly e-lending on strict conditions).


¥ Non-commercial use;¥ The exception should not compromise the normal exploitation of protected works,

including future or developing exploitation models in an online environment norunreasonably prejudice the legitimate interests of the right holders;

¥ Accessibility restricted to a defined public (e.g. researchers, member of the library/archive,É);

¥ Compensation through remuneration if the exception is likely to affect the exploita-tion of the work (in particular for lending and e-lending);

¥ Possibly additional services (e.g. document delivery services), under a collective li-censing regime.

¥ ÉThe objective of harmonisation requires in the first place that all harmonising States (EUor international harmonisation) impose the same conditions (with no or little margin todeviate from the adopted text), as to enable international/European projects. Alterna-tively, another mechanism should be adopted to neutralise the effects of the territorialnature of copyright.



Educational and research institutions with a public interest mission. Attention should bepaid to the non-commercial nature of their activities. A first option could be that theexceptions and limitations do not apply to institutions which pursue a commercial pur-pose in general. If a distinction has to be made between those institutions and others,useful indications should be provided to make that distinction. In this context, it couldbe considered that the mere fact that an institution imposes an enrolment fee does notimply in itself that the institution pursues a commercial purpose in general. Apart from

64

b)

c)

26)26)

27)27)

28)28)

29)29)

the distinction above, it should be clarified that the exceptions and limitations do notapply to the specific activity at stake if that activity gives rise to a payment the amount of

which goes beyond what is necessary to cover the operating costs of the institution[1].

FootnotesFootnotes

1. ^ See recital (11) of the Directive 2006/115 on rental right and lending right, in relation to lend-ing not made for a direct or indirect economic or commercial advantage.


Non-commercial teaching, research, school activities (where the public is restricted tothe students/pupils, researchers, teachers and institutions).


Taking into account the interests of the right holders, the applicable conditions shouldinclude¥ The non-commercial nature of the activities (cf. a))¥ A fair compensation in case of harm to the exploitation of the work¥ In appropriate cases, a limitation of the size of the work used, depending on the

type of work¥ Mention of source and respect of moral rights to a reasonable extentThe objective of harmonisation requires in the first place that all harmonising States (EUor international harmonisation) impose the same conditions (with no or little margin todeviate from the adopted text), as to enable international/European projects (e.g. re-searcher and student mobility within EU). Alternatively, another mechanism should beadopted to neutralise the effects of the territorial nature of copyright.



Automatically.


On the basis of the use of the work and the (potential) harm to the exploitation of the work.


Cf. Implementation of EU directive.


The circumstances in which the exceptions or limitations could possibly be overridden by con-tract should be directly related to the need for the protection of the normal exploitation of thework and, to a reasonable extent, of the legitimate interests of the right holders.

65

30)30)

It should be considered whether it is wise to provide that, as a general and mandatory rule,the exceptions and limitations cannot be overridden by contract.


In cases where it is not clear whether the exception or limitation apply, it might still beuseful for the stakeholders to address the use of works through the conclusion of contractualarrangements.

SummarySummary


66

I.)I.)

1)1)

a)

b)

c)

d)

2)2)

3)3)

4)4)

BrazilBrazil


in the name of the Brazil Groupby Fabio Luiz BARBOZA PEREIRA and Alvaro LOUREIRO OLIVEIRA


QuestionsQuestions




no

No, the Brazilian Copyright Act (Law no. 9,610/98) and no other Brazilian law provide forexceptions or limitations to copyright protection specifically for libraries and archives. TheBrazilian Copyright Act does set forth a number of limitations on Copyright and the closestone to libraries and archives the Law provides for is the use of excerpts of protected worksfor the purposes of study, criticism or debate, as per Section 46, III of the aforementionedLaw.






N/A, as the Law does not grant exceptions or limitations specifically for libraries andarchives.





67

5)5)

a)

b)

c)

d)

e)

f)

6)6)

7)7)

8)8)


no

The Brazilian Copyright Act (Law no. 9,610/98) and no other Brazilian law provide for ex-ceptions or limitations to copyright protection specifically for education and research insti-tutions. However, as per the answer to question 1 above, the Law provides for the use ofexcerpts of protected works for the purposes of study, criticism or debate, as per Section 46,III of the aforementioned law. In addition, the Law provides for a specific exception for theuse of notes taken in the course of lessons given in education institutions by the persons forwhom they are intended, provided that their complete or partial publication is prohibitedwithout the express prior authorization of the person who gave the lessons (Section 46, IV ofthe Law).








Only the limitation set forth in Section 46, IV mentioned above, which specifically refers tonotes taken in the course of lessons given in education institutions.


N/A, as the Law does not grant exceptions or limitations specifically for libraries andarchives. As mentioned in response to question 5, there are exceptions for the purposes ofstudy, criticism and debate and for the use of notes taken during lessons in education insti-tutions.




68

9)9)

10)10)

11)11)

12)12)

13)13)

14)14)


Although it is not possible to assert that exceptions and limitations to Copyright for libraries,archives, educational and research purposes are specifically allowed in Brazil, it is importantto comment a specific case law that accepted other limitations and exceptions not specificallyreferred to in the Brazilian Copyright Act.

It is represented by the Brazilian Superior Court of JusticeÕs decision on an appeal[1] in whichit is stated that (i) exceptions and limitations to copyright are not exhaustively listed in Section46 of the Brazilian Copyright Act since further exceptions and limitations may be construedby basically analyzing the supremacy of constitutional rights over infra-constitutional rights.In other words, the decision sets forth that exceptions and limitations to copyrights must beprimarily based on the fundamental rights (provided for by the Brazilian Constitution), suchas access to culture, right to education, privacy, freedom of speech and national develop-ment, and not be strictly limited to a simple list in an infra-constitutional law. On the oth-er hand, the decision also highlighted that the assessment of exceptions and limitations toCopyright must always be made under rigid and strict criteria and the Berne ConventionÕsThree-Step Test must always be complied with.

FootnotesFootnotes

1. ^ REsp 964.404 Ð ES (2007.0144450-5), Terceira Turma, Ministro Paulo de Tarso Severino, March15th, 2011.


Not specifically, as the Law does not grant exceptions or limitations specifically for librariesand archives.






No.


No, but as mentioned in response to question 9 above, case law has determined that the listof limitations and exceptions to Copyright is not exhaustive.

69

15)15)

II.)II.)

16)16)

17)17)

18)18)


yes

Changes to the Brazilian Copyright Act are currently being discussed and a proposed bill oflaw is currently under review of the Ministry of Culture. In the current proposal for the bill oflaw, there are provisions to allow libraries and archives to reproduce existing and protectedworks for the purposes of conservation, as well as to make protected works available to thepublic for the purposes of study. The Brazilian Association for Intellectual Property (ABPI) al-

so addressed this matter, issuing Resolution no. 37, of October 20th, 2005. The Resolutionsuggests an amendment to Section 46 of Law no. 9,610/98 (the Brazilian Copyright Act),which lists the exceptions and limitations to Copyright. The ABPI suggests the broadening ofthe scope of the list of limitations and exceptions, adding provisions to allow the partial orentire reproduction, distribution and use of intellectual works for purposes of preserving orstudying the work, provided that moral rights are preserved, and provided that (i) the pur-pose of the reproduction, distribution or use will not be essentially commercial; and (ii) thereproduction, distribution or use does not hamper the normal exploitation of the work. The

Resolution was submitted to the House of Representatives on December 2nd, 2005, but hasnot become a bill of law. It does fit with the current proposals for the bill of law, currentlyundergoing review at the Ministry of Culture.



yes

Yes, in line with the ABPIÕs studies and reports, there should be exceptions and limitationsto copyright for libraries and archives primarily for information, preservation and access toinformation and culture purposes.


yes

Yes, on the same basis as the answer to question 16, exceptions and limitations to copyrightfor educational and research institutions shall also be established for activities strictly relatedto the aim of those organizations, preservation of works, provided that moral rights of theauthors are respected.


yes

Yes, the Three-Step Test should always be complied with when assessing whether an excep-tion or limitation to copyright is acceptable or not, since it encompasses all main criteria thataim at protecting the author and his work.

70

19)19)

20)20)

21)21)

III.)III.)

22)22)

23)23)

24)24)

a)

b)

c)


No. Considering the reflections above, exceptions and limitations are constitutionally basedand, thus, shall not be overridden by contract.


We understand that remuneration shall only be payable for the activities described in 16)and 17) above in case the use of protected works are likely to hamper the normal exploita-tion of the works by the author or the owner.


The Brazilian Copyright Act currently in force could be improved in the event it is amended toencompass the exceptions and limitations mentioned herein, by allowing certain exceptions,in line with the moral rights of the author and the constitutional rights, access to informationand to culture.



yes

Yes, considering the globalization and range of possibilities for the exchange of informationamong users of copyrighted works around the world.





Such exceptions and limitations should mainly apply to non-profit organizations, publiclibraries and public archives certified by the Government.


The exceptions and limitations should apply to the use, copying and reproduction ofcopyrighted work for the purposes of preservation thereof and access to culture andeducation, respecting the moral rights of the author.


Under the limited scope of use during lessons, in the course of educational activitiesor activities at non-profit institutions, provided that there is no economic harm to theauthor, etc.

71

25)25)

a)

b)

c)

26)26)

27)27)

28)28)

29)29)



Such exceptions and limitations should mainly apply to non-profit organizations andpublic education and public research institutions certified by the Government.


The exceptions and limitations should apply to the use, copying and reproduction ofcopyrighted work for the purposes of preservation thereof and access to culture andeducation, respecting the moral rights of the author.


Under the limited scope of use during lessons, in the course of educational activities oractivities at non-profit and public institutions, provided that there is no economic harmto the author, etc.



Automatically without any further action, subject to conditions to be complied with, to be de-termined by a change in the current Copyright Act.


The remuneration for use under an exception or limitation should be calculated on the basisof the market value of the work and the number of copies used or the public/audiencereached. Payment should be made by the relevant institution which made the work availableto the public, subject to GovernmentÕs incentives, and to a collecting society which would re-munerate the authors/owners.


There should be an obligation, placed on the institution making the work available to thepublic, to be sufficiently equipped for and providing evidence that it had unsuccessfullysearched for the copyright holder without success. In those cases, the institution would paya standard fee to the collecting society for future remuneration of the author, such fee to bekept under escrow by the collecting society for a certain period of time and, if not claimed,to be invested in its own activities.


Exceptions and limitations should never be overridden by contract since they are based onconstitutional provisions that must be observed by private entities.

72

30)30) HowHow shouldshould anyany effortsefforts byby privateprivate organisationsorganisations toto addressaddress useuse byby libraries,libraries, archivesarchives andandeducationaleducational andand researchresearch institutions,institutions, bebe reconciledreconciled withwith anyany exceptionexception oror limitationlimitation pro-pro-vided by law?vided by law?

Those institutions should aid the government authorities, the Ministry of Culture and the ABPIand other representative organisations to draft and amend the existing Copyright Act, to addthe aforementioned exceptions and limitations and regulate their applicability.

SummarySummary


73

I.)I.)

1)1)

a)

b)

c)

BulgariaBulgaria


in the name of the Bulgaria Groupby Velizar SOKOLOV


QuestionsQuestions




yes


yes

Yes, without consent of the owner of the copyright and without payment of compensa-tion the libraries and archives are allowed to reproduce already published works forthe purposes of preservation of the work, however, under the condition such reproduc-tion not to be for commercial purposes.Distribution for the purpose of preservation or replacement is not applicable.


no

No specific provisions in the Law on Copyright and Neighboring Rights (LCNR).However, according to the Bulgarian Law for Compulsory Deposit of Printed and OtherWorks in a term of two weeks of the printing of the first batch of the circulation, thepublishers and producers of the printed works are obliged to present copies of theseprinted works in the Bulgarian National Library.The number of the copies of the printed works that should be presented depends onthe volume of the circulation (three copies for circulation up to 100 numbers and twelvecopies for circulation over 300 numbers). The National Library divided part of the re-ceived copies between other libraries in the country, in order, determined by a regula-tion.As seen from the above, for the purposes of interlibrary lending, the libraries are notallowed to reproduce copyrighted works by themselves, as they may use and interli-brary lending only the legally acquired original copies.


no

No specific provisions in the LCNR.However pursuant to specific legislation the Council of Ministers and the MunicipalityCouncils adopt tariffs of administrative fees containing a specific position for lendingphoto or digital copies of literary works to members of libraries or registered users of

74

d)

2)2)

3)3)

4)4)

5)5)

a)

archives which imply that in practice exceptions or limitations to copyright protection forlibraries and archives are applicable as regards reproduction and/or distribution forthe purpose of providing copies to users. These exceptions and limitations are ground-ed on the presumption that such use is for educational purposes which falls in the scopeof the abovementioned Article 24, item 9 of the LCNR.The administrative fees here above are not considered a copyright remuneration orcompensation.


no

N/A


Pursuant to Article 24, item 9 of the LCNR the said exceptions or limitation apply to publiclyaccessible libraries, educational or other learning establishments, museums and archive in-stitutions only.


No specific provisions in the LCNR.The type and scope of the permitted activities, such as number of copies, or whether onlypart of the work may be used, the form of reproduction, etc., are determined by the Rules forthe activity of the respective library or archive.


According to the imperative provision of the LCNR the copyrighted works that might be usedby publicly accessible libraries, educational or other learning establishments, museums andarchive institutions should be legallegal and already published workspublished works.


yes


yes

The Bulgarian copyright law recognizes the exceptions or limitation to copyright pro-tection for education and research institutions. The respective provision is stipulated inArticle 24, item 8 and item 9 of the LCNR, according to which:ÒWithout consent of the owner of the copyright and without payment of compensationshall be permissible:

75

b)

c)

d)

e)

8. public presentation and public performance of published works inin educationaleducational ororotherother learninglearning establishmentsestablishments, provided that no pecuniary revenues are received andno compensation is paid to the participants in the preparation and realization of thepresentation or the performance;9. reproduction of already published works by publicly accessible libraries, education-education-alal oror otherother learninglearning establishmentsestablishments, museums and archive institutions, with educa-tional purposes or with the purpose of preservation of the works, unless serving forcommercial purposes;Yes, the Bulgarian law provides for public presentation and public performance ofpublished works in educational or other learning establishments provided that no pe-cuniary revenues are received and no compensation is paid to the participants in thepreparation and realization of the presentation or the performance.


yes

Yes, pursuant to the provisions of the LCNR without consent of the owner of the copy-right and without payment of compensation it is permissible the use of parts of pub-lished works or of not big number of works in other works when such use is only forscientificscientific andand educationaleducational purposespurposes and under the condition the source and the nameof the author are indicated, unless impossible.


no

There are no explicit provisions regarding the translation of a copyrighted work for thepurposed of education and research institutions.However, since the definition for ÒuseÓ according to the Bulgarian law includes Òtrans-lation of a copyrighted workÓ, it might be accepted that the exceptions or limitationsto copyright protection are applicable for making translation of a copyrighted work forthe purposes of education and research institutions.


no

There are no explicit provisions regarding exceptions or limitations to copyright pro-tection for making available in digital networks for educational purposes, such as up-loading course packs onto on-line platforms, compilations or anthologies, providingdistance education.


yes

Article 24, item 9 of the LCNR provides for reproduction of copyrighted works withoutconsent of the owner of the copyright and without payment of compensation for edu-cational and preservation purposes only, hencehence freefree reproductionreproduction forfor researchresearch pur-pur-poses is not permissibleposes is not permissible;

76

f)

6)6)

7)7)

8)8)

9)9)

10)10)


no

N/A


The said exception applies only to public accessible educational institutions and does not ap-ply to research institutions no matter their nature.


No specific provisions in the LCNR.


Yes, the Bulgarian law requires the copyrighted works which shall be used without the con-sent of the author and without payment of compensation to be legally acquired and pub-lished works.



The exceptions and limitations to copyright protection works are imperatively stipulated in theBulgarian LCNR


Yes, the Bulgarian legislation recognizes the Three-Step Test (in equivalent wording) in rela-tion to the said exceptions and limitation to copyright protected works, and namely:According to Article 23 of the LCNR Óthe free use of works shall be permissible:-only in the cases, pointed out in the law;-under the condition, that the normal use of the work is not hampered; and- the legitimate interests of the owner of the copyright are not impaired.Ó

77

11)11)

12)12)

13)13)

14)14)

15)15)

II.)II.)

16)16)

17)17)


The use of copyrighted works under the exception or limitation is permitted automatically,provided that requirements of the law and certain internal regulations are fulfilled (such asthe user in a library or in an archive institution to fill in a register form).


The free use of already published literary works or parts thereof by libraries or educationalinstitutions is permissible without payment of remuneration to the authors.


Pursuant to the latest amendments in the Bulgarian LCNR adopted in February 2015, allprovisions related to the special rules for use of orphan works and sound recordings shallbe applicable also for the publicly accessible libraries, educational or other learning estab-lishments and museums, as well as by archives, institutions which preserve film and soundrecording heritage and public radio- and television organizations with headquarter in theRepublic of Bulgaria, solely for the achievement of the goals related to their social purposes.


No, the Bulgarian legislation does not provided for contractual weaver of the exception orlimitation for use of the copyrighted protected works.


no

There are no information for such efforts by private organizations.



yes

Yes, there should be exceptions or limitations to copyright protection for libraries andarchives.The exceptions or limitation to copyright protection for libraries and archives should be ap-plicable for educational and preservation purposes.


yes

78

18)18)

19)19)

20)20)

21)21)

III.)III.)

22)22)

There should be exceptions or limitation to copyright protection for education and researchinstitutions.Except for the purposes of analysis, commentary, science and education as provided in thecurrent law, specific exceptions or limitation applicable also for course packs, compilationsor anthologies, as well as exams should also be considered, provided that such use is foreducational purposes.


yes

The Three-Step Test is useful test for determining any exceptions or limitations to copyrightprotection, as far as it determines the basic criteria which should be met in order a copyright-ed work to be used without the consent of the author and without payment of compensation.


Such an exception contradicts to the overall legal system in Bulgaria. Contractual waiver ofimperative legal provisions is inapplicable.


No, there should be no remuneration payable for the activities described in items 16 and 17above, except for the administrative fees, provided for the services rendered in the libraries,archive, educational and research institutions.


Bulgarian legislation does not provide for any explicit provisions regarding digital libraries,preparation and free use of course packs, compilations or anthologies and exams for educa-tional purposes and their uploading onto on-line platforms, as well as for provisions relatedto the distance education.Such explicit provisions are needed in order the activity of the above organizations and typeof copyrighted works to be clarified.For example, our law might be improved by adoption of provisions for restriction the down-loading of published copyrighted works by the users of on-line libraries, or for limitation ofthe access to the copyrighted work to unlimited number of users at the same time.The scope of the exceptions and limitations should be expanded to cover reproduction ofcopyrighted works by research institutions for non commercial purposes



yes

The Bulgarian LCNR is harmonized to a satisfactory extend as regards the exceptions andlimitations.

79

23)23)

24)24)

a)

b)

c)

25)25)

a)

b)

c)

However, further efforts for harmonization of the current law should be undertaken and inparticular as regards the digital libraries, preparation and free use of course packs, compi-lations or anthologies and exams for educational purposes and their uploading onto on-lineplatforms, as well as such related to the distance education.The scope of the exceptions and limitations should be expanded to cover reproduction ofcopyrighted works by research institutions for non commercial purposes.



no

N/A



These exception or limitation should apply for public accessible libraries and archives.


These exceptions or limitations should apply only for the purposes of education, re-search, science or preservation of the copyrighted works.


The activities should be undertaken and the copyrighted works used for noncommercialpurposes only, and only with regard to cases explicitly provided for by the law, underthe condition the normal use of the work is not hampered, and the legitimate interestsof the owner of the copyright is not impaired.



These exception or limitation should apply for public education and other learning andresearch institutions.


These exception or limitation should apply only to scientific and educational purposes.


The activities should be undertaken and the copyrighted works used for non commer-cial purposes only, and only with regard to cases explicitly provided for by the law,under the condition the normal use of the work is not hampered, and the legitimateinterests of the owner of the copyright is not impaired.

80

26)26)

27)27)

28)28)

29)29)

30)30)



The use under the exception or limitation should be permitted automatically.


No remuneration to the authors should be paid.


Currently, the Bulgarian legislation provides for broad regulation of the orphan works, in-cluding the exceptions and limitations in question.


The exceptions or limitations should not be capable of being overridden by contract.


N/A

SummarySummary

The Bulgarian copyright law recognizes the exceptions and limitation to copyright protectionfor libraries and archives within the meaning of Article 9 (2) of the Berne Convention of1886. The respective provision is stipulated in Article 24, item 9 of the Law on Copyright andNeighboring Rights (LCNR), according to which:ÒWithout consent of the owner of the copyright and without payment of compensation shallbe permissible:9. reproduction of already published works by publicly accessible libraries, educational orother learning establishments, museums and archive institutions, with educational purposesor with the purpose of preservation of the works, unless serving for commercial purposes;


N/A

81

I.)I.)

1)1)

a)

b)

c)

d)

2)2)

CA-Caribbean Regional-GroupCA-Caribbean Regional-Group


in the name of the CA-Caribbean Regional-Group Groupby Edy Guadalupe PORTAL


QuestionsQuestions




yes


yes

Article 45 d) of the Salvadorian Intellectual Property Law allows the reproduction of acopy of a work by a library, as long as the library is a non profit organization, suchwork is a part of its permanent collection, and the reproduction is made for safe keep-ing purposes or in order to substitute the original in case it deteriorates, as long as thework cannot be acquired in normal conditions. The law does not grant the faculty toissue copies for distribution purposes.


yes

Reproduction of a copy of the work for interlibrary lending is allowed, as long as it isdone between non-profit organizations.


yes

Salvadorian Intellectual Property Law does not grant libraries the faculty to reproducethe work in order to provide copies to the users.


yes

Does not apply.


The exceptions only apply to non-profit libraries or archives.

82

3)3)

4)4)

5)5)

a)

b)


Salvadorian Intellectual Property Law does not mention a limitation in regards to the numberof copies, but it states that it must be an individual copy and that the purpose for such copyhas to be either safe keeping, the substitution of a deteriorated work or interlibrary lending.However, article 45c) states that Òthe reproduction by reprographic means, to the extent jus-tified by the purpose, of articles, brief extracts or lawfully published short works for teachingor the holding of examinations at educational institutions, provided that there is no gainfulintent and that such use is made in accordance with proper practiceÓ. This means that nospecific number of copies are established, but the copies must be based on justified factors.


No, there are no conditions as to the type of copyrighted work that may be used.


yes


yes

performance and display for educational purposes is allowed as long as it is done by alegally accredited entity (schools, universities, etc.), and for non-profit purposes. Specif-ically, the Law provides the following exceptions:Article 44. Art. 44. The following communications shall be lawful without the autho-rization of the author or payment of remuneration:c) those recognized as being for exclusively educational purposes and which take placein teaching establishments, provided that there is no gainful intent.Art. 45. With regard to works that have already been lawfully disclosed, the followingshall be allowed without the consent of the author or remuneration:the reproduction by reprographic means, to the extent justified by the purpose, of arti-cles, brief extracts or lawfully published short works for teaching or the holding of ex-aminations at educational institutions, provided that there is no gainful intent and thatsuch use is made in accordance with proper practice


yes

As stated in question 3, reproduction is allowed for educational purposes, limited tobrief extracts, articles and small works. The law does not grant the faculty to reproducea complete work. Article 45, letter c) above referred is the one appropriate limitationfor this case:Art. 45. With regard to works that have already been lawfully disclosed, the followingshall be allowed without the consent of the author or remuneration:

83

c)

d)

e)

the reproduction by reprographic means, to the extent justified by the purpose, of arti-cles, brief extracts or lawfully published short works for teaching or the holding of ex-aminations at educational institutions, provided that there is no gainful intent and thatsuch use is made in accordance with proper practiceSpecially for anthologies the following limitation is the one that applies:Art. 49-С.- It shall be lawful to reproduce brief fragments of literary, scientific or artisticworks in publications or anthologies for the purposes of teaching, science, literary crit-icism or research, provided that the source is unmistakably indicated; that the texts re-produced are not altered; and that the reproduction does not conflict with the normalexploitation of the work or prejudice the legitimate interests of the author.


yes

Salvadorian Intellectual Property Law does not incorporate translations as a licit use ofthe work. However, brief fragments of translations from protected works can be citedwithout legal restriction. Accordingly, it is not permitted to disclose an entire work as atranslation of the same, but is acceptable to cite brief fragments of the same. Article 49last part literally sates:For the same purposes and with the same restrictions, brief fragments may be pub-lished in translations. The entire article is as follows:Art. 49-С.- It shall be lawful to reproduce brief fragments of literary, scientific or artisticworks in publications or anthologies for the purposes of teaching, science, literary crit-icism or research, provided that the source is unmistakably indicated; that the texts re-produced are not altered; and that the reproduction does not conflict with the normalexploitation of the work or prejudice the legitimate interests of the author.For the same purposes and with the same restrictions, brief fragments may be pub-lished in translations.


yes

Salvadorian Intellectual Property Law does not incorporate making available in digitalnetworks for educational purposes as a licit use. Lack of regulation is due to the factthat the Intellectual Property Law was issued in the year 1993.Nevertheless, since theseare uses for educational purposes, it can be considered as an exception also. Accord-ingly, it does not matter if the fragments are available in digital networks, what reallymatters are that the disclosure of these fragments is based on educational purposes.Therefore, even though our Intellectual Property Act does not incorporate this kind ofdisclosures, we believe that the same limitations of Articles 44, 45 and 49 apply forthese actions also.


yes

Reproduction for research purposes is allowed, but the reproduction must be done onbrief fragments of the work.Reproductions is allowed for personal and family use, educational purposes, officialgovernment events with certain restrictions, judicial procedure based on the evidentiaryvalue of the work and by the pres with certain restrictions.

84

f)

6)6)

7)7)

8)8)

9)9)

10)10)

11)11)



The exceptions or limitations apply only to educational and research institutions, as long asthe use is non-profit oriented. The law does not estate that the institution must be non-profit;it requires that the institution is legally incorporated and that the use is for non-profit purpos-es. For example a private school can make a copy of a work as a backup copy or due to thedeterioration of the original work, but it cannot distribute it or sell such copy.


There are no regulations in regard to the persons, the only condition is that the use mustbe done based on a non-profit activity, it does not matter if the institution is a non-profit or-ganization or not. The reproduction must be done based on non-profit activities. However,in regard to libraries and archives, these entities must be a non-profit institution in order tohave these exceptions.


No, there are no conditions to that regard.



No.


Yes, as members of the Bern Convention, the Three-Step test is applicable. In fact, the threestep test is included into our Intellectual Property Law, specifically in article 45a), as follows:Art. 45. With regard to works that have already been lawfully disclosed, the following shallbe allowed without the consent of the author or remuneration:(a) production of one copy of the work for the personal and exclusive benefit of the user, whoshall have made it himself with his own facilities, provided that the normal exploitation of thework is not affected and the legitimate interests of the author are not unjustifiably prejudicedthereby


Use under the exception or limitation is permitted automatically.

85

12)12)

13)13)

14)14)

15)15)

II.)II.)

16)16)

17)17)

18)18)


As the exceptions or limitations are only applicable to non-profit activities, there is no remu-neration payable under the exceptions or limitations.


No, there is no special treatment for orphaned work.


No.


yes

recently Creative Commons International authorized Creative Commons El Salvador as anofficial chapter. Therefore, they are addressing the use of the Licenses to archives, librariesand other institutions.



yes

there should be exceptions or limitations to copyright protection for educational and researchinstitutions. As long as the activities comply with the three step test, and such use is destinedto a non-profit purpose and limited to the making of a single copy but not the distribu-tion which would directly affect the author. Nevertheless, Intellectual Property Law should in-clude more limitations and exceptions to libraries and archives such as reproduction of entireWorks for research purposes only.


yes

there should be exceptions or limitations to copyright protection for educational and researchinstitutions. As long as the activities comply with the three step test, and such use is destinedto a non-profit purpose.


yes

86

19)19)

20)20)

21)21)

III.)III.)

22)22)

23)23)

24)24)

a)

b)

Yes it is useful. The three-Step Test establishes easy to follow criteria which must be appliedon a case by case basis. Such criteria allows the use of the work without undermining theright of the author and provides rules for the reasonable and legal use of the work.


No. The exceptions or limitations purpose is to allow licit uses of a work, for educational,research and personal use. If through a contract the right of fair use is limited, the authorwould be invading the legal sphere of conducts which in compliance with the three step testwould not be affecting him directly, therefore contractually overriding the exceptions or limi-tation should not be allowed.


Yes, as limitations and exceptions work in favor of the author, international tendencies seekto generate further protection for the authors and the creation of special laws to regulate theactivities of libraries.


Due to changes in technology, and as the Salvadorian Intellectual Property Law was issuedin the year 1993, it could be improved by incorporating regulations in accordance to thetechnological changes which have taken place since that date.



yes



yes

Does not apply.



They should be applied to all types of libraries, archives and other organizations, aslong as the use of the work is for a non-profit purpose.


The exceptions or limitations should be applied to educational and research activities.

87

c)

25)25)

a)

b)

c)

26)26)

27)27)

28)28)

29)29)


As long as the activities comply with the three step test, and such use is destined to anon-profit purpose and limited to the making of a single copy but not the distributionwhich would directly affect the author.



They should be applied to all types of libraries, archives and other organizations, aslong as the use of the work is for a non-profit purpose.


The exceptions or limitations should be applied to educational and research activities.


As long as the activities comply with the three step test, and such use is destined to anon-profit purpose.



The use under the exception or limitation should be permitted automatically, based on thecriteria contained in the three step test and the national law of each country.


No remuneration should be done for limitations and exceptions. however, if payment is re-quired, the calculation should be less than the amount paid for the regular use of the workdue to the purpose of such use, which would have to be educational or research oriented.The user of the work, (library, researcher, etc.), should be liable for making such payment,and it should be paid directly to the author or through copyright collecting societies or col-lective management organizations.


In the case of orphaned work, the remuneration could be less, but otherwise such worksshould not receive special treatment.


The exception of limitation should not be overridden by contract.

88


Private organizations can generate programs to generate consciousness on the use withinthe exceptions and limitations being made by libraries and research facilities.

SummarySummary


89

I.)I.)

1)1)

a)

b)

c)

CanadaCanada


in the name of the Canada Groupby Brian GRAY, Jean-Charles GREGOIRE, Alfred MACCHIONE, Jill TONUS-JARVIS and Adam

TRACY


QuestionsQuestions




yes


yes

Under the Canadian Copyright Act (Òthe ActÓ), it is not an infringement for a qualifyinglibrary, archive or museum, or any person acting under their authority, for the purposesof maintaining or managing their permanent collection, or that of another library,archive or museum, to make a copy of a published or unpublished work or subjectmatter (i.e. sound recordings, performerÕs performances) in that collection where it: (i)is rare or unpublished and is, or is at the risk of becoming deteriorated, damagedor lost; (ii) is for the purpose of on-site consultation and the original cannot be usedbecause of its condition or the atmospheric conditions under which it must be kept;(iii) needs to be in an alternative format because the original is considered to be in aformat that is, or is becoming, obsolete or the technology required to use the originalis, or is becoming, unavailable; (iv) is for the purpose of internal record-keeping andcataloguing; (e) is for insurance purposes or police investigations or (v) is necessary forrestoration.However items i, ii and iii do not apply if an appropriate copy is commercially avail-able.


yes

A library, archive and museum, or any person acting under their authority, may do, onbehalf of a patron of another library, archive or museum, anything it could do for theirown patrons who are exercising their rights under the fair dealing provisions of the Act.These would be the same actions as discussed under (c) below and could include mak-ing and distributing a single copy of a work at one library, archive or museum for thebenefit of a patron of a different library, archive or museum.


90

d)

2)2)

yes

It is not an infringement for a library, archive or museum, or a person acting undertheir authority, to do anything on behalf of a patron that the patron could do them-selves under the fair dealing sections of the Act, for example, this would include rea-sonable copying, distributing, telecommunicating) of a work for the purposes of (a) re-search, private study, education, parody or satire or (b) criticism or review. In respect of(b) it is also necessary to cite the source of the work and, if it is given in the source, theauthor of the work, the performer of the performance, and/or the maker of the soundrecording.More specifically, it is not an infringement for a library, archive or museum, or anyoneacting under their authority, to make for a patron engaged in research or private studya print copy of an article, or part of an article, published in (i) a scholarly, scientific ortechnical periodical or (ii) a newspaper or non-scholarly, scientific or technical period-ical, if the newspaper or periodical was published more than a year before the copywas made. Part (ii) of this exemption does not apply to works of fiction, poetry or dra-matic or musical works.In addition archive can make a copy of an unpublished work deposited in its archivefor a patron conducting research or private study, subject to certain restrictions dis-cussed under question 3 below.


yes

The Copyright Act provides a two part procedure for insulating libraries, archives andmuseums from liability for offering patrons photocopying machines on their premises.(1) there is no infringement for copies made on such machines where the machineshave been installed with the approval of the library, archive or museum and there isaffixed, in a prescribed manner and location (which can be specified in governmentregulations), a notice warning against copyright infringement.(2) the exemption only applies if: (i) the library, archive or museum has entered into anagreement with a collective society authorized to grant licenses on the copyright own-erÕs behalf; (ii) the Copyright Board of Canada has fixed royalties/licence terms; (iii) atariff by this Board has been approved or (iv) a collective society has filed a proposedtariff with this Board for approval.This exemption will also apply where a library, archive or museum enters into anagreement directly with a copyright owner concerning that ownerÕs works.It is also not infringement for the Librarian and Archivist of Canada to make copies ofvarious works and subject matter for various purposes, including preservation, as setout in the Library and Archives Act of Canada.


These exceptions apply only to (a) non-profit libraries, archives and museums that hold andmaintain a collection of documents or other materials that are open to the public or to re-searchers and (b) any other non-profit institutions that may be prescribed by regulation.Further the activities exempted under many of these sections must be carried out without mo-tive of gain (i.e. at cost).In addition, it should be noted that the exceptions and limitations to infringement providedfor educational institutions (see below) also apply to any library, archive or museum thatforms part of an educational institution.

91

3)3)

4)4)

5)5)

a)


The exemption for preservation and replacement purposes, discussed under 1(a) above, onlypermits the making of a single copy. If a person must make an intermediate copy in order tomake the copy under this exemption, he/she must destroy that intermediate copy as soon asit is no longer needed.Furthermore, the exemptions allowing the library, archive or museum to make a copy whereit (i) is of a rare or unpublished work that is, or is at the risk of, becoming deteriorated, dam-aged or lost or (ii) needs to be in an alternative format because the original is considered tobe in a format that is, or is becoming, obsolete or the technology required to use the originalis, or is becoming, unavailable, do not apply where there is an appropriate copy commer-cially available and in a medium and of a quality to meet the purposes of those sections.The library, archive or museum can only rely on the exemption allowing it to provide a patronwith a print copy of an article in a newspaper or periodical, as discussed above in section1(c), if it (i) provides a single copy of the work and (ii) informs the patron that the copy isto be used solely for research or private study and that any use of the copy for any otherpurpose may require the authorization of the copyright owner.A library, archive or museum, or person acting under their authority, may only provide a dig-ital copy to a requesting patron of another library, archive or museum if it takes measures toprevent that patron from (i) making any further reproductions other than a single print copyand (ii) communicating the digital copy to another and (iii) using the digital copy for morethan 5 business days from the day on which it was first used.Any intermediate copies made to facilitate making that copy for the patron must be destroyedonce the patron receives the copy.An archive can only provide a copy of an unpublished work to a patron engaged in researchor private study where (i) the person who deposited the work, at the time of the deposit, if acopyright owner, did not prohibit its copying, nor has any other copyright owner prohibitedits copying; (ii) the archive informs the person depositing the work that it may be copied forthese purposes and (iii) the patron is provided with a single copy and informed it is to beused solely for research and private study and that any other uses may require the autho-rization of the copyright owner.Further as mentioned above these activities exempted must be carried out without motive ofgain (i.e. at cost).


Although not expressly stated, it can be assumed the exemptions would only apply to copiesmade from lawful copies. The exemptions aimed at preservation and replacement of mate-rials expressly only apply to materials existing in the libraryÕs, archiveÕs or museumÕs perma-nent collections.


yes


yes

92

b)

It is not an infringement of copyright for an educational institution or person actingunder the authority of an educational institution to reproduce a work or do any otheract necessary to display the work for the purposes of education or training on the insti-tutionÕs premises. However, this exception does not apply if the work is commerciallyavailable in a medium that is appropriate, giving consideration to: (i) the availability ofthe work on the Canadian market within a reasonable time and for a reasonable price,and if it may be located with a reasonable effort or (ii) the availability from a collectivesociety of a licence to reproduce the work, to perform it, or to communicate the workto the public by telecommunication, which licence is available within a reasonable timeand for a reasonable price, and may be located with reasonable effort.Moreover, the Canadian statute creates an exception to copyright infringement for per-formances by educational institutions for educational or training purposes before anaudience primarily of students, instructors or those responsible for setting the institu-tionÕs curriculum, so long as the act is not done for profit. The exception includes thefollowing acts: (a) the live performance in public, primarily by students of the educa-tional institution, of a work; (b) the performance in public of a sound recording, or ofa work or performerÕs performance that is embodied in a sound recording; (c) the per-formance in public of a work or other subject-matter at the time of its communicationto the public by telecommunication; and (d) the performance in public of a cinemato-graphic work.The above-described exceptions and limitations under the Canadian statute do not ap-ply where certain excepted actions are carried out with motive of gain. This is definedunder the Canadian Copyright Act to involve no more than a recovery of the costs, in-cluding overhead costs, associated with the excepted activity.Finally, under the Canadian statute, educational institutions and those acting undertheir authority can make a copy of a news program or a news commentary program(but not a documentary) at the time the work is communicated to the public by telecom-munication for the purposes of performing the copy for students of the educationalinstitution for educational or training purposes, and perform that copy before an audi-ence of primarily students of the institution on its premises for educational or trainingpurposes. The educational institution must assign a reference code to the copy andmark it on the copy as well as the educational institution identifier code, if one is as-signed by a collective society. Further, unless the copy is destroyed within 72 hours ofmaking it, the educational institution must complete an information record in the formset out in the schedule to the Regulations regarding the copying of the program, workor subject matter; all performances of the copies for which royalties are payable; andthe destruction of the copy. This record must be forwarded to the collective society inaccordance with the Regulations.The exceptions and limitations under the Canadian statute do not apply where thecommunication to the public by telecommunication of a work that would otherwise re-ceive the exemption was received by unlawful means.


yes

There is an exception for reproduction for examinations. Under this exception, it is notan infringement of copyright for an educational institution or person acting under itsauthority to (a) reproduce, translate or perform in public on the premises of the edu-cational institution, or (b) communicate by telecommunication to the public situated onthe premises of the educational institution a work as required for a test or an examina-tion. However, this exception does not apply if the work is commercially available in anappropriate medium, having regard to the purposes set out in our answer to Question5(a) above.

93

c)

d)

Moreover, this exemption does not apply where the excepted activities are carried outwith motive of gain, as explained in our answer to Question 5(a) above.


yes

Translation is permitted for the making of examinations, in the circumstances describedin our answer to Question 5(b) above.


yes

The Canadian statute facilitates distance education by providing an exception to in-fringement for an educational institution or person acting under its authority to (a) tocommunicate a lesson by telecommunication for educational or training purposes tostudents enrolled in a course of which the lesson forms a part or to persons acting un-der the authority of the educational institution; (b) to make a fixation of the lesson forthe purpose of the act referred to in paragraph (a); or (c) to do any other act that isnecessary for the purpose of the acts referred to in (a) and (b). Under this section, les-son is defined to mean Òlesson, test or examination or part of oneÓ Students enrolledin such courses receiving a lesson by means of telecommunication are deemed to beÒon the premises of the educational institution while receiving or participating in thelesson.ÓThe Canadian statute provides that it is not an infringement of copyright for a studentwho has received a lesson by means of communication by telecommunication to re-produce the lesson in order to be able to listen to or view it at a more convenient time.However, the student must destroy the reproduction within 30 days after the day onwhich the students who are enrolled in the course to which the lesson relates have re-ceived their final course evaluations.Under subsection (6) of the same provision of the Canadian statute, certain conditionsattach to the exception for lessons. The educational institution must destroy any fixationof the lesson within 30 days of the final evaluation of the course, take reasonable mea-sures to limit the communication to students enrolled in the applicable course, takereasonable measures to prevent the students from fixing, reproducing or communicat-ing the lesson other than as provided above and take any other measures as may beprescribed by regulation.With respect to digital reproductions of paper works, the Canadian statute providesthat it is not an infringement of copyright for an educational institution with a repro-graphic reproduction licence for works in a collective societyÕs repertoire for education-al purposes to (a) make a digital reproduction of a paper form of any of those works ofthe same general nature and extent as the reprographic reproduction authorized un-der the licence; (b) communicate the digital reproduction by telecommunication for aneducational or training purpose to persons acting under the authority of the institution;or (c) to do any other act that is necessary for the purpose of the acts referred to in(a) and (b). A person acting under the authority of the educational institution who hasreceived the work under (b) may also print one copy of the work. Further conditionsand restrictions apply to these particular exemptions, as explained below.An educational institution that makes a digital reproduction of a work in paper formmust pay the collective society royalties, take measures to prevent the digital repro-duction from being communicated by telecommunication to persons not acting underauthorization of the institution, and take measures to prevent those to whom the repro-duction has been communicated from printing more than one copy.

94

e)

f)

Further, an educational institution may not make a digital reproduction of a work underthe exemption if the institution has entered into a digital reproduction agreement with acollective society governing those acts; there is a certified tariff applicable to those acts;or the institution has been informed by the collective society that the owner refuses toauthorize the collective society to enter into a digital reproduction agreement.The Canadian statute also limits remedies in the case of any proceedings against edu-cational institutions or persons acting under their authority in the context of the forego-ing exemptions. For educational institutions, very generally damages will be limited tothe amount of royalties that would have been payable under any digital reproductionlicence in respect of the work or of a work of the same category for the acts complainedof. For persons acting under the authority of educational institutions, no damages canbe claimed where such person prints one copy of a work that is communicated to suchperson by telecommunication, and where it was reasonable for such a person to be-lieve that the communication was made in accordance with the applicable exemption


no

There are no specific exceptions per se for research institutions that are not educationalinstitutions. However, the Canadian statute contains a generic Òfair dealingÓ exception,which applies generally to research and education purposes.


yes

The reproduction for broadcast exception of the Canadian statute permits an educa-tional institution or person acting its authority to make a single copy of a work that iscommunicated to the public by telecommunication and keep the copy for up to 30 daysto decide whether to perform the copy for education purposes. Under subsection (2) ofthe same provision, if the copy is not destroyed within 30 days, the educational institu-tion will be deemed to be infringing copyright unless it pays any royalties and complieswith any other terms fixed by the Canadian statute. Additionally, the educational insti-tution making a copy of a broadcast must keep a record of certain information relatedto the copy, its destruction, any performance and royalties payable. The educationalinstitution must mark the copy in the manner prescribed by regulation. Specifically, theeducational institution must assign a reference code to the copy and mark it on thecopy as well as the educational institution identifier code, if one is assigned by a col-lective society. Further, the educational institution must complete an information recordin the form set out in the schedule to the Regulations regarding the copying of the pro-gram, work or subject matter; all performances of the copies for which royalties arepayable; and the destruction of the copy. This record must be forwarded to the collec-tive society in accordance with the Regulations.Under the Canadian statute, it is not an infringement of copyright for an educationalinstitution or a person acting under its authority to perform the copy of the work thatis communicated to the public and kept as above for performance, provided the per-formance is for educational and training purposes on the premises of the educationalinstitution before an audience consisting primarily of students of the educational insti-tution, and provided royalties are paid and any other terms and conditions fixed by theCanadian statute for the performance in public are complied with.In addition, the exemption for installing photocopying machines, as discussed above inour answer to Question 1(d), also applies to educational institutions. Photocopying bystudents, instructors or staff at the educational institution will not constitute an infringe-ment by the educational institution where a copy is made of a work in printed form, themachine is installed with approval of the educational institution, and a notice warning

95

6)6)

7)7)

of infringement is affixed. The contents of the warning are prescribed by regulation,under which the warning must include that works protected by copyright may only becopied by the photocopier if authorized under the Copyright Act, by the copyright own-er or by virtue of a licence agreement. Moreover, this exception only applies where theeducational institution has an agreement with a collective society, the Copyright Boardhas set royalties and terms, a tariff has been approved, or the collective society hasfiled a proposed tariff.The Canadian statute also includes an exemption for short passages from published lit-erary works Ð in which copyright subsists and where the literary works themselves werenot published for the use of educational institutions Ð in a collection that is mainly com-posed of non-copyright matter intended for the use of educational institutions and sodescribed in the title and any advertisements issued by the publisher. Under the Cana-dian statute, the exemption for literary collection applies where (a) not more than twopassages from works by the same author are published by the same publisher withinfive years; (b) the source from which the passages are taken is acknowledged; and (c)the name of the author, if given in the source, is mentioned.Finally, where a work is available through the Internet, it is not an infringement of copy-right for the educational institution or person acting under its authority to reproduce it,communicate it to the public by telecommunication, perform it in public if the public isprimarily students of the institution, or do any acts necessary for the purposes noted.However, the educational institution or person acting under its authority must mentionthe source, and, if given in the source, the name of the author, performer, maker orbroadcaster. Moreover, the exception does not apply if the work is protected onlineby a technological measure restricting access or doing the specific act, or if a clearlyvisible notice is provided prohibiting the specific activity. Lastly, the exception does notapply if the educational institution or person acting under its authority knows or shouldhave known that the work or other subject-matter was made available through the In-ternet without the copyright ownerÕs consent.


These exemptions only apply to non-profit or government institutions. Under the Canadianstatute, Òeducational institutionÓ is defined to mean either Ò(a) a non-profit institution licensedor recognized by or under an Act of Parliament or the legislature of a province to providepre-school, elementary, secondary or post-secondary education; (b) a non-profit institutionthat is directed or controlled by a board of education regulated by or under an Act of thelegislature of a province and that provides continuing, professional or vocational educationor training; (c) a department or agency of any order of government, or any non-profit body,that controls or supervises education or training referred to in paragraph (a) or (b); or (d)any other non-profit institution prescribed by regulation.ÓAdditionally, it should be noted that the exceptions and limitations to infringement providedfor any library, archive, or museum or also apply to any library, archive, or museum thatforms part of an educational institution.


Yes. See our answers above for conditions attaching to the specific exceptions.

96

8)8)

9)9)

10)10)

11)11)


The exception for performance by an educational institution or a person acting under its au-thority in public of the work stipulates that the exception does not apply where the work inquestion is infringing and the person responsible for the performance has reason to believeit is an infringing copy.The exceptions to infringement of copyright provided for performance and in respect of acopy of work communicated to the public by telecommunication will not apply where thetelecommunication was received by unlawful means.Likewise, the exception for communication by telecommunication of a lesson to students whoare enrolled in the course does not apply where a work used in the lesson constitutes aninfringement or where use of the work in the lesson requires consent of the copyright owner.Neither does the exception for works available on the Internet apply where the educationalinstitution should have known the work was made available without the ownerÕs consent.



All of the specific exemptions discussed in questions 1 through 9 arise from specific statutoryprovisions in the Act.In addition, Canadian case law has recognized similar exemptions in respect of libraries pro-viding copies of works to their patrons for research and private study purposes and installingphotocopying machines on their premises to facilitate copying materials for those same pur-poses, as long as they post appropriate notices warning against copyright infringement.Finally there are general fair dealing exceptions for research, private study and education.


Canada has signed the Berne Convention and the WCT, but such treaties are not self-executing in Canada. Although the Act does not contain the express, or similar, wording ofthe Three Step test, all of the exceptions in the Act comply with the Three Step test. In respectof fair dealing exceptions in general, the question of what is ÒfairÓ would be interpreted inCanada consistent with the application of the three step test.


Most exceptions are granted automatically; however, some require a licence from an ap-propriate copyright collective or the copyright owner. For instance, one exemption for ed-ucational institutions, libraries, archives and museums in respect of photocopying machinesrequires these institutions to have obtained a licence from an appropriate copyright collectiveor the copyright owner directly.By way of further example, the exceptions and limitations for digital reproductions by edu-cational institutions under the Canadian statute also require that an educational institutionhave a reprographic reproduction licence.See above for exceptions that require specific measures to be taken by educational institu-tions and those acting under their authority in order for exemptions and limitations to apply.

97

12)12)

13)13)

14)14)

15)15)


No remuneration is payable for any of the exceptions except for the above-noted license re-quired from a copyright collective or individual copyright owner for copying on photocopyingmachines installed in libraries, archives and museums. The remuneration paid to a collectiveis in most cases, set by the Copyright Board of Canada, or by an individual copyright ownerwhere there is a direct license with the owner. It is payable by the library, archive or muse-um.


No, there is no special provision for libraries, archives, museums or educational institutions.Anyone wishing to obtain a copyright license for such works may apply to use such works.CanadaÕs Òorphan worksÓ regime is a licensing regime. A person who wishes to use certainworks, whose owner cannot be located, applies to the Copyright Board for a licence to beissued.However, a licence is not needed in the special case where the intended use is not protectedby copyright, i.e. the use falls within the exceptions or limitations to copyright protection forlibraries, archives, education institutions, and research institutions. Since the regime wasenacted, educators or educational institutions have accounted for 13% of all applications.A small percentage of all applications have been rejected, usually because no licence wasneeded.


It appears to be an open issue whether the exceptions or limitations can be overridden bycontract. The Copyright Act does not appear to permit or prohibit contracting out of theexceptions or limitations to copyright protection for libraries, archives, education institutions,and research institutions.On the one hand, privately negotiated contracts should be enforced. On the other hand,contracts in unlawful restraint of trade are contrary to public policy and, therefore, unen-forceable. Contracts will only be upheld if they are reasonable in reference to the interestsof the parties concerned and the interests of the public in discouraging restraints on trade.The fair dealing exception, like other exceptions in the Copyright Act, is a userÕs right.Accordingly, to the extent that overriding any user rights under the exceptions or limitationsis not reasonable in reference to the interests of the public, then the exceptions or limitationscannot be overridden by contract, but no case has addressed the issue of whether it is againstpublic policy to contract out of such rights


yes

Canada has a significant number of ÒcollectivesÓ authorized by the Copyright Act. These col-lectives have collected rights to copyrights or portions of copyrights and will license them atrates approved by the Copyright Board of Canada to persons who find it more convenientto obtain a blanket license rather than a license for any individual work. Such collectives in-clude non-profit organizations who manage literary, dramatic works and educational textssuch as Access Copyright and agencies which control music rights such as SOCAN (Societyof Composers, Authors and Music Publishers of Canada), CMRRA (Canadian Musical Re-

98

II.)II.)

16)16)

17)17)

18)18)

production Rights Agency), and Re:Sound. They provide copyright licenses for Canadian li-braries, archives, educational and research institutions, as required and collect the approvedroyalties and remit them to the copyright owners. In addition there is a collective which col-lects the levy generated by the sale of blank audiovisual media and distributes it to certain ofthe collectives.Much of the copyright licensing in Canada to all organizations (including libraries, archivesand educational and research institutions) occurs through the collectives at the tariff rate es-tablished by the Copyright Board.There are fair dealing exceptions for fair dealing for the purpose of research, private study,education (among others) The recent case law has expanded these rights as Òuser rightsÓ,and have allowed educational institutions, for example, to benefit from the private studyrights of students in respect of individual copies made for a studentÕs own use. In additionthere are numerous specific exemptions for such institutions as set out in the answers above.This may result in a re-evaluation of the activities that require a license from the collectivesand the tariff rate that may apply.



yes

Yes, in order to balance and meet the competing public benefit purpose of copyright law,i.e. to provide reasonable public access to artistic and scientific works while also providingadequate financial incentives to creators to create further works. Non-profit public libraries,archives and museums are particularly important institutions to provide such access and re-quire reasonable exceptions to preserve and maintain their collections and to facilitate thepublic to conduct research and private study without onerous copyright consequences. Theseexceptions were last updated in 2012. Except as noted for possible study in the answer toQuestion 24, additional exceptions are not necessary at this time.


yes

Canada currently has many exceptions and limitations to copyright protection for education-al and research institutions, as noted above. These exceptions were last updated in 2012.Except as noted for possible study in the answer to Question 24, additional exceptions arenot necessary at this time.


yes

See the answer to question 10 above. The Three-Step Test is a useful first start but may betoo general to be useful in many particular situations.

99

19)19)

20)20)

21)21)

III.)III.)

22)22)

23)23)

24)24)

a)

b)


At this time, the Canadian group believes that this issue should receive further study. Ingeneral, privately negotiated contracts should be enforced unless contrary to public policy,but the issue should be studied to determine if allowing such enforcement could be open toabuse.


Remuneration should be paid for exempted activities, where those activities interfere withthe normal commercial exploitation of the work or where the exemptions specifically providefor a tariff to be set by an independent quasi-judicial body (such as the Copyright Board).However the Canadian Group recognizes the importance of educational institutions, publiclibraries, archives and museums being able to offer reasonable access to their collections tothe public for educational, research and cultural enrichment purposes.


The current exemptions only apply to Canadian non-profit educational institutions. Givendistance education and the internet, consideration should be given as to whether it is ad-visable to extend these specific statutory exceptions to foreign non-profit educational insti-tutions. Furthermore as many of the exceptions already provide that they only apply wherethere is no motive of gain, it is worth studying whether the exemptions should apply to certainfor-profit educational institutions, archives or museums in respect of very limited activitiesthat are not carried out with motive of profit or gain. However the Canadian Group suggestsfurther study and makes no recommendation at this time.



yes





To non-profit public libraries, archives and museums (or perhaps those other institu-tions whose specific activity is carried out without motive of gain), as reflected in inter-national agreements and in the Canadian Act.


Preservation and maintenance of collections, fair dealing/fair uses by patrons for ap-propriate non-commercial purposes, such as research, private study criticism and re-view, as reflected in international agreements and the Canadian Act.

100

c)

25)25)

a)

b)

c)

26)26)

27)27)

28)28)


The exceptions should apply only to the use of lawful copies of works/materials thathave been acquired by and form part of the permanent collection of a library, archiveor museum. Generally speaking, the making of single or, certainly only small numbersof copies for non-commercial purpose and without motive of gain should be permitted.With the speed and number of new technologies emerging and becoming mainstream,greater leeway may need to be given to libraries, archives and museums to make andprovide digital copies, provided safeguards can be developed to prevent, or at the veryleast discourage further electronic dissemination of these digital copies.



See answers to question 24 to apply mutatis mutandis to educational and research in-stitutions as well.





Generally it should be permitted automatically where the exception is narrow and has nopossibility of interfering with the commercial exploitation of the work. It should be subject toreview by the Copyright Board or the Court where the exception requires a considered bal-ance between the rights holders and the users.


See answer to question 20.


There is no need for special treatment. Where there are exceptions that apply to libraries,archives and educational and research institutions, there is no need for the orphan worksexemption. Where those exceptions do not apply, the orphan works provisions should applyto all equally. However this is not to say that the orphan works provision could not use im-provement.It is noted that authorship should be attributed, if the author is known, as a condition for us-

ing orphan works generally. Attribution would clarify that the work is the product of another

author and the copyright is owned by another, facilitate the subsequent location of copyright

owners, and help avoid moral rights issues.

101

29)29)

30)30)


See the answer to Question 19.


This should be decided by a quasi-judicial independent body such as the Canadian Copy-right Board taking into account the three step test and considering appropriate economicdata.

SummarySummary


102

I.)I.)

1)1)

a)

b)

c)

ChinaChina


in the name of the China Groupby Allen (Jun) WANG


QuestionsQuestions




yes


yes

Under Chinese law, libraries, archives, memorial halls, museums, art gal-leries, and other such organizations may reproduce Òworks among its collec-tions, for the purpose of displaying or preserving an edition of the work.ÓThese exceptions to copyright protection, which include the rights to use the work with-out authorization from the copyright owner and without payment of remunera-tion, are limited, however, by the fact that author's name and the ti-tle of the work must be indicated and other rights to which the copyright owner is enti-tled may not be infringed. The basis for these rules are found in The Copy-right Law of the PRC, pertinent sections found below.Article 22 of Copyright Law of PRC:Under the following circumstances, a work may be used without authoriza-tion from the copyright owner and without payment of remuneration thereto, provid-ed that the author's name and the title of the work shall be indicated and oth-er rights to which the copyright owner is entitled under this Law shall not be infringed:ÉÉ(8) Reproduction made by a library, archive, memorial hall, muse-um, art gallery, etc., of a work among its collections, for the purpose of display-ing or preserving an edition of the work;ÉÉThe provisions of the preceding paragraph are applicable to limit-ing the rights of publishers, performers, producers of sound or visual recordings, ra-dio stations, and television stations.


no

The Chinese law doesn't provide for exceptions or limitations to copyright protection inrelation to reproduction and/or distribution for the purpose of interlibrary lending.


103

d)

2)2)

3)3)

yes

Regarding digital reproduction and dissemination, there also various excep-tions to copyright protection found under Chinese law. Again, without the copy-right owners' authorization or payment of remuneration, libraries, archives, memori-al halls, museums, art galleries, and other such organizations, 1) may make avail-able via an information network legally published digital works within their respec-tive collections and 2) may reproduce works in digitalized form for the purpose of dis-playing or preserving an edition. The main basis for these rules are found in the Reg-ulations on the Protection of Right of Dissemination via Information Network, perti-nent sections found below.Article 7 of Regulations on the Protection of Right of Dissemination via Informa-tion Network:Libraries, archives, memorial halls, museums, art galleries, etc. may make avail-able via an information network to those who receive their services in-side their premises legally published digital works within their respective collec-tion and may reproduce works in digitalized form for the purpose of display-ing or preserving an edition thereof, without the copyright owners' authoriza-tion or payment of remuneration thereto, from which direct or indirect gain of eco-nomic benefits shall be prohibited, unless the parties agree otherwise.Works reproduced in digitalized form for displaying or preserving an edition there-of, as specified in the preceding paragraph, shall be works that are already dam-aged or could be damaged imminent-ly, works that are lost or stolen, or works of which the storage format is outdat-ed, and it is impossible to purchase such works or they may only be pur-chased on the market at a price obviously higher than the price listed on the label.


no

The Chinese law doesn't provide for exceptions or limitations to copyright protection inrelation to any other activities.


These exceptions or limitations apply to such organizations generally. However, with regardto digital dissemination of legally published digital works and reproduction of works in a dig-italized form (as mentioned just above) direct or indirect gain of economic benefits is strictlyprohibited.


Yes. The conditions are as follows:(1) The reproduction of a work by such organizations must be for the purpose of the displayor preservation of the copy of the work.(2) Digital reproduction is not excluded, but it can only be done for works that are 1) alreadydamaged (or are in imminent danger of becoming damaged), 2) lost or stolen, 3) whosestorage format is outdated, and 4) re-purchasing the original work through ordinary chan-nels is impossible (or then-current market price is substantially higher than the price listed onthe label of the original).

104

4)4)

5)5)

a)

b)

c)


Yes. The conditions are as follows:(1) The general reproduction can only be performed on works that are already in the collec-tion of libraries or archives.(2) Works made available over an information network in digitized form must be Òlegallypublished digital works within their respective collections.Ó


yes


no

ÒPerformanceÓ and ÒdisplayÓ are not mentioned specifically under Chinese law.


yes

In order to implement the system of nine-year compulsory education in China, atextbook may contain compilations of segments of published works or short writtenworks, musical works, fine art works printed in single-piece format, or photograph-ic works.The main basis for these rules are found in the Copyright Law of PRC, perti-nent sections found below.Article 23 of Copyright Law of PRC:Where a textbook is compiled and published in order to implement the system of nine-year compulsory education and the State plans for education, the textbook may containcompilation of segments of published works or short written works, musical works, fineart works in form of single-piece, or photographic works that have been published,without having to obtain the copyright owners' authorization, except that the copyrightowners have declared in advance that the exploitation is not permitted, insofar as theremunerations are paid and the authors' names and the works' titles are indicated, inaccordance with the relevant provisions, and the other rights to which the copyrightowner entitled hereunder shall not be infringed.The provisions of the preceding paragraph are applicable to limiting the rights of pub-lishers, performers, sound or visual recording producers, radio stations, and televisionstations.


yes

Translating a published work for teachers' or scientific researchers' use in their class-room teaching or scientific research, provided that the translation copies shall neitherbe published nor distributed.The main basis for these rules are found in the CopyrightLaw of PRC, pertinent sections found below.Article 22.1.(6) of Copyright Law of PRCÉÉ

105

d)

e)

(6) Translating, or reproducing in a small number of copies, a published work forteachers' or scientific researchers' use in their classroom teaching or scientific research,provided that the translation or reproduced copies shall neither be published nor dis-tributed;


yes

In conjunction with the implementation of the system of nine year compulsory educa-tion in China, ÒcoursewareÓ may be produced by using segments of pub-lished works or short written works, musical works, fine art works printed in sin-gle piece format, or photographic works that have been pub-lished may be made available to registered students via information network by dis-tance education institutions that produce or have lawfully obtained the course-ware.The main basis for these rules are found in the Regulation on Protection of theRight to Network Dissemination of Information , pertinent sections found below.Article 8 of Regulation on Protection of the Right to Network Dissemination of Informa-tion:To implement the system of nine-year compulsory education and the State plans foreducation via information network, courseware may be produced by using segmentsof published works or short written works, musical works, fine art works in the formof a single-piece, or photographic works that have been published, without having toobtain the copyright owners' authorization, except that the copyright owners have de-clared in advance that the exploitation is not permitted. The courseware can be madeavailable to registered students via information network by distance education institu-tions that produce or have lawfully obtained the courseware, subject to the payment ofremuneration to the copyright owners.


yes

Reproducing a published work for teachers' or scientific researchers' use in their class-room teaching or scientific research, provided that the reproduced copies shall nei-ther be published nor distributed, is also allowed Ð as is making that work avail-able via an information network.The main basis for these rules are found in the Copy-right Law of PRC and the Regulation on Protection of the Right to Network Dissemina-tion of Information, pertinent sections found below.Article 22.1.(6) of Copyright Law of PRCÉÉ(6) Translating, or reproducing in a small number of copies, a published work forteachers' or scientific researchers' use in their classroom teaching or scientific research,provided that the translation or reproduced copies shall neither be published nor dis-tributed;Article 6 of Regulation on Protection of the Right to Network Dissemination of Infor-mation:A work of another person may be made available via an information network with-out the copyright owner's authorization and payment of remuneration there-to when involving any of the following circumstances:ÉÉ(3) Provision of a published work, in a small amount, to a small number of teach-ers or scientific researchers for classroom teaching or scientific research;

106

f)

6)6)

7)7)

8)8)

9)9)


no

The Chinese law doesn't provide for exceptions or limitations to copyright protection foreducation and research institutions in relation to any other activities.


These exceptions or limitations apply to educational and research institutions generally.


Yes. The conditions are as follows:(1).The reproduction of the woks should be in a small quantity.(2).Only segments of published works or short written works, musical works, fine art worksin form of single-piece, or photographic works that have been published can be compiledin textbooks or be used in courseware which is provided to registered students via informa-tion network, and the textbooks and courseware must be produced in order to implementthe system of nine-year compulsory education and the State plans for education. In addition,remuneration should be paid and the authors' names and the works' titles need to be indi-cated. WhatÕs more, such activities are forbidden if the copyright owners have declared inadvance that the exploitation is not permitted.(3).ThereÕs no conditions as to the persons who may engage in the translation and repro-duction, however, such activities can only be made for teachers' or scientific researchers' usein their classroom teaching or scientific research.


Yes. The copyrighted work has to be a published work.



While certain cases are set forth annually by judicial bodies as possessing educational value,as a country based in the civil law system, China does not subscribe to a system of stare deci-sis where decided cases have precedential value. Such exceptions and limitations mentionedabove are provided by statute, such as that found in the Copyright Law of the PRC, the PRCRegulations on the Protection of Right of Dissemination via Information Network, and others.

107

10)10)

11)11)

12)12)

13)13)

14)14)


China does not have the ÒThree-Step TestÓ or any other named test for the determinationof the correct applicability of the exception or limitation under discussion. However, underChinese rules and regulations, generally speaking, such exceptions will only be available un-der certain conditions, such as librariesÕ display or reproduction, etc. (i.e., Òspecial casesÓ);where the use of a published work does not affect the normal use of the work (i.e., Òno con-flict with normal exploitationÓ; and where the use does not harm, in an unreasonable man-ner, the copyright owner's lawful rights and interests (i.e., Òno unreasonable prejudice to thelegitimate interests of the authorÓ).The main basis for these rules are found in the the Regu-lations for the Implementation of Copyright Law of the PRC,pertinent sections found below.Article 21 of the Regulations for the Implementation of Copyright Law of the PRC:The use of a published work without the copyright owner's authorization, as stated in the rel-evant provisions of the Copyright Law, shall neither affect the normal use of the work, norharm, in an unreasonable manner, the copyright owner's lawful rights and interest.


It is permitted automatically so long as the author's name and the title of the work are indi-cated and other rights to which the copyright owner is entitled under Copyright Law are notinfringed.


Remuneration is payable in the circumstances which have been described above. Theamount of remuneration is calculated as below:a.for written works: ´300 yuan per thousand characters;b.for musical works: ´300 yuan per piece;c.for fine art works and photographic works: ´200 yuan per work, but if itÕs used in the coveror back cover of the textbooks, ´400 per work;d.for phonograms: ´50 for one piece.The institutions who conduct certain activities are liable for make the payment, and the pay-ment should be made to the authors or to the organization for collective copyright manage-ment which have been authorized by the authors.


ThereÕs no special treatment for orphan works for use within such exception or limitation.


Yes. If both parties of the contract, on their own free will, agree to override the exception orlimitation, the contract shall be valid, but it would only be valid and binding between the twoparties of such contract.

108

15)15)

II.)II.)

16)16)

17)17)

18)18)

19)19)


no

No, there is not.



yes

Yes,there should be.The exceptions or limitations should be related to the reproduction of copyrighted worksmade by libraries and archives for the purposes of preservation or replacement, whether thereproduction is in physical or digital form. This is because copyrighted works in physical for-mat may be damaged or lost easily, and if there were not such limitations or exceptions tothe complement of rights in copyright, the work could, in theory, disappear forever, which,for certain works, would be a loss for society as a whole.


yes

Yes, there should be.The exceptions or limitations should be related to the activities made by education and re-search institutions, such as translation, performance, display, or distribution Ð but for non-commercial purposes; and reproduction, distribution or making available via digital net-works for compulsory educational purposes.


yes

It is surely a useful test Ð and it has already been shown that the system in China is somewhatsimilar -- but difficulties and challenges still exist in its application.ItÕs useful because we can easily pick out many conditions which apparently cannot pass thetest, and where, therefore, the exceptions or limitations would not be allowed. But itÕs still adifficult task to determine whether a certain activity would conflict with a Ònormal exploita-tionÓ of the copyrighted work or whether such use would Òunreasonably prejudiceÓ the legiti-mate interests of the author. What exactly Ònormal exploitationÓ is (i.e., would it include bothactual use and potential use), and to what extent we could determine an ÒunreasonableÓ de-gree of prejudice are questions not easily answered.


Yes, in our opinion, it should be.Parties should be totally free to choose whether to forgo some rights or not. If both parties toa contract, of their own free will, agree to override the exception or limitation, which meansthe licensees (libraries, archives, educational and research institutions) themselves are willing

109

20)20)

21)21)

III.)III.)

22)22)

23)23)

to pay the copyright owners to get the authority, even though itÕs provided in the law thatthere may be no need for them to do so, such contract should be valid and the exception orlimitation should be overridden. Nevertheless, said contract would only be valid and bindingfor and between the two parties of it and will not take effect on any other party, for whomthe exception or limitation would still be applicable.


For the activity described in 16), no remuneration needs to be paid, because the reproduc-tion by libraries or archives should only be done for the purpose of preservation or replace-ment in the event that the physical form of such works is (or may be) damaged or lost, suchpreservation/replacement, therefore, being necessary for the greater public interest.For the use of copyrighted works for educational or research purposes described in 17),thereÕs also no need to pay remuneration. Education and scientific research are extremelynecessary and important for any country in the world. ItÕs reasonable to encourage increas-ing education and scientific research by setting some limited exceptions on the protection ofcopyright.However, for reproduction, distribution or making available via digital networks for compul-sory educational purposes (although also for education), such acts can generate a profit,which in many cases can even be huge. Therefore, paying the authors remuneration woulddo little harm to education itself and is beneficial to the authors and the increased creationof artistic and literary works, at the same time.


The way for Chinese law to provide the exceptions and limitations is to directly list the avail-able conditions in the statute. But the conditions which are now listed canÕt contain all thepossible activities which should be excepted from copyright protection and which also couldmeet the requirements of ÒThree-Step Test.ÓFor improvement, therefore, we suggest to add an ArticleArticle 22.1.(13)22.1.(13) to Copyright Law ofPRC, which would provide language very similar to the ÒThree-Step Test, such as Òother activ-ities, in certain special cases, that do not conflict with a normal exploitation of the work anddo not unreasonably prejudice the legitimate interests of the authorÓ. In order to implementthis added clause more effectively, we also suggest our copyright law to set out the range orthe definition of what Òcertain special casesÓ would entail.



yes

Yes. With IP crossing borders at a greater and greater rate, it would surely be a desirablesituation where one could ascertain, with relative certainty, whether a work (or part of it, andfrom whatever nation) could be reproduced, distributed, displayed, etc. or not.



yes

110

24)24)

a)

b)

c)

25)25)

a)

b)

c)

Setting out more specifically the exceptions and limitations that should exist under what cir-cumstances and to what extent would surely prove helpful for member countriesÕ legislativebodies to harmonize their own laws with that of the international community, with the hopesof creating a more efficient overall system.



These exceptions or limitations could apply to all kinds of libraries, archives and oth-er organizations.


These exceptions or limitations could apply to all kinds of activities.


In accordance with the Three-Step test -- and for which it would seem beneficial thatharmonization would exist -- libraries, archives and other such organizations for whichexploitation of the work in question was not directly or indirectly of economic advan-tage, should be able to avail themselves of the exceptions for utilization of the work (tothe extent justified by the purpose), provided that such exploitation was not in conflictwith normal exploitation of the work, nor unreasonably prejudice the legitimate inter-ests of the creator. If such exploitation engendered economic benefit, however, a morecomplex system with remuneration at a base-market value should flow to the authors/creators.



These exceptions or limitations could apply to all kinds of educational and research in-stitutions.


These exceptions or limitations could apply to activities which are for education-al or research purposes.


In accordance with the Three-Step test -- and for which it would seem beneficial thatharmonization would exist Ð education, research institutions and other such organi-zations for which exploitation of the work in question was not directly or indirectly ofeconomic advantage, should be able to avail themselves of the exceptions for utiliza-tion of the work (to the extent justified by the purpose), provided that such exploitationwas not in conflict with normal exploitation of the work, nor unreasonably prejudicethe legitimate interests of the creator. If such exploitation engendered economic bene-fit, however, a more complex system with remuneration at a base-market value shouldflow to the authors/creators.

111

26)26)

27)27)

28)28)

29)29)

30)30)



No. The nature of the exceptions and/or limitations under discussion for not-for-profit entitiessuch as libraries, archives, and educational and research institutions ostensibly are to makeit easier for them to provide services to the public and society. If Òfurther action,Ó such as thesearching for the correct rights holder or remuneration were necessary, that would seem toconflict the reason for the exceptions in the first place.


A reasonable market-determined royalty fee would seem fair. The entity exploiting the rightsshould be liable for the payment. And the payment should be made to the legal holder ofsuch rights to be exploited.


Special treatment does not need to be afforded orphan works, except that a diligent inquiryso as to ascertain the relevant right holder's identity should be required, so that the rights-holder that should receive remuneration may be appropriately receive such, while the user'scontinued bona fide reproduction and use of the copyrighted work should be reasonablyprotected.


If a contract is in place between interested parties, then there should be no circumstanceswhere exceptions override the partiesÕ legitimate intentions and purposes.


The premises of the Three-Step test can be reconciled with the use of such private organi-zations, which may also serve as a protector of the creatorsÕ interests when users exploit thework beyond the purposes of the exceptions.

SummarySummary

Under Chinese law, specifically the Copyright Law and the Regulations on the Protection ofRight of Dissemination via Information Network, exceptions and limitations to copyright pro-tection do exist to a certain degree and type for libraries, archives, memorial halls, educa-tional and research institutions. The overall system of these exceptions seems to generallymirror, in fact, the ÒThree-Step TestÓ first elucidated in the Berne Convention 1886. But todate, Chinese legislation is somewhat vague on the amount and degree of the reproduction(or other type of exploitation) that may be acceptable under such exceptions, as well as thespecific type of organizations that may be able to avail themselves of such exceptions andlimitations. Harmonization and an overall expansion of rules in this area would thereforelikely lead to a more efficient functioning of the copyright system.

112


No,there aren't any other additional issues concerning exceptions and limitations to copyrightprotection for libraries, archives and educational and research institutions you consider rele-vant to this Working Question

113

I.)I.)

1)1)

a)

b)

Czech RepublicCzech Republic


in the name of the Czech Republic Groupby Petr HOLY


QuestionsQuestions




yes


yes

In general The Czech Republic is a member party of Berne Convention, Paris Conven-tion and WIPO Copyright Treaty. As EU country also directives 2012/28/EU and 2001/29/EC are applicable there.Copyright act, Article 37Library LicenceLibrary Licence

(1) Copyright is not infringed by a library, archive, museum, gallery, school,

university and other non-profit school-related and educational establishment[1]:a) if it makes a reproduction of a work for its own archiving and conservation pur-

poses, and if such a reproduction does not serve any direct or indirect economic orcommercial purpose;

b) if it makes a reproduction of a work whose reproduction has been damaged orlost, provided that it is possible to verify with the exertion of reasonable effort that it isnot being offered for sale, or a print reproduction of a minor part of the work, if suchpart has been damaged or lost; it may also lend such a lawfully made reproduction inaccordance with Paragraph (2) below;

FootnotesFootnotes

1. ^ Act No. 257/2001 on Libraries and on the Conditions of the Provision of Library and Informa-tion Services (the Library Act), as amended; Act No. 122/2000 on the Protection of Collections ofMuseum Nature and on Amendment to Certain Other Acts, as amended; Act No. 499/2004 onArchives and the Filing Service and on Amendment to Certain Other Acts, as amended; Act No.561/2004 on Pre-school, Elementary, Secondary, Higher-level Professional and Other Education(the School Act), as amended; Act No. 111/1998 on Universities and on Amendment to CertainOther Acts (the University Act), as amended.


yes

Copyright act, Article 37

114

c)

d)

2)2)

(2) Copyright is not infringed by a person referred to in Paragraph (1) above wheresuch a person lends the originals or reproductions of published works, if the remuner-ation that is due to the authors from the person indicated in the Annex to this Act ispaid in the amount also indicated in that Annex. The author shall not be entitled to theremuneration if the published works are lent hereunder to on-the –spot reference userif the originals or reproductions of the published works are lent by school and univer-sity libraries, the National Library of the Czech Republic, the Moravian Land Libraryin Brno, the State Technical Library, National Medical Library, the Comenius Nation-al Pedagogical Library, Library of the Institute of Agricultural and Food Information,Library of the National Film Archive and the Library of the Parliament of the Czech Re-public


yes

Copyright actArticle 37 sec 2(2) Copyright is not infringed by a person referred to in Paragraph (1) above wheresuch a person lends the originals or reproductions of published works, if the remuner-ation that is due to the authors from the person indicated in the Annex to this Act ispaid in the amount also indicated in that Annex. The author shall not be entitled to theremuneration if the published works are lent hereunder to on-the –spot reference userif the originals or reproductions of the published works are lent by school and univer-sity libraries, the National Library of the Czech Republic, the Moravian Land Libraryin Brno, the State Technical Library, National Medical Library, the Comenius Nation-al Pedagogical Library, Library of the Institute of Agricultural and Food Information,Library of the National Film Archive and the Library of the Parliament of the Czech Re-public


yes

Copyrigh act, article 37d) if it lends the originals or reproductions of defended degree theses, dissertations,

doctoral and post-doctoral theses to on -the-spot reference use, provided that it shalldo so exclusively for the purposes of research or private study, and also provided thatthe author did not exclude such use.


These limitations apply to libraries, archives, museums, galleries, schools, universities andother non-profit school and education organizations according law No. 257/2001 About li-braries and conditions of its operations, law No. 122/2000 About museums, law no. 499/2004 Sb about archive services, law no. 561/2004. School law, law no. 111/1998. Univer-sity law.

115

3)3)

4)4)

5)5)

a)

b)

c)

d)


Archive and preservation purposes – non-commercial purposeReplacement of lost or damaged copy – non-commercial purpose and cannot be purchasedon the marketCommunication to the users – non-commercial purpose, for research or private study onlyCommunication of originals of high school thesis, dissertations and similar works – only inthe respective premises, for research and private study onlyCopy may be used on the cover, thematic summary, catalogue in a way, that cannot be usedfor commercial purpose by the third party, while name of the author has to be noted togeth-er.In any case the adequate fee has to be paid to the copyright owner, with exception of schoollibraries, university libraries and several other state or public libraries named explicitly by thelaw.


• always published works only• only in the case original is not available on the market for replacement• for adequate fee


yes


yes

Copyright is not infringed by school or education institution when for strictly non-commercial purpose is for purpose of the education or for internal use artwork createdby the student.


yes

Copyright is not infringed if not for direct or indirect commercial purpose the artworkis used in the school performance, where participate only the students and/or teachersof the school .


yes

= usage


116

e)

f)

6)6)

7)7)

8)8)

9)9)

10)10)

yes


yes


no


Strictly for non-profit institutions only.With exceptions of named state and public libraries, a compensation fee has to be paid tothe authors by such non-profit institutions.School libraries, university libraries, Národní knihovna České republiky, Moravská zemskáknihovna v Brně, Státní technická knihovna, Národní lékařská knihovna, Národní pedagog-ická knihovna Komenského, Knihovna Ústavu zemědělských a potravinářských informací,Knihovna Národního filmového archivu a Parlamentní knihovna České republiky.


For the purpose of a school performance where only students and/or teachers participate.For the purpose of education, if the school artwork (created by the student) is concerned.


For the school performance – any artwork.For the education purpose, for fee any, for free the school artwork only.



Articles 35, 37 and 37a of the Law no 121/2000 About copyright law. The law is obligatory.


In by the law specified cases (e.g. school performance, replacement of lost copy in libraryetc.)For Non-commercial purpose.For adequate compensation.

117

11)11)

12)12)

13)13)

14)14)

15)15)


For allowed scope of education purpose it is permitted automatically.Regarding the libraries license – subsequent annual reports have to be sent to the collectivemanager of copyright rights and summary of the compensation fee to be paid.


For usage within the school performance, no fee is required.For other library usages a compensation fee has to be paid (with exception of in the law ex-plicitly named state or public institutions)The report is made by the state (as manager of the libraries and public schools) to the col-lective manager of the copyright.The fee for making a copy is identical with fee for private use copy paid by the other subjects• black&white copy – CZK 0,20 per page• color copy – CZK 0,40 per pageIt is set that in libraries, museums, schools and other education institutions 70% of all copiesand in archives, state offices and other copy services providers 20% of all copies involvescopyrighted works.The fee for lending is fixed (CZK 0,5 cca 2 EU cents) per lending.The adequate compensation has to be paid for the library license (with exception of certainstate institutions explicitly named in the law).Annual report has to be sent be the institutions to the collective manages or the copyright lawappointed by the law together with list/summary of the fee to be paid.


The regime is completely harmonized with 2012/28/EU.Libraries, archives, museums, galleries, schools, universities and other non-profit school andeducation organizations and broadcaster according to the law (limited for artworks createdbefore 31.12.2002) do not infringe copyright if they use orphan works solely for fulfilmentof their purpose in the public interest.Adequate prior research in named information resources is required before a work can beconsidered for orphan.Opt out by the author to terminate the orphan status is possible


Naturally author can always render broader “license”.Contract between institutions and author that would limit the legal “library” license would bemost probably invalid.


no

No. Only the law appointed collective managers. Institutions do not have the duty to notifyprivate managers/licensing organisations.

118

II.)II.)

16)16)

17)17)

18)18)

19)19)

20)20)



yes

Where eventual disagreement of the author would interfere with the public function of thelibrary and archive, the exception is reasonable, limited for fulfilment of the public interestfunction of the institution.


yes

Where eventual disagreement of the author would interfere with the public function of theeducation the exception is reasonable, limited for fulfilment of the public interest function ofthe institution.With regards to the research, if it is non-profit research, it is in the public interest to supportany attempts to develop the overall scientific knowledge status, therefore eventually over-come the disagreement of the author for such purpose.


yes

It is.The exception should reflect such situations, where full contractual freedom of the authorshould be limited in the public interest.Therefore it should be only in such certain cases, where the public interest is presentOnly when standard usage of the artwork is not interfered (public interest is present andstandard contractual consent is not available or would be hard or difficult to achieve fromimportant reasons)And the author is not unreasonably damaged, therefore usually a compensation is requiredunless a special circumstances (special public interest) would justify for free exception.


No. Public interest resp. fulfilment of the public service duties of these institutions can´t belimited by contract.But the conditions can be contractually modified if it will not interfere with the public interest.


Usually it would be preferred, unless special public interest would justify to interfere with thecopyright for free.

119

21)21)

III.)III.)

22)22)

23)23)

24)24)

a)

b)

c)

25)25)

a)

b)


The regulation is casuistic. It explicitly enumerates and describes some specific situations,where the exception is acceptable, while a common public interest should be pointed asthe reason for exceptions. It leads to omission of some situations (subjects, reasons, circum-stances) where exception would be useful too when no general rule is made.The EU directive for orphan works contains more general rules that should be followed alsoin this area.



yes

Czech Copyright law is already harmonized with the Berne and Paris convention as well asWTO and EU copyright regime.



yes

Answer was yes.



To non-profit organizations having public interest duties.


To such activities that serves to the non-profit public interest, namely preservation, ed-ucation, private research


Fair, non-profit, not damaging author´s legitimate interests



To non-profit organizations having public interest duties.


120

c)

26)26)

27)27)

28)28)

29)29)

30)30)

To such activities that serves to the non-profit public interest, namely preservation, ed-ucation, private research


Fair, non-profit, not damaging author´s legitimate interests



If the required conditions are met, the exception should be automatic.


Non-profit public organization should report to the state, where the state makes summaryand pays to the collective copyright management agency having the license from the statefor that.


Viz 2012/28/ES, this regime seems to be sufficient.


Those should not be.


The legal regulation with minimalistic exceptions set explicitly by law in public interest andwith royalty payment management of collective copyright manager seems to work well.

SummarySummary

The Czech Republic is a member party of Berne Convention, Paris Convention and WIPOCopyright Treaty. As EU country also directives 2012/28/EU and 2001/29/EC are applica-ble there. The regime seems to be fully harmonized and meeting all the international stan-dards. It seems to work well, there are no visible problems with this part of regulation.


121

I.)I.)

1)1)

a)

b)

c)

DenmarkDenmark


in the name of the Denmark Groupby Johan L¯JE, Johan L¯JE and Christian Nordendorf OLSSON


QuestionsQuestions




yes


yes

Yes, according to the Danish Copyright Act (hereinafter DCA) art 16 institutions such aspublic archives, public libraries and other libraries, which are fully or partly subsidizedby the Danish State, and governmental museums or museums approved according tothe Danish MuseumÕs Act, may in certain instances mentioned in art. 16, section 2-5,reproduce or distribute copies of protected works for use in connection with their workto the extent the exploitation is not for commercial purposes.

The instances mentioned in art. 16, section 2-5 are the following:1. if the reproduction is made for the purpose of preservation or replacement,

1. if the copy of the work in the institutionÕs possession is incomplete and the workcannot be acquired in normal trade or from the publisher,

1. if the work ought to be available for lending at a library but cannot be acquired innormal trade or from the publisher,

1. if reproduction is necessary to fulfill the duty according to the Danish law on Dutyto Deliver Published Works


yes

see above


yes

see above

122

d)

2)2)

3)3)

4)4)

5)5)

a)


yes

see above


As stated under 1) only public archives, public libraries and other libraries, which are fullyor partly subsidized by the Danish State, or governmental museums or museums approvedaccording to the Danish MuseumÕs Act may be covered by the exemptions.


There are no specific limit for how many copies may be reproduced in each instance men-tioned in the law or precedence, but the number of copies that may be produced must bejustified by the underlying purpose behind the individual exemption.

The exemptions do not cover computer programs in digital form except for computer games.Computer programs in digital form may only be reproduced by the institution for back-uppurposes or testing.

Furthermore only institutions with an actual legitimate interest in the particular work mayperform a reproduction of a work which the institution deems important to its collection inaccordance with 1 c) above. Mere faint interest in the work does not justify reproduction of aspecific work

Finally the usage of the reproduced copies may be limited depending on the underlying pur-pose behind the individual exemption.


In general according to DCA art. 11 the exemptions granted in the Danish Copyright Act toreproduce protected works require that the copy reproduced is a lawfully created and distrib-uted copy. This however does not cover the exemption mentioned above under 1 d) accord-ing to DCA art. 11, section 3.

Furthermore most exemptions offered requires the institution to possess a copy of the pro-tected work itself, except for 1 c) above.


yes


yes

123

b)

c)

d)

e)

f)

6)6)

Yes according to DCA art. 13 education institutions may produce copies of protectedworks including recording of performances broadcasted via TV or radio on the condi-tion that the institution has entered into a voluntary license agreement with a copyrightadministration organization approved under the rules set out in DCA art. 50. The useof the copyrighted material is limited to the purposes covered by the agreement. Thelicense has as a consequence that also protected works created by persons, who donot have an agreement with the organization will be covered by the exemption andlimitations.

In principle the rights granted to the institution may cover all the above under a) Ðf) mentioned to the extent the exploitation or distribution only takes place within thesphere defined in the license agreement.


yes

See above


yes

see above


yes

see above


yes

see above


yes

see above


These exemptions and limitations apply to all educational institutions that have entered intoa license agreement with a relevant organization. Dancing schools are for some odd reasonnot covered.

124

7)7)

8)8)

9)9)

10)10)

11)11)


The law only provides for one exemption namely that the limitation does not allow for digitalreproduction of computer programs. Besides this all types of activities may be covered by theexemption to the extent covered by the license agreement.


Cinema movies are not covered by the limitation for as long as they are part of the movietheaters normal repertoire.

For the questions below, please provide an answer for each exception or limitationmentioned above.



As stated above the exemption regarding libraries and archives is codified in DCA art. 16and the exemption regarding educational institutions are codified in DCA art. 13.


All though not specifically mentioned in the law, the exceptions or limitations are all draftedalong the Three-Step Test principle, which for example leads to a general assumption thatthe limitations and exceptions in general should not be interpreted against the copyrightholder.


As stated above most of limitations or exceptions covered by this Question may be exercisedwithout further conditions. However the limitations and exceptions pertaining to educationalinstitutions require the entering in to a compulsory license agreement.

To the extent a license agreement is required the institution must contact the organizationprescribed by law and negotiate the conditions for an agreement. There are model agree-ments available, but changes can be made to the extent the educational institution has spe-cial needs etc. the license agreements are normally valid for a certain period and must berenewed. In most license agreement the number of copies allowed under the agreement willbe adjusted regularly based upon the actual use.

125

12)12)

13)13)

14)14)

15)15)


The remuneration payable under DCA art. 13 is determined based upon the amount ofcopies being produced by the institution. The price is not the same for each copy as a certaindiscount is applied to larger agreements. The Institution as such is liable for making the pay-ment and keeping track of the number of copies being produced and the conditions for theiruse. The payment is to be made to an organization approved by the State in accordance withDCA article 50.

The advantage of the compulsory license system is that the organization automatically repre-sent all copyright holders within the specific field of business, whether or not they are mem-bers of the organization or not. The organization is obliged also to administrate money re-ceived for use of protected works created by a person, with whom the organization does nothave an agreement, or whom the organization cannot identify. A person can specifically re-quest that his or her works are exempt from the license system. This however is quite rare.


Denmark has implemented EU directive 2012/28/EU regarding orphan works. According toDCA chapter 6b a work will be deemed an orphan work, if it has not been possible throughextensive and documented searches, to find the author. In order to qualify as an orphanwork, the institution claiming the limitation, must submit the results of their extensive researchto the Ministry of Culture. The search must be performed among sources of informationavailable in Denmark. To the extent there are indications of foreign copyright, the searchmust be broadened to cover also relevant sources from such countries.

Libraries, educational institutions and museums that are available to the public as well asarchives and sound movie- and sound heritage institutions may exploit orphan works.

If the copyright holder is later identified, he or she has the right to claim payment for theexploitation performed.


Yes to the extent the exception is covered by a compulsive license, the extent of the allowedusage will depend on the contract.

Besides moral rights, there are no provisions in the DCA that may not be overridden by con-tractual agreements involving the institution and the copyright holder.


yes

As stated above the use by educational institutions is administrated by private organizationsapproved by the government.

126

II.)II.)

16)16)

17)17)

18)18)

19)19)

20)20)

21)21)



yes

Yes, we find that an exemption should be available and we find that the system implementedin Denmark is reasonable and sufficient. Please see answer to question above 1-4.


yes

Yes, we find that an exemption should be available and we find that the system implementedin Denmark is reasonable and sufficient. Please see answer to question above 5-8.


yes

Yes the Danish group finds that the three-Step Test is a useful test, since it balances the publicinterested against the interest of the copyright holder. We find it reasonable and desirablethat any exceptions offered in case of uncertainty is interpreted in favor of the copyright hold-er, which is one of the consequences of the Three-Step Test.


Yes, in our opinion the copyright holder should be entitled to enter into agreements with in-stitutions which override the provisions stated in the law. It is only natural that the holder ofthe copyright decides on the extent of his or her rights and take their own decision on to whatextent a specific institution should be allowed to use their work to a larger extent than offeredby law. However the exeption should only overrideable in favour of the copyright holder.


No, the Danish group finds that the system provided for in the DCA is reasonable and fair,thus allowing for license free limitations for public purposes and requiring educational insti-tutions to pay for their usage of copyrighted material. The first, because the usage is impor-tant to document and spread copyrighted material, which otherwise is not available from thesource for public purposes. In relation to educational material, it is necessary to invest in andfund the production of new and updated material.

If the exception were free of license, the authors would not be encouraged to publish newmaterial and that would be damaging to the society. Furthermore a large amount of copy-righted works are created for the sole purpose of being use in educational institutions, andif such use was free of license this important group of authors would be diploid of incomefrom relevant usage of their works.


We do not find that the current system is in need of immediate improvement

127

III.)III.)

22)22)

23)23)

24)24)

a)

b)

c)

25)25)

a)



yes

Yes, we find that harmonization is desirable since copyright is to a large extent internationaland since copyright holders may have difficulties administrating their rights across borders.

If yes, please respond to the following questions without regard to your national or regionallaws.

Even if no, please address the following questions to the extent you consider your national orregional laws could be improved.



yes

Yes, we find that it is desirable to have harmonized rules on exceptions and limitations forthe areas in question.

We expect it is a mistake that this question is conditioned on a no to q. 16) or 17)



Only to institutions that have a clear public purpose and do not have a commercialpurpose


To activities that further the public purpose, ie. Offering of works that are not availablethrough commercial channels,


For exploitation that does not seriously damage the interests of the copyright holder.For this reason attention should be had at the level of distribution of digitally copiedmaterial.



128

b)

c)

26)26)

27)27)

28)28)

29)29)

We find that the Danish model of compulsory license is reasonable and fair, and there-fore the limitation/exception should be available to institutions who have entered intosuch a compulsory license agreement


For the purposes naturally associated with the educational purpose


Since we recommend a compulsory license system, the purposes conditions should bestated in the agreement and should aim to further the educational process, which in-cludes the distribution of material In digital form.

For the questions below, please provide an answer for each exception or limi-tation mentioned above (as applicable).



We do not find that any particular procedures should be applied, other than the ones alreadycovered by DCA Ð i.e. in particular the requirements in chapter 6A regarding orphan works.


The remuneration should to the largest extent possible be calculated based on transparentprinciples commonly available to all institutions of equal character. Preferably the remuner-ation should be calculated based upon volume, since it is preferable for both parties, thatsystem is easy to manage.

The institution should be liable for the payment, and the system should be administrated byorganizations approved by the local government.


The system adopted by the European Union in directive 2012/28/EU seems like a fair bal-ancing of the interests of the parties involved. The institution who wants to use the orphanwork should be required to perform reasonable research in order to identify the copyrightholder and to the extent such research does not lead to a result the institution should be al-lowed to use the material. Al though it is slightly burdensome it seems reasonable that theinstitution must prove the extent of its research to be able to claim the limitation.


We find that the copyright holder should have the rights to make whatever agreement withspecific institutions as he or she may wish.

129


We find that it is desirable that such private organizations are covered by governmental con-trol in order to ascertain the fair and reasonable administration of the copyright holderÕsrights. It is furthermore advantageous to have a system, whereby institutions can enter intoone agreement covering all works of a certain type.

SummarySummary

In Denmark the exemptions/limitations of copyright protection for use by libraries and edu-cational institutions are extensively regulated in the Copyright Act. Publicly founded Librariesand Archives are granted a right to create copies of copyright protected material in certainwell defined situations without having to pay remuneration. Educational institutions are en-titled to create copies of copyrighted material on the condition that the enter into a com-pulsory license with a copyright administration organization approved by government. Theextent of use granted to educational institutions depends on the provisions of such an agree-ment. Denmark has implemented the limitations for orphan work approved by the EuropeanUnion, whereby a work is considered orphan to the extent an institution through extensiveresearch is not able to identify the author. Once a work is considered orphan, it is free to usefor certain institutions for public purposes.

The Danish Group finds the extent of and conditions for applying exemptions/limitations tobe adequate


130

I.)I.)

1)1)

a)

b)

c)

d)

2)2)

EgyptEgypt


in the name of the Egypt Groupby M.h. LOUTFI and M.h. LOUTFI


QuestionsQuestions




yes


yes

IPR's law Article 171 (8) para. 2 "where the reproduction is made with the aim of pre-serving the original copy or, when necessary, replacing a lost, destroyed or has be-come invalid copy, and it was impossible to obtain such a substitute copy under rea-sonable conditions."


no

The Egyptian law didn't regulate the lending of copyrighted material.


no

The Egyptian law didn't regulate provision of copies..


no

Egyptian legislator is not yet prepared to add other purposes to this topic.


Only public libraries and archives that are not for profit.

131

3)3)

4)4)

5)5)

a)

b)

c)


No, there are no conditions.


No, there are no conditions.


yes


yes

IPR's law Article 171 (7):Reproduction, if necessary for teaching purposes in educational institutes, of an article,a short work or extracts therefrom, provided that:¥ reproduction is made once or at different separate occasions;¥ the name of the author and the title of the work are mentioned on each copy.


yes

IPR's law Article 171 (7):Reproduction, if necessary for teaching purposes in educational institutes, of an article,a short work or extracts therefrom, provided that:¥ reproduction is made once or at different separate occasions;¥ the name of the author and the title of the work are mentioned on each copy.


yes

IPR's law Article 170:Any person may request from the competent ministry to be granted a personal licensefor the translation of any work protected under this Law, without the authorization ofthe author and for the purposes indicated in the next paragraph, against equitableremuneration to the author or his successor, to the extent that such license is not incontradiction with the normal exploitation of the work or does not unduly prejudice thelegitimate interests of the author or the copyright holders.The license shall be granted, by a motivated decision, indicating the scope in time andplace, for the purpose of meeting teaching requirements of all kinds and levels.The Regulations shall prescribe the terms and conditions for the grant of such a licenseand the categories of fees due, which shall not exceed 1,000 pounds for each work.

132

d)

e)

f)

6)6)

7)7)

8)8)

9)9)

10)10)


yes

IPR's law Article 171 (7) is wide enough to cover digital networks for educational pru-pose, see wording hereabove.


yes

IPR's law Article 171 (7) is wide enough to cover research purposes, see wording here-above.


no

Egyptian legislator is not yet prepared to add other purposes to this topic.


Yes,these exception or limitations apply only to educational and research Institutions gener-ally.


Coverage is only for natural persons for research or study to use from the public libraries.


No special conditions.



Statutory provision (Article 171, item 8, the Egyptian IP Law).


Yes (Article 171, item 2, the Egyptian IP Law).

133

11)11)

12)12)

13)13)

14)14)

15)15)

II.)II.)

16)16)

17)17)

18)18)


Automatic by the operation of the Law.


No payment.


No.


No.


yes

Alexandria public library is exerting a lot of efforts as to raise the ceiling of exceptions andlimitations provided for scientific research.



no

The legislator is not yet prepared to address this topic.


yes

Enhancing research activities.


yes

Because it takes into consideration normal exploitation and does not unreasonably prejudicethe legitimate rights of the author.

134

19)19)

20)20)

21)21)

III.)III.)

22)22)

23)23)

24)24)

a)

b)

c)

25)25)

a)

b)


No, as it is a mandatory provision.


No, as it is for the benefit of research and education.


No need.



yes



yes

There is a need to impose exceptions and limitations on copyrighted material in this regardas to facilitate access to acids of knowledge in order to enhance cultural production.



Public libraries and archives only that are not for profit.


To replacement of damaged or lost text.


For public interest.



Public research institutions.


135

c)

26)26)

27)27)

28)28)

29)29)

30)30)

Educational and research.


For personal use only.



No criteria or procedure should be required.


No payment.


None.


Should not.


Private organizations should take into consideration public interest.

SummarySummary

Egyptian law no. 82 for the year 2002 is adopting several exceptions and limitations oncopyrighted material when there is a need to facilitate access to the said material.The onlyquestion adopted in this regard is to respect moral rights of the respective authors and/orbeneficiaries of related rights.Moreover, non-voluntary license have been authorized against payment of reasonble royaltyto be fixed by a public entity ONLY for educational and research purposes.


People with visual incapacity shall be entitled under the present draft-law to benefit from apossibilty to transform works into an appropriate form suitable to satisfy their needs in thisregard.

136

I.)I.)

1)1)

a)

b)

EstoniaEstonia


in the name of the Estonia Groupby Liina JENTS and Kaspar KALA


QuestionsQuestions




yes


yes

A public archive, museum or library has the right to reproduce a work included in thecollection thereof without the authorisation of its author and without payment of remu-neration, in order to:a. replace a work which has been lost, destroyed or rendered unusable;b. make a copy to ensure the preservation of the work;c. replace a work which belonged to the permanent collection of another library,

archives or museum if the work is lost, destroyed or rendered unusable; andd. digitise a collection for the purposes of preservation (subsections 20(1)(1)-(4) of the

CA).This exception applies only where the acquisition of another copy of the work is impos-sible (subsection 20(2) of the CA).Regarding technological protective measures, the CA provides that the rightholder shalladjust such measures to his or her work or object of related rights which allow the en-titled persons to freely use the work or object of related rights to the extent necessaryfor the free use in the cases prescribed by law on the condition that entitled personshave legal access to the protected work or object of related rights. If the person entitledto freely use the work or object of related rights and the rightholder fail to reach anagreement on application of the corresponding measures within a reasonable periodof time, the person entitled to freely use the work or the object of related rights has the

right to address the copyright committee (subsection 803(4) of the CA).This rule applies to:a. sections (a)-(d) of this section 1(a);b. sections (b) and (c) of section 5(a); andc. section 1(e).


no

No exception(s) for interlibrary lending.

137

c)

d)

2)2)


yes

For on-the-spot users, the CA provides that a public archive, museum or library hasthe right, without the authorisation of the author and without payment of remuneration,lend works in its collections for individual use (section 20(4)(2) of the CA).Regarding from libraries, there is another exception in the CA (free use with the obliga-tion to pay remuneration): a library has the right to lend out a work (incl. phonograms)without the consent of the author but the author is entitled to receive remuneration for

such lending (subsection 133(1) of the CA). The amount of remuneration payable tothe author is calculated on the basis of the state budget funds allocated for remuner-ations in the financial year and the electronically registered loans in public libraries

within the calendar year (subsection 133(4) of the CA). In this regard, see section 12below.


yes

A public archive, museum or library has the right to use a work included in the collec-tion thereof without the authorisation of its author and without payment of remunera-tion for the purposes of an exhibition or the promotion of the collection to the extentjustified by the purpose.A public library, museum or an archive may also make a private copy (i.e. not for com-mercial purposes) of the work to a natural person (subsection 20(1)(5) of the CA).It must be noted that the promotion of the exhibition could be commercial in essenceif e.g. the museum sells some sort of catalogues of the exhibition and receives incomefrom such activity. It has been provided in the explanatory notes of the new draft of theCA that if such sale only covers the cost of printing the catalogues, then such sale is notcommercial in essence.Neighbouring rightsNeighbouring rightsFor the purpose of illustration for teaching or scientific research to the extent justified bythe purpose and on condition that such use is not carried out for commercial purposesand on condition that the source is indicated, it is possible to use (incl. reproduce) aperformance, a phonogram, a radio or television broadcast or recordings thereof, ora film without the authorisation and without payment of remuneration to the performor the ÒownerÓ of the related right (subsection 75(1)(2) of the CA).


The law provides that such exceptions are provided to all "public archives, museums, li-braries." According to the explanatory notes of the CA, it is provided that any museum, li-brary or archive which is established for the public interest falls within the scope of section20 of the CA.

138

3)3)

4)4)

5)5)

a)

b)

c)


Neither the legislator nor the courts have provided any guidelines how many copies are re-quired to "preserve" a work. The Three-Step-Test applies when deciding whether the "preser-vation" by the library, museum or archive has infringed the rights of the author.


The exception is limited to the "work included in the library's or archive's collection".


yes


yes

The following is permitted without the authorisation of the author and without paymentof remuneration if mention is made of the name of the author of the work, if it appearsthereon, the name of the work and the source publication:a. making summaries of and quotations from a work which has already been lawfully

made available to the public, provided that its extent does not exceed that justifiedby the purpose and the idea of the work as a whole which is being summarised orquoted is conveyed correctly;

b. the use of a lawfully published work for the purpose of illustration for teaching andscientific research to the extent justified by the purpose and on the condition thatsuch use is not carried out for commercial purposes; and

c. the reproduction of a lawfully published work for the purpose of teaching or sci-entific research to the extent justified by the purpose in educational and researchinstitutions whose activities are not carried out for commercial purposes (subsection19(1)-(3) of the CA).

The precondition of the exceptions provided in sub-section 19(1)(1)-(3) of the CA is thatthe work is lawfully published.Regarding databases free use of databases, the CA provides that "a lawful user of adatabase which is lawfully made available to the public in whatever manner may, with-out the authorisation of its maker and without payment of remuneration, extract orre-utilise a substantial part of the database if extraction is made for the purposes ofillustration for teaching or scientific research, as long as the source is indicated and to

the extent justified by the non-commercial purpose to be achieved (subsection 756(2)of the CA).


no

Covered by 5(a) above. No specific reference to course packs, exams etc.


139

d)

e)

f)

6)6)

7)7)

8)8)

no

No such exception.


no

No specific rules for digital networks. See 5(a) above.


no

See 5(a) above.


no


All of these rules and exceptions provided in section 5(a) above apply to educational andresearch institutions generally independent of the fact whether the educational or researchinstitution is privately or publicly funded.


The CA provides two rules:a. the use of a work must not exceed the extent "that is justified by the purpose and the idea

of the work as a whole"; andb. such use must not constitute use for commercial purposes (see section 5(a) above).The CA does not provide any other conditions in that regard. Thus, similarly to section 3above, the number of copies made under the free use exception for educational and re-search purposes is not numerically defined.


Subsections 19(1)-(3) of the CA provide that the works must be lawfully published or madeavailable (see section 5(a)).For the questions below, please provide an answer for each exception or limitation men-tioned above.


140

9)9)

10)10)

11)11)

12)12)


The exceptions provided above for public museums, libraries and archives and the excep-tions provided for research and education are both statutory provisions in the CA.


Yes, the CA makes the Three-step test a statutory right and this covers both Ð museums, li-braries, archives and research and education institutions Ð exceptions described above.Section 17 of the CA provides that ÒÉprovided that this does not conflict with a normal ex-ploitation of the work and does not unreasonably prejudice the legitimate interests of theauthor, it is permitted to use a work without the authorisation of its author and without pay-ment of remuneration only in the cases directly prescribed in sections 18 Ð 25 of this Act (i.e.specific cases on specific conditions).Also, regarding limitations to neighbouring rights (see section 1(e) above), subsection 75(2)of the CA provides that the free use prescribed in section 75 of the CA is permitted onlyon the condition that that this does not conflict with normal use and does not unreasonablyharm the legitimate interests of holders of related rights.


The CA does not prescribe any procedure or criteria for the use of exceptions and limitations.Thus, the use is permitted automatically.


No remuneration is payable to the authors under sections 181 Ð 251 of the CA provided thatthe criteria prescribed in the aforementioned sections are followed.Regarding the lending of works from libraries (see also 1(c) above; without the consent of the

author but with an obligation to pay remuneration), a governmental regulation[1] is adopt-ed which provides: a) the list of information to be submitted in an application (by the au-thor(s));b) the rates of distribution of the remuneration between different authors; and c) thebases of and procedure for calculation and payment of remuneration.According to the regulation, the author(s) of a work are remunerated as follows:a. 59% to the author of the work in original language;b. 1% to the author of the work for the translation;c. 30% to the translator(s); andd. 10% to the illustrator of the work.In order to receive remuneration, the author must file an application by 15 April which isvalid for three years. After this period, a new application must be filed by the same date.The remuneration is based on the number the authorÕs work was loaned by the users of thelibrary.The application must include the following information:a. name;b. pseudonym;c. personal identification code;d. contact details;e. bank details;

141

13)13)

14)14)

15)15)

f. name and registry code of the legal person; andg. authorship status (author, translator, illustrator)

FootnotesFootnotes

1. ^ See: https://www.riigiteataja.ee/akt/111122012004 (in Estonian).


The CA provides an exception for the free use of orphan works for preservation or restorationpurposes and for educational purposes. However, such right is not granted to all museums,archives and libraries and educational institutions as was the case with the free use excep-

tion. Subsection 276(1) provides that such exception is only provided to Òpublic memory insti-tutionsÓ and to ÒEstonian Public Broadcasting.Ó These institutions are permitted to use a workor phonogram contained in their collections which has been considered an orphan workand forwarded to the orphan works database, only in public interests and provided that thenames of all identified rightholders are indicated.The institutions referred to are permitted to generate revenues in the course of the permittedfree use of the orphan work only for the purpose of covering the costs of digitising orphanworks and making them available to the public.According to the explanatory memorandum of the CA, a public memory institution is anypublic archive, museum, library, scientific or educational institution or institution dealing withthe preservation of films and audio.


The CA is silent on the matter Ð it does not say that the free use exceptions are imperative(does not enable overriding by a contract) or dispositive (enables overriding by a contract).Regarding free use of computer programs (section 24 and 25 of the CA; admittedly, freeuse of computer programs is outside the scope of this Report), it is provided that the free useexception is provided, unless the contract provides otherwise.According to the proposed draft CA, the exceptions or limitations regarding museums,archives, libraries and educational and research institutions cannot be overridden with a

standard term (subsection 39(5) of the draft CA)[1]. However, this implies that if a term isnegotiated between the parties, free use exceptions could be overridden with a contract.

FootnotesFootnotes

1. ^ The draft CA is accessible only in Estonian: https://ajaveeb.just.ee/intellektuaalneomand/wp-content/uploads/2014/08/Aut%C3%95S-EN-19-7-2014.pdf.


no

No such efforts from private organization can be determined.

142

II.)II.)

16)16)

17)17)

18)18)

19)19)

20)20)



yes

The law should provide exceptions to libraries and archives. Libraries and archives performan important role in the society Ð preservation and distribution of culture and knowledge. Li-brary is an important medium for many people and enables lending books (and other works)without payment, i.e. free access to knowledge. Thus, it has informational and heritage pur-poses. If there were no exceptions and limitation for libraries and archives then fulfilmentof these objectives would be very expensive (they would need to acquire consents from rightholders, pay remuneration etc.) and therefore for many libraries even impossible.The exceptions should definitely take into account the digital society and also include excep-tions for use of e-books by libraries and archives.


yes

Definitely. Exceptions or limitations for educational and research purposes are important forthe same purposes. As science is built on the ideas of others (which are put into a tangibleform), it is important for the development of science and sharing of knowledge that usingparts of the works of others (i.e. citations) is possible. Taking into account question 16, it isimportant that such knowledge can be accessed, therefore, both of these exceptions are nec-essary to the distribution of knowledge and education.


yes

It is a useful test as it enables to give a guiding principle to the legislator and at the sametime, provides discretional manoeuvrability for the courts. At the same time, it provides pro-tection to the author.


The free use exceptions should not be allowed to be overridden by contract, as it would un-dermine the very purpose they are provided Ð sharing of knowledge and granting access tosuch knowledge.


No. For preservation purposes and knowledge sharing, taking into account the Berne Three-Step-Test as it is provided in the CA and the provisions of the CA setting the limits to suchexceptions and limitations, such activities should not entail that the authors receive remu-neration. Although, it must be pointed out that where e.g. library reproduces works in anamount that exceeds the Òpreservation purposeÓ exceptions provided in the CA, the authorsshould be remunerated according to the same principles as is the case with lending from

143

21)21)

III.)III.)

22)22)

the libraries. Therefore, the exceptions and limitations need to address the interests of bothparties Ð the rights of the authors on the one hand (remuneration) and the right of the societyas a whole on the other (access and sharing of knowledge).


Taking into account questions 5(b) and 5(d), Estonian law lacks clarity on the matter of useof copyrighted works and materials for study materials and course packs. The law currentlyprescribes that free reproduction of a work is allowed (on the condition that the author andsource is indicated) for the purpose of teaching or scientific research to the extent justified bythe purpose in educational and research institutions whose activities are not carried out forcommercial purposes (subsection 19(1)(3) of the CA).This clause only allows reproduction of a work and not distribution of the reproduced copiesor for example making available of any material in an online teaching environment. Alsospecific instructions on the extent of such clause would provide legal clarity to authors, teach-ers and speakers and also the society at large. Therefore, it is not the law that necessarilyneeds to be amended, guidelines from the courts or from the Ministry of Justice could alsoprovide legal clarity on the matter. Also, entitled subjects under this section need to be spec-ified Ð it is unclear whether it enables the free use of works by teachers and students alike.Also, providing an explicit exception for interlibrary lending could be introduced in the CA.Regarding the free use exceptions for libraries, libraries should be provided with the right ofpublic performance and right of exhibition of the work to students and groups of students forin the direct teaching process on the conditions and limitations as set out in section 22 of theCA for educational institutions.



yes

As Internet is the "library" of our time, it could be argued that international harmonisationis required as Internet at its essence is global. Although desired, achieving harmonisationat this level is a rather ambitious and at the moment impossible, if regional harmonisationhas not been achieved. Thus, it could be asked whether regional harmonisation is necessary.If we take a look at the level of EU, it could indeed be argued that similar exceptions andlimitations provide a clearer legal environment on the free use of works for the purpose ofpreservation and access to knowledge. Why such harmonisation would be desired is the mat-ter that course materials, course packs and online-courses/online-subjects could be used bydifferent educational institutions in different countries. Therefore, if the system is harmonised,we could speak about the distribution of knowledge on a larger scale which could also meanthat the authorÕs rights are respected and in case the preconditions are set in the same way,authors should be remunerated for any use exceeding the strictly educational or scientificpurposes (e.g. Estonian teacher using the course pack created by a French teacher). Thedifferences in the educational systems (e.g. private and public schools, systems of universi-ties) definitely pose a big problem in this regard. Questions like e.g. will private schools beallowed to benefit from the same limitations and exceptions as public schools immediatelysurface and the question to this is rather political than legal.Taking in to account the aforesaid, harmonisation would enable the sharing and preservingknowledge on a larger scale.E-books have become more of a standard than an exception. Thanks to wide spread of e-books, the opportunities for libraries to acquire different books, has become so much easierand cheaper. But if the legal issues with e-books (inter alia of how to lend out this e-book,how the exceptions and limitations could be applied to e-books etc.) has not been solved,then this advantage does not have much value.

144

23)23)

24)24)

a)

b)

c)

25)25)

a)

b)

c)



yes

The answer to questions 16 and 17 were Yes.



Only museums, archives and libraries that are established for the public interest shouldbe allowed to benefit from such exceptions and limitations.


The exceptions and limitations should cover the following activities:a. replacing a copy of a work that has deteriorated to an extent that its content are no

longer accessible;b. replacing a work if the work is lost, destroyed or rendered unusable;c. copying a work for preservation purposes; andd. digitising for the purpose of preservation;e. lending out regular as well as e-books.


The exceptions should only be applicable:a. in the case when acquisition of another copy of the work is impossible; andb. the purpose is non-commercial.Exceptions should be equally applicable to tangible and intangible work.



All educational institutions and universities. But not to companies providing consulta-tions or who make promotional lectures etc.


The exceptions and limitations should be allowed for:a. making quotations and summaries; andb. illustrative use in teaching materials and educational purposes;c. other uses (copying, making available etc.) strictly for the purpose of teaching or

scientific research.


The exceptions should only be applicable:

145

26)26)

27)27)

28)28)

29)29)

30)30)

a. for educational and research purposes (i.e. non-commercial);b. the author and the source is cited whenever possible; andc. the work is not used as a whole, but to the extent necessary for the purpose.For the questions below, please provide an answer for each exception or limitationmentioned above (as applicable).



On the one hand, enabling the use of works under the exceptions and limitations automat-ically means that the author is the one who must track and identify whether any institution(educational or preserving) goes further than prescribed by law or not. On the other hand,making some sort of system for notification or other puts huge administrative burdens onthe educational and research institutions and museums, libraries and archives. Therefore isshould be permitted automatically.


The exceptions and limitations for libraries, archives, educational and research institutionsbenefit the society as a whole, and therefore the remuneration for such uses could be paidfrom the state budget.


It should be possible for public memory institutions to make a copy of an orphan work forpreservation purposes provided that the institution has carried out diligent search of the orig-inal author.


The exceptions or limitations should not be capable to be overridden by contract in any case.


This questions is unclear.

SummarySummary

1. Libraries and archives are important for the preservation and distribution of culture and

knowledge, therefore the exceptions provided in the Copyright Act (hereinafter ÒCACAÓ)[1]

are extremely important.2. Exceptions or limitations for educational and research purposes are important for the de-

velopment of science and knowledge sharing.3. The free use exceptions should not be allowed to be overridden by contract Ð undermines

the purpose of sharing and granting access to knowledge.4. No remuneration should be payable for preservation and knowledge sharing purposes.

146

5. Improvements of the Copyright Act are necessary regarding the following: study materi-als and course packs; the exception of the reproduction of a lawfully published work forthe purpose of teaching or scientific research is too narrow, only enabling reproduction,not distribution; exceptions regarding interlibrary lending should be introduced; librariesshould be provided with a right of public performance of a work and a right of exhibitionof a work for direct teaching purposes; clarification must be provided regarding lendingof e-books.

6. For the purpose of preservation and granting access to knowledge on a larger scale, re-gional harmonisations is desirable.

7. The use under the exceptions and limitations should be permitted automatically.8. Libraries, archives, museums, educational and research institutions should receive remu-

neration from the state budget.

FootnotesFootnotes

1. ^ Copyright Act is accessible in English: https://www.riigiteataja.ee/en/eli/531102014005/consolide.


147

I.)I.)

1)1)

a)

FinlandFinland


in the name of the Finland Groupby Rainer OESCH, Kristiina HARENKO, Jarmo KOIVUNIEMI, Tanja LILJESTR…M, Sami SUNILA,

Katariina SORVARI and Elisa HUUSKO


QuestionsQuestions




yes


yes

The Finnish Copyright law provides for a number of exceptions related to educationaluse and for archives, museums and libraries. These exceptions are defined in very de-tailed manner and represent the so-called Òclosed listÓ approach. The specific and de-tailed exceptions permitting limited use of a work are supplemented with an extendedcollective licensing system that allows more flexibility. Extended collective licence is aconcept in which the licence covers authorizations also for works of authors who arenot represented by the collecting society which grants the licences. For example, theextended collective licensing system is used for permitting the taking of photocopieswithout explicit permission of the right holder. The exception is applicable but not lim-ited to use for cultural and educational purposes.The exceptions related to educational use and for archives, museums and libraries are,for the most part, subject to fair remuneration to the right holders. There are variousways of providing the remunerations, and it does not necessarily come directly fromthe beneficiary of the copyright exception.An English translation of the Finnish Copyright Act (FCA) can be found athttps://www.finlex.fi/en/laki/kaannokset/1961/en19610404.pdf amendments up to2010.ResponseResponse toto 11: Yes, please see FCA sections 16 (reproduction in archives, librariesand museums) and 16 a (reproduction of copies of works for the public and commu-nication of works to the public).According to the FCA 19(1), once a copy of a work has been sold or otherwise perma-nently transferred with the consent of the author within the EEA, the copy may be fur-ther distributed also by lending. The provisions of subsection 1 do not apply to publiclending of a cinematographic work or a computer-readable computer program. Thus,public lending of such works is permitted only under a right holderÕs licence.The author has a right to remuneration for the lending of copies of a work under sec-tion 19(1) of the FCA.ResponseResponse toto 11 a):a): Libraries and archives are allowed to reproduce and distribute cer-tain materials for the purpose of preservation and replacement of works in their owncollection. In some cases only the making of copies by photocopying or similar meansis permitted (see below item c).

148

b)

c)

d)

2)2)

3)3)


yes

Reproduction exception is applicable for works in the organizationsÕ own collection.There is no statutory interlibrary lending exception. However, as regards interlibrarylending of copies sold or otherwise permanently transferred with the consent of theauthor within the EEA, interlibrary lending is permitted under FCA 19 (the distributionright of that particular copy has been exhausted).


yes

Libraries and archives are allowed to reproduce and make available certain materialsfor the purpose of preservation and replacement of works in their own collection.Please note that reproduction for the purpose of lending or for the purpose of handingmaterial over to borrowers for their private use is permitted only by photocopying orcorresponding means (FCA 16 a (1)).


yes

A statutory exception permits reproduction for the purpose of administration and orga-nizing collections and for other internal purposes as well as supplementing a deficientitem or completing a work that is published in several parts.The FCA includes a section that permits extended collective licenses for other activities.However, no extended collective licenses concerning libraries and archives are current-ly in place or applicable.


The exceptions for libraries apply to libraries that are open to the public. The museums,archives and other organizations to which museum and archive and other organization ex-ceptions are applicable are expressly defined in the FCA and the relating decree.(FCA 16, 16 a Ð d)


All permitted activities are specific and defined in detail in the statutory exceptions. The ex-ceptions apply to activities for purposes other than financial gain. General requirements ofmaking source information available in accordance with good practice, and the principle ofnot making any further modifications or changes than what the use of the exception requires,apply.Digital reproduction is excluded as regards reproduction for the purpose of lending or forthe purpose of handing material over to borrowers.Furthermore, the exceptions permitting communication and related reproduction are restrict-ed to communication to the public on the institutionsÕ premises.

149

4)4)

5)5)

a)

b)

c)

d)

e)


The legislation aims to respect the exclusive right of the creator to decide over publicationof a work. Also the reproduction for supplementing a deficient item or completing a workthat is published in several parts is permitted only in case a copy is not available from acommercial source (FCA 16 (1) 4). The exceptions are subject to a variety of conditions thatapply to different forms of use.There is a general condition (FCA 11) that reproduction under the provisions in chapter 2 ofthe FCA (Limitations on copyright and provisions concerning extended collective licence) isnot permitted from an unlawful source.


yes


yes

Yes, please see FCA 14.Specific statutory exceptions permit activities related to performance and display ofcopyrighted works for educational purposes.According to the FCA 21(1) a published work may be publicly performed in connectionwith education with the exception of films and dramatic works.


yes

Specific statutory exceptions permit reproduction and distribution of copyrighted worksfor educational purposes to a certain defined extent. Distribution of copies sold or oth-erwise permanently transferred with the consent of author is permitted as the right ofdistribution of such copies is exhausted


no

Statutory exceptions do not permit translations.


yes

According to the FCA a collecting society may grant an extended collective licence per-mitting digital reproduction. Making available via communications networks may bepermitted under an extended collective licence with the exception of television and ra-dio broadcasts.


150

f)

6)6)

7)7)

8)8)

yes

According to the FCA a collecting society may permit, under an extended collective li-cence, reproduction for use in educational activities or in scientific research and com-munication to the public by means other than transmitting on radio or television. Thecopyright holder may opt out from the application of the extended collective licence.(FCA 14 (1))Reproduction by photocopying or by corresponding means may be permitted by virtueof an extended collective licence (FCA 13).


yes

In educational activities, a work that has been made public, and that is performed bya teacher or a student, may be reproduced by direct recording of sound or image fortemporary use in educational activities. A copy thus made may not be used for otherpurposes.Parts of a literary work that has been made public or, when the work is not extensive,the whole work, may be incorporated into a test constituting part of the matriculationexamination or into any other corresponding test.(FCA 14 (2) and 14 (3))


Education and research exceptions are applicable in general. However, the provisions of theFCA regarding educational activities shall not apply to educational activities conducted forthe purpose of financial gain (FCA 54 a).


Cultural and educational limitations concern activities that take place at certain institutionsfor the benefit of the public. From the userÕs perspective, also the private use exception en-sures limited access to educational material. The extended collective licensing system is usedfor granting permission to make photocopies and the applicable agreement sets out quanti-tative restrictions.Please see FCA 12 and 13


Exceptions do not permit the reproduction of a copy of a work which has been made or madeavailable to the public contrary to the copyright holderÕs exclusive rights or whose techno-logical measures have been circumvented in violation of the law. However, the requirementof lawful procurement is applicable to educational exceptions but not to the archives and li-braries.


151

9)9)

10)10)

11)11)

12)12)

13)13)


Exceptions and limitations are legislated and incorporated in the FCA. The system is closedand the permitted use is specific


The three step test has been adopted in EU legislation and it is referred to in the nationalpreparatory works (travaux preparatoires) of the current legislation. The principle is not en-shrined in the copyright law but affects its interpretation.


The statutory exceptions apply automatically in case there is no explicit reference to the ex-tended collective licensing system. The statutory exceptions define the limits of the copyrightentitlement and thereby exclude certain acts from the scope of the exclusive right.


The statutory exceptions that do not refer to extended collective licensing system define thelimits of the copyright and thereby exclude certain acts from the applicability of the exclusiveright. The remuneration becomes payable only in case the use is covered by copyright.In case there is an extended collective license in place, the collective licensing organizationnegotiates the amount of remuneration and distributes it in accordance with its own stipula-tions. In some cases it is required (e.g. in Infosoc Directive) that some kind of compensationshall be paid for the right holders (not necessarily by users).From the userÕs perspective, also the private use exception ensures limited access to edu-cational material and works. According to section 19 (4), the author shall have a right toremuneration for the lending of copies of a work to the public. The state is responsible forthe remuneration of private use and the end-user who benefits form from the license is notdirectly responsible for making any payments.The state remunerates authors for the reproduction of works for private use from funds takenup in the state budget, the amount of which is determined pursuant to an independent studyof the prevalence of private copying. The remuneration is distributed by a collecting societyappointed by the state and in accordance with a spending plan confirmed by the Ministry ofEducation.] Please see FCA 26(4) (amendment 19.12.2014)]


Orphan work exceptions are applicable also in the context of archives and libraries and edu-cational use. Finland has implemented EU-directive (2012/28/EEC) on certain permitted useof orphan works by a separate Act on orphan works (764/2013).

152

14)14)

15)15)

II.)II.)

16)16)

17)17)

18)18)


Exceptions can be overridden by contract to certain extent. Agreements are prima facie validand enforceable between the parties. In case someone uses a work in accordance with anexception but contrary to such agreement, the use does not constitute a copyright infringe-ment.


no

To our knowledge, there are no such efforts other than by established collecting societies.The extended collective licensing system is meant to ensure the licensing needs of libraries,archives, and educational and research institutions.



yes

Legislation that provides for simple and justified privileges to reproduce and make copyright-ed works available in a digital environment would be desirable. The legitimate interests of theright holders and users as well as the public interest should be taken into account. The desir-able exceptions would permit temporary reproduction of works merely for non-commercialuse that takes place in a closed network. Such exceptions should conform to the three steptest requirements.


yes

Legislation that provides for simple and justified privileges to reproduce and make copyright-ed works available in a digital environment would be desirable. The legitimate interests ofthe right holders and users as well as the public interest should be taken into account. Thepreconditions for justified exception would be the same as in item 16 above.


yes

Compulsory EU legislation requires the use of the three step test as well as internationalcopyright treaties (Berne Convention, the TRIPS Agreement, and the WIPO Copyright Treaty).The Finnish AIPPI Group finds that the application of the three step test has not caused anysignificant difficulties at national level. The test is also very much in line with e.g. the consti-tutional requirements which exist at national level.

153

19)19)

20)20)

21)21)

III.)III.)

22)22)

23)23)


As a general matter, the principle of freedom of contract requires that exceptions should becapable of being overridden by a contract unless there are important legitimate reasons forlegislating to the contrary. Substantial number of the current statutory and detailed excep-tions has been enacted for the purpose of promoting public benefit. The possibilities of athird party to benefit from any statutory exceptions should not be limited by a contract.


Remuneration for activities described in items 16 and 17 seems justified. The Information so-ciety directive sets requirements for such remuneration with some exceptions. The extendedcollective licensing system is in use for the purpose of remuneration of such activities. Theend user can benefit from the licensing free of any direct payments as the state is responsiblefor the remuneration.


The current law in Finland should be simplified and updated to the digital environment.



no

Educational and research institutions are becoming more and more international and maynowadays have cross-border programs and other operations. This calls for an increased co-operation between countries and increased understanding of different regimes for exceptionsand limitations to copyright protection in the field of education and research.However, due to the profound differences in national educational and research systems, theirstructure and financing as well as differences in remuneration regimes for copyright excep-tions, international harmonization of copyright exceptions and limitations in this field doesnot appear to be a workable or a desired solution. Moreover, the fact that the exceptionsand limitations for educational and research purpose often have a limited commercial im-pact further reinforces this conclusion.As to international harmonization of exceptions and limitations for libraries and archives, thenational differences in the structure of such institutions and their financing as well as the non-commercial nature of these exceptions are even more prominent than in the field of educa-tion and research. Given such differences, international harmonization seems an unsuitableway to address the exceptions and limitations to copyright in this field.



no

Harmonization in form of a binding international treaty or convention prohibiting exceptionsseems unfeasible and undesirable.

154

24)24)

a)

b)

c)

25)25)

a)

b)

c)



Comment: International assessment of common current and future challenges and in-formation sharing concerning solutions and experiences in workable copyright excep-tions and limitations seem advantageous. However, for the reasons stated in connec-tion to the item 22 above, no binding international convention or agreement would bedesirable. The legislative power to decide about the exceptions whether in the analogor digital environment should remain on a national level.We find the exceptions applicable to public libraries and defined institutions justified.Please see the comment above


We find the exceptions applicable to the use of material in public libraries and definedinstitutions justified.Please see the comment above.


The current exceptions seem functional and justified and the desirable improvementswould do the same in the digital environment.Please see the comment above.



Comment: International assessment of common current and future challenges and in-formation sharing concerning solutions and experiences in workable copyright excep-tions and limitations seem advantageous. However, for the reasons stated in connec-tion to the item 22 above, no binding international convention or agreement would bedesirable. The legislative power to decide about the exceptions whether in the analogor digital environment should remain on a national level.We find the exceptions applicable to defined educational and research institutions jus-tified.Please see the comment above.


We find the exceptions applicable to the use of material for the purpose of educationand research justified.Please see the comment above


The current exceptions seem functional and justified and the desirable improvementswould do the same in the digital environment.Please see the comment above.


155

26)26)

27)27)

28)28)

29)29)

30)30)


The automatic application of specific exceptions is preferable but the optimal functioning ofthe system would require simple and easy rules for the user. However, the limitations shouldnot unreasonably harm publishing activities for research and educational purposes.


The remuneration calculation mechanisms for use of protected content should be transpar-ent. Extended collective bargaining is preferable as the agreements are negotiated by profes-sionals on both sides. However, the possibility to opt out from the collective licensing systemin individual cases requires further study.


The current regulation seems to be adequate at least for the time being.


Agreements should be allowed to the extent possible without adversely affecting general pub-lic interest or the collective bargaining system.


See answer to question 15.

SummarySummary

The findings of the Finnish group are:The exceptions to copyright concerning the institutions like libraries, archives and educationaland research institutions are scattered and open to interpretations and also varying by theirstructure, because exceptions especially in this environment are written in a very restrictedand casuistic manner. Of course simplification is wished but it is not an easy task, becausethe interests of right holders, users including these institutions and the general public are notalways parallel.The legislation and the supplementing extended collective licensing system should be simpleenough to promote effective and adequate use of the system and leave room for the freedomto contract. Since the changes in the digital environment are quick and an extended collec-tive licensing system requires time to become established and familiar to the users, new waysof using digital content brings new challenges as identical exceptions do not seem feasiblein both digital and analog contexts.The educational and research exceptions reflect important public interests and support theessential structures of cultural and educational activities. The national exceptions enacted inaccordance with the three step test for the public benefit should continue to be permitted anddecided on a national level. Compulsory international harmonization limiting such nationaldecision making is unnecessary and undesirable.

156


Comments:The relatively recent amendments to the FCA (2005) did not result in full compatibility withthe digital environment and the baseline for exceptions continues to be the reproductionand use of traditional material in the analog environment. Some further amendments couldbe needed and the functioning of the limitations in the digital environment should be re-assessed.

157

I.)I.)

1)1)

a)

FranceFrance


in the name of the France Groupby Stefan NAUMANN, Charles-Antoine JOLY, ElŽonore GASPAR, Juliette CROUZET, Elsa

MALATY and Guillaume HENRY


QuestionsQuestions




yes


yes

1¡/ The exception for the purposes of conservation or consultation

¥ Article L.122-5 8¡ of the French Intellectual Property Code (Code de la PropriŽtŽIntellectuelle, hereinafter the ÒCPIÓ) establishes an exception to the authorÕs mo-nopoly for the benefit of libraries:

ÒThe reproduction of a work and the representation thereof carried out for thepurposes of conservation or intended to preserve the conditions for consultationthereof for the purposes of research or private study by private individuals, on thepremises of the establishment and on dedicated terminals by publicly accessible li-braries, by museums or by archive services, provided that they do not pursue anyeconomic or commercial advantageÓ.

This exception was introduced into French law by law No 2006-961 of 1 August 2006on copyright and related rights in the information society. It transposes Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and re-lated rights in the information society, Article 5.2 c of which provides that:

Ò2. Member States may provide for exceptions or limitations to the reproduction rightprovided for in Article 2 [reproduction right] in the following cases: [...]c) in respect of specific acts of reproduction made by publicly accessible libraries, edu-cational institutions or museums, or by archives, which are not for any direct or indirecteconomic or commercial advantage [...]Ó.

¥ This exception, which applies to libraries and archive services, is strictly defined:

◦ Only publicly accessible libraries not pursuing any economic or commercialadvantage may benefit from this exception.

◦ The exception may only be implemented for two reasons:▪ The conservation of documents;▪ The preservation of the conditions for consultation of documents in situ.

158

b)

c)

A similar exception applies to related rights. Article L. 211-3, 7¡ of the CPIauthorizes:

ÒActs of reproduction and representation of an interpretation, phonogram,video or programme carried out for the purposes of conservation or in-tended to preserve the conditions for consultation thereof for the purposesof research or private study by private individuals, on the premises of theestablishment and on dedicated devices by publicly accessible libraries, bymuseums or by archive services, provided that they do not pursue any eco-nomic or commercial advantageÓ.


no

2¡/ The limitation of copyright for library lending

Law No 2003-517 of 18 June 2003 relating to remuneration for library loans andstrengthening the societal copyright protection establishes a limitation of the copyrightmonopoly in the case of the lending, by libraries, of books that are the subject of apublishing contract.

Article L. 133-1 paragraph 1 of the CPI provides that:

ÒIf a work was the subject of a publishing contract for the publication and distributionthereof in the form of a book, the author may not object to the lending of copies ofthat publication by a library open to the public.Ó

Therefore, an author may not object to lending by libraries.

However, acts of lending by libraries are not free of charge, because the second para-graph of Article L. 133-1 CPI provides that:

ÒThis lending confers a right to remuneration on the author in accordance with thearrangements provided for in Article L. 133-4Ó.This is therefore a statutory licence.

There are no similar exceptions for related rights. The exception is therefore not applic-able to audiovisual works and to phonograms.Article L.122-5, 8¡ of the CPI only expressly refers to the reproduction and representa-tion of a work with a view to conserving or preserving the conditions for its consultation.Now, by virtue of the principle of strict interpretation of exceptions, any reproduction orrepresentation for a different purpose would fall outside the exceptionÕs scope of ap-plication, and would therefore fall within the monopoly of the rights holder.

Thus, the exception only applies to conservation or preservation; it does not cover in-terlibrary lending of copies of works. The law on library lending does not contain anyprovisions regarding interlibrary lending.


yes

159

d)

2)2)

1¡/ The exception under Article L. 122-5 8¡ of the CPI only authorises a reproductionand representation of works for the purpose of preservation by libraries or else for thepurpose of consultation by the public Òon the premises of the establishment and ondedicated terminalsÓ. This exception does not authorise libraries to provide physical ordigital copies of works.

2¡/ The statutory licence for library lending no longer authorises libraries to makecopies of works for their users.


no

Any other activities carried out by libraries in the context of their functioning but notprovided for by the law fall within the scope of the rights holdersÕ monopoly and aretherefore subject to the authorÕs authorisation.


1¡/ Article L.122-5, 8¡ of the CPI expressly provides that the exception of conservation andpreservation shall only benefit libraries and archive services not pursuing any economic orcommercial advantage.

2¡/ Article R.133-1 of the CPI lays down a restrictive list of libraries that may benefit fromthe lending exception:ÒLibraries open to the public for lending that are referred to in Articles L. 133-3 and L. 133-4shall be:1¡ libraries of local and regional authorities designated under Articles L. 310-1 to L. 310-6[municipal libraries] and L. 320-1 to L. 320-4 of the Heritage Code [regional libraries];2¡ libraries of public institutions of a scientific, cultural and professional nature and otherpublic institutions of higher education operating under the Minister for Higher Education;3¡ libraries of works councils;4¡ any other library or organisation that makes a collection of documents available to thepublic, whereby over half of the copies of books acquired within the year are intended fororganised lending activity for the benefit of individual or collective registered users.Ó

Moreover, French law must be interpreted in the light of Article 2 of Directive 2006/115 of12 December 2006 on rental right and lending right and on certain rights related to copy-right in the field of intellectual property, which defines the lending of books by a library asÒmaking [them] available for use, for a limited period of time and not for direct or indirecteconomic or commercial advantage, when it is made through institutions which are accessi-ble to the publicÓ.

Thus, although the condition that a direct or indirect economic advantage is not being pur-sued is not expressly referred to in French law, it is possible that this condition would beapplied via the case‑law.

160

3)3) AreAre therethere anyany conditionsconditions asas toto thethe typetype oror scopescope ofof anyany permittedpermitted activitiesactivities (e.g.(e.g. numbernumberofof copiescopies thatthat maymay bebe created,created, whetherwhether onlyonly aa portionportion ofof aa workwork maymay bebe used,used, whetherwhethercertaincertain formsforms ofof reproductionreproduction (e.g.(e.g. digitaldigital reproduction)reproduction) areare excluded)?excluded)? IfIf so,so, pleaseplease ex-ex-plain the conditions.plain the conditions.

1¡/ As far as the exception of preservation and consultation provided for in Article L.122-5,8¡ of the CPI for the benefit of libraries and archive services is concerned, the text does notspecify the number of copies that can be made by the institutions concerned.

Therefore, there is nothing a priori to prevent libraries from making several copies, includingin different formats (see, in this regard, C. Greiger, F. Macrez, A. Bouvel, S. Carre, T. Hasslerand J. Schmidt, ÒQuelles limites au droit dÕauteur dans la sociŽtŽ de lÕinformation ? RŽponseau livre vert sur Ç le droit dÕauteur dans lÕŽconomie de la connaissanceÓ: Propr. Intellec.,2009, p. 231-244) [What are the limits to copyright in the information society? Response tothe Green Paper on ÒCopyright in the Knowledge EconomyÓ: Intellectual Property, 2009, p.231-244]).

Only the purpose of the copy is governed by law (preservation or consultation).

2¡/ As far as the exception of library lending is concerned, no reproduction of works is au-thorised.

Moreover, the question arises as to whether the statutory licence regarding the lending rightof libraries also applies to the lending of digital books.¥ In France, the Law of 18 June 2003 provides that:

ÒIf a work was the subject of a publishing contract for the publication and distributionthereof in the form of a book, the author may not object to the lending of copies of thispublication by a library open to the publicÓ (Article L. 133-1 of the CPI).

Therefore, French law does not explicitly exclude intangible media from the scope of ap-plication of the statutory licence. A ÒbookÓ or a ÒcopyÓ may be physical or digital.

¥ Moreover, where the legislature does intend to restrict the notion of copies to a physicalobject, the notion of Òphysical copies of a workÓ is used in the law (see Directive 2001/29 of 22 May 2001 on the harmonisation of certain aspects of copyright and relatedrights in the information society Ð Recital 28 Òonce the first sale of a physical copy orcopies of a work has been authorised by the author or his right holder in the territory of aMember State of the European Community (...), the sale of those copies of that work mayno longer be prohibited (...)Ó (Art. L. 122-3-1 of the CPI, which also uses the expressionÒphysical copies of a workÓ).

Similarly, in the context of the WIPO Copyright Treaty of 20 December 1996, Articles 6(right of distribution) and 7 (right of rental) also use the word ÒcopiesÓ.

In order to restrict the expression ÒcopiesÓ to physical copies, the parties had to addan agreed statement, which provides that Òthe expressions ÒcopiesÓ and Òoriginal andcopies,Ó being subject to the right of distribution and the right of rental under the saidArticles, refer exclusively to fixed copies that can be put into circulation as tangible ob-jectsÓ.

¥ However, Directive No 2006/115 of 12 December 2006 on rental right and lendingright could be interpreted to the effect that only the lending of paper books falls within theexception, because it specifies that ÒÔlendingÕ [objects] means making [them] available

161

4)4)

5)5)

a)

for use, for a limited period of time and not for direct or indirect economic or commer-cial advantage, when it is made through institutions which are accessible to the publicÓ(Article 2.1).

Now, French law must be interpreted in the light of the Directive.

Moreover, as the statutory licence is a restriction of the exclusive right of the author, itmust also be interpreted having regard to the principle of strict interpretation of excep-tions.

Thus, although some academics consider the statutory licence relating to library lendingto be applicable to digital books (C. Alleaume, Le prêt des Ïuvres de lÕesprit [LendingIntellectual Works], thesis, 1997. See also S. CarriŽ, Les bibliothèques ˆ lÕheure dunumŽrique [Libraries in the Digital Age], CCE, 2006, study 15), other authors take theopposite stance (A. and H.J. Lucas and A. Lucas-Schloetter, op. cit., No 283, 287,288; Report of Pierre Lescure of 13 May 2013, Contribution aux politiques culturelles ˆlÕère numŽrique [Contribution to Cultural Politics in the Digital Era], Annex A13: lÕoffrenumŽrique en bibliothèque [the digital offering in libraries]).

The case-law has not taken a position on the issue, however, as far as we are aware.


1¡/1¡/ Article L.122-5, 8¡ of the CPI on the exception of conservation and consultation is generaland does not lay down any restriction with regard to the type of works concerned, such thatany type of work benefits from the exception; graphic, artistic, literary and audiovisual works,etc.

The only condition that arises is that the reproduced work initially appears in the catalogueof the library or archive service concerned.

2¡/2¡/ As far as Article L.133-1 is concerned, the CPI expressly provides that it only relates toworks that were the subject of a publishing contract for the publication and distribution there-of in the form of a book.

The exception is restricted to literary works published in the form of a book.


yes


yes

French law provides for an exception to copyright for education and research, which isreferred to as the Òpedagogical exceptionÓ in Article L.122-5, 3¡), e) CPI, according towhich:

162

ÒThe representation or reproduction of extracts from works, provided that they areworks intended for pedagogical purposes and music scores, for the sole purpose of il-lustration in the context of education and research, including for the development andtransmission of subjects for exams or contests organised in the continuation of educa-tion, to the exclusion of any leisure or recreational activity, provided that this represen-tation or reproduction is intended, particularly by means of a digital working space, fora public predominantly composed of pupils, students, teachers or researchers directlyconcerned by the act of education, the act of training, or the research activity requir-ing this representation or reproduction, that it is not the subject of any publication ordissemination to a party outside the thus constituted public, that the use of this repre-sentation or reproduction does not give rise to any commercial exploitation and that itis compensated via remuneration negotiated on a flat‑rate basis, without prejudice tothe assignment of the right of reproduction by means of reprography, as referred to inArticle L. 122-10Ó.

This exception can be found in almost identical form in relation to the matter of relatedrights in Article L.211-3 CPI.

Ò [É] the communication to the public or reproduction of extracts of objects protectedby a related right, provided that they are objects intended for pedagogical purposes,for the sole purpose of illustration in the context of education and research, to the ex-clusion of any leisure or recreational activity, provided that the public for which thisrepresentation or reproduction is intended is predominantly composed of directly con-cerned pupils, students, teachers or researchers, that the use of this representation orreproduction goes not give rise to any commercial exploitation and that it is compen-sated via remuneration negotiated on a flat‑rate basis [...]Ó

In Article L.122-5, 3¡), a), the CPI also provides for an exception relating to analysesor short quotations justified by the pedagogical nature of the work in which they areincorporated. Provision is also made for the short quotation exception for the relatedrights to copyright in Article L. 211-3 of the CPI. As the short quotation exception isnot restricted to eductation or research, it shall only be addressed in this study where itmakes a specific contribution.

Several agreements concluded between the Ministry of National Education, Higher Ed-ucation and Research (hereinafter ÒMENESRÓ) and various collecting societies have justbeen added to the legal texts. The agreements in force relate to:

¥ Audiovisual and cinematographic works: an agreement was concluded betweenthe MENESR and the SociŽtŽ des Producteurs de CinŽma et de TŽlŽvision (Society ofCinema and Television Producers Ð PROCIREP) on 4 December 2009 (hereinafterreferred to as the PROCIREP agreement);

¥ Musical works, audio recordings of musical works, and music videos: an agree-ment was concluded between the MENESR and the SociŽtŽ des Auteurs, Composi-teurs et Editeurs de musique (Society of Authors, Composers and Publishers of Mu-sic Ð SACEM) on 4 December 2009 (hereinafter referred to as the SACEM agree-ment);

¥ Books, published musical works, periodicals and works of visual art: an agreementwas concluded between the MENESR and the Centre français dÕexploitation dudroit de copie (French Centre for Copyright Exploitation Ð CFC), the SociŽtŽ desŽditeurs et auteurs de musique (Society of Publishers and Authors of Music Ð SEAM)and the SociŽtŽ des arts visuels (Society of Visual Arts Ð AVA) on 6 November 2014(hereinafter referred to as the CFC agreement).

163

b)

c)

d)

e)

All of these agreements have the aim of more precisely defining the scope of thepedagogical exception. For some works, and under very specific circumstances, theseagreements broaden the scope of this exception.

Exceptions and limitations for the following activities can be gathered from the legaltext and the aforementioned agreements

This use falls within the scope of the exception provided that the representation or dis-playing complies with the conditions set out in the CPI and, as the case may be, theagreements concerned. By way of example, the representation of an entire piece ofmusic by students in class or the displaying of a work of visual art in its entirety areregarded as falling within the scope of the exception.


yes

Reproduction is covered by the pedagogical exception and the agreements on condi-tion that the conditions set out in the CPI and the agreements concerned are compliedwith, but distribution (to a class, for example) is expressly prohibited by the PROCIREPand SACEM agreements (Article 2.2 of the PROCIREP and SACEM agreements).

As regards books, periodicals, published musical works and works of visual art, thestatutory exception and the agreements do not apply insofar as the distribution involvesmaking photocopies.

The right to make photocopies falls within the scope of a different regime from that ofthe pedagogical exception. Each establishment enters into an agreement with the CFCand pays a certain amount, which depends on the number of students and the approx-imate number of copies made per year, in exchange for authorisation to photocopyprotected works.


no

Translation is not explicitly provided for, either in the legal text or in the agreements.


yes

This use is explicitly provided for in the legal text and in the agreements (Article 2.3.4of the PROCIREP and SACEM agreements)


yes

Reproduction falls within the scope of the statutory exception and the agreements, pro-vided that the conditions set out in the legal text and, as the case may be, the agree-ments are met. Distribution is expressly prohibited by the PROCIREP and SACEM agree-ments.

164

f)

6)6)

7)7)

As regards books, periodicals, published musical works and works of visual art, thestatutory exception and the agreements do not play a role insofar as the distributioninvolves making photocopies. This is because the right to make photocopies falls withinthe scope of a different regime. Each establishment enters into an agreement with theCFC and pays a certain amount, which depends on the number of students and theapproximate number of copies made per year, in exchange for authorisation to pho-tocopy protected works


no

The law does not confer the benefit of the pedagogical exception or short quotation onany other activities.

Moreover, Article L.122-5, 3¡, e) of the CPI expressly provides that leisure or recreation-al activities are excluded from the exception. Article L.211-3, 3¡) of the CPI regardingrelated rights provides for the same exclusion. The pedagogical exception is strictly re-stricted to reproductions or representations of works for educational or research pur-poses. By way of example, the representation of a theatre play does not fall within thescope of the exception given that it does not constitute a representation carried out forthe exclusive purpose of illustration in a pedagogical context. Consequently, authorisa-tion should be obtained from the copyright holder or the collecting society responsiblefor those rights, such as the SACD, for example.


The text is silent on this subject.

However, the agreements only apply to the following institutions: nursery and primaryschools, colleges and state schools and private schools under contract, apprentice trainingcentres, the Centre national dÕenseignement ˆ distance [National Centre of Distance Learn-ing], public institutions of higher education and science and technology institutions. Theseinstitutions have to rely on the MENESR. A detailed list of the institutions concerned is an-nexed to the agreements.

The agreements do not apply to other private institutions.


a. In relation to the number of copies tolerated

The text is silent on this subject.

However, the number of copies is restricted de facto because the works may only be usedfor the purposes of illustration and may not be distributed as photocopies unless they arereproduced in exam subjects.

165

For photocopies of works, which follow a different regime from that of the exception of ArticleL.122-5, 3¡), e) of the CPI, managed by the CFC, the number of copies is restricted to ap-proximately 150/200 pages per year and per student (source: CFC).

b. In relation to the size of the extracts that may be used

Article L.122-5, 3¡), e) of the CPI provides that the exception solely applies to extracts ofworks. Article L.211-3, 3¡) of the CPI regarding related rights provides for the same condi-tion.

¥ The PROCIREP SACEM agreements give the following definition for extracts:An extract is understood to mean a partial use of the work, which may not exceed one tenthof its total length. In the case of use of several extracts from one and the same work, the totallength of those extracts may not exceed 15% of the total length of the work.

However, the PROCIREP and SACEM agreements also provide that the following are autho-rised:

¥ The representation of entire works disseminated to pupils or students in class by anaudiovisual communication service that is free of charge, as well as temporary repro-ductions of such works solely for pedagogical purposes (Article 2.3.1 of the PROCIREPagreement);

¥ The representation, in class, to pupils or students of entire musical recordings, as well asthe representation in the class of musical works by the pupils or students. For this pur-pose, musical works and recordings may also be temporarily reproduced (Article 2.3.1of the SACEM agreement).

¥ The CFC agreement gives the following definition for an extract:An extract is a part of or excerpt from a work, which is of reasonable size and is not substi-tutable for the work in its entirety.

For works of visual art, the notion of extract is inapplicable. The uses provided for are re-stricted to 20 works for each piece of pedagogical or research work.

According to this agreement, extracts from works created for pedagogical purposes and mu-sic scores Ð both of which are excluded from the statutory exception Ð may be used within thefollowing limits:

¥ For works intended for pedagogical purposes, published in the form of a book, the ex-tract may not exceed 4 consecutive pages, within the limit of 10% of the total page countof the work, for each piece of pedagogical or research work;

¥ For works intended for pedagogical purposes, published in the form of a periodical, theextract may not exceed 2 articles from one and the same publication, within the limit of10% of the publication in its entirety, for each piece of pedagogical or research work;

¥ For music scores, the extract may not exceed 3 consecutive pages, within the limit of 10%of the work concerned, for each piece of pedagogical or research work.c. Persons concerned by the exception

According to Article L.122-5, 3¡) e) of the CPI, the exception concerns Òa public predomi-nantly composed of pupils, students, teachers or researchers directly concerned by the actof education, the act of training, or the research activity requiring this representation or re-productionÓ. Article L.211-3, 3¡) of the CPI regarding related rights contains the same provi-sion.

166

8)8)

9)9)

10)10)

Whereas the PROCIREP agreement only makes provision for representations carried out bya teacher (which seems logical as far as cinematographic and audiovisual works are con-cerned), the SACEM agreement, on the other hand, provides that musical works may berepresented by the pupils or students as well as by the teacher (Article 2.3.1 of the SACEMagreement).

As for the CFC agreement, it gives a definition of the Òauthorised userÓ concerned by theexception, being Òpedagogical staff, students, researchers and any person contributing toan educational, training or research activity within the institutionsÓ.


1. Type of work covered by the exception

The text expressly excludes from the scope of the exception works intended for pedagogicalpurposes and music scores. However, the CFC agreement incorporates these works in theexception (see question 7.b.).

1. Conditions of acquisition of the work

All of the agreements specify that the works used must have been acquiredcontractually.



The exception relating to the conservation and preservation of works and the restriction ofthe authorÕs monopoly in relation to library lending as an exception for educational purposesare statutorily provided for.

Owing to the principle of strict interpretation of exceptions that exists in French law, thecase‑law has not extended these exceptions.


1. Exception of conservation/consultation and statutory licence for library lending

As regards the exception of conservation and consultation, Article L.122-5 provides that: Òtheexceptions listed in the present article may not conflict with a normal exploitation of the workor unreasonably prejudice the legitimate interests of the authorÓ.

167

11)11)

The three‑step test is therefore applicable to all the exceptions under Article L. 122-5, includ-ing the exception of conservation and consultation. It is thus the responsibility of the courts toassess whether the exception applied satisfies the three‑step test.

With regard to library lending, French law does not expressly provide that this limitation ofthe authorÕs monopoly is subject to the three-step test.

However, Article 9.2 of the Berne Convention, which is directly applicable in national law,provides that ÒIt shall be a matter for legislation in the countries of the Union to permit thereproduction of such works in certain special cases, provided that such reproduction doesnot conflict with a normal exploitation of the work and does not unreasonably prejudice thelegitimate interests of the authorÓ.

In particular, Article 13 Òlimitations and exceptionsÓ of the ADPIC agreements, which are alsoapplicable in national law, provide, in a general manner, that ÒThe Members shall restrictthe limitations to exclusive rights or exceptions to those rights in certain special cases, whichdo not conflict with a normal exploitation of the work and do not unreasonably prejudice thelegitimate interests of the right holderÓ.

Thus, any limitation of the authorÕs monopoly must be subjected to the three‑step test. This istherefore the case for the statutory licence for library lending, as it constitutes a limitation ofthe exclusive right of the author.

1. Exception for the purposes of education

The quotation right and the pedagogical exception enforce fundamental, economic, socialand cultural rights, which include the right to information, the right to culture, the right todisseminate knowledge, the right to education and freedom of expression (Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisationof certain aspects of copyright and related rights, recital 14).The negotiated remuneration provided for in respect of the pedagogical exception aims tocompensate conflict with a normal exploitation of the work. This compensation is not provid-ed for in respect of the short quotation exception, for which no remuneration whatsoever isprovided for as consideration.

In the context of the short quotation exception, the French Supreme Court (Court of Cassa-tion) excluded conflict with a normal exploitation of the work (photographs) on the groundthat Òthis reproduction, over two years after the disclosure of the report in the magazineNEWLOOK, does not conflict with a normal exploitation of the photographÓ (Court of Cas-sation, Civil Chamber 1, 22 January 2009, No 07-21063).



The exceptions are acquired automatically and no prior conditions are imposed on librariesor archives.


168

12)12)

Under French law, both under copyright law and with regard to the rights related to copy-right, the beneficiaries of the pedagogical and short quotation exception may use the works,under the conditions provided for by the law and the sectoral agreements, without the needfor a procedure or prior request.



For the exception of conservation and preservation of works that appear in the catalogue ofa library or an archive service, no remuneration or compensation is legally provided for bythe French legislature.

As regards the exception of lending to the public in libraries, Articles L. 133-1 et seq. providefor remuneration to the benefit of the author and publisher. This remuneration is collectedand apportioned by a collecting society (Article L.133-2 of the CPI). In practice, it is the So-ciŽtŽ Française des IntŽrêts de Auteurs de lÕEcrit (French Society for the Interests of Authors ofthe Written Word Ð SOFIA) that plays this role.

Collection

The remuneration amount is not imposed on the user of the library.

This remuneration, which is fixed by ordinance, is partly paid by the State (1) and partly bythe booksellers (2).

1. The amount paid by the State consists of a flat-rate annual contribution per user regis-tered with the libraries.

Art. R 133-2 paragraph 1 of the CPI provides that:

ÒThe amount of the first part of the remuneration provided for in the second paragraph ofArticle L. 133-3 is calculated on the basis of a flat‑rate contribution per user registered withlibraries open to the public for lending, such as referred to in Article R. 133-1Ó.

This contribution is fixed:

¥ at 1 euro per user and per year for Òlibraries of public institutions of a scientific, culturaland professional nature and other public institutions of higher education operating underthe Minister for Higher EducationArticle R 133-2 paragraph 2 of the CPI);

¥ at 1.5 euros for other libraries (Article R 133-2 paragrpah 2 of the CPI: ÒIt is fixed at 1.5euros per user registered with other libraries open to the public for lending and is paidby the Ministry of CultureÓ).

The contribution of the State amounts to approximately 11 million euros per year.

The ordinance also determines the method for calculating the number of users registeredwith libraries: this number is determined by means of statistics.

Article R 133-2 paragraph 4 of the CPI provides that:

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ÒThe number of users registered is specified each year by order under the following condi-tions:1¡ The number of users registered with public libraries is calculated each year on the basisof the statistical data supplied by the communes and dŽpartements (...);

2¡ The number of users registered with libraries of public institutions of a scientific, culturaland professional nature and other public institutions of higher education operating underthe Minister for Higher Education is calculated each year on the basis of the statistical datadrawn up by the Minister for Higher Education;3¡ In order to take account of users registered in other libraries open to the public for lending,the number of users registered with public libraries is increased by a rate expressed as apercentage. This rate is fixed at 4% and may be revised every three years on the basis ofquantitative estimates in relation to the development of the activity of these librariesÓ.

1. The other part of the remuneration amount is paid by the booksellers, which must deduct6% of the retail price of each book.Article L.133-3 paragraph 2 of the CPI provides that:

ÒThe second part is based on the pre-tax public retail price of the books purchasedÓ by thelibraries; Òit is paid by the suppliers that carry out these sales. The rate of this remunerationis 6% of the public retail priceÓ.

Failure to pay this remuneration is punishable by a fine of 300,000 euros (Article L.335-4 ofthe CPI).

The apportionment

The collecting society (the SOFIA) distributes the collected sums that are to be apportioned.This apportionment is divided into two parts:

1. A first part, which may not be less than 50% of the sums to be apportioned, is appor-tioned as follows:

The sum is firstly apportioned per publication. Each publication is attributed a sum depend-ing on the number of copies bought by libraries. In order to do this, the collecting societyuses the information provided by the libraries and booksellers.

After this, the sum allocated to each publication is distributed equally between the authorsand publishers of the publication.

Article L.133-4, 1¡ of the CPI provides that:

ÒThe remuneration for library lending is apportioned under the following conditions:1¡ A first part shall be distributed equally between the authors and their publishers on thebasis of the number of copies of books purchased each year, [...] [by libraries], determinedon the basis of the information communicated by those persons and their suppliersÓ to thecollecting society.

1. A second part, which may not exceed 50% of the collected sums to be apportioned, Ò[...]is allocated to cover a proportion of the contributions due under the pension plan [...]Ófrom the authors (Article L. 133-4, 2¡ of the CPI).

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French law does provide for remuneration for the pedagogical exception but not for remu-neration for the short quotation exception.

The remuneration for the pedagogical exception is negotiated.

Article L.122-5, 3¡), e) of the CPI on copyright provides that use is Òcompensated by remu-neration on a flat-rate basis without prejudice to the assignment of the right of reproductionby means of reprography, as referred to in Article L. 122-10Ó. For the related rights to copy-right, Article L.211-3 of the CPI specifies that the use concerned must: Òbe compensated byremuneration negotiated on a flat‑rate basisÓ.

Collection

The remuneration is collected by collecting societies and paid by the State, namely by theministries concerned (Ministry of Higher Education and National Education). The Court ofJustice specified that the right to compensation in the context of exceptions must be guaran-teed by the State, which ensures a certain result with regard to the collection of the compen-sation by the authors (ECJ, 16 June 2011; Stichting de Thuiskopie v Opus Supplies, CaseC‑462/09, paras 39-41).

The amount and the arrangements for the remuneration collected are provided, dependingon the works concerned and the uses applied, by three sectoral agreements concluded be-tween the Ministry of National Education, Higher Education and Research and the collectingsocieties.

¥ Cinematographic and audiovisual works (PROCIREP agreement)Remuneration in an amount of 150,000 euros is paid by the MENESR and collected by thePROCIREP.

¥ Audio recordings of musical works, uses of music videos and the live interpretation ofmusical works (SACEM agreement)

Remuneration in an amount of 150,000 euros is paid by the MENESR and collected by theSACEM.

¥ Books, published musical works, periodicals and works of visual art (CFC agreement)Remuneration in an amount of 1,700,000 euros in total is paid by the MENESR and collectedby the CFC (1,437,000 euros) and the AVA (263,000 euros).

All of these sums are indexed on the basis of a salary variation index in the arts sector forthe year n-1.

Apportionment

The three sectoral agreements specify that it is incumbent on the collecting societies to dis-tribute the sums among their clients (authors, artists and producers).

The apportionment is carried out proportionally to the duties already collected in accordancewith similar modes of operation and is fixed in the statutes or rules of the collecting societiesor by means of a contract that is renegotiated annually. Therefore, the management of theapportionment of the sums collected for the pedagogical exception has not been the subjectof specific negotiations.

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13)13)

By way of example, the CFC agreement specifies in Article 5 that Òthe ministry undertakes toask the institutions to declare the uses of works or extracts of works referred to in the pro-tocolÓ. In practice, however, the CFC carries out the apportionment of the royalties on thebasis of the declarations made by the institutions solely in respect of paper copies. In orderto reduce the management costs associated with the apportionment, the CFC pays the pub-lishers and authors back the royalties paid by the Ministries for these uses accumulated overseveral years, after deducting the sums that go to the other collecting societies and fees.

To give another example, the SACEM uses its standard apportionment rules because the ap-portionment of the sums collected is carried out after deduction of management fees andfunds committed to social and cultural action. It is carried out in two stages: the sums areallocated, for each work in accordance with the distribution (using the following distributionkey: equally between the author of the words, the composer and the publisher) or the repro-duction (using the distribution key defined by the contract between the rights holders) carriedout in respect of the work, then between the various rights holders.



Under French law, two devices that are distinct and may be cumulative are applicable, beingorphan works (1) on the one hand, and unavailable books (2) on the other.

1. Orphan works

Law No 2015-195 of 20 February 2015 on various provisions for adapting to the law of theEuropean Union in the areas of literary and artistic property and cultural heritage transposedinto French law Directive 2012/28 of 25 October 2012 on certain permitted uses of orphanworks.

The aim of this law is to permit the exploitation of orphan works under certain conditions.

Article L.113-10 of the CPI defines orphan works as: ÒAn orphan work is a protected anddisseminated work whose rights holder cannot be identified or located despite diligent andserious searches having been carried out and recorded.Ó

Libraries open to the public and archive services may exploit the following orphan works:¥ < >< >Libraries and archive services are authorised to exploit orphan works under the

following conditions:

◦ < >the reproduction of an orphan work for the purposes of digitisation, making avail-able, indexing, cataloguing, preservation and restorationÓ(Article L. 135-2 of the CPI).

It is specified, however, that libraries and archive services may only exploit orphan worksÒin the context of their cultural, educational and research missionsÓ and on the conditionthat no profit‑making aim is pursued and that, where applicable and for a period thatmay not exceed seven years, only the revenue covering the fees directly resulting fromthe digitisation and making available to the public of orphan works are collected (ArticleL. 135-2 of the CPI).

172

Moreover, before any exploitation, the library or the archive service must have carriedout and recorded diligent and serious searches for the right holders (consultation of theappropriate sources for each category of work).

The results of this search must be communicated to the Ministry of Culture, which, in turn,sends them to OHIM (Office for Harmonization in the Internal Market) (Article L. 135-3of the CPI).

Finally, if a right holder does appear, the exploitation by the library or archive servicemust cease and equitable compensation must be paid to the rights holder in order tocompensate the harm it suffered as a result of the exploitation of his work (Article L.135-6 of the CPI).

1. Unavailable books

Furthermore, French law established arrangements for exploiting unavailable books,which could be applicable to library lending.

An unavailable book is defined in Article L.134-1 of the CPI: An unavailable book is un-derstood within the meaning of the present chapter to be a book published in Franceprior to 1 January 2001, which is no longer the subject of commercial distribution by apublisher and not currently the subject of publication in printed or digital form.Ó

The Bibliothèque Nationale de France [French National Library] maintains a database inwhich unavailable books are entered (Article L. 134-2 of the CPI).

If a book has been entered in the database for over six months, and if there is no op-position from the author and the publisher, a copyright collecting society (in practice, theSOFIA), proposes that the unavailable book be authorised for reproduction and repre-sentation in digital form (Articles L. 134-3 and L. 134-5 paragraph 1 of the CPI).

This authorisation is granted "in exchange for remuneration on a non‑exclusive basis andfor a renewable period restricted to 5 years" (Article L. 134-3, I of the CPI).

This proposal is firstly made to the initial publisher of the book (Articles L. 134-5 para-graphs 2 to 4 of the CPI).

In the event that the initial publisher does not accept the proposal, the collecting societymay authorise third parties to reproduce and represent the book in digital form (ArticleL. 134-5, paragraph 5 of the CPI). This third-party "user [É] is regarded as the publisherof the digital bookÓ (Article L. 134-5, paragraph 6 of the CPI).

The question arises as to whether a library or archive service can obtain authorisation toexploit an unavailable book in digital format.

It is true that the law on unavailable books only refers to authorisation to reproduce andrepresent the book.

However, French law takes an overarching approach to the right of reproduction andrepresentation, such that all the property-related prerogatives that are given to authorsnecessarily fall under one or the other (A. and H.J. Lucas and A. Lucas-Schloetter, TraitŽde la propriŽtŽ littŽraire et artistique, Lexis-Nexis, 4th edition, 2012, No 254).

Thus, the lending right necessarily falls under the right of reproduction and/or represen-tation (ibid, No 281). It can therefore be concluded that the provisions regarding thedigital exploitation of unavailable books are applicable to the lending right.

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The collecting societies must provide for apportionment scales between the right holders,following the principles below:

◦ < >the amount of the sums collected by the author(s) of the book may not be lower thanthe amount of the sums collected by the publisher (Article L. 134-3, II, 5¡ of the CPI).

Finally, the sums collected that could not be apportioned because their recipients couldnot be identified or located shall be allocated to subisidies for creation or else for train-ing or for promoting public reading (Article L. 134-9 of the CPI).


The pedagogical exception can be put in the same category as regards the situation fororphan works.

Educational establishments may exploit the following orphan works:◦ < >

Òaudiovisual works and phonograms contained in these collections or which havebeen produced by public-service broadcasting organisations prior to 1 January 2003and contained in their archivesÓ (Article L. 135-1 of the CPI).

Educational establishments are authorised to exploit orphan works under the follow-ing conditions:

◦ < >the reproduction of an orphan work for the purposes of digitisation, making avail-able, indexing, cataloguing, preservation and restorationÓ(Article L. 135-2 of the CPI).

It is specified, however, that educational establishments may only exploit orphan worksÒin the context of their cultural, educational and research missionsÓ and on the conditionthat no profit‑making aim is pursued and that, where applicable and for a period thatmay not exceed seven years, only the revenue covering the fees directly resulting fromthe digitisation and making available to the public of orphan works are collected (ArticleL. 135-2 of the CPI).

Moreover, before any exploitation, the educational establishment must have carried outand recorded diligent and serious searches for the right holders (consultation of the ap-propriate sources for each category of work).

The results of this search must be communicated to the Ministry of Culture, which, in turn,sends them to OHIM (Office for Harmonization in the Internal Market) (Article L. 135-3of the CPI).

Finally, if a right holder does appear, the exploitation by the educational establishmentmust cease and equitable compensation must be paid to the rights holder in order tocompensate the harm it suffered as a result of the exploitation of his work (Article L.135-6 of the CPI).

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14)14)

15)15)



According to the principle of freedom of contract, the parties are free to adjust or even dis-able the scope of the statutory exceptions, especially given that the French view on copyrightis centred around protecting the author.

However, no judicial decision has confirmed this either in relation to the exceptions of con-servation and preservation for the benefit of libraries and archives or with regard to the lim-itation of the authorÕs monopoly in respect of lending.


The law does not explicitly forbid the pedagogical exception or the quotation exception fromforming the subject of contractual clauses to the contrary.

Nonetheless, a rule may be a rule of public policy, even if this nature is not mentioned ex-plicitly. According to a principle of interpretation provided for under French law, it is thusnecessary to consider the interest which the provision aims to protect; depending on whetherthis interest is private or public, the provision will be mandatory or suppletive.

It is therefore necessary to consider the purpose of each exception in order to determinewhether the ratio legis was the protection of a particular or higher interest and not to lookinto the wishes of the beneficiary of the exception on the basis of freedom of contract.

As regards the pedagogical exception, the purpose(s) of this exception is, in particular, accessto education or the right to information, while simultaneously taking account of the interestsof the author, as remuneration is provided for as consideration for the use. The purpose ofthe quotation exception is, in particular, the protection of freedom of expression for the quo-tation exception.

According to the interpretation of the scope of the pedagogical exception and short quotationexception, the beneficiaries of these two exceptions cannot find themselves forced to pay anyremuneration other than that established by the law and negotiated by the sectoral agree-ments in the context of the use of the works concerned by the exception. Following this inter-pretation, any implementation of the pedagogical exception (particularly the negotiation ofremuneration) may only seek to extend the rights of the beneficiaries.


yes


Aside from the cases provided for by law, the authorÕs monopoly is a total monopoly; a li-censee may not excercise the right of the author without his authorisation, which precludesany private initiatives.

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Currently, the professionals of the sector (publishers, booksellers, libraries, platforms) haveinitiated a negotiation process in order to allow public libraries to provide users with lendingservices for digital books.The aim of the public authorities is to encourage the development of experiments in this area.

One of the projects, supported by the Ministry of Culture and the Syndicat National delÕEdition, is entitled ÒPrêt NumŽrique en BibliothèqueÓ [Digital Library Lending] (PNB).

This project is not embedded in the statutory licence regarding library lending, as the partiesbelieve that the current legislation regarding library lending (French law and the Communitydirective) do not apply to the digital book, meaning that this exploitation falls within the au-thorÕs monopoly (on this debate, see question 3, 2¡).

This project is based on the following principles:¥ The publishers present booksellers with digital book offerings;¥ The booksellers present the publishersÕ offerings to the libraries and send the librariesÕ

orders to the distribution platforms;¥ Depending on the offering proposed by the publisher, the user may:

◦ Consult the digital catalogue of the library;◦ Download the book;◦ Read the book via streaming.

¥ The publishersÕ offerings are based on flexible criteria:¥ The duration for which the book is made available;¥ The number of authorised loans;¥ The number of concurrent users;¥ The maximum duration of the loan;¥ Access in situ or ex situ;¥ The number of terminals;¥ The return expected by the user,

¥ Exception for the purposes of educationÒPedagogical resource platformsÓ and Òpedagogical blog platformsÓ have been created inFrance, including:

¥ the project referred to as Òproject SŽsamathÓ (http://www.sesamath.net/) aims to pro-mote the exchange of academic textbooks and exercise books, free of charge, availableonline in digital format. These works come from exchanges between professionals whohave complied with the charter of the project and they are offered to the public under adual licence (GNU Free Documentation License and Creative Commons PaternitŽ). Thepublic can download and print them and make changes to the sources. For the use ofother versions (paper edition, specimen copies, DVD edition or on iPad/Android) of thetextbooks and exercise books, the public is redirected to the projectÕs partner publishers(pedagogical resource platforms);

¥ thanks to the free software wordpress MU, the AcadŽmie of Poitiers created personalspaces (http://www.cndp.fr/ecolenumerique/tous-les-numeros/boite-a-outices/les-blogs/article/article/plateformes-de-blogs.html) where academic staff and students canpublish content (pedagogical blog platforms).

176

II.)II.)

16)16)

17)17)

18)18)

19)19)

20)20)

21)21)

III.)III.)

22)22)



yes

The French Group is satisfied with the abovementioned exceptions to the copyright monop-oly, which constitute a good balance between the interests of the authors and access toknowledge by the public and the requirements of heritage conservation.


yes

The French Group is satisfied with the abovementioned exceptions to the copyright monop-oly, which constitute a good balance between the interests of the authors and access toknowledge by the public and the requirements of research


yes

The French Group believes that the Three-Step Test such as is implemented in France is anappropriate test for determining the legitimacy of an encroachment on the authorÕs monop-oly. This test makes it possible to guide the courts in their interpretation of the scope of thelimitations and exceptions.


The French Group believes that the public interest must prevail over freedom of contract...except where the author waives, by contract, the remuneration provided for in respect ofthese limitations and exceptions


The French Group believes that the remuneration system that is in place for these exceptionsand limitations is sufficient.


The French Group recommends that the library lending exception as defined for books inArticle L.133-3 CPI be extended to digital books, i.e. with financial compensation for the au-thors.



no

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23)23)

24)24)

a)

b)

c)

25)25)

a)

b)

It seems unrealistic to advocate harmonisation in this matter while there are differences inthe policies and priorities for education and research between countries.

The policies and priorities for education and research of each country must prevail and en-able each country to develop its exceptions and limitations in line with public interest.



no

The French Group believes that harmonisation provided for in a treaty or an internationalconvention would be inappropriate.



As the policies and priorities for education and research vary greatly from one countryto the next, it is not possible to impose one model for exceptions and limitations overanother. Each country must be able to adapt its exceptions and limitations to the au-thorÕs monopoly in accordance with its requirements in relation to access to knowledge.







As the policies and priorities for education and research vary from one country to thenext, it is not possible to impose one model for exceptions and limitations over anoth-er. Each country must be able to adapt its exceptions and limitations to the authorÕsmonopoly in accordance with its requirements in relation to access to knowledge


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c)

26)26)

27)27)

28)28)

29)29)

30)30)






The implementation of these exceptions and limits should be automatic, as recourse to thecourts and the three-step test occur ex post


The criteria implemented in France nowadays are satisfactory: as restrictions to the authorÕsmonopoly are justified, in particular, by access to knowledge, it does not seem unjust to usethe statutory licence and to finance it via the public to the benefit of collecting societies


The criteria implemented in France nowadays are satisfactory.


These exceptions and limitations must remain within the public interest; it must not be possi-ble to override them by contract.


The French Group takes the view that the efforts of private organisations (authorised to useworks) should not narrow the scope of the statutory exception. On the other hand, there isno reason why the efforts of private organisations should not be able to expand their scope(adapt the notion of extracts, persons concerned, etc.)

SummarySummary

1. French law provides for exceptions and limitations to copyright protection for libraries,archives and educational and research institutions for the purpose of conservation orconsultation, for library lending, and for education and research institutions, that are

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subject to the three step test, automatic, without compensation (conservation, consulta-tion) or with compensation (library lending, education and research).The sources of theseexceptions and limitations are statutory. In addition, some collective agreements are be-ing negotiated and/or tested to expand the scope of the exceptions, for example to coverdigital books and educational online platforms.

1. The French Group is satisfied with the abovementioned exceptions to the copyright mo-nopoly, which constitute a good balance between the interests of the authors and ac-cess to knowledge by the people public and the requirements of research.The FrenchGroup further believes that the public interest must prevail over freedom of contract ex-cept where the author waives, by contract, the remuneration provided for in respect ofthese limitations and exceptions.It thus recommends that the library lending exception asdefined for books in Article L.133-3 CPI be extended to digital books, i.e. with financialconsideration compensation for the authors.

1. The French Group believes that as the policies and priorities for education and researchvary greatly from one country to the next, it is not possible to impose one model for ex-ceptions and limitations over another. Each country must be able to adapt its exceptionsand limitations to the authorÕs monopoly in accordance with its requirements in rela-tion to access to knowledge.It therefore considers that harmonisation provided for in atreaty or an international convention would be inappropriate.The criteria implemented inFrance nowadays are satisfactory: as restrictions to the authorÕs monopoly are justified,in particular, by access to knowledge, it does not seem unjust to use the statutory licenceand to finance it via the public to the benefit of collecting societies.The French Grouptakes the view that the efforts of private organisations (authorised to use works) shouldnot narrow the scope of the statutory exception. On the other hand, there is no reasonwhy the efforts of private organisations should not be able to expand their scope (adaptthe notion of extracts, persons concerned, etc.).


TableTable summarisingsummarising thethe exceptionsexceptions forfor thethe benefitbenefit ofof archives,archives, librarieslibraries andand educationaleducationaland research institutionsand research institutions

EXCEPTION OFEXCEPTION OFPRESERVATION ANDPRESERVATION ANDCONSULTATIONCONSULTATION

LIBRARY LEND-LIBRARY LEND-INGING

EXCEPTION OF EDUCATIONEXCEPTION OF EDUCATIONAND RESEARCHAND RESEARCH

BasisBasisArticle L.122-5 8¡ ofthe CPI

Article L.133-1 ofthe CPI

- Article L. 122-5, 3¡), e) of theCPI.

- Sectoral agreements concludedbetween the Ministry of NationalEducation and the Collecting So-cieties.

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Beneficiary/benefi-Beneficiary/benefi-ciariesciaries

- Libraries open to thepublic- Museums- Archive services

- Library open tothe public: restric-tive list set out un-der Article R.133-1of the CPI

- No details contained in the law.- Restrictive list of establishmentsin each sectoral agreement.

ConditionsNo economic or com-mercial advantage issought

No direct or indi-rect economic orcommercial ad-vantage is sought-according to theDirective of 2006,but not expresslytransposed into theCPI-

Conditions provided for by thelaw:- Extract of a work;- Solely for the purposes of illus-tration in the context of educationand research;- Public predominantly composedof pupils, students, teachers orresearchers directly concerned bythe act of teaching, the act oftraining or the research activity;- No publication or distribution toa party outside the public as de-fined above;- Use does not give rise to anycommercial exploitation;- Flat-rate remuneration;- Respect of moral rights.

These conditions are adapted ineach sectoral agreement depend-ing on the type of work con-cerned.

WorksWorks All intellectual works

Solely books thatwere the subject ofa publishing con-tract

All intellectual works with the ex-ception of works intended forpedagogical purposes and musicscores.

Digital books YES

Debated in the lit-eratureNo judicial deci-sion, however

YES

Audiovisual YES NOYES

Multimedia YES NOYES

Orphan worksOrphan worksYESArticle L.135-2 of theCPI

YESArticle L.135-2 ofthe CPI

YESArticle L.135-2 of the CPI

Unavailable booksUnavailable books YES YESYES

Rights concernedRights concerned

Right of representa-tion and right of re-production for thepurpose of conserva-tion or consultation bythe public

Lending rightRight of representation and rightof reproduction.

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RemunerationRemuneration NO

YESRemunerationfixed by decree,paid by the Stateand by the book-sellers (ArticleL.133-3)

YESRemuneration negotiated on aflat-rate basis.

Three-step testThree-step test YES YESYES

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I.)I.)

1)1)

a)

b)

c)

GermanyGermany


in the name of the Germany Groupby Benjamin LUECK, Heiko ULLRICH, Dr. Sabine KOSSAK and Prof. Dr. Jan Bernd NORDE-

MANN


QuestionsQuestions




yes


yes

Libraries are permitted to reproduce damaged parts of works if this is necessary to re-pair the copy already owned by the library. E.g. if a book or magazine is missing pagesbecause they were torn out or damaged, the library is allowed to copy these pages torepair the book/magazine (¤ 53 (2) sentence 1 no. 4 lit. a) and ¤ 53 (6) sentence 2GCA [German Copyright Act, Urheberrechtsgesetz]). Another exception for the case ofpreservation or replacement relates to orphan works (see question I. 13))It is important to mention that an archive encompasses any collection of works, i.e.not only books or printed works, but also films or phonograms may be reproduced forarchiving purposes under this provision. However, it is not permissible to reproduce awork under this exception if the piece of work to be copied has been borrowed, as onlythe reproduction of own copies is permitted. For the same reason the display and com-munication of those copies to third parties is not allowed. With regard to digital copiesthey may only be produced by libraries or archives, which are acting in the public in-terest and do not pursue any direct or indirect commercial or economical gain (e.g.public libraries). For all other libraries the exception is restricted to analogous copiesand analogous use. This exception does further not allow to reproduce the stock ofdigital databases.


no

There is no such exception in German copyright law. If libraries want to lend a workto another library they have to give away their own hardcopy of the work and are notallowed to reproduce another copy for this purpose.


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d)

2)2)

yes

According to ¤ 53a GCA, libraries are permitted to send small scanned parts of worksto a user who requested them. However, this is only permitted, if the user himself isallowed to reproduce the work in the library according to the private copy exception.This provision is not a transformation of a European Directive but a reaction to Germancase law (Federal Court GRUR 1999, 707 - Kopienversand). The exception allows thereproduction provided that the person ordering himself would have been entitled toreproduce the articles or works for private or other personal use (e.g. because of theexception in ¤ 53 GCA). This includes digitization and electronic delivery Ð but only asa graphic file Ð for the illustration of teaching or for scientific and non-commercial pur-poses. It is remarkable that the exception allows the library to reproduce works, while itdepends on the research or study purposes of the user requesting the copy. Again thisexception is dependent on the non-existence of a respective offer from the publisher.If the work by contrast is made available to the public in an accessible manner and atreasonable contractual conditions by the publisher, reproduction and making availableis not permitted. Most interestingly, the market behavior and the scope of the exceptionin this case are directly interconnected. Therefore the decisive question is, whether anoffer is reasonable. This for instance is not the case, if the user only has the option toachieve the desired part or work in connection with a subscription or a package withother works.


yes

¤ 58 (2) GCA, which relies on Art. 5 (2) lit. c) Copyright Directive 2001/29/EC, allowsreproducing and distributing artistic works and photographic works which are exhibitedin public or intended for public exhibition or public sale by public libraries, education-al institutions or museums in connection with an exhibition with respect to content andtime, or to take inventory, and with which no independent gainful purpose is served.The exclusion of archives from the scope of the exception is being criticized, especial-ly in regard to the broader scope of Art. 5 (2) lit. c) Copyright Directive 2001/29/EC

(Schricker/Loewenheim/Vogel, 4th ed., 2010, ¤ 58 margin no. 23).


¤ 53 (2) sentence 1 no. 2 GCA privileges private individuals, legal persons and corporationsand thus, in particular, libraries, whereas under ¤ 53 (1) GCA only natural persons may relyon this exception.¤ 52b GCA directly addresses publicly accessible libraries, museums or archives. Further, asmentioned above, this exception only applies to institutions which do not pursue any director indirect commercial or economical gain.¤ 53a GCA only privileges publicly accessible libraries.

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3)3)

4)4)


Under ¤ 53 (2) sentence 1 no. 2 GCA, it is only allowed to reproduce the work for internalpurposes to secure the stock of the institution. Display and communication of those copies isnot allowed. The making of digital copies is further only allowed if the institution relying onthe privilege does not pursue any direct or indirect commercial or economical gain and isacting in the public interest. Otherwise only analogous copies are allowed.As a general rule, the institution relying on ¤ 52b GCA is only allowed to offer the samenumber of copies on a reading station which it owns as a hardcopy. However, in case ofa load peak it is allowed to offer more, but no more than four copies per solid copy. Thereading stations have to be set up in the institution itself. Further this exception is restricted tomaking available works for research or private study purposes of the user.The same applies with regard to the exception of ¤ 53a GCA. The person ordering only canrequest a copy, if he himself would be permitted to reproduce it under ¤ 53 GCA (e.g. pri-vate use, studies). Only separate articles or small parts of works are allowed to be sent to theperson ordering. A part of a work qualifies as ÒsmallÓ, if it covers less than 12% of the pagesand at most 100 pages are reproduced (Federal Court GRUR 2014, 549 - Meilensteine derPsychologie).


Concerning ¤ 53 (2) sentence 1 no. 2 GCA and ¤ 52b GCA, only the reproduction or themaking available of a work owned by the very person reproducing or making it available ispermitted.Only published works, which are owned by the institution can be made available on electron-ic reading stations in the institution itself under ¤ 52b GCA. This exception was introducedin 2008. According to this rule, it is permissible to make available published works from thestock of publicly accessible libraries, museums or archives if three requirements are met: firstit must be on the institution's own premises, second it must be accessible only from speciallyequipped reading stations for research or private study purposes, and third it may not con-travene any contractual stipulations. Again, this exception does only apply to institutions thatdo not pursue any direct or indirect commercial or economical gain. The works made avail-able must belong to the library and, as a general rule, the number of digital copies at thestations must not exceed the number of copies owned by the library. However, in order tocope with load peaks, it is permissible to make each owned copy available at four readingstations (Bundestag document, BT-DS 16/5939, p. 44).It is worth mentioning that the provision only allows the making available of the works assuch and does not cover the right of reproduction by the reader. It comes as no surprisethat until 2014 it was unclear, whether the reader was allowed to reproduce the copy madeavailable (e.g. print or save it to an USB-stick). In 2014, the Court of Justice of the EuropeanUnion (CJEU) stated that reproduction is not allowed under the exception of Art. 5 (3) lit. n)Copyright Directive 2001/29/EC (which was introduced to German law in the form of ¤ 52bGCA). However, the court at the same time clarified that the reader may be permitted toreproduce the work based on another exception, if his use meets the respective necessaryrequirements (CJEU Case C-117/13 - Eugen Ulmer; basically of provision ¤ 53 GCA). In thecourse of these preliminary proceedings the CJEU in addition shed light on a further highlydisputed issue, whether the privilege is only excluded by an offer or only in case that a licens-ing agreement actually has been concluded. A mere offer does not suffice.

185

5)5)

a)

b)

The reproduced articles and works have to have been published beforehand. Unlike in ¤ 53and ¤ 52b GCA, it is allowed to use a work not owned by the library to make the copy asprovided by ¤ 53a GCA.


yes


yes

The German law indeed provides for an exception for the performance and display ofa copyrighted work. ¤ 52 GCA, which mainly goes back to Art. 3, 5 (3) lit. g) and lit. o)Copyright Directive 2001/29/EC, has a general scope of application that is not limitedto educational purposes. It refers to the authorÕs right of communication to the publicas the exclusive right to communicate his work to the public in non-material form (¤ 15(2) GCA). Yet, ¤ 52 (3) GCA limits the scope of the exception and weakens its practical

impact (Fromm/Nordemann/Dustmann, Urheberrecht, 11th ed., 2014, ¤ 52 marginno. 3) by excluding from its scope public stage performances, making available to thepublic and broadcasting of a work, as well as public screenings of a cinematographicwork. ¤ 52a (1) GCA provides for an exception to the right of making the work avail-able to the public (see below I. 5) lit. d) ).The scope of the exclusive right to communicate the work to the public decisively de-pends on the understanding of the term ÒpublicÓ. If the performance or display of thework does not take place in the public, the use is not within the scope of copyright. ¤ 15(3) GCA defines communication to the public as a communication intended for a plu-rality of members of the public, which consists of persons who are not connected by apersonal relationship. The quantitative criteria ÒpluralityÓ depends on the concrete sit-uation but might already be fulfilled by two persons (Federal Court GRUR 1996, 875,876 Ð Zweibettzimmer im Krankenhaus). The more important criterion is the ÒpersonalrelationshipÓ. Within regular school classes most of the time there will be a relation-ship between teacher and students personal enough that the use cannot be classified

as public (Dreier/Schulze/Schulze, Urheberrecht, 4th ed., 2013, ¤ 52 margin no. 45;Schricker/Loewenheim/v. Ungern-Sternberg, op. cit., ¤ 15 margin no. 85 with furtherreferences). Since university courses are attended by a greater number of (changing)students, within such courses the relationships are generally not personal enough; theuse cannot be classified as non-public (Koblenz Higher Regional Court NJW-RR 1987,699, 700). Therefore a school teacher may sing a song, play music or read literatureto his/her students in the class without even touching the scope of copyright where-as a university professor would at least need an exception allowing him/her to doso (Koblenz Higher Regional Court NJW-RR 1987, 699, 701). The exception in ¤ 52GCA is therefore relevant for any special event within the school, i.e. presentations bythe students or the performance of a school play with audience from inside and out-side of the school, and generally for teaching at universities (Schricker/Loewenheim/v.Ungern-Sternberg, op. cit., ¤ 15 margin no. 83 with further references; critically Re-hbinder/Peukert, Urheberrecht, 17th ed., 2015, margin no 655).


yes

186

c)

d)

¤ 46 (1) GCA (which implements Art. 5 (3) lit. a) Copyright Directive 2001/29/EC) pro-vides for an exception to the right of reproduction, distribution and making works avail-able to the public and allows under certain conditions the incorporation of limited partsof works and specific works in a collection intended exclusively for instructional use,like course packs, compilations or anthologies.¤ 53 (3) GCA distinguishes between making (or having made) copies for the purposeof illustration for teaching in schools etc., and making copies for state examinations,and examinations in schools, higher education institutions etc.¤ 47 GCA (which implements Art. 5 (3) lit. a) Copyright Directive 2001/29/EC) allowsreproducing works within so-called school broadcast by transferring such works tovideo or audio recording mediums, which may only be used for teaching purposes.


yes

There does not exist an exception that refers explicitly to making translations for educa-tional purposes. However, whereas ¤ 62 (1) GCA generally prohibits alterations of thework when its use is permissible because of an exception, ¤ 62 (2) GCA indeed allowstranslations and such alterations to the work if they only constitute extracts or transposi-tions into another key or pitch where necessitated on account of the purpose of the use.Therefore the law allows translations as long as the use is generally allowed under anexception such as ¤¤ 46, 53 (3) GCA, i.e. to translate a short story and incorporate it ina collection for instructional use, or to reproduce a translated poem for a school class.Whether the translation would not be necessary if there existed an authorized trans-lation is being discussed (permissible: Schricker/Loewenheim/Dietz/Peukert, op. cit., ¤62 margin no. 19; prohibited: Munich Regional Court ZUM 2009, 678, 680; Fromm/Nordemann/A. Nordemann, op. cit., ¤ 62 margin no. 9). The purpose of the use incase of the exceptions in ¤¤ 46, 52, 52a (1), 53 (2), (3) GCA might be an educationalpurpose; yet as a general provision ¤ 62 (2) GCA is not limited to such purposes.


yes

¤ 46 (1) GCA additionally allows making works available to the public within a collec-tion (see above I. 5) lit. b) ). ¤ 52a (1) no. 1 GCA provides for an exception to the rightof making works available to the public pursuant to ¤ 19a GCA. The exception encom-passes under certain conditions the act of uploading copies of the work and makingthem available in digital networks for illustration in teaching at certain educational in-stitutions. The exception allows educational institutions and their teachers to use mod-ern communication networks (RegE, BT DS 15/38, p. 20). Therefore teachers may up-load copyrighted works on servers. But they have to ensure that only the students of thespecific class may access (and download) the works (see only de la Durantaye, Allge-meine Bildungs- und Wissenschaftsschranke, 2014, p. 105 f. with further references).As long as this is guaranteed, the absolute number of students enrolled in this courseis irrelevant, which provides for Ðlike stated in a Federal Court decisionÐ distance ed-ucational programs of more than 4000 students (see Federal Court GRUR 2014, 549,553 Ð Meilensteine der Psychologie).Like mentioned above, the general scope of the exclusive right to communicate thework in the special form of making it available to the public (¤¤ 15 (2), 19a GCA)depends on whether this communication or making available addresses the ÒpublicÓ.

187

e)

f)

6)6)

If it is a non-public communication, there is no need for an exception. There is a de-bate whether the mere existence of the exception proofs that the legislator consideredsuch activities as ÒpublicÓ (Schricker/Loewenheim/Loewenheim, op. cit., ¤ 52a marginno. 4) or whether the understanding of ÒpublicÓ and therefore the application of theGCA depends on the concrete situation. Given one follows the latter understanding, forteaching at schools the communication of a work (and therefore also the making avail-able to the public) within the regular class would be considered non-public (Dreier/Schulze/Schulze, op. cit., ¤ 15 margin no. 45; de la Durantaye, op. cit., p. 104).


yes

¤ 53 (2) sentence 1 no. 1 GCA allows to make single copies of a work or to have thesemade for one's own scientific use if and to the extent that such reproduction is neces-sary (ÒgebotenÓ) for the purpose and it does not serve a commercial purpose. Pursuantto ¤ 53 (6) sentence 1 GCA these copies may neither be distributed nor communicat-ed to the public. The exception does not allow re-using works in another form, i.e. bycompiling or quoting them.For scientific purposes Ð without addressing those purposes explicitly Ð ¤ 51 GCA mightbe the most important exception of the GCA. It provides for an exception to reproduce,distribute and communicate to the public a published work for the purpose of quo-tation. In particular this shall be permissible where subsequent to publication individ-ual works are included in an independent scientific work for the purpose of explainingthe contents (¤ 51 sentence 2 no. 1 GCA). Generally speaking the exception allowsresearchers to use existing works within their own scientific work, and such scientificworks may either be distributed or communicated to the public, i.e. by uploading it toa server.¤ 52a (1) no. 2 GCA allows making works available to the public exclusively for aspecifically limited circle of persons for their personal scientific research to the extentthat this is necessary for the respective purpose and is justified for the pursuit of non-commercial aims. The conditions of this exception are almost the same as in ¤ 52a (1)no. 1 GCA (see above I. 5) lit. d) ).


yes

¤ 58 (2) GCA also applies to educational institutions (see above I. 1) lit. d) ).


The exceptions for educational institutions mostly differentiate between schools and univer-sities, sometimes allowing the latter the use of the work, sometimes not and almost all ofthem exclude the use for commercial purposes. But ¤ 46 GCA is not limited to a use by cer-tain institutions. Either editors with profit-making purposes or teachers and professors mayuse works to incorporate them in collections. The instructional use of the collection has totake place in schools and in non-commercial basic and further training facilities. Whereas itdoes not matter whether the schools (or pre-schools) are public or private, all kind of uni-versities and other institutions of adult education are excluded (see only Schricker/Loewen-heim/Melichar, op. cit., ¤ 46 margin no. 10 with further references). ¤ 52 GCA also applies

188

7)7)

to all kind of institutions and users as long as, amongst other conditions, the communicationof the work serves a non-profit-making purpose for the organizer. It does not matter whetherthe organizer pursues an indirect or a direct profit-making purpose or whether he/she pur-sues such purposes besides others; the use is strictly limited to a non-profit one (see onlyFromm/Nordemann/Dustmann, op. cit., ¤ 52 margin no. 11 ff. with further references).¤ 47 GCA applies only to schools, teacher training and further training institutions as well asyouth welfare institutions and state image archives or comparable institutions under publicownership. ¤ 52a (1) no. 1 GCA applies to schools, universities, non-commercial institutionsof education and further education, and vocational training institutions. The use must be jus-tified for the pursuit of non-commercial aims. By allowing universities to make works avail-able to the public the exception significantly differs from the exception to the right to makecopies in ¤ 53 (3) no. 1 GCA which has a similar structure. ¤ 53 (3) no. 1 GCA applies onlyto schools, non-commercial training and further training institutions, as well as vocationaltraining institutions. The exclusion of universities is being criticized (see Rehbinder/Peukert,op. cit., margin no. 652). Therefore university classes do not profit from the exception to theright to make copies for the purpose of illustration for teaching. Compared to the exceptionof ¤ 52a (1) no. 1 GCA this might lead to inconsistent results: A university professor is there-fore not allowed to send copies of a text per email (¤ 53 (1) no. 1 GCA does not includeuniversities), but pursuant to ¤ 52a (1) no. 1 GCA she is allowed to upload the copy to theuniversityÕs intranet so that her students can download it and as a result, have their own copy(de la Durantaye, op. cit., p. 221). ¤ 53 (3) no. 2 GCA applies to schools, higher educationinstitutions, non-commercial training and further training institutions, as well as vocationaltraining institutions, which constitutes the great difference between those two exceptions.¤¤ 53 (2) sentence 1 no. 1 and 52a (1) no. 2 GCA that allow reproducing works for one'sown scientific use and making available to the public for a specifically limited circle of per-sons for their personal scientific research do not refer to certain institutions. But the repro-duction must not serve a commercial purpose and the making available to the public needsto be justified for the pursuit of non-commercial aims. Consequently it is debated whetherprivate research institutions are generally excluded from the scope of the exception (critical-ly Schricker/Loewenheim/Loewenheim, op. cit., ¤ 53 margin no. 43). Since the prohibitionof commercial purposes is based on Art. 5 (3) (c) of the Copyright Directive 2001/29/EC,pursuant to recital 42 the non-commercial nature of the activity in question should be de-termined by that activity as such, not by the organizational structure. As a result private in-stitutions are not per-se excluded from the scope of the exception as long as they pursue anon-commercial purpose (Dreier/Schulze/Dreier, op. cit., ¤ 52a margin no. 13).


The collection pursuant to ¤ 46 (1) GCA must combine the works of a considerable numberof authors and be intended, by its nature, exclusively for instructional use in schools, in non-commercial basic and further training facilities. The publisher has to state this purpose clear-ly on the copies, or when making them available to the public.¤ 47 (1) GCA provides only for an exception to reproduce works to be used as part of aschool broadcast. The exception does not encompass the communication to the public ofthe copies. However, as long as the teacher just performs the work within the class, this usewould not be considered to be ÒpublicÓ and therefore would not fall within the scope of theexploitation rights pursuant to ¤ 15 (2) GCA (see Dreier/Schulze/Dreier, op. cit., ¤ 47 mar-gin no. 5; Fromm/Nordemann/Dustmann, op. cit., ¤ 47 margin no 2).¤ 51 sentence 2 no. 1 GCA (which implements Art. 5 (3) lit. d) Copyright Directive 2001/29/EC) requires the work that contains quotations to be an independent scientific work, whichmeans that the quoting work has to be a copyrightable work itself and further, that it has tobe independent from the quoted works (Schricker/Loewenheim/Schricker/Spindler, op. cit.,

189

¤ 51 margin no. 20 ff. with further references). The quotation is only permissible for thepurpose of explaining the contents of the work that quotes, not the quoted work (Dreier/Schulze/Dreier, op. cit., ¤ 51 margin no. 3).¤ 52 (3) GCA excludes public stage performances, making available to the public andbroadcasting of a work, as well as public screenings of a cinematographic work from thescope of the exception.Both ¤ 52a (1) no. 1 and 2 GCA (which implement Art. 5 (3) lit. a) Copyright Directive 2001/29/EC) only allow teachers or scientists making available the work to a specific public. It mustbe exclusively for the specifically limited circle of those taking part in the instruction (no. 1) orof persons for their personal scientific research (no. 2). They therefore have to ensure by in-stalling passwords or other controlling mechanisms that no one outside of the addressed cir-cle of students or other scientists may access the work (Schricker/Loewenheim/Loewenheim,op. cit., ¤ 52a margin no. 10/12). Even though the exceptions do not allow the students todownload and/or print the work, they may use the work made available under ¤ 52a (1)GCA insofar as they are allowed to do so by any other exception, especially ¤ 53 (2) sen-tence 1 no. 1 GCA (Federal Court GRUR 2014, 549, 555 Ð Meilensteine der Psychologie;a comparable question arises at ¤ 52b GCA (see above I. 1) ). ¤ 53 (2) sentence 1 no. 1and ¤ 53 (3) GCA allow the users to make copies or to have these made. ¤ 53 (6) sentence1 GCA, which applies to all of the exceptions in ¤ 53, states that the copies may neither bedistributed nor communicated to the public.¤¤ 47, 53 (2) and 53 (3) GCA restrict the number of copies that may be made. For one'sown scientific use it is allowed to make Òsingle copiesÓ of a work. Pursuant to ¤ 47 (1) GCA,educational institutions may only make Òindividual copiesÓ (this might be an error in the of-ficial translation of the GCA since in German both ¤ 53 (2) and ¤ 47 (1) use the wordingÒeinzelneÓ, which should be translated uniformly) by transferring the works to video or audiorecording mediums. The allowance to make Òsingle copiesÓ should not exceed Ð pursuant toa famous dictum of the Federal Court Ð the number of seven (Federal Court GRUR 1978,474, 476 Ð VervielfŠltigungsstŸcke), but indeed depends on the actual use and pursued pur-pose (see only Schricker/Loewenheim/Loewenheim, op. cit., ¤ 53 margin no. 17). The num-ber of copies in case of ¤ 47 GCA for example depends on the need of the institution: Is thecopy of a school broadcast supposed to be used just at one class at a time, there would beno need to make more copies than just one (Schricker/Loewenheim/Melichar, op. cit., ¤ 47margin no. 15). For the purpose of illustration for teaching copies may be made in quanti-ties required for the persons receiving instruction. Copies for examinations may be made inthe required quantity. Each student of a class or the group that receives instruction plus theteacher may obtain one copy (see only Schricker/Loewenheim/Loewenheim, op. cit., ¤ 53margin no. 62). ¤ 52a (3) GCA allows producing copies also needed for making the workavailable to the public, i.e. scanning the work and uploading the copies, in a quantity thatis justified by the exceptionÕs purpose (see Fromm/Nordemann/Dustmann, op. cit., ¤ 52amargin no. 19).¤ 46 (1) GCA allows the reproduction, distribution and making available to the public oflimited parts of works, of small scale literary works and of musical works, individual artisticworks or individual photographs. For the purpose of illustration for teaching and for exam-inations ¤ 53 (3) sentence 1 GCA allows making copies of small parts of a work, of small-scale works or of individual articles released in newspapers or periodicals or made availableto the public. ¤ 52a (1) no. 1 GCA allows to make available to the public for the purposeof illustration in teaching small, limited parts of a work, small scale works, as well as indi-vidual articles from newspapers or periodicals. It also limits the use to the extent that thisis necessary for the respective purpose. ¤ 53 (2) sentence 1 no. 1 GCA itself does not re-strict the portion of a work that may be used lawfully; however, the portion is limited: ¤ 53(4) lit. b) GCA does not allow the reproduction of a book or a periodical, in the case of anessentially complete reproduction, insofar as this does not occur by means of manual tran-scription. Furthermore the condition that the use must be necessary (Òif and to the extent thatsuch reproduction is necessary for the purposeÓ) also refers to the scale of the use (Fromm/Nordemann/Wirtz, op. cit., ¤ 53 margin no. 32). ¤ 52a (2) no. 2 GCA differs from no. 2

190

8)8)

and allows making available to the public limited parts of a work (and not only small, limitedparts of a work), small scale works, as well as individual articles from newspapers or period-icals. It also limits the use to the extent that this is necessary for the respective purpose.Especially the interpretation of Òlimited parts of a workÓ (¤¤ 46 (1), 52a (1) no. 2 GCA) andÒlimited, small parts of a workÓ (¤¤ 52a (1) no. 1, 53 (3) GCA) is being discussed (see onlyFromm/Nordemann/Dustmann, op. cit. ¤ 52a margin no. 7, 12 with further references). TheFederal Court ruled, referring to ¤ 52a (1) no. 1 GCA, that Òlimited, small parts of worksÓrefers to a relative amount of the work, which is a maximum of 12% of the printed pages,but that the wording also stands for an absolute limit of the usable part of a work, which isa maximum of 100 pages (Federal Court GRUR 2014, 549, 551 f. Ð Meilensteine der Psy-chologie). ÒLimited parts of a workÓ could then be the relative amount of 33%, with an ab-solute limit of 100 pages (Munich Higher Court ZUM-RD 2011, 603, 617 Ð GesamtvertragHochschulen; see also Fromm/Nordemann/Dustmann, op. cit., ¤ 46 margin no. 6; ¤ 52amargin no. 12 with further references).Comparably to the condition that the use in its extent must be ÒnecessaryÓ, ¤ 51 GCA gen-erally limits the usable amount of a work so far as such exploitation is ÒjustifiedÓ to thatextent by the particular purpose. It has to be considered that ¤ 51 sentence 2 no. 1 GCA al-lows the use of a whole work by using the wording of Òindividual worksÓ (Schricker/Loewen-heim/Schricker/Spindler, op. cit., ¤ 51 margin no. 37). ÒIndividual worksÓ is then also inter-preted in a way that the number of works that may be quoted is limited, a limitation that isrelative to all of the works of the quoted author and to the size and scope of the indepen-dent work, and absolute in the number of quoted works (Schricker/Loewenheim/Schricker/Spindler, op. cit., ¤ 51 margin no. 34 with further references). There is a disagreement aboutthe question whether Òindividual worksÓ are solely Òsome single worksÓ (Federal Court GRUR1968, 607, 611 Ð Kandinsky I) or whether the quotation is permissible depending on thecircumstances of the concrete use, and especially depending on how many different authorsare quoted (Schricker/Loewenheim/Schricker/Spindler, op. cit., ¤ 51 margin no. 34 with fur-ther references).Besides ¤ 47 GCA, which refers only to schools and other institutions (but allows teachers todo the reproduction, see only Fromm/Nordemann/Dustmann, op. cit., ¤ 47 margin no. 4),none of the exceptions limits its scope to certain persons who may engage in such activi-ties as long as the use serves the privileged purpose (in case of ¤¤ 52a (1) no. 1, 53 (3)GCA this would mean that the use takes place at/in schools etc., see de la Durantaye, op.cit., p. 223 f.). Therefore both, teacher and students, may use, i.e. perform, a work for thespecial purposes. ¤ 53 (2) sentence 1 no. 1 GCA for example allows every single person,student, professor, even popular scientists, to reproduce or to let someone else reproducecopyrighted works as long as he/she reproduces the work solely for his/her own scientificresearch (see Fromm/Nordemann/Wirtz, ¤ 53 margin no 31). In case of ¤ 46 (1) GCA, bothpublishers and teachers are allowed to use existing works in course packs, compilations andanthologies.Each of the exceptions in ¤¤ 52a (1), 53 (2) sentence 1 no. 1, 53 (3) GCA only allows theuse if and/or to the extent that is ÒnecessaryÓ for the respective purpose. This more generalcondition is not to be understood as Òabsolutely necessaryÓ (see only Federal Court GRUR2014, 549, 553 Ð Meilensteine der Psychologie). To determine what is ÒnecessaryÓ, the courtmay use the Three-Step Test (see below I. 10.).


None of the exceptions in ¤ 53 (2), (3) GCA demand for the use of an own original for thereproduction (Federal Court GRUR 1997, 459, 462 - CB Infobank I), nor do the other ex-ceptions for educational or research.

191

9)9)

10)10)

Almost all of the exceptions apply only to published (¤ 6 (1) GCA; see ¤¤ 46 (1), 51 sentence1, 52 (1) sentence 1, 52a (1) no. 1 and 2 GCA) or released works (¤ 6 (2) GCA; see ¤ 53(3) no. 1 and 2). Since a work shall be deemed to have been published when it has beenmade available to the public with the consent of the right-holder (¤ 6 (1) GCA), otherwisethe use could infringe the authorÕs moral right of publication (¤ 12 GCA). Even though ¤ 53(3) no. 1 and 2 GCA do not explicitly state that other works than released articles have to bepublished before being used, the same condition should apply to the reproduction of worksfor the purpose of illustration for teaching and for examinations (de la Durantaye, op. cit., p.225 with further references).Only the use under ¤ 53 (2) sentence 1 no. 1 GCA (reproduction for one's own scientific use)does not require the work to be published since the use does not automatically coincidencewith the publication (de la Durantaye, op. cit., p. 226). Unpublished manuscripts thereforemight only be reproduced for oneÕs own scientific use.Most of the exceptions do not apply to at least one certain kind of copyrighted work. ¤¤ 46(1)sentence 2, 52a (2) sentence 1, 53 (3) sentence 2 GCA all forbid making available to thepublic or reproducing a work being intended for instructional use at schools/for use in in-struction in schools without the consent of the copyright owner. Such use would otherwiseconflict with a normal exploitation of these works and therefore considered incompatible withthe second step of the Three-Step-Test (see Federal Court GRUR 2014, 549, 554 Ð Meilen-steine der Psychologie). The exception of ¤ 46 (1) GCA furthermore does not apply to mu-sical works that are incorporated in a collection intended for use in musical instruction inschools of music. Within the first two years of normal regular utilization in film theatres, acinematographic work may not be made available to the public without the consent of theright-holder (¤ 52a (2) sentence 2 GCA).The reproduction of computer programs is not permissible (¤¤ 69a (4), 69c no. 4 GCA,which mainly implement to Art. 1 and Art. 4 Software Directive 2009/24/EG). Reproductionfor examination is not allowed for database works the elements of which are individually ac-cessible by electronic means, whereas the reproduction for oneÕs own scientific use or for thepurpose of illustration for teaching is permissible on condition that the scientific use or usein instruction does not serve commercial purposes (¤ 53 (5) GCA). Databases (not databaseworks) may be under certain conditions reproduced for personal scientific use and for pur-pose of illustrative teaching (¤ 87c (1) sentence 1 no. 2 and 3 GCA). ¤ 53 (7) GCA finallyexcludes the recording of public lectures, productions or performances of a work on video oraudio recording mediums, the realization of plans and drafts of artistic works and the recon-struction of architectural works.



In German copyright law, all exceptions and limitations are provided by statutory provision.The statutory provisions are ¤¤ 52b, 53 (2) sentence 1 no. 2 and ¤ 53a GCA.


Art. 5 (5) of the Copyright Directive 2001/29/EC provides for a specific German adoption.But implementing this Directive, the Three-Step Test is not explicitly adopted in any statutoryprovision of the GCA, but is applied by the jurisdiction. However, the requirements in Art. 9(2) Berne Convention and Art. 13 TRIPS can be applied directly without implementing leg-

192

11)11)

12)12)

islation and have the status of a statutory law. Pursuant Art. 5 (5) of the Copyright Direc-tive 2001/29/EC, the exceptions provided for in the Copyright Directive 2001/29/EC Ð andtherefore the national measures of implementation Ð have to be in accordance with theThree-Step-Test. Accordingly the German legislator saw no need to implement the test in theform of a general rule. Nevertheless, two provisions in fact contain criteria corresponding tothe Three-Step Test: ¤ 69e (3) GCA and ¤ 87b (1) sentence 2 GCA.The Federal Court ruled in several decisions that the exceptions have to be interpreted withthe help of the Three-Step Test (Federal Court GRUR 1999, 707, 712 Ð Kopienversanddienst;GRUR 2013, 503, 506 Ð Elektronische LeseplŠtze; see also Fromm/Nordemann/Dustmann,op. cit., before ¤¤ 44a ff. margin no. 12 f.). The CJEU stated that the national exceptionshave to be interpreted in the light of the Three-Step Test pursuant to Art. 5 (5) of the Copy-right Directive 2001/29/EC (CJEU GRUR 2009, 1041 margin no. 58 Ð Infopaq/DDF; seealso CJEU GRUR 2014, 1078 Ð TU Darmstadt/Ulmer). Practically the condition that the usemust be ÒnecessaryÓ for the respective purpose allows the court to apply the Three-Step Test(Federal Court GRUR 2014, 549, 553 Ð Meilensteine der Psychologie; Stuttgart Higher Re-gional Court GRUR 2012, 718, 724 Ð Moodle).


These exceptions apply ipso iure, accordingly the permission does not require any formali-ties.As soon as the conditions of the exceptions are fulfilled the use is generally permitted auto-matically. The exceptions for educational and research purposes either allow using a workwithout the consent of the author and without payment (¤ 51 GCA) or allow using a workwithout the consent but oblige to pay remuneration (¤¤ 46, 47, 52, 52a, 53 GCA); none ofthem requires to seek a compulsory license (see only Schricker/Loewenheim/Melichar, op.cit., before ¤¤ 44a ff. margin no. 6). Pursuant to Melichar anyone who uses a copyrightedwork under any exception shall have the (non-enforceable) duty to inform the right-holderabout his use (Schricker/Loewenheim/Melichar, op. cit., before ¤¤ 44a ff. no. 33).¤ 46 (3) GCA explicitly contains the duty to inform the author: The reproduction of the workor making the work available to the public may only begin after the intention to use the workin an anthology has been communicated to the author. This information about the scope ofthe planned use helps the author to control whether the requirements are fulfilled (Fromm/Nordemann/Dustmann, op. cit., ¤ 46 margin no. 17) and gives him/her the chance for re-vocation of any existing exploitation right, which would at the same time give him the rightto forbid the exploitation under the exception (see ¤¤ 46 (5), 42 GCA). Furthermore, for analteration of a literary work pursuant to ¤ 62 (4) GCA the author has to be informed and hasto contradict within one month, or otherwise the alteration would be permissible.For the reproduction under the exceptions in ¤¤ 51, 53 (2) sentence 1 no. 1, ¤ 53 (3) no. 1GCA, the source must in all cases be clearly acknowledged (¤ 63 (1) sentence 1 GCA). Forthe communication of the work to the public pursuant to ¤¤ 46, 51, 52a GCA the source, in-cluding the name of the author, must in all cases be acknowledged unless this is not possible(¤ 63 (2) sentence 2 GCA). Regarding the remaining exceptions to communicate a work tothe public (¤ 52 GCA), the source shall be clearly indicated if and insofar as this is requiredby customary practice (¤ 63 (2) sentence 1 GCA).


Libraries and archives:

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Concerning ¤ 53 (2) sentence 1 no. 2 GCA, there are different ways in which remuneration isprovided for by the law. The author has the right to demand an adequate remuneration fromthe producer of the devices, which possibly can be used to make reproductions of works, e.g.printers, copying machine, but also storage devices as USB-sticks (¤ 54 (1) GCA). The authorhas the same right concerning the legal person, who imports or merchandises such devices(¤ 54b GCA). Both of them are considered joint debtors concerning the right of the author.Furthermore the author can demand remuneration from the institutions, which use such de-vices, e.g. libraries, museums, schools or copy shops (¤ 54c GCA). All such remunerationcan only be claimed by a collecting society (¤ 54h GCA), who distributes the proceeds to theauthors.A remuneration is also payable for the use of works on electronic reading stations (¤ 52bsentence 3 and 4 GCA). Again, the adequate remuneration can only be claimed by a col-lecting society.The same applies to the remuneration payable for copy delivery services (¤ 53a (2) GCA).Educational and research institutions:Pursuant to ¤ 46 (4) GCA , the author shall be paid equitable remuneration for the exploita-tion permissible in accordance with ¤ 46 (1) and (2) GCA. Even though the claim must notbe asserted through a collecting society this is in fact actual practice (de la Durantaye, op.cit., p. 77 with further references).¤ 47 (2) sentence 2 GCA states that unless the author has been paid equitable remunerationthe video or audio recording mediums must be deleted at the latest at the end of the acade-mic year following the transmission of the school broadcast. Therefore if the school wants toarchive the recordings and use them in the following academic years, it has to pay equitableremuneration to the author. Even though the claim must not be asserted through a collectingsociety this is indeed actual practice (de la Durantaye, op. cit., p. 80 with further references).The reproduction, distribution and communication to the public of a published work for thepurpose of quotation under the conditions of ¤ 51 GCA is permissible without the payment ofequitable remuneration. Since the exception requires the quoting work to be ÒindependentÓ,this independent work itself constitutes an own intellectual creation (¤ 2 (2) GCA) that can beexploited separately (Fromm/Nordemann/Dustmann, op. cit., ¤ 51 margin no. 46).Whereas the use under the exception of ¤ 52 (1) GCA generally requires the payment of anequitable remuneration, such school events are explicitly released from this obligation inso-far as they are only available to a specific, limited group of persons on account of their so-cial or educational purpose (¤ 52 (1) sentences 2, 3 GCA). The literature disagrees whetherthe whole event must serve only the schoolÕs educational purpose (see Schricker/Loewen-heim/Melichar, op. cit., ¤ 52 margin no. 34) or whether the educational purpose must bethe eventÕs main purpose as long as the access to the event is limited by factual means (seeonly Dreier/Schulze/Dreier, op. cit., ¤ 52 margin no. 14). If remuneration is payable, eventhough the claim must not be asserted through a collecting society this is indeed actual prac-tice (Fromm/Nordemann/Dustmann, op. cit., ¤ 52 margin no. 19-21).¤ 52a (4) sentence 1 GCA states that an equitable remuneration shall be paid for makingworks available to the public both for educational and research purposes in accordance with¤ 52a (1) GCA. ¤ 52a (4) sentence 2 GCA states that such claims may only be assertedthrough a collecting society. Liable for the payment are the institutions themselves. Sincemost of the schools and universities are public the states contracted with the collecting so-cieties (so-called inclusive contract (¤ 12 of the Copyright Administration Law; see Fromm/Nordemann/Dustmann, op. cit., ¤ 52a margin no. 20). There is an ongoing debate whetherthe equitable remuneration must be calculated on basis of the actual use (Munich Higher Re-gional Court ZUM-RD 2011, 603, 613 ff. Ð Gesamtvertrag Hochschulen (nicht rechtskrŠftig);affirmative: Federal Court GRUR 2013, 1220, 1227 ff. Ð Gesamtvertrag Hochschul-Intranet)or, by taking into account the effort the institution would have by documenting each singleuse, whether a more general basis would be preferable (Dreier/Schulze/Dreier, op. cit., ¤52a margin no. 20).¤ 54 (1) GCA states that where the nature of a work makes it probable that it will be repro-duced, pursuant to ¤ 53 (1) to (3) GCA, the author of the work shall be entitled to paymentof equitable remuneration from the manufacturer of appliances and of storage mediums,

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where the type of appliance or storage medium is used solely or together with other appli-ances, storage mediums or accessories, for the making of such reproductions. Pursuing ¤54c (1) GCA not only the manufacturer owes the payment of equitable remuneration butalso certain operators of such appliances including educational establishments, research in-stitutions and public libraries. The reason for this regulation is that the single user who repro-duces the work may not be controlled and therefore not be made liable whereas the manu-facturer and operator of appliances used for the reproduction of copyrighted works are wellknown (Schricker/Loewenheim/Loewenheim, op. cit., ¤ 54 margin no. 1). ¤ 54a (1) GCAstates that the amount of remuneration shall be determined by the extent to which the ap-pliances and storage mediums are actually used as types for reproductions pursuant to ¤ 53(1) to (3) GCA. ¤ 54h (1) GCA states those claims may be asserted only through a collectingsociety.As a result it may be stated that besides ¤ 51 GCA and in the special case of ¤ 52 (1) sen-tence 3 GCA, all the exceptions for educational and research purposes oblige to pay eq-uitable remuneration for the exploitation of the work. Since practically all of the exceptionsrequire the payment to be made to collecting societies, their tariffs (¤ 13 of the Copyright Ad-ministration Law) could be seen as starting point for the calculation (see Schricker/Loewen-heim/Melichar, op. cit., Vor ¤¤ 44a ff. margin no. 29). Usually the parties, and thereforemostly the states and the collecting societies, try to agree about the payment by conclud-ing an inclusive contract (¤ 13 of the Copyright Administration Law). If they cannot agreeupon such contract, each of them can first apply to the Arbitration Board, and then asserthis claim in court proceeding at Munich Higher Court, which shall determine the content ofthe inclusive contract, in particular the nature and the amount of remuneration, at its discre-tion (¤¤ 14, 16 of the Copyright Administration Law). If the amount of the remuneration isquestioned the court can therefore rule upon it (¤ 287 (2) of the Code of Civil Procedure;see Munich Higher Regional Court ZUM-RD 2011, 603, 616 Ð Gesamtvertrag Hochschulen;Federal Court GRUR 2013, 1220, 1227 Ð Gesamtvertrag Hochschul-Intranet).


Yes, there is a special treatment.The German regulation is based on Art. 6 of the Orphan works Directive 2012/28/EC, dated25 October 2012. The exceptions and limitations for orphan works in the GCA are a trans-formation of the EU directive into German law.The reproduction and the making available to the public of orphan works is permissible forpublicly accessible libraries, educational institutions, museums, archives and film or audioheritage institutions within the boundaries of ¤ 61 (1) GCA. The reproduction and the mak-ing available to the public must be in the public interest and serve cultural or educationalpurposes and must not be for commercial purposes. These limitations are given in ¤ 61 (5)GCA.According to ¤ 61a GCA, the exceptions only apply if a diligent search for the right-holderpursuant to ¤ 61 (2) GCA has been carried out. The scope of a diligent search is also de-fined by law. In addition, the institution has to document the search and has to forward infor-mation about the use to the German Patent and Trademark Office (GPTO). The GPTO willforward this information to the Office for Harmonization of the Internal Market (HABM). Nosearch is necessary if the works have already been recorded as orphaned in the database ofthe HABM (¤ 61a (5) GCA).If a right-holder is subsequently identified, the use must be ceased as soon as the institutionlearns about the right-holder. An equitable remuneration for the use already made of theitem must be paid.

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14)14) DoesDoes thethe lawlaw ofof youryour jurisdictionjurisdiction allowallow thethe exceptionexception oror limitationlimitation toto bebe overriddenoverridden bybycontract?contract?

Libraries and archives:As mentioned above (I. 1) ), the exception of ¤ 52b GCA is only applicable if there are nocontravening contractually agreed provisions. But these agreements have to be or at leastcontain specific agreements for the digital use of the works. Only if this is the case, the ex-ception of ¤ 52b GCA is not applicable.The exception in ¤ 53 (2) sentence 1 no. 2 GCA is mandatory and thus cannot be overriddenby contract. Whether the use is not qualified as ÒnecessaryÓ if there exists an equivalent pos-sibility to purchase a copy of the work is being discussed (see below).The reproduction and sending of the copied part of a work or magazine article as providedfor by ¤ 53a GCA only is permitted if the work is made available to the public in an ac-cessible manner and at reasonable contractual conditions. Accordingly, the libraries have tocheck if there are any offers concerning the work and if these offers are accessible at reason-able conditions. If case of such offer, the library cannot refer to the exception of ¤ 53a GCAand reproduction and sending of the copy is not permitted.Educational and research institutions:Whereas there does not exist any explicit rule that contracts do override the exceptions re-garding the activities of educational and research institutions courts decided that this mightbe the case. So far ¤¤ 46, 47, 51, 52 GCA may not be overridden by contract. However, thisis being discussed in the case of ¤ 52a (1) and ¤ 53 (2), (3) GCA.By interpreting the wording ÒnecessaryÓ in ¤ 52a (1) GCA in the light of the Three-Step-Test,and especially of its third step (whether the use under the exception does not unreasonablyprejudice the legitimate interests of the rightholder), the Federal Court stated that the use isnot necessary in such cases in which the rightholder offers a license with equitable conditions(Federal Court GRUR 2014, 549, 554 f. Ð Meilensteine der Psychologie; see also Schricker/Loewenheim/Loewenheim, op. cit., ¤ 52a margin no. 14). Even though the Federal Courtdecided only to the interpretation of the wording in to ¤ 52a (1) no. 1 GCA, there is no rea-son why this opinion would not be applicable to ¤ 52a (1) no. 2 GCA and finally to ¤ 53 (2)sentence 1 no. 1, (3) sentence 1 GCA, since each of these exceptions contains the conditionthat the use must be necessary. Conditions for such an override by offer are that the priceis equitable, that he offer is easy to find and the work is available fast and without furtherproblems (Federal Court GRUR 2013, 1220, 1225 f. Ð Gesamtvertrag Hochschul-Intranet;GRUR 2014, 549, 554 Ð Meilensteine der Psychologie). The Federal Court argued that theexistence of those explicitly mentioned conditions would not have any effect on the interpre-tation of the general condition of ÒnecessaryÓ and that even if the Three-Step Test in Art. 5(5) of the Copyright Directive 2001/29/EC did not demand for such an override, it definitelywould not forbid it (Federal Court GRUR 2014, 549, 554 f. Ð Meilensteine der Psycholo-gie; see also Munich Higher Regional Court ZUM-RD, 2011, 603, 614 f. Ð GesamtvertragHochschulen). Without the possibility to override by offer, publishers and others would finallynot have enough incentives to develop an equitable licensing schemes regarding the use ofcopyrighted works at educational and research institutions, which at the end could help tofind the most equitable solution for both the user and the rightholder (see de la Durantaye,op. cit., p. 231 f.).This is criticized in literature, first because of its bureaucratic effect since every school teacheror university professor would have to search for offers and determine whether those are equi-table, an unaffordable effort for regular users (see only von Ungern-Sternberg, GRUR 2015,205, 212); secondly because the Copyright law explicitly provides for an override of con-tract just in ¤¤ 52b, 53a GCA (Dreier/Schulze/Dreier, op. cit., ¤ 52a margin no. 12; Fromm/Nordemann/Dustmann, op. cit., ¤ 52a margin no. 15; PflŸger, ZUM 2012, 444, 451 f.)for the interpretation of the override of contract in ¤¤ 52b, 53a GCA); thirdly because theoverride of offer does not find a basis in the Copyright Directive 2001/29/EC, which makessuch interpretation incompatible with EU law (GrŸnberger, ZUM 2015, 273, 289). Since theCJEUÕs decision upon Art. 5 (3) lit. n) of the Copyright Directive 2001/29/EC that an override

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II.)II.)

16)16)

of a mere offer would diminish the scope of its application essentially (CJEU GRUR 2014,1078, 1079 margin no. 32), the interpretation of the Federal Court has to be questionedfurther.Within the literature there is widespread consensus that the reproduction for oneÕs own sci-entific use pursuant to ¤ 53 (2) sentence 1 no. 1 GCA would not be considered ÒnecessaryÓif there exists the possibility to purchase the used work without any problems and if the priceis in balance with the extent of the use (see only Fromm/Nordemann/Wirtz, op. cit., ¤ 53margin no. 32 with further references). ¤ 53 (3) GCA also demands for the reproduction tobe ÒnecessaryÓ, which should be interpreted the same way so that the possibility to purchasecopies of the work to a balanced price excludes the application of the exception (see Dreier/Schulze/Dreier, op. cit., ¤ 53 margin no. 41).


yes

In Germany, some private organizations are trying to address the needs of such users. Thisis in particular true for scenarios, where individual licensing solutions are not feasible or notsufficiently efficient.For example, the company PMG Presse Monitor is a joint venture of relevant German presspublishers. PMG Presse Monitor provides for all encompassing Licenses for newspaper arti-cle use for archiving, in particular for newspaper article archives of private companies. PMGPresse Monitor operates in fields covered by limitations to copyright law, where it acts for thecollecting society (e.g. the German collecting society VG Wort), collecting the moneys duefor legal use of newspaper articles coming under the relevant German statutory limitation tocopyright law for the use of newspaper articles. Additionally, PMG Presse Monitor providesgenuine licensing for uses not covered by any statutory German exception or limitation.A similar company is the Dutch company RightsDirect, which is a fully owned subsidiary bythe American Copyright Clearance Center (CCC). RightsDirect operates in the field of pri-vate research in the field of scientific publishing. In particular, RightsDirect provides rights forcontent sharing within or between private companies, doing research. RightsDirect providesfor worldwide usage rights. It covers both rights usually managed by genuine collecting soci-eties (for example in Germany by the collecting society VG Wort) and rights acquired directlyfrom individual rightholders such as scientific publishers.



yes

There should definitely be exceptions permitting certain activities to publicly accessible li-braries and archives. Libraries and archives are the most important institutions, when itcomes to scientific work and research. Too narrow or no exceptions at all would hamper thescientific world in general. But of course the question which exceptions should be made, hasto be the result of careful considerations and balance the rights of authors on the one handand the concept of a scientific-friendly environment for researchers and alike.Libraries should definitely be able to repair owned copies by replacing missing or damagedpages, as public use naturally can derange the copies. Otherwise it would be too much of acost factor, to re-buy books just because pages are missing.

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18)18)

A copy delivery service as described above is also of significant importance. It allows re-search of people who are not able to visit the library themselves. Further it is a means of ef-ficiency, as it often is just faster asking for a scanned copy than to go and scan it yourself. Ina high-tech digital world, this shouldnÕt hinder a person from studying or researching. Alsothe exception for electronic reading stations is a good instrument to react to the changingenvironment. First, it actually (digitally) doubles the stock of a library and therefore makes itpossible that more users can access the stock. Further, this allows to react to load peaks intimes of exam preparations and alike. But of course this factual doubling has to be taken in-to consideration when deciding the amount of remuneration the library has to pay for thosestations. The archiving of the stock of a library or archive should also be permitted for safetyreasons and internal purposes, e.g. having a back-up copy to use, when the institution hasto replace missing or damaged pages.


yes

At least there should be exceptions or limitations in relation to the activities that are allowedunder current law.


yes

Copyright is a property right to protect the author. It is meant to put him into a position toexploit the work and to protect his legitimate interests. Any exceptions and limitations fromcopyright must use this nature of a property right protecting the author as a starting point.According to the Federal Court of Justice, the Three-Step Test helps to make clear and con-firm to legislators and courts that limitations and exceptions to copyright themself face limits(Federal Court GRUR 2014, 549 note 46 - Meilensteine der Psychologie). In particular, theThree-Step Test makes clear:¥ ÒCertain special casesÓ: Copyright as an exclusive right must not be wiped out by pro-

viding too general exceptions.¥ ÒNo conflict with normal exploitation of the workÓ: Copyright must not be limited in a

way that it impedes the normal exploitation of the work, as this would mean to take awaythe effect of the economic rights, linked to copyright. The Federal Court thinks that thisstep is missed, if the use allowed by the limitation directly competes with the normal ex-ploitation/Federal Court GRUR 2014, 549 no. 50 Ð Meilensteine der Psychologie). Thatis why the German legislator did not include the publically making available of schoolbooks for school use into a limitation for education, as this would directly substitute theprimary use of school books (see Government Draft BT-DS 15/837, page 34, availableon fromm-nordemann.de; also Federal Court, op. cit., no. 51 Ð Meilensteine der Psy-chologie).

¥ ÒTo not unreasonable prejudice legitimate interests of the rightholderÓ: Finally, the testof legitimate interests of the author reminds legislators and courts that they must strike abalance of interests, which includes the interests of the author as holder of the propertyright. According to German case law, this may require to pay an equitable remunerationto the author in case of limitations of copyright, e.g. in the field of allowed use of news-paper articles (Federal Court GRUR 2002, 963, 967 Ð Elektronischer Pressespiegel). Ac-cording to this case law, it is permissible in specific cases to honor limitations to the nor-mal exploitation of the work by paying an equitable remuneration (Federal Court GRUR1999, 707, 712 Ð Kopienversanddienst).

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21)21)


Most of the exceptions should offer the possibility for autonomous contractual agreements.A contractual agreement is better adopted to cover all circumstances occurring in everydaylife, than a general exception granted in a statutory provision. Another possibility would beto make it a condition, that the institution has to check the market, if there are reasonableoffers for licensing and only if there are not, is allowed to rely on an exception (as in ¤ 53aGCA). However, the additional workload for the libraries and the uncertainty, if an offer isreasonable or not, speaks against this option. To make this work, there would have to bestrict guidelines, what conditions are reasonable and all offers would have to be easily ac-cessible e.g. via a single website, where libraries could check them.However, with regard to some exceptions, e.g. ¤ 53 GCA (ãprivate copy exceptionÒ) estab-lishing a possibility to be overridden by contract, does not seem adequate, because this ex-ception in its essence privileges natural persons and only a few parts affect institutions aslibraries. Therefore, and because it only serves internal and securing purposes, this possibil-ity should not be adopted in this case.


For all of the activities of libraries and archives (as mentioned above), there should definitelybe a remuneration, as the digital copy available substitutes the purchase of a solid copy. Infact, all the activities permitted to libraries allow the libraries to avoid buying another copy ofthe respective work, they are using. Therefore the author doesnÕt earn any money from salesturnover. His decrease of remuneration should be substituted.Remuneration should also be payable for almost all activities of educational and researchinstitutions. It would anyway be most probably classified as unconstitutional under Germanconstitutional law if any of the activities was allowed without the authorÕs consent and withoutthe obligation to pay an equitable remuneration (German Constitutional Court, BVerfGE 31,229, 244 f. Ð Kirchen- und Schulgebrauch; BVerfGE 49, 382, 400 Ð Kirchenmusik).The only exceptions where there is no remuneration payable are ¤ 51 GCA (see above I. 12)for the reasons) and under certain conditions ¤ 52 (1) GCA referring to the right to commu-nicate the work to the public. The literature criticizes the latter harshly since it seems that itsmere reason is the stateÕs institutions free use (Schricker/Loewenheim/Melichar, op. cit., ¤ 52margin no. 1, 5, 6; Fromm/Nordemann/Dustmann, op. cit., ¤ 52 margin no. 2).


Libraries and archives:There are some requirements in the provisions which are not particularly transparent andthus should be clarified in order to allow for the proper and correct use of the exceptions forthe libraries and archives (such as, e.g. ãsmall part of worksÒ).Educational and research uses:¤¤ 51 and 52 GCA are, as far as we can see, broadly accepted and at least the exception touse works for the purpose of quotation does not need any improvement.The rest of the current law that provides exceptions for educational and research institutionsmight be easily improved by a clarification and purification of almost each exception, by us-ing wordings neutral to technology and by choosing a more flexible approach by focusing onwords like ÒnecessaryÓ instead of trying to regulate all the details, and finally re-systematizing

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22)22)

23)23)

24)24)

a)

b)

c)

the exceptions (see only de la Durantaye, op. cit., p. 191 f.). Especially ¤ 53 GCA in its cur-rent form can be considered one of the most complicated paragraphs within the GCA (seeSandberger, ZUM 2006, 818, 825 f.; de la Durantaye, op. cit., p. 191).For example the privileged educational institutions should be defined once (¤ 54c (1) GCAalready defines educational establishments) and then the other exceptions could easily referto that definition; universities and their professors should anyways be given the same priv-ileges as schools and their teachers either by changing the wording or by broadening theinterpretation of ÒschoolsÓ (see Rehbinder/Peukert, op. cit., margin no. 655); the limitationof certain portions of a work should not be made by Ð unclear Ð statutory provision likeÒsmall partsÓ or ÒpartsÓ, but on a case-to-case basis depending on the actual situation andtherefore depending on what would be considered as necessary for the purpose (see de laDurantaye, op. cit., p. 228 ff.; for a different point of view see Federal Court GRUR 2014,549, 552 Ð Meilensteine der Psychologie); the exceptions should be reformulated and useterms Ð especially in the context of converging media Ð neutral to the type of works (see dela Durantaye, op. cit., p. 224 f.).



yes





They should apply to publicly accessible libraries or archives and such that do not pur-sue any direct or indirect commercial or economical gain and act in the public interest.


The exceptions should apply to archiving the stock of an institution for the purpose ofrepairing damaged copies, to repairs of owned copies itself, to making available workson reading stations and copy delivery services (as mentioned above).


For libraries and archives in most of the cases it should only be allowed to use owncopies of works for reproduction or making available. Only in cases where the libraryitself does not profit from an activity (e.g. by sending a scan to a user requesting it andnot to digitally increase its stock), it should be allowed to reproduce from a copy notowned by the library.

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a)

b)

c)

26)26)



The exceptions should apply to all kinds ofeducational and research institutions as longas they do not pursue any commercial purpose with the use. Especially, the exceptionsshould be applicable for universities, as well as they are for schools. Therefore, thelaw should refer to a term like Òeducational establishmentsÓ as defined in ¤ 54c (1)GCA. This would both clarify and shorten the law, and by being applicable to univer-sities the exceptions would be less discriminating and (still) in accordance to Europeanlaw, which does not differentiate between teaching at schools and at universities (de laDurantaye, op. cit., p. 220 f.). In accordance with Recital 42 of the Copyright Direc-tive 2001/29/EC the use itself, not the financing of the institutions, should determinewhether the criteria non-commercial is fulfilled (see above I. 6.).


The exceptions should generally apply to the right to reproduce the work and to theright to communicate the work to the public (only) for educational and scientific pur-poses. In some special cases it should be allowed to distribute the work, especially re-garding exceptions for quotations in research and educational compilations. Regard-ing the right to make the work publicly available the exceptions should ensure that itonly allows the use for a specific public, which means that the work may not be up-loaded on a public server without access-controlling mechanisms.


The copyrighted work should only be used if and insofar as the use is necessary forthe respective purpose. Of course ÒnecessaryÓ could be replaced by any other word-ings like ÒjustifiedÓ or even by a concept of ÒfairnessÓ as long as permissible use underthe exception is fair balanced with the authorÕs rights. Any broader approach than thecurrent German law would allow the courts to rule about the conditions regarding thesingle case with all its specific details.



For all exceptions, there should be no further procedures required and the exceptions shouldapply automatically. Another possibility would be implementing a rule which states that theparties (e.g. libraries and author) should make an effort to close a licensing agreement.

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29)29)


The determination or calculation of remuneration payments in regard to the uses permittedto libraries and archives should be as clear and foreseeable as possible. Ideally there wouldbe a list displaying the payable amount for every activity (and device). This is probably easiersaid than done, because authors and libraries (and storage/printing device producers andimporters) would have to agree on this. The remuneration should be equally distributed. Ifpossible, everyone who earns money in that reproduction process should be paying remu-neration to the authors. Those could be the device producers or importers. The question iflibraries should also pay remunerations is highly disputed, considering that if they are buyingprinting devices etc. they already pay a part of the remuneration which the producer of thedevice has transferred to the buyers through the purchase price. But considering that sucha device in a library is definitely used more often to make copies of other works than a de-vice owned by a natural person who (statistically) copies more own works, libraries are alsoobliged to remunerate the author therefor. So libraries/archives, device producers and im-porters should make such payments. And because it would be impossible for both sides tolet every single author collect his remuneration himself from various institutions, the practicaland most efficient way would be to engage collecting societies.The remuneration for use under the exceptions for educational and research institutionsshould be calculated on basis of the actual use whenever this is possible and does not leadto a bureaucratic overkill. If the institution or any other person who has to pay the remuner-ation has to put too much effort in the documentation and calculation of each single use,a more general basis would be preferable. The person who should be liable for making apayment of equitable remuneration should depend on the specific kind of use. The above-described system of remuneration paid by manufacturers and operators for reproductionsunder the private and personal copy exception (¤ 53 GCA) should not be changed. All pay-ment payable for the uses of (and in) educational and research institutions should be madeto the collecting society.


The use of orphan works by libraries and archives as well as educational and research insti-tutions should be guided by the same provisions which apply for other works. However, onespecial treatment is necessary to clearly identify a work as orphaned.A diligent search should be carried out before the work is declared as orphaned. The burdenof this search should be on the institution using the work. However, it may be in the pub-lic interest if the costs of these searches are refunded. Otherwise, educational and researchinstitutions as well as Libraries and archives may refrain from the reproduction or makingavailable to the public of orphaned works for cost reason which would be a loss for the gen-eral public.


Libraries and archives:In view of German law that provides two possible modi operandi, it is rather difficult tochoose which possibility is the better option. As shown above, there is the option the Euro-pean legislator chose in Art. 5 (3) lit. n) Copyright Directive 2001/29/EC (resulting in thetransfer to German law in ¤ 52b GCA). Unless there is no actual contract between the libraryand the author of the work made available, the library can rely on the privilege. The otheroption -chosen by the German legislator in ¤ 53a GCA- only requires that the work is not

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30)30)

made available to the public in accessible manner and to reasonable conditions. The firstoption is easier to handle for the libraries. If there is an agreement (concerning digital use ofcopies), they are not allowed to rely on the exception. On the other hand, the library couldget forced or at least put under pressure (as described above II. 19) ) to buy a package ofworks with non-desired works in order to get the actually desired one. The latter option ismore difficult to handle for the libraries because they have to actually check the market foroffers, check those offers for reasonability and further actually would have to check if theone requesting a scanned copy is allowed to order it under the private copy exception. Theproblem with the checking for reasonable offers is that libraries always would have to fearthat they misjudged the offer and could infringe copyrights while thinking the offer was un-reasonable. Vice-versa, they could contract in actual unreasonable agreements to avoid thedanger of copyright infringement. Considering this, the first option seems more appropriate.Only an actual agreement should be able to override exceptions.Educational and research institutions:This first option seems also more appropriate for the exceptions for educational and researchinstitutions. But any measure of harmonization should state clearly whether the exceptionscould be capable of being overridden by contract. Right now, since the use should only beallowed if and insofar it is necessary for the educational and scientist purposes and the actu-al interpretation by the Federal Court is that this includes an override by offer, any exceptionwith a broader approach could be capable of being overridden already by such offer.


It does not seem necessary to reconcile such efforts with an exception or limitation providedby law. Rather, it is in the genuine interest of collecting societies and right-holders to establishsuch private organizations in order to provide sustainable licensing models, where individuallicensing is not feasible.Outside copyright law, however, it could be made more clear that collective licensing basedon a voluntary cooperation by individual right owners is no problem under antitrust rules, aslong as individual licensing is not feasible or at least not efficient. On the European level, stillno block exemption Regulation exists in the field of collective licensing, which could providefor more legal certainty.

SummarySummary

SummarySummaryIn German copyright law, all exceptions and limitations to copyright protection, which applyto libraries, archives, education and research institutions, are generally provided by statutoryprovisions. Case law interprets and clarifies the existing provisions.In principle, all relevant German provisions implement the EU Copyright Directive 2001/29/EC. As the national legislator had certain options in implementing the Directive, it did not,however, achieve full harmonization within the EU.In general, German law applies the Three-Step Test: limitations and exceptions to copyrightface limits, namely they are limited to certain special cases, should not conflict with the nor-mal exploitation of the work, and strike a balance of interests, which includes the interests ofthe author as holder of the property right. According to German case law, this may requireto pay an equitable remuneration to the author in case of limitations of copyright, e.g. in thefield of allowed use of newspaper articles.In detail:There are three exceptions relevant to libraries and archives. These are first the private copyexception (¤ 53 (2) sentence 1 no. 2 GCA [German Copyright Act, Urheberrechtsgesetz]),which permits archiving the libraryÕs stock to a certain extent, second the electronic reading

203

station exception (¤ 52b GCA, which implements Art. 5 (3) lit. n) Copyright Directive 2001/29/EC) and third the exception in favour of sending copies of magazine articles or parts ofworks on request (¤ 53a GCA, which implements Art. 5 (3) lit. a) Copyright Directive 2001/29/EC).As regards educational purposes, German law provides for an exception for the perfor-mance and display of a copyrighted work, ¤ 52 GCA, which mainly goes back to Art. 3,5 (3) lit. g) and lit. o) Copyright Directive 2001/29/EC. This provision has a general scopeand is not limited to educational purposes. Further, the German legislator has implementedArt. 5 (3) lit. a) Copyright Directive 2001/29/EC: ¤ 46 (1) GCA provides for an exception tothe right of reproduction, distribution and making works available to the public, and ¤ 47GCA allows reproducing works within so-called school broadcast which may only be usedfor teaching purposes. Further, ¤ 53 (3) GCA contains a specific exemption allowing certainprivate copies for the purpose of illustration for teaching in schools etc., and making copiesfor examination purposes. There is no exception that refers explicitly to making translationsfor educational purposes, however, in the light of ¤ 62 GCA, translations are allowed aslong as the use is generally allowed under an exception such as ¤¤ 46, 53 (3) GCA, i.e. totranslate a short story and incorporate it in a collection for instructional use, or to reproducea translated poem for a school class. ¤ 52a (1) no. 1 GCA provides for an exception to theright of making works available to the public: Under certain conditions, copies of a workmay be uploaded and made available in digital networks for illustration in teaching at cer-tain educational institutions.As regards research, ¤ 53 (2) sentence 1 no. 1 GCA allows to make single copies of a workor to have these made for one's own scientific use if and to the extent that such reproductionis necessary for the purpose and it does not serve a commercial purpose. Pursuant to ¤ 53(6) sentence 1 GCA these copies may neither be distributed nor communicated to the public.However, ¤ 51 GCA provides for an exception to reproduce, distribute and communicate tothe public a published work for the purpose of quotation. In particular, this shall be permis-sible where individual works are included in independent scientific work for the purpose ofexplaining the contents (¤ 51 sentence 2 no. 1 GCA). Generally speaking, researchers areallowed to use existing works within their own scientific work, and such scientific works mayeither be distributed or communicated to the public.

ZusammenfassungZusammenfassungNach deutschem Urheberrecht sind sŠmtliche Schranken des Urheberrechtsschutzes, die aufBibliotheken, Archive, Bildungs- und Forschungseinrichtungen Anwendung finden, in geset-zlichen Vorschriften enthalten. Die Rechtsprechung legt die geltenden Bestimmungen aus.Im Prinzip setzen die ma§geblichen deutschen Vorschriften die EU-Urheberrechtsrichtlinie2001/29/EC um. Da der nationale Gesetzgeber jedoch gewisse SpielrŠume bei der Um-setzung der Richtlinie hatte, hat die Urheberrechtsrichtlinie zu keiner vollstŠndigen Harmon-isierung innerhalb der EU gefŸhrt.GrundsŠtzlich wendet das deutsche Recht den Drei-Stufen-Test an. BeschrŠnkungen undAusnahmen in Bezug auf das Urheberrecht sind danach nur in bestimmten SonderfŠllenzulŠssig, sie dŸrfen die normale Verwertung des Werkes nicht beeintrŠchtigen und mŸsseneinen gerechten Ausgleich der Interessen erreichen. Dies umfasst auch die Interessen desUrhebers als Rechteinhaber. Nach deutscher Rechtsprechung kann dies die Zahlung einerangemessenen VergŸtung an den Urheber erfordern, wenn sein Urheberrecht z.B. durcheine zulŠssige Nutzung fŸr Zeitungsartikel beschrŠnkt wird.Im Einzelnen:Es gibt drei Schrankenregelungen, die fŸr Bibliotheken und Archive relevant sind. Dies sinderstens die Schranke fŸr VervielfŠltigungen zum eigenen Gebrauch (¤ 53 Abs. 2 Satz 1UrhG), welche es erlaubt, die BestŠnde einer Bibliothek in gewissem Ma§e zu archivieren,zweitens die Schranke in Bezug auf elektronische LeseplŠtze (¤ 52b UrhG, der Art. 5 Abs.3 lit. n der Urheberrechtsrichtlinie 2001/29/EG umsetzt) und drittens die Schranke fŸr Kopi-enversand auf Bestellung (¤ 53a UrhG, der Art. 5 Abs. 3 lit. a der Urheberrechtsrichtlinie2001/29/EG umsetzt).

204

In Bezug auf Bildungszwecke sieht das deutsche Recht eine Schranke fŸr die AuffŸhrung undWiedergabe von urheberrechtlich geschŸtzten Werken vor, ¤ 52 UrhG, die im Wesentlichenauf Art. 3, 5 Abs. 3 lit. g und lit. o der Urheberrechtsrichtlinie 2001/29/EG zurŸck geht.Diese Vorschrift hat einen allgemeinen Anwendungsbereich und ist nicht nur auf Bil-dungszwecke beschrŠnkt. Ferner hat der deutsche Gesetzgeber Art. 5 Abs. 3 lit. a der Urhe-berrechtsrichtlinie 2001/29/EG umgesetzt: ¤ 46 Abs. 1 UrhG sieht eine Schranke fŸr dieVervielfŠltigung, Verbreitung und šffentliche ZugŠnglichmachung von Werken in der …f-fentlichkeit vor, und ¤ 47 UrhG erlaubt die VervielfŠltigung von Werken innerhalb vonSchulfunksendungen, soweit diese fŸr Unterrichtszwecke verwendet werden. Ferner enthŠlt¤ 53 Abs. 3 UrhG eine spezielle Schranke, die bestimmte Kopien zur Veranschaulichungdes Unterrichts in Schulen etc. sowie VervielfŠltigungen fŸr PrŸfungszwecke zulŠsst. Es gibtkeine Schrankenregelung, die ausdrŸcklich fŸr die Herstellung von †bersetzungen fŸr Bil-dungszwecke gilt. Allerdings ergibt sich aus ¤ 62 UrhG, dass †bersetzungen erlaubt sind,solange der Benutzungszweck zulŠssig ist. Dies kann sich z.B. aus ¤¤ 46, 53 Abs. 3 UrhGergeben. Beispiel wŠre die †bersetzung einer Kurzgeschichte und ihre Aufnahme in einerSammlung fŸr den Unterrichtsgebrauch oder die VervielfŠltigung eines Ÿbersetzten Gedicht-es fŸr eine Schulklasse. ¤ 52a Abs. 1 Nr. 1 UrhG enthŠlt au§erdem eine Schranke fŸr diešffentliche ZugŠnglichmachung: Unter bestimmten Voraussetzungen dŸrfen VervielfŠltigun-gen eines Werkes hochgeladen und in digitalen Netzwerken zur Veranschaulichung des Un-terrichts bestimmter Bildungseinrichtungen veršffentlicht werden.In Bezug auf die Forschung enthŠlt ¤ 53 Abs. 2 UrhG eine Erlaubnis der Herstellungvon einzelnen VervielfŠltigungsstŸcken eines Werkes zum eigenen wissenschaftlichen Ge-brauch, wenn und soweit die VervielfŠltigung zu diesem Zweck geboten ist und sie keinengewerblichen Zwecken dient. GemŠ§ ¤ 53 Abs. 6 Satz 1 UrhG dŸrfen die VervielfŠlti-gungsstŸcke weder verbreitet noch zu šffentlichen Wiedergaben benutzt werden. ¤ 51 UrhGerlaubt allerdings die VervielfŠltigung, Verbreitung und šffentliche Wiedergabe eines veršf-fentlichten Werkes zum Zweck des Zitats. Insbesondere ist es zulŠssig, einzelne Werke in einselbstŠndiges wissenschaftliches Werk zu ErlŠuterung des Inhalts aufzunehmen (¤ 51 Satz2 Nr. 1 UrhG). Generell kšnnen Wissenschaftler Werke nach Veršffentlichung im Rahmenihrer eigenen wissenschaftlichen Werke nutzen und diese wissenschaftlichen Werke dŸrfenauch verbreitet oder šffentlich wiedergegeben werden.


205

I.)I.)

1)1)

a)

b)

c)

d)

GreeceGreece


in the name of the Greece Groupby Helen PAPACONSTANTINOU and Eleni KOKKINI


QuestionsQuestions




yes


yes

Art. 22 of Law No. 2121/1993 allows the reproduction of one additional copy Ð furtherto the original one- for preservation or replacement reasons, under the condition thatacquiring such copy from the market quickly and with reasonable conditions is impos-sible.


yes

Art. 22 of Law No. 2121/1993 allows the reproduction of one additional copy Ð furtherto the original one- for the purpose of interlibrary lending, under the condition thatacquiring such copy from the market quickly and with reasonable conditions is impos-sible.


no

Reproduction or distribution by a library or archive for the purpose of providing copiesto users of libraries or archives is not permissible under Greek law. Library or archiveusers may only make themselves copies of parts of protected works under the excep-tion of the reproduction for private use that is foreseen in Article 18 of Law No. 2121/1993.


no

Greek law does not foresee any further permitted activities for libraries and archives.The exceptions and limitations foreseen in law are interpreted restrictively.

206

2)2)

3)3)

4)4)

5)5)

a)

b)

c)


The exceptions and limitations are applied to all non-profit libraries and archives. There isno distinction between public and private libraries and archives under Greek law.


Greek law only allows the creation of one additional copy further to the original one. Accord-ing to the prevailing opinion, it is possible for libraries and archives to create a digitalizedcopy for reasons of preservation or interlibrary lending, as Greek law does not define theterm ÒreproductionÓ.


Only lawfully created works and published works may be used by libraries and archives un-der the conditions explained above. In additions, orphan works may be also used (in theform of reproduction and making available to the public) by libraries and archives after theincorporation of Directive 2012/28/EU into Greek law (Art. 27B of law No. 2121/1993).


yes


no

Greek law does not allow the performance or display for educational purposes, as theGreek legislator has not made use of this possibility provided by the Bern Conventionunder Article 10 par. 2. Article 27 of law No. 2121/1993 on copyright also allows theuse of copyright works in celebrations of school and education institutes, if the publiccomprises of students and/or parents.


yes

Greek law allows the reproduction and distribution for educational or exams purposesin education institutions, provided that the reproduction a) is justified by the education/exam purpose, b) is fair and c) does not place obstacles to the normal exploitation ofthe work. The reproduction must refer to the source and the name of the author andthe publisher. The reproduction of parts of literary works only (not an entire book) isallowed under Greek law.


no

207

d)

e)

f)

6)6)

7)7)

Making translations (without having obtained a license with respect to a copyrightedwork) is not allowed under Greek law.


no

There is no reference on this possibility in the exceptions introduced by Greek law andthe exceptions and limitations at issue are interpreted restrictively. According to theprevailing opinion in theory and the courts, making available in digital networks foreducational purposes is not permitted under Greek law, as it is not mentioned in theexceptions of the protection, and it further infringes the authorÕs exclusive right to com-municate the work to the public.


no

Greek law does not explicitly refer to an exception of copyright for the reproductionand/or distribution for research purposes. However, according to the prevailing opin-ion in theory and practice, at least the reproduction (not necessarily the distribution)for research purposes is allowed as a permitted form of private use under Article 18 oflaw No. 2121/1993 on copyright. However, the reproduction should not be made bycommercial entities and organizations and it should not be made within the scope of aprofessional activity, even of a natural person.


no

No further activities are allowed to education and research institutions.


The exceptions and limitations at issue apply to educational institutions in general (withoutdistinguishing between public and private institutions, or between profit and non-profit insti-tutions).


There is no explicit limit as per the number of copies allowed, but the reproduction must bejustified by the education/exam purpose, be fair and not place obstacles to the normal ex-ploitation of the work. In addition, the reproduction must refer to the source and the nameof the author and the publisher. In view of the above, the use must be restricted only to theportion of the work that is necessary for the educational purpose.

208

8)8)

9)9)

10)10)

11)11)

12)12)

13)13)


Only lawfully created works and published works may be used by education institutes underthe conditions explained above. In addition, orphan works may be also used (in the form ofreproduction and making available to the public) by libraries and archives after the incorpo-ration of Directive 2012/28/EU into Greek law (Art. 27B of law No. 2121/1993).



The exceptions provided for libraries, archives and education institutes and allow the repro-duction of a work without the license of its author are foreseen in Articles 21 and 22 of lawNo. 2121/1993 on copyright. In addition, Article 20 of law No. 2121/1993 foresees ex-plicitly the use of a work in schoolbooks that are used in the primary and secondary educa-tion (not in Universities). Further exceptions mentioned above, such as the reproductions ofcopies by library users and the reproduction for research purposes is recognized by courtsand the theory and practice as a result of the interpretation of Article 18 of law 2121/1993on private use.


Greek law has adopted the three-step test in Article 28C of Law No. 2121 after the imple-mentation of Article 5 par. 5 of the Directive 2001/29/EC.


The exceptions discussed above are permitted automatically, namely without seeking a com-pulsory license or other procedure.


No remuneration is payable for use under the exceptions discussed above for libraries,archives and education institutes.


The treatment of orphan works is foreseen explicitly and separately in Article 27A of law No.2121/1993, that has implemented the Directive 2012/29/EU by law No. 4212/2013. Theprovisions at issue allow the use of orphan works by libraries, archives, education institu-tions, museums etc. The uses allowed are broader than the use of reproduction allowed bythe general provisions about libraries, archives and education institutes, as they also includemaking the orphan works available to the public.

209

14)14)

15)15)

II.)II.)

16)16)

17)17)

18)18)


There is no explicit reference of this possibility in law No. 2121/1993. Both opinions havebeen supported. We believe that the exceptions discussed cannot be overridden by contract,as their purposes refer to the public interest.


no

There have been some internal discussions within collecting societies to address further (cur-rently not allowed) uses (such as the distribution of course packs, within online courses etc.)to libraries and educational institutions. However, there has not been any known initiative yetfor the implementation of such thoughts.



yes

Definitely. There should be exceptions and limitations to copyright protection for libraries andarchives due to the importance of the usersÕ access to this knowledge. The exceptions shouldinclude the right of reproduction for replacement and interlibrary lending purposes, and thedigitalization of the work for reasons of making it available to the public within the libraryÕsestablishment. In addition, an exception regarding the reproduction and distribution of partof works Ð under certain conditions and for research purposes- might be thinkable.


yes

Definitely. There should be exceptions and limitations to copyright protection for educationand research institutions. The exceptions should concern the right of reproduction and distri-bution, as well as the digitalization of the work for the purpose of making it available to thestudents and researchers within the educational or research institutions, under the conditionsand principles of necessity and proportionality. The use in research institutions should notbe made within the scope of a commercial or professional activity.


yes

It is indeed a useful test, because it is a fair and efficient mechanism of checking the correct-ness of the exceptions and limitations, regulating them and being flexible in case of futureand still unknown uses of the work.

210

19)19)

20)20)

21)21)

III.)III.)

22)22)

23)23)

24)24)

a)

b)


The exceptions discussed have been placed in order to safeguard the access to basic infor-mation and educational material for all users, and especially students, as well as the viabilityof libraries, archives and educational institutes. For this reason we do not deem it appropri-ate that the exceptions discussed be able to be overridden by contract.


There should be no remuneration payable for the activities of reproduction for replacementand interlibrary lending purposes, the digitalization of the work for reasons of making itavailable to the public within the libraryÕs establishment, or to the students and researcherswithin the educational or research institutions. A remuneration should be foreseen for furtheruses of the copyrighted works.


A clearer scope of protection and a clearer view on the exceptions and limitation should begiven, especially with respect to the digitalization of the works and their use in the online en-vironment (for example with regard to online education schemes or interlibrary lending anduse of digital copies of copyright-protected works).



yes

In general, harmonization in this area is desirable due to the much desired effective cooper-ation between libraries and educational institutions. A common regime would provide boththe library and educational institutions and users with more safety as to permitted uses ofcopyrighted works.



yes

Not applicable (the reply in questions 16 and 1y was yes!)



The exceptions should apply to non-profit libraries and archives.


211

c)

25)25)

a)

b)

c)

26)26)

27)27)

28)28)

The exceptions should apply to the right of reproduction for replacement and inter-library lending purposes, and the digitalization of the work for reasons of making itavailable to the public within the libraryÕs establishment. In addition, an exception re-garding the reproduction and distribution of part of works Ð under certain conditionsand for research purposes- might be thinkable.


The three-step-test should apply in these exceptions and limitations.



The exceptions should apply to both public and private educational institutions and tonon-profit research institutions.


The exceptions should apply to the right of reproduction and distribution, as well as tothe digitalization of the work for the purpose of making it available to the students andresearchers within the educational or research institutions.


The conditions and principles of necessity and proportionality, as well as the three-steps-test should apply. The use in research institutions should not be made within thescope of a commercial or professional activity.



The uses described above should be permitted automatically, without any further action orprocedure, that might jeopardize the application of the exceptions. A remuneration shouldbe considered for further uses.


The remuneration to be considered for further (permitted) uses should be determined ac-cording to the use concerned. The libraries and archives and the educational and researchinstitutions should be liable to make such payment to collecting societies.


We believe that the current statute regarding orphan works is sufficient.

212

29)29)

30)30)


We believe that the exceptions should be capable of being overridden by contract only in theactivities that are described above as Òfurther usesÓ, such as the use in online educationalcourses. The exceptions concerning the reproduction for reasons of replacement and interli-brary lending and the reproduction and distribution, as well as the digitalization of the workfor the purpose of making it available to the students and researchers within the educationalor research institutions, should not be capable of being overridden by contract.


Private organizations, including collecting societies, should cooperate closely with the legis-lators, both on the national and the European/international level, in order to promote theirefforts within the current legislative initiatives.

SummarySummary

There should be exceptions and limitations to copyright protection for libraries and archives.These should include the right of reproduction for replacement and interlibrary lending pur-poses, and the digitalization of the work for reasons of making it available to the publicwithin the libraryÕs establishment. An exception regarding the reproduction and distributionof part of works Ð under certain conditions and for research purposes- might be thinkable.There should be exceptions and limitations to copyright protection for education and re-search institutions, including reproduction and distribution, as well as the digitalization of thework for the purpose of making it available to the students and researchers within the edu-cational or research institutions. The three-step-test should apply in all cases.The above exceptions should not be able to be overridden by contract and no remunerationshould be payable for the above activities. A remuneration should be foreseen for furtheruses of the copyrighted works.A clearer scope of protection and a clearer view on the exceptions and limitation should begiven, especially with respect to the digitalization of the works and their use in the onlineenvironment.In general, harmonization in this area is desirable. The uses that are included in the excep-tions should be permitted automatically, without any further action or procedure. In caseswhere a remuneration is considered, its height should be determined according to the useconcerned. The libraries and archives and the educational and research institutions shouldbe liable to make such payment to collecting societies.


Not applicable.

213

I.)I.)

1)1)

a)

b)

c)

d)

HungaryHungary


in the name of the Hungary Groupby Gabor FALUDI, Zsofia LENDVAI and Gusztav BACHER


QuestionsQuestions




yes


yes

¤ 35 (4) a) and b) of the Copyright Act (Act 76 of 1999, as amended, hereafter: CA).Please see the CA at:http://www.sztnh.gov.hu/hu/English/jogforras/hungarian_copyright_act.pdfWe will use below the abbreviation LAMS in relation to beneficiary institutions. LAMSstands for libraries, archives, museums and schools.


yes

¤ 35 (4) b) CA


yes

¤ 35 (4) a) CA reproduction by all LAMS institution¤ 35 (4) b) CA reproduction for library use¤ 38 (5) CA study of digital copies by the user of the LAMS institution on the spot¤ 40 CA free public lending in nationwide professional libraries and¤ 23/A CA free public lending in other libraries in consideration of a fair remunerationto be paid by the state budget to the responsible collective management organisationthat has to distribute such remuneration on the basis of selected lending data


yes

If we properly evaluate the exception of the studying of digital copies in beneficiary in-stitutions on the spot and the fact that the beneficiaries of this exception may set upcross-border connections via dedicated networks to provide access to such copies, this

214

2)2)

3)3)

4)4)

5)5)

a)

exception can be regarded as a free display = public performance + a" free makingavailableÓ (= communication to the public) of the copies made available to the visitorsof the beneficiary institutions.


The exceptions existing for the benefit of libraries are full LAMS exceptions save for the publiclending of tangible copies provided for in ¤ 23¤A and ¤40 of CA that exists for the benefit oflibraries.


¥ Schools (primary, secondary, high schools on condition they are afforded accreditation)enjoy an additional exception under ¤ 35 (5) CA, namely that they may copy specificparts of a work published as a book as well as newspaper and periodical articles forpurposes of school education in a number corresponding to the number of students ina class, or for purposes of exams in public and higher education in a number necessaryfor the said purpose.

¥ LAMS institutions may copy minor parts of works published or of newspapers or periodi-cal articles for internal purposes of the entity under ¤ 35 (4) c)

¥ the copying is allowed by the provisions of a separate act in exceptional cases and underspecified conditions.


All copies should only be made from lawfully acquired copies. It follows from the three steptest (please see below) and the mandatory narrow interpretation of exceptions that are gen-eral clauses of the Chapter of CA on exceptions and limitations (¤ 33 (2) and (3).All exceptions are made subject to the condition that they are not intended for earning or

increasing income even in an indirect way.In addition the on the spot free use of works by visitors of LAMS institutions can only be ex-ercised with regard to copies of works in the collection of the LAMS institution on conditionthat there is no agreement to exclude this exception. It is an unclear provision: one may notknow whether such agreement should be concluded by and between the rightholder and theuser (publisher, content provider) or the rightholder and the LAMS institution or the publisher(other user) and the LAMS institution.Moreover this exception can only be used in accordance with a detailed government regu-lation (117/2004. (IV. 28.) Korm. rendelet) that provides for the responsibility of the LAMSinstitutions to exclude any use that would go beyond the exception (LAMS institutions areobliged to apply secure technology measure to prevent further reproduction, distribution etc.)


yes


215

b)

c)

d)

e)

f)

6)6)

yes

¤ 34 (2)-(4) CA


yes

¤ 35 (5) CA


yes

¤ 34 (4) CA: in schools for educational purposes, the exception does not apply for re-search purposes


no

-


yes

¤ 34 (2, (3) CA


no

-


As far as educational institutions are concerned, the exceptions shall serve the purposes ofschool education as it is implemented in accordance with the requirements of education andwith the curricula applied for kindergarten, primary school, secondary school, vocationaltraining and technical school education and the primary education of arts, as well as forhigher education falling under the scope of the Act on Higher Education. In a nutshell: ed-ucational institutions shall be accredited and the exception shall be used in accordance withthe approved curricula. (¤ 33 (4) CA)There no limitations whatsoever concerning research institutions. The reason is that the ex-ception exists for the benefit of scientific research (the activity) and not for the benefit of re-search institution.

216

7)7)

8)8)

9)9)

10)10)

11)11)

12)12)


As far as the scope of activities is concerned, please see the answer to Q 7. As to the numberof copies and other restrictions are concerned, the reproduction may be exercised to the ex-tent justified by the purpose and on the condition that the borrowing work is not used forcommercial purposes. Borrowing shall mean the use of a work in another work to an extentthat goes beyond quotation. (¤ 34 (3) CA). the number of copies may not exceed the numberof pupils/students who are taught by using the work. (¤35 (5) CA).The person using the exception (student/teacher) is not restricted.


Please see the answer to Q 4.



Yes, there are statutory provisions to acknowledge such exceptions. Please see the answersto Q 5-7.


Yes, this is a general, introductory clause applying to all exceptions enshrined in ¤ 33 (2) CA,supplemented with the mandatory narrow interpretation of exceptions in ¤ 33 (3) CA.


The free uses (exceptions) dealt with above are permitted automatically.


Only public lending in libraries other than nationwide professional libraries (listed in a sepa-rate act on libraries) is made subject to a remuneration under ¤ 23/A CA. The remunerationis set by the responsible collective management organisation of the interested stakeholders(literary authors and musical authors of sheet music) in a tariff announcement within the bud-getary limit set annually by the annual budget act. The remuneration is part of the budget ofthe ministry responsible for culture.

217

13)13)

14)14)

15)15)

II.)II.)

16)16)

17)17)

18)18)


Yes, on the one hand the entire Orphan works Directive of the EU (2012/28/EU) is trulytransposed into a separate Chapter of the CA (¤ 41/A, ¤41/F-41/K CA).On the other hand for profit and not for profit non-exclusive domestic uses of all orphanworks and subject-matters protected by copyright for 5 years can be licensed via a compul-sory license granted by the Hungarian Intellectual Property Office pursuant to ¤ 41/A -¤ 41/E of the CA.


No. Such a contract may not have a legal effect, namely it is null and void, since it infringesupon the legal provisions on the statutory exemptions.


no

We are not aware of such efforts.



yes

All mandatory exceptions in accordance with the international copyright treaties and the EUcopyright law exist in our legal system.


yes

All mandatory exceptions in accordance with the international copyright treaties and the EUcopyright law exist in our legal system.


yes

Please see our answer to Q 4 and 10.We are of the view that the three step test as it is interpreted by the WTO; please seehttps://www.wto.org/english/tratop_e/dispu_e/cases_e/ds160_e.htm: European Communi-ties v U.S.A.and the European Court of Justice (e.g. C-435/12 - ACI Adam and Others, please see:http://curia.europa.eu/juris/document/docu-ment.jsf?text=&docid=150786&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=292370)serve as a good harmonizing starting point to interpret exceptions as uniform, as possible.

218

19)19)

20)20)

21)21)

III.)III.)

22)22)


In no event. An exception if used in accordance with the three step test is a lawful right of thebeneficiary to be relied on, and all exceptions are devised to mirror various public interestsbalancing the rightholdersÕ and the beneficiariesÕ (usersÕ) aspects and the generals interestsof society.Exceptions if devised this way and used within their limits should¥ precede the private patrimonial interests of rightholders, but¥ never should not precede the moral right of authors that is deeply rooted in the protection

of human dignity of the creative people.


Remuneration should be payable for acts that might seriously intervene with the profit mak-ing exploitation ÒrightÓ of the right holder. The public lending (including the ÒlendingÓ ofdigital copies) in libraries and the on the spot display of works if it will be broadened todistant access are such exceptions. In other LAMS exception cases the remuneration is notjustified.


It would be necessary¥ to broaden the educational exception of reproduction and distribution with a tethered

making available that is essential for all forms of distant learning and distant study oftextbooks and other materials, in conjunction with a fair remuneration right to be exer-cised via mandatory collective management,

¥ to broaden the exception of on the spot study in LAMS institution with a tethered makingavailable in conjunction with a fair remunerationright to be exercised via mandatory col-lective management.



yes

It would be desirable, since the economic rights are harmonized in Europe. The exceptionsare the Òother side of the coinÓ. It is logical, that further harmonisation would be desirable.We are however of the view that the two differing approaches of exceptions in the variouscopyright legal systems (general clause of fair use/fair dealing vs. single cases of exceptions)are invincible obstacles of further harmonization. Therefore we do not go into details of afurther harmonization, since we do not think that it is realistic.We have made the proposals to improve the system of exceptions in the answer to Q 21.


219

23)23)

24)24)

a)

b)

c)

25)25)

a)

b)

c)

26)26)

27)27)




all non profit LAMS institutions


to education in accordance with the government accreditation of educational institu-tionsall ordinary library activities (public lending inter library lending),all museumsÕ and archivesÕ activities that belong to the preservation of cultural heritage


If it does not generate income directly or indirectly



Please see our answer to Q 24.







The exceptions should operate automatically. Please see our answer to Q 11.


The remunerations have to be set and collected and distributed on the basis of samples takenby the responsible collective management organization. The tariffs should be subject to ei-ther government control or special court review (let alone the competition law review). Theremuneration right should be made subject to mandatory collective management to providefull legal warranty (indemnification) for the beneficiary institutions. The remunerations should

220

28)28)

29)29)

30)30)

be paid either by the institutions, or Ð it would be the appropriate solution Ð by the entities(agencies) that operate/maintain the institutions on the basis of global agreements conclud-ed with the collective management organizations.


The treatment provided for in the EU Directive on orphan works.


Never.


Such efforts can not be reconciled with a statutory exception.

SummarySummary

In Hungary all exceptions for the benefit of LAMS (libraries, archives, museums schools) ex-ceptions that are rooted in the copyright international instruments and in the EU acquis areincluded in the Copyright Act. All categories of free uses can only be exercised in conformitywith the three step test that is enshrined as an introductory, general clause of the chapter ofthe Copyright Act on exceptions and limitations. The LAMS exceptions should be improved ina harmonized way by broadening.


221

I.)I.)

1)1)

a)

b)

c)

d)

IndiaIndia


in the name of the India Groupby Manoj MENDA


QuestionsQuestions




yes


yes


yes


yes


yes

Section 52 subsection (1) clauses (aa), (d), (e), (f), (h), (i), (k), (m), (n), (o), (p) and (zb)deal with various aspects of reproduction and/or distribution for the purpose of preser-vation or replacement, interlibrary lending and users of libraries or archives as listedhereunder:_(aa) the making of copies or adaptation of a computer programme by the lawful pos-sessor of a copy of such computer programme, from such copy-

(i) in order to utilise the computer programme for the purposes for which it was sup-plied; or(ii) to make back-up copies purely as a temporary protection against loss, destruction

or damage in order only to utilise the computer programme for the purpose for whichit was supplied;"(d) the reproduction of any work for the purpose of a judicial proceeding or for thepurpose of a report of a judicial proceeding;(e) the reproduction or publication of any work prepared by the Secretariat of a Leg-islature or, where the Legislature consists of two Houses, by the Secretariat of eitherHouse of the Legislature, exclusively for the use of the members of that Legislature;";(f) the reproduction of any work in a certified copy made or supplied in accordancewith any law for the time being in force;

222

(h) the publication in a collection, mainly composed of non-copyright matter, bona fideintended for instructional use, and so described in the title and in any advertisementissued by or on behalf of the publisher, of short passages from published literary ordramatic works, not themselves published for such use in which copyright subsists: Pro-vided that not more than two such passages from works by the same author are pub-lished by the same publisher during any period of five years.

Explanation.-In the case of a work of joint authorship, references in this clause topassages from works shall include references to passages from works by any one ormore of the authors of those passages or by any one or more of those authors in col-laboration with any other person;(i) the reproduction of any work-

(i) by a teacher or a pupil in the course of instruction; or(ii) as part of the questions to be answered in an examination; or (iii) in answers to

such questions;(k) the causing of a recording to be heard in public by utilising it,-

(i) in an enclosed room or hall, meant for the common use of residents in any resi-dential premises (not being a hotel or similar commercial establishment) as part of theamenities provided exclusively or mainly for residents therein; or

(ii) as part of activities of a club or similar organisation which is not established orconducted for profit;(m) the reproduction in a newspaper, magazine or other periodical of an article oncurrent economic, political, social or religious topics, unless the author of such articlehas expressly reserved to himself the right of such reproduction;(n) the storing of a work in any medium by electronic means by a non-commercialpublic library, for preservation if the library already possesses a non-digital copy of thework;](o) the making of not more than three copies of a book (including a pamphlet, sheetof music, map, chart or plan) by or under the direction of the person in charge of a[non-commercial public library] for the use of the library if such books is not availablefor sale in India;(p) the reproduction, for the purpose of research or private study or with a view to pub-lication, of an unpublished literary, dramatic or musical work kept in a library, museumor other institution to which the public has access :

Provided that where the identity of the author of any such work or, in the case of awork of joint authorship, of any of the authors is known to the library, museum or oth-er institution, as the case may be, the provisions of this clause shall apply only if suchreproduction is made at a time more than [sixty years] from the date of the death ofthe author or, in the case of a work of joint authorship, from the death of the authorwhose identity is known or, if the identity of more authors than one is known from thedeath of such of those authors who dies last;(zb) the adaptation, reproduction, issue of copies or communication to the public ofany work in any accessible format, by-(i) any person to facilitate persons with disability to access to works including sharingwith any person with disability of such accessible format for private or personal use,educational purpose or research; or(ii) any organisation working for the benefit of the persons with disabilities in case thenormal format prevents the enjoyment of such works by such persons:

Provided that the copies of the works in such accessible format are made availableto the persons with disabilities on a non-profit basis - but to recover only the cost ofproduction:Provided further that the organisation shall ensure that the copies of works in such ac-cessible format are used only by persons with disabilities and takes reasonable steps toprevent its entry into ordinary channels of business

223

2)2) DoDo anyany ofof thesethese exceptionsexceptions oror limitationslimitations applyapply toto libraries,libraries, archivesarchives oror otherother organiza-organiza-tionstions (e.g.(e.g. museums)museums) generally,generally, oror onlyonly toto certaincertain organizationsorganizations (e.g.(e.g. publicpublic and/and/oror com-com-mercial libraries and archives)? If so, which organizations?mercial libraries and archives)? If so, which organizations?

Yes, The exceptions to The Copyright Act, 1957 under Section 52 as amended, apply to theuse of copyrighted works are as listed hereunder alongwith the types of relevant organisa-tion:-

Sec. 52 Provision Organisation

d.the reproduction of any work for the purpose of a judicialproceeding;

Judiciary and the Courts

e.the reproduction or publication of any work prepared bythe Secretariat of a Legislature exclusively for the use ofthe members of that Legislature;

Legislature and Executive

f.the reproduction of any work in a certified copy made orsupplied in accordance with any law;

Judicial , Quasi Ð Judi-cial & Administrativebodies

g.the reading or recitation in public of reasonable extractsfrom a published literacy or dramatic work;

Public Reading / Recita-tion

h.

the publication in a collection, mainly composed of non-copyright matter, bona fide intended for instructional use,ÉÉÉÉ..Provided that not more than two such passagesfrom works by the same author are published by the samepublisher during any period of five years.

Research, Instruction, Ed-ucational Institutions

i.the reproduction of any workÉÉ..in the course of instruc-tion; or as part of the questions to be answered in an ex-amination or in answers to such questions;


j.

the performance, in the course of the activities of an edu-cational institution, of a literary, dramatic or musical workby the staff and students of the institutionÉÉÉÉÉ if theaudience is limited to such staff and students, the parentsand guardians of the students and persons connected withthe activities of the institution;


k.the causing of a recording to be heard in public by utilis-ing it, ÉÉÉÉÉÉÉÉÉÉÉ.which is not establishedor conducted for profit;

Not for Profit events

l.the performance of a literary, dramatic or musical work byan amateur club or societyÉÉÉÉÉÉÉÉÉÉ..or forthe benefit of a religious institution;

Not for Profit organisa-tion/ religious organisa-tion

m.

the reproduction in a newspaper, magazine or other peri-odical of an article on current economic, political, socialor religious topics, unless the author of such article has ex-pressly reserved to himself the right of such reproduction;

Print/ Electronic/ MassMedia, Internet,

n.the storing of a work in any medium by electronic meansby a non-commercial public library, for preservation if thelibrary already possesses a non-digital copy of the work;

Libraries

o.the making of not more than three copies of a bookÉÉÉÉÉÉÉ..for the use of the library if such books isnot available for sale in India;

Libraries

p.

the reproduction, for the purpose of research or privatestudy or with a view to publication, of an unpublished lit-erary, dramatic or musical work kept in a library, museumor other institution to which the public has access,

Libraries, Museums, Re-search Institutions

224

3)3)

q.the reproduction or publication of any matter which hasbeen published in any Official Gazette except an Act of aLegislature .É or a translation thereof ,

Book Publishers

za.

the performance of a literary, dramatic or musical work orthe communication to the public of such work or of asound recording in the course of any bonafide religiousceremony or an official ceremony held by the CentralGovernment or the State Government or any local author-ity.

Government Institutions,Local Authorities

zb.

the adaptation, reproduction, issue of copies or communi-cation to the public of any work in any accessible format,by any person to facilitate persons with disability to accessto works including sharing with any person with disabilityof such accessible format for private or personal use, edu-cational purpose or research;

People with special dis-abilities


Yes. The following provisions being clauses (c), (g), (j), (i), (n), (zb), to para (ii) of sub-section(1) of Section 52 of the Copyright Act, 1957 ( Amendment of 2012) provides conditions, ex-ceptions and scope of permitted activities whilst dealing with copyright, i.e. These acts shallnot constitute an infringement of copyright, namely::-

(c) transient or incidental storage of a work or performance for the purpose of providingelectronic links, access or integration, where such links, access or integration has not beenexpressly prohibited by the right holder, unless the person responsible is aware or has rea-sonable grounds for believing that such storage is of an infringing copy: Provided that if theperson responsible for the storage of the copy has received a written complaint from theowner of copyright in the work, complaining that such transient or incidental storage is aninfringement, such person responsible for the storage shall refrain from facilitating such ac-cess for a period of twenty-one days or till he receives an order from the competent courtrefraining from facilitating access and in case no such order is received before the expiry ofsuch period of twenty-one days, he may continue to provide the facility of such access;

(g) the publication in a collection, mainly composed of non-copyright matter, bona fide in-tended for the use of educational institutions, and so described in the title and in any adver-tisement issued by or on behalf of the publisher, of short passages from published literaryor dramatic works, not themselves published for the use of educational institutions, in whichcopyright subsists :Provided that not more than two such passages from works by the sameauthor are published by the same publisher during any period of five years.

(j) the performance, in the course of the activities of an educational institution, of a literary,dramatic or musical work by the staff and students of the institution, or of a cinematographfilm or a sound recording if the audience is limited to such staff and students, the parentsand guardians of the students and persons connected with the activities of the institution orthe communication to such an audience of a cinematograph film or sound recording;

(i) the reproduction of any work, (i) by a teacher or a pupil in the course of instruction; or (ii)as part of the questions to be answered in an examination; or (iii) in answers to such ques-tions;

(n) the storing of a work in any medium by electronic means by a non-commercial publiclibrary, for preservation if the library already possesses a non-digital copy of the work;

225

4)4)

5)5)

a)

b)

c)

(zb) the adaptation, reproduction, issue of copies or communication to the public of any workin any accessible format, by- (i) any person to facilitate persons with disability to access toworks including sharing with any person with disability of such accessible format for privateor personal use, educational purpose or research; or (ii) any organisation working for thebenefit of the persons with disabilities in case the normal format prevents the enjoyment ofsuch works by such persons: Provided that the copies of the works in such accessible formatare made available to the persons with disabilities on a non-profit basis but to recover onlythe cost of production: Provided further that the organisation shall ensure that the copies ofworks in such accessible format are used only by persons with disabilities and takes reason-able steps to prevent its entry into ordinary-channels of business.


No. There are no conditions for the use of copyrighted work that may be used to lawfullycreate copies, except in the case of computer programmes where the Copyright Act providesthat the copies or adaptation must be made by the lawful possessor of a copy of such com-puter programme.Section 52 (1) (aa) : the making of copies or adaptation of a computer programme by thelawful possessor of a copy of such computer programme, from such copy-

(i) in order to utilise the computer programme for the purposes for which it was supplied;or

(ii) to make back-up copies purely as a temporary protection against loss, destruction ordamage in order only to utilise the computer programme for the purpose for which it wassupplied


yes


yes

Yes. The exceptions under Section 52 of the Copyright Act, 1957 and the subsequentamendments provides for details of exceptions or limitations to copyright protection.Section 52 (1) (j) provides that institutions providing any type of education may for thebenefit of students, parents, guardians and staff connected with the institution deal withliterary, dramatic or musical work


yes

For the purposes of reproduction of any work by a teacher or a pupil, for the purposeof answering in an examination or in the course of instructions.


yes

226

d)

e)

f)

6)6)

7)7)

The translation of any literary, dramatic or musical work or its adaptation in relation tosuch work is provided under section 52 (2) of the Copyright Act, 1957.


yes

Section 52 (1) (o) allows for a digital copy to be kept by non Ð commercial library, orfor preservation if the library has no non Ð digital copy or only limited number of nonÐ digital copies or if the book is not available for sale in India.


yes

Reproduction and / or Distribution for research purposes is provided for the works keptin libraries, museums, and other institutions to which the public has access, with thefurther object of making available to the disabled / differently abled population accessto works including for private or personal use and for the purpose of fair dealing withliterary, dramatic, musical or artistic work ( not being a computer programme)


yes

The case of unpublished literary, dramatic and musical works which may be used withrequisite procedures also forms part of the exceptions.


Yes. The exceptions listed out in the answers to Q.2 apply to non Ð commercial libraries or anon Ð profit educational institution. These exceptions also apply to regular educational insti-tutions if they fall within parameters laid out in the Copyright Act, 1957 under Section 52 asamended.


Yes. For the purposes of exception to copyright the conditions listed below as already elabo-rated hereunder as also in answers to Q.1 and Q.2 are the scope and activities that must befulfilled. All types of educational institutions may be covered by the exceptions and limitationsas long as they are providing some sort of educational programme / course.i. Copies may be stored in digital forms in non Ð commercial libraries where only non Ð

digital copies exists;ii. Copies may be used for facilitating persons with disability to access the works;iii. Copies may be used for non Ð profit purposes by a non Ð profit educational institution;iv. Reading / Recitation in public of reasonable extracts from a published literary or dramatic

work;

227

8)8)

9)9)

10)10)

11)11)

v. Not more than two passages from works by the same author are published by the samepublisher during any period of 5 years for bonafide instructional use;

vi. Copies may be made available in such accessible format to be made available to thepersons with disabilities on a non Ð profit basis but to recover only the cost of production

vii. Causing of a recording to be heard in public by utilising it in an enclosed room / hall(not being a hotel or similar commercial establishment) which is not established or con-ducted for profit.

viii. If the performance of a literary, dramatic or musical work by an amateur club/ society isgiven to a non- paying audience or for benefit of a religious institution;

ix. Not more than 3 copies of a book/ booklet / pamphlet / map/ music sheet/ chart/ planfor the use of the library if such book is not available in India.


No. as provided in the answer to Q.4, there are no conditions for the use of copyrightedwork that may be used to lawfully create copies, except in the case of computer programmeswhere the Copyright Act provides that the copies or adaptation must be made by the lawfulpossessor of a copy of such computer programme.Section 52 (1) (aa) : the making of copies or adaptation of a computer programme by thelawful possessor of a copy of such computer programme, from such copy-

(i) in order to utilise the computer programme for the purposes for which it was supplied;or

(ii) to make back-up copies purely as a temporary protection against loss, destruction ordamage in order only to utilise the computer programme for the purpose for which it wassupplied



Section 52 of the Copyright Act, 1957 (Amendment of 2012) is the statutory provision thatprovides conditions, exceptions and scope of permitted activities whilst dealing with copy-rights. Although there have been a few precedents in case Ð law that have been passed alongthe lines of the provisions of Section 52, the precedents are not of such nature that they havefurthered any interpretation or brought new light to this aspect.


No. The Indian Law does not adopt the three step test. Also there is no equivalent wording.


Yes. The Use under the exception or limitation under Section 52 of the Copyright Act, 1957(Amendment of 2012) is permitted automatically. There are no set procedures to be followedexcept in the case of compulsory licensing of copyright under Section 31 of the CopyrightAct, 1957 (Amendment of 2012).

228

12)12)

13)13)

14)14)

15)15)

II.)II.)

16)16)

17)17)


No. Payment is not required for use of copyright under the exceptions and / or limitationsexcept in the case of compulsory licensing.


Yes, for the purpose of using Orphan / Anonymous Works an Application needs to be madeto the Copyright Board for compulsory licensing of such work. Payment in terms of licensefee is payable to the Copyright Board or to the owner of such works.


Yes. The Copyright Law in India allows for exceptions or limitations to be overridden by con-tract only in the cases of compulsory licensing in Works which are withheld from Public.


yes

There are organisations such as the Indian Performing Rights Organization (IPRS), the IndianReprographic Rights Organisation (IRRO), the Phonographic Performance Limited (PPO), theSociety for Copyright Regulation of Indian Producers For Film and Television (SCRIPT) whichare registered copyright societies which address and consider use of copyright works.



yes

The object of exceptions and Limitations to the protection of Copyright is to aid the causeof education, academics, research and awareness with a special object of providing supportand education to the disabled / differently abled or disadvantaged members of society solibraries and archives should be covered under the exceptions and limitations to copyrightprotection.


no

The object of exceptions and limitations for the protection of Copyright is to aid the causeof education, academics, research and awareness with a special purpose of providing sup-port and education to the disabled / differently abled members of society. The object of pro-tection of Copyright is to give copyright creators their due both in terms of recognition androyalty. However, due to the blurred lines of the commercial nature of education, researchacademics and the apparent non Ð profit nature of some of these activities, large number ofcopyright works are exploited for little or nothing and the copyright creators lose their due.

229

18)18)

19)19)

20)20)

21)21)

III.)III.)

22)22)

23)23)

24)24)

a)

Therefore, it would be advantageous to consider the objective and the nature of the exploita-tion of the copyright work before granting any automatic exception with regard to use of acopyright work


no

India does not favour the three step test being applicable since it is likely to restrict the scopeof compulsory licensing in its developing economy. However, as a compromise formula withthe international community an open ended type of three step test is used where if the authoris compensated including by means of compulsory license.


Yes. The exception or limitation to copyright should be capable of being overridden by con-tract. The Copyright owner / author should have the freedom /option of choosing whetherhe wants to license the use of the work(s) for any specific exploitation and for any specificeducational / research/ academic use.


Yes. Some minimum rate of royalty / licence fee or pay per user should be payable for theactivities described in 16 and 17 above. This is to support creation of work(s).


The ambit of the current law as it exists in India is broad enough for exceptions and limita-tions for copyright. It may not be practical to further expand the scope of exceptions.



yes



no

It is not necessary for the negative reasoning of the answers to Q. 16 & Q.17 to be explicitlyset out in any international treaty/ convention unless it affects reciprocity in the areas of pro-tection of copyright.



230

b)

c)

25)25)

a)

b)

c)

26)26)

27)27)

28)28)


The answer to this question is already covered in Q. 16


The Constitution of India has made it obligatory for the State to provide education forits citizens The "right to education" is a fundamental right enshrined in Article 21. Theimportance of copyright law vis-a-vis the costs of learning materials therefore needs tobe understood in a proper perspective. The costs of acquiring learning material, booksand paid content directly effects the access the knowledge by way of increased costsof the education curriculum. This impact is especially important for the less privilegedpersons in India which constitute at least about 70% of IndiaÕs population. Thereforecopyright material for use in education must be available at an affordable cost andmust be covered under the exceptions and limitations.





The answer to Q. 17 is in the negative.



India has provisions that permit use under exceptions or limitations automatically without anyfurther action except in cases where compulsory licensing provisions have to be applied forbefore the Copyright Board.


There are already provisions under the Copyright Act, 1957 (Amendment of 2012) whichallow an aggrieved party/ person to approach the Copyright Board in case there is an illegaluse/ exploitation of the Copyright Works allegedly under the provisions of exceptions andlimitations of Copyright as provided in Section 52.


There could be a system of identifying or listing Orphan works. This system will ensure properdealing of the Orphan Works with respect to royalties that are required to be paid.

231

29)29)

30)30)


The Exception or Limitation should be capable of being overridden by contract on the pref-erence and / or desire of an Author and / or Owner of the Copyright.


Reconciliation can and should depend upon the kind of use of the copyright material underthe exception. If the use is for even a small profit and/or for any commercial purposes, suchuse should not be covered by way of an exception. Copyright works should be made acces-sible under the ambit of exceptions and limitations to copyright only for non Ð commercial,non Ð profit objectives, including for the benefit of the disabled or differently abled.

SummarySummary

Although the provisions of the Copyright Act, 1957 originally were taken from the BritishLaws, the Amendment of 2012 is substantial in nature and has changed the course of pro-tection of copyright in India. These amendments to the Copyright Act as quoted in the Rajya

Sabha, Parliamentary Committee Report No. 227 presented on 23rd November 2010 weremade with the following objectives to:-i. make the provisions of the Act in conformity with World Intellectual Property Organiza-

tionÕs WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty(WPPT);

ii. provide for definition of new terms, namely Òcommercial rentalÓ, ÒRights ManagementInformationÓ and Òvisual recordingÓ and to amend the existing definitions of the termsÒauthorÓ, Òcinematograph filmsÓ, Òcommunication to the publicÓ, Òinfringing copyÓ, Òper-formerÓ and Òwork of joint authorshipÓ;

iii. make provision for storing of copyrights material by electronic means in the context ofdigital technology and to provide for the liability of internet service providers;

iv. give independent rights to authors of literary and musical works in cinematograph films;v. clarify that the authors would have rights to receive royalties and the benefits enjoyed

through the copyright societies;vi. ensure that the authors of the works, in particular, author of the songs included in the

cinematograph films or sound recordings, receive royalty for the commercial exploitationof such works;

vii. allow the physically challenged persons to access to copyright material in specialized for-mats;

viii. introduce statutory licensing for version recordings of all sound recordings to ensure thatwhile making a sound recording of any literary, dramatic or musical work the interest ofthe copyright holder is duly protected;

ix. introduce a system of statutory licensing to broadcasting organizations to access to liter-ary and musical works and sound recordings without subjecting the owners of copyrightworks to any disadvantages;

x. make provision for formulation and administration of copyright societies by the authorsinstead of the owners;

xi. make provision for formulation of a tariff scheme by the copyright societies subject toscrutiny by the Copyright Board;

xii. provide for continuous payment of royalties by aggrieved party pending the appeal be-fore the Copyright Board and the Copyright Board may fix interim tariff pending appealon the tariff scheme; and

xiii. strengthen enforcement of rights by making provision of control of importing infringingcopies by the Customs Department, disposal of infringing copies and presumption of au-thorship under civil remedies

232

Section 52 as amended deals with fair dealing and certain acts which are not infringement.Exceptions under this section have been extended for education and research purposes asworks are available in digital formats and internet. The scope of these provisions ensures thatany introduction of new technology will also be covered under these sections. The Amend-ments to Section 52 have far reaching repercussions and which were debated in Parliamenteven in the absence of India singing or ratifying the WIPO conventions. The Indian Law doesnot include the three step method as a general provision or a guidance or authority to estab-lishing rules. Fair dealing in the above lines has now been extended by this amendment tobring in the word Ôany workÕ. These amendments now provide teeth to the statute in order toface the challenges of electronic distribution of copyright works, with the view to protect theright, title, claim and interest of the copyright owners and authors.


The exceptions and limitations to protection of Copyright are subject to the principles of Fairdealing in India. Primarily, to be used for the purposes of education, academics, researchand for the disabled / differently abled marginalised. Use of copyright within the statutoryexceptions and limitations provides that the credit must be given to the creator of the copy-right either in recognition and/or by way of royalty. The issue of protection of copyright needsmodification and fine - tuning in terms of reciprocity of protection across international bor-ders, which ensue a greater significance for creators and owners across the globe.

233

I.)I.)

1)1)

a)

b)

c)

d)

IndonesiaIndonesia


in the name of the Indonesia Groupby Cita CITRAWINDA and Cita CITRAWINDA


QuestionsQuestions




yes


yes

Reproduction is done for maintenance, replacement copies required, or replacementcopy in case the copy is lost, damaged, or destroyed from the permanent collection inthe library or other archival institutions provided that:1. library or archives is not possible to obtain a copy under reasonable conditions; or2. copying is done separately or if it is done repeatedly, making of such copies shall

constitute unrelated incident.


yes

reproduction for the purpose of communication or information exchange inter-libraries, inter-institutional archives, as well as between libraries and archives.


no

reproduction and/or distribution for the purpose of providing copies (either in a physi-cal or a digital form) to users of libraries or archives are not available


no

other activities are not available

234

2)2)

3)3)

4)4)

5)5)

a)

b)

c)

d)


These exceptions or limitations apply only to each library and archives which are not forcommercial purposes, however, the limitations are not including other organizations (e.g.museums) generally as well as commercial libraries and archives.


Each library or archives which are not for commercial purposes may make one (1) copy ofCreation or part of a work without permission of the Author or the Copyright Holder. Copy-ing is done for maintenance, replacement copies required, or replacement copy in case thecopy is lost, damaged, or destroyed from the permanent collection in the library or otherarchival institutions provided that:1. library or archives is not possible to obtain a copy under reasonable conditions; or2. copying is done separately or if it is done repeatedly, making of such copies shall con-

stitute unrelated incident.


a. articles in various fields which have already been published in the print media or elec-tronic media unless a copy of which is provided by the creator, or relating to broadcast-ing or communication of the work;

b. report of the actual events or excerpt of works that are seen or heard in certain situation;and

c. scientific papers, speeches, lectures, or other similar works presented to the public.


yes


yes


yes


yes


yes

235

e)

f)

6)6)

7)7)

8)8)

9)9)


yes


yes


Yes, these exceptions or limitations apply to educational and research institutions in general.


No conditions as to the type or scope of the activities and the persons who may engage insuch activities, and there is no provisions as to whether only a portion of a work may beused, whether both a teacher's and student's performance is covered, or only one or the oth-er.


The use, retrieval, reproduction, and/or alteration of a copyrighted work in all or a substan-tial portion is not considered a violation of Copyright if the source is mentioned or includedin full for the purposes of accession to facilitate the work for the blind, people with impairedvision or limitations in reading, and/or users of Braille, audio books, or other means, exceptfor commercial purposes.



Yes, there is a statutory provision specifically provides for such exception or limitation.

Article 43 Copyright Law stipulates that act which is not considered a violation of Copyrightinclude:

a. announcements, distribution, communication, and/or reproduction of symbol of the stateand song nationality according to their original nature

b. announcements, distribution, communication, and/or reproduction of everything doneby or/on behalf of the government, unless otherwise protected by legislation, statementon such work, or when such work is done on the announcement, Distribution, communi-cation, and/or reproduction;

c. actual news retrieval, either in whole or in part from news agency, broadcasting organi-zation, and newspaper or other similar source is fully acknowledge; or

236

10)10)

11)11)

12)12)

d. manufacture and distribution of media content copyright information and communica-tion technology is not commercial and/or beneficial Creator or related parties, or theCreator expressed no objection to the creation and dissemination.

e. reproduction, announcements, and/or distribution of Images of President, Vice President,former President, former Vice President, National Hero, heads of state institutions, lead-ership ministries/non-ministerial government agencies, and/or head area with regarddignity and fairness in accordance with the provisions of the legislation.

It is not yet tested in case law. Our jurisdiction has more general or broad exception or limi-tation.

Article 44 (1) Copyright Law stipulates that use, retrieval, multiplication, and/or alteration ofa work and/or products Rights Related in all or a substantial portion is not considered a vio-lation of Copyright if the source is mentioned or included in full for the purpose of:a. education, research, scientific writing, report writing, criticism or review a problem unrea-sonably prejudice the legitimate interests of the author or rights holder Copyright;a. security and governance, legislative, and judicial;b. lectures are only for purposes of education and science; orc. performances or performances that are free with no adverse conditions interest of the

Creator.


Our law adopt the Three-Step Test, and the reproduction of a copyrighted work is permissi-ble:a. in certain special cases;b. when the reproduction does not conflict with a normal exploitation of the work; andc. when the reproduction does not unreasonably prejudice the legitimate interests of the au-thor.


Yes, the government can make announcements, distribution, or communication of worksthrough radio, television and/or other means for the national interest without permission ofthe copyright holder, with the obligation for remuneration to the copyright holder.Anyone can apply for a compulsory license on works in the field of science and literaturereferred to a compulsory license to carry out the translation and/or reproduction of a workin science and literature which are given based on the decision of the Minister upon requestfor the purposes of education and/or science and research and development activities.


Yes, the remuneration is payable for use under such exception. No specific provisions re-garding the amount of remuneration and who is liable for making such payment as well asto whom such payment must be made.

237

13)13)

14)14)

15)15)

II.)II.)

16)16)

17)17)

18)18)


In the event that author of a work is unknown and the work has not been published, the Stateshall hold the copyright on such a work for the interest of the author. If a work has beenpublished and the author of which is unknown or the name printed on such work is only apseudonym, the publisher shall hold the copyright on the work for the interest of the author.If a work has been published and the author and/or the publisher of which are unknown,the state shall hold the copyright on such a work for the interest of the author.


The contract cannot be made against the prevailing law. There are some exceptions that arestipulated on Article 121 and Article 122 of Law Number 28 Year 2014 Regarding Copy-right.


yes

Yes, there is an Indonesia Reproduction Rights Foundation (Yayasan Reproduksi Cipta In-donesia) established on November 22, 2009. YRCI is a private licensing organization rep-resenting the authors and publishers in collecting royalties from users. However, up to thismoment the YRCI is still in the process of building a cooperation with libraries, archives andeducational and research institutions.



yes

Our new Copyright Law Number 28 of 2014 already covered provisions regarding excep-tions or limitations to copyright protection for libraries and archives.


yes

Our new Copyright Law Number 28 of 2014 already covered provisions regarding excep-tions or limitations to copyright protection for education and research institutions.


yes

Yes, the Three-Step Test is a useful test for determining any exceptions or limitations to copy-right protection as the reproduction would potentially conflict with a normal exploitation ofthe work and the reproduction does unreasonably prejudice the legitimate interests of theauthor.

238

19)19)

20)20)

21)21)

III.)III.)

22)22)

23)23)

24)24)

a)

b)

c)

25)25)

a)

b)


Yes, the exception or limitation should be capable of being overridden by contract as anyworks can be reproduced provided there is a permission of the Author or his heirs or therecipient of his testament.


Yes, the remuneration should be payable for any of the activities described in 16) and 17)as any works resulted for education and research institutions involved considerable efforts ofthe author in terms of time, energy and money spent for the works.


The new Copyright Law became effective on October 16, 2014 and already covered newprovisions to exceptions and limitations to copyright protection for libraries, archives and ed-ucational and research institutions, however, there is no clear elaboration of the exceptionsand limitations.



yes





private libraries, archives and other private organizations.


the exceptions or limitations should be applied among others to profitable private or-ganizations, lectures for purposes of education and science.





239

c)

26)26)

27)27)

28)28)

29)29)

30)30)







The exception or limitation be capable of being overridden by contract provided that there isa permission given by the copyright holder/owner.


Private organizations should reconcile with any exception or limitation to address use by li-braries, archives and educational and research institutions as long as the reproduction doesnot unreasonably prejudice the legitimate interests of the author.

SummarySummary


240

I.)I.)

1)1)

a)

ItalyItaly


in the name of the Italy Groupby Giorgio MONDINI, Alessandro COGO, Fabio GHIRETTI, Daniela DE PASQUALE, Carlo SALA,

Gianluca CAMPUS, Silvia GRAZIOLI, Carlo MEZZETTI, Anna Maria STEIN, FiammettaMALAGOLI, Annalaura AVANZI, Elena MARANGONI and Santina PARRELLO


QuestionsQuestions




yes


yes

The ItalianItalian CopyrightCopyright ActAct no.no. 633633 ofof AprilApril 22,22, 19411941 provides for several exceptionsor limitations that apply to libraries and archives. All subsequent references shall beconstrued as references to such law.The relevant provisions of the Italian Copyright Act are the following (unofficial andfree translation):a) ArticleArticle 15(3)15(3) - The recitation of literary works for non-commercial purposes in publicmuseums, archives and libraries shall not be considered public, if it takes place ex-clusively for aims of cultural promotion and appreciation of the works as identified byagreements between SIAE and the Ministry of Cultural Heritage and Activities.b) ArticleArticle 68(2-3-5)68(2-3-5) - The reproduction by reprographic means of works collected inpublicly accessible libraries, libraries of educational establishments or museums is freeif it is done for the relevant services, unless it is done with the aim of drawing a director indirect economic or commercial advantage;Without prejudice to the prohibition to reproduce music sheets and music scores, thereproduction for personal use of any books or issues of periodical publications isallowed within the limit of fifteen per cent each, excluding pages with advertising,through photocopying, xerocopying or similar systems.Reproductions of the works held in public libraries made for personal use within thepublic libraries themselves through the systems referred to in paragraph 3, are allowedwithin the limits provided for in said paragraph 3 subject to payment of a lump-sumremuneration to the right holders referred to in article 181-ter, paragraph 2, below,determined on the basis of the second sentence of article 181-ter, paragraph 1. Suchremuneration shall be paid every year directly by libraries, within the limits of the rev-enues collected for the service, without additional charges for the budget of the State orof the entities managing the libraries. The limits set out in paragraph 3 shall not applyto out-of-print or rare works, insofar as difficult to find in the market.c) ArticleArticle 69(1-2)69(1-2) - Loans by book and record libraries belonging to the State andto public entities, for the exclusive purposes of cultural promotion and personal study,shall not require the consent of the owner of the relevant right, to whom no compen-sation is due. Such loans shall only regard:

241

b)

c)

(a) the printed copies of the works, excluding music sheets and scores;(b) phonograms and videograms containing cinematographic or audiovisualworks or sequences of moving images, with or without sound, after at least eighteenmonths from the first exercise of the right of distribution or, failing such exercise, afterat least twenty-four months from the making of said works or sequences of moving im-ages.Phonograms and videograms embodying cinematographic or audiovisual works or se-quences of moving images, whether with or without sound, held at book, record andmovie libraries belonging to the State or to public entities, may be reproduced in onecopy only for the services of such libraries, [provided that reproduction is] without anydirect or indirect economic or commercial advantage.d) ArticleArticle 6969 bisbis (1-2)(1-2) Publicly accessible libraries, educational establishments, muse-ums, archives, film or audio heritage institutions and public-service broadcasting orga-nizations have the right to use the orphan works set out in the Art. 69 quarter containedin their collections, as follows:i. by reproduction of the orphan work for the purposes of digitization, indexing, cat-

aloguing, preservation or restoration;ii. by making the orphan work available to the public in such a way that members

of the public may access them from a place and at a time individually chosen bythem.

The orphan works can be used by the entities mentioned in paragraph 1 exclusivelyfor purposes related to the their mission of public interest, in particular preservation,restoration and access for cultural and educational scopes of the works and soundrecordings contained in their collectionse) ArticleArticle 71-71-terter - Public libraries, education institutions, museums and archives mayfreely communicate or make available the works or other materials contained in theircollections and not subject to restrictions deriving from acts of assignments or licenses,to single individuals, for research or private study purposes, on terminals to be usedfor such function only and located on their premises.As long as reproductionreproduction and/and/oror distributiondistribution forfor thethe purposepurpose ofof preservationpreservation oror re-re-placement is concerned:placement is concerned:a) ArticleArticle 68(2)68(2) allows libraries accessible to the public, school libraries, public mu-seums and archives toto photocopyphotocopy the works comprised in their collections in order toperform their services, without any direct or indirect economic or commercial advan-tage.b) ArticleArticle 69(2)69(2) allows libraries, record and movie libraries belonging to the State orto public entities toto reproducereproduce, without any direct or indirect economic or commercialadvantage, one copy of phonograms or videograms included in their collections in or-der to perform their services.c) ArticleArticle 69-bis(1-2)69-bis(1-2) allows publicly accessible libraries, educational institutions andmuseums, archives and institutions for the cinematographic and sound heritage, andpublic service broadcasters toto reproducereproduce orphan works for digitisation, indexing, cat-aloguing, preservation and restoration purposes and to make them available to thepublic.


no

Italian Copyright Act does not include a limitation or exemption for reproductionsmade to the end of performing interlibrary lending services. However, it may be arguedthat Article 68(2) (see above, lett. a) allows such reproductions.


242

d)

2)2)

yes

ArticleArticle 68(5)68(5) allows the users of public libraries toto reproducereproduce works contained in theircollections for personal use by photocopying, xerocopying or analogous systems. Thisexception is subject to limitations as to the type of works that can be copied and to theextent of the allowed reproduction; moreover, an equitable remunerations should bepaid to the rightholders (see below, no. 3). Such copies can not be distributed.


yes

a) ArticleArticle 15(3)15(3) allows the recitationrecitation ofof literaryliterary worksworks in public museums, archivesarchivesand librarieslibraries if it takes place notnot forfor profitprofit andand exclusivelyexclusively forfor aimsaims ofof culturalcultural pro-pro-motionmotion andand appreciationappreciation ofof thethe worksworks themselvesthemselves individuated by agreements be-tween SIAE (the Italian collecting society representing authors and publishers) and thecompetent ministries.b) ArticleArticle 69(1)69(1) allows loansloans by book and record librarieslibraries belonging to the State andto public entities, performed forfor thethe exclusiveexclusive purposespurposes ofof culturalcultural promotionpromotion andandpersonalpersonal studystudy. Such loans shall only regard: (a) the printed copies of the works, ex-cluding music sheets and scores; (b) phonograms and videograms containing cine-matographic or audiovisual works or sequences of moving images, with or withoutsound, after at least eighteen months from the first exercise of the right of distributionor, failing such exercise, after at least twenty-four months from the making of saidworks or sequences of moving images.c) ArticleArticle 69-bis(1-2)69-bis(1-2) allows publicly accessible librarieslibraries, educational institutions andmuseums, archivesarchives and institutions for the cinematographic and sound heritage, andpublic service broadcasters to reproduce orphanorphan worksworks for digitisation, indexing, cat-aloguing, preservation and restoration purposes and to makemake themthem availableavailable toto thethepublicpublic.d) ArticleArticle 71-ter71-ter allows the ÒcommunicationÓ,ÒcommunicationÓ, oror ÒmakingÒmaking availableÓavailableÓ, of materialsto individuals for the purposes of research or private study on terminals located ononthethe premisespremises of publicly accessible librarieslibraries, educational institutions, museums andarchivesarchives limited to the Òworks or other materials contained in their collections and notsubject to restrictions deriving from acts of assignment or licensingÓ.


There is a distinction under Italian law, from various different standpoints, between, on theone hand, culturalcultural institutionsinstitutions ofof thethe StateState oror publicpublic bodiesbodies and privateprivate organizationsorganizations,and, on the other hand, between libraries, archives or other organizations openopen oror notnot openopento the general publicto the general public.

So, for example, ArticleArticle 68(2)68(2) allows all publiclypublicly accessibleaccessible librarieslibraries to make pho-tocopies of works existing in their collections in order to perform their services. As a conse-quence, libraries which are not open to the general public need to obtain an authorizationfrom the rightholders to perform the same activities. On the other hand, ArticlesArticles 68(3)68(3) and68(5)68(5) discipline the photocopies made by the users of publicly accessible libraries for per-sonal use distinguishing between librarieslibraries belongingbelonging toto thethe StateState andand privatelyprivately ownedowned li-li-brariesbraries. If privately owned libraries offer photocopying services, they must pay the equitableremuneration which is due by photocopying centres. To the contrary, libraries owned by theState or by public entities must pay an equitable remuneration which is calculated accordingto specific criteria.

243

3)3)

4)4)

5)5)

a)

Furthermore art.art. 6969, as amended by legislative decree 68/2003, liberalises only for the ben-efit of librarieslibraries andand soundsound andand videovideo librarieslibraries ofof thethe StateState oror ofof publicpublic bodiesbodies a) the loan-ing of works for the purposes of cultural promotion and personal study, and b) the reproduc-tion of one copy only of videograms and phonograms for the services of the same libraries,sound and video libraries.

Art.Art. 7171-ter-ter then takes into consideration certain acts of communication by librariesand archives Òaccessibleaccessible toto thethe generalgeneral publicpublicÓ, and in particular the Òmaking available forsingle individuals for the purposes of research or private study activities, on terminals havingsuch sole function located in the premises of the libraries [É] of works or other materialscontained in their collections and not subject to restrictions deriving from deeds of transferor licencesÓ.Under art.art. 69-69-bisbis, which has been recently introduced, the beneficiaries of the new orphanworks exception are libraries, educational institutions and museums accessible to the public,institutions for cinematographic or sound heritage and public service broadcasters.


Yes, the aforementioned provisions contain restrictions as to the permitted activities.a) ArticleArticle 68(2)68(2) allows libraries accessible to the public, school libraries, public museumsand archives to photocopyphotocopy the worksworks comprisedcomprised inin theirtheir collectionscollections in order to performtheir services, without any direct or indirect economic or commercial advantage. Therefore,digital reproduction is not allowed.b) ArticleArticle 68(3)68(3) does not allow the photocopying for personal use of music sheets and musicscores. Moreover, it states that, if allowed, the photocopying cannot go beyond the limitlimit ofoffifteenfifteen perper centcent ofof eacheach book or periodical publication, excluding pages of advertising, un-less the book is out of print and rare. It should be noted that reproductions for personal usecan only be done through photocopying, xerocopying or similar arrangements; thus, digitalreproduction (e.g. by scanning) is not allowed.c) ArticleArticle 69(2)69(2) allows libraries and record libraries belonging to the State or to public entitiesto reproduce, without any direct or indirect economic or commercial advantage, oneone copycopyof phonograms or videograms included in their collections in order to perform their services.d) ArticleArticle 71-ter71-ter provides for the ÒcommunicationÓ,ÒcommunicationÓ, oror ÒmakingÒmaking availableÓavailableÓ, of materials toindividuals for the purposes of research or private study on terminals located onon thethe premis-premis-eses of publicly accessible libraries, educational institutions, museums and archives limited tothe Òworks or other materials contained in their collections and not subject to restrictions de-riving from acts of assignment or licensingÓ. Thus, the making available to terminals locatedoutside of the library is not permitted.


The works have to be lawfully published works and an original copy must be in the propertyof the library.


yes


244

yes

Yes, on the basis of the following law provisions of the Italian Copyright Act (unofficialand free translation):a) ArticleArticle 15(2)15(2) - The performance, representation or recitation of the oral works suchas musical, dramatic or cinematographic works, or any other work suitable for pub-lic showing, shall not be considered public and therefore do not require the author'sconsent provided their performance, representation or recitation is carried out withinthe ordinary context of the family, boarding school, school or institute for aged-people,provided that such uses do not take place for non profit purposes.b) ArticleArticle 6464 sexiessexies - The right holderÕs authorization referred to in Article 64-quinquiesshall not be required in case of:(a) access to or consultation of the database when such activity is made exclusively foreducation or scientific research purposes, and is not performed within a business ac-tivity, subject to indication of the source and within the limits justified by the non-profitpurpose sought. Within the scope of such access and consultation activities, any op-erations consisting in the permanent reproduction of all or a substantial part of thecontents onto another device shall in any case be subject to the right holderÕs autho-rization;c) ArticleArticle 68(2)68(2) - The reproduction by reprographic means of works collected in pub-licly accessible libraries, libraries of educational establishments or museums is free if itis done for the relevant services, unless it is done with the aim of drawing a direct orindirect economic or commercial advantageÓ;d) ArticleArticle 69(169(1)) - Loans by book and record libraries belonging to the State and to pub-lic entities, for the exclusive purposes of cultural promotion and personal study, shallnot require the consent of the owner of the relevant right, to whom no compensation isdue. Such loans shall only regard:(a) the printed copies of the works, excluding music sheets and scores;(b) phonograms and videograms containing cinematographic or audiovisualworks or sequences of moving images, with or without sound, after at least eighteenmonths from the first exercise of the right of distribution or, failing such exercise, afterat least twenty-four months from the making of said works or sequences of moving im-ages.e) ArticleArticle 70(1)70(1) - The summary, quotation or reproduction of passages or parts ofworks, for purposes of criticism and discussion and also for teaching purposes, areallowed within the limits justified by such purposes and provided that they are not incompetition with the economic exploitation of the work.In anthologies for schools, the reproduction may not exceed the limits set by the Reg-ulations, which shall establish the modalities for the collection of equitable remunera-tion.The summary, quotation or reproduction shall always be accompanied by the indica-tion of the title of the work and of the names of the author, publisher and, in case oftranslations, translator, if the work object of the reproduction bears such indications.f) ArticleArticle 70(1-70(1-bisbis)) - Low-resolution or degraded images and music may be freely pub-lished through the Internet, for free, for education or scientific purposes, and exclusive-ly where such use is not for profit. Limits to the use for education or scientific purposeswithin the meaning of this paragraph shall be defined by decree of the Minister for Cul-tural Heritage and Activities, after hearing the Minister of Education and the Ministerof University and Research, subject to the prior opinion of the relevant ParliamentaryCommittees.g) ArticleArticle 71-71-terter - Public libraries, education institutions, museums and archives mayfreely communicate or make available the works or other materials contained in theircollections and not subject to restrictions deriving from acts of assignments or licenses,to single individuals, for research or private study purposes, on terminals to be usedfor such function only and located on their premises.

245

b)

c)

d)

e)

f)

As long as performanceperformance and/and/oror displaydisplay forfor educationaleducational purposespurposes is concerned, asmentioned above::a) ArticleArticle 15(2)15(2) allows the Òperformance,performance, representationrepresentation oror recitationÓrecitationÓ of any kind ofwork within the ordinary context of schoolschool and for non profit purposes.b) ArticleArticle 64-64-sexiessexies allows the accessaccess toto andand consultationconsultation of databases forfor thethe solesolepurposepurpose ofof illustrationillustration forfor teachingteaching oror scientificscientific researchresearch, as long as the source isindicated and to the extent justified by the non-commercial purposes of such uses.c) ArticleArticle 7070 allows the Òcommunicationcommunication toto thethe publicÓpublicÓ for purposespurposes ofof teachingteaching, butlimited to Òpassages or parts of a workÓ.


yes

As mentioned above:a) ArticleArticle 68(2)68(2) allows thethe librarieslibraries ofof educationaleducational establishmentsestablishments to ÒreproduceÓreproduceÓtheir works by reprographic means, but only for their own services without any director indirect economic or commercial advantage.b) ArticleArticle 70(1)70(1) allows the Òsummary,summary, quotationquotation andand reproductionÓreproductionÓ for purposespurposes ofofteachingteaching, but limited to Òpassages or parts of a workÓ.


no

Translation of a work is not expressly included in the exceptions provided for the pur-poses of teaching or research under the Italian Copyright Act.


yes

As mentioned above:a) ArticleArticle 70(1-70(1-bisbis)) allows the Òfreefree publicationÓpublicationÓ on the Internet, without charge, oflow resolution or degraded images and music for teachingteaching oror scientificscientific useuse and onlywhere such use is in a not-for-profit setting. The same Article also states that the limitsfor such teaching or scientific use will be established by Ministerial Decree (althoughthe latter has not been issued to date).b) ArticleArticle 71-71-terter provides for the ÒcommunicationÓ,communicationÓ, oror ÒmakingÒmaking availableÓavailableÓ, of materi-als to individuals for the purposes of research or privateprivate studystudy on terminals located onthe premises of educational institutions, limited to the Òworks or other materials con-tained in their collections and not subject to restrictions deriving from acts of assign-ment or licensingÓ.


yes

As mentioned above, ArticleArticle 7070 allows the Òsummary,summary, quotationquotation andand reproductionÓreproductionÓalso for Òpurposespurposes ofof scientificscientific researchresearchÓ, but limited to Òpassages or parts of a workÓ(the reproduction of the whole work is never allowed).


246

6)6)

7)7)

yes

As mentioned above, ArticleArticle 6969 allows loansloans of works by book and record public li-braries for the purposes of cultural promotion and personalpersonal studystudy, subject to the limitsand conditions specified in the same Article; these obviously include public researchand educational institutions.


As mentioned abovea) the exception under ArticleArticle 15(2)15(2) (performance, representation or recitation) applies onlywithin the ordinary context of ÒschoolschoolÓ;b) the exception under ArticleArticle 68(2),68(2), (reproduction by reprographic means) only applies toÒlibraries of educational establishmentsÓ;libraries of educational establishmentsÓ;c) the exception under ArticleArticle 69(1)69(1) (loan of works) is granted only to Òbookbook andand recordrecordlibraries belonging to the State and to public entitieslibraries belonging to the State and to public entitiesÓ;d) the exceptions under ArticleArticle 64-64-sexiessexies (access to and consultation of databases) ArticleArticle70(1)70(1) (reproduction and communication to the public of passages or parts of a work) andArticleArticle 70(1-70(1-bisbis)) (free publication on the Internet of low resolution images), apply to anyoneanyonewhowho pursuespursues educationaleducational oror scientificscientific researchresearch purposespurposes, without any further specification;e) the exception under Article 71-Article 71-terter only applies to Òeducational institutionseducational institutionsÓ.


As mentioned above:a) With reference to display of databases, according to ArticleArticle 64-64-sexiessexies the authorization bythe rightholder provided for in Article 64-quinquies shall not be required where the databaseis accessed and visualized forfor thethe solesole purposepurpose ofof illustrationillustration forfor teachingteaching oror scientificscientific re-re-searchsearch, as long as thethe sourcesource isis indicatedindicated and to the extent justified by the non-commercialnon-commercialpurposespurposes to be achieved. Within the above activities of access and visualization, the possibleoperations of permanent reproduction of all or a large part of the contents on any other de-vice shall always be subject to the rightholderÕs authorization.b) With reference to the exception to the reproduction right for research and educational in-stitutions, ArticleArticle 6868 (2)(2) allows photocopying of works made by public university and schoollibraries forfor theirtheir servicesservices withoutwithout thethe realizationrealization ofof aa directdirect oror indirectindirect commercialcommercial ororeconomic gain,economic gain, with the exception ofexception of musicmusic scores or sheetsscores or sheetsc) With reference to lending by book and record public libraries, ArticleArticle 6969 allows such loanonly for:¥ printed worksprinted works with the exception ofexception of musicmusic scores or sheetsscores or sheets;¥ phonogramsphonograms andand videogramsvideograms exclusively onlyonly 1818 monthsmonths after the first distribution or,

if no distribution has occurred, 24 months24 months after the making of such works.d) With reference to summary, quotation and reproduction and communication of works orpart of works Òfor purposes of teaching or scientific researchÓ, under ArticleArticle 7070 (1)(1) such ex-ception shall be subject to the following conditions:¥ the uses must be limited to passages or partspassages or parts of the work;¥ they must take place within the limits justified by such purposes and notnot competecompete withwith

the economic utilizationthe economic utilization of the work;¥ they must take place only for illustrative purposesillustrative purposes and non-commercial usesnon-commercial uses;¥ they must be accompaniedaccompanied byby thethe indicationindication of the title of the work, the name of the au-

thor, the publisher and, when translation is involved, the translator, where these detailsare mentioned on the copy of the work reproduced.

247

8)8)

9)9)

10)10)

e) With reference to the publication on the Internet, ArticleArticle 7070 (1-(1-bisbis)) of the Italian CopyrightAct authorizes the free publication on the Internet ofof lowlow resolutionresolution imagesimages andand musicmusic forforeducational or scientific purposeseducational or scientific purposes and only for non-profit usenon-profit use.f) With reference to the exception for the reproduction in anthologies for educational uses,ArticleArticle 70(2)70(2) states that such reproduction shall occur withinwithin thethe limitslimits setset forthforth byby thethe Reg-Reg-ulationulation implementingimplementing thethe ItalianItalian CopyrightCopyright Act.Act. Such limits amount to 12,00012,000 characterscharactersfor prose works, 180 lines for poetry works, 20 musical beats and 150 metersÕ film.for prose works, 180 lines for poetry works, 20 musical beats and 150 metersÕ film.g) With reference to the right of communication and the making available for research andstudy purposes, ArticleArticle 71-71-terter states that communication/making available is permitted onlyonlytoto individualsindividuals andand onlyonly onon videovideo terminalsterminals locatedlocated inin thethe premisespremises ofof publiclypublicly accessibleaccessiblelibraries and educational instituteslibraries and educational institutes.


With reference to the exceptions or limitations to copyright protection for education and re-search institutions, the Italian Copyright Act does not set any specific condition as to the typeof copyrighted works that may be used, except to the following extent:a) ArticleArticle 6868 excludes from the reproduction by reprographic means by libraries of educa-tional establishments musicmusic scores or sheetsscores or sheets.b) Art 69Art 69 allows the loan made by book and record public libraries for:¥ print worksprint works with exception ofexception of musicmusic scores or sheetsscores or sheets;¥ phonogramsphonograms andand videogramsvideograms exclusively nono earlierearlier thanthan 1818 monthsmonths after the first dis-

tribution or, if no distribution has occurred, 24 months24 months after the making of such works;c) ArticleArticle 70,70, paragraphparagraph 1-1-bis,bis, allows the publication through the Internet, for free, ofof low-low-resolutionresolution oror degradeddegraded imagesimages andand musicmusic, for educational or scientific purposes and onlyfor non-commercial use.In spite of the lack of a specific provision, the above rules apply only to lawfully createdcopies.



The above provisions are onlyonly statutorystatutory. Our jurisdiction does not have a general or broadexception or limitation, such as a Òfair useÓ rule.


a) Under ArticleArticle 6464 sexiessexies (4)(4) of the Italian Copyright Act, the exception for access to andconsultation of databases (ArticleArticle 6464 sexiessexies (1(1) cannot be construed in such a manner thatits application would irremediably and unduly affect the rightholder or come into conflict withthe database ordinary use, in accordance with the provisions of the Berne Convention;b) ArticleArticle 68(2)68(2) provides that the copies obtained by reprographic means mustmust notnot bebe usedusedin competition with the economic rights of the authorsin competition with the economic rights of the authors;c) the exception of ArticleArticle 70(1)70(1) (reproduction and the communication to the public of pas-sages or parts of a work) must not compete with the economic utilizationnot compete with the economic utilization of the work.

248

11)11)

12)12)

13)13)

The other exceptions do not specifically provide for the application of the Three-Step Test.However artart 7171 noniesnonies provides that all the exceptions and limitations in the Italian Copy-right Act, when applied to the makingmaking availableavailable of a work, must be subject to the Three-Three-Step Test.Step Test.


Yes, the exception is effective by operation of law.


No remuneration is due. The sole exceptions are anthologies,anthologies, reprographyreprography ofof literaryliteraryworks,works, and public loanpublic loan Specifically:¥ the remuneration regarding anthologies is paid by publishers;¥ the remuneration regarding reprography is paid either by copy stores or libraries de-

pending upon whether who, between the two of them, is responsible for providing thefinal user with photocopying services, i.e. if said services are provided by copy stores,copy stores will be responsible for the remuneration, and vice versa, in case services areprovided by libraries

¥ the remuneration regarding public loan is obtained from a special Public Fund (ÒFondoper il diritto di prestito pubblicoÓ) and is paid to the right holders by the Italian collectingsociety (SIAE).


Yes, the Italian Copyright Act as amended by Legislative Decree 10 November 2014, No.163, implementing Directive 2012/28/EU on certain permitted uses of orphan works (ItalianOfficial Journal No. 261 of 10-11-2014) provides a special treatment for orphan works.ArticleArticle 69-69-bisbis of the Italian Copyright Act provides that only publicly accessible libraries, ed-ucational establishments, museums, archives, film or audio heritage institutions and public-service broadcasting organizations have the right to use the orphan works contained in theircollections: (i) by reproduction of the orphan work for the purposes of digitisation, index-ing, cataloguing, preservation or restoration; (ii) by making the orphan work available to thepublic in such a way that members of the public may access them from a place and at a timeindividually chosen by them.Such uses are possible exclusively for purposes related to the mission of public interest of theabove mentioned entities, in particular preservation, restoration and access for cultural andeducational scopes of the works and sound recordings contained in their collections.Any revenues generated in the course of the uses referred to above shall be used to cover thecosts for the digitization of orphan works and for making available such works to the public.The entities referred to above shall indicate, in any use of the orphan work, the name ofauthors and other rights holders who have been identified. Moreover such entities, in the ful-fillment of their mission of public interest, have the right to conclude agreements for the pur-pose of the promotion and exploitation of orphan works through the uses referred to above.Such agreements may not impose beneficiaries of the exception any restriction on the use oforphan works and may not allow the contracting party to use the orphan works or controlthe use by beneficiaries. The agreements shall not be in conflict with a normal exploitationof the works, neither cause unreasonable prejudice to the interests of right holders.Pursuant to ArticleArticle 69-69-terter the uses above apply only to certain protected works and, in par-ticular, to: (i) works published in the form of books, journals, newspapers, magazines orother writings contained in the collections of publicly accessible libraries, educational estab-

249

lishments or museums, as well as in the collections of archives or of film or audio heritageinstitutions; (ii) cinematographic or audiovisual works and phonograms contained in the col-lections of publicly accessible libraries, educational establishments or museums, as well as inthe collections of archives or of film or audio heritage institutions; (iii) cinematographic or au-diovisual works and phonograms produced by public-service broadcasting organizations upto 31 December 2002 and contained in their archives, including the works commissioned bypublic-service broadcasting organizations for their own exclusive use of for the exclusive useof other public-service broadcasting organizations up to such date; (iv) works and phono-grams referred to in previous points (i), (ii) and (iii), deposited at the organizations listed inArticle 69-bis before 29 October 2014, which have never been published or broadcastedbut which have been made publicly accessible by the such organizations with the consent ofthe right holders, provided that it is reasonable assuming that the right holders would notoppose such uses; (v) works and other protected content that are embedded or incorporatedin, or constitute an integral part of the works or phonograms referred to in points (i), (ii) and(iii).According to ArticleArticle 69-69-quaterquater, a work or phonogram, as identified in Article 69-ter, is con-sidered orphan if none of the holders of the rights in such work or sound recording hasbeen identified or, even if one or more of them have been identified, none of them is beentracked, despite a diligent search. The diligent search shall be carried out by the organi-zations listed in Article 69-bis according to the specific proceedings and terms indicated inArticle 69-quater or according to the proceedings and terms provided by the other MemberState in which the search has to be conducted.Where there is more than one right holder in a work or in a phonogram and not all rightholders have been identified or, even if identified, have not been tracked, after a diligentsearch conducted under Article 69-quater, the work or phonogram may be used under theterms and within the limits of the authorizations granted by right holders identified andtraced.The orphan works and phonograms already considered orphan works under Directive 2012/28/EU in another Member State of the European Union, are considered orphan works underthe Italian law.Works in commerce cannot be classified as orphan works.The above mentioned provisions do not affect the provisions of anonymous or pseudony-mous work.The organizations keep records of their diligent searches so that they are available to inter-ested parties on request.The information concerning (i) the results of diligent searches carried out that lead to con-clude that a work or a phonogram is considered an orphan work; (ii) the uses made by thatorganizations of orphan works; (iii) any amendment to the orphan work status of the worksand phonograms used by organizations; (iv) the relevant contact information of the orga-nization concerned, is transmitted without delay by the Italian Ministry for Cultural Heritageand Activities and for Tourism to the Office for Harmonization in the Internal Market for reg-istration in the publicly accessible online database.ArticlesArticles 69-69-quinquiesquinquies andand 69-69-sexiessexies protect the rights of an orphan work legitimaterightholder, granting the latter the possibility of putting an end to the orphan work status atany time in relation to the rights due to the same, and of receiving fair compensation for theuses made under Article 69-bis, to the extent determined by specific agreements between theright holdersÕ most representative associations and associations of the organizations listed inArticle 69-bis.Finally Article 69-Article 69-septiessepties provides a list of sources considered useful for the diligent search.

250

14)14)

15)15)

II.)II.)

16)16)


The law does not provide for any provision in this regard, with the exception of art.71-tart.71-tererthat allows publicly accessible libraries, educational institutions, museums and archives tocommunicate and make available, on terminals located on their premises, only the worksor other materials contained in their collection that are Ònotnot subjectsubject toto restrictionsrestrictions derivingderivingfrom acts of assignment or licensingÓfrom acts of assignment or licensingÓ.


yes

Three separate collectivecollective agreementsagreements have been entered into by SIAE (i.e., the Italian Col-lecting Society), on one side, and the representatives of school, university and (in general)public libraries, on the other, to regulate the compensation for photocopies of literary worksother than music scores, according the provision of art. 69.art. 69.



yes

Exceptions and limitations for libraries and archives should be allowed within a context ofbalanced copyright protection and subject to the application of the three-step test. In partic-ular:a) Libraries and archives should be free toto digitizedigitize theirtheir collectionscollections forfor preservationpreservation andandarchivingarchiving purposespurposes and all other uses allowed by law, without any direct or indirect eco-nomic or commercial advantage. This exception should also include large-scale digitizationand format shifting;b) Libraries and archives should be allowed to offeroffer digitaldigital copyingcopying servicesservices to their users,within the limits of Art. 68Art. 68 (see above)c) Libraries and archives should be allowed to use and/or authorize third parties to use theircollection for datadata miningmining purposespurposes, provided that the copies made during the process areautomatically destroyed after use as stated in the ECJ Infopaq case;d) e-lendinge-lending could be allowed subject to the following limits:- libraries must have purchased at least one copy of the work;- e-lending should be limited to the copies owned by the libraries;- e-lending should be limited to the libraryÕs registered members or restricted to the geo-graphic area where physical lending takes place;- libraries must ensure that digital copies are protected by effective technical protection mea-sures against unauthorized reproduction;- e-lending should be limited in time;e) The libraries should be allowed to lend e-readerslend e-readers containing the work;f) Digital distribution of the work for the purposes of interlibraryinterlibrary lendinglending should not be per-mitted, unless (i) the number of digital copies of the same work simultaneously lent to differ-ent libraries is not greater than that which the lender have acquired in analogue or digitalformat, (ii) interlibrary lending is limited in time and (iii) lent copies are protected by effectivetechnical protection measures against unauthorized reproduction.

251

17)17)

18)18)

19)19)

20)20)

21)21)

III.)III.)

22)22)

g) Out-of-commerceOut-of-commerce worksworks can be digitized and made available to the public through col-lective agreements between collecting management organizations representing right holders(authors/publishers) and publicly accessible libraries. Legislative measures should be intro-duced to extend the effects of collective licenses to non-represented authors, subject to anopt-out provision.


yes

Exceptions and limitations to copyright protection for education and research institutions asprovided by Italian law (see above) should be maintained with the following adjustments andamendments:a) Communication to the public of fragments or parts of works for purposes of teachingand scientific research should include expressly thethe rightright toto makemake themthem availableavailable onon lineline,whithin the limits of the teaching and scientific research purposes;b) The exception provided for in Art.Art. 7070 should be extended to the entireentire workwork ofof finefine artartandand photographyphotography. Such exception may be subject to the payment of an equitable compen-sation to right owners.


yes

The three-step-test should be used as a generalgeneral criterioncriterion for determining any exceptions orlimitations and their compliance with the key principles of copyright protection.


At least in certain cases, exceptions and limitations should notnot bebe capablecapable ofof beingbeing overrid-overrid-denden byby contractcontract. The public interests protected by certain exceptions and limitations need tobe protected against the contractual power or expertise of right-holders.


See above.


See above.



yes

Yes, harmonisation in the area of exceptions and limitations to copyright protection is essen-tial for the enhancement and improvement of the digital environment.

252

23)23)

24)24)

a)

b)

c)

25)25)

a)

b)

c)

In particular te lack of harmonisation due to the differences in the implementation of Article5 of the InfoSoc Directive by the EU Member States is capable of producing negative effectswith regard to cross-border transactions and determining an artificial compartmentalizationof national markets within the EU.The objective of harmonisation is also desirable at international level, considering that aharmonised regulation of exceptions and limitations constitutes an essential part of the har-monisation of copyright protection obtained through international treaties.The harmonization should be carried out through the introduction of specific exceptions orlimitations, without prejudice to the freedom of national legislators to apply any other specif-ic or general exception or limitation allowed by the relevant international and regional laws.



no



Only libraries and archives which are publicly accessible and do not pursue a director indirect economic or commercial advantage should benefit from such exceptions orlimitations.


See above


See above



All education and research institutions, irrespective of whether they are publicly or pri-vately owned, should be allowed to perform the activities described above.


See above


See above


253

26)26)

27)27)

28)28)

29)29)

30)30)


16 a) Digitization of collections belonging to libraries and archives : Automatically16 b) Libraries and archives digital copying services: Automatically16 c) Data mining: Automatically16 d) Libraries e-lending: Automatically16 e) e-readers lending: Automatically16 f) Interlibrary lending: Automatically16 g) Out-of Commerce Works digitization and making available: Collective agreementsare required17 a) e-learning: Automatically


In general terms, remuneration must be determined and calculated through collective agree-ments between the associations representing right holders, on one hand, and the users, onthe other.


The European Directive 2012/28/EU concerning certain permitted uses of orphan works hasrecently introduced a discipline at Community level. Italy has implemented the Directive inNovember 2014. It is believed that European legislation could be a good model for theuse of orphan works by libraries, educational institutions and archives. However its impactshould be assessed in the next few years before adopting it as a a model for internationalharmonization.


16 a) Digitization of libraries and archives collections: Never16 b) Digital copying services : Never16 c) Data mining: Never16 d) E-lending: Never16 e) E-readers lending: Never16 f) Interlibrary lending: Never16 g) Out-of Commerce Works: Opting-Out mechanism17 a) E-learning: Never


Exceptions or limitations, whether newly introduced or not, set some basic and most of thetime mandatory freedoms that may, or may not, be exploited by their beneficiaries. In par-ticular, the mere existance of such exceptions or limitations may create an incentive forrightholders to provide the services that otherwise libraries, archives, museums and educa-tional institutions can organize by themselves. At the same time, such institutions may find itmore efficient to rely on services offered by the rightholders (or entities acting with their con-sent) instead of using the aforementioned exceptions or limitations. For example, a librarymay prefer to obtain on a contractual base an e-lending service performed by a publisher

254

or a coalition of publishers instead of buying a certain amount of phisical copies of books,digitise them, and create the technical infrastructure which is needed to exploit the corre-sponding exception or limitation. Another example could be the massive digitisation of thecollections of libraries and archives: even if allowed by the law, it is very unlikely that suchinstitutions will ever do it. However, the mere fact that they could may create an incentive forrightholders to invest in such activities and provide value-added services built on that her-itage.Moreover, exceptions or limitations are typically limited in scope. For example, many of themdo not allow the utilization of an entire work or cover only acts which are not performed forprofit. Consequently, they leave a great amount of free space for initiatives which go beyondtheir intrinsic limitations.In some cases, taking advantage of these opportunities may require the intervention of col-lective rights management organizations, which, in turn, would have to extend proportion-ally the range of the rights that they manage. For example, the digitisation and re-use ofout of print works may become reality (e.g. to build digital libraries which could be used byacademic institutions to provide their services also on-line) if collecting rights managementorganizations extend their reach to the rights required for digital reproduction and makingavailable on-line. To this end, such organizations should lobby for the introduction of thelegislative measures that may be needed (e.g. to implement extended collective licensingmanagement systems).

SummarySummary

AbstractAbstractItalian law provides for exceptions and limitations to copyright protection for libraries andarchives as well as for education and research institutions. Such exceptions and limitationsapply in respect of specific acts of reproduction and of communication and making avail-able within the strict limits of Article 5 of Directive 2001/29/EC and in compliance with theThree-Step Test.The provisions on exceptions and limitations to copyright protection are only statutory, andour jurisdiction does not have a general or broad exception or limitation such as a Òfair useÓrule.Based on the assessment of existing legislation, it is recommended that exceptions and limi-tations for libraries and archives and for education and research institutions be adjusted andextended to take into consideration the needs of the digital environment and of the globalscope of science and learning.Harmonization in the area of exceptions and limitations to copyright protection both at theregional and the international level is also strongly desirable in order to avoid the negativeeffects on cross-border transactions and the further development of international trade.


It must be considered that pursuant art.art. 71-decies71-decies all exceptions and limitation provided bythe Italian copyright Act apply also to neighbouring rightsneighbouring rights.

255

I.)I.)

1)1)

a)

JapanJapan


in the name of the Japan Groupby Takashi NAKAZAKI, Hirohito KATSUNUMA, Nobuyuki KASHIWA, Ayako KANEKO, Kaoru

KURODA and Tsuyoshi SUEYOSHI


QuestionsQuestions




yes


yes

(1) A library, etc. is permitted to make reproduction of a work included in its librarymaterials (meaning collection items of such library, etc.), where it is necessary for thepurpose of preserving the library materials (Article 31(1)(ii) of the Copyright Act (here-inafter the references to law provisions are references to this Act, unless otherwise indi-cated); however, such reproduction is not transferrable to users (Article 47-10).

As a consequence of the wording which reads "where it is necessary for the purposeof preserving library materials," the application of this provision is limited, namely, tothe case where the condition of a library material is deteriorating (e.g. a book madeof acid paper). Reproductions by the use of microfilm or digital technology would betypical means of reproduction contemplated by this provision. The manner of repro-duction would also include replacement of obsolete digital recording media with newones (Copyright Law 2nd Edition, by Nobuhiro Nakayama, Yuhikaku Publishing (here-inafter referred to as "Nakayama"), p.316).

(2) In addition to the case mentioned in (1) above, the National Diet Library may makea record of a work included in the library material onto a recording media, if the elec-tronic or magnetic record of such material is to be prepared for making it availableto the public in lieu of the original thereof, so as to avoid deterioration, damage ordefacement that may be caused by making the original available to the public (thefirst sentence of Article 31(2)). Such reproduction is not transferrable to users (Article47-10). However, a user may view a reproduction thereof in an electronic or magneticrecord using a computer installed at the library, as such viewing is within the scope ofa presentation for not-for-profit purpose (Article 38(1)).

This provision differs from the one mentioned in (1) above in that the purpose is "toavoid deterioration, damage or defacement." This means that the National Diet Libraryis permitted to make reproductions even where the condition of a library material isnot deteriorating, and may make digital archives by making reproductions immediate-

256

b)

c)

d)

ly after the materials are received by the library. The reason for this is based on con-sideration of the significantly important mission of the National Diet Library to preserveand pass on materials to the future (Nakayama, p.316).


yes

(1) A library, etc. may, in response to a request from other libraries, etc., make a re-production of a work included in library materials if it provides a work which is difficultto obtain due to such work being out of print or other similar reasons (Article 31(1)(iii)).Unlike the case provided in Article 31(3), automatic public transmission is not allowed.Further, such reproduction is not transferrable to users (Article 47-10). A typical casewould be the case where the other library needs to supplement missing parts of a mag-azine which is difficult to obtain, but not the case where the other library does not havesufficient funds (Nakayama, p.316).

(2) In addition to the case mentioned in (1) above, the National Diet Library may,for the purpose of presenting the work contained in the out-of-print materials to thepublic at such other libraries, etc., make a record of the work contained in the out-of-print materials onto a recording media (the second sentence of Article 31(2)), andthen make an automatic public transmission (i.e. facsimile, email) thereof to the otherlibraries, etc. using the reproduction of said work recorded onto the recording media(the first sentence of Article 31(3)). However, such reproduction is not transferrable tousers (Article 47-10).


yes

(1) A library, etc. may make a reproduction of a work contained in library materialswhere, in response to a request from its users, it provides a reproduction of such work(Article 31(1)(i)). A library, etc. may transfer such reproduction to its users (by way ofhand delivery or postal mail) (Article 47-10); however, not by way of automatic publictransmission (e.g. facsimile or email to users (public)).

(2) In the case referred to in b.(2) above, a library, etc. may prepare and provide, inresponse to a request from its users, a production of the work delivered by way of au-tomatic public transmission (e.g. facsimile, email) from the National Diet Library (thesecond sentence of Article 31(3)). Such library, etc. may transfer such reproduction toits users (by way of hand delivery or postal mail) (Article 47-10).


yes

(1) The National Diet Library may make a reproduction of a work contained in theInternet material of the state government, local governments, incorporated adminis-trative agencies and other organizations, to the extent deemed necessary for the pur-pose of gathering such materials (Article 25-3 of the National Diet Library Act, Article42-4(1) of the Copyright Act).

(2) A national or local archive, etc. may make a reproduction of a work contained in ahistorical public record, for the purpose of preservation of such historical public record(Article 42-3(1)).

257

2)2)

(3) A national or local archive, etc. may make a reproduction of a work contained ina historical public record (Article 42-3(2)) and transfer such reproduction to its users(Article 47-10), for the purpose of providing or presenting it to the public.


These exceptions or limitations apply to only certain organizations.

(1) Provisions applicable only to the National Diet Library:- the first sentence of Article 31(2): reproduction of works by the use of electronic or magneticrecords so as to avoid deterioration of conditions of materials that may be caused by publicuse- the second sentence of Article 31(2), the first sentence of Article 31(3): automatic publictransmission of out-of-print materials to other libraries, etc. (the first sentence of paragraph(3)) and reproduction thereof into an electronic or magnetic record for that purpose (the sec-ond sentence of paragraph (2))- Article 42-4: reproduction of works relating to the Internet material of the state government,local governments, incorporated administrative agencies and other organizations.

(2) A provision applicable only to national/local archives:- Article 42-3: a reproduction for the purpose of preservation of a historical public record,and a reproduction for the purpose of providing or presenting it to the public

(3) In addition to those mentioned in (1) and (2), facilities to which the limitation on copyrightapplies are designated by the laws and a Cabinet Order as follows:- The National Diet Library (the main paragraph of Article 31(1))- Public libraries (i.e. libraries established by local governments)(Article 2 of the Library Act)- Private libraries (i.e. libraries established by the Japan Red Cross Society, a general incor-porated association or general incorporated foundation)(Article 2 of the Library Act)- Libraries of universities, libraries of colleges of technology (Article 1-3(1)(ii) of the Order forEnforcement of the Copyright Act)- Libraries of the National Police Academy (Article 27 of the Police Act), the National DefenseAcademy (Article 15 of the Act for Establishment of the Ministry of Defense) and the NationalDefense Medical College (Article 16 of the same Act)(Article 1-3(1)(iii) of the Order for En-forcement of the Copyright Act)- National museums, museums, the National Museum of Modern Art, etc. (Article 1-3(1)(iv)of the Order for Enforcement of the Copyright Act)- Affiliated research institutions of national government agencies and local governments (Ar-ticle 1-3(1)(v) of the Order for Enforcement of the Copyright Act)- Other facilities designated by the Commissioner of the Agency for Cultural Affairs (Article1-3(1)(vi) of the Order for Enforcement of the Copyright Act). These facilities are publicizedin the "Article 31 of the Copyright Act" section on the page "List of copyright-related publicnotices of the Agency for Cultural Affairs" on the website of the Copyright Research and In-formation Center (http://www.cric.or.jp/db/domestic/bu_index.html).

In order to qualify for the exceptions/limitations, all of the aforementioned facilities are re-quired to have librarians or other officers (the main paragraph of Article 1-3(1) of the Orderfor Enforcement of the Copyright Act).

The abovementioned facilities are exclusive and no other facilities are permitted to make re-productions. For example, libraries of primary or secondary educational institutions, includ-ing elementary schools, middle schools and high schools, and company libraries are notpermitted to make reproductions.

258

3)3)

4)4)

5)5)

a)

In order for the abovementioned facilities to be allowed to make reproductions, they must doso within the scope of non-profit-making activities (the main paragraph of Article 31(1)). Forthese facilities themselves, there is no for-profit/not-for-profit purpose requirement.


(1) A reproduction for the purpose of a user's research or study is subject to the followingconditions (Article 31(1)(i), the second sentence of Article 31(3)):(a) The user must use such reproduction for research purposes. However, it is practically dif-ficult for a library to evaluate the purposes of each user.(b) Only a portion of the entire work may be reproduced. This requirement has been imposedso as to strike a balance between copyright holders and users. It is generally understood that"a portion" means less than half of the entire work. However, it is not practical to under-stand that only half of a single item of a dictionary, photograph, painting or haiku can bereproduced. Therefore, supplementation by an interpretative approach would be necessary(Nakayama, p.313).(c) As an exception to (b) above, an individual work contained in a periodical published fora considerable period of time may be reproduced in its entirety. A typical example of suchwork is an academic paper contained in a magazine. The benchmark for "considerable pe-riod of time" would be the period until the periodical goes off the market, as the copyrightholder's right would be less likely to be prejudiced after such period (Nakayama, p.314).(d) Only one copy of a reproduction should be provided to each user.

(2) Only the National Diet Library is expressly permitted to make an electronic or magneticrecord of a work onto a recording media (Article 31(2)) and to make automatic public trans-mission thereof to other libraries (Article 31(3)).

Contrary to this, general libraries, etc., which are permitted to make reproductions, are notprohibited from making such reproductions by way of electronic or magnetic record (Article31(1)). However, such libraries may not make automatic public transmission of reproduc-tions.


(1) The work must be a library material (e.g. the library's collection items) (the main para-graph of Article 31).

(2) In the case of a reproduction for a user's research and study (Article 31(1)(i), the secondsentence of Article 31(3)), such work must be a published work.

(3) In the case of a reproduction in response to a request from another library, etc. (Article31(1)(iii)), the work must be one which is difficult to obtain due to such work being out ofprint or other similar reasons.


yes


259

b)

no

With regard to performance, etc., although there is no copyright limitation focused oneducational purpose, such activities are covered by the provision on not-for-profit pur-pose performance, etc. (i.e. performance, presentation or recital) (Article 38). In prac-tice, school plays are often performed based on a modified scenario, depending onthe school grade of the students who make performance, etc. of the work or the timerestraints. Such a case may involve the issues of exploitation by means of adaptation(Article 43) and the right to maintain integrity (Article 20).

Adaptation: Exploitation by means of adaptation is not allowed (Article 43). By not al-lowing adaption for school plays as mentioned above, the possibility of inconveniencefor users (e.g. pupils, students) may not be denied (Nakayama, p.346).

Right to maintain integrity: The author shall have the right to maintain the integrity ofhis work and its title, and no distortion, mutilation or other modification thereof shallbe made against his intent (Article 20(1)). In this regard, abbreviation of a long theatri-cal play for the purpose of a school play may in some cases satisfy the requirement ofan unavoidable modification (Article 20(2)(iv)). (Copyright Law 1st Edition by NobuhiroNakayama, Yuhikaku Publishing, p.276; Standard Copyright Law 2nd Edition by RyuTakabayashi, Yuhikaku Publishing, p.158).


yes

(1) It is permissible to reproduce a work in a school textbook (textbooks authorized bythe Minister of Education and Science or those compiled under the authorship of theMinistry of Education and Science), textbooks intended for correspondence courses ofhigh schools, and teachers' manuals for school textbooks (Article 33(1) and (4)) andtransfer such reproductions (Article 47-10)).

In such case, a notice to the author and payment of a certain amount of copyright com-pensation designated by the Agency for Cultural Affairs are required (Article 33(2)).

(2) It is permissible to reproduce a work already reproduced in a school textbook byenlarging the letters and characters and other necessary methods for the purpose ofproviding the same for use by pupils or students with visual disabilities or developmen-tal difficulties (Article 33-2(1) and to transfer such reproductions (Article 47-10). The"necessary methods" here would include, in addition to enlargement, digital recording(Nakayama, p.332). A notice to the publisher of a textbook is required. In addition,for commercial use, it is necessary to pay compensation to the copyright holders[A1](Article 33-2(2)).

(3) A person who teaches a lesson, and those who receive the lesson, in a school orother educational institutions may, for the purpose of making a work available in thecourse of the lesson, reproduce a work (Article 35(1)) and transfer such reproductions(Article 47-10).

(4) It is permissible to reproduce or make public transmissions (i.e. for the purpose ofexamination in a distant place) of a work for questions for a school entrance examina-tion, knowledge or skill examination or license examination (Article 36(1)).

260

c)

Reproduction or public transmission for use in a for-profit examination (e.g. companyemployment examination) requires compensation payment to the copyright hold-er　(Article 36(2)). Due to the confidential nature of exam questions, a notice to theauthor is not required. This Article is irrelevant to reproduction of past exam ques-tions books sold on market, as such reproduction is not for the purpose of examination(Nakayama, p.336).

Exam questions include so-called fill-in-the-blank questions and questions requiring anexaminee to find and correct an error. Such questions may involve the issues of ex-ploitation by means of adaptation (Article 43) and the right to maintain integrity (Article20).

Adaptation: Exploitation by means of adaptation is not allowed (Article 43). For thepurpose of the Copyright Act, "adaptation" means "modification to external expressionsby such way of dramatizing, while maintaining innate expressions of the original work"(Nakayama, p.154). The aforementioned cases (fill-in-the-blank questions and ques-tions requiring an examinee to find and correct an error) would often be outside thescope of "adaptation."

Right to maintain integrity: The author shall have the right to maintain the integrity ofhis work and its title, and no distortion, mutilation or other modification thereof shallbe made against his intent (Article 20(1)). The issue of fill-in-the-blank questions, etc.comes down to the issue of whether it is an unavoidable modification (Article 20(2)(iv))(Nakayama, p.338).


yes

(1) Translation, arrangement, transformation or adaptation of a work (Article 43(i)) ispermitted in the following cases:- Reproduction in school textbooks, etc. (Article 33(1) and (4))- Broadcasting of the work in school education programs, reproduction of the work ineducational material for such program (Article 34(1))- Reproduction for the use at school and other institutions (Article 35(1))- Simultaneous distance education (Article 35(2))

(2) A translation (Article 43(ii)) can be made in the following cases:- Making and providing reproduction at the request of a user of a library, etc. (Article31(1)(i), the second sentence of Article 31(3))- Reproduction and public transmission for use in exam questions (Article 36)- Reproduction in Braille, recording and public transmission for people with disabilitiesincluding visual disabilities (Article 37(1) and (2))

(3) A transformation or adaptation (Article 43(iii)) can be made in the following case:- Reproduction for children with disabilities such as visual disabilities and developmentdifficulties (Article 33-2(1))

(4) A translation, transformation or adaptation (Article 43(iv)) can be made in the fol-lowing case:- Making transcription of sounds for people with disabilities including visual disabilities(Article 37(3))

(5) A translation or adaptation (Article 43(v)) can be made in the following case:- Reproduction, etc. for people with auditory disabilities (Article 37-2)

261

d)

e)

f)


yes

(1) It is permissible to broadcast a work in a school education program, such as TheOpen Air University of Japan, and reproduce it in the teaching material for such pro-gram (Article 34(1)), and transfer such reproduction (Article 47-10). A notice to the au-thor and payment of a reasonable amount of compensation is required (Article 34(2)).

(2) In the course of the class, if the original or reproduction of a work is provided orpresented (Article 35(1)) or performed (Article 38(1)), it is permissible to make a publictransmission for reception by those who are receiving the same lesson at the same timein a distant place (Article 35(2)), namely, simultaneous distance education.

Making sound or picture recording of such work and re-transmission thereof at a dif-ferent time is within the scope of Article 34(1) as mentioned in (1) above. Meanwhile,as the transmission within the same facility premises does not fall under "automatictransmission" (Article 2(1)(vii), in parentheses), this Article does not apply (Nakayama,p.335).


yes

(1) It is permissible to exploit a work already made public by way of quotation, providedthat such quotation is compatible with fair practice and to the extent justified by the pur-pose of the quotation, such as research (Article 32(1)), and to transfer the cited work(Article 47-10).

(2) It is permissible to exploit a work already made public to the extent deemed nec-essary for the purpose of a test for development or commercialization of technologyrelating to sound recording, picture recording and other use of works (Article 30-4).


yes

(1) It is permissible to reproduce in Braille a work for people with visual disabilities(Article 37(1)), to record a work on a recording medium or to make public transmis-sions of a work by means of a Braille-processing system (Article 37(2)), and to makesound recordings and make automatic public transmissions using such recordings (Ar-ticle 37(3)).

(2) It is permissible to reproduce the sound by way of transcription and make automaticpublic transmission thereof for the benefit of people with auditory disabilities (Article37-2(i)). In addition to making a transcription, it is permissible to make a reproductionof a work solely intended for lending to people with auditory disabilities (Article37-2(ii)). The example of item (ii) is a reproduction of a cinematographic work withsubtitles and sign language (Nakayama, p.344).

262

6)6)

7)7)


(1) In principle, only not-for-profit educational institutions (Article 35(1)) are eligible to makereproductions of a work (Article 35(1), in parentheses); however, this Article applies to a for-profit organization if and to the extent a stock company is allowed to operate a school (Article12 of the Act on Special Districts for Structural Reform). Further, it is understood that theseeducational institutions include specialized training colleges and vocational schools, etc., inaddition to elementary schools, middle schools, high schools and universities (Nakayama,p334).

(2) Reproduction, etc. in order to prepare a school textbook, etc. in large print (Article 33-2)is permissible for for-profit organizations; however, these organizations are required to paya certain amount of compensation as designated by the Commissioner of the Agency forCultural Affairs (Article 33-2(2)).

(3) Reproduction and public transmission of a work for use in an exam question (Article 36)is permissible for for-profit organizations, however, these organizations are required to paycompensation equivalent to the ordinary royalty rate (Article 36(2)).

(4) In relation to performance, etc. for not-for-profit purposes (Article 38), a charge-free per-formance, etc. for promotional purposes of a commercial company is understood to consti-tute copyright infringement, as such performance is intended for a commercial purpose ofincreasing sales by way of promotion and therefore is outside the scope of this Article, evenif such performance contains some educational elements.

(5) In relation to not-for-profit purpose performance, etc. (Article 38), a performance by aschool operator company which is a commercial company (Article 12(2) of the Act on Spe-cial Districts for Structural Reform) satisfies this Article if it is charge-free and for education/research purposes (Table of Article 12(11), the Act on Special Districts for Structural Reform).


(1) The following conditions are required for reproduction, etc. at schools and other educa-tional institutions (Article 35(1)) and public transmission for simultaneous distance education(Article 35(2)).(a) Reproduction is permissible only for a person who teaches a lesson, and those who re-ceive the lesson (i.e. both a teacher's and student's activities are covered.)(b) These activities must be for the purpose of use in the course of lessons.(c) These activities must be done within the extent deemed necessary.(d) The work must be one which has already been made public.(e) These activities must not unreasonably prejudice the interests of the copyright holder.

For example, a teacher's reproduction of a purchased exam question book for the purposeof distributing it to students, or reproduction of a computer program for use in class on com-puters to be used by students are not allowed (Nakayama, p.335).

Reproduction, etc. at schools and other educational institutions (Article 35(1)) does not re-quire the payment of compensation to copyright holders (i.e. free-of-charge). Consequently,such activities are subject to stricter conditions compared to reproduction for use in schooltextbooks (Article 33) or educational broadcasting programs (Article 34) (Nakayama, p.334).

263

8)8)

9)9)

10)10)

11)11)

(2) Reproduction and public transmission of a work for use in exam questions (Article 36(1))are subject to the following conditions:(a) The work must be one which has already been made public.(b) These activities are permitted only to the extent deemed necessary for the purpose of ex-aminations and tests.(c) In the case of public transmission, such activity must not unreasonably prejudice the inter-est of copyright holder.

This provision was introduced based on the consideration that a public transmission (onlineexamination) more likely to unreasonably prejudice the interests of copyright holder com-pared to reproduction for a paper exam (Nakayama, p.337).

(3) In relation to a not-for-profit purpose performance, etc. (Article 38), both teachers andstudents are allowed to make a performance of a work, as there is no restriction on the per-son who is allowed to make a performance, etc. of the work.


The provision on use of works for educational/research purposes only covers works whichhave already been made public (Articles 32 through 38).



As explained above, in principle, all exceptions/limitations to copyright protection are stipu-lated by the statutory provisions. These exceptions/limitations are considered exclusive, andexceptions/limitations to copyright protection based on the fair use doctrine not stipulated bylaw is not allowed.


The statutory provisions on exceptions/limitations to copyright protections, as mentionedabove, are understood to codify the activities which satisfy the three-step test under theBerne Convention in accordance with the nature thereof, respectively. Therefore, the issue ofwhether the exceptions/limitations to copyright protection apply is determined solely from thestandpoint of whether the activity in question satisfies the requirement of the relevant statu-tory provision. Whether the activity in question satisfies the three-step test under the BerneConvention is not directly taken into account as a requirement for the application of excep-tions/limitations to copyright protection (See SKY PerfecTV case (Tokyo District Court decisionon 16 May 2000) in which the court directed the same conclusion).


The provisions on exceptions/limitations to copyright protection as stipulated in Articles 30through 47-10 of the Copyright Act are automatically applied only if the requirements there-under are met. There is no need for further procedures, such as applying for licenses fromcopyright holders or administrative agencies.

264

12)12)

13)13)

14)14)

15)15)


For certain use activities, right of compensation is guaranteed (Article 33(2), Article 33-2(2),Article 34(2), Article 36(2) and Article 38(5)). Under these provisions, it is a user who is re-quired to make payment of compensation, and the right to receive compensation is vestedin a copyright holder. The amount of the compensation is as follows: in the case of a repro-duction in school textbooks (Article 33(2), Article 33-2(2)), the amount "which will be fixedeach year by the Commissioner of the Agency for Cultural Affairs"; in the case of broadcast-ing of a school educational program (Article 34(2)) and not-for-profit lending of cinemato-graphic films, etc. (Article 38(5)), "a reasonable amount of compensation"; and in the caseof reproduction for exam questions (Article 36(2)), "compensation in an amount which corre-sponds to the ordinary royalty rate." Among these, the amount "which will be fixed each yearby the Commissioner of the Agency for Cultural Affairs" is to be determined each year af-ter the Commissioner consults with the Council for Cultural Affairs (Article 71). The order ofthe amount of these compensations is understood as follows: the amount which will be fixedeach year by the Commissioner of the Agency for Cultural Affairs＜a reasonable amount ofcompensation＜compensation in an amount which corresponds to the ordinary royalty rate.


In relation to exceptions/limitations under the Copyright Act, there is no special provision fororphan works. Namely, in relation to exceptions/limitations under the Copyright Act, there isno specific difference in the treatment between orphan works and other works. In the caseof compensation for reproduction in a school textbook, etc. (Article 33(2), Article 33-2(2)),the payer is required to make a deposit of the amount "which will be fixed each year by theCommissioner of the Agency for Cultural Affairs" instead of paying it [to the copyright holder](Article 74(1)(ii)).


In relation to this issue, authors are divided into two approaches, namely, an approach toconsider the exceptions/limitations as non-mandatory provisions which may be overriddenby the parties' contract, and an approach to consider such contract clause to be null andvoid. There have been no court precedents which expressly deals with this issue. The issue ofvalidity of such contract clause should be determined by taking into consideration the entiretyof various factors, such as the necessity (i.e. situations which necessitate the copyright hold-ers to incorporate such clause) and proportionality (i.e. degree of the user's disadvantagecaused by such clause) of such clause, rather than by across-the-board assessment.


yes

For libraries, the Japan Library Association, the National and Private University LibrariesCooperation Committee and the National Public Library Association, which constitute theStakeholders Association for Use of Works in Libraries, has developed the guidelines called"Guidelines on Reproduction of Books Physically Loaned under Libraries CooperationArrangement" so as to facilitate provision of reproduction of books. With regard to the issueof payment of compensation to the copyright holder in the case of use by educational in-stitutions, the Textbook Publishers Association of Japan, comprised of textbook publishers,

265

II.)II.)

16)16)

17)17)

18)18)

has entered into memorandums with each of the copyright collective societies (the JapanWriter's Association for literal works, the Japanese Society for Rights of Authors, Composersand Publishers (JASRAC) for musical works, Japan Artists Association, Inc. for artistic works,the Japan Professional Photographers Society for photographic works, and Art, Photographand Graphic Design Japan for foreign artworks) so as to facilitate payment of compensation.



yes

The following literature is stored in libraries and archives:- Literature which serves as basis of research.- Literature which has academic value and becomes the subject of research.- Literature which is out-of-print or difficult to obtain.- Literature kept only by libraries in distant places.In light of the development of culture, reproduction and provision of such literature, as wellas reproduction for the purpose of preservation, should be allowed by creating exceptions/restrictions on copyright protection.


yes

Education (in particular, education of the national language and foreign languages and mu-sical education) is given by the use of existing works. In order to provide high-quality educa-tion, it is essential to use a work in a textbook and exam questions, to reproduce, present orrecite a work in the course of classes, and to make an adaptation of a work for pupils andstudents with disabilities. Further, it is also necessary to allow pupils and students to use awork (by such way of performance and recital). These activities should be allowed from thestandpoint of fostering people to lead cultural development for the next generation.

Understanding of prior research achievements is essential for the creation of new researchthemes. Prior achievements are found in academic journals and books. For the purpose ofresearch, exceptions/limitations to copyright protection should be allowed to a certain extentwhile striking a balance between the research and protection of work. For example, a repro-duction of a periodical should be allowed after a reasonable period has elapsed from therelease of such periodical.


no

We do not believe that the three-step test is useful.

The three-step test is important as a theoretical principle; however, this test is merely an ab-stract norm, which does not directly serve the basis of rights and obligations in Japan. In oth-er words, the three-step test is not a norm relied upon by the court. The use in question qual-ifies for an exception to copyright protection only if such use satisfies the requirements underthe statutory exception stipulated in the Copyright Act of Japan, not the requirements underthe three-step test (Tokyo District Court decision on 16 May 2000, Hanrei Times No.1057,at 221).

266

19)19)

20)20)

21)21)


In principle, exceptions/limitations to copyright protection in relation to libraries/archives andeducational/research institutions should not be capable of being overridden by contract.

The exceptions/limitations to copyright protection have been created mainly from the stand-point of public interests. Moreover, those who benefit from these exceptions/limitations (e.g.people who receive education) are not formed into an organization, have less influence onlegislation, and are not in the strong position in negotiation between the parties. Therefore,the purpose of the legislation may be circumvented by allowing these exceptions/limitationsto be overridden by a contract.


We believe that compensation should be paid in the following circumstances: (i) a work, al-though provided primarily for the purpose of education and research, is also capable of be-ing used for normal purposes, or (ii) the purpose of use of a work includes both education/research and commercial purposes. An example of (i) is a reproduction of a work in a text-book. Pupils and students are allowed to use the work outside the class (namely, in the samemanner as the book purchased at the store), in addition to usage as part of the class. Anexample of (ii) is the reproduction of a work for the purpose of use in questions for for-profitexaminations or tests.


A library may not lend a cinematographic work without a right holder's permissions, evenwhere such lending is not for profit and the library does not receive any consideration fromthe lessee (exception under the parentheses of Article 38(4)). It is not always appropriateto apply this restriction to all cinematographic works (meaning not only commercial moviespresented on a screen, but generally meaning works containing moving picture expressions).

It is not permissible under law to transmit a reproduction by way of facsimile or e-mail, evenif reproduction thereof at a library is permitted (Article 31(1)). The reason for this is that trans-mission of a reproduction by facsimile or as an attachment to an e-mail correspondenceconstitutes an exploitation which is separate from the reproduction (i.e. public transmission).Such limitation is inconvenient for users, nor is it reasonable (for the stakeholders' opinionsas to this issue, see the report of the Council for Cultural Affairs, Subdivision on Copyright,January 2006, pp.20-24).

It is permissible for Library A that has an out-of-print book to make a reproduction of suchbook and provide it to Library B in response to a request from Library B (Article 31(3)). How-ever, it is not permissible under law for Library B to reproduce said book borrowed fromLibrary A. There may be a case where Library B physically borrowed the actual book fromLibrary A at the request of a user, and the user desires to obtain a copy of a portion of saidbook. However, under the laws, even if the actual book is physically present before the user,reproduction is possible only after the book is returned to Library A (In practice, such mannerof reproduction is permitted under the guidelines. See "Guidelines on Reproduction of BooksPhysically Loaned under Libraries Cooperation Arrangement")(for the stakeholders' opinionsas to this issue, see the report of the Council for Cultural Affairs, Subdivision on Copyright,January 2006, pp.17-20)

267

III.)III.)

22)22)

23)23)

24)24)

a)

The National Diet Library may make an automatic public transmission of a work included inlibrary materials to other libraries (limited to those prescribed in the main paragraph of Arti-cle 31(1)), if such work is difficult to obtain due to such work being out of print or other simi-lar reasons (hereinafter "out-of-print materials"). The other library may make a reproductionand provide a portion of said work at the request of its user (Article 31(3)). As a result, theuser is able to obtain a reproduction of a portion of such work at the nearest library, withoutthe need to visit the National Diet Library. However, under the current laws, it is not permis-sible for a user to apply directly with the National Diet Library via the Internet for the repro-duction, and then receive the reproduction using the Internet (for the stakeholders' opinionsas to this issue, see the "Intermediate Summary" prepared by the Council for Cultural Affairs,Subdivision on Copyright, the Subcommittee on Protection and Use of Prior Works, October1, 2008, pp.40-48).



yes

Libraries/archives often deal with foreign literature. If harmonization is not achieved, theavailable scope and manner of the same literature may vary among countries/jurisdictions.Considering the significant role of libraries/archives in terms of contribution to cultural de-velopment, significant difference among countries/jurisdictions is not desirable and thereforeharmonization should be attained to the maximum extent.

For education/research institutions, the limitation on copyright protection plays an importantrole in the efficacy of education. Without harmonization, some countries/jurisdictions maynot attain a sufficient level of education. Such situation is not appropriate. Considering thesignificant role of education/research in terms of contribution to the development of society,harmonization should be attained to the maximum extent.



no

Not applicable, as the answers to both Questions 16 and 17 are "Yes."



In Japan, libraries to which the limitations to copyright protection apply are designatedby a Cabinet Order, namely: (i) public libraries established by local governments;(ii) libraries of universities, libraries of colleges of technology (libraries of elementaryschools, middle schools and high schools are not included); (iii) the National PoliceAcademy and the National Defense Academy; (iv) national museums and art galleries;(v) research institutes for academic studies; and (vi) facilities established not based onlaws, which are similar to those specified (iv) or (v) and designated by the Commission-er of the Agency for Cultural Affairs.

268

b)

c)

25)25)

a)

b)

Some people are of the opinion that these limitations should be also applied to com-pany libraries; however, we believe that it is premature to do so.


It has been reported that a few libraries lend e-books with the cooperation from thecopyright holders, and some people are of the opinion that the law should be revisedto allow other libraries to provide such service. However, we believe that revising thelaw without sufficiently considering measures to secure technical security and return ofe-books may lead to a negative impact on protection of right holders of works.

In addition, libraries are large customers of books that support the publication culture.In the case of e-books, the maximum number of copies available for lending to usersshould correspond to the number of subscription licenses, otherwise sales of the bookwill decline, having a material impact on the preservation of publication culture. Thus,we believe that it is premature to apply exceptions/limitations to copyright protection tolending of e-books.


The issue relating to lending e-books may be discussed, subject to fulfillment of an en-vironment which can securely and sufficiently protect the right holders of works (e.g.sufficient technical safety measures should be secured for e-books to be loaned; thereshould be secure means of return of loaned e-books and libraries should be equippedwith personnel and a physical system to secure return of e-books; the maximum num-ber of e-books available for lending should be limited to the number of subscriptionlicenses).



Article 35(1) provides that it is applicable to "a person who teaches a lesson, and thosewho receive the lesson, in a school or other educational institution (excluding, however,those institutions established for profit-making purposes)" (such school or other educa-tional institutions includes elementary schools, middle schools, high schools, secondaryeducation schools, universities, colleges of technology, schools for the deaf, schools forthe blind, schools for disabled children, kindergartens, specialized training colleges,miscellaneous schools, etc., as well as social educational facilities such as communityhalls and youth houses, education and training facilities such as education centers, andvocational facilities such as vocational training centers.)

However, this provision does not cover academies or cultural seminar centers run byprivate persons and companies' employee training facilities, although these institutionshave the same level of needs of using works as the educational institutions.

Some of these institutions are equipped with high-level educational functions; however,it is quite difficult to establish a clear criteria. As such, discussion for the extension ofthe scope of application to these institutions should be the future challenge.


269

c)

26)26)

27)27)

By the revision of 2003, Article 35(2) provides a limitation on copyright protection re-lating to a public transmission of a work for those who are receiving the same lesson atthe same time at different locations, provided that those who receive the same lessonare present simultaneously on both the transmitting side and the receiving side.

However, an increasing number of people engaged in education opine that this provi-sion should be revised: namely, when using published digital works for classes, storingthe teaching material on a computer server to use them for the preparation for theclass or follow-up activities would constitute "non-simultaneous use" which would un-reasonably prejudice the interest of copyright holders, and therefore requires obtaininglicenses from the copyright holders for each instance, but, against the backdrop of thecritical importance of e-learning for the improvement of quality of education and antic-ipation toward the promotion and dissemination of use of e-learning, such restrictionunder the Copyright Act is an obstacle to the improvement of quality of education.


Reference: Requests dated December 25, 2013, submitted by the Japan UniversitiesAssociation for Computer Education to the Council for Cultural Affairs, Subdivision onCopyright][i] The work should only be used for the purpose of classes of schools and other edu-cational institutions.[ii] The recipients of the automatic public transmission should be limited to studentsand teachers. IDs and passwords shall be assigned for limiting the users.[iii] Works that are in stores for purchase by individual students should be excluded.[iv] Appropriate measures should be taken for works subject to the automatic publictransmission so as to avoid reproduction and tampering. For example, footage shallbe distributed by way of streaming, and still pictures and texts should be in PDF format.[v] Compliance guidelines on copyright protection relating to e-learning should be de-veloped, so as to ensure guidance and education for the teachers and students by wayof seminars and the Internet.



"Use under the exceptions/limitations" is considered as a use which satisfies the requirementof the statutory provisions on the exceptions/limitations. Accordingly, such "use under the ex-ceptions/limitations" should be automatically allowed without the need for further actions.We believe that there is no need for requiring the user to satisfy any further criterion or pro-cedures.


Compensation for use under the exceptions/limitations should be calculated by consideringvarious factors, such as the purpose of the provision, whether the use is for commercial pur-pose or not, the necessity of use of the work, disadvantages to the copyright holder, disad-vantages to the users, the frequency of reproduction and use, and type of work. A user of thework is responsible for the payment of compensation, and such compensation shall be paidto the copyright holder who owns the copyright.

270

28)28)

29)29)


Where a user is required to pay any compensation to a copyright holder, there will arisea problem that a user cannot pay compensation to the copyright holder for use of orphanworks. For the use under the exceptions/limitations, the payment of compensation is not acondition precedent for the use of a work, and non-payment of compensation does not im-mediately give rise to copyright infringement. Non-payment of compensation only consti-tutes default of monetary obligation (Commentary on Copyright Act II, Masao Handa andMasayuki Matsuda ed, Keiso Shobo, p.239).

As mentioned above, the uses under the exceptions/limitations which require the paymentof compensation are as follows: (i) reproduction in school textbooks (Article 33(2), Article33-2(2)); (ii) reproduction as exam questions (Article 36(2)); (iii) broadcasting of a schooleducational program (Article 34(2)) and (iv) not-for-profit lending of cinematographic films,etc. (Article 38(5)).

Among these, with regard to (i), if the person liable to pay the compensation cannot ascertainthe copyright holder without any negligence (which would include the case of an orphanwork), the amount of the compensation "which will be fixed each year by the Commissionerof the Agency for Cultural Affairs" to be paid to the copyright holder shall be deposited in-stead of paying it [to the copyright holder] (Article 74(1)(ii)). With regard to (ii) through (iv)above, there is no special provision applicable to the case of orphan works.

However, in the case of orphan works, there is no reason to treat the compensation paymentunder (ii) through (iv) differently from the payment under (i), and, like the case of (i), a pro-vision which requires the users to deposit compensation for orphan works should be createdalso for the cases of (ii) through (iv).

However, in the case of (i), the amount of compensation is the amount "which will be fixedeach year by the Commissioner of the Agency for Cultural Affairs" and thus the amount tobe deposited is fixed. On contrary, the cases of (ii) to (iv) involves a problem that the amountto be deposited is not fixed as such amount is left to separate consultation between the usersand copyright holders. In this regard, it may be appropriate to require users to deposit theamount designated by the Commissioner of the Agency for Cultural Affairs in the same man-ner as Article 67(1).


It is understood that such circumstance should be determined by considering the totality ofvarious factors, such as the purpose of the statutory provisions on exceptions/limitations, thenecessity, the degree of disadvantages to the user of the work, and the public interests. How-ever, the provisions related to libraries, archives and education/research institutions, whichrelate to the Working Question, closely relate to public interest, and overriding such excep-tions/limitations by a contract would give a material disadvantage to users of works. As such,we believe that these exceptions/limitations should be understood as compulsory provisionswhich cannot be overridden by a parties' contract.

271


For facilitating compensation payment, we believe that efforts by private organizations fordistributing the collected compensation to copyright holders would be necessary. In addition,in order to enable such efforts by private organizations, it would be necessary to reconcilesuch efforts with exceptions/limitations provided by laws.

SummarySummary

Q2Q24646 Summary (Japan)Summary (Japan)

Library ExceptionsThe Copyright Act of Japan has statutory provisions for exceptions or limitations to copyrightprotection for libraries. A library, etc. is permitted to reproduce a work included in its librarymaterials (meaning collection items of such library, etc.), where it is necessary for the pur-pose of preserving the library materials (Article 31(1)(ii) of the Copyright Act). Also a librarymay, in response to a request from other libraries, reproduce a work included in its librarymaterials if the work is difficult to obtain due to such work being out of print or other similarreasons (Article 31(1)(iii) of the Copyright Act).

National Diet Library ExceptionsThe National Diet Library may make a record of a work included in the library material ontoa recording media, if the electronic or magnetic record of such material is to be prepared formaking it available to the public in lieu of the original thereof, so as to avoid deterioration,damage or defacement that may be caused by making the original available to the public(the first sentence of Article 31(2) of the Copyright Act). Also the National Diet Library may,for the purpose of presenting the work contained in the out-of-print materials to the public atsuch other libraries, etc., make a record of the work contained in the out-of-print materialsonto a recording media (the second sentence of Article 31(2) of the Copyright Act).

Education ExceptionsThe Copyright Act of Japan has statutory provisions for exceptions or limitations to copyrightprotection for educational purposes. It is permissible to reproduce a work in a school text-book (textbooks authorized by the Minister of Education and Science or those compiled un-der the authorship of the Ministry of Education and Science), textbooks intended for corre-spondence courses of high schools, and teachers' manuals for school textbooks (Article 33(1)and (4) of the Copyright Act). In principle, only not-for-profit educational institutions (Article35(1) of the Copyright Act) are eligible to make reproductions of a work (Article 35(1), of theCopyright Act, in parentheses).Also there are some exceptions for translations for educational purposes (Articles 33-35 ofthe Copyright Act).

Policy ConsiderationsAs an example, a library may not lend cinematographic work without the right holder's per-mission, even where such lending is not for profit and the library does not receive any con-sideration from the lessee (exception under the parentheses of Article 38(4) of the CopyrightAct). It is not always appropriate to apply this restriction to all cinematographic works (mean-ing not only commercial movies presented on a screen, but generally meaning works con-taining moving picture expressions).

272

HarmonizationArticle 35(1) of the Copyright Act provides that it is applicable to "a person who teaches alesson, and those who receive the lesson, in a school or other educational institution (ex-cluding, however, those institutions established for profit-making purposes)". Some of theseinstitutions are equipped with high-level educational functions; however, it is quite difficult toestablish clear criteria. As such, discussion for the extension of the scope of application tothese institutions is a future challenge.

Through the 2003 revision, Article 35(2) of the Copyright Act provides a limitation on copy-right protection relating to a public transmission of a work for those who are receiving thesame lesson at the same time at different locations, provided that those who receive the samelesson are present simultaneously on both the transmitting side and the receiving side.

However, an increasing number of people engaged in education are of the opinion that thisprovision should be revised. Namely, when using published digital works for classes, storingthe teaching material on a computer server to use them for the preparation for the class orfollow-up activities would constitute "non-simultaneous use" which would unreasonably prej-udice the interest of copyright holders, and therefore requires obtaining licenses from thecopyright holders for each instance. However, against the backdrop of the critical impor-tance of e-learning for the improvement of the quality of education and anticipation towardthe promotion and dissemination of use of e-learning, such restriction under the CopyrightAct is an obstacle to the improvement of the quality of education.


273

I.)I.)

1)1)

a)

b)

c)

d)

LatviaLatvia


in the name of the Latvia Groupby Ingrida VEIKSA, Inese KALNAJA-ZELCA and Agris BITANS


QuestionsQuestions




yes


yes

Pursuant to the provisions of ãthree step testÒ, each library, archive or museum is enti-tled to make one copy of a work or object of neighbouring rights existing in their per-manent collection by means of reproduction, without a direct or indirect commercialpurpose, inin orderorder toto preservepreserve itit oror toto replacereplace a work from the permanent collectionof the relevant or any other library, archive or museum if such work has been dam-aged or has become unusable on the condition that it is not possible to obtain a copyin some other acceptable manner, and the reproduction is repeated in separate andmutually unrelated cases. Only works or object of neighbouring rights that have beenpublished in Latvia and are not available commercially are permitted to be reproducedin a digital format, unless an agreement with the author determines otherwise (Art.23Part 1; Art. 54 Part 3 Point 3).


no

No such provisions.


yes

Libraries, archives and museums are entitled to make available the works and objectsof neighbouring rights in their permanent collection and copies thereof (which aremade in accordance with the provisions explained above) for the use for scientificscientific re-re-searchsearch oror forfor self-educationself-education purposes,purposes, to natural persons who have authorised accessto computers specifically set up in the premises of the library, archive or museum byusing exclusively the intranet that has special protection. (Art.23 Part 2; Art. 54 Part 3Point 3).


274

2)2)

3)3)

4)4)

5)5)

a)

yes

Copyright shall not be deemed to be infringed if without the consent of the author, butwith the payment of just remuneration, the published work is used for publicpublic lendinglending.(Art. 19.1 Part 1; Art. 54 Part 4).


Exceptions or limitations apply to the all libraries, archives and museums generally. Regis-tered libraries of state or municipality, or other derived public persons are entitled to makeavailable the works and objects of neighbouring rights (from their permanent collection forthe use for scientific research or for self-education purposes) only if they have access in aclosedclosed networknetwork toto thethe LatvianLatvian DigitalDigital LibraryLibrary and are included in the joint state library in-formation system. (Art.23 Part 3; Art. 54 Part 4). OrganisationsOrganisations forfor thethe visuallyvisually oror hearinghearingimpairedimpaired, as well as libraries which provide services to visually or hearing impaired, are per-mitted to reproduce and distribute works and objects of neighbouring rights, without remu-neration, for non-commercial purposes, in a form perceivable by such impaired insofar as isnecessary in the case of the relevant impairment. (Art.22; Art. 54 Part 3 Point 3).


Only one copy of a work or object of neighbouring rights existing in their permanent collec-tion may be made by means of reproduction and only inin orderorder toto preservepreserve itit oror toto replacereplacea work from the permanent collection of the relevant or any other library, archive or mu-seum if such work has been damaged or has become unusable on the condition that it isnot possible to obtain a copy in some other acceptable manner. Only works and objects ofneighbouring that have been publishedpublished inin LatviaLatvia and are notnot availableavailable commerciallycommercially arepermitted to be reproduced in a digitaldigital formatformat, unless an agreement with the author deter-mines otherwise. (Art.23 Part 1; Art. 54 Part 3 Point 3).


Each library, archive or museum is entitled to make a copy only from a work or object ofneighbouring rights existing in its permanent collectionexisting in its permanent collection (Art.23 Part 1; Art. 54 Part 4).


yes


yes

A work or object of neighbouring rights may be performedperformed inin publicpublic without the con-sent of the author or other right holder and without the payment of royalties within theframework of the implementationimplementation ofof anan educationaleducational programmeprogramme, to an extent thatcorresponds to the teaching process and for non-commercial purposes, with a manda-tory indication of the title and the name of the author of the work being used, and

275

b)

c)

d)

e)

f)

in compliance with the condition that the work is performed in public toto anan audienceaudienceconsistingconsisting ofof onlyonly thethe teachers,teachers, studentsstudents oror personspersons directlydirectly associatedassociated withwith thethe im-im-plementationplementation ofof thethe relevantrelevant educationaleducational programmeprogramme (Art.26 Part 2; Art. 54 Part 3Point 2).


yes

It being mandatory that the title and name of the author of the work are indicatedand that the provisions of ãthree step testÒ are observed, it is permitted to use com-municated or published works, objects of neighbouring rights or fragments of themin textbookstextbooks which are in conformity with educational standards, in radio and televi-sion broadcastsbroadcasts, in audio-visualaudio-visual works, in visualvisual aidsaids and the like, which are speciallycreatedcreated andand usedused in the face-to-face teaching and research process inin educationaleducationalinstitutionsinstitutions for non-commercial purposes to the extent justified by the purpose of theiractivity (Art.21 Part 1; Art. 54 Part 3 Point 2).


yes

Please see the above. It is allowed to useuse the works, therefore one might suggest thatit is allowed to make translations of the works as well.


yes

It being mandatory that the title and name of the author of the work are indicated andthat the provisions of ãthree step testÒ are observed, it is permitted to use communicat-ed or published works, objects of neighbouring rights or fragments of them in radioand television broadcastsbroadcasts, which are specially createdcreated andand usedused in the face-to-faceteaching and research process inin educationaleducational institutionsinstitutions for non-commercial pur-poses to the extent justified by the purpose of their activity (Art.21 Part 1.) Libraries,archives and museums are entitled to make available the works in their permanent col-lection for the use for scientificscientific researchresearch oror forfor self-educationself-education purposes,purposes, to naturalpersons who have authorised access to computers specifically set up in the premises ofthe library, archive or museum by using exclusively the intranet that has special protec-tion. (Art.23 Part 2; Art. 54 Part 3 Point 2).


yes

It being mandatory that the title and name of the author of the work are indicated andthat the provisions of ãthree step testÒ are observed, it is permitted to use communicat-ed or published works, objects of neighbouring rights or fragments of them inin researchresearchinstitutionsinstitutions for non-commercial purposes to the extent justified by the purpose of theiractivity (Art.21 Part 1; Art. 54 Part 3 Point 2).


276

6)6)

7)7)

8)8)

9)9)

10)10)

no


Exceptions or limitations apply to the allall educationaleducational andand researchresearch institutionsinstitutions generally.Though, the use shall be forfor non-commercial purposesnon-commercial purposes.


It is permitted to use works and objects of neighbouring rights to thethe extentextent justifiedjustified byby thethepurposepurpose ofof particularparticular activityactivity (Art.21 Part 1; Art. 54 Part 3 Point 2). The works and objectsof neighbouring rights shall be used in textbooks, which are in conformity with education-al standards, in radio and television broadcasts, in audio-visual works, in visual aids andthe like, which are specially createdcreated andand usedused in the face-to-face teaching and researchprocess in educational and research institutions (Art.21 Part 1; Art. 54 Part 3 Point 2). Noother specific conditions. Accordingly, there is no restriction as to the number of copies andboth teachers and students performance is covered.


It is permitted to use only communicatedcommunicated oror publishedpublished worksworks oror objectsobjects ofof neighbouringneighbouringrightsrights (Art.21 Part 1; Art. 54 Part 3 Point 2).



Yes, exceptions and limitations are set in Copyright Law and further explained in Regulationsof Cabinet of Ministers. It is not alternatively or additionally recognized in case law; only ex-ceptions explicitly provided by law can be applied (Art. 18 Part 1). There is no more generalor broad exception or limitation.


Yes, the economic rights of author or subject of neighbouring rights may be restricted:1. only in cases specified by Copyright Law (Art.18 Part 1; Art. 54 Part 1);2. if restriction is not contrary to the provisions for normal use of the work; and3. if it not unjustifiably limit the lawful interests of the author or subject of neighbouring

rights (Art.18 Part 2; Art. 54 Part 2).

277

11)11)

12)12)

13)13)

14)14)


Use under the exception or limitation forfor educationaleducational andand researchresearch purposespurposes is permittedautomatically. Use under the exception or limitation forfor libraries,libraries, archivesarchives andand museumsmuseums ispermitted partly automatically, but there are special provisions regarding public lending ofworks. For public lending of works libraries shall maintainmaintain recordsrecords ofof thethe unitsunits issued to theusers in accordance with the provisions of Law on Libraries (Art.23 Part 4).


Use under the exception or limitation forfor educationaleducational andand researchresearch purposespurposes is permittedwithout payment of any remuneration (Art. 19 Part 1; Art. 54 Part 3).

The procedures for the calculation of the amountamount ofof remunerationremuneration for public lending, aswell as the procedures for the payment of the remuneration and the proportional distributionamong authors, performers, phonograph producers and film producers shall be determinedby the Cabinet of Ministers (Art. 19.1 Part 2; Art. 54 Part 4). Cabinet Regulation ÒProceduresby which the remuneration regarding public lending shall be calculated, paid and distrib-utedÒ: The annual remuneration amount is 10%10% of the amount that was allocated during theprevious year for the supplementation collections of the libraries.

Remuneration for the use of a published work for public lending in libraries of the State,local government or other derived public persons and in private libraries shall be paid intothe account in a credit institution indicated by the organisation for collective management ofeconomic rights. (Art. 19.1 Part 3).


Libraries, educational institutions and museums, archives and public broadcasters may usethe orphan works and objects of neighbouring rights without the copyright or neighbouringrights holders consent: 1) to reproduce for making copies in digital format, 2) to make avail-able to the public by wire or by other means, so that it is accessible in an individually selectedlocation and at an individually selected time (Art. 62.1 Part 1).


Exception or limitation may be overridden by contract only regarding software:(1) If not specified otherwise by contract, and the right to use a computer program has beenlawfully obtained, its reproduction, translation, adaptation or any other transformation andthe reproduction of the results of such activities shall not require any special permission fromthe right holder, as long as such activities (including correction of errors) are necessary forthe purpose of the intended use of the computer program. (Art. 29 Part 1).(2) A contract entered into with a person who has lawfully acquired the right to use a com-puter program may not prohibit the making of a back-up copy, if such copy is necessary forthe use of the computer program. (Art. 29 Part 2).

278

15)15)

II.)II.)

16)16)

17)17)

18)18)

19)19)

20)20)


no



yes

Taking into consideration the digital age and social habits, it would be advisable to includeexception, which allows without permission of rights holders, but for a fair remuneration forlimited period of time to make available online of the works and objects of neighbouringrights by libraries and archives to registered users, provided that the number of simultaneoususers does not exceed the number of physical copies of works (if any, if not Ð one) or objectsof neighbouring rights.


yes

Limitation to copyright protection should be set up for creating of digital copies of textbooksand audio visual works necessary for execution of the teaching program of an educationalinstitution and making them available in teaching process by use of safe access so that theprotected objects cannot be further reproduced, communicated to the public or distributed.


yes

Application of the Three-Step Test helps assess disputable situation, nevertheless it does notcompletely take away the legal uncertainty. Although the European Union Court alreadyhave developed some application standards, nevertheless more explicit guidelines would beuseful.


No. Exceptions and limitations are for the benefit of the general society and provide for aneasier access and use of protected objects. It would impede achieving these perspectives ifthe exceptions or limitations would be overridden by contract. Besides, it would cause evenmore legal uncertainty.


Rights owners shall be subjects to fair remuneration for the activities described in 16) and17). Public lending is subject to fair compensation, accordingly, making access to the ob-jects of public lending more easy and up-to-date shall not deprive rights holders from well-deserved remuneration. Creation of digital copies of the textbooks and other protected ob-jects would and making them available to the teachers and students would definitely impact

279

21)21)

III.)III.)

22)22)

23)23)

24)24)

a)

b)

c)

the normal use of the protected objects and thus would not pass the Three-Step Test. Accord-ingly, such exception can only introduced provided that rights owners receive fair remunera-tion.


Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 onthe harmonisation of certain aspects of copyright and related rights in the information societyprovides for exemption on certain acts of reprographic reproduction carried out by educationand research institutions (Article 5 Part 2 Point C). Our current law does not clearly providefor such exemption (only for use of work or object of neighbouring rights in textbooks, invisualvisual aidsaids and the like, therefore making a simple one page copy from a protected workand distribution of such copy to the students can be argued as non-exempted). It would beadvisable to include such exemption in our current law by providing the right owners fair re-muneration.



yes

Harmonization provides for greater legal certainty.





It shall apply to all kind of libraries and archives.


It shall apply to making available online for viewing, but not for further reproductionor distribution or other communication to the public.


The work or object of neighbouring rights shall be made available simultaneously onlyto the same number of users as the institutions have physical copies of the work orobject of neighbouring rights. If the work or object of neighbouring rights is acquiredonly in a digital form, than such number shall be one, unless agreed otherwise. Rightholders shall receive fair remuneration.

280

25)25)

a)

b)

c)

26)26)

27)27)

28)28)



It shall apply to all kind of educational and research institutions.


It shall apply to making available online for viewing, but not for further reproductionor distribution or other communication to the public.


Each user shall have its account, where certain works and objects of neighbouringrights shall be made available for certain period of time. Account information shall beregistered by educational and research institutions and fair remuneration shall be paidto the right owners.



Such exceptions shall be provided automatically, provided that the users have procedures inplace that allow the use of the objects of copyright or neighbouring rights strictly in accor-dance with the provisions of the exceptions.


Payment shall be made by the institutions to which benefit the exception is provided.

Payment for making of digital copies of objects of copyright or neighbouring rights and mak-ing them available for certain period of time for registered users (in viewing regime) shall bemade on the basis of the number of users and can be set up as a percentage from the priceof purchase of the physical copy and/or digital copy (for example 20%). Such provisions canbe included in the regulatory enactments of each country.

It shall be considered if there should be any change in the calculation of the remunerationfor public lending, provided that the public lending is made available online for the limitedperiod of time for limited number of users.

The calculation of remuneration for reprographic reproduction is already introduced andshould not be specifically amended for acts of reprographic reproduction carried out by ed-ucational and research institutions.


No exceptions.

281

29)29)

30)30)


It shall be considered, whether implementation of the right ownerÕs ability to prohibit digital-ization and making available by educational and research institutions of the work or objectof neighbouring rights would be advisable.


Not applicable.

SummarySummary

Latvia do provide for exceptions and limitations for educational and research institutions andlibraries and archives. Further harmonization in this area is advisable. Taking into accountthe digital age and social habits additional exceptions (or broadening of existing in orderfor them to fit for the digital/online purposes) shall be introduced to provide easier accessto content protected by copyright or neighbouring rights and thus enhance its usage, at thesame time providing right owners with the fair remuneration and thus incentives to create.


282

I.)I.)

1)1)

a)

b)

c)

MexicoMexico


in the name of the Mexico Groupby Mart’n MICHAUS, Luis SCHMIDT, JosŽ Juan MENDEZ, Eduardo CASTA„EDA and Mart’n

MICHAUS


QuestionsQuestions




yes


yes

TheThe CopyrightCopyright LawLaw considersconsiders anan expressexpress exceptionexception toto thethe CopyrightCopyright LawLaw thatthat aa li-li-brarybrary oror archivearchive reproducesreproduces oneone singlesingle copycopy ofof aa workwork forfor itsits preservationpreservation oror re-re-placement.placement.

However,However, thethe lawlaw hashas distinguisheddistinguished thethe notionnotion ofof ÒpreservationÒpreservation oror replacementÓ.replacementÓ.Likewise,Likewise, thethe lawlaw doesdoes notnot referrefer toto distributiondistribution oror anyany otherother formform ofof useuse ofof works,works,that is not reproduction of the same.that is not reproduction of the same.

TheThe CopyrightCopyright LawLaw readsreads textually:textually: ÒAÒA literaryliterary oror artisticartistic workwork discloseddisclosed alreadyalready maymaybebe usedused (as(as a)a) ÉÉ reproductionreproduction ofof oneone singlesingle copycopy byby anan archivearchive oror library,library, forfor rea-rea-sonssons ofof safetysafety andand preservation,preservation, andand thatthat hashas becomebecome exhausted,exhausted, outout ofof cataloguecatalogueand in danger to disappearÓ.and in danger to disappearÓ.

TheThe exceptionexception doesdoes notnot applyapply toto worksworks only,only, butbut alsoalso toto soundsound recordings,recordings, booksbooksandand videovideo recordings,recordings, thatthat underunder MexicanMexican CopyrightCopyright LawLaw areare subject-mattersubject-matter ofofneighboring rights.neighboring rights.


yes

Yes,Yes, thethe archivearchive oror librarylibrary utilizesutilizes forfor InterlibraryInterlibrary lendinglending thethe samesame copycopy thatthat hashasbeen entitled to make for safety or preservationbeen entitled to make for safety or preservation


no

283

d)

2)2)

3)3)

4)4)

TheThe lawlaw seemsseems notnot toto forbidforbid thatthat thethe librarylibrary oror archivearchive lendlend thethe copycopy inin theirtheir posses-posses-sion.sion. However,However, sincesince thethe lawlaw doesdoes notnot provideprovide distributiondistribution exceptions,exceptions, thethe answeranswertoto thisthis questionquestion cancan bebe ÒnoÓÒnoÓ inin thethe end,end, sincesince lendinglending oror providingproviding copiescopies ofof worksworksare indeed forms of distributing works.are indeed forms of distributing works.


no

No other activities in addition to the foregoing.


No,No, thethe archivearchive oror librarylibrary exception,exception, asas providedprovided byby thethe law,law, cannotcannot bebe extendedextended toto mu-mu-seumsseums oror anyany otherother organization,organization, unlessunless thethe museummuseum oror organizationorganization hashas laylay itselfitself ananarchive or library. Public archives and libraries are both beneficiaries of the exception.archive or library. Public archives and libraries are both beneficiaries of the exception.

CommercialCommercial archivesarchives oror librarieslibraries cancan alsoalso bebe beneficiariesbeneficiaries ofof thethe exception,exception, providedprovidedthatthat theythey dodo notnot sellsell oror rentrent theirtheir safetysafety oror preservationpreservation copycopy oror inin general,general, theythey dodo notnotobtain income for making and distributing the copy.obtain income for making and distributing the copy.

ItIt couldcould bebe includedincluded onon thisthis considerationconsideration asas archives,archives, courtscourts andand JudisiaryJudisiary archivesarchives andandfiles,files, whenwhen thethe reproductionreproduction ofof thethe literaryliterary oror artisticartistic workwork wouldwould bebe usedused asas evidenceevidence ininan administrative or judicial proceeding.an administrative or judicial proceeding.


Yes,Yes, therethere areare conditionsconditions underunder thethe law.law. First,First, thethe safetysafety oror preservationpreservation copycopy needsneeds totobebe justjust one.one. Second,Second, thethe workwork needsneeds toto becomebecome exhaustedexhausted (no(no availabilityavailability ofof copiescopies ininthethe market),market), outout ofof cataloguecatalogue (of(of thethe libraryÕslibraryÕs collection)collection) andand inin dangerdanger toto disappeardisappear (al-(al-thoughthough thethe lawlaw doesdoes notnot clarifyclarify ifif thethe workwork needsneeds toto bebe inin dangerdanger toto disappeardisappear fromfrom thethemarketmarket oror thethe originaloriginal copycopy propertyproperty ofof thethe archivearchive oror library,library, bebe inin dangerdanger toto disappear).disappear).

TheThe CopyrightCopyright LawLaw doesdoes notnot imposeimpose anyany conditioncondition oror restrictionrestriction asas toto thethe amountamount ofof thethework that can be copied or the medium utilized.work that can be copied or the medium utilized.

ItIt couldcould bebe assumedassumed thatthat thethe reproductionreproduction ofof thethe workwork shouldshould bebe completecomplete andand notnot onlyonlya portion. As mentioned the Copyright Law does not impose any specific condition.a portion. As mentioned the Copyright Law does not impose any specific condition.


No,No, thethe lawlaw doesdoes notnot imposeimpose conditionsconditions regardingregarding thethe typetype oror worksworks thatthat cancan bebe copied.copied.InIn keepingkeeping withwith this,this, itit isis possiblepossible makingmaking oneone copycopy ofof anyany literaryliterary oror artisticartistic work.work. Like-Like-wise,wise, thethe exceptionexception isis permittedpermitted forfor everyevery lawfullawful createdcreated workwork oror copiescopies thereof,thereof, copiescopiesofof worksworks inin thethe librariesÕlibrariesÕ collectionscollections oror publishedpublished works.works. Actually,Actually, unpublishedunpublished oror undis-undis-closedclosed worksworks areare outsideoutside thethe exceptionsexceptions providedprovided byby thethe law.law. ItIt remainsremains unclear,unclear, how-how-ever,ever, ifif thethe exceptionexception provisionprovision restrictsrestricts toto thethe copyingcopying ofof worksworks thatthat areare notnot partpart ofof aalibraryÕs catalogue.libraryÕs catalogue.

284

5)5)

a)

b)

c)


no

No,No, thethe MexicanMexican CopyrightCopyright LawLaw doesdoes notnot provideprovide generalgeneral exceptionsexceptions oror limitationslimitations totocopyrightcopyright protectionprotection forfor educationeducation andand researchresearch institutions.institutions. NotwithstandingNotwithstanding thethe fore-fore-going,going, thethe lawlaw considersconsiders aa limitedlimited exceptionexception forfor educationeducation andand researchresearch institutionsinstitutions mak-mak-ing one copy of a work for private use.ing one copy of a work for private use.

a. performance and/or display for educational purposes;No,No, underunder thethe lawlaw educationaleducational oror researchresearch institutionsinstitutions dodo notnot enjoyenjoy exceptionsexceptions toto rightsrightsfor performance or display of works for educational purposes.for performance or display of works for educational purposes.b. reproduction and/or distribution for educational purposes (e.g. preparation of course

packs, compilations or anthologies, exams);

No,No, therethere areare nono exceptionsexceptions oror limitationslimitations underunder thethe aboveabove conditions.conditions. However,However, thethelawlaw recognizesrecognizes aa certaincertain exceptionexception relatedrelated toto thethe reproductionreproduction (again,(again, distributiondistribution isis notnotmentioned)mentioned) ofof worksworks thatthat involveinvolve educationeducation andand researchresearch institutions.institutions. TheThe purposepurpose ofof thetheexceptionexception hashas toto dodo moremore withwith reproductionreproduction forfor privateprivate use.use. InIn lightlight ofof thethe exceptionexception ofofthethe MexicanMexican CopyrightCopyright Law,Law, individualsindividuals cancan makemake oneone copycopy ofof aa librarylibrary oror artisticartistic work,work,forfor ÒpersonalÓÒpersonalÓ andand ÒprivateÓÒprivateÓ useuse andand withoutwithout thethe purposepurpose ofof aa gain.gain. CorporationsCorporations areareprecludedprecluded fromfrom thethe scopescope saidsaid provision,provision, unlessunless beingbeing anan ÒeducationÓÒeducationÓ oror ÒresearchÓÒresearchÓ in-in-stitutionstitution oror aa non-profitnon-profit organizationorganization ofof anyany kind.kind. BecauseBecause itsits ambiguity,ambiguity, saidsaid exceptionexceptionprovision of the copyright law has been the subject of many discussions.provision of the copyright law has been the subject of many discussions.

The text of the law reads as follows in the relevant parts:The text of the law reads as follows in the relevant parts:

ÒAÒA literaryliterary oror artisticartistic workwork discloseddisclosed alreadyalready maymay bebe usedused (as(as a)a) Éone-timeÉone-time reproductionreproductioninin aa singlesingle copycopy ofof aa literaryliterary oror artisticartistic work,work, forfor privateprivate useuse ofof thethe personperson whowho makesmakes it,it,andand notnot forfor profit.profit. CorporationsCorporations maymay notnot invokeinvoke thethe provisionsprovisions ofof thisthis paragraph,paragraph, exceptexceptfor educational, research or non-commercial institutions.Ófor educational, research or non-commercial institutions.Ó

The exception does not apply to works only, but also to sound recordings.The exception does not apply to works only, but also to sound recordings.

c. making translations;No, making translation is out of the scope of the exception.No, making translation is out of the scope of the exception.d. making available in digital networks for educational purposes (e.g. uploading course

packs onto on-line platforms, compilations or anthologies, providing distance educa-tion);

No, making available of works in digital networks is out of the scope of the exception.No, making available of works in digital networks is out of the scope of the exception.e. reproduction and/or distribution for research purposes; orYes, under the same comments as in b), above. That is, for private use only.Yes, under the same comments as in b), above. That is, for private use only.f. any other activities, and if so, what activities?No other activities.No other activities.




285

d)

e)

f)

6)6)

7)7)

8)8)

9)9)

10)10)





TheThe reproductionreproduction forfor privateprivate useuse exceptionexception extendsextends toto allall sortsort ofof educationeducation andand researchresearchinstitutions and their activitiesinstitutions and their activities


Yes,Yes, thethe CopyrightCopyright LawLaw providesprovides certaincertain conditions.conditions. First,First, itit isis restrictedrestricted toto reproductionreproductionforfor privateprivate useuse ofof works.works. Second,Second, itit allowsallows thethe makingmaking ofof oneone copycopy ofof aa workwork forfor thetheafore-mentionedafore-mentioned purposes.purposes. Third,Third, thethe copycopy needsneeds toto bebe mademade forfor personalpersonal useuse andand non-non-lucrativelucrative purposes.purposes. Fourth,Fourth, corporationscorporations dodo notnot benefitbenefit fromfrom thethe exception.exception. Otherwise,Otherwise,thethe exceptionexception isis broadbroad enoughenough toto encompassencompass allall kindskinds ofof reproductionsreproductions mademade (so(so longlongtheythey areare privateprivate copies)copies) andand thethe privateprivate useruser chosechose makingmaking aa copycopy ofof thethe workwork asas aa wholewholeor in part.or in part.


No, there are no conditions as to the type of copyrighted work involved.No, there are no conditions as to the type of copyrighted work involved.



EverythingEverything thatthat hashas beenbeen explainedexplained soso farfar inin connectionconnection withwith copiescopies forfor privateprivate useuse andandcopiescopies forfor educationeducation oror researchresearch institutionsinstitutions comescomes fromfrom thethe MexicanMexican CopyrightCopyright Law.Law. SoSofarfar wewe wouldwould know,know, therethere isis nono casecase lawlaw regardingregarding toto anyany ofof thesethese subjects.subjects. AdditionalAdditionalissuesissues regardingregarding thethe useuse ofof worksworks byby educationeducation oror researchresearch institutionsinstitutions fallfall withinwithin thethescope of should be considered by the Three-Step Test of Berne.scope of should be considered by the Three-Step Test of Berne.


Yes,Yes, atat leastleast inin theory,theory, butbut notnot byby applyingapplying thethe MexicanMexican CopyrightCopyright Law,Law, butbut thethe provisionsprovisionsof the Berne Convention directly.of the Berne Convention directly.

MexicanMexican CopyrightCopyright LawLaw mademade aa poorpoor implementationimplementation ofof thethe Three-Step-Test.Three-Step-Test. However,However,thethe Three-Step-TestThree-Step-Test cancan bebe appliedapplied inin MexicoMexico byby importingimporting thethe provisionprovision ofof thethe BerneBerneConvention.Convention. ItIt isis possiblepossible toto invokeinvoke BerneBerne ConventionConvention directly,directly, sincesince itit isis anan internationalinternational

286

11)11)

12)12)

13)13)

14)14)

15)15)

II.)II.)

16)16)

treatytreaty andand inin MexicoMexico internationalinternational treatiestreaties areare placedplaced inin thethe samesame levellevel ofof hierarchyhierarchy asasthethe ConstitutionConstitution ofof Mexico.Mexico. Also,Also, thethe MexicanMexican SupremeSupreme CourtCourt ofof JusticeJustice hashas consideredconsideredthethe BerneBerne ConventionConvention asas aa humanhuman rightsrights treaty,treaty, makingmaking itsits applicationapplication mandatorymandatory toto thetheMexican Courts, under aMexican Courts, under a pro hominepro homine interpretation.interpretation.


TheThe exceptionexception appliesapplies automatically.automatically. ItIt isis notnot eveneven consideredconsidered aa limitationlimitation subjectsubject toto eq-eq-uitable remuneration.uitable remuneration.


No, such exceptions Ðnot limitationsare not subject to remuneration of any sort.No, such exceptions Ðnot limitationsare not subject to remuneration of any sort.


No,No, thethe copyrightcopyright lawlaw doesdoes notnot recognizerecognize anyany specialspecial treatmenttreatment forfor orphanorphan works,works, ininconnection with education or research institutions.connection with education or research institutions.


Yes,Yes, underunder MexicanMexican LawsLaws thesethese exceptionsexceptions couldcould bebe overriddenoverridden byby contract,contract, resultingresulting ininrightsrights andand obligationsobligations toto thethe contractingcontracting parties,parties, asas agreedagreed inin aa givengiven contract,contract, thatthat maymaybe different from what stated in the Copyright Law.be different from what stated in the Copyright Law.


yes

ThereThere isis aa CollectiveCollective ManagingManaging OrganizationOrganization calledcalled CEMPRO,CEMPRO, whichwhich representsrepresents thethe in-in-tereststerests ofof authorsauthors andand publisherspublishers inin connectionconnection withwith theirtheir reproductionreproduction (reprography)(reprography)rights.rights. CopyrightCopyright holdersholders enjoyenjoy anan exclusiveexclusive rightright toto authorizeauthorize oror prohibitprohibit thethe reproduc-reproduc-tiontion ofof theirtheir worksworks ÐrecordingsÐrecordings andand booksbooks areare included-included- andand accordingly.accordingly. UsersUsers includingincludingeducationeducation andand researchresearch institutions,institutions, requirerequire authorizationauthorization toto makemake reproductions.reproductions. UsersUserscan obtain from CEMPRO a license in bulk.can obtain from CEMPRO a license in bulk.

TheThe CMOCMO isis entitledentitled toto grantgrant licenseslicenses andand collectcollect royaltiesroyalties resultingresulting fromfrom re-re-productionproduction ofof works,works, butbut alsoalso fromfrom thethe communicationcommunication toto thethe public,public, distributiondistribution andandtransformationtransformation ofof thethe same.same. TheyThey grantgrant licenseslicenses toto privateprivate andand publicpublic accordingaccording toto tarifftariffschedules.schedules.



yes

287

17)17)

18)18)

19)19)

20)20)

TheThe improvedimproved exceptionsexceptions maymay bebe broaderbroader thanthan thosethose ofof thethe existingexisting MexicanMexican CopyrightCopyrightLaw.Law. ForFor example,example, librarieslibraries oror archivesarchives couldcould bebe allowedallowed toto obtainobtain thethe copycopy ofof workwork forforsecuritysecurity oror preservationpreservation reasons,reasons, butbut alsoalso bebe allowedallowed toto havehave aa reasonablereasonable stockstock ofof phys-phys-icalical copiescopies oror limitedlimited numbernumber ofof digitaldigital copies,copies, exclusivelyexclusively forfor distributiondistribution (lending).(lending). TheTheforegoingforegoing providedprovided thatthat thethe librarylibrary oror archivearchive cannotcannot obtainobtain originaloriginal copiescopies oror wisheswishestoto preservepreserve theirtheir physicalphysical copies.copies. IfIf thethe librarylibrary oror archivearchive makemake moremore thanthan oneone copycopy ininparticular for lending, remuneration to the copyright holders would seem justifiable.particular for lending, remuneration to the copyright holders would seem justifiable.


yes

ExceptionsExceptions andand limitationslimitations forfor educationaleducational oror research,research, areare ratherrather differentdifferent thanthan thosethoseforfor archivesarchives oror libraries,libraries, sincesince theirtheir needsneeds areare differentdifferent asas well.well. EducationEducation andand researchresearchinstitutionsinstitutions areare requiredrequired byby theirtheir students,students, teachersteachers oror investigatorsinvestigators toto makemake aa biggerbiggernumbernumber ofof copies.copies. TheyThey alsoalso demanddemand worksworks forfor displaydisplay oror performance.performance. AsAs aa result,result, thethechancechance toto conflictconflict withwith thethe normalnormal exploitationexploitation ofof thethe workwork isis greater.greater. ItIt wouldwould bebe finefinerestrictingrestricting thethe rightsrights ofof reproduction,reproduction, distributiondistribution oror communicationcommunication toto thethe publicpublic (which(whichincludesincludes projectionprojection toto limitedlimited ÒpublicÓÒpublicÓ audiencesaudiences andand perhapsperhaps limitedlimited broadcastingbroadcasting ororInternetInternet makingmaking availableavailable forfor transmissions).transmissions). However,However, remunerationremuneration isis justifiedjustified atat leastleastwhenwhen groupsgroups ofof studentsstudents oror researchesresearches makemake copiescopies ofof works.works. TranslationsTranslations shouldshould notnot bebepartpart ofof thethe exceptionsexceptions oror limitationslimitations oror whenwhen thethe institutioninstitution provideprovide ITIT servicesservices uploadinguploadingcourse packs of others.course packs of others.


yes

TheThe Three-Step-TestThree-Step-Test isis aa fairfair legallegal figure.figure. ItIt isis veryvery usefuluseful asas well.well. However,However, asas explainedexplainedabove,above, judgesjudges findfind itit confusingconfusing sometimessometimes whenwhen applyingapplying it.it. ItIt requiresrequires perfectperfect knowl-knowl-edge of copyright law and good skills for assessing facts under equity considerations.edge of copyright law and good skills for assessing facts under equity considerations.

Nowadays,Nowadays, withwith thethe newnew challenges,challenges, itit isis convenientconvenient toto modifymodify thethe Three-StepThree-Step TestTest ininorderorder toto extendextend suchsuch limitationslimitations intointo thethe digitaldigital environmentenvironment toto createcreate newnew exceptionsexceptions asastheythey findfind appropriate,appropriate, inin anan attemptattempt toto eliminateeliminate barriersbarriers toto trade,trade, promotionpromotion ofof innova-innova-tiontion andand competition,competition, asas wellwell asas thethe provisionprovision ofof consistencyconsistency andand stabilitystability inin thethe interna-interna-tionaltional copyrightcopyright frameworkframework byby thethe creationcreation ofof aa fairfair balancebalance betweenbetween promotionpromotion ofof thetheworks to support knowledge diffusion.works to support knowledge diffusion.


Yes,Yes, becausebecause partiesparties inin agreementsagreements areare freefree toto workwork onon exceptionsexceptions toto thethe rightsrights subjectsubjecttoto thethe contract.contract. TheyThey shouldshould bebe freefree soso longlong theirtheir agreementagreement doesdoes notnot conflictconflict withwith publicpublicinterest.interest.


ForFor 16),16), makingmaking moremore thanthan oneone copycopy forfor lendinglending shouldshould requirerequire remuneration.remuneration. ForFor 17)17)makingmaking ofof moremore thanthan oneone copycopy (course(course packs,packs, etc.)etc.) shouldshould requirerequire remuneration.remuneration. InIn gen-gen-eral,eral, remunerationremuneration isis fairfair forfor makingmaking moremore thanthan oneone copycopy oror anyany otherother formform ofof useuse re-re-sulting from communication (whether public or private).sulting from communication (whether public or private).

288

21)21)

III.)III.)

22)22)

23)23)

24)24)

a)

b)

c)

25)25)

a)

b)


Yes, definitively as it has been explained above.Yes, definitively as it has been explained above.



yes

Yes,Yes, sincesince harmonizationharmonization isis alwaysalways aa desirabledesirable goalgoal toto achieveachieve forfor improvingimproving legallegal sys-sys-tems.tems. ItIt isis desirabledesirable asas wellwell sincesince BerneBerne andand otherother importantimportant treatiestreaties dodo notnot provideprovide anyanystandardsstandards inin thisthis regard.regard. However,However, ifif thethe applicableapplicable criteriacriteria isis thethe Three-Step-Test,Three-Step-Test, thenthenthethe harmonizedharmonized internationalinternational standardstandard wouldwould havehave beenbeen setset alreadyalready andand nono furtherfurther ac-ac-tion would be required at an international level.tion would be required at an international level.



yes

PleasePlease referrefer toto ourour responseresponse inin 16)16) andand 17),17), sincesince itit waswas givengiven pretendingpretending globalglobal solu-solu-tion.tion.



To every library, archive or organization.To every library, archive or organization.


To every activity.To every activity.


Provided that more than one copy is made for researching or teaching purposes.Provided that more than one copy is made for researching or teaching purposes.



To every education and research institution.To every education and research institution.


289

c)

26)26)

27)27)

28)28)

29)29)

30)30)

To every education and research institution.To every education and research institution.


Provided that more than one copy is made for researching or teaching purposes.Provided that more than one copy is made for researching or teaching purposes.



Exceptions should apply automatically.Exceptions should apply automatically.


The standard is number of copies made.The standard is number of copies made.


Just by following ad hoc orphan work exceptions.Just by following ad hoc orphan work exceptions.


Only if contract clearly contradicts public interest.Only if contract clearly contradicts public interest.AsAs itit waswas mentionedmentioned previously,previously, withwith thethe newnew challengeschallenges beforebefore thethe digitaldigital environmentenvironmentandand howhow thethe informationinformation isis nownow availableavailable forfor usersusers ofof thethe internet,internet, itit isis convenient.convenient. thatthatthethe interpretationinterpretation ofof thethe contract,contract, bearbear inin mindmind thethe principlesprinciples ofof consistencyconsistency andand stabilitystabilityin the international copyright frameworkin the international copyright framework


TheyThey wouldwould bebe freefree toto representrepresent rightright holders,holders, providedprovided thatthat theirtheir performanceperformance doesdoes notnotconflict with the exception regime set internationally and locally.conflict with the exception regime set internationally and locally.

SummarySummary

BriefingBriefing

Mexican Copyright Law recognizes exceptions for libraries and archives. It also recognizesa restricted exception for educational and research institutions, regarding copies of works,recordings or books that they make for private use. The system can be improved with thepurpose to provide limitations that imply a remuneration for the copyright holder. The fore-going when archives or libraries make more than one copy for lending or when educationor research institutions make copies for teaching or investigation. The same consideration

290

viewed in order to improve the Mexican system would be desired to work on a global basis.In principle, the Three-Step Test should be the applicable standard. However, express excep-tions and limitations should be required still.

RŽsumŽRŽsumŽ

La Loi mexicaine sur les droits d'auteur reconna”t des exceptions pour les bibliothèques etarchives. Elle reconna”t aussi une exception restreinte pour les institutions de recherche etd'enseignement, quant aux copies d'Ïuvres, d'enregistrements ou de livres qu'elles font pourune utilisation privŽe. Le système peut être amŽliorŽ pour offrir des limitations qui impliquentune rŽmunŽration du titulaire du droit d'auteur quand les archives ou bibliothèques fontplus d'une copie pour prêt ou quand les institutions de recherche et d'enseignement fontdes copies pour l'investigation ou l'instruction. Il serait souhaitable que cette considŽration,contemplŽe pour amŽliorer le système mexicain, soit adoptŽe globalement. En principe,l'Žpreuve des trois critères devrait être le standard applicable; cependant, des exceptions etlimitations spŽcifiques devraient être requises.

ZusammenfassungZusammenfassung

Das mexikanische Urheberrecht erkennt Ausnahmeregelungen fŸr Bibliotheken und Archive.Es erkennt auch eine begrenzte Ausnahme fŸr lehr- und Forschungszwecke, hinsichtlich derVervielfŠltigung von Werken, Aufnahmen oder BŸchern fŸr privaten Gebrauch. Das Systemkann verbessert werden, um BeschrŠnkungen, die eine VergŸtung des Rechteinhabers bein-haltet, durchzufŸhren, in dem Fall dass Bibliotheken und Archive mehr als eine Kopie zwecksAusleihe machen oder Bildungs- und Forschungseinrichtungen Werke vervielfŠltigen zwecksLehre oder Forschung. Die †berlegungen, die beabsichtigt sind, um das Mexikanische Sys-tem zu verbessern, kšnnte auf globaler Ebene eingefŸhrt werden. GrundsŠchlich, sollte derDrei-Stufen-Test die Norm sein, jedoch mit ausdrŸcklichen Ausnahmeregelungen und Be-grenzungen.


291

I.)I.)

1)1)

a)

b)

c)

NetherlandsNetherlands


in the name of the Netherlands Groupby Stef VAN GOMPEL, Vicky BREEMEN, Roderick CHALMERS HOYNCK VAN PAPENDRECHT,

Robin VAN KLEEFF, Herwin ROERDINK, Martin SENFTLEBEN and Nadine WIERSMA


QuestionsQuestions




yes


yes

The Dutch CopyrightCopyright ActAct (Auteurswet) contains specific exceptions for libraries andarchives, some of which also apply to museums and educational institutions (on thelatter, see Questions 5-8 below). These exceptions were introduced with the implemen-tation of the Rental and Lending Rights Directive (92/100/EEG, now: 2006/115/EG),the Copyright Directive (2001/29/EC) and recently the Orphan Works Directive (2012/28/EU). The NeighbouringNeighbouring RightsRights ActAct (Wet op de naburige rechten) contains similarprovisions.The exception for preservation copies can be found in art.art. 16n16n CopyrightCopyright ActAct and art.art.1010 subsub ff NeighbouringNeighbouring RightsRights ActAct. The articles are implementations of art. 5(2)(c) Di-rective 2001/29/EC. It should be noted that the exception only regards reproductionfor specific preservation purposes. In other words, distribution or subsequent accessare not covered and thus require permission from rightholders, unless another excep-tion applies. Reproduction is allowed if the sole purpose is restoration of an exemplar;retention of a reproduction for the institution in case of imminent disrepair; or keepingthe work consultable when consultation techniques threaten to get outdated.


yes

The law does not contain a specific exception for the benefit of interlibrary lendingpractices, but art.art. 16h16h CopyrightCopyright ActAct determines that newspaper articles, small partsof books and complete books that are not commercially available anymore may bereproduced via traditional reprographic means. Art.Art. 33 ofof thethe DecreeDecree onon reprograph-reprograph-icic reproductionreproduction (Besluit reprografisch verveelvoudigen) further determines that makingreproductions in the sense of art. 16h Copyright Act by or by order of libraries doesnot constitute copyright infringement if it meets one of the purposes specifically listed,such as the replacement of a work which third parties have requested to borrow fromthe library. See also the answer to Question 1c.


292

d)

2)2)

yes

While the law does not contain a specific exception for this purpose, art.art. 16b16b Copy-Copy-rightright ActAct provides an exception for private copying via ‘traditional’ reproduction forms,such as photocopying. This article permits individuals to make a small number ofcopies of a work for the sole purpose of their own use or study and to order such copiesto be made for their personal use or study purposes. On this basis, libraries are al-lowed to make a limited number of copies for individuals who have requested this fortheir personal use or study purposes. This exception does not require remuneration.


yes

Other activities include:• Providing on-site access to works (or recordings) via dedicated terminals and

closed networks in libraries and archives, as well as in museums and educationalinstitutions (see Questions 5-8). Accordingly, digital consultation is allowed but onlyvia the intranet (and not the internet). See art.art. 15h15h CopyrightCopyright ActAct and art.art. 1010 subsubc Neighbouring Rights Actc Neighbouring Rights Act (implementing art. 5(3)(n) Directive 2001/29/EC).

• Lending. Based on art.art. 15c15c CopyrightCopyright ActAct in combination with art. 12 CopyrightAct, libraries are allowed to lend books without prior permission of the right holder,as these articles turns the right holder’s exclusive right into a remuneration right(see also para.para. 33 toto 66 ofof art.art. 2,2, art.art. 6,6, art.art. 7a7a andand art.art. 88 NeighbouringNeighbouring RightsRightsActAct). This means that lending does not constitute an infringement as long as an eq-uitable remuneration is paid. The Dutch Supreme Court has ruled that renewal ofborrowed materials does not invoke a new payment obligation since renewal fallsunder the definition of ‘limited in time’ in the legal definition of lending (see HR 23November 2012, no. 11/04472, ECLI:NL:HR:2012:BX7484).

• Reproduction and making available of orphan works (art.art. 16o-1716o-17 CopyrightCopyright ActAct /art.art. 1010 subsub ll NeighbouringNeighbouring RightsRights ActAct). The exception only applies when the rightholder has not been identified or found after a ‘diligent search’. The institutionsmust report on the results of the search and the reached conclusion on the orphanstatus, the envisaged use of the work, etc. Orphan works must be registered in aEuropean orphan works database.


The exceptions and limitations apply to the following organizations:The preservation exception (art.art. 16n16n CopyrightCopyright ActAct and art.art. 1010 subsub ff NeighbouringNeighbouring RightsRightsActAct) and on-site-access exception (art.art. 15h15h CopyrightCopyright ActAct and art.art. 1010 subsub cc Neighbour-Neighbour-inging RightsRights ActAct) target ‘publicly accessible libraries, educational institutions and museums orarchives’ with the exception of archives that have a direct or indirect economic or commercialbenefit. It is not entirely clear whether the not-for-profit condition only applies to archives. Ifso, this would mean that corporate libraries, commercial educational institutions could alsobenefit from these exceptions (see Ch. Gielen & D.J.G. Visser (eds.), Tekst & Commentaar:Intellectuele eigendom, Deventer: Kluwer 2013, p. 56). The condition to be publicly accessi-ble in turn does not apply to archives, thus making these exceptions applicable also to not-for-profit archives that are not publicly accessible. Further, the Explanatory Memorandum tothe Dutch implementation law of the Copyright Directive confirms that ‘publicly accessible’should not be understood as only meaning accessible to the general public, but also to aspecifically targeted audience such as in case of school libraries and academic institutions(see the Parliamentary Report of the House of Representatives (Tweede Kamer) 2001/2002,28482, no. 3, p. 49).

293

3)3)

The lending rights regime covers ‘publicly accessible institutions’. See art.art. 15c15c CopyrightCopyrightActAct and the legal definition of ‘lending’ in art. 12(3) Copyright Act and art. 1 sub k Neigh-bouring Rights Act. Some institution are exempted from payment under the lending regime,namely educational and research institutions, including their libraries, and the Royal Library(Koninklijke Bibliotheek). See art.art. 15c(4)15c(4) CopyrightCopyright ActAct and art.art. 2(4),2(4), art.art. 6(4),6(4), art.art. 7a(4)7a(4)and art. 8(4) Neighbouring Rights Actand art. 8(4) Neighbouring Rights Act.The orphan works exception (art.art. 16o-1716o-17 CopyrightCopyright ActAct and art.art. 1010 subsub ll NeighbouringNeighbouringRightsRights ActAct) covers ‘publicly accessible libraries, educational institutions and museums, aswell as institutions for cinematographic or audiovisual heritage that do not attempt to achievedirect or indirect economic or commercial benefit’.


Yes. The following conditions apply:The preservation exception (art.art. 16n16n CopyrightCopyright ActAct and art.art. 1010 subsub ff NeighbouringNeighbouring RightsRightsActAct) does not mention the number of copies or any other conditions regarding the permittedactivities, other than that the reproduction must relate to one of the listed preservation pur-poses and that the author’s moral rights (art. 25 Copyright Act) must be respected. The lackof direction on the number of copies and the moment on which they may be made is identi-fied as a point where clarification is needed. As the exception is formulated in a technologyneutral way, preservation by digital means is arguably covered. The Explanatory Memoran-dum to the Dutch implementation law of the Copyright Directive also indicates that institu-tions such as libraries are expected to use the possibilities of new technologies. At the sametime, it recognizes that new technologies may lead to various problems in preservation prac-tices, as storage and processing techniques may get outdated quickly.The on-site-access exception only refers to the making available of works (art.art. 15h15h Copy-Copy-rightright ActAct) and recordings or reproductions thereof (art.art. 1010 subsub cc NeighbouringNeighbouring RightsRights ActAct),without indicating the number of copies that may be made available on the terminals. Theexception applies ‘unless otherwise agreed’, meaning that it can be set aside contractual-ly (see Question 14) or subjected to conditions such as payment. Only on-site activities arecovered. The Explanatory Memorandum to the Dutch implementation law of the CopyrightDirective further clarifies that the making available on dedicated terminals and closed net-works does not allow printing or downloading.The lending rights regime (art.art. 15c15c CopyrightCopyright ActAct and para.para. 33 toto 66 ofof art.art. 2,2, art.art. 6,6, art.art.7a7a andand art.art. 88 NeighbouringNeighbouring RightsRights ActAct) covers the making available for use for a limitedperiod of time. The scope of the lending right in the digital domain is not clear. Currently,a Dutch test case regarding e-lending is pending (Court of The Hague, 3 September 2014,ECLI:NL:RBDHA:2014:10962). In this case, the Dutch court is asking the Court of Justice ofthe European Union interpretation questions with regard to the lending concept (does thiscover e-lending based on a one copy one user model?) and the specific requirements for ap-plicability of the lending rights regime. In 2012, a study commissioned by the Dutch Ministryof Education, Culture and Science explored the economic and legal possibilities of e-lending(see R. van der Noll, J.M. Breemen, V.E. Breemen, P.B. Hugenholtz, M. Brom & J.P. Poort,Online uitlenen van e-books door bibliotheken, Amsterdam: SEO/IViR 2012).The orphan works exception (art.art. 16o-1716o-17 CopyrightCopyright ActAct and art.art. 1010 subsub ll NeighbouringNeighbouringRightsRights ActAct) is specifically aimed at facilitating the digital unlocking of orphan works, in otherwords, digitization and making available online. The reproduction and making available orthe works in question should serve the public task of the institution, notably preservation andrestauration of works and providing access to works of their collections for cultural and ed-ucational purposes. The exception applies as long as a work, after a diligent search for theright holders, is qualified as an orphan work. This qualification as an orphan work can be

294

4)4)

5)5)

a)

terminated at any time upon request of the right holder. The institution shall then pay a faircompensation to the right holder for the use of the work in accordance with art. 16o and art.16q Copyright Act. See also Question 11.


Yes. The following conditions apply:The preservation exception (art.art. 16n16n CopyrightCopyright ActAct and art.art. 1010 subsub ff NeighbouringNeighbouring RightsRightsActAct) only applies to exemplars of works that are part of the permanent collection of the insti-tution itself.The on-site-access exception (art.art. 15h15h CopyrightCopyright ActAct and art.art. 1010 subsub cc NeighbouringNeighbouringRightsRights ActAct) only permits the making available of works that form part of the collection of theinstitution in question. The exception is not limited to lawfully obtained works, which raisedsome controversy at the time of implementing the exception (see Dutch Copyright Associa-tion (Vereniging voor Auteursrecht), ‘Reactie op het Wetsvoorstel 28482 tot uitvoering van deRichtlijn Auteursrechten en naburige rechten in de informatiemaatschappij (2001/29/EG)’,10 October 2002, p. 13).The lending right regime (art.art. 15c15c CopyrightCopyright ActAct and para.para. 33 toto 66 ofof art.art. 2,2, art.art. 6,6, art.art.7a7a andand art.art. 88 NeighbouringNeighbouring RightsRights ActAct) applies to lending whole or part of exemplars orcopies of a work that have been brought into circulation by or with the consent of the rightholder. The regime does not apply to computer programs, unless this program serves tomake available other works on an information carrier. So far, the common understandingseems to be that the lending right regime applies to physical copies only.The orphan works exception (art.art. 16o-1716o-17 CopyrightCopyright ActAct and art.art. 1010 subsub ll NeighbouringNeighbouringRightsRights ActAct) is aimed at specific types of works that must be part of the collection of the insti-tution. Art.Art. 16o16o CopyrightCopyright ActAct refers to works listed in art. 10(1) under 1, 5 and 10 Copy-right Act. These include books, pamphlets, newspapers, periodicals and other writings (un-der 1), musical works, with or without words (under 5) and cinematographic works (under10). Art.Art. 1010 subsub ll NeighbouringNeighbouring RightsRights ActAct adds recordings of performances, phonogramsand the first recording of a film to this list. Other categories of works, such as stand-alonephotographs, are not included in the regime.


yes


yes

The Dutch Copyright Act contains specific exceptions and limitations to copyright pro-tection for educational and research institutions. The Neighbouring Rights Act containssimilar provisions.Art. 12(1) Copyright Act defines the publication right and gives examples of whatconstitutes a publication. Amongst others, this includes the recitation, playing, perfor-mance or presentation in public of the whole or part of a work or a reproduction there-of. Art.Art. 12(5)12(5) CopyrightCopyright ActAct and art.art. 2(8)2(8) NeighbouringNeighbouring RightsRights ActAct, however, statethat ‘recitation, playing, performance or presentation in public’ does not include thosethat take place exclusively for the purposes of education provided on behalf of thepublic authorities or a non-profit-making legal person, in so far as such a recitation,performance or presentation forms part of the school work plan or curriculum whereapplicable, or those that exclusively serve a scientific purpose.

295

b)

c)

d)

e)

Art.Art. 15h15h CopyrightCopyright ActAct also allows educational institutions to provide on-site access toworks via dedicated terminals and closed networks to individual members of the publicfor research purposes and for the purpose of private use by said members of the pub-lic.Art.Art. 1616 CopyrightCopyright ActAct and art.art. 1111 NeighbouringNeighbouring RightsRights ActAct provide that right holderscannot oppose to the reproduction or making public of parts of a work for the solepurpose of illustration for teaching, provided that the statutory conditions are met (seeQuestions 6 and 7). Art.Art. 16(2)16(2) CopyrightCopyright ActAct provides that, for the same purpose andsubject to the same conditions, use of the whole work is allowed if it concerns a shortwork or a work mentioned in art. 10(1) under 6, 9 or 11 Copyright Act (see Question7). According to art.art. 16(4)16(4) CopyrightCopyright ActAct these exceptions also apply where the use isin a language other than the original. This allows for the translation and making publicof translations of a work for the purpose of illustration for teaching.


yes

This situation is covered by the general exception for teaching purposes (art.art. 1616 Copy-Copy-right Actright Act and art. 11 Neighbouring Rights Actart. 11 Neighbouring Rights Act). See Question 5a.The copyright collecting society Stichting PRO collects and distributes the paymentsmade for the reproduction and communication of parts of works in readers, compila-tions and other courseware as permitted under art.art. 1616 CopyrightCopyright ActAct. Since this ex-ception is subject to the payment of a fair compensation for the use of the copyrightprotected works in courseware, Stichting PRO collects such compensation on behalf ofthe right holders whose repertoire is used by the educational institutes and subsequent-ly distributes it to the relevant right holders.


yes

The general exception for teaching purposes (art.art. 1616 CopyrightCopyright ActAct andand art.art. 1111NeighbouringNeighbouring RightsRights ActAct) allows for the translation and making public of translationsof a work. See Question 5a.


no

No explicit exception or limitation is included in Dutch legislation. The making avail-able in digital networks for educational purposes may perhaps be partly covered by thegeneral exception for teaching purposes (art.art. 1616 CopyrightCopyright ActAct andand art.art. 1111 Neigh-Neigh-bouringbouring RightsRights ActAct). Art. 15h Copyright Act does not apply in this situation, becausethis exception only allows on-site access through dedicated terminals and closed net-works and not online access through internet.


no

Such exception or limitation is not included in Dutch legislation.

296

f)

6)6)

7)7)


yes

The following exceptions as described in Question 4 also apply to educational institu-tions:• Public lending (art.art. 15c15c CopyrightCopyright ActAct and para.para. 33 toto 66 ofof art.art. 2,2, art.art. 6,6, art.art. 7a7a

and art. 8and art. 8 Neighbouring Rights ActNeighbouring Rights Act).• Reproduction for preservation purposes (art.art. 16n16n CopyrightCopyright ActAct and art.art. 1010 subsub ff

Neighbouring Rights ActNeighbouring Rights Act).• Reproduction and making available of orphan works (art.art. 16o-1716o-17 CopyrightCopyright ActAct

and art. 10 sub l Neighbouring Rights Actart. 10 sub l Neighbouring Rights Act).See for further conditions Questions 6-8.


The exceptions and limitations apply to the following organizations:Art.Art. 12(5)12(5) CopyrightCopyright ActAct and art.art. 2(8)2(8) NeighbouringNeighbouring RightsRights ActAct apply in situations whereeducation is provided on behalf of the public authorities or a non-profit-making legal per-son, in so far as the use (i.e. the recitation, performance or presentation of works) forms partof the school work plan or curriculum where applicable. With respect to the recitation, per-formance or presentation that exclusively serve a scientific purpose, no further reference ismade to any institutions.The general exception for teaching purposes (art.art. 1616 CopyrightCopyright ActAct andand art.art. 1111 Neigh-Neigh-bouringbouring RightsRights ActAct) also does not refer to particular institutions, but permits use for the solepurpose of illustration for teaching, thus limiting the exception to institutions with a clear ed-ucational program.The lending right regime (art.art. 15c15c CopyrightCopyright ActAct and para.para. 33 toto 66 ofof art.art. 2,2, art.art. 6,6, art.art. 7a7aandand art.art. 88 NeighbouringNeighbouring RightsRights ActAct) covers ‘publicly accessible institutions’, but exemptssome institutions from payment, including educational and research institutions and their li-braries. See Question 2.The preservation exception (art.art. 16n16n CopyrightCopyright ActAct and art.art. 1010 subsub ff NeighbouringNeighbouring RightsRightsActAct), the on-site-access exception (art.art. 15h15h CopyrightCopyright ActAct) and the orphan works exception(art.art. 16o-1716o-17 CopyrightCopyright ActAct and art.art. 1010 subsub ll NeighbouringNeighbouring RightsRights ActAct) apply amongst oth-ers to ‘publicly accessible […] educational institutions […]’. See Question 2 for further clari-fication.


Yes. The following conditions apply:Art.Art. 12(5)12(5) CopyrightCopyright ActAct allows the recitation, performance or presentation of a work exclu-sively for scientific purposes or for educational purposes in so far as those acts are part ofthe school work plan or curriculum of the educational institution.The general exception for teaching purposes (art.art. 1616 CopyrightCopyright ActAct andand art.art. 1111 Neighbour-Neighbour-inging RightsRights ActAct) applies to the reproduction or making public of parts of any type of work forthe sole purpose of illustration for teaching. Pursuant to art.art. 16(2)16(2) CopyrightCopyright ActAct, use of thewhole work is allowed if it concerns a short work or a work listed in art. 10(1) under 6, 9or 11 Copyright Act. This includes drawings, paintings, works of architecture and sculpture,lithographs and engravings (under 6), photographic works (under 9) and works of appliedart and industrial designs (under 11). Where the use is for a compilation, art.art. 16(3)16(3) Copy-Copy-rightright ActAct provides that the use of works by the same author must be limited to only short

297

8)8)

9)9)

(passages of) works. Where it concerns a compilation of works listed in art. 10(1) under 6, 9or 11 Copyright Act, only a few of said works may be used and only if the reproductions dif-fer appreciably from the original work, in size or as a result of the manner in which they aremade. Art.Art. 44 ofof thethe DecreeDecree onon reprographicreprographic reproductionreproduction further provides that educationalinstitution may only make as many reproductions as required for the number of students thatneed the reproduction (either to take part in the specific course or to do the examination).Art.Art. 16(1)16(1) CopyrightCopyright ActAct further subjects the use of works under this exception to the follow-ing conditions:i. the work from which the part has been taken must have been lawfully made public;ii. the use must be in accordance with what social custom regards as reasonably accept-

able;iii. the moral rights of the author must be respected (art. 25 Copyright Act);iv. as far as reasonably possible, the source and the author’s name must be clearly indicat-

ed; andv. fair compensation must be paid to the right holder.The conditions of the preservation exception (art.art. 16n16n CopyrightCopyright ActAct and art.art. 1010 subsub ffNeighbouringNeighbouring RightsRights ActAct), the on-site-access exception (art.art. 15h15h CopyrightCopyright ActAct), the orphanworks exception (art.art. 16o-1716o-17 CopyrightCopyright ActAct and art.art. 1010 subsub ll NeighbouringNeighbouring RightsRights ActAct)and the lending right regime (art.art. 15c15c CopyrightCopyright ActAct and para.para. 33 toto 66 ofof art.art. 2,2, art.art. 6,6,art.art. 7a7a andand art.art. 88 NeighbouringNeighbouring RightsRights ActAct NeighbouringNeighbouring RightsRights ActAct) are explained underQuestion 3.


Yes. The following conditions apply:Art. 12(5) Copyright ActArt. 12(5) Copyright Act applies to any kind of copyrighted work.As explained under Question 7, the general exception for teaching purposes (art.art. 1616 Copy-Copy-rightright ActAct andand art.art. 1111 NeighbouringNeighbouring RightsRights ActAct) applies to any kind of work, but a distinctionis made between works of which only part of the work may be reproduced and works thatmay be fully reproduced under the exception. Art. 16 further only allows reproductions ofworks lawfully made available by the right holder. See Question 7 for further details.The preservation exception (art.art. 16n16n CopyrightCopyright ActAct and art.art. 1010 subsub ff NeighbouringNeighbouring RightsRightsActAct), the on-site-access exception (art.art. 15h15h CopyrightCopyright ActAct) and the orphan works exception(art.art. 16o-1716o-17 CopyrightCopyright ActAct and art.art. 1010 subsub ll NeighbouringNeighbouring RightsRights ActAct) apply only to worksthat are part of the collection of the institution to which these exceptions apply. Further con-ditions, also in relation to the lending right regime (art.art. 15c15c CopyrightCopyright ActAct and para.para. 33 toto 66ofof art.art. 2,2, art.art. 6,6, art.art. 7a7a andand art.art. 88 NeighbouringNeighbouring RightsRights ActAct) are explained under Question4.



The Dutch Copyright Act has a closed system of exceptions and limitations, meaning thatthere are only statutory provisions that provide for limitations or exceptions in copyright. Seeour answers to Questions 1 and 5. Copyright exceptions are generally to be read narrowly,within the operation of their objectives. Under circumstances, further exceptions based on forinstance the Convention for the Protection of Human Rights and Fundamental Freedoms canbe construed by the courts, but in the Netherlands this is not a very common practice. Unlikethe US copyright system, Dutch copyright law does not provide for a general open formulat-

298

10)10)

11)11)

12)12)

ed exemption, such as fair use. It should be noted, however, that the Dutch lawmaker has akeen interest in introducing more flexibility in the system of exceptions and limitations (andperhaps even in adopting an open-ended exemption), but to date no conclusions have beenreached on this issue.


No. The three-step test has not been implemented in Dutch legislation. In practice, however,Dutch courts have applied the three-step test in a few cases to interpret the precisely definedexceptions as formulated in the Dutch Copyright Act in a narrower (stricter) or broader (moreflexible) sense.


Use under the exceptions and limitations described above is permitted automatically, insofaras the requirements of the exception have been met. However, there is one exception to thisautomatic permission, namely in the case of orphan works. Before the orphan works excep-tion applies, it must first be established that a work is an orphan work. To this end, a so-called Due Diligence Search for the right holders must be conducted (art.art. 16o-16p16o-16p Copy-Copy-right Actright Act and art. 10 sub l Neighbouring Rights Actart. 10 sub l Neighbouring Rights Act).


Yes. Remuneration is required for the lending right regime (art.art. 15c15c CopyrightCopyright ActAct and para.para.33 toto 66 ofof art.art. 2,2, art.art. 6,6, art.art. 7a7a andand art.art. 88 NeighbouringNeighbouring RightsRights ActAct) and the general excep-tion for teaching purposes (art.art. 1616 CopyrightCopyright ActAct andand art.art. 1111 NeighbouringNeighbouring RightsRights ActAct).The other exceptions include no remuneration requirements.Lending right regime (art.art. 15c15c CopyrightCopyright ActAct andand para.para. 33 toto 66 ofof art.art. 2,2, art.art. 6,6, art.art. 7a7aandand art.art. 88 NeighbouringNeighbouring RightsRights ActAct): as specified under Question 2,publicly accessible in-stitutions (libraries and archives included) may lend copyright protected works based on thelending right exception of art.art. 15c15c CopyrightCopyright Act,Act, provided that the person doing or arrang-ing the lending pays an equitable remuneration. As indicated, excluded from this paymentobligation are educational and research institutes and the libraries attached to them, as wellas the Royal Library. The level of remuneration is determined by a foundation designated bythe Minister of Justice in agreement with the Minister of Education, Culture and Science. Pay-ment of the remuneration has to be made to Stichting Leenrecht, a legal person designatedby the Minster of Justice in agreement with the Minister of Education, Culture and Science inthe Netherlands.General exception for teaching purposes (art.art. 1616 CopyrightCopyright ActAct andand art.art. 1111 NeighbouringNeighbouringRightsRights ActAct): reproduction or publication of parts of a literary, scientific of artistic work ex-clusively for use as illustrations for educational purposes so far as justified by their intendedand non-commercial purpose is only allowed when a fair compensation is made to the rightholder on the basis of art.art. 16(1)(5)16(1)(5) CopyrightCopyright ActAct and art.art. 1111 NeighbouringNeighbouring RightsRights ActAct. Theterm educational purposes needs to be interpreted broadly. Art. 16(1) Copyright Act does notapply to commercially purposed education. The person reproducing parts of the copyrightedwork is obliged to pay the required fee to the foundation charged with the remuneration ofthe work that is reproduced in part. Stichting PRO administers the fair compensation payableunder the exception on behalf of publishers.

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13)13)

14)14)

15)15)

II.)II.)

16)16)


No. There is no special treatment for orphan works within the exceptions or limitations de-scribed in this report. However, as explained, there is a special stand-alone exception for or-phan works in art.art. 16o-16q16o-16q andand 1717 CopyrightCopyright ActAct and art.art. 1010 subsub ll NeighbouringNeighbouring RightsRightsActAct (see earlier answers).


In the Netherlands, there is no uniform rule on the contractual overridability of copyright ex-ceptions and limitations. Some are explicitly declared mandatory by the lawmaker and there-fore cannot be overridden by contract. Yet, none of the copyright exceptions and limitationsrelating to libraries, archives and educational and research institutions fall into this catego-ry. Other copyright exceptions and limitations apply ‘unless otherwise agreed’ and thereforecan be overridden by contract. That is the case, e.g., with the exception permitting the com-munication of works on dedicated terminals on the premises of libraries, archives, etc. (art.art.15h15h CopyrightCopyright ActAct; art.art. 1010 subsub cc NeighbouringNeighbouring RightsRights ActAct). In the majority of cases, theDutch lawmaker has left it for the courts to determine whether the copyright exception orlimitation can be departed from in contractual arrangements. Accordingly, it will depend onthe circumstances of the case whether or not courts will allow a copyright exception or limi-tation to be contractually side-stepped. The parliamentary records of the implementation ofEC Directive 2001/29/EC show that the lawmaker has deliberately left this issue as much aspossible for judicial resolution, so as to retain legal flexibility to accommodate future devel-opments (see Parliamentary Report of the Senate (Eerste Kamer), 2003/2004, 28 482, C, p.1-2).


yes

Such efforts exist. In recent years, a relatively large number of collective licensing agreementshave been concluded in the Netherlands between collective rights management organi-zations (e.g. Lira, for literary works, and Pictoright, for pictorial works) and libraries andarchives (e.g. the Royal Library, the National Archive, the Institute for Sound & Vision andvarious other regional or local archives) permitting the latter institutions to digitise works con-tained in their collections and to make them available online. These agreements greatly fa-cilitate the rights clearance operation for mass-digitization projects that are currently under-taken by libraries and archives.In the field of educational uses, Stichting PRO, which on behalf of publishers administersthe ‘fair compensation’ payable under the general exception for teaching purposes (art.art. 1616CopyrightCopyright ActAct andand art.art. 1111 NeighbouringNeighbouring RightsRights ActAct), has also set up a licensing schemewith standardized licensing fees for universities and educational institutions to make repro-duction for educational purposes that go beyond art. 16 Copyright Act and thus require priorauthorization from the right holders.



yes

300

17)17)

18)18)

The Dutch group is of the opinion that there should be exceptions or limitations of copyrightand related rights protection for libraries and archives. Such exceptions or limitations shouldbe available for lending works to the visitors/members of the libraries, for providing the visi-tors/members with on-site access to works and for the preservation of works.Providing access to large collections of works at relatively low cost is an important core ac-tivity of libraries and ensures equal access to information. This fundamental activity can besignificantly facilitated in the presence of an exception or limitation for lending, since it freeslibraries from having to reach agreements with many authors/publishers.Since lending can and will often lead to a significant use of copyrighted works, the Dutchgroup is of the opinion that the exception or limitation for lending should comprise a com-pensation scheme.The preservation of works is an important activity for safeguarding access to works for futuregenerations. However, in the course of preserving a work, it is likely that copyright restrictedacts have to be performed for a proper preservation. At the same time, the preservation ofworks generally does not provide any or at least a significant source of income to librariesand archives. It is for this reason that the Dutch group is of the opinion that the presence ofan exception or limitation is appropriate and that no compensation should be required.


yes

The Dutch group is of the opinion that educational institutions should be able to rely on anexception or limitation that enables them to provide hardcopy and/or digital course materialswithout having to reach agreement with all relevant stakeholders (i.e. authors/publishers).The provision of course materials will often lead to a significant use of (often significant partsof) copyrighted works. Moreover, many of such copyrighted works have been created specif-ically for education purposes. Therefore, the Dutch group is of the opinion that this exceptionor limitation should comprise a compensation scheme.


yes

The Dutch group is of the opinion that, in principle, the three-step test can serve as an ad-equate framework for determining the permissibility of copyright exceptions and limitations.With its open-ended criteria – certain special cases, normal exploitation, legitimate interests,unreasonable prejudice –, the three-step test is capable to offer sufficient room for the recon-ciliation of all interests involved. However, the appropriateness of the test as an overarchingassessment tool depends on the right interpretation of the individual test criteria.An overly restrictive application of the individual criteria, inevitably, transforms the three-steptest into a straitjacket thwarting the activities of cultural heritage, research and educationalinstitutions. If, for instance, the existence of a certain special case is denied with regard toeach exception and limitation that is not targeting a very specific group of users, the three-step test will erode many use privileges in the sector. If each and every possibility of usingcopyrighted material is seen as a part of a work’s ‘normal exploitation’, the test will leavevery little room for new exceptions and limitations supporting the work of libraries, archives,museums, educational and research institutions. If each and every unauthorized use is seenas causing an unreasonable prejudice to legitimate interests of copyright holders, all excep-tions and limitations in the sector will have to be accompanied by the payment of equitableremuneration. Unfortunately, the approach taken by the Court of Justice of the EuropeanUnion points in the direction of such a restrictive interpretation. In Infopaq/DDF, the Courtplaced the three-step test in the context of the traditional dogma of a strict interpretation ofcopyright exceptions and limitations (CJEU, 16 July 2009, case C-5/08, Infopaq Internation-

301

19)19)

20)20)

al/Danske Dagblades Forening, para. 56-58). According to the Dutch group, this position isinappropriate and incorrect in the light of the fundamental rights and policy rationales un-derlying the introduction of exceptions and limitations for libraries, archives, museums, edu-cational and research institutions. In other words, an overly restrictive interpretation discreditsthe three-step test as an additional assessment tool and casts doubt upon the appropriate-ness of use of the test in general.However, the test can also be interpreted differently. In particular, it can be employed as arefined proportionality test that offers the opportunity to weigh carefully the different rightsand interests involved (cf. M.R.F. Senftleben, Copyright, Limitations and the Three-Step Test:An Analysis of the Three-Step Test in International and EC Copyright Law, The Hague/Lon-don/New York: Kluwer Law International 2004). The criterion of ‘certain special case’ canbe used to identify the objectives underlying an exception or limitation. The question, then,is not confined to a quantitative assessment of how many users benefit from an exceptionor limitation. By contrast, the question is whether the exception or limitation serves an im-portant policy objective that justifies its scope and reach. The normal exploitation test can beapproached from a normative perspective. Instead of focusing exclusively on the impact onactual and potential future markets, the normal exploitation inquiry can also clarify whetherit is ‘normal’ from a policy perspective that the copyright holder exploits the work in the areaof cultural heritage, educational and research uses. The final test of an unreasonable prej-udice can serve as a tool to determine whether an exception or limitation causes so muchharm that it requires the introduction of a compensation mechanism. Such an approach tothe three-step test finds support in international treaties. For instance, the Agreed Statementconcerning the three-step test in art. 10 of the WIPO Copyright Treaty reads as follows:It is understood that the provisions of Article 10 permit Contracting Parties to carry forwardand appropriately extend into the digital environment limitations and exceptions in their na-tional laws which have been considered acceptable under the Berne Convention.Similarly, these provisions should be understood to permit Contracting Parties to devise newexceptions and limitations that are appropriate in the digital network environment.Along these lines, recommendations for the appropriate application of the three-step test asa balancing tool have already been developed in academic circles (cf. C. Geiger, J. Griffiths& R.M. Hilty, ‘Declaration on a Balanced Interpretation of the “Three-Step Test” in CopyrightLaw’, IIC 39 (2008), p. 707). If this alternative approach is followed – an approach em-ploying the three-step test as a refined proportionality test for new exceptions and limitations–, the test can become an adequate instrument for the development of use privileges for li-braries, archives, museums, educational and research institutions.


Yes. The Dutch group is of the opinion that the objectives behind copyright exceptions andlimitations for libraries, archives, educational and research institutions are not of such animperative nature that lawmakers should prevent their contractual overridability at all times.We prefer leaving the contractual overridability of copyright exceptions and limitations forjudicial resolution, as the Dutch lawmaker has done in most cases (see Question 14). Themain advantage of this model is that courts are well positioned to establish in individual cas-es how a contract that derogates from a copyright exception or limitation should be balancedagainst the objectives pursued by it. For lawmakers it would be impossible to make a generalex ante assessment of such kind.


As already indicated above, the answer to the question of remuneration differs from use priv-ilege to use privilege. The Dutch group has assessed compensation obligations above in thecontext of Questions 16 and 17. Seeking to also provide more general guidelines, it can beadded that criteria to be considered in this context may include the following parameters:

302

21)21)

• whether the use privilege is for the benefit of a very specific form of use (for instance,preservation copies) or specific group of beneficiaries (for instance, disabled persons);

• whether the use is carried out with a direct profit motive or generates direct income forcultural heritage, educational or research institutions;

• whether the use is likely to substitute commercial exploitation channels used by the copy-right holder and, therefore, competes directly with regular modes of exploitation;

• whether the use prevents the copyright holder from establishing new information prod-ucts or services based on protected works.


In general, the law could provide more clarity on the application of existing copyright ex-ceptions and limitations to certain digital uses by libraries, archives and educational and re-search institutions. This in particular concerns the e-lending of books, the online provision ofdigital course materials and – to the extent that licensing models fail to adequately addressthe issue – text and data mining. Further, it would be desirable if the law more preciselydistinguished the copyright exceptions and limitations for educational uses for which a faircompensation is (or is not) due. Currently, the law provides for a general exception for cer-tain (analogue) classroom uses for which no compensation is payable (art.art. 12(5)12(5) CopyrightCopyrightActAct) and an exception for the reproduction and communication of parts of works for thesole purpose of illustration for teaching which is subject to payment of a fair compensation(art.art. 1616 CopyrightCopyright ActAct; art.art. 1111 NeighbouringNeighbouring RightsRights ActAct). In the present digital context, itis not always clear how these two exceptions are to be demarcated. For example, the use ofworks in PowerPoint presentations during lectures arguably falls under the former exceptionof classroom uses and thus is not subject to any payment, while the use of exactly the samePowerPoint presentations in ‘digital classrooms’ seems to be covered by the latter exception,which is subject to the payment of a fair compensation. The law could cure this by betterdemarcating the two exceptions or by stipulating that for certain educational uses, it wouldbe fair if the compensation is zero.In addition, while not being exceptions and limitations sensu stricto, the lawmaker could con-sider adopting an extended collective licensing (ECL) regime for the digitization and makingavailable of works by libraries and archives. Such regime would support the current licensingpractice between collective rights management organizations and libraries and archives inthe Netherlands (see Question 15). Because, in practice, collective rights management or-ganizations hardly ever have a full mandate to issue licenses that would allow libraries andarchives to digitize and make available works in particular parts of their collections (e.g. lit-erary works, magazines or newspapers published before 1940), there remains considerablelegal uncertainty for libraries and archives that engage in digitization efforts. Under an ECLsystem, the law creates the possibility to extend the mandates of sufficiently representativecollective rights management organizations to issue voluntary collective licences covering allright owners in a given field, including non-members of those organizations. To protect theinterests of right owners, they should be given the opportunity to ‘opt out’ of the ECL system.The result is that collective rights management organizations can grant libraries and archivesvoluntary licenses that cover the works of all right owners, except those who have explicit-ly opted out. On 10 September 2013, collective rights management organizations and li-braries and archives in the Netherlands sent a joint letter petitioning the Dutch lawmaker toadopt an ECL system for the digitization and making available of cultural heritage works.The lawmaker is currently investigating the introduction of such system (cf. P.B. Hugenholtz,S.J. van Gompel, L. Guibault & R. Obradović, Extended collective licensing: panacee voormassadigitalisering? Study commissioned by the Dutch Ministry of Education, Culture andScience, Amsterdam, 1 September 2014).

303

III.)III.)

22)22)

23)23)

24)24)

a)

b)

c)



yes

But only to the extent that exceptions and limitations for libraries, archives and educationaland research institutions have international implications. This may be the case, e.g., for par-ticular online uses in which these entities engage. A level playing field of exceptions and lim-itations could further be beneficial for right holders that operate internationally and contractwith libraries, archives and educational and research institutions in different countries. How-ever, any harmonisation in this area should not restrict countries in adopting specific excep-tions and limitations for libraries, archives and educational and research institutions that arerequired to safeguard access to information to weaker parties in society that would otherwisehave no (or limited) access to such information.





Libraries and archives should be able to rely on an exception or limitation for the fol-lowing activities: the lending of works, the provision of on-site access to works and thepreservation of works. These exceptions or limitations of copyright protection are justi-fied on the basis of public interests (lending and on-site access on the basis of equalaccess to information; and preservation on the basis of safeguarding access for futuregenerations). In view of this public-interest justification, these exceptions or limitationsshould only apply to public libraries and archives. If these activities will lead to a sig-nificant use of copyrighted works, which is in our view would only apply to the lendingof works, a compensation scheme should be in place.The Dutch group is of the opinion that within these exceptions and limitations, digitaluses should as much as possible be treated on the same footing as non-digital uses,provided that such treatment is compliant with the three-step test and that equivalentsafeguards apply to such digital and non-digital uses. To give an example, if the lend-ing right regime applies to physical copies it should also be made applicable to digitalcopies, provided that only one digital copy can be lend out to one user (this is the so-called one copy one user model) and that adequate safeguards are in place to preventa user from reproducing the digital copy. Technological measures can help to facilitatethis.


See Question 24a.


See Question 24a.

304

25)25)

a)

b)

c)

26)26)

27)27)



Educational and research institutions should be able to rely on an exception or limi-tation for the provision of hardcopy and/or digital course materials. This exception orlimitation should apply regardless of the type of education or research institute. Sincethis specific activity may lead to significant use of (part of) copyrighted works, a com-pensation scheme should apply.Here too, the Dutch group notes that in its opinion any exceptions or limitations shouldapply to both digital and analogue activities of educational and research institutions,provided that the same safeguards apply as discussed above under Question 24.


See Question 25a.


See Question 25a.



The Dutch group is of the opinion that the above exceptions or limitations should be per-mitted automatically without any further action. Regarding the exception for orphan works,however, the Dutch group contends that such an exception cannot reasonably be permittedautomatically as it somehow needs to be determined when a work qualifies as an orphanwork. This exception could therefore be subject to a diligent search as set out in Question 1d.Nevertheless, the Dutch group emphasizes that licensing schemes, such as the extended col-lective licensing scheme discussed in Question 21, could address the orphan works problemwithout requiring libraries, archives and educational institutions to engage in the arduoustask of searching for rightholders for each and every work in their collections.


The Dutch Group is of the opinion that any remuneration for use that falls under such excep-tion or limitation be based on a ‘fair compensation’. It refers to the case law of the EuropeanCourt of Justice regarding the private copy exception of art. 5(2)(b) of Directive 2001/29/EC,which sets out some core principles for how the remuneration under this provision must beestablished. These principles may be applied by analogy to the exceptions discussed here.In case C-467/08 (Padawan) the ECJ has ruled that the limits of the concept of ‘fair compen-sation’ should be determined in a consistent and harmonized manner and to be interpreteduniformly in all Member States, irrespective of the power conferred on them to determinethe form, detailed arrangements for financing and collection, and the level of that fair com-pensation. It follows from recitals 35 and 38 of the preamble to Directive 2001/29/EC thatthe purpose of fair compensation is to compensate authors ‘adequately’ for the use made oftheir works under a copyright exception. In order to determine the level of that compensa-tion, account must be taken of the ‘possible harm’ suffered by the author as a result of the

305

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29)29)

30)30)

act of reproduction concerned. The fair compensation must therefore include a system ‘tocompensate for the prejudice to rightholders’, which may be different depending on what theexception or limitation permits. A fair compensation for lending is arguably set at a differ-ent level than a fair compensation for educational uses related for example to long distancelearning.The Dutch Group is of the opinion that in principle the persons invoking the exception orlimitation are the persons liable for making the fair compensation. This is in line with joinedcases C-457/11 to C-460/11 (VG Wort, para. 74-75), in which the ECJ has held that, inprinciple, it is for the person or institution causing the harm to recompense the rightholderfor the harm suffered.


The Dutch Group is of the opinion that orphan works, provided that their status is confirmedby a diligent search, can be treated on the same footing as public domain works for thepurpose of calculating any remuneration due under such exception or limitation. This meansthat, similar as public domain works, orphan works should initially be excluded from remu-neration. However, if the rightholder of an orphan work comes forward, he should be enti-tled to claim remuneration for the use of his work.


The question of whether exceptions and limitations relating to libraries, archives and educa-tional and research institutions should be capable of being overridden by contract dependsto a large extent on the underlying values attached to them. A strong argument can be madethat it should not be possible to contractually set aside any exception or limitation based onuniversally recognized fundamental rights and freedoms which constitutes an imperative ruleof copyright law. Yet, apart from such cases, parties should be free to derogate from exist-ing exceptions or limitations through contract (cf. L.M.C.R. Guibault, Copyright Limitationsand Contracts: An Analysis of the Contractual Overridability of Limitations on Copyright, TheHague [etc.]: Kluwer Law International, 2002).


The Dutch Group is of the opinion that efforts by private organisations, such as the onesdiscussed above under Question 21 can easily coexist with the exceptions or limitations pro-vided by law.

SummarySummary


306

I.)I.)

1)1)

a)

b)

c)

New ZealandNew Zealand


in the name of the New Zealand Groupby Catherine EDMONDS and Kate MCHAFFIE


QuestionsQuestions




yes


yes

Section 55 of the Copyright Act 1994 provides that a librarian may make a copy (otherthan a digital copy) of any item in the collection of the library or archive for the purpos-es of preserving or replacing that item, but only where it is not reasonably practicableto purchase a copy of the item.Digital copies may be made only in certain specified circumstances.


yes

Section 53 of the Copyright Act 1994 provides that a librarian may copy a reasonableproportion of any literary, dramatic, or musical work (and any included artistic work)for supply to another library, provided that the copy is supplied for the purposes of re-search or private study.Section 54 provides that a librarian may copy a literary, dramatic, or musical work(and any included artistic work) from a book for supply to another librarian under cer-tain circumstances, including that the librarian to whom the copy is supplied has beenunable to obtain the work at an ordinary commercial price within the 6 months pre-ceding the supply. The librarian receiving the copy must, on demand, pay equitableremuneration to the copyright owner.


yes

Section 51 of the Copyright Act 1994 provides that a librarian may copy a reasonableproportion of a published literary, dramatic, or musical work (not being an article in aperiodical) for supply to any person, provided that person is not supplied on the sameoccasion with more than one copy of the same material and that the copy is only usedfor the purposes of research or private study. There is a cap on how much the librarymay charge for the copy.Section 52 provides a similar exception for articles in periodicals.

307

d)

2)2)

3)3)

4)4)

5)5)

a)


yes

Exceptions applicable to libraries and/or archives are set out in the Copyright Act 1994sections 50Ð58. These include:¥ copying by librarians of parts of published works¥ copying by librarians of articles in periodicals¥ copying by librarians for users of other libraries¥ copying by librarians for collections of other libraries¥ copying by librarians or archivists to replace copies of works¥ copying by librarians or archivists of certain unpublished works¥ communication of digital copy to authenticated users by library or archive¥ playing or showing sound recordings or films¥ making archived works available for public viewing¥ copying by the Parliamentary Library for members of Parliament.


The exceptions applicable to libraries apply only to 'prescribed libraries', as defined in section50 of the Copyright Act 1994. Prescribed libraries include the National Library, the Parlia-mentary Library, certain law libraries and libraries maintained by an educational establish-ment, government department or local authority.The exceptions applicable to archives apply to archives defined in s50 of the Copyright Act1994, including Archives New Zealand, the National Library, and national radio, television,and film archives.


The exceptions applicable to libraries and archives are subject to various conditions includingaround the proportion of works that may be copied and the number of copies that may becreated. The conditions are set out in sections 51Ð58 of the Copyright Act 1994.In some cases there are also additional conditions relating to the supply of works in digitalformat, for example a requirement to give written notice of the terms of use of the copy anda requirement to, as soon as is reasonably practicable, destroy any additional copy made inthe process of making the copy supplied.


See 4) above


yes


308

b)

c)

d)

e)

yes

Section 47 of the Copyright Act 1994 provides an exception to infringement for theperformance of a literary, dramatic or musical work before students or staff membersof an educational establishment, by a student or staff member or by any person for thepurposes of instruction.The exception also includes the playing or showing, for the purpose of instruction, of asound recording, film or communication work to the students or staff members.


yes

Section 44 of the Copyright Act 1994 provides an exception to infringement for copyingthe whole or part of a literary, dramatic, musical, or artistic work or typographicalarrangement of a published edition for an educational purpose. The exception is sub-ject to certain conditions around how the copy is made and by whom, the purpose forwhich the copy is provided, the number of copies that may be made, and the propor-tion of the work that may be copied. Different conditions apply in different circum-stances.Section 46 provides an exception to infringement for copying anthologies for educa-tional use. This exception allows copying of a short passage from a literary, dramaticor musical work in a collection that is intended for use in educational establishmentsfor educational purposes and which consists mainly of material in which no copyrightexists or in which copyright is owned by the publisher of that collection or the Crown.No more than 2 passages from copyright works by the same author in collections pub-lished by the same publisher over any 5 year period may be copied.



yes

Section 44A of the Copyright Act 1994 provides an exception to infringe for an educa-tional establishment making a work available on a website or other electronic retrievalsystem by storing a copy of the page/s in which the work appears if certain condi-tions are met, including that the material is stored for an educational purpose and isrestricted to use by authorised users. The exception won't apply if the educational es-tablishment knowingly fails to delete the stored material within a reasonable time afterthe material becomes no longer relevant to the course of instruction for which it wasstored.


yes

Section 43 of the Copyright Act 1994 provides that fair dealing with a work for the pur-poses of research or private study does not infringe copyright in the work. The sectionsets out the matters to which the court shall have regard in determining what consti-tutes fair dealing, including the purpose of the copying, the nature of the work copies,and the effect of the copying on the value of the work.

309

f)

6)6)

7)7)

8)8)

9)9)

10)10)


yes

Exceptions applicable to education and research institutions are set out in the CopyrightAct 1994 sections 44Ð49. These include:¥ copying for educational purposes of literary, dramatic, musical or artistic works or

typographical arrangements¥ storing copies for educational purposes¥ copying for educational purposes of films and sound recordings¥ anthologies for educational use¥ performing, playing, or showing work in course of activities of educational estab-

lishment¥ copying and communication of communication work for educational purposes¥ things done for the purposes of examination.'Fair dealing' exceptions for criticsm, review and news reporting, and research or pri-vate study, are set out in section 42 and 43 of the Copyright Act.


In most cases these exceptions only apply to 'educational establishments', as defined in sec-tion 2 of the Copyright Act 1994. These are schools and educational institutions approvedunder the Education Act 1989.


The exceptions applicable to education and research institutions are subject to various con-ditions including around the proportion of works that may be copied and the number ofcopies that must be created. The conditions are set out in sections 44Ð49 of the CopyrightAct 1994.


See 7) above



Each exception or limitation described above is statutory and is set out in the Copyright Act1994.


There is no specific adoption of the Three-Step Test in the Copyright Act 1994

310

11)11)

12)12)

13)13)

14)14)

15)15)


Use under the exceptions described is permitted provided the conditions described aboveand set out in the statute are met.


The exceptions set out in sections 44Ð49 and 51Ð58 of the Copyright Act 1994 prescribe thepermitted remuneration.Educational establishments may not charge students or the persons receiving the copiesmade.Libraries and archives may charge for making copies, but the payment received must be nolarger than the total cost of producing the copy and a reasonable contribution to the generalexpenses of the library/archive.


There is no specific reference to orphan works in relation to each exception and limitation.


In theory, New Zealand law allows these exceptions to be overridden by contract. However,if the effect of the contractual provisions were contrary to public policy or unconscionable,they may be unenforceable.


yes

Specific educational licences are available from licensing bodies such as Copyright LicensingNew Zealand.

311

II.)II.)

16)16)

17)17)

18)18)

19)19)

20)20)

21)21)

III.)III.)

22)22)

23)23)

24)24)

a)

b)

c)

25)25)

a)

b)

c)





















312

26)26)

27)27)

28)28)

29)29)

30)30)






SummarySummary


313

I.)I.)

1)1)

a)

b)

c)

d)

ParaguayParaguay


in the name of the Paraguay Groupby Marta BERKEMEYER


QuestionsQuestions




yes


yes

According to our legislation, numbered 1328 of 1998 about Copyright and neighbor-ing rights establishes: Limitation of Exploitation RightsArticle 39: With respect to works already made public, the following [acts] may beperformed without authorization from the author and without paying remuneration tosame:- Individual reproduction of a work by public libraries or archives that do not pursuelucrative ends, when the copy of the work is part of permanent collections [of said insti-tutions], and [the reproduction] is done in order to preserve said copy or to substitute itin case it is lost, destroyed or rendered useless, or to be used as a substitute copy whena work has been lost, destroyed or rendered useless in some other library or archives,provided that the acquisition of [an additional] copy is not possible within reasonableterms and conditions.


yes

With respect to 39 article: our legislation permits: loan to the public of copies of a writ-ten work, by libraries or archives whose activities, directly or indirectly, do not pursuelucrative ends.


yes

With respect to 39 article: our legislation permits: loan to the public of copies of a writ-ten work, by libraries or archives whose activities, directly or indirectly, do not pursuelucrative ends. In other words, it also applies to the purpose of providing copies.


314

2)2)

3)3)

4)4)

5)5)

a)

b)

no

Limitations and exceptions are restrictive.


This legislation establishes that apply only to libraries and archives.


The previously mentioned legislation, in its 39 article continues as it follows: the following[acts] may be performed without authorization from the author and without paying remuner-ation to same:¥ reproduction by reprographic means [of materials to be used] for examinations in edu-

cational institutions, provided that it is not done for profit and in a measure appropriateto the objective pursued; [the materials] shall be comprised [only] of articles or brief ex-cerpts of works legally published, and their utilization shall be for honest purposes.

It does not establish quantity whatsoever.


It shall be required a legally published work.


yes


yes

According to our legislation, with respect to 39 article: the following [acts] may beperformed without authorization from the author and without paying remuneration tosame:¥ reproduction by reprographic means [of materials to be used] for examinations in

educational institutions, provided that it is not done for profit and in a measureappropriate to the objective pursued; [the materials] shall be comprised [only] ofarticles or brief excerpts of works legally published, and their utilization shall be forhonest purposes.

With respect to Article 38: The works of [human] ingenuity protected by the present lawmay be communicated lawfully, without authorization by the author nor payment of re-muneration, in the following cases: É when [works] in the form of personal and singlecopies are used by teachers exclusively for didactic purposes in [learning] institutions.


yes

315

c)

d)

e)

f)

6)6)

With respect to Article 38: The works of [human] ingenuity protected by the present lawmay be communicated lawfully, without authorization by the neither author nor pay-ment of remuneration, in the following cases: É when [works] in the form of personaland single copies are used by teachers exclusively for didactic purposes in [learning]institutions.


yes

In order to make translations, it shall be required the author«s authorization.


no

This legislation does not establish any provisions about this topic, so we consider thatthe published work and exhibited for its use by several people or its distribution to pub-lic, it shall be required the author«s express authorization.


no

This legislation does not refer to reproduction and distribution with research purposes.


yes

- Reproduction a work for [use in] judicial or administrative proceedings, in a measureappropriate to the ends pursued;- individual reproduction of a work by public libraries or archives that do not pursuelucrative ends, when the copy of the work is part of permanent collections [of said insti-tutions], and [the reproduction] is done in order to preserve said copy or to substitute itin case it is lost, destroyed or rendered useless, or to be used as a substitute copy whena work has been lost, destroyed or rendered useless in some other library or archives,provided that the acquisition of [an additional] copy is not possible within reasonableterms and conditions;- Loan to the public of copies of a written work, by libraries or archives whose activities,directly or indirectly, do not pursue lucrative ends;- reproduction of works by means of the Braille system or other specific system de-signed for the exclusive use of sightless persons, provided that no lucrative ends arepursued or that a fee is not involved in the use of the copies.


This legislation in its 38 article refers to educational institutions which do not pursue lucrativeends and to places of business, exclusively for the purpose of performing demonstrations toclients.

316

7)7)

8)8)

9)9)

10)10)

11)11)

12)12)

13)13)

14)14)


There are no specifications about this topic on the present legislation.


This legislation establishes that the reproduction is possible only when it comes to legallypublished work.



According to our legislation, numbered 1328 of 1998 about Copyright and neighboringrights clearly establishes: The Limitations of Exploitation Rights and Their Duration, inside itsFifth Title, on the First Chapter.


Actually, it includes such test but implicitly, because the same provisions of the Three-StepTest are already immersed on our legislation related to Copyright.


Use within the exception or limitation is automatically permitted.


Expectations and limitations do not provide any remuneration. (38 Article).


There are no provisions in reference to this topic.N/A.


Contracts cannot invalidate what it is established by law

317

15)15)

II.)II.)

16)16)

17)17)

18)18)

19)19)

20)20)

21)21)


no

There are no private organizations.



yes

We consider necessary the existence of more specific provisions specially related to digitalarchives and digital libraries, which might allow free access to certain works.


yes

Taking into account that the previously mentioned legislation establishes exceptions and lim-itations for educational institutions and libraries, it is also necessary to establish these condi-tions for research institutions.


yes

Actually, it ended up being useful because the test protects the legitimate interests of the au-thor.According to the legislation, the premise is that the allowed reproductions shall be permittedprovided that such reproductions do not conflict with a normal exploitation of the work anddo not unreasonably prejudice the legitimate interests of the author.


These exceptions and limitations are meant to protect the general public; therefore they can-not be objects of single resignation in contracts.


No, it should not be payable because it is not imposed by law.


Our current law could be improved to the extent that may exist specific regulations that rulethese exceptions and limitations.

318

III.)III.)

22)22)

23)23)

24)24)

a)

b)

c)

25)25)

a)

b)

c)



yes

Yes, it does.





These exceptions and limitations should apply to virtual libraries and digital archives,given that there are no express reference to them on our current legislation.


On the face of the absence of regulations on this matter, we consider that these excep-tions and limitations should also be applied to research institutions.


These activities should be accomplished under the following conditions:- With didactic purposes in learning and research institutions;- Without seeking any lucrative interest at the expense of the copyrighted work.- Without causing an unreasonably prejudice to the legitimate interests of the author



They should apply to those public educational institutions and also to public researchinstitutions.


The Paraguayan legislation clearly establishes those activities described above on 38and 39 articles.


These activities should be accomplished under the following conditions:- With didactic purposes;- Without seeking any lucrative interest at the expense of the copyrighted work;- Without causing an unreasonably prejudice to the legitimate interests of the author

319

26)26)

27)27)

28)28)

29)29)

30)30)



Yes, it should be permitted automatically, as long as it does not cause a prejudice to the au-thor.


It should be calculated according to the equipments and devices used to make such repro-duction and distribution. The liability lays on a state entity, as the Local Copyright Office.(Direcci—n Nacional de Derecho de Autor).


It should there be a special treatment because our legislation only regulates anonymouslyworks, excluding orphan works.


In none.N/A.


There are no private organizations that address such use.

SummarySummary


320

I.)I.)

1)1)

a)

b)

c)

d)

PhilippinesPhilippines


in the name of the Philippines Groupby Alex Ferdinand S. FIDER and Antonio Ray A. ORTIGUERA


QuestionsQuestions




yes


yes

a) Reproduction can be made when the work is fragile or rare that it cannot be lent inits original form.b) Reproduction can be made to preserve and replace a copy, in the event that thework is lost, destroyed or rendered unusable, in the permanent collection and copiesare not available with the publisher.


yes

A library or archive may make a copy of a work to replace in the permanent collectionof another similar library or archive, a copy which has been lost, destroyed or ren-dered unusable, and copies are not available with the publisher.


yes

Reproduction can be made for purposes of research or study, when the works areisolated articles contained in composite works or brief portions of works, and the re-production is necessary and expedient, instead of lending all the volumes or bookletswhich contain them. Reproduction can also be made when the work is fragile or rarethat it cannot be lent in its original form.


yes

Works may also be used without the permission of the copyright owner if by or underthe direction or control of the National Library where such use is in the public interestor compatible with fair use.

321

2)2)

3)3)

4)4)

5)5)

a)

b)

c)


The reproduction exception applies to library and archives whose activities are not for profit.However, the exception for use applies only to the National Library.


Apart from the condition that the activities of the library or archive must not be for profit, theother general conditions for reproduction are the following:a. Only a limited number of copies of the work may be reproduced as may be necessary

for such institutions to fulfill their mandate.b. The library or archive cannot produce a volume of a work published in several volumes

or to produce missing tomes or pages of magazines or similar works, unless the volume,tome or part is out of stock. However, when special reasons so require, a library which,by law, is entitled to receive copies of a printed work, may reproduce a copy of a pub-lished work which is out of stock but considered necessary for the collection of the library.

The condition for the exception of use by or under the direction and control of the NationalLibrary is where such use is in the public interest or compatible with fair use.


While it is not specifically stated, it can be inferred from the exceptions that legitimate copiesmust be existing in the libraryÕs or archiveÕs collection or, were existing, in the case of worksthat have been lost or destroyed.


yes


yes

a) There is an exception under Philippine law for the inclusion of a work in a publi-cation, broadcast, or other communication to the public, sound recording or film forteaching purposes.b) An institution for educational purpose only whose aim is not profit making may al-so publicly perform or communicate to the public a work in a place where no admis-sion fee.


yes

Such acts may fall under the provision allowing use of a work by or under the directionor control of educational institutions in the public interest or compatible with fair use.


322

d)

e)

f)

6)6)

7)7)

yes

Although Philippine law does not expressly provide an exception for translation for ed-ucational purposes such act may fall under the provision allowing use of a work by orunder the direction or control of educational institutions in the public interest or com-patible with fair use.


yes

Although Philippine law does not expressly provide an exception for making availablein digital networks, such act may be covered under the provision allowing use of awork by or under the direction or control of educational institutions in the public inter-est or compatible with fair use.


yes

The exception may fall under the provision allowing use of a work by or under the di-rection or control of educational institutions in the public interest or compatible withfair use.


yes

There is an express limitation for recordings made in schools, universities or education-al institutions of a work included in a broadcast for the use of such schools, universitiesor educational institutions.


The exception applies to schools, universities, or educational institutions in general and with-out qualification. Moreover, the exception for the inclusion of a work in a publication, broad-cast, or other communication to the public, sound recording or film is not limited to an edu-cational and research institutions. Thus, individuals may also avail of said exception as longas it is done for teaching purposes. However, the exception to public performance or dis-play requires that the institution be for educational purpose only whose aim is not profit mak-ing.


The exception for the inclusion of a work in a publication, broadcast, or other communicationto the public, sound recording or film for teaching purposes requires only that the mannerof inclusion is compatible with fair use and that the source and the name of the author, ifappearing in the work, is mentioned;

323

8)8)

9)9)

10)10)

11)11)

The exception for the recordation by schools, universities, or educational institutions of awork included in a broadcast requires that the recording be deleted within a reasonableperiod after it was first broadcast. Also, the exception does not apply to audiovisual workswhich are part of the general cinema repertoire of feature films except for brief excerpts ofthe work.The exception of use by or under the direction or control of the educational institution re-quires the use to be in the public interest or compatible with fair use, while the exception topublic performance or the communication to the public of a work requires no admission feeto be charged by the educational institution.


The exception applies to any type of copyrighted work.For the questions below, please provide an answer for each exception or limitation men-tioned above.



The exceptions stated above are specifically provided under the Intellectual Property Code of

the Philippines (IP Code).[1]

FootnotesFootnotes

1. ^ Sections 184.1 (e), 184.1 (f), 184 (h), 184 (i) and 188, IP Code; http://www.wipo.int/wipolex/en/text.jsp?file_id=129343


Yes, the IP Code includes a provision that the exceptions stated above shall be interpretedin such a way as to allow the work to be used in a manner which does not conflict with thenormal exploitation of the work and does not unreasonably prejudice the right holder's legit-

imate interests.[1]

FootnotesFootnotes

1. ^ Section 184.2, IP Code; http://www.wipo.int/wipolex/en/text.jsp?file_id=129343


The use under the exceptions stated above is automatically permitted without any pre-requisite procedure to be followed.

324

12)12)

13)13)

14)14)

15)15)

II.)II.)

16)16)

17)17)


The exceptions stated above are not subject to any remuneration.


The IP Code does not contain a provision specifically dealing with orphaned works. Conse-quently, the exceptions stated above do not give special treatment to orphaned works.


Under the rule of autonomy of contracts, the exceptions may be overridden by agreement.However, such change shall only effect the parties to the contract.


no

We are not aware of any current efforts by private organizations to address use by libraries,archives and educational and research institutions.



yes

Yes, there should be exceptions for libraries and archives in relation to their activities that arenon-profit. Copyright law has always been viewed as protection to be enforced in a way thatwill best serve the public interest in the dissemination of knowledge. Libraries and archivesare the traditional repository of knowledge and it is only fitting and proper to make an ex-ception to the reproduction of copyright materials by these institutions in the fulfillment oftheir mandate.


yes

Yes, there should be limitations on copyright in relation to research and private study activ-ities. Copyright law seeks to balance the interest between the creators and public. The cre-ators seek an incentive to create, while the public seeks to have access to the work. Allowingthe public free access to a work for purposes of research, under certain conditions, does notunduly lessen the copyright ownersÕ incentive to create. The unrestricted use of a copyrightedwork for purposes of research and education should be allowed as long as it is reasonable.

325

18)18)

19)19)

20)20)

21)21)

III.)III.)

22)22)


yes

Yes, the Three-Step Test is useful in balancing the interests of the public and the copyrightowners. The three-step test requires the exception is: 1) limited to special cases; 2) does notconflict with a normal exploitation of the work; and 3) does not unreasonably prejudicethe legitimate interests of the author. Each step provides a safeguard against excessiveapplications of the exceptions to copyright protection at the expense of the copyright owners.


Following the principle of autonomy of contracts, the exception or limitation to copyright pro-tection should be capable of being overridden by contract as there can be instances wherethe terms of the contract would provide more benefits to both parties than the application ofjust the exceptions under the law.


We do not suggest that remuneration be payable for such activities since, as required by thelaw, they should not conflict with the normal exploitation of the work and should not unrea-sonably prejudice the legitimate interests of the author. Given such restrictions, it does notappear to be necessary to compensate the copyright owner. Compensation should only begiven if the use of the work will result in commercial gain for the use or a compensable lossto the copyright owner.


The exception for the recordation by schools, universities, or educational institutions of awork included in a broadcast requires that the recording be deleted within a reasonableperiod after it was first broadcast. Also, the exception does not apply to audiovisual workswhich are part of the general cinema repertoire of feature films except for brief excerpts ofthe work. It is submitted that education and research will benefit, with no unreasonable prej-udice to the rights of the copyright owner, if the requirement to delete and non-inclusion ofaudiovisual works which are part of the general cinema repertoire of feature films are re-moved.



yes

Yes, harmonization in this area is desirable considering that copyrighted works are moreeasily accessible across various jurisdictions due to the internet. Thus, it is not unusual for li-braries, archives and other research institutions to deal with copyrighted works that are foundin jurisdictions other than their country of origin.


326

23)23)

24)24)

a)

b)

c)

25)25)

a)

b)

c)




The exception should apply to libraries, archives and other organizations whose activi-ties are not for profit. It would be unjust enrichment if the libraries will conduct activitiesfor commercial profit using the exceptions and not pay royalties to the copyright own-ers.


It should apply to all activities of the non-profit libraries, archives and other organiza-tions that are consistent with their mandate.


The libraries, archives and other organizations should have lawfully obtained a copyof the original work to be reproduced. Copies to be reproduced should be limited andonly to the extent necessary to carry out the intended purpose. In the area of digitalreproduction, it is suggested that safeguard or conditions be made to ensure that theperson having access to the digital copy of the work will not be able to reproduce itfor distribution. Without any safeguards, a work that has been digitized can easily bereproduced and distributed.



The exception should apply to any educational and research institution.


The exception should apply to any activities of the educational and research institutionas long as the work product will not be used for direct or indirect commercial activities.If it will be used for commercial activities, it is only proper that compensation be givento the copyright owner.


At a minimum, any reproduction should be conditioned on the requirement that theeducation or research institution has in its possession a legitimate copy of the work. Re-production of copies should be limited to the extent necessary to carry out the activity.Any other condition may be imposed as long as it is consistent with the three-step test.


327

26)26)

27)27)

28)28)

29)29)

30)30)


It would be better if the exception or limitation be permitted automatically. Requiring the userto comply with certain pre-conditions prior to use may impede education and research ac-tivities.


Remuneration for use should be by way of royalty payment, i.e., percentage of revenue de-rived. Payment should be made by the person or institution using the copyrighted work forcommercial purpose, which is to be paid to the copyright owner.


For orphan works, royalty payments may be deposited with the relevant copyright office.


The exceptions or limitation may be overridden by contract if the clauses are mutually morebeneficial to both parties.


The efforts by these private organizations may be deemed to override the exceptions or limi-tations provided by law through contract.

SummarySummary

The Intellectual Property Code of the Philippines states that Ò[t]he use of intellectual propertybears a social function. To this end, the diffusion of knowledge and information for the pro-motion of national development, progress and the common good is to be encouraged.ÓConsequently, while the Philippines recognizes the right of copyright owner to control thereproduction and exploitation of their works, such right must be balanced with interest ofthe public to access the work. The balance is not disturbed in the instances of reproductionand use by libraries, archives, educational and research institutions under certain conditionsin the fulfillment of their mandate as a repository of knowledge and institutions for the ad-vancement of education and research. As long as safeguards are in place against abuse,such as the three-step test, the rights of the authors to profit from their works is secure. For adeveloping country like the Philippines, gaining access to literary works is vital to the devel-opment of its next generation of citizens. Having these exceptions to copyright for libraries,archives, educational and research institutions will aid in that development.


328

I.)I.)

1)1)

a)

b)

c)

d)

2)2)

PolandPoland


in the name of the Poland Groupby Wojciech TRYBOWSKI


QuestionsQuestions




yes


yes

Article 28 of currently binding Polish copyright law states that libraries, archives, andschools may:1) make available free of charge, within the framework of their statutory tasks,copies of distributed works;2) copy or commission the copying of distributed works for the purposes of sup-

plementing, preserving, or protecting their own collections.3) make collections available for research or cognitive purposes via the infor-

mation system terminals located in their premises.


yes


yes


yes


Currently binding Polish copyright law sets forth only a general norm (it does not specifytypes of libraries, archives or other organizations using the exceptions) (see also answer toquestion 9). The proposed amendments to copyright law provide that the principles set forthin Article 28 will be applicable only where these actions are not taken in order to gain director indirect profit.

329

3)3)

4)4)

5)5)

a)

b)

c)

d)

e)

f)

6)6)


The proposed amendments further provide that the author of a work, translator into the Pol-ish language, co-author of the work whose contribution is an artistic or photographic workshall be entitled to remuneration for the lending by public libraries of copies of such worksexpressed in words, created or published in the Polish language provided that these copiesare not made available within the area of public libraries.The only exception is the Polish National Library to which the above provision does not apply.


No.


no

No; but it results from the construction (wording) of the currently binding law that rights oflibraries, archives and schools, specified in the cited Article 28 copyright law applies to theirown collections/archives.

Art. 27 of the currently binding Polish copyright law states that the scientific and ed-ucational institutions may, for educational purposes or for the purpose of conducting theirown research, use the original and translations of distributed works and make, for the samepurpose, copies of fragments of a distributed work.As results from the cited regulation, the current Polish copyright law seems to regulate onlythe issues included in points a. and b. of the Question, whereas point e. applies only to partsof a disseminated work.The proposed amendments provide that the discussed right may also be applied to e-learning, but only for a limited group of personally identified users.








No.

330

7)7)

8)8)

9)9)

10)10)

11)11)

12)12)

13)13)


No.


No.



Within the scope covered by the question, relevant statutory provisions regarding the avail-ability of institutions and availability of their collections are set forth in the Act on Public Li-braries and the Act on Museums. However, said acts do not provide comprehensive regula-tions in respect of public admissibly of works and subject matter of related rights.Case law is not a source of law in Poland.


In the currently binding Polish copyright law Three Ð Step Procedure is not formally adopted(however being a party to the Bern Convention we could use it).The procedure is likely to beincluded in the new regulation.


No, there are not any specific criteria / procedure.


No, in the existing Polish system of copyright law the special remuneration in the subjectmatter is not set forth. The future system provides for such remuneration but the draft ofamendments does not specify the amount thereof. The proposed system also provides thatfinancial means for the above purpose will be secured by a special governmental fund, anddisbursements from this fund will be made by collecting societies.


No.

331

14)14)

15)15)

II.)II.)

16)16)

17)17)

18)18)


No.


no

No, in the currently binding Polish copyright law special treatment for orphan works doesnot exist. It is planned that this issue will set forth as part of new regulations implementingDirective 2012/28/UE. It is assumed that the entities entitled to use orphan works will includeeducational institutions, higher education schools, research institutes, scientific institutes ofthe Polish Academy of Sciences, museums, national and local institutions of culture, publicradio and TV.



yes

and 17. Considering the fact that the solutions regarding exceptions or limitations set forthin the currently binding Polish copyright law are lagging behind developments in this areain other countries which have already implemented the solutions set forth e.g. in the EU di-rectives, the advancements in the legislative process aimed to introduce changes is slow andconsequently there is no relevant practice in this area, it is not possible to provide an ade-quately substantiated answer: ÒyesÓ or ÒnoÓ.


yes

and 17. Considering the fact that the solutions regarding exceptions or limitations set forthin the currently binding Polish copyright law are lagging behind developments in this areain other countries which have already implemented the solutions set forth e.g. in the EU di-rectives, the advancements in the legislative process aimed to introduce changes is slow andconsequently there is no relevant practice in this area, it is not possible to provide an ade-quately substantiated answer: ÒyesÓ or ÒnoÓ.


yes

Yes, the Three-Step Test is a useful test for determining exceptions or limitations to copyrightprotection.Exceptions and limitations interfering with the authorÕs freedom of exploitation of his workand interest of the author at one side and public function of libraries, archives or educationaland research institutions from other side should be balanced by such instrument.

332

19)19)

20)20)

21)21)

III.)III.)

22)22)

23)23)

24)24)

a)

b)

c)


No. See also answer for question 29.


Yes. See answer for question 27.


As it was explained in the introduction Polish copyright law is under deep changes accordingto the implementation process of the mentioned above EU Directives. Please see introductoryexplanations and answers for part I.



yes

It seems expedient to review the practice of using the existing solutions that are consistentwith currently binding international regulations, and based on the results of such review con-sider the option of harmonization, if any, and possible legal form (international treaty orconvention), which would legitimize the required changes.



yes

It seems expedient to review the practice of using the existing solutions that are consistentwith currently binding international regulations, and based on the results of such review con-sider the option of harmonization, if any, and possible legal form (international treaty orconvention), which would legitimize the required changes.



see answer for questions 16 and 17.





333

25)25)

a)

b)

c)

26)26)

27)27)

28)28)










Use under the exception or limitation should be permitted automatically (without any furtheraction) for libraries and archives, taking into the consideration that especially libraries areinstitutions of the mass culture.If any such criteria should be set, they should depend on the educational or research destiny(profit or non-profit).


It seems that the amount of remuneration for public lending rights shall be set according tothe criteria specified in the judgment of the European Court of Justice in the case C-271/VEWA, which concluded inter alia that the remuneration shall be allow the author to obtainadequate income, and the amount of the remuneration shall not be merely symbolic and itshould also take into account the frequency of using the collections. Remuneration shall beprovided from special public funds, it should be consistent with the rates of comparable re-muneration in given region (obviously, the level of such remuneration is different in Central-Eastern Europe, Western Europe and the USA). Remuneration should be paid by collectingsocieties to the authors and editors of literary works, artworks and photographic works, andin smaller amounts Ð to translators thereof.


Use of orphan works in the context of exceptions or limitations for libraries, archives and ed-ucational or research institutions, apart from taking into account the specific nature thereof,should also pay more attention to careful investigations aimed at establishing entities autho-rized to use works, not only in the country of origin of such works but also in other countries,and to establishing precise rules for proper compensation for authors/owners should they befound after given work has been declared orphan.Likewise, more specific rules should be set forth in the case of Òpartially orphaned worksÓ.

334

29)29)

30)30)


In the opinion of Polish group, exceptions or limitations should not be capable of being over-ridden by contract.Clear statutory regulations guarantee the equality of rights to all copyright owners, also inthe area of exceptions or limitations of such rights. Borders of limitation should be supervisedaccording to the law.Adopting a scheme different from the one provided by law may threaten the equality andmay lead to unjust and uncontrolled excessive use of exceptions or limitations.


Any deviation from the equality of Ôexceptions and limitationsÕ system established in the copy-right law should be extremely limited, but it should also take into consideration free accessto the mass culture and educational products.For this reason our Group does not promote the proposals of better outcomes than a strictlylegal approach in the subject matter.

SummarySummary


Introduction - general commentIntroduction - general commentAt the moment of preparing this report the Polish copyright law is on a path leading to sig-nificant changes aimed to adjust it to the European law, in particular to Article 5 of Directive2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the har-monisation of certain aspects of copyright and related rights in the information society (Of-ficial Journal EC L 367 of 22 June 2001); and Directive 2012/28/EU of the European Par-liament and of the Council of 25 October 2012 on certain permitted uses of orphan works.The majority of issues considered by the Questions below have not been regulated in thecurrently binding version of the Polish copyright law. At the same time the relevant legislativeprocess is still at its early stage (draft amendments to be introduced in the Law were sent tothe Parliament on 22 May,2015). That is why the Polish AIPPI group have decided to pro-vide responses to the Questions in the form of both detailed information on the present stateof legislative proceedings and more general information describing directions of proposedchanges (the text of proposed amendments is not an official parliamentary version yet).

335

I.)I.)

1)1)

a)

b)

c)

Republic of KoreaRepublic of Korea


in the name of the Republic of Korea Groupby Sun R. KIM


QuestionsQuestions




yes


yes

Korea Copyright Act provides specific exceptions and limitations to copyright protectionfor libraries and archives set forth in Subsection 2(Limitation on AuthorÕs PropertyRights) under Articles31, 35-2;Article 94 (Restrictions on Rights of Database Producers).Neighbouring Rights also provides specific limitations for libraries and archives in Arti-cle 87. Under the law, performance, phonogram and broadcast fall under the subjectmatter protected by neighbouring rights. Limitations and exceptions on copyright pro-tection also apply to neighbouring rights mutatis mutandis.Reproduction and distribution for the purpose of preservation or replacement are ex-ceptions to copyright protection. Article 31-1 provides that a library under the LibraryAct and the facilities ( which provides books, records, and other materials, ÓbooksÓ)prescribed by Presidential Decree designed for public access may reproduce works in-cluded in the libraryÕs collection for the purpose of preservation in a physical or a dig-ital form. However, in the event that such books are sold in digital form, the libraryshall be prohibited from reproducing them in digital form.A library may reproduce also for another library at their request for the purpose of theirpreservation or replacement in the event that the other library has difficulty obtainingsuch book due to out of print or other equivalent causes. Note that reproduction is notauthorized in digital form in this case.


yes

Article 31 provides that libraries may reproduce or transmit the books held in its col-lection to allow users inside other library to peruse them by computer provided that thesame shall not apply where the whole or a portion of books have been published forcommercial purposes, and a period of five (5) years has not elapsed since their pub-lication date.In making such reproduction of the books, in the event that such booksare available for sale in digital format, the library shall be prohibited from reproducingthem in digital format.


336

d)

2)2)

3)3)

4)4)

5)5)

a)

yes

Library may reproduce, at the request of a user and for the purpose of research andstudy, one per person, a single copy of a portion of books in its collection. Note thatreproduction is limited to works that are already made public and such reproductionmay not be in digital format.Libraries may reproduce or interactively transmit their books in its collection to allowusers of libraries to peruse them within such library by using computers. In such case,the number of users who may use them simultaneously shall not exceed the numberof copies of such books held by the library or authorized to be used by the personswith copyrights or other rights protected under this Act. In making such reproductionof the books, if such books are available for sale in digital format, the library shall beprohibited from reproducing them in digital form.In the event that the libraries reproduce or transmit the books in digital form for otherlibrary, they shall take necessary measures to prevent any further reproduction to pre-vent any copyright infringement.



The exceptions and limitations may extend to libraries under the Library Act and archivesfor public use. Reproduction and distribution for the purpose of preservation extends to non-profit educational institutions or public libraries. In general, these exceptions or limitationsare not applicable to museums under the current exceptions and limitation provisions.


The Copyright Act is silent as to the number of copies that are permitted for the purpose ofpreservation exceptions. As already indicated in Question 1) a, however; the works may notbe reproduced in digital form in the event that when such books are available for sale indigital format.In addition, where the libraries reproduce or transmit the books in digital form, they shalltake necessary measure prescribed by Presidential Decrees to prevent any reproduction inorder to prevent any infringements on copyright and other rights protected under this Act.


Reproduction at the request of a user and for the purpose of research and study not onlyapply to the published works existing in the libraryÕs collection but also include books repro-duced by and interactively transmitted from another other library


yes


337

b)

c)

d)

yes

Korea Copyright Act provides specific exceptions and limitations to copyright protectionfor education institutions in Subsection 2(Limitation on AuthorÕs Property Rights) underArticle 25through Article 38; Article 94 (Restrictions on Rights of Database Producers)and in Article 87 (Limitation on exercise of Neighbouring Rights);Articles 101-3 to101-5(Restrictions on AuthorÕs Property Right of Program).Under the law, performance,phonogram and broadcast fall under the subject matter protected by neighbouringrights. Limitations and exceptions on copyright protection for education also apply toneighbouring rights mutatis mutandis.In addition to the enumerated limitations, the newly introduced statutory fair use pro-vision states that the copyright work may be used Òamong other things for reporting,criticism, education and research.ÓPursuant to Article 25(2), part of work that has already been available to the publicmay be reproduced and distributed, performed publicly, broadcast and transmitted forface-to-face education in educational institutions or other supporting bodies which areestablished or associated with the state or local governments to the extend deemednecessary for the purpose of classroom education or its support.Performance or display of a work in the course of class session is an exception foreducational purposes but such exceptions and limitations are narrowly applicable foreducational purposes only and that the scope is rather limited.


yes

Reproduction and distribution of a work is permissible to the extent where it is recog-nized as necessary and material for the purpose of education. A person who uses awork for reproduction and distribution for educational purposes such as preparing forcourse packs or compilations or entrance exams shall indicate its sources. Such sourcesshall be clearly indicated in the manner and to the extent deemed reasonably by thesituation in which the work is used, and in cases of a work which bears the authorÕsreal name or second name, such real name or second name shall be indicated.


yes

Under Article 36 (Use by Means of Translation, Etc.) if a work is used in accordancewith Articles 25 for the purpose of school education, the work may be used by meansof translation, arrangement, or adaptation. A person who uses a work shall indicateits sources. The indication of the sources shall be made clearly in a manner and to theextent deemed reasonable in the situation in which the work is used


yes

There are no explicit statutory exceptions under the current law making available indigital networks for education purposes. However reasonable inferences may be madethat statutory exceptions such as ÒreproductionÓ, ÒdistributionÓÒperformance in pub-licÓ, Òpublic transmissionÓ, ÒbroadcastingÓ and ÓforwardingÓ for educational purposesmay extend to Òdigital networksÓ for education purposes exceptions such as uploading

338

e)

f)

6)6)

7)7)

course packs onto on-line platform, providing distance education as long as they areintegral part of class sessions and that they are for non-profit purposes. In addition,some other factors to consider is to determine whether there is any conflict with thenormal exploitation of copyright work and whether there are any prejudices against thelegitimate interest of the copyright holder.


yes

Fair use exception may be applicable to reproduction or distribution for research andstudy purposes under Article 28 for published work; Article 31 for research and studypurposes ; and also under Article 35-3 for general fair use exceptions where it providesfour statutory factors to determining whether a particular use is fall into this exception.Article 35-3(Fair Use of Copyrighted Material):1. Except for situations enumerated in Art. 23 to Art. 35-2 and in Art 101-3 to 101-5,provided it does not conflict with a normal exploitation of copyright work and doesnot unreasonably prejudice the legitimate interest of the copyright holder, the copy-right work may be used, among other things for reporting, criticism, education andresearch.2. In determining whether Art 35-3(1) applies to a use of copyrighted work, considera-tions must be given to the four factors: the purpose and character of the use includingwhether such use is of a commercial nature or is of a non-profit nature, the type orpurpose of the copyrighted work; the amount and importance of the portion used inrelation to the copyrighted work as a whole; the effect of the use of the copyrightedwork upon the current market or the current value of the copyrighted work on the po-tential market or the potential value of the copyrighted workNote this is almost the same assertion of the US copyright act.


yes

Works that have already been made available to the public may be used in the text-books recognized by the Government to the extent deemed necessary for the purposeof education at high schools, their equivalents or lower level schools


These exceptions and limitations apply to non-profit educational institutions


There are conditions as to the type or scope of activities and the persons who may engagein such activities. Under the provisions of Article 25(3), not only teachers and educationalinstitutions, but also a student who attends the educational institutions described in Article25 (2) may reproduce or interactively transmit a work already made public within the limitprescribed in Article 25(2) to the extent deemed necessary for the purpose of classroom ed-ucation.

339

8)8)

9)9)

10)10)

Schools defined question (5) may reproduce, distribute, perform in public display or publiclytransit a portion of the works which are published for educational purposes. Only when it isinevitable to use all of the work in view of the character of the work, the purpose, form of thework, i.e., fair use factor analysis, they may utilize the whole not a portion of the work.Reproduction and distribution of a work must be directly related to and materially relevant tothe class-session teaching contents and such reproduction must be compatible with fair prac-tices using fair use analysis factors under Article 35-3(2). Such factors include purposes andcharacters of the use, such as for-profit or non-profit; types and uses of works; proportionsof used parts in the entire works and their importance; and influence of the use of works overthe current market or value or potential market or value of such worksÉetc..


Works already made public may be a factor to consider within fair use practices. Only law-fully created copies may be used in this instance.A person may reproduce, distribute, broadcast or transmit the whole or considerable partsof database provided that the same does not apply where it is in conflict with the ordinaryexploitation of relevant database: where being used for education, science or research andfor the case of non-profit making purpose.



As discussed above, the Korean Copyright Act specifically provides for such exceptions andlimitations.There are two case laws which could have an impact on fair use analysis. The recentSupreme Court case held that the use of images were within the meaning of fair practices un-der Article 28. The Court found that to determine whether a particular use is compatible withfair practices, courts should consider various factors including the purpose of the use, thetype of the copyrighted work, the content and the amount of the portion used, and whetherthe copyrighted work could replace the demand of the original work. It is expected that theKorean court is likely follow this case law for the interpretation of Article 35-3, a newly im-plemented fair use doctrine back in 2012 to the Korean Copyright Act which provide moreflexibility in the field of copyright limitations. Therefore, it is anticipated that the provision willallow the court to more flexible interpretations and which, in turn, will enable the court todeal more effectively with the fast development of technologies.Another statutory provision that provides for exception is set forth in Article 35-2. When aperson uses work on a computer, he/she may temporarily reproduce such works in that com-puter to the extent deemed necessary for the purpose of smooth and efficient informationprocessing provided that this shall not apply where the use of such works infringes on copy-right


The Korea Copyright law does not explicitly use the term Òthree-step-testÓ nor implementedthe Òthree step-testÓ in the legal system per se. Note, however, the fair use provision hasclearly provided an enumerated list of permissible uses with the specific language from thethree-step test and then provided flexibility by an open-ended list of permissible uses based

340

11)11)

12)12)

13)13)

14)14)

on statutory facts when such uses are not found in the enumerated categories. The excep-tions and limitations set forth in copyright law should meet the conditions of the three stepsand hence deemed to embrace the Three ÐStep Test set forth in Article 9(2) of the Bern Con-vention.


Regarding limitations on the authorÕs copyright, there is no mandatory or compulsory licensewhich provides some legal which obligate the parties to negotiate the contract. As alreadyexplained, the Minister of Culture already sets the payable fees. Therefore such use underthe exceptions or limitations is permitted automatically (provided that the entity falls withinthe scope of such libraries/archives is entitled to reproduce and distribute)Note that the Korean Copyright Act provides for compulsory license for so called orphanworks under Article 50.


The Korean Copyright law does not include a levy regime yet. However, there is remuner-ation payable for use under the exceptions for education purposes and also for libraries orarchives such as textbook exceptions and utilization of works at higher education institutes;and also some types of library limitations and exceptions.Use under the exceptions for education purposes, a person who intends to utilize a workpursuant to Articles 25(1) and (2) as indicated above, shall pay remuneration to the ownerof authorÕs property rights according to the criteria for remuneration standard determinedby the Minister of Culture, Sports and Tourism(ÒThe MinsterÓ). Those who engage in repro-duction, distribution, public performance, broadcasting, or interactive transmission of a workdone at high schools, their equivalents, or lower level schools are not obliged to pay remu-neration. The right to receive such remuneration is exercised through an organization whichhas been designated by the Minster.Use under the exceptions for libraries and archives, libraries shall pay the owners of authorsÕproperty rights remuneration in accordance with the standards determined by the Ministerof culture, Sports and Tourism: provided that such provision is not applicable to books forwhich the holder of authorÕs property rights are the State, local government or schools underArticle 2 of the Higher Education Act ( excluding the whole or part of books which have beenpublished for commercial purposes)


There is no special treatement for orphan works for use within such exception or limitation.


The law is silent on specific statutory languages that allow the exception and limitation beoverridden by contract.

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15)15)

II.)II.)

16)16)

17)17)

18)18)

19)19)

20)20)

21)21)


no

There are currently no efforts by private organizations to address use by libraries andarchives.



yes

Yes, the currenct Copyright Act provides for a number of exceptions and limitaions to copy-right protections for libraries and archives.


yes

Yes, the current Copyrigth Act provides a number of exceptions and limiations to copyrightprotection for education and reserach institutions.


yes

Yes, the Three-Step Test is a useful test for determining any exceptions or limitations to copy-right protection. The newly amended Korean Copyright Act offers both a closed list of per-missible use as with the European model and an open-ended consideration based on statu-tory factors which in turn allows flexibility in applying the Three Step Test




There might be always a need for improvement as it applies to exceptions and limitations tocopyright protection for libraries, archives and educational and research institutions. Giventhe newly amended ÒFair UseÓ introduction to the Korean Copyright Act in 2012, we will waitto see how the court will interpret the statutory languages.

342

III.)III.)

22)22)

23)23)

24)24)

a)

b)

c)

25)25)

a)

b)

c)

26)26)

27)27)

28)28)

29)29)

30)30)



















SummarySummary

The Korean Copyright Act(Òthe KCAÓ) provides the specific statutory provisions for exceptionsand limitations to copyright protection for libraries, archives and educational and researchinstitutions. The approach to such exceptions and limitations in the KCA are found in a com-

343

bination of the US Òfair useÓ model and the European model of Òa three-step testÓ (as setforth in the Article 9(2) of the Bern Convention). The Korean Copyright Act offers both anopen Ðended consideration based on statutory factors as with the US Òfair useÓ model and aclosed list of permissible use as with the fair dealing model.


344

I.)I.)

1)1)

a)

b)

c)

d)

2)2)

3)3)

Russian FederationRussian Federation


in the name of the Russian Federation Groupby Aleksey ZALESOV


QuestionsQuestions




yes


yes


no


no


yes

Reproduction of special copies for disabled people


It applies only for non-commercial libraries


New copies can be done generally to replace existing copies which become damaged

345

4)4)

5)5)

a)

b)

c)

d)

e)

f)

6)6)

7)7)


The original copies should be lawfully introduced in Russia


yes


yes


yes


yes


no

Directly not indicated but may be possible under our understanding of the law


yes


yes

Reproduction on copier for personal and family purposes


The exceptions are not limited to institutions but to the purpose of use (scientific non-commercial)


It is not indicated directly

346

8)8)

9)9)

10)10)

11)11)

12)12)

13)13)

14)14)

15)15)

II.)II.)

16)16)


It can be done only using lawfully obtained copies



It is directly mentioned in the law


Yes, equivalent wording is applied as criterion


Such use is permitted without notifying the right holder Ðso no license is required


No remuneration is due


No special regime for orphan works is provided in the Russian law


Not specified directly. But such contract would be considered as contradicting direct permis-sion of the law and might be interpreted as void under certain circumstances.




yes

Yes, such exceptions and limitations should exist to have balance between private and publicinterest

347

17)17)

18)18)

19)19)

20)20)

21)21)

III.)III.)

22)22)

23)23)

24)24)

a)

b)


yes

Yes, such exceptions and limitations should exist to have balance between private and publicinterest


yes

Yes, we believe it is reasonable and useful


No


No. This is a limitation to the material right in the interest for society


We believe that reasonable court practice can specify difficult situation (proper application of3-steps test is advisable).



yes

Yes, but harmonization shall leave some space for reasonable interpretation





We believe that the core thing is purpose of the use Ð limited scientific and non-commercial


348

c)

25)25)

a)

b)

c)

26)26)

27)27)

28)28)

29)29)

30)30)




We believe that the core thing is purpose of the use Ð limited educational and non-commercial





Yes it should be permitted this way


No remuneration is to be due


We do not have strong position on that issue


Should not be capable of being overridden by contract


It shall be specified in the law

SummarySummary


349

I.)I.)

1)1)

a)

b)

c)

SingaporeSingapore


in the name of the Singapore Groupby Sheena JACOB


QuestionsQuestions




yes


yes

s. 48(1) of the Singapore Copyright Act allows for a copy to be made of a work, if it isfor the purpose of:¥ Preserving the original version against loss or deterioration¥ Purpose of research¥ Replacing a damaged or deteriorated work which is held in the collection in a pub-

lished form¥ Replacing a lost or stolen work which had been held in the collection in a published

form

s. 48(4) states that making a copy of an unpublished work under this section does notconstitute publication of the work.


yes

s. 46 of the Singapore Copyright Act allows for the making and supplying of copiesbetween libraries and archives, with regard to articles from periodical publications, orthe whole or part of a published literary, dramatic or musical work, as long as it is nota substitute for a subscription to such periodical publication or work or a purchase ofsuch work.


yes

s. 45 of the Singapore Copyright Act allows for the making and supplying of copiesfrom libraries and archives to users, with regard to articles from periodical publicationsor the whole or part of a published literary, dramatic or musical work. This can bedone upon request of the user, if declared that he requires this for research or studyonly. Such a copy can be supplied in physical form, or in electronic form.

350

d)

2)2)

3)3)

s. 47(2) of the Singapore Copyright Act allows for the same making and supplying ofcopies, with regard to unpublished works, where done from libraries and archives tousers for the purpose of research or study.

s. 112 of the Singapore Copyright Act states that the making of a copy or communica-tion of a sound recording or cinematograph film which has not been published, but isotherwise accessible to the public, shall not be an infringement.


yes

Making available electronic forms of works or articles within the premisesMaking available electronic forms of works or articles within the premisess. 45(7A) of the Singapore Copyright Act states that where published works, or articlesin periodical publications, are acquired in electronic form as part of the library orarchive collection, the copyright in such is not infringed by the officer-in-charge mak-ing it available online within the premises of the library or archives in such a mannerthat users cannot, by using any equipment supplied by the library or archives, make anelectronic copy or communicate the work or articles.

Installing machines to facilitate reproduction of works in a reasonable quantityInstalling machines to facilitate reproduction of works in a reasonable quantitys. 34 of the Singapore Copyright Act states that libraries and archives can install ma-chines to facilitate reproduction of works, in a reasonable quantity.

Copying of unpublished works in libraries or archivesCopying of unpublished works in libraries or archivess. 112 of the Singapore Copyright Act states that the making of a copy or communi-cation of a sound recording or cinematograph film which has not been published, butis otherwise accessible to the public, shall not be an infringement where done for thepurpose of research or study or with a view to publication.


These apply to libraries generally, but do not apply to all archives as s. 7(1) of the SingaporeCopyright Act defines 'archives' as referring specifically to the National Archives of Singa-pore.


"Reasonable Portion""Reasonable Portion"s. 7(2) of the Singapore Copyright Act defines a "reasonable portion" of a literary, dramaticor musical work in a published edition of that work not less than 10 pages long:¥ where the pages copied do not exceed, in the aggregate, 10% of the number of pages

in that edition, or¥ where the work is divided into chapters, not exceeding, in the aggregate, 10% of the

number of pages in that edition, but contains only the whole or part of a single chapterof the work.

s. 7(2A) of the Singapore Copyright Act defines a "reasonable portion" of a literary, dramaticor musical work in a published edition of that work, stored on any medium by electronicmeans and not divided into pages:

351

¥ where the part copied does not exceed, in the aggregate, 10% of the total number ofbytes in that edition or 10% of the total number of words or 10% of the contents (whereit is not practicable to use the total number of words as a measure).

¥ the same applies if the work is divided into chapters, but with the added criterion that inthe aggregate, the copy must contain only the whole or part of a single chapter of thework.

Preservation or replacementPreservation or replacements. 48(2) of the Singapore Copyright Act states that copyright in a work is not infringed wherea single copy of the work is made by the library or archives, even if for a purpose other thanpreservation or replacement. s. 201 states that a notation must be made on the copy, at orabout the time the copy was made, stating that the copy was made on behalf of that institu-tion and the date on which it was made.

Interlibrary lendingInterlibrary lendings. 46(4) and s. 46(6) of the Singapore Copyright Act state that copyright is not infringed bymaking a copy for interlibrary lending, if the charge for doing so does not exceed the cost ofcopying plus a reasonable contribution to the general expenses of the library. s. 201 statesthat a notation must be made on the copy, at or about the time the copy was made, statingthat the copy was made on behalf of that institution and the date on which it was made.The request must be accompanied by a declaration where:¥ if a previous copy had been supplied under this section, s. 46(7)(a) states that the request

for another copy must include a declaration stating that the previous copy had been lost,destroyed or damaged.

¥ if the work deals with more than a reasonable portion of literary, dramatic or musicalworks, s. 46(7)(b) of the Singapore Copyright Act states that the declaration must statethat the copy was made and supplied as part of an inter-library arrangement which doesnot have the effect or purpose of enabling participating libraries to receive copies by wayof systematic reproduction and supplies, in such aggregate quantities as substitutes for asubscription to or purchase of such works.

Providing copies to usersProviding copies to userss. 45(1) of the Singapore Copyright Act requires a user making such a request to also providea declaration that he requires the copy for research or study only and has not previouslybeen supplied with a copy, or if he had, then that the previous copy had been lost, destroyedor damaged. This does not apply to a copy or parts of two or more articles in the same peri-odical, unless they relate to the same subject-matter (s. 45(4)), or to a request for the copy ofthe whole or a part which contains more than a reasonable portion, unless the work is partof the library or archives collection, and an authorised officer has reasonably investigatedand made a declaration that a copy cannot be obtained within a reasonable time at an or-dinary commercial price (s. 45(5)). Also, s. 201 states that a notation must be made on thecopy, at or about the time the copy was made, stating that the copy was made on behalf ofthat institution and the date on which it was made.

Any other activitiesAny other activitiesInstalling machines to facilitate reproduction of works in a reasonable quantityInstalling machines to facilitate reproduction of works in a reasonable quantitys. 34 of the Singapore Copyright Act permits the library to install machines for facilitatingreproduction of works, and if they affix a notice readily visible nearby, that warns the userof what exceeds a 'reasonable quantity', then the library or archive will not be held liable forinfringement solely by reason of the fact that the copy was made on that machine.

352

4)4)

5)5)

a)


Preservation or replacementPreservation or replacements. 48(3) of the Singapore Copyright Act states that the exception of copying for purposes ofpreservation or replacement, does not apply to a published work in the collection unless anauthorised officer of the library has made reasonable investigation and declared that a copy(not being a secondhand copy) cannot be obtained within a reasonable time at an ordinarycommercial price. This also applies to illustrations accompanying or explaining these articlesor works (s. 50).

s. 113 of the Singapore Copyright Act also has similar provisions that allow the copying ofsound recordings and cinematograph films for preservation and other purposes.

Interlibrary lendingInterlibrary lendings. 46 of the Singapore Copyright Act allows for the making and supplying of copies betweenlibraries and archives, where the copy is of an article, or a part of an article, contained in aperiodical publication, or of the whole or a part of a published literary, dramatic or musicalwork other than an article contained in a periodical publication. These also include illustra-tions accompanying or explaining these articles or works (s. 50).

Providing copies to usersProviding copies to userss. 45 of the Singapore Copyright Act allows for the making and supplying of copies fromlibraries or archives to a user, where the copy is of an article, or a part of an article, con-tained in a periodical publication or of the whole or a part of a published literary, dramaticor musical work other than an article contained in a periodical publication. These also in-clude illustrations accompanying or explaining these articles or works (s. 50).

s. 45(9) of the Singapore Copyright Act gives conditions regarding the provision of electroniccopies:¥ a notice must be given to the person making the request, that the copy has been made

under s. 45 and that the article or work might be subject to copyright protection underthe Copyright Act; and

¥ as soon as practicable after the electronic copy is communicated to the person, the elec-tronic copy made under the section and held by the library or archives is destroyed

s. 47(2) of the Singapore Copyright Act allows copying for the purposes of research andstudy, of unpublished theses or other similar literary work kept in a library of a university orother similar institution, or in archives.

Any other activitiesAny other activitiesMaking available electronic forms of works or articles within the premisesMaking available electronic forms of works or articles within the premisess. 45(7A) of the Singapore Copyright Act, which allows libraries to make available electronicform works within the premises, applies to articles contained in a periodical publication ora published work (other than an article contained in a periodical publication) is acquired, inelectronic form. These also include illustrations accompanying or explaining these articles orworks (s. 50).


yes


353

b)

c)

d)

e)

yes

s. 23 of the Singapore Copyright Act allows for performance of a musical, literary ordramatic work, or of displaying a cinematograph film, broadcast, cable programmeor recording of performances in like manner.

s. 246 and s. 247 of the Singapore Copyright Act allow a direct or indirect recordingof a performance to be made for educational purposes, where made for use in con-nection with a particular course of instruction provided by the institution or for inclusionin the collection of a library of the institution.


yes

s. 47(2) of the Singapore Copyright Act allows copying for the purposes of researchand study, of unpublished theses or other similar literary work kept in a library of auniversity or other similar institution, or in archives.

s. 50A of the Singapore Copyright Act allows for copying by non-reprographic meansfor the purpose of a course of education.

s. 51(1) of the Singapore Copyright Act allows for copying and s. 51(1A) allows forcommunication, with regards to an edition of a work, carried out on the premises ofan educational institution for the purposes of a course of education provided by theinstitution.

s. 52 of the Singapore Copyright Act states that copyright is not infringed by multiplecopying or communication under statutory licence by educational institutions.

s. 52A and s. 115B of the Singapore Copyright Act state that the copyright in a work isnot infringed by anything done for the purposes of an examination, whether by way ofsetting the questions, communicating the questions to the candidates or answering thequestions.

s. 115A of the Singapore Copyright Act allows for copying in the course of instructionin the making of a film or sound-track.


no

No specific statutory provisions which give exceptions for translations.


yes

s. 52(14)-(15) include the provision on a digital network for education purposes as be-ing within the reference to 'making copies' and 'communication'.


354

f)

6)6)

7)7)

yes

See the sections of 'Preservation or replacement', 'Providing copies to users', and 'Copy-ing of unpublished works in libraries or archives' under section 1 above, which dealswith works and subject-matter other than works held in libraries or archives, but whichcan be copied for research purposes.


yes

Short extract to be placed in collectionShort extract to be placed in collections. 40(1) of the Singapore Copyright Act allows for the inclusion of a short extract to beplaced in a collection intended for use by educational institutions.

Broadcasts for educational purposesBroadcasts for educational purposess. 115 of the Singapore Copyright Act states that it is not an infringement of copyrightto make a record of a sound broadcast or cinematograph film, if made by an educa-tional institution for use in a course of instruction at that institution.


The definition of "educational institution" does not include an institution that is conducted forprofit. It includes, among others, institutions that provide full-time education, correspondencecourses or external studies, occupational skills training for medical or teaching.Research and study purposes are included in the provisions on 'fair dealing' for works (s.35(1A) of the Singapore Copyright Act) and and subject-matter other than works (s. 109(2)).


Performance/display for educational purposesPerformance/display for educational purposess. 23(1) of the Singapore Copyright Act states that the performance of a musical work mustbe by the students or staff of an educational institution, in the premises of the institution orelsewhere in the presence of an audience, and is so performed in the course of the activi-ties of the institution. S. 23(5) states that 'staff' includes any adjunct staff of the educationalinstitution, and any person engaged by the educational institution to conduct any course ofinstruction, activity or programme of or offered by the educational institution.

s. 23(2) of the Singapore Copyright Act states that the performance of a literary or dramaticwork must be by the students or staff of an educational institution in the premises of the in-stitution or elsewhere in the presence of an audience and is so performed in the course ofthe activities of the institution. The audience must also be limited to persons who are takingpart in the instruction or are otherwise directly connected with the place where the instructionis given, where a 'direct connection' is defined under s. 23(3) to be regarding a relationshipof a parent, guardian, brother or sister of a student who receives instruction at that place. S.23(4) states that this exception also applies in relation to cinematograph films, broadcasts,cable programmes and recordings of performances in like manner as they apply in relationto literary and dramatic works. S. 23(5) states that 'staff' includes any adjunct staff of the ed-ucational institution, and any person engaged by the educational institution to conduct anycourse of instruction, activity or programme of or offered by the educational institution.Reproduction/distribution for educational purposes (includes examinations)Reproduction/distribution for educational purposes (includes examinations)

355

s. 50A of the Singapore Copyright Act states that this copying must be done by a personconducting or undergoing the course of education, and that this must not be done by meansof a reprographic process.

s. 51(2) of the Singapore Copyright Act states that one or more copies of a part of the workin an edition of the work can be made or communicated by any person, but not to the wholeof a work. S. 51(3) also states that this does not apply to copying or communicating morethan 5 pages of the work in an edition unless there are more than 500 pages in the editionand that the total number of pages so copied or communicated does not exceed 5% of thetotal number of pages in the edition. S. 51(4) states that the edition of the work is stored onany medium by electronic means and not divided into pages, then the part copied or com-municated cannot exceed, in the aggregate, 5% of the total number of bytes in the editionand 5% of the total number of words in that edition or, where it is not practicable to use thetotal number of words as a measure, 5% of the contents of the edition. Ss. 51(5) and (5A)respectively state that where a person makes or causes to be made a copy of a part of awork and ss. (1) and (1A) apply respectively, that subsection shall not apply to the making orcommunication, by or on behalf of that person, of a copy of any other part of that work with-in 14 days after the day on which the previous copy or communication was made. S. 51(6)also states that a reference to the making of a copy of a part of a work on the premises of aneducational institution for the purposes of a course of education provided by the institutionincludes a reference to the making of a copy of that part of the work in an electronic form ona network operated or controlled by the educational institution concerned to enable personsundertaking a course of education provided by the educational institution to access the work.S. 116 of the Singapore Copyright Act expands the scope of this to allow for a reproductionof the whole or a part of that edition, if that reproduction is made in the course of the makingof a copy of the whole or a part of the work, being a copy exempt under s. 51.

s. 52(1) of the Singapore Copyright Act, which deals with articles contained in a periodicalpublication, states that copyright is not infringed by the making of copies or communicationof the whole or a part of that article, by or on behalf of the body administering an educa-tional institution for the educational purposes of that or another educational institution. S.52(4) and (7A) state that this does not apply to copies or communications of or parts of 2or more articles contained in the same periodical publication, unless they relate to the samesubject matter. S. 52(6) and (7C) state also that a record of the copying or communicating,setting out prescribed particulars, must be made as soon as practicable after the making ofthese copies or communications. S. 52(9)-(10) and (11A)-(11B) respectively allow these to bemade for distribution or communicated to persons undertaking a correspondence course orexternal study course provided by the educational institution for the educational purposes ofwhich those copies are made, and if so, that the record made in relation to them may statethat they are copies to which s. 52 applies.

s. 52(2) of the Singapore Copyright Act, which deals with works other than an article in aperiodical publication, states that copyright is not infringed by the making of copies or com-munication of the whole or a part of that work, by or on behalf of the body administering aneducational institution for the educational purposes of that or another educational institution.S. 52(5) and (7B) state that this shall not apply to copies of or communication of, or of morethan a reasonable portion of, a work that has been separately published, unless the personwho makes the copies or causes them to be made is satisfied after reasonable investigationthat copies (which are not secondhand copies) cannot be obtained within a reasonable timeat an ordinary commercial price. S. 52(7) and (7D) state also that a record of the copyingor communicating, setting out prescribed particulars, must be made as soon as practicableafter the making of these copies or communications

356

There are similar provisions in s. 54 and s. 54A of the Singapore Copyright Act, regardingmultiple copying under statutory licence by institutions assisting handicapped readers andintellectually handicapped readers respectively. These are fulfilled if made for the purpose ofresearch and study, after reasonable satisfaction that no new copy can be obtained withinreasonable time at an ordinary commercial price.

S. 116 of the Singapore Copyright Act expands the scope of these three sections to allowfor a reproduction of the whole or a part of that edition, if that reproduction is made in thecourse of the making of a copy of the whole or a part of the work, being a copy exemptunder s. 52, 54 or 54A. Also that s. 201 of the Singapore Copyright Act deals with notationof copies, and states that in order to rely on these sections, a notation must have been madeon the copy (at or about the time the copy was made) stating that the copy was made onbehalf of that institution and the date on which it was made. If the copy was made under s.54A, the notation must also state that the copy is a prescribed reproduction made in relianceon s. 54A.

s. 52A and s. 115B of the Singapore Copyright Act cover all possible uses, as long as donefor the purposes of an examination.

s. 53 of the Singapore Copyright Act provides for the inclusion of accompanying artisticwork(s) provided for the purpose of explaining or illustrating the article or other work, withregard to these exceptions for educational purposes.

s. 115A of the Singapore Copyright Act states that copyright in a sound recording, cinemato-graph film, television broadcast, sound broadcast or cable programme is not infringed byits being copied in the making of a cinematograph film or sound-track associated with thevisual images forming part of a cinematograph film, if done in the course of instruction orpreparation for instruction in the making of a cinematograph film or sound-track associatedwith the visual images forming part of a cinematograph film, if the copying is done by aperson giving or receiving such instructions.

TranslationsTranslationsNo specific statutory provisions which give exceptions for translations.

Available in digital networks for educational purposesAvailable in digital networks for educational purposess. 52(14) and (15) of the Singapore Copyright Act state that a reference in this section to'making copies' or 'communication' includes the making of a copy or communication in anelectronic form on a network operated or controlled by that or another educational institutionto enable persons undertaking a course of education provided by that or another education-al institution to access the article or work, or that part of the article or work.

Reproduction/distribution for research purposesReproduction/distribution for research purposesSee the sections of 'Preservation or replacement', 'Providing copies to users', and 'Copyingof unpublished works in libraries or archives' under section 1 above, which deals with worksand subject-matter other than works held in libraries or archives, but which can be copiedfor research purposes.

Any other activitiesAny other activitiesShort extract to be placed in collectionShort extract to be placed in collections. 40 of the Singapore Copyright Act states that the collection must be described in an ap-propriate place in the book, on the label of each record embodying the recording or of itscontainer, or in the film, as being intended for use by educational institutions, and that asufficient acknowledgement of the work or adaptation must be made. However, the excep-tion does not apply if there are already 2 or more extracts from the work in that collectionor similar collections intended for use by educational institutions and published by the samepublisher within 5 years from the publication of the first-mentioned collection (Copyright Act,

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8)8)

s. 40(2)). S. 116 also expands the scope of this to allow for a reproduction of the whole or apart of that edition, if that reproduction is made in the course of a dealing exempt under s.40.

Broadcasts for educational purposesBroadcasts for educational purposesThe action under s. 115 of the Singapore Copyright Act is not an infringement if the recordor cinematograph film is made by, or on behalf of, the person or authority in charge of aneducational institution, and the record or cinematograph film is not used except in the courseof instruction of that institution.


Performance/display for educational purposesPerformance/display for educational purposess. 23(1), (2) and (4) of the Singapore Copyright Act reference the performance of a musical,literary or dramatic work, or cinematograph films, broadcasts, cable programmes andrecordings of performances in like manner. However each of these types of work has differ-ent conditions regarding the type or scope of permitted activities, as elaborated above.

Reproduction/distribution for educational purposes (includes examinations)Reproduction/distribution for educational purposes (includes examinations)s. 51(1) and s. 51(2) of the Singapore Copyright Act refer specifically to copyright in a literaryor dramatic work.

s. 52(1) of the Singapore Copyright Act refers to an article contained in a periodical publi-cation.

s. 52(2) of the Singapore Copyright Act refers to a work other than an article in a periodicalpublication.s. 52A and s. 115B of the Singapore Copyright Act cover all possible types of copyright worksand subject-matter other than works, as long as done for the purposes of an examination.

TranslationsTranslationsNo specific statutory provisions which give exceptions for translations.

Available in digital networks for educational purposesAvailable in digital networks for educational purposess. 52 deals with articles contained in a periodical publication, and also with works other thanan article in a periodical publication.

Reproduction/distribution for research purposesReproduction/distribution for research purposesSee the sections of 'Preservation or replacement', 'Providing copies to users', and 'Copyingof unpublished works in libraries or archives' under section 1 above, which deals with worksand subject-matter other than works held in libraries or archives, but which can be copiedfor research purposes.

Any other activitiesAny other activitiesShort extract to be placed in collectionShort extract to be placed in collections. 40 of the Singapore Copyright Act deals with published literary, dramatic, musical or artis-tic works, or an adaptation of a published literary, dramatic or musical work. The work oradaptation must not have been published for the purpose of being used by educational in-stitutions. The collection can be of literary, dramatic, musical or artistic works contained in abook, sound recording or cinematograph film and intended for use by educational institu-tions. S. 80 also expands this section to include joint works.


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9)9)

10)10)

11)11)

12)12)

13)13)

14)14)

15)15)


Yes, they are enacted in the Copyright Act (Chapter 63) of Singapore, as provided above.


As specific legislative provisions in statute, the preceding explanation of current law in Sin-gapore falls within the "certain special cases" of the Three-Step Test. Therefore the provisionsdo not follow the wording of the entire test, but instead carve out exceptions within the firststep of 'certain special cases'.


See the above explanations within each exception/limitation.


For s. 52, multiple copying or communication under statutory licence by educational institu-tions, s. 52(11) and (11C) provide that for copies or communications not distributed under acorrespondence or external course (ss. 52(9)-(10)), if the owner of the copyright in the workmakes a request in writing during the prescribed period after the making of the copies, forpayment, then the institution shall pay such an amount by way of equitable remuneration asagreed upon, or in default of agreement, such amount as determined by a Copyright Tri-bunal upon the application of either the owner or the institution.

Similar provisions in s. 54 and s. 54A also provide for payment of equitable remuneration tothe owner of the copyright, if he so requests for it.


There is statutory provision for the duration of copyright in anonymous or pseudonymouswork (s. 29 and 78) but no explicit treatment of orphan works in the context of libraries/archives or educational/research institutions.


Generally, contract cannot override statutory rights which are expressly provided for in legis-lation.


yes

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II.)II.)

16)16)

There are several private collective management organizations in Singapore, such as TheCopyright Licensing and Administration Society of Singapore Ltd ("CLASS") and the MotionPicture Licensing Company (Singapore) Pte Ltd ("MPLC").CLASS is a copyright collecting society which collects fees from licensed users for acts ofphotocopying from books and periodicals and e-copying. After deducting some amount foroperating costs and any other provisions, CLASS distributes the balance to its members andforeign reproduction rights organisations (RROs) with which CLASS has reciprocal or bilateralagreements, their shares of royalties received. It also provides adequate data to enable thesesister RROs to pay individual authors and publishers. CLASS can and will also institute legal

proceedings as necessary for the enforcement of the rights entrusted to it.[1] Specifically in re-lation to educational and research institutions, CLASS collects licence fees based on variablessuch as student enrolment, course type and usage of copyright materials. These institutionscan then make copies as necessary, as long as they keep accurate and updated records ofthe copies made. The fees collected are collated into a pool to be distributed back to rights

owners.[2]

The goal of the MPLC was to develop a process to help the public leverage the work of thecreative community without infringing on copyrights. Therefore it represents producers anddistributors of copyright-protected motion pictures, and . The MPLC has rights to grant anumbrella licence to, among others, schools and out-of-school programmes, for the public

exhibition of these motion pictures.[3]

FootnotesFootnotes

1. ^ http://www.class-singapore.com/about-class.aspx2. ^ http://www.class-singapore.com/Licencing.aspx3. ^ http://www.mplc.sg/page/about-the-mplc



yes

One preliminary point to note is that Singapore recognizes that the purpose of copyright lawis to strike that balance within each society, regarding the protection given to the creator'sworks, so as to incentivize the future creation of intellectual property. This also has a dualbenefit to society, as advances in technology and creative expression benefit society econom-ically, culturally and socially. While Singapore does not have protection for moral rights inits copyright system, public awareness programmes by the government have appealed to thepublic's sense of morals and also safeguarding against freeriding and unfair competition.This balance is a fine one, because tilting the balance too far towards a monopoly does notgive society enjoyment and progress through new works, but tilting the balance in the oth-er direction would not provide sufficient incentive for the creation of these works in the first

place.[1]

In light of the understanding that works are for the benefit of society, it is only right that therebe exceptions for archives to be able to preserve or replace works in their collections, as partof historical record. The same should apply for libraries, because these provide a way forthe general public to gain academic and cultural benefit through new works released. In thesame way, lending of copies between libraries, and provision of copies to users, are alsobeneficial exceptions to copyright protection. Advancements in technology, such as electron-ic forms of works in libraries, would greatly benefit from exceptions to copyright protection,such that users could access these works and benefit from them as well. All these points

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18)18)

19)19)

20)20)

listed increase the benefit to society without substantially diminishing the incentive to havecopyright protection. Libraries would still need to purchase the 'first copy' legitimately, anddocumentation of copy requests help to provide accountability in the process.

FootnotesFootnotes

1. ^ This paragraph was adapted from Ng-Loy Wee Loon, Law of Intellectual Property in Singapore, Sweet& Maxwell (2009), Chapter 2: Justifications for Protecting IP.


yes

In light of the preliminary point raised above, exceptions and limitations to copyright pro-tection for education and research institutions should be present, so as to allow access tomeaningful contributions that can be built upon for the betterment of society. Education andresearch are two main areas in which, both academically and experimentally, existing re-search can be built upon to achieve greater progress for society.

Therefore, for research purposes, the granting of access to works should be an important ex-ception for those who seek to build upon such works. As technology advances faster aroundthe world, the speed at which societies can keep up is dependent on their researchers' accessto new developments and the ability to build upon these to derive fresh insights. The sameapplies for access granted for educational purposes, including performances and broad-casts, as new works play an important role in the cultural and social exposure of the nextgeneration. Limitations on what constitutes a 'reasonable portion' of copying play a very im-portant role here, as this strikes the balance between a fair use of the work as well as therights that the creator has in it.


yes

The Three-Step Test is a useful test as it finds the balance that each society considers essentialto adopt, namely how much protection should be conferred on the legitimate exploitation ofworks and unreasonable prejudice to the legitimate interests of the author. However, as so-cieties increasingly place reliance on explicit statutory provisions to determine the boundariesof such exceptions or limitations, the Three-Step Test begins to find less usefulness.


The exception or limitation should not be capable of being overridden by contract, in orderto ensure that no unequal bargaining power affects what has been expressly provided for inlegislation.


For compulsory licencing, remuneration should be payable. The same should go for educa-tional institutions, because they also additionally derive benefit to their reputation and coursescope, by having access to these materials. However, libraries and archives should not haveto pay remuneration as they perform a public service.

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21)21)

III.)III.)

22)22)


The current exceptions and limitations in the current law, while comprehensive, were alsodrafted with older technology such as reprographic methods in mind. As technology contin-ues to progress, the current law must be continually reviewed to be kept relevant and up-to-date.Perhaps further improvements to take into account technological advances would be helpful.For example, many books are being published as electronic copies, and it would be bene-ficial not only for inter-library lending, but also to be able to provide these copies efficientlybetween libraries, in order to cut down on costs of physically transporting books betweenlibraries where requested.While these advances hold much promise for society's benefit, they also must be weighednot only against the interests of the creator, but also against the corresponding advancesin 'negative' technology that seeks to circumvent these. For efficient safeguards to be takenagainst copyright infringement by users, through the use of technology, improvements mustbe brought forward cautiously so that public confidence can be preserved in the balancestruck by copyright law.



yes

Harmonization is desirable; however, many practical factors and implications may rendercomplete harmonization impossible. The most important qualifier is that each country muststrike a balance between the rights of the individual and the rights of the public, and thecountry's society overall must be happy with where this balance lies.

The main draw for having harmonization of such laws is because of the increasing globalconnectedness of the world. Research and advancements in one society do not seek only thebetterment of that society, but also a global progress together. In such light, it would notpromote the aims of international development if there remained significant differences be-tween countries as regards the amount of access and use given to existing works that arestill under copyright protection. The need for such harmonization is also supported by thegrowing presence of international databases such as JSTOR, which provide students frommany countries with access to published papers. Having a consistent standard across howthese papers can be treated would allow the overall standard to increase, instead of beingpegged at the lowest minimum standard and adapted accordingly. The same applies to in-stitutions which offer online courses overseas, such as Coursera. Better regulation and fa-cilitation of resource access would enable these courses to be more beneficial to the users,as well as provide appropriate protection for copyright holders. Harmonization would alsoenable these institutions to deliver education resources at a consistent standard, and therebyreach a greater number of countries, by being able to provide courses in a manner that is incompliance with local laws.


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23)23)

24)24)

a)

b)

c)

25)25)

a)

b)




These exceptions and limitations should apply to organizations that have the purposeof facilitating the access of information to the public, such as libraries and archives.It may be possible to have more limited exceptions for public databases that wish tocome under such statutory provisions, if their content is something that can be builtupon by society and the access to which would provide corresponding benefit to soci-ety. Organizations that provide cultural benefits to society, such as associations for thepreservation of trades or artifacts of historical or cultural significance, could also ben-efit from such exceptions if they are not for profit and have the education of the publicas their primary focus.


These exceptions and limitations should apply to the preservation or replacement ofworks in the collections of libraries and archives, or similar organizations that are notfor profit and seek to facilitate access by the public to such information, such as list-ed in the subsection above. In the same way, lending of copies between libraries, andprovision of copies to users, are also beneficial exceptions to copyright protection. Ad-vancements in technology, such as electronic forms of works in libraries, would great-ly benefit from exceptions to copyright protection, such that users could access theseworks and benefit from them as well.


These organizations would still need to purchase the 'first copy' legitimately, and docu-mentation of copy requests help to provide accountability in the process. Where inter-national provision of information through works is done online, providers should use a'login' system in order to track web access and restrict the presence of web-crawler bots,which have the sole purpose of downloading everything in their path. There would def-initely be a need to balance public interest in receiving the information, with protectionof the information. For certain types, such as articles from periodicals, it may be suf-ficient to provide the user with a licence to access, and provide also a notice that thework may be under copyright protection.



Apart from the standard definition of 'educational institutions' being for academiclearning, there are also international databases such as JSTOR, which provide studentsfrom many countries with access to published papers, or institutions which offer onlinecourses overseas, such as Coursera, which are but two examples of educational andresearch institutions which could benefit from these exceptions or limitations.


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c)

26)26)

27)27)

These exceptions and limitations should apply to the provision of information, whetheronline or in physical format, where for the purpose of education (learning) or for re-search (building on the existing works).


Registration of authorized users is important, as it allows both the provider and thecopyright holder to track the level of access to the work. The work should be used forlegitimate educational or research purposes, and not made accessible for any otherpurposes. At the same time, care must be taken to balance between the rights of usersto access and reproduce the works, and also between the rights of the copyright hold-ers, in particular, those who hold copyright in textbooks and coursebooks. Sufficientprotection for the copyright holders should still be provided that there are sufficientprofit incentives for textbook-publication.

Yet it is noted that in an expanding digital age, profit is not the only issue, as seen byhow, for example, music groups release single songs into the public domain for free,in the hope of generating publicity for album sales. Therefore as an extra-legal mea-sure, it can also be proposed to publishers and even authors, that certain excerpts orintroductory chapters be made available for free, and those who wish to use the re-sources further can opt for a subscription fee or to purchase the resource itself. This issomething akin to what Google has pioneered with the Google Library preview system.



As mentioned above, each country would need to strike the balance where it feels is ap-propriate for its stage of technological advancement and benefits or needs from copyrightprotection. In general, it would be useful, at the minimum, to require the institutions to notifythe copyright holder that the work would be released to the public under certain exceptionsor limitations, and to facilitate amicable discussions accordingly.

Specifically, a 'login' system is necessary for online access systems, in order to restrict accessto legitimate users.


There are two possible ways that the issue of remuneration can be resolved: it can be agreedthrough private contract between the copyright holder and the organization/institution, ifstatute or case law in that country does not easily facilitate such exceptions. The alternativeis that if done under a specific statutory provision, remuneration should be decided by anindependent body, such as a Copyright Tribunal set up to decide each case on the merits ofits facts.

Generally because these organizations (such as libraries and archives) are not operated forprofit, the burden would usually fall on existing taxpayer funding (for public organizations)or the cost of private operation (for private organizations). These organizations may choose

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29)29)

30)30)

to defray that cost by passing a reasonable portion of it to the user who benefits, bearing inmind that this should not be a means for the organization itself to earn profit. The paymentshould be made to the copyright holder.


'Orphan works', where the work was published under an anonymous or pseudonymousname, pose a difficulty only insofar as it is not established to whom the payment of remuner-ation should be made, and to whom permission should be sought to use such a work. Apartfrom statutory provisions that would 'deem' a work in the public domain after the passingof a certain period of time, it is hard to provide special treatment for orphan works withouteroding any rights that a legitimate copyright holder would have lost if he came forward laterafter the exceptions have been applied. For that reason, orphan works should not have anyadditional special treatment within such exception or limitation, save that after the expiry ofthe deemed copyright protection period, that they would enter the public domain.


Such exceptions or limitations should not be capable of being overridden by contract.Legitimate exceptions to copyright protection, such as for educational or research purposesor use in libraries and archives, are a matter of public policy. Ultimately where these excep-tions or limitations are expressly provided for in legislation, they should not be capable ofbeing overridden by private contract as this would lead to an inequality of bargaining powerwhere the largest players in the marketplace could use financial or other pressures to thwartstatutory intent.


Legitimate private organizations to assist use by these institutions should be supported bythe government and/or these institutions. This can be done by first requiring registration ofsuch organizations with the government, under statutory regulation, and therefore under thestatus of a copyright access or further development organization, it would be able to workwithin the legislative intent of statute to provide greater assistance to these institutions. Forexample, collective management organizations can facilitate requests for remuneration bycopyright holders, when these exceptions or limitations are invoked by the institutions.

On the other hand, private organizations that seek to restrict the scope of such exception orlimitation should be reminded that while the right of private contract still exists, it cannot bewielded in such a way as to override legislative intent and public policy in providing benefitto society as a whole. In such cases, the exceptions or limitations provided by law shoulddominate.

SummarySummary

The Singapore Copyright Act has clearly set out comprehensive exceptions and limitations forlibraries and archives, and for education and research institutions. The Singapore Group rec-ognizes the benefits of these exceptions and limitations, in preservation of a historical record,provision of cultural benefit to the public and facilitation of academic progress. Further, har-monization is desirable especially given the international scope and overlap between differ-ent educational institutions and libraries/archives today. Global standards should be derivedfrom a thorough study of the relevant policy objectives underlying these exceptions.

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366

I.)I.)

1)1)

a)

SpainSpain


in the name of the Spain Groupby Pedro MERINO, BelŽn PERULLES, Alicia ARROYO and Emil EDINOSSOV


QuestionsQuestions




yes


yes

Yes, it provides such exceptions or limitations. According to the Article 37 of the con-solidated text of the Intellectual Property Act, as last amended by Law no. 21/2014(hereafter ÒIPAÓ), the copyright holders may not object to reproductions of works wherethey are non-profit made by museums, libraries, record libraries, newspaper librariesor archives which are publicly owned or form part of institutions of a cultural or scien-tific character, provided the reproduction is effected solely for research or conservationpurposes.

Likewise, museums, archives, libraries, newspaper libraries, record libraries or film li-braries which are publicly owned or pertaining to non-profit institutions of general in-terest with cultural, scientific or educational character, or to teaching institutions inte-grated in the Spanish educational system, shall not require the license of the copyrightholders for the loans that they make (37.2 IPA)

With regard to the concrete proposed activities:

1. reproductionreproduction and/and/oror distributiondistribution forfor thethe purposepurpose ofof preservationpreservation oror replace-replace-ment:ment: Reproduction is the only exploitation right for the purpose of preservationlaid down in Article 37.1 IPA. The acts of distribution, communication to the publicand transformation of the work require authorization by the author.

In addition, with respect to the orphan works, Article 37bis of the IPA allows publiclyaccessible educational establishments, libraries and newspapers libraries, as wellas public-service broadcasting organizations, archives, record libraries and film li-braries, to reproduce and make available to the public certain types of works underparticular conditions. Specifically, the following acts are permitted: digitalization,indexing, making available to the public and cataloging, with purposes of conser-vation and restoring; and providing access to the works for cultural and education-al purposes.

367

b)

c)

d)

2)2)

3)3)


yes

The Spanish law does not make explicit reference to interlibrary lending purpose, there-fore the limitation is not applied to reproduction or distribution to that end.


yes

The Spanish law does not make explicit reference to the purpose of providing copies(either in a physical or a digital form) to users, therefore the limitation does not applyto reproduction or distribution to that end.


yes

Reproduction for research purposes; and communication of a work or making avail-able to specific persons of the public for research purposes provided that such acts arecarried out through a closed and internal network via specialized terminals installed forsuch purposes in the mentioned institutions and provided that such works appear in thecollection of said institutions and are not subject to licensing or purchase conditions.Regarding orphan works, reference is made in the answer given in the paragraph 1.a).


Only some of them. Each exception applies with regard to specific institutions:

1. Reproduction for research and conservation purposes apply to: museums, libraries,record libraries, film libraries, newspaper libraries or archives which are publicly ownedor form part of cultural or scientific institutions (Article 37.1 IPA).

2. Lending (in general); and making available to specific persons for research purposes inclosed networks applies to: museums, archives, libraries, newspaper libraries, record li-braries or film libraries which are publicly owned or pertaining to non-profit institutionsof general interest with cultural, scientific or educational character, or to teaching institu-tions integrated in the Spanish educational system (Article 37(2) and (3) of IPA).

Reproduction of orphan works and making them available to the public apply to: educationalestablishment, libraries and newspaper libraries accessible to the general public, as well aspublic-service broadcasting organizations, archives, record libraries and film libraries (Arti-cle 37bis of IPA).


Yes, reproduction established in the Article 37.1 IPA is permitted only for conservation andresearch purposes and must not be for profit (Article 37.1 IPA). The ratio is to allow researchactivities with respect to works with a format that would not admit a direct or close contact

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4)4)

with the work, but also with the maintenance, custody of the work or its digitization. Thenumber of reproductions and its scope is determined by the purposes of conservation andresearch.

Loans permitted by the Article 37.2 IPA are subject to some requirements: (i) shall be madeby the mentioned institutions; (ii) owners of these institutions shall remunerate equitably theauthors via the copyright collecting societies, with the exception of publicly owned institu-tions providing their services in municipalities with less than 5,000 inhabitants and librariesof teaching institutions forming part of the Spanish educational system; (iii) the establishmentshall not get direct or indirect economic or commercial advantage, and (iv) shall be made inestablishments accessible to the general public.

Communication of a work to the public or making it available shall also be done in compli-ance with some requirements: (i) shall be made to specific persons; (ii) for research purpos-es; (iii) shall be carried out through a closed and internal network via specialized terminalsinstalled for such purposes in the mentioned institutions; (iv) such works shall appear in theown collection of the institutions and shall not be subject to licensing or purchase conditions.The rights-holder has the right to obtain an equitable remuneration for such acts (Article 37.3IPA).

The permitted uses of orphan works shall not be for profit, must be exclusively targeting forconservation, restoration and providing access to the works for the cultural and education-al purposes and shall make mention of the names of the authors and owners of intellectu-al property rights identified. Furthermore, the first publication of the works must have beenmade in a Member State or, in the absence of publication, initially broadcasted in a MemberState (or if the works have neither been published nor broadcasted, when it is reasonable toassume that their owners would not oppose the authorized uses) (Article 37bis IPA).


Yes, for the communication of a work to the public or making it available in closed and inter-nal networks of the institutions (Article 37.3 IPA), it is necessary that the works are included inthe own collection of the institutions and that they are not the object of licensing or purchaseconditions.

Also, despite the legislative silence, it is understood that any of the exceptions mentionedabove only applies to work legally acquired and, in line with the rest of limitations provided,divulged beforehand.

In addition, according to Article 37bis IPA, in the terms and conditions set forth (see answer3), reproduction of orphan works and making them available to the public only applies tothe following types of works:

a. Cinematographic or audiovisual works, phonograms and works published in format ofbooks,newspapers, magazines or other printed materials contained in the collections of pub-licly accessible educational establishments, museums, libraries, newspaper libraries, as wellas in the collections of archives or of film and record libraries;

b. Cinematographic or audiovisual works and phonograms produced by public-servicebroadcasting organizations up to and including 31 December 2002 and contained in theirarchives;

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5)5)

a)

b)

c)

d)

e)

f)

6)6)

c.- Protected works and performances that are inserted or incorporated in the works cited inparagraphs a) and b).


yes








Yes, our law provides such exceptions or limitations. According to Article 32.3 IPA, teachersof formal education of centers integrated in the Spanish educational system and the staffof universities and public research institutions in their scientific research roles do not needpermission from the author or the publisher to perform acts of reproduction, distributionand public communication of excerpts of works and isolated works of plastic arts or photo-figurative nature, provided that it does not serve for commercial purposes and the followingrequirements are simultaneously met:

1. The purpose of such exploitation acts must be the illustration of education activities (bothface-to-face education and distance education), or for scientific research and to the ex-tent justified by the non-commercial purpose;

2. It shall involve work already made public;

3. The works may not be textbooks, university handbooks or similar publications (exceptthat (i) the public communication is carried out in closed and the internal networks and(ii) the copies are distributed exclusively between the research staff for a specific project);

4. The name of the author and the provenance are included, unless it is impossible to do it.

At the same time, Article 32.4 IPA allows partial reproduction, distribution and commu-nication to the public of works or publications, printed, or printable, provided all the fol-lowing requirements are simultaneously met:

5. These acts are conducted solely for teaching or scientific research purposes;

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6. These acts are confined to a chapter of a book, a magazine article or an equivalent ex-tension of a similar publication, or extension equivalent to 10% of the work, regardlessof whether copying is carried out through one or more acts of reproduction;

7. These acts are performed in universities or public research centers by their staff and usingtheir own resources and instruments;

1. Either the distribution of copies takes place between students and teaching staff of thecenter, or that they have access through a public communication to take place throughclosed and internal networks or as part of a distance education program offered by thecenter.

Musical scores, single-use works or compilations or groupings of excerpts of works orof isolated works of plastic arts or photo-figurative nature do not fall under any of theabove exceptions (Article 32.5 IPA).

These answers have been given based on the new wording of paragraphs 3, 4 and 5 ofArticle 32 IPA, which was recently introduced by Law 21/2014 of 4 November, althoughit should be noted that this new wording will only come into force on 5 November 2015.

On the other hand, in relation to the orphan works, as we have indicated above, theArticle 37bis IPA allows the educational centers to reproduce and make available to thepublic certain types of works under certain conditions, with the aim of providing accessto the works for educational purposes.

Regarding communication to the public, we cannot forget that, as we have indicatedabove, Article 37.3 IPA allows teaching institutions integrated in the Spanish educationalsystem to make available to the public works included in the institutionÕs own cataloguein closed and internal network.

With regard to the concrete proposed activities:Final del formulario

2. performanceperformance and/and/oror displaydisplay forfor educationaleducational purposes:purposes: it is permitted in the terms ex-plained above.

3. reproductionreproduction and/and/oror distributiondistribution forfor educationaleducational purposespurposes (e.g.(e.g. preparationpreparation ofofcoursecourse packs,packs, compilationscompilations oror anthologies,anthologies, exams);exams); it is permitted in the terms ex-plained above.

4. makingmaking translations:translations: it is not permitted. The translation of a work is not specifically pro-vided for in the limit or exception and, therefore, it is excluded.

5. makingmaking availableavailable inin digitaldigital networksnetworks forfor educationaleducational purposespurposes (e.g.(e.g. uploadinguploading coursecoursepackspacks ontoonto on-lineon-line platforms,platforms, compilationscompilations oror anthologies,anthologies, providingproviding distancedistance edu-edu-cation):cation): it is permitted in the terms explained above.

6. reproductionreproduction and/and/oror distributiondistribution forfor researchresearch purposes;purposes; it is permitted in the terms ex-plained above.

7. anyany otherother activities,activities, andand ifif so,so, whatwhat activities?activities? Acts of reproduction, distribution andcommunication to the public of a another person's work in one's own work (a class, amanual, etc.) are allowed, as long as it is done for educational or research purposes, theprevious works have already been published and are included by way of quotation orfor its analysis, commentary or critical assessment and the source and the name of theauthor of the work used shall be indicated (Article 32.1 IPA).

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7)7)

8)8)

9)9)

10)10)

Moreover, as mentioned above, Article 37.2 IPA states that teaching institutions integrat-ed in the Spanish educational system, do not require the authorization of the right hold-ers for the loans they make in their establishments.


The requirements applicable to these activities have been indicated in the answer to question5 and the requirements applicable to the people who may participate in the same have beenindicated in the answer to question 6.


These exceptions or limitations contained in Article 32(3) and (4) IPA apply to all types oflegally acquired and already published works, with the exception of musical scores, single-use works or compilations or groupings of excerpts of works or isolated works of plastic artsor photo-figurative nature. The conditions applicable to each type of work, including the per-mitted scope have already been identified and explained in the answer to question 5.



Yes, as already indicated in the replies above, the IPA provides for three different kinds ofexceptions:

a The limitations established for the benefit of archives, museums, libraries, record libraries,film libraries, etc. are contained in Article 37, paragraphs 1 (reproduction for preservationand research), 2 (lending of works) and 3 (communication through internal and closed net-work for research purposes) IPA;

b. The limitations concerning teaching and research activities carried out in selected institu-tions are regulated in Article 32, paragraphs 3 and 4, IPA;

c.- The uses of orphan works permitted to certain entities is regulated in Article 37 bis IPA.


Yes, the three-step test is regulated in Article 40 bis IPA and applies to all exceptions andlimitations to copyrights provided for in this statute. According to its literal wording: ÒThe ar-ticles of this chapter shall not be construed so as to allow its application in a way that causesunjustified harm to the legitimate interests of the author or undermine the normal exploita-tion of the work to which they relateÓ.

372

11)11)

12)12)


Both the exceptions relating to research and teaching (Article 32, paragraphs 3 and 4, IPA),and the one established in favor of libraries, museums, archives and similar institutions forconservation and research (Article 37 IPA) are applied automatically, i.e. without any furtheraction either before or after, as long as the requirements and conditions established by laware met. For avoidance of doubt, we must clarify that the Spanish law on copyrights does notprovide for compulsory licensing.

With regard to the exception for orphan works (Article 37 bis IPA), it is required that the workthat is going to be used can be defined as such, that is, that the rights holders are not iden-tified or, if identified, their location is not known. Therefore, prior to using the exception oforphan works, it is necessary that authorized institutions (schools, museums, libraries, news-paper libraries, public broadcasting, archives, record and film libraries) have carried out aprocess of diligent search for right holders and have forwarded this information to the com-petent body


a) Regarding the exceptions relating to research and teaching (Article 32, paragraphs 3and 4, IPA):

1. In general the acts of reproduction, distribution and public communication of small frag-ments of works and isolated works of plastic or photographic figurative character is notsubject to the payment of any remuneration (Article 32.3 IPA;

2. However, for acts of partial reproduction, distribution and public communication ofworks or publications, printed or printable limited to a chapter of a book, a magazinearticle or equivalent extension in respect of an assimilated publication, or an extensionequivalent to 10 percent of the whole work, the users centers will be required to pay anequitable remuneration to authors and publishers of the works thus used, which will beeffective through the entities of management of intellectual property rights (for printedpublications that will be CEDRO) (Article 32.4 IPA). The Law does not specify how thecompensation should be calculated, it only says that it will be ÒfairÓ.

b) Regarding exceptions for libraries, museums, archives and similar institutions for con-servation and research (Article 37 IPA), only the following acts are subject to remunerationfor the authors:

1. < > made by the aforementioned centers, in the amount determined by Royal Decree.This remuneration shall be effective through the entities of management of intellectualproperty rights. However, the following institutions are exempt from paying this compen-sation (i) publicly owned establishments serving in municipalities with fewer than 5,000inhabitants and (ii) libraries of educational institutions integrated in the Spanish educa-tional system (37.2 IPA).The act of making available to individual users for research purposes in closed and in-ternal networks works forming part of the collection of the center will also be subject toa fair compensation for authors (37.3 IPA). It is not specified, in this case, neither theamount nor the way it is calculated, nor the entity responsible for its management.

373

13)13)

14)14)

15)15)

II.)II.)

16)16)

17)17)

c) The use of orphan works by authorized centers is subject to an equitable compensationonly for uses made when, having appeared their right holders, the competent body declaresthat such works are not orphans anymore (37 bis.7 IPA).


Yes, and its peculiarities are specified in Article 37 bis IPA, as already specified in the answersto the questions above.


No. according to the Law, the only aspect that can be negotiated by the author with the usercenters is the equitable remuneration to be received by the acts of partial reproduction, dis-tribution and public communication or publications, printed or printable, of their works forteaching or research purposes (Article 32.4 IPA).


yes

When exceptions or limitations are subject to the payment of remuneration for authors, it ismanaged by CEDRO (Spanish Centre for Reproduction Rights). CEDRO is a non-profit as-sociation authorized by the Ministry of Culture to collectively manage the rights over liter-ary works. This entity is the national reference in all matters relating to the use of literaryworks (scope and applicability conditions of the exceptions) and the management of licensesamongst users.



yes

Yes. The exceptions or limitations should enable acts of reproduction, both for preservation(including scanning of printed works) and research purposes. They should also cover theloan and the act of making available to the public, provided it is done without profit. In thecase of making available, consultation should be possible both through dedicated terminalslocated in the library or archive itself, or through an internal network. This exception shouldnot cover, in any case, the acts of transformation, distribution or making available over theInternet for people not tied to the centers beneficiaries of the exception.


yes

374

18)18)

19)19)

Yes. The exceptions or limitations should allow reproduction, distribution, public communi-cation, making available and transformation (e.g. translation), provided that the moral rightsto the integrity of the work is not affected, and, in any case, when such use is justified by theteaching or research purposes and recipients have a direct relationship with the institutionbeneficiary of the exception.

The Spanish legislator has been too restrictive when it comes to defining the scope of excep-tions and limitations for educational and research purposes, introducing numerous obstaclesand conditions that did not come imposed by the Directive and are not in line with currenteducational and social realities. The exception for educational purposes should not be re-stricted to universities, nor to the studies leading to the grant of official titles. Excluding thestudents of the schools from the circle of beneficiaries of this exception is not justified. On theother hand, it would be desirable to widen the objective scope of the exception, not limitingit to certain categories of works or fragments thereof. On the contrary, whenever necessary,those categories of works, whose normal commercial exploitation could be affected by theexception or limitation, could be excluded from the scope of said limitation.


yes

The three-step test can be a useful tool for the legislator when setting the limitations or excep-tions to copyrights and its real extent. For example, when the Spanish legislator incorporatedthe Directive, he excluded textbooks and university textbooks from the limits for education,because otherwise it could cause significant damage to the authors of such works designedto serve as an instrument of study and learning of the subjects included in the various levelsof education.

However, from the moment the three-step test has become a corrective also addressed to thenational courts when applying the exceptions provided by law (art. 5.5 Directive 2001/29/CE), it is necessary to do a balanced reading of the aforementioned rule to avoid becomingan instrument to tip the balance between exclusive rights and legitimate uses permitted bylaw in favor of the right holders.

Specifically, the three-step test should not necessarily entail a restrictive interpretation of theexceptions and limitations enshrined in law, but these should be interpreted in accordancewith the objective pursued by the rule. It is also necessary to make a joint reading of the threecriteria that make it up, so that not every use of a work that is capable of being exploitedcommercially is to be excluded from the set of exceptions and limitations, particularly whereadequate compensation is ensured to the holders of exclusive economic rights.


No. Those exceptions or limitations to copyright that find their justification in the promotionof education and culture, among which are included those established in favor of schools,teaching or research centers, libraries, archives, museums and similar institutions, should beconsidered mandatory and, therefore, they should not be overridden by contract. Otherwise,the delicate balance that the law has sought to establish between the interests of rights hold-ers and those of society as a whole could be altered by the will of the parties, defining thespecific uses and conditions in which apply the exception to the monopoly of those. In thecase of adhesion contracts it also means leaving it in the hands of the holders of the ex-

375

20)20)

21)21)

III.)III.)

22)22)

ploitation right the chance of imposing their own rules by extending the monopoly on theexploitation of the work without taking into account the interests underlying the laws govern-ing the matter.


Yes. When an exception or limitation to the exclusive economic rights is justified by the needto promote access to culture, fostering education and research development, its legal recog-nition is not opposed to the payment of equitable remuneration addressed to compensatethe talent, the effort and/or the investment behind all intellectual creation.


In order to improve the existing law applicable to such exceptions or limitations the first stepought to be the simplification of law and the elimination of some requirements that makethe scope of these limits too restrictive and difficult to reconcile with the requirements of theinformation society.

It would also be advisable to clarify certain legal provisions as follows:

1. With regard to the exceptions to the use of works by centers and institutions (Article 32,paragraphs 3 and 2), it would be useful a clarifying and systematizing effort by the leg-islator. Certainly the application of paragraphs 3 and 4 of this provision raises manydoubts about their extent, scope and application requirements. Among others: are therules of paragraph 4 applicable to textbooks, university handbooks and publications as-similated? In other words, is the partial reproduction (a chapter of a book, for example)of a textbook allowed or only Òsmall fragmentsÓ? Should we understand that the pub-lic communication of fragments of works established on paragraph 3 also generally in-cludes the making available to the public on the Internet? What is the meaning of theexpression Òworks for single useÓ mentioned in paragraph 5 of Article 32?

2. With respect to uses by libraries, museums, archives, etc., the term "equitable remuner-ation" associated with public communication through internal and closed networks is notvery accurate; especially considering that in case of loans the compensation amount isfixed under specific parameters contained in a Royal Decree.

3. In general, institutions and centers covered by the exceptions should be subject to a moreprecise definition. Why paragraph 1 of Article 37 refers to Òmuseums, libraries, recordlibraries, film libraries, newspaper libraries or archives that are public or integrated intocultural or scientific institutionsÓ whereas 2nd paragraph refers to Òmuseums, archives,libraries, newspaper libraries, record and film libraries that are public or belonging tonon-profit cultural, scientific or to educational institutions integrated in the Spanish edu-cational systemÓ? Are they the same entities?



yes

376

23)23)

24)24)

a)

b)

c)

Yes, harmonization is desirable. Copyright works enjoy protection virtually world-wide (witha few exceptions); thus, the extent and scope of protection should be the same or substantial-ly the same. For this reason, the exceptions or limitations to copyright protection for librariesand archives should not differ from one country to another. Very often, the same literaryworks (e.g. a book), which are the copyright works mainly kept in libraries and archives, arekept in libraries in different countries. It is desirable that the same work be subject to thesame limitations or exceptions. For instance, in some countries the use of up to 10% of acopyright work may qualify for fair use (e.g. Spain & US Ðsubject to other conditions-).The ultimate beneficiaries are mainly students and researchers; their access to copyrightworks should not depend on the country in which they study or conduct a research. In therespect, harmonization may also prevent lack of educational opportunities for persons fromcountries where copyright law restricts access to knowledge to a greater extent.





The better view is that only public libraries, archives, museums and educational insti-tutions should benefit from these exceptions or limitations. They are the non-profit oreducational purposes institutions which ensure a fair access of the general public toknowledge. The majority of constitutions around the globe provide for a right to accessinformation and culture, and these institutions play a pivotal role in the possibility ofthe publicÕs exercising this right.


The exceptions should apply to activities that do not harm the interests of the copyrightowners and are in line with fair uses, such as education and research. These could be(i) reproduction for the purposes of conservation and research, (ii) communication tothe public on the premises of the beneficiary institutions and (iii) rental/lending to sub-scribed users.


The reproduction for the purposes of conservation should be allowed under the follow-ing conditions:

¥ Back-up copies in order to ensure that at least one copy is kept at the library/archive to prevent loss in case of natural disasters or theft;

¥ Copies for consultation in order to protect a valuable original; and¥ Copies for easier consultation where the format of the original work makes it diffi-

cult (e.g. papyrus).

The aforesaid should include the conversion of copyright work into digital format.

377

25)25)

a)

b)

c)

26)26)

Communication to the public should be allowed for display/broadcast of works onthe premises of the beneficiary institutions (e.g. display/exhibition of a video clipor a photograph in a museum or a library) provided that: (i) the author's name isproperly indicated; and (ii) it is made for non-profit or educational purposes.

Rental/lending to subscribed users should be allowed under the following condi-tions:

¥ it is non-commercial and available to all subscribed users; and¥ the institution has at least one original work for which the copyright owner has been

compensated (e.g. purchased on the market).



The exceptions or limitations should apply to public universities and schools, as theirpurpose is non-commercial.


The exceptions or limitations should apply to the acts of reproduction and communica-tion to the public for the benefit of the professors, researchers, academics and students.


Reproduction should be allowed under the following conditions:

¥ Copies for easier consultation where the format of the original work makes it diffi-cult (e.g. papyrus);

¥ Research; and¥ Criticism, review or parody.

Communication to the public should be allowed under the following conditions:

¥ Activities within the framework of an educational program;¥ Of a published copyright work;¥ The institution has at least one original work for which the copyright owner has

been compensated (e.g. purchased on the market); and¥ It is restricted to professors, researchers and enrolled students or academics.



Yes, any exception or limitation may be permitted automatically by Law. And, where neces-sary, the legal requirements should be generally formulated (such as Òprivate useÓ, Òfair useÓor Ònot commercial purposeÓ).

378

27)27)

28)28)

29)29)

30)30)


It seems difficult to implement a remuneration in the case of the exceptions and limitationsfor libraries, educational and research institutions.

However, it seems reasonable to expect remuneration for uses that involve or may involvean impairment to the market value of the original work


The regulation of this subject in the in Directive 2012/28/EU (of the European Parliamentand the Council of October 25, 2012 on certain permitted uses of orphan works) seemsappropriate. This Directive has been recently transposed into Spanish legislation (Law 21/2014, of November 4; see articles 37.bis, 161 and 6th additional provision of the IPA).


Exceptions or limitations should not be subject to be overridden by contract, otherwise theywould be meaningless.


We must say there are technological protection measures already in place. In addition, thelaw could also provide criteria to determine when the use is ÒfairÓ [criteria such as: a) de-termining whether the use undermines the market value of the original work; b) to limit thepercentage of the work that can be used].

SummarySummary

The Spanish legislation provides for a number of exceptions or limitations to copyrights pro-tection, including the exception for libraries, archives and similar institutions. Specifically,copyright holders may not oppose the reproduction, loan and communication and makingavailable to the public of their works, as long as the requirements and conditions are met,such as a non-profit purpose.

The copyright law also provides for an exception for educational and research institutions. Inparticular, the exception applies to teachers of certain schools and personnel of universitiesand public research organizations, when performing acts of reproduction, distribution andcommunication of small fragments of works or isolated works of plastic or photographic fig-urative character, provided that the requirements and conditions are met, among which isthe absence of a commercial purpose.

These exceptions apply to certain works including orphan works provided that the require-ments and conditions specifically set for each type of work are met. In general, the use of theexceptions does not lead to the payment of any remuneration to the copyright holder, but in

379

some cases, such as in book loans, the holders are entitled to an equitable remuneration.Both exceptions are automatically applied, subject to the filter of the rule of the three-steptest and cannot be overridden by contract.


380

I.)I.)

1)1)

a)

b)

Sri LankaSri Lanka


in the name of the Sri Lanka Groupby Himani PERERA and John WILSON


QuestionsQuestions




yes


yes

General (response to Q1 above)Yes, in terms of the provisions of section 12(5) of the Intellectual Property Act no. 36 of2003, (hereafter referred to as Òthe ActÓ), exceptions or limitations to copyright protec-tion are afforded to libraries and archives in limited circumstances under the conceptof Ôfair useÕ:Notwithstanding the provisions of paragraph (a) of subsection (1) of section 9 [NB Ðthis section sets out what the exclusive economic rights of an author are], any libraryor archives, whose activities do not serve any direct or indirect commercial gain may,without the authorization of the owner of copyright, make a single copy of the work byreprographic reproduction.The limited circumstances are set out in section 5(a).Response to Q1 sub (a):In terms of section 12(5)(b) of the Act:Where the copy is made in order to preserve and, if necessary replace a copy, or toreplace a copy which has been lost, destroyed or rendered unusable in the permanentcollection of another similar library or archives:Provided that it is not possible to obtain such a copy under reasonable conditions; andprovided further, that the act of reprographic reproduction is an isolated occurrenceoccurring if repeated, on separate and unrelated occasions.Therefore, reproduction for the purpose of preservation or replacement is permitted bythe Act in limited circumstances for libraries and archives, including digital format cov-ered under the scope of reprographic reproduction.


yes

Section 12(5)(b) of the Act may be (arguably) interpreted to provide for interlibrarylending, on the occasion that there is a need for preservation and replacement whereit is not possible to obtain a copy under reasonable conditions. The law does not how-ever specify what those said reasonable conditions may entail.

381

c)

d)

2)2)


yes

The exception for libraries and archives provided in section 12(5)(a) of the Act is ap-plicable:Where the work reproduced is a published article, other short work or short extract of awork, and where the purpose of the reproduction is to satisfy the request of a physicalperson, provided that:(i) the library or archives is satisfied that the copy will be used solely for the purposesof study, scholarship or private research,(ii) the act of reproduction is an isolated occurrence, occurring if repeated, on separateand unrelated occasions.The said provision allows for the distribution of a copy in a limited form to users of li-braries and archives. However the burden is placed on the library or archive to identifywhether the use would be for educational or research purposes only


yes

In terms of section 12(3) of the Act, the reproduction, in the form of a quotation of ashort part of a published work shall be permitted without authorisation of the owner ofthe copyright provides that the reproduction is compatible with fair practice and doesnot exceed the extent justified by the purpose of such reproduction. Further, the quota-tion must be accompanied by an indication of the source and the name of the authorif his name appears in the work from which the quotation is taken.In terms of section 12(7)(a)(ii) of the Act, a reproduction or adaptation of a computerprogramme by the lawful owner of the copy of the programme is permitted without thecopyright ownerÕs authorisation, if the copy or adaptation is necessary,¥ for use of the computer program for the purpose and extent for which the computer

program has been obtained;¥ for archival purposes and for replacement of the lawfully owned copy of the com-

puter program in the event that the said copy of the computer program is lost, de-stroyed, or rendered unusable.

In terms of section 12(9) of the Act, the public display of originals or copies of worksshall be permitted without the authorisation of the owner of the copyright provides thatthe display is made other than by means of a film, slide, television image or otherwiseon screen or be means of any other device or process; provided further that the workhas been published or the original or the copy displayed has been sold, given away orotherwise transferred to another person by the author or his successor in title.


As per the provisions in section 12(5) of the Act, any library or archive the activities of whichdo not serve any direct or indirect commercial gain falls within the scope of the provision.

382

3)3)

4)4)

5)5)

a)


Yes, with regard to the exception specifically provided for libraries and archives, the con-ditions are stipulated in section 12(5) and have been set out in the answer to 1) c. Only asingle copy of the work by reprographic reproduction is permitted for non-commercial use,without the authorisation of the owner. With regard to the general exceptions details of theconditions have been set out in the answer to 1) d.


In terms of reproduction of a work by a library or archive for a person, the condition is, thatthe work reproduced is a published article, other short work or short extract of a work.(Subject to the other conditions contained in section 12(5)(b)), reproduction for replacementor preservation is permissible where the copy is made in order to preserve and, if necessary,replace a copy, or to replace a copy which has been lost, destroyed or rendered unusable inthe permanent collection of another similar library or archives.)


yes


yes

General (response to Q5):Yes, in terms of section 11 of the Act, notwithstanding the provisions of subsection (1)of section 9 of the Act, the fair use of a work, including such use by reproduction incopies or by any other means specified by that section, for purposes such as criticism,comment, news reporting, teaching,teaching, (including(including multiplemultiple copiescopies forfor classroomclassroom use),use),scholarship or researchscholarship or research, [our emphasis] shall not be an infringement of copyright.This is subject to the following:(2) The following factors shall be considered in determining whether the use made ofa work in any particular case is fair use:(a) the purpose and character of the use, including whether such use is of a commercialnature or is for non-profit educational purposes;(b) the nature of the copyrighted work;(c) the amount and substantiality of the portion used in relation to the copyrighted workas a whole; and(d) the effect of the use upon the potential market for, or value of, the copyrightedwork.Response to Q 5(a) performance and/or display for educational purposes;In terms of Section 12(10)(a) of the Act, the performance or display of a work for ed-ucational or teaching purposes by government or non profit educational institutions,in classrooms or similar places set aside for education does not constitute an infringe-ment of copyright, provided that, in the case of audiovisual work, the performance orthe display of individual images, is given by means of a lawfully made copy, or theperson responsible for the performance did not know or has no reason to believe thatthe copy was not lawfully made.

383

b)

c)

d)

e)

f)


yes

In terms of section 12(4) of the Act, notwithstanding the provisions of paragraph (a) ofsubsection (1) of section 9 of the Act, the following acts shall be permitted without theauthorization of the owner of the copyright:(a) the reproduction of a short part of a published work for teachingteaching purposespurposes [ouremphasis] by way of illustration, in writing or sound or visual recordings, provided thatthe reproduction is compatible with fair practice and does not exceed the extent justi-fied by the purpose of such reproduction.The said section 12 is an expansion from section 11 which allows for reproductionfor the purpose of teaching, scholarship and research generally; however, there is nospecific mention of an exception for the preparation of course packs, compilations oranthologies, and such.


no

There arenÕt any specific provision dealing with translations under the Act in this con-text.


no

In terms of section 12(4)(b) of the Act, reprographic reproductions for face to faceteaching in any educational institution the activities of which do not serve direct or indi-rect commercial gain, of published articles, other short works or short extracts of works,to the extent justified by the purpose, provided that the act of reproduction is an isolat-ed one occurring, if repeated, on separate and unrelated occasions, provided howeverthe source of the work reproduced and the name of the author shall be indicated asfar as practicable on all copies made under this subsection; are permitted.There is no specific mention with regard to digital networks or on-line platforms foreducation, compilation or anthologies or distance education.


yes

In terms of section 11(1) of the Act, the fair use of a work including fair use by repro-duction in copies or by any other means specified in section 9 of the Act for the purpos-es of research shall not be an infringement of copyright. The reproduction is subject tothe factors set out in section 11(2) in determining whether the use made of a work inany case is fair use.


yes

384

6)6)

7)7)

8)8)

In terms of section 12(3) of the Act, the reproduction in the form of a quotation is per-mitted of a short part of a published work, without the copyright ownerÕs authorisation,provided that the reproduction is compatible with fair practice and does not exceed theextent justified by the purpose of such reproduction is permitted. The quotation mustbe compatible with fair practice and must also be accompanied by an indication ofthe source and name of the author if such name appears in the work from which thequotation is taken from.


The exceptions mentioned apply generally for teaching, scholarship and research purposes.However, there is specific mention of the following institutions in regard to specific acts underthe Act: the reprographic reproduction for face to face teaching in any educational institu-tion, without direct or indirect commercial gain, of published articles, other short works orshort extracts of works, and the performance or display of a work for educational or teach-ing purposed by government or nonprofit educational institutions, in classrooms or similarplaces set aside for education


In general, in terms of the provisions of the Act discussed in detail above, the fair use of awork must give consideration to the following factors as stated in section 11(2) of the Act:¥ the purpose and character of the use, including whether such use is of a commercial na-

ture or is for non-profit 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.Moreover, in specific instances such as reproduction in the form of a quotation of a shortpart of a published work, such reproduction shall be compatible with fair practice and shallnot exceed the extent justified by the purpose of such reproduction.In regard to instances of reprographic reproductions for teaching, the extent must be justifiedby the purpose and the source of the work reproduced and the name of the author shall beindicated as far as practicable on all copies made, thus ensuring that the moral rights of theauthor are protected. Additionally, the act of reproduction must be an isolated one occur-ring, if repeated, on separate and unrelated occasions.


Please refer to previous answers.As per the provisions contained in the Act, the type of copyrighted works which fall undersection 12(4)(a) are published works.As per the provisions contained in the Act, the type of copyrighted works which fall undersection 12(4)(b) are published articles, other short works or short extract of a work.As per the provisions contained in the Act, the type of copyrighted works which fall undersection 12(5) are published articles, other short works or short extract of a work.

385

9)9)

10)10)

11)11)

12)12)

In terms of Section 12(10)(a) of the Act, in the case of an audiovisual work, the performanceor the display of individual images, is given by means of a lawfully made copy, or the personresponsible for the performance did not know or has no reason to believe that the copy wasnot lawfully made.



The statute law which specifically provides for the exceptions or limitations of copyright re-ferred to hereinbefore is the Intellectual Property Act no.36 of 2003.


Sri Lankan law does not explicitly adopt the ÔThree-Step TestÕ as such in relation to such ex-ceptions or limitations.However, the law could arguably be construed to incorporate the same as indicated here-after.The factors to be considered in determining whether a use of a work shall be fair use arecontained section 11(2) of the Act; and the exceptions to the exclusive rights of the owner ofthe copyright are set out in section 11 and section 12 of the Act, as discussed above. Thefactors that must be considered incorporate the spirit and intent of the Three-Step Test. Forinstance, only certain acts are considered to be exceptions which link to step one (in certainspecial cases). Similarly, section 11(2)(d) states that the effect of the use upon the potentialmarket for, or value of, the copyrighted work must be considered, which relates to the sec-ond step (when the reproduction does not conflict with a normal exploitation of the work).Finally, by way of ensuring the moral rights of the author, where certain provisions of theAct provide that the reproduction must contain the source and name of the author, the thirdstep (when the reproduction does not unreasonably prejudice the legitimate interests of theauthor) is manifested.


Use is permitted without further action. It should be noted that the owner of the copyrightretains the ability to assign or licence the authorÕs rights under section 16 of the Act.


There is no specific provision in the Act with regards to remuneration being payable for suchuse.

386

13)13)

14)14)

15)15)

II.)II.)

16)16)

17)17)

18)18)


There are no provisions for treatment of orphan works in the Act. However, section 15 of theAct states that the physical person whose name is indicated as the author on a work will bepresumed to be the author of the work in the absence of proof to the contrary. Through thispresumption of ownership, if the name is indicated, even in situations the author is unawareof his rights; the Act shall apply


There are no provisions under the Act that expressly allow the exception or limitation to beoverridden by contract.


yes

Not applicable. There are four collective management entities, one of which is the ÒSri LankaPerforming Rights SocietyÓ. Information on whether this entity has or intends to address useby libraries, archives and educational and research institutions is not available.



yes

Yes. The activities referred to herein.Exceptions with regard to reproduction for preservation or replacement, interlibrary lendingfor such purposes, and lending of copies to users of the libraries or archives are provided forin the Sri Lankan Act.


yes

Yes.Exceptions with regard to the performance or display of works and reproduction or distribu-tion for educational purposes in educational and research institutes are provided for in theSri Lankan Act. However, the law should be amended to contain specific provision in rela-tion to translations and communication networks for educational and research purposes asmentioned hereafter.


yes

The Three-Step test is useful to an extent as it provides parameters for limiting and assessingthe scope of exceptions for libraries, archives, educational and research institutions. Howev-er, the test is broad and as such is subject to various interpretations which would prevent a

387

19)19)

20)20)

21)21)

III.)III.)

22)22)

universal application of the said legal provisions relating to exception. For instance, the firststep states Ôin certain special casesÕ which does not specify the criteria and leaves the dooropen for varied circumstances which may be perceived as a Ôspecial caseÕ. The concept ofÔnormal exploitationÕ would also need to be clarified as it allows a broad scope of interpre-tation. As such, criteria for assessing the normal exploitation should be specified. Moreover,the interests of the author should be specified, for example by identifying which economicand moral rights would be applicable


The statute law should generally prevail over contract to ensure that there is a uniform systemwith regards to exception or limitation. Therefore, in situations in which the contracting par-ties are in disagreement in regard to the agreed terms of a contract resulting in a situation ofconflict, or the terms themselves are inconsistent or subject to interpretation, the law wouldprevail creating consistency.


Remuneration for use should not be necessary for libraries, archives, educational and re-search institutes considering public interest and the imperative that all persons should beable to access education and in circumstances where the said institutions are not making acopy for direct or indirect commercial gain.However, if there is a situation of commercial gain, there needs to be a balance with therights of the author (copyright owner) in which case, it is suggested that, an amount shouldbe payable calculated on the basis of a percentage of profit depending on the number ofcopies used.


The current law could be improved in relation to digital formats. With technological advancesrapidly occurring in the modern day and age, it is necessary for law reforms to stay up todate with these developments. For instance, the present law does not make provision forcommunication networks through the internet, which issue would need to be tackled in orderto achieve greater access to education; but at the same time tackling the issue in a mannerthat prevents infringement of copyright / the rights of authors.Further, the law needs to contain provision in regard to translations as this has not been ad-dressed under the Act.



yes

Yes. Through harmonisation, a unified system which guarantees a balance between therights of the copyright owner or author of the work and the use of works in the public interestby ensuring access to education through institutes such as libraries, archives, educationaland research institutes could be established.


388

23)23)

24)24)

a)

b)

c)

25)25)

a)

b)

c)

26)26)


yes

In the interest of harmonisation, and to address situations where certain jurisdictions do nothave laws providing for exceptions for libraries, archives, educational and research institu-tions, it would be reasonable to explicitly set out such exception or limitation in an interna-tional treaty or convention. Despite there being provisions in existing international treatiesand conventions which address the exception with regard to libraries, archives, educationaland research institutions such as the Three-Step Test under the Berne Convention of 1886,there needs to be a greater clarity in regard to these matters in international intellectualproperty instruments



see above - this has already been covered














Yes.The Act provides for the use of certain works for educational and research purposes underboth exceptions (libraries and archives, and educational and research institutes) which do notrequire the authorisation of the author or owner of the copyright, thereby being automatic.

389

27)27)

28)28)

29)29)

30)30)

Nevertheless, there are factors that need to be considered and met, such as use of a pub-lished work, to ensure fair use under the exceptions.In addition, the act provides a course of action in the event of infringement of the exclusiverights of the owner.


Not applicable to this jurisdiction. However, generally, if there is a commercial gain throughreproduction of the works, a charge on the percentage of profit depending on the numberof copies made and used may be applicable. The payment should be made from the personor institute who or which is making the copy and the payment should be made to the ownerof the copyright in the work.


Not applicable to this jurisdiction since the Act does not contain relevant provisions. However,generally, orphan works should be afforded the same treatment as other works under copy-right exception or limitation, where practicable.


not applicable


Not applicable as information on private organisations is not available. However, generally,a private organisation for the purpose of monitoring and regulating the use of copyrightworks for educational purposes may be a method by which the infringement of the rights ofthe copyright owner or author could be reduced. The private organisation could be granteda licence by the owner of the copyright and as such be responsible for the effective monitor-ing of the copies made and issued.Yet, such an organisation and process may hinder the free access to educational and re-search material available as some owners may not wish to issue a licence. In this context, theconcept of automatic use for educational purposes appears to be justified.

SummarySummary


390

I.)I.)

1)1)

a)

SwedenSweden


in the name of the Sweden Groupby Sanna WOLK, Azra OSMANCEVIC, Johan ENGDAHL, Martin ENGMAN, Hans ERIKSSON,

Magnus FRIDH and Stefan WIDMARK


QuestionsQuestions




yes


yes

Yes. Sec. 16 of the Swedish Act on Copyright in Literary and Artistic Works (SFS1960:729) (hereinafter the ÒCopyright ActÓ) provides for limitations to copyright pro-tection for libraries as well as archives. Further regulations, which relate to aforesaidlimitations, are provided in Copyright Regulation (SFS 1993:1212) (hereinafter theÒCopyright RegulationÓ) as well as the Swedish Archives Act (SFS 1990:782) (here-inafter the ÒArchives ActÓ).a. for the purpose of preservation,The term ÒpreservationÓ refers to reproduction of works in order to preserve and protectthe archiveÕs and libraryÕs own collection, i.e. works that are fragile and valuable (suchas newspapers printed on wood-containing paper) and thus need to be protected fromdeterioration. Hence, a genuine need for protection must be at hand in order to repro-duce works pursuant to this limitation. In turn, the requirement for Ògenuine need forprotectionÓ, determines the scope of any reproduction activities.b. for the purpose of completion,Pursuant to Sec. 2 of the Copyright Regulation, reproduction for the purpose of com-pletion, i.e. in order to keep the libraryÕs or archiveÕs own collection intact by, for ex-ample, adding foreign works that are not easily accessible or works that are not com-mercially available. Reproduction is, however, only permitted in two cases, namely if acopy of a work is either 1) incomplete (however, if the missing part of the work is com-mercially available, the work is not deemed incomplete), or 2) commercially unavail-able and copying takes place at a library that is entitled to receive a specimen copy(inter alia the National Library of Sweden as well as the libraries of certain Swedish uni-versities). Reproduction for the purpose of completion is permitted only in exceptionalcircumstances. Moreover, photocopying of entire books is generally not permitted un-der this limitation.c. for the purpose of research,There are no regulations specifying the type of research in question. However, the in-ference is that the research need be reasonably qualified; it is most likely that ordinarystudent essays/papers do not fall within the scope of this limitation.d. in order to satisfy the desires of library user for single articles, short extracts or for

material which, for security reasons, should not be given away in original form,

391

b)

c)

d)

ÒShort extractsÓ refers, for example, to a single chapter of a book. However, the chap-ter must be short; copying of dozens of pages is not permitted.Ò[É] material which, for security reasons, should not be given away in original form[É]Ó, refers to, inter alia, reproduction for the purpose of interlibrary lending. In gen-eral, distribution from one library to another (for example by way of e-mail) is not con-sidered as an act of making available to the public and is therefore not hindered bythe exclusive rights of the author. Thus, a library may request copies (reprographic ordigital) Ð subject to the conditions in Sec. 16 of the Copyright Act Ð from another libraryto satisfy the wishes of library users.Under Sec. 16 of the Copyright Act, only copies in hard form pursuant to this point (d)may be furthered to library users (i.e. furthering in other forms and outside this limit-ed group is not permitted). Thus, libraries and archives have very limited possibilitiesin respect of furthering copies under said section. However, it should be stressed thatlibraries and archives are entitled to make copies on behalf of a library user pursuantto Sec. 12 of the Copyright Act, which deals with the making of copies for private use.However, in such cases Ð and in contrast to reproduction in order to satisfy the desiresof library user pursuant to Sec. 16 of the Copyright Act Ð the library user (instead of thelibrary) is responsible for the reproduction.As to librariesÕ and archivesÕ ability to further and transfer copies to the public (save forfurthering copies in hard form to library users as described above), such measures arepermitted under Sec. 42 d of the Copyright Act, provided that an extended collectivelicense is applicable pursuant to section 42 a of said act.e. for use in reading devices.In order to use reading devices, the work must first be transferred to an appropriateformat (for example transferring a work to microfilm).As to activities other than those mentioned above, in terms of public performances (in-cluding cinematographic works and work made for the stage that have been madepublic), Sec. 21 of the Copyright Act enables libraries and archives to provide worksfrom their respective collections to occasional visitors (i.e. not the public). The worksmust, however, be provided by means of technical devices in the premises of the li-brary/archive. Sec. 21 of the Copyright Act does not permit remote transfers.


yes

See above


yes

See above


yes

See above

392

2)2)

3)3)

4)4)

5)5)

a)


Pursuant to Sec. 16 of the Copyright Act, the following entities are entitled to make copies asdefined in the answer to question 1:1. governmental and municipal archival authorities,The definitions of Ògovernmental and municipal archival authoritiesÓ are specified in Sec.7-8 of the Archives Act.2. scientific and research libraries that are operated by public authorities,Hence, private scientific and research libraries, such as the libraries of companies and/ororganizations, are not entitled to make copies under this provision.3. public libraries.Moreover, the Swedish government may in specific cases decide that certain archives andlibraries, other than those mentioned above, shall be entitled to make copies pursuant toSec. 16 of the Copyright Act. So far, a fairly large number of such permits have been issued.However, in the governmentÕs official report (SOU 2013:4) it is suggested that the require-ment for a decision to be made by the government in this respect is to be removed. Theproposal is currently under discussion.


Sec. 16 of the Copyright Act imposes no restrictions in terms of the forms of reproduction.Thus, libraries and archives are allowed to make copies of literary and artistic works, in ana-logue as well as digital form, for the purposes mentioned above.As regards the scope of any permitted copies, please refer to the answer to question 1.


According to Sec. 16 of the Copyright Act, all types of artistic and literary works Ð other thancomputer programs Ð may (regardless of their form) be reproduced. Thus, the only type ofwork excluded from the scope of Sec. 16 of the Copyright Act is a computer program. More-over, the work must exist in the libraryÕs or archiveÕs own collection. However, there is norequirement for the work to have been made available to the public or published. However,under Sec. 12 of the Copyright Act, the making of copies for private purposes does not con-fer a right to make copies of a work when the copy that constitutes the real master copy hasunlawfully been prepared or made available to the public.Further, Sec. 45-46, 48-49 a of the Copyright Act refer to Sec. 16 of said act, why the lattersection also applies in relation to the rights of performing artists, producers of recordings ofsounds or of moving images, radio and tv organizations, producers of catalogues as well asphotographers.


yes


yes

393

Yes, the Copyright Act provides for exceptions or limitations to copyright protection foreducation and research institutions in accordance with the following:a. Recordings of own performances as well as public performancesUnder Sec. 14 of the Copyright Act, students and teachers are entitled to record theirown performances of copyright protected works for educational purposes. The excep-tion only covers students and teachers i.e. not e.g. administrative personnel at educa-tion institutions. The recordings shall be for educational purposes meaning that otherpurposes do not fall under the exception under Sec. 14 of the Copyright Act. By Òedu-cational purposesÓ is meant all regular teaching activities, distance education, govern-mental adult education, folk high-school, study circle activities and similar activities.

Furthermore, under Sec. 21 of the Copyright Act follows that anyone can publicly per-form works in the course of educational activities with the exception of cinematograph-ic works and works made for the stage. However, this right does not include a rightto publicly perform compilations in the course of educational activities for commercialpurposes. Due to the fact that the educational activities are usually performed for asmall number of people and not to the general public the scope of this exception israther narrow.b. Reproduction of works for compilations (composite works)Under Sec. 18 of the Copyright Act follows an exception in regards to compilations ofworks to be used for educational purposes. The compilation as such must be originaland have sufficient level of originality and must have been made to be used for educa-tional purposes. Furthermore, the compilation must contain works of a greater numberof authors. How many copyrights holders that is meant by a Ògreater numberÓ is notfurther explained in the preparatory works but it is clear that it is not enough with worksfrom only 3-5 authors. In addition, five years must have elapsed since the works mak-ing a part of the compilation were published. Only smaller parts of literary or musicalworks or works of smaller size can be reproduced in a compilation. In relation to worksof fine art these shall be reproduced in relation to a text i.e. serve as illustrations to thetext.

In relation to the works included in the compilation, five years must have elapsed sincethe works were published in relation to literary or musical works or since the workswere made public in relation to works of fine art. Other types of works such as e.g.cinematographic works do not fall under the scope of the exception in Sec. 18 of theCopyright Act.

Further, Sec. 49-49 a of the Copyright Act refer to Sec. 18 of said act, why the excep-tion also applies in relation to the rights of producers of catalogues as well as photog-raphers. The exception thus also applies to catalogues and photographs. The exceptiondoes not apply for works that have been created to be used in educational activitiesand does not provide a right to create compilation of works for the purpose of makingmoney.c. Use of documents prepared by Swedish public authoritiesForm Sec. 26 a, second paragraph in the Copyright Act it follows that anyone is entitledto use documents prepared by Swedish public authorities other than laws and otherregulations, decisions by public authorities, reports by Swedish public authorities andofficial translations of these text. However, this exception does not apply to works cre-ated for educational purposes which are an exception from the exception.d. Making of copies within educational activities (collective license)From Sec. 42 c with reference to Sec. 42 a in the Copyright Act, follows that copies ofworks which have been made public can be made for educational purposes as longas a collective license agreement has been concluded between an organization repre-senting a substantial number of Swedish authors in the field concerned and someone

394

b)

c)

d)

e)

f)

6)6)

who carries out educational activities in organised forms. With Ôin organised formsÕ ismeant that the educational activities should not be an improvised activity but rather astructured activity.All forms of making of copies are covered i.e. any direct or indirect, temporary or per-manent preparation of copies of the work, regardless of the form or through whichmethod this is carried out and regardless of whether it concerns the work in whole orin part (see Sec. 2, paragraph 2, of the Copyright Act).The collective agreement enables the educational institution to make use of the copiesin relation to such educational activities that are covered by the agreement.The rights provided by the collective agreement do not apply in instances where theindividual authors/copyright holders have filed a prohibition against the making ofcopies.


yes

See above


yes

See above


yes

See above


yes

See above


yes

See above


The term Ôeducational activitiesÕ which is used in relation to the exceptions that cover ed-ucational institutions is broad and covers regular teaching activities, distance education togovernmental adult education, folk high-school, study circle activities and similar activities.No difference is made between profitable or non-profit educational institutions, as long asthey are fulfilling the formal requirements of being an educational institution.

395

7)7)

8)8)

9)9)

10)10)

11)11)


Yes, there are conditions as to the type of activities and the persons who may engage insuch activities. In relation to 5 (a) above (Recordings of own performances as well as publicperformances) the activities are limited to recordings of own performances of copyright pro-tected works for educational purposes. Furthermore, in relation to the persons who may beengaged in the described activities, only students and teachers are covered. No other per-sonnel at the educational institution are covered.Concerning reproduction of works for compilations we refer to 5 (b) above.In regards to 5 (c) above (Making of copies within educational activities (collective license))all forms of making of copies are covered i.e. any direct or indirect, temporary or permanentpreparation of copies of the work, regardless of the form or through which method this iscarried out and regardless of whether it concerns the work in whole or in part. The collectivelicense agreement as such sets the terms for which educational activities in which the worksmay be used.


Please refer to the answer to question 5 above.



In terms of statutory provisions that provide for limitations, please refer to answer to question1. The relevant provisions are yet to be dealt with in case law.


No. Swedish law does not include the Three-Step Test as a general provision on copyrightlimitations and exceptions. The position in Sweden is rather that the Three-Step Test is to beviewed as a rule of interpretation and thus it neednÕt be explicitly implemented in nationallaw. The government justified its view in this respect by referring to the fundamental require-ment for restriction when establishing exceptions and limitations to copyright protection; im-plementing the Three-Step Test as such in national law would risk leading to an uncertain/broad interpretation of the expectations and limitations. The Three-Step Test has, however,been taken into consideration when establishing the various rules in relation to exceptionsand limitations to copyright protection and related rights.


In respect of use under the limitations specified in the answer to question 1, such use is per-mitted automatically (given that the entity falls within the scope of such libraries/archives thatare entitled to make copies according to Sec. 16 of the Copyright Act, please refer to answerto question 2). Thus, consent from the author is not required. However, according to Sec.

396

12)12)

11 of the Copyright Act, the limitations specified in the answer to question 1 do not limit themoral rights of the author. When a work is used publicly on the basis of such provisions, thesource shall be stated to the extent and in the manner required by proper usage, and thework may not be altered more than necessary for the use in question.As to librariesÕ and archiveÕs ability to further and transfer copies to the public (other thanfurthering copies in hard form to library users as described in the answer to question 1), suchmeasures are permitted under Sec. 42 d of the Copyright Act, provided that an extendedcollective license is applicable pursuant to Sec. 42 a of said act.According to Sec. 42 a an extended collective license applies to the exploitation of works ina specific manner, when an agreement has been concluded concerning the exploitation ofworks in this manner with an organization that represents a significant number of authorsof works in the field concerned that are being exploited in Sweden. The extended collectivelicense confers to the user the right to exploit works of the kind referred to in the agreementdespite the fact that the authors of those works are not represented by the organization.Sec. 42 d of the Copyright Act deals with the extended collective license for certain archivesand libraries. According to said section, archives and libraries referred to in Sec. 16 of theCopyright Act (please refer to the answer to question 2), are entitled to make copies of worksthat form part of their own collections and make available to the public such works that havebeen made public, if an extended collective license applies pursuant to Article 42 a. Howev-er, the provision does not apply if the author has filed a prohibition against the making ofcopies or the making available with any of the contracting parties or if there are otherwise,in view of specific circumstances, special reasons to assume that the author would object tothe exploitation. Such Òspecial reasonsÓ may consist in the author changing his/her opinionfrom a cultural, artistic or political point of view and no longer wishes that the former opinionbe furthered or a work has been criticised and the author no longer wishes that the work beavailable. Moreover, the author may have made it clear that further use of a work is not per-mitted or perhaps only permitted in a certain manner. Consequently, according to Sec. 42of the Copyright Act, the library/archive must be observant in respect of an authorÕs opinionin terms of the ways the authors work may be exploited within the framework of an extendedcollective license agreement.Consequently, Sec. 42 d enables for archives and libraries to 1) enter into extended collectivelicense agreements in respect of any form of reproduction of works that form part of theirown collections, and 2) to make works available to the public, regardless of the techniqueused when doing so. As mentioned above, the works must have been made public (i.e. whenthe works have lawfully been made available to the public). Thus, insofar as a computerprogram is part of the libraryÕs/archiveÕs own collection, such a program may be subject toan extended collective license agreement. Further, the provision enables the archive/libraryto transmit its collections on the internet by way of sending the material via e-mail or other-wise providing the material in the digital network environment. Moreover, only the libraryÕs/archiveÕs own collections fall within the scope of the provision. There is not requirement thatthe collections be stored in the premises of the archive/library. The provisions does not, how-ever, allow for libraries/archives to reproduce or make available to the public works that thearchive/library itself has borrowed.


In respect of use under the limitations specified in the answer to question 1, remuneration isnot payable to the author.Sec. 42 a of the Copyright Acts states that the conditions, which concern the exploitation ofthe work, that follow from the agreement apply. In respect of the remuneration deriving fromthe agreement and in respect of other benefits from the organization that are essentially paidfor out of the remuneration, an author (who is not represented by an organization) shall betreated in the same way as those authors who are represented by the organization. Withoutprejudice to the aforementioned, an author always has a right to remuneration for the ex-

397

13)13)

14)14)

15)15)

II.)II.)

16)16)

17)17)

ploitation of his/her work, provided that the author forwards claims of remuneration withinthree years from the year in which the work was exploited. Claims for remuneration may bedirected only towards the organization.Consequently, contractual freedom applies; the underlying agreement between the archive/library and the organizations determines 1) the scope of the extended license in respect of thespecific manners in which the works may be exploited, as well as 2) remuneration payableby the libraries/archives to the organizations (and in turn by organizations to authors).


According to Sec. 16 a-d of the Copyright Act, certain institutions including libraries may useorphan works under certain circumstances. This regime is wholly separate from the excep-tions and limitations discussed in this report.


In respect of use under the limitations specified in the answer to question 1, such limitationsare non compulsory and the parties are therefore free to agree otherwise.As to extended collective licenses for certain archives and libraries, the author has the optionto Òopt-outÓ from the exploitation of works that falls within the scope of such licenses (pleaserefer to the answer to question 11).


no

To our knowledge, there are currently no efforts by private organizations to address use bylibraries and archives.



yes

Yes, there should be limitations to copyrigt protection for libraries and archives for the pur-pose of preservation, completion, research as well as in order to satisfy the desiers of libraryuser for single articles, short extracts or for material which, for security reasons, should notbe given away in original form.


yes

Yes, there should be limitations to copyrigt protection for education and research institutionsin relation to recordings of own performances and public performances, reproduction ofworks for compilations (composite works), use of documents prepared by Swedish public au-thorities and making of copies within educational activities (collective license).

398

18)18)

19)19)

20)20)

21)21)

III.)III.)

22)22)


yes

Yes, the Three-Step Test is a useful legal tool l in restricting the ability of states to introduceand maintain exceptions to the exclusive rights of authors and other right-holders. Under theThree-Step Test, exceptions are only permitted (1) in certain special cases; (2) which do notresult in a conflict with the normal exploitation of a work and (3) which do not unreason-ably prejudice the legitimate interests of the author (or other right-holder). However, Swedishlaw does not include the Three-Step Test as a general provision on copyright limitations andexceptions. Instead the test is merely viewed as a rule of interpretation (please refer to theanswer to question 10).


Yes, as a starting point the exceptions should be capable of being overridden by contract.However, given that the exceptions relate to a number of important considerations such asmarket failure, freedom of speech, education and equality of access, the exceptions shallonly be capable of being overridden by contract if both parties, i.e. users and right holders,agree to this.


In general remuneration is not to be payable for any of the activities described in 16) and17). The limitations that allow for such activities (which are fairly restricted) to take place aredeemed necessary for a number of valid reasons, such as market failure, freedom of speech,education, equality of access and other important cultural and social reasons. However, re-muneration is to be payable where an extended collective license applies (please refer to theanswer to question 11). Such licenses, which allow for works to be used to a great extent, arebased on negotiations between right holder and user organizations.


There is need for improvement in relation to the making of copies of literary and artisticworks in digital form. However, the opinion of the Swedish group is that works should alsobe available to library visitors at the institution. However, we are also of the opinion thatworks in a digital for should also be possible distributed to library borrowers.



yes

Harmonisation is desirable and important, both regionally and globally, in order to furtherthe envisioned underlying purposes of such legislation, including the free exchange of infor-mation and access to education while respecting rights-holdersÕ interests. As a first regionalstep, Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001on the harmonisation of certain aspects of copyright and related rights in the informationsociety (InfoSoc) should be revised and Article 5 (2) c made mandatory.

399

23)23)

24)24)

a)

b)

c)

25)25)

a)

b)

c)



no



The exceptions or limitations under such harmonised rules should apply to libraries,archives and other organizations which, by their public nature, directly benefit society.However, formally private institutions may also act in the public sphere and indirectlybenefit society in a variety of ways. Care should be afforded the drafting of such har-monised rules in order to fully serve the legislationÕs underlying purposes.


The exceptions or limitations under such harmonised rules should apply to the makingof copies or works for the purposes outlined in question 1.


Such harmonised rules should apply under the conditions outlined in questions 3-4.



The exceptions or limitations under such harmonised rules should primarily apply toeducational and research institutions which, by their public nature, directly benefit so-ciety. However, formally private institutions may also act in the public sphere and indi-rectly benefit society in a variety of ways. Care should thus be afforded the drafting ofsuch harmonised rules in order to fully serve the legislationÕs underlying purposes.


The exceptions or limitations under such harmonised rules should apply to the makingof copies or works for the purposes outlined in question 5 (not including exceptionsgranted through collective licenses).


Such harmonised rules should apply under the conditions outlined in questions 7-8.


400

26)26)

27)27)

28)28)

29)29)

30)30)


Such harmonised rules should apply automatically without additional action being taken oradditional criteria being fulfilled.


Remuneration shall generally not be paid for public institutionsÕ copying of works under theexceptions or limitations according to such harmonised rules. To the extent remunerationshall be paid, for example under a collective license enabling copying of works outside thenarrow scope of these harmonised rules, the remuneration shall be paid by the institution di-rectly to a collecting society. The broader benefit to society resulting from such copying shallbe taken into account when determining and calculating the remuneration to be paid.


No.


The exceptions or limitations under such harmonised rules shall be capable of being over-ridden by contract. However, given that the exceptions relate to a number of important con-siderations and societal interests, the exceptions or limitations shall only be capable of beingoverridden by contract if both parties agree.


In order to enable private libraries, archives as well as educational and research institutionsto copy works in a manner similar to the exceptions or limitations applicable to public insti-tutions under such harmonised rules, collective licensing regimes should be implemented.

SummarySummary

The Swedish Act on Copyright in Literary and Artistic Works (SFS 1960:729) provides for ex-ceptions to copyright protection for libraries and archives as well as education and researchinstitutions. In general (i) the exceptions/limitations should be capable of being overriddenby contract if both users and right holders agree to this, and (ii) remuneration is not to bepayable for use under the exceptions/limitations. As to libraries and archives, the excep-tions only cover governmental and municipal archival authorities, scientific and research li-braries that are operated by public authorities and public libraries. In terms of educationaland research institutions, the term Òeducational activitiesÓ which is used in relation to the ex-ceptions that cover educational institutions is broad and covers regular teaching activities,distance education to governmental adult education, folk high-school, study circle activitiesand similar activities. Moreover, the Swedish law does not include the Three-Step Test as ageneral provision on copyright limitations; the test is rather to viewed as a rule of interpreta-tion and has been taking into consideration when establishing the various rules provided forin Swedish law in relation to exceptions and limitations to copyright protection and relatedrights. As to improvements of current Swedish law, there is need for one especially in relation

401

to the making of copies of literary and artistic works in digital form. In terms of harmoniza-tion, such is desirable and important Ð regionally as well as globally Ð in order to further thefree exchange of information and access to education while respecting right holderÕs inter-ests


402

I.)I.)

1)1)

a)

b)

c)

SwitzerlandSwitzerland


in the name of the Switzerland Groupby Matthias GOTTSCHALK, Yaniv BENHAMOU, Sabrina KONRAD, Peter LING, Annatina MENN,

Reinhard OERTLI, Beatrice RENGGLI and David RUEETSCHI


QuestionsQuestions




yes


yes

Yes: An archive copy of a work may be stored in an archive not accessible to thepublic (art. 24 para. 1 CA). Libraries and archives accessible to the public may createas many copies as necessary for the safeguarding and conserving their collections, butnot for any economic or commercial purposes (art. 24 para. 1bis CA). Libraries maycopy works or make available devices to their users for copying works (art. 19 para.1i.c.w. para. 2 CA). Archives and libraries may make copies for internal purposes (notfor the public) subject to paying a levy to the CRMO (art. 19 para. 1 lit. c CA). If li-braries rent out a copyrighted work against a fee, they owe a remuneration accordingto a tariff, but not if they lend it without a fee. Broadcasting organisations may re-broadcast productions stored in their archives by paying a levy to the collective rightsmanagement organization (CRMO), but without consent of the rightholders, and mayalso make them available to the public (art. 22a CA). The right to use orphan works bypaying a levy to the CRMO is limited to works contained in publicly accessible archivesor archives of broadcasting organisations (art. 22b CA).a) To ensure preservation of work, archives may produce one copy which has to bedesignated as "archive copy" and to be stored in a non-publicly accessible part of thearchive (art. 24 para.1 CA). Furthermore, publicly accessible libraries and archivesmay reproduce as many (no fixed number) of copies as necessary for the preservationof their stock, and with the exemption that such copying has no commercial purpose(art.24 para. 1bis CA).


no

No specific provision regarding interlibrary lending. Libraries, which may copy worksfor their users (art. 19 para. 1 i.c.w. para. 2 CA) may delegate such copying to otherlibraries.


403

d)

2)2)

3)3)

4)4)

yes

Libraries are allowed under art.19 para. 2 CA to make copies (either in digital or phys-ical form) for and on behalf of their users. They are even allowed to send them to theirusers in electronic format through the internet. The copy has to be made after receiptof a specific request of the user and only from the original copy of the work acquiredby the library (book, journal etc.). There is no specific provision limiting the right forthe libraries to freely disseminate published works available from their stock. Swiss lawdoes not provide for a comparable regulation to ¤ 52b of the German Copyright Act,providing that publicly accessible libraries, museums or archives may only make avail-able there published works exclusively on the premises at especial terminals dedicatedfor the purpose of research and for private study ("electronic workspaces").


no


The exceptions and limitations as provided in art. 19 para. 1, 22 a, 22 b and 24 para. 1CA do not differentiate between commercial or non-commercial purposes. Only the limita-tion according to art. 24 para. 1 CA is applicable only for non-commercial use. The tariffsof the collective rights management organizations normally differentiate between public en-tities, like for example research institutions, and private companies.


Art.19 para. 3 lit. a CA provides that the complete or substantive copying of a copyrightedwork available in commerce (e.g., books or journals) is not permitted. Therefore, only thecopying of a portion of a so called work copy (Werkexemplar) is exempted. The only excep-tion to this rule is provided in art. 19 para. 1 lit. a CA, if the copy is made for personal useby the user himself. The CA does not provide for any limitation as to the type of copy (re-production may take place on analogue or digital basis, BGE 133 III 473 E. 4.3). Variousconditions apply for the use of archived works of broadcasting organizations (art. 22a CA),use of orphan works (art. 22b CA) and archive and backup copies (art. 24 CA).


Any copying, including copies made for school purposes (art. 19 para. 1 lit b) and for en-terprises or institutions of internal information and documentation (Art. 19 para. 1 lit. 10)and copies created with the involvement of third person (art. 19 para. 2 CA) must be madefrom a legally obtained and lawfully created copy. The only exception to this rule is, accord-ing to prevailing doctrine and legislative history, a copy for personal use or within a circle ofpersons closely connected to each other (art. 19 para. 1 lit a CA). In a recent Federal Courtdecision re ETH documentary services from November 2014 the court has confirmed theprinciple, that the copyrighted work has to be made from a legally obtained and lawfully cre-ated copy. However, these exceptions and limitations do not apply for computer programs(art. 19 para 4 CA).

404

5)5)

a)

b)

c)

d)

e)


yes


yes

Art. 19 para. 1 lit. b CA provides for exceptions and limitations for teachers and theirpupils for educational purposes. Research institutions may benefit from exceptions andlimitation according to art. 19 para. 1 lit. c CA limited to internal information and doc-umentation only.a) Art. 19 para. 1 lit. b CA allows the use for educational purposes of the work for anytype of use, including reproduction (art. 10 para. 2 lit. a CA), performance (art. 10para. 2 lit. c CA), and editing right (art. 11 para. 1 CA, provided the work is not beingdistorted, which would constitute a violation of the moral rights of the author, art. 11para. 2 CA).


yes

Art. 19 para. 1 lit. b CA permits any use of a copyrighted work for educational purpos-es, however always subject to the limitations of art. 19 para. 3 CA, which, inter alia,specifically prohibits the reproduction of entire works, the reproduction of work of fineart and the graphic representation of musical works (copying of sheet music) and therecording of a performance of a work on phonograms or videograms.


yes

Personal use (art. 19 para. 1 lit. a) and use for educational purposes (art. 19 para. 1lit. b CA) allow the making of translations.


yes

The provisions of the Swiss CA, including those regulating the limitations of copyright(art. 19 et seqq. CA), are technology-neutral. Therefore, making available copies foreducational purposes does include the right to make them available via online-facilities(e.g. intranet in a school or university, as long as access to the documents is limitedto the teacher and his class) and for distance education purposes as long as access isrestricted to teachers and students within the course program.


no

405

f)

6)6)

7)7)

8)8)

There is no (general) limitation benefiting research organisations beyond the exemp-tion for reproductions and distribution for internal information and documentation pur-poses (art. 19 para. 1 lit. c CA). For example, the exchange of copies in the course ofcollaboration with an external science institute is not privileged.


yes

Art. 24c CA permits the making available of copyrighted works in a form accessibleto people with a disabilities (e.g. conversion of written text in Braille letters or into anaudio book) and distribution of works in such format to persons with disabilities, I pro-vide, however, that distribution is strictly non-profit orientated. A levy to the CRMO isdue except for single copies.


The exceptions or limitations provided in art. 19 para. 1 lit b CA apply to all educationalinstitutions, regardless whether public or private, for profit or not-for-profit. The exceptionsor limitations provided in art. 19 para. 1 lit c CA benefit all institutions, including researchinstitutions, regardless whether public or private, for profit or non-profit. However, public(non-profit) entities may benefit from lower tariffs.


Subject to the educational purposes there are no further conditions as to the type or scopeof the activities. With the respect to the persons, according to art. 19 para. 1 CA only teach-ers and students may enjoy such privileges. Furthermore, any exceptions and limitations aresubject to art. 19 para. 3 CA. For instance, the recording or representation of a teachers andstudents performance beyond personal use is not permitted (art. 19 para. 3 lit d CA). Withrespect to archives: Only reproduction for preservation purposes is permitted according toart. 24 para. 1 and art. 24 para. 1. In addition, institutions may use reproductions only for"internal information and documentation" according to art. 19 para. 1 lit. c CA.


Any copying, including copies made for school purposes (art. 19 para. 1 lit b) and for en-terprises or institutions limited to internal information and documentation purposes (art. 19para. 1 lit. c) and copies created with the involvement of a third person (art. 19 para. 2CA) must be made from a legally obtained and lawfully created copy. In a recent federalcourt decision re ETH documentary services form November 2014 the court has confirmedthe principle that the copy righted work has to be made from a legally obtained and lawfullycreated copy. However, this exceptions and limitations do not apply for computer programs(art. 19 para 4 CA).


406

9)9)

10)10)

11)11)

12)12)


Art. 19 para. 1 lit b CA for educational purposes and lit. c CA for internal information anddocumentation purposes, both subject to limitations according to art. 19 para. 3 lit. a-d CA.Exceptions and limitations are furthermore recognized by the courts in Switzerland. All ex-emptions or limitations with respect to the copyright protection for libraries and archives andincluding library search institutions are exclusively provided for in the statutory law, the Swisscopyright act e.g. (in particular article 19, 22 a) case law created by the courts does onlyserve the lawful interpretation of the statutory law, but does not create itself any exemptionsor limitations.


As member state of the Berne Convention, the TRIPS, the TCT and the WPPT, which all pro-vide for the Three-Step Test, Switzerland recognizes the Three-Step Test and applies it in itslegislation. Furthermore, the Swiss courts apply it for the interpretation of statutory provisions,the Three-Step Test, if applicable.


Personal use by the individual or within a circle of persons closely connected to each other ispermitted without any formal requirements or obligation to pay a remuneration. Virtually allother forms of permitted use are subject to a levy to a CRMO (see question 12), but no otherformalities or procedures have to be followed.


The reproduction and use of works for educational purposes (art. 19 para. 1 lit. b CA) aswell as the reproduction and use of works for internal information and documentation pur-poses (art. 19 para. 1 lit. c CA) is subject to the obligation to pay a levy to a CMRO (art.20 para. 2 CA). Use for educational purposes or within an institution (art. 19 para. 1 lit.b and c CA) and copies by a third person or using the devices of a third person (art. 19para. 2 CA) trigger the obligation to pay a levy to a CRMO. The same is true with regard tobroadcasting organisations re-broadcasting productions stored in their archives and makingthem available to the public (art. 22a CA), the use of orphan works contained in publiclyaccessible archives or archives of broadcasting organisation (art. 22b CA) or the makingand storage of an archive copy of a work in an archive not accessible to the public (art. 24para. 1 CA), or libraries and archives accessible to the public creating copies necessary forthe safeguarding and conservation of their collections (art. 24 para. 1bis CA). Claims forsuch remuneration may only be asserted by authorized CRMOs. CRMOs are private entitieslicensed by the Swiss Federal Institute of Intellectual Property who can assert specific rightsunder the Copyright Act for the benefit of the rightholders.The amount of remuneration is set forth in tariffs edited by CRMOs. Such tariffs are negotiat-ed between CRMOs and organizations representing users and must eventually be approvedby a government agency, the Federal Copyright Arbitration Commission. The amount of re-muneration depends on the volume of use (e.g. number of copies made) and the person ofthe user. That is to say, in most tariffs, the same use will trigger different amounts of remu-neration depending on whether the user is (by way of example) a public administration, a

407

13)13)

14)14)

library, a school or a services company. Libraries that are open to the general public (irre-spective of whether they are privately or publicly held) must generally pay less than for-profitservice companies for the same use.The user (e.g. library or entity that runs the library) is often, but not in any case, liable tomake these payments. Payments must be made exclusively to the relevant CRMO, which, inturn, distributes the remuneration to the individual authors. CRMOs have an exclusive rightto claim such payments; as a result, payments cannot be made directly to the rightholders.


The EU Orphan Works Directive (2012/28/EC) is not applicable in Switzerland. Under Swisscopyright law (art. 22b para. 1 lit. b CA), some specific uses of certain types of orphan worksdo not amount to copyright infringement, provided that the use has been licensed by a CR-MO. However, the scope of this provision is very narrow and is only applicable if all of thefollowing conditions are met:¥ Art. 22b CA is only applicable to "phonograms or audiovisual fixations".¥ The phonograms or audiovisual fixations are either in publicly accessible archives or in

archives of broadcasting organizations.¥ The rightholders are unknown or impossible to locate. The law does not define any min-

imal standards of a diligent search.¥ The phonograms or audiovisual fixations were produced or reproduced in Switzerland at

least ten years prior to the intended use.If all these conditions are met, the prospective user must pay the remuneration provided forin the applicable tariffs, what implies the implicit authorization to use the orphan works fromthe relevant CRMO.


This issue has not been clearly settled in Switzerland. On one hand, Swiss law does notprovide specific rules for copyright law contracts (contrats de droit dÕauteur; Urheberver-tragsrecht) and Swiss CA does not specify if the exceptions and limitations (art. 19 Ð 28 CA)are mandatory or may be overruled by contract. Consequently, the principle of freedom ofcontract applies to contractual copyright law and should allow for overriding the exceptionor limitation by contract. On the other hand, the Supreme Court held in its decision ATF 127III 26 that exceptions and limitations are imperative and that a contractual clause betweenthe MusŽe dÕart et dÕhistoire de Genève and the collective rights management organizationProLitteris overriding the catalogue exception (art. 26 CA) shall be void. The particular factsof the case (contract between museum and CRMO), however, prohibits any general conclu-sions.¥ Certain authors argue that exceptions or limitations may be overridden by contract, due

to the principle of freedom of contract and to the dispositive nature of the exceptions andlimitations.

¥ Other authors advance the view that exceptions and limitations are imperative and maynot be overridden by contract. In particular art. 24 CA provides that the archive andbackup copies exception Çmay not be waived by contractÈ.

Consequently, the nature of exceptions and limitations cannot be answered generally andeach provision requires a specific analysis, in particular a balance of interest (private interestof author on one hand and private interest of users or public interest on the other hand).However, the legislator (with new provisions such as art 39a para. 4 CA) and the jurispru-dence (with its decision ATF 127 III 26) have the tendency to consider the exceptions andlimitations as imperative and that they may be not overridden by contract.

408

15)15)

II.)II.)

16)16)

17)17)


yes

There are several efforts by private organizations to address use by libraries, archives andeducational and research institutions. Some of the requirements aren't detailed and stayvague, others are already more concise. The efforts are either based on existing limitationsand exceptions to copyright protection or demand the creation of new exceptions and limita-tions. Hereinafter a few examples of such efforts and requirements:¥ A couple of organizations ask to extend the limitations and exceptions to copyright pro-

tection explicitly in favour of scientific libraries (vague requirement).¥ Also required is the permission to digitize and making online available of works for so

called "cultural memory institutions" like libraries, archives, museums etc. and - relatedto that -the creation of exceptions and limitations for collection and inventory cataloguesheld by memory institutions in the online domain. Libraries and museums for instanceshall thereby get the possibility to digitize short parts of a work to include those parts intoa catalogue.

¥ One effort is also to broaden art. 26 CA to libraries and other "cultural memory institu-tions".

¥ There are also efforts made to broaden art. 22b CA. The regulation of the use of orphanworks shall not only apply to phonograms or videograms but also to other categories ofworks, such as pictures and texts.

Some organizations ask to delete the restriction to copy music notes (art. 19 para. 3 lit. cCA).



yes

There should be general limitations allowing to make and use electronic copies of works for(1) storage of copyrighted works by libraries or archives for securing of works, (2) use ofabstracts and excerpts of works in digital catalogues, (3) field research, and in general foraccessing on library or archive terminals only (including the possibility to print or copy smallparts or thumbnails of the work but not the whole work), but without increasing the numberof copies accessible at one moment in time and (4) for making and sending copies of partsof commercially available work copies irrespective of whether the same part is otherwise in-dependently commercially available.


yes

For the purpose of education, there should be a copyright which permits any use of copy-righted works (following art. 19 para. 1 lit. b CA) for educational purposes, including con-tinuing education and online education (intranet), by any institution devoted to education,also private institutions, their teachers and students. Research institutions should be allowedto copy entire works for making them available within the research institution in a searchableformat for research purposes, but not for making additional copies in whatever format. Re-search institutions should be defined according to functional criteria, not legal form.

409

18)18)

19)19)

20)20)

21)21)

III.)III.)

22)22)


yes

The Three-Step Test is valuable as an internationally accepted standard for determining lim-itations of copyright. It is useful for the legislator in evaluating existing and introducing newexceptions and limitations of copyright law, and for courts and CRMOs in interpreting exist-ing statutory limitations.


As the limitations are regularly the result of a weighted and conscious decision of the leg-islator in order to find a fair balance between two or more constitutional rights, it shouldgenerally not be possible to override copyright limitations by way of contract.


Remuneration should in general be payable, except in the case of copies for the purpose ofsecuring works and for strictly private use. This follows also from the Three-Step Test.


¥ The existing exceptions should be broadened to allow more than just one copy for safetypurposes in article 24 para. 1, i.e. multiple backup copies should be allowed.

¥ Libraries and archives: Introducing a new limitation allowing libraries the use of copy-righted works (abstracts, excerpts) for the purpose of establishing a library catalogue.Introducing a limitation to make available searchable electronic copies for use on libraryterminals.

¥ Educational and research institutions: The limitation as provided in article 19 para. 1 lit.b CA shall be expanded to cover the needs of all types of education institutions. Withregard to research institutions, the exception in article 19 para. 1 lit. c CA should beexpanded to copies for field research purposes and interorganizational research (com-mercial and non-profit research).



yes

International harmonisation is desirable. International harmonisation with respect to excep-tions and limitations to copyright protection for libraries, archives, and for research and ed-ucation purposes is desirable to facilitate international exchange and to create a levelledplaying field for rightholders and users.Where warranted by the Three-Step Test, such exceptions and limitations should be comple-mented by a right to remuneration.


410

23)23)

24)24)

a)

b)

c)

25)25)

a)

b)

c)

26)26)




The exceptions and limitations shall apply to all libraries, archives and institutions, re-gardless whether public or private, for profit or not for profit. Publicly accessible li-braries and archives shall benefit from lower rates. See answer to question 6 above.


See answer to question 16 above.


The copies should not be made from a copy that was obviously not legally made ormade available. Otherwise see answer to question 16 above. For remuneration, seeanswer to question 20 above.







The copies should not be made from a copy that was obviously not legally made ormade available. Otherwise see answer to question 16 above. For remuneration, seeanswer to question 20 above.



The applicable provisions of the copyright statute define the criteria which would have to bemet to use the exceptions or limitations. Otherwise, anyone benefitting from such exceptionsand limitations may benefit from them automatically without having to undertake any proce-dures. Libraries, archives and institutions shall inform CRMOs of such use.

411

27)27)

28)28)

29)29)

30)30)


The remuneration should be determined in negotiations between representatives of therightholders and of the users and periodically re-negotiated. Remuneration should dependon the specific use, e.g., a higher remuneration may be due for commercial use than fornon-commercial use. The archive, library or institution should be liable for the payments andmay then shift the cost to the end-users (e.g., borrowers in libraries, students, renters of workcopies, etc.). Payments should be made to CRMOs set up by the authors or the rightholdersdirectly, making sure that the authors or interpreters receive an adequate share.


¥ The Working Group would welcome broad and internationally harmonized rules that en-able certain uses of orphan works by paying a remuneration either to collecting societies(if such societies exist in the relevant jurisdiction) or into a trust fund set up for the benefitof the rightholders. In the view of the Working Group, Rules governing the permitted useof orphan works should have the following features:

¥ The rules should apply to all kinds of works equally (graphic, text, audiovisual, etc.).¥ The rules should apply to all kinds of users equally (and e.g., not only privilege broad-

casting societies or the like).¥ The rules should be harmonized, in order to enable cross-border use of orphan works.¥ The rules should set out the minimal degree of diligence required in searching for the

author before the work can be deemed "orphan".¥ The permitted uses should not include the infringement of the author's moral rights (e.g.

modifications of the work or use in a context which harm the author's personality rights).




The efforts made by private organisations should be taken into account when creating newexceptions and limitations to copyright protection. The legislative process is complex and di-vided in several stages. In Switzerland the whole legislative process results from a collabo-ration between government and parliament with a participation of non-state stakeholders.ItÕs therefore not an exclusive task of parliament and government to establish law. The le-gal matters requiring regulatory action are furthermore highly specialised. Private organisa-tions often have this specialised practical knowledge at their disposal, but pursue interestsof specific groups, that may conflict with the interests of other groups. The requests and theproposals of private organisations mirror therefore the current copyright trends in society.Consequently taking into account the efforts of private organisations in the legislative processmakes it possible to include a wide spectrum of specialised knowledge and interests, butdoes not relieve the legislator from the task of balancing these interests in finding a just equi-librium. Accordingly, the debate surrounding the current revision of the CA reflects mostlythe requests of private organisations and associations representing different interests.

412

SummarySummary

Swiss law does provide exceptions and limitations to copyright protection for libraries,archives and for educational and research purposes. Unless a copy is made for the personaluse first by the user himself, Swiss Law does only provide for very limited instances (e.g. forthe preservation of the work) the copying of the complete work or a substantive part there-of if the work to be copied is still available in the market. The exceptions and limitationsprovided do benefit libraries, archives and other institutions, including research institutions;apply to all such institutions regardless whether they are public or private, aimed for profitor non-profit. Harmonisation on an international level in this area is desirable. The currentlaw applicable in Switzerland should be reviewed with respect to broader access to orphanworks, allowance of multiple backup copies and a revised provision regarding the right forlibraries and archives to make available copies of copyrighted works to the users with with-out having to undergo a test, whether the relevant work (e.g. an article) constitutes the entirework or constitutes just an excerpt from a copyrighted work (e.g. a magazine).


413

I.)I.)

1)1)

TurkeyTurkey


in the name of the Turkey Groupby Korcan DERICIOGLU, Nihan GUNELI, Selin KALEDELEN, Emre Kerim YARDIMCI, Ekin

KARAKUS and Korcan DERICIOGLU


QuestionsQuestions




no

The Law on Intellectual and Artistic Works provides limitations and exceptions in relation tocopyrights. However, such limitations have not been regulated directly in relation to the useof libraries or archives. There are no specific exceptions, stipulated by the Law on Intellectualand Artistic Works, in relation to copyrights for libraries or archives.Only exception with regards to libraries and archives is the provision that is regulated by Ar-ticle 46 of the Law on Intellectual and Artistic Works:ÒÒRight of Use by the StateÓ:Art. 46. (Amendment: 1.11.1983 - 2936/10) The works, which are not published or publi-cized yet, the duplication and publication of which are not expressly prohibited by the ownerof the work and which are kept in public libraries, museums or similar organizations, belongto the public institutions or organizations they are kept by, provided that the term of protec-tion of financial rights has expired. The authority that the public organizations and institutionsand the persons and organizations who want to benefit from these for scientific and similarpurposes will receive permission from and the fees to be charged from these, the culturalpurposes that such fees will be spent for and the other matters are determined by the reg-ulations to be prepared by the Ministry of Culture after receiving the opinion of the relevantorganizations.Óa. reproduction and/or distribution for the purpose of preservation or replacement;The right to duplicate the original of a work belongs exclusively to the owner of the work(Art. 22 of the Law on Intellectual and Artistic Works). Duplication is making an exact copyof the original. Article 22/2 of the Law on Intellectual and Artistic Works exemplifies typesof duplication. Accordingly, making of a second copy of the original of the work as well asrecording the work on all kinds of media, now known or to be developed in the future, usedfor transfer or replay of signs, sounds and images are considered as duplication. Accordingto said provision, all kinds of sound and music recordings as well as the implementation ofthe plans, projects and sketches of the works of architecture are considered as duplication.Right of DistributionThe exclusive right and authority to release the original or copies of a work on the market inany way belongs to the owner of the work. Distribution can be made by various ways suchas sale, lease or lending. When a work is physically released on the market, act of distribu-tion is deemed materialized. Actions such as displaying or performing are not regarded asdistribution. Distribution, in general, takes place in pursuit of duplication. Nevertheless, thereis no obligation to duplicate before distribution. Distribution may be applicable to one singlecopy.

414

It is permitted to duplicate the works of others for personal use without pursuing profit andintending to distribute the same (Art. 38/1 of the Law on Intellectual and Artistic Works).

This issue has been regulated by Articles 7, 8 and 9[1] of the Regulations for the Libraries

of Ankara University, Articles 7, 12 and 13[2] of the Regulations for the Library and Doc-

umentation Department of Bosporus University, Article 22[3] of the Regulations of National

Libraries, Article 16[4] of the School Libraries Regulation of the Ministry of Education, Article

10[5] of the Principles and Procedures to be Implemented in Making Use of the National Li-brary Services.b. reproduction and/or distribution for the purpose of interlibrary lending;

There are regulations published by various libraries on this issue. Some of these include Reg-ulations for the Library and Documentation Department of Bosporus University, Regulationsfor the Library and Documentation Department of Galatasaray University and Regulationsfor the National Libraries.Pursuant to said regulations, materials can only be borrowed through libraries. Since there isno particular provision about duplication and distribution thereof, general provisions of theLaw on Intellectual and Artistic Works applies to the lending procedures between libraries.

c. reproduction and/or distribution for the purpose of providing copies (either in a phys-ical

or a digital form) to users of libraries or archives; or

Duplication manually or by a machine does not affect the outcome. For instance, painting apicture by hand, printing it out from a printer (from a machine) or making a photocopy areall regarded as types of duplication. Making an analogue work digital is also regarded as atype of duplication. Recording a work on a carrier material such as CD, DVD and hard diskis also a type of duplication.

Since the Law on Intellectual and Artistic Works does not particularly regulate copyright pro-tection for libraries and archives, general practice is also applicable here.

d. any other activities, and if so, what activities?

Although there is no specific rule in this respect stated in the legislation or in the regulations,according to the Law on Intellectual and Artistic Works, partial copies of books as hardcopies or in digital format may be shared, taking into account the rights of the owner of thework.

FootnotesFootnotes

1. ^ Reader services: Article 7- Restoring, preparing and putting manuscripts and rare works of art thatare present in the University libraries into use of readers are regulated by the principles determined bythe Board of Directors of the University. Article 8- All measures are taken to prevent users to take outmaterials from the Library without permission. Library users are responsible for using the lent materialsin good condition and returning the same on the specified dates. Article 9- Use of Library resources: a)Library does not lend the reference books such as encyclopedia, dictionary, atlas and the like, the boundperiodicals and latest issues of the same, manuscripts and rare printed works as well as other worksdetermined by the relevant units outside the library. Research on manuscripts and rare printed worksare subject to the permission of the library manager. b) Academic dissertations are not lent outside thelibrary. However, it is permitted make a copy of an entire academic dissertation within the unit, provid-ed that prior approval of the thesis supervisor or the author. Article 10- Members of the University mayborrow materials under the following rules: Instructors are allowed to borrow two Òbound periodicalsÓat the latest for one week. b) Conditions of lending reference books to instructors, students, administra-tive personnel and other users are determined by the unit manager upon the advice of unit libraries. c)Persons who hold unreturned due books and periodicals will not be lent any new ones.

415

a)

b)

c)

d)

2)2)

3)3)

2. ^ Article 7- Technical services include the following: c) Bookbinding and restoration: this includes thebookbinding and restoration of periodicals and worn-out books. This service is provided by the book-binding workshop. Article 12- Reference books such as encyclopedia, dictionary, atlas, etc., latest issuesof periodicals, non-printed master degree dissertations and manuscripts and rare printed works are notlent outside the library. Research on manuscripts and rare printed works are subject to permission. Arti-cle 13- Quantities of books and duration allowed to be borrowed by the university members are deter-mined by the rectory.

3. ^ Article 22- (1) The following rules apply in lending procedures: ç) Library materials, other than man-uscripts and rare works, reference books, materials often sought for by the users and latest issues of pe-riodicals, are lent free of charge. d) Users may borrow six materials at any one time, being three booksand three non-book materials. Duration of lending is limited to five days for books and seven days fornon-book materials. These quantities and duration may be increased by the library management uponthe application of users, but cannot be reduced.

4. ^ Article 16- Libraries provide Òlending servicesÓ in order to enable students, teachers, other personneland local people to make use of school libraries as intended and to enable students to make use oftheir spare times. At certain days and times of the week, libraries lend books to students, teachers, otherpersonnel and local people to be read outside the library. Lending dates and times are determined andannounced by the school headmasters upon consulting with the librarian or teacher librarian. Openingand closing times of the library for use after school hours and at weekends for boarding students shallbe determined according to the planning of the school management. However, the following are ex-empted from lending: a) reference books, b) books that are not available in the market, c) latest issuesof periodicals.

5. ^ Article 10- Procedures for making use of library services (4) Copying and similar duplication forcommercial purposes is not permitted, except for the circumstances stipulated by Article 38 of the Lawon Intellectual and Artistic Works No. 5846 of 5/12/1951. Microfilm requests of local and foreign re-searchers, universities and other scientific institutions are met by the microfilm department. Microfilmrequests are met in accordance with the provisions of the By-Law Regarding the Procedures and Princi-ples For Making Use of the Works Owned by Public Institutions and Organizations.






Since the Law on Intellectual and Artistic Works does not particularly regulate copyright pro-tection for libraries and archives, general practice is also applicable here.


In terms of duplication for personal use, place and means of duplication does not imposeany significance. For instance, duplication can be made in a photocopy shop or internetcafŽ, by making a hard copy or copying on a CD. Technology of the recorded unit is of noimportance either; duplication can be made as analogue or digital, on carrier materials suchas tape and CD or on the computerÕs hard drive.On the other hand, it is accepted that quantity of duplication for personal use should not ex-ceed a certain number of copies. In the doctrine, this number is set forth not to exceed one.In German law, the upper limit is seven copies. Quantity of duplication to be made for thepurpose of education in educational institutions such as schools and universities is limited tophysical demand. However, such duplication may not damage the legal interests of right-holders without a justified reason or may not be contradictory to the normal use of the work.

416

4)4)

5)5)

a)

In our legal system, the scope and limitations of duplication for personal use is not deter-mined definitively by law or court rulings. Provision of Article 38/1 of the Law on Intellectualand Artistic Works in terms of personal use is insufficient. For instance, Article 53 of the Ger-man Copyrights Law stipulates the matter in detail in seven paragraphs. In our legal system,only duplication and process of computer programs is regulated in detail (Article 38/2-7 ofthe Law on Intellectual and Artistic Works). Therefore, provisions of Article 38/1 of the Lawon Intellectual and Artistic Works do not apply to computer programs.The duplication through illustrations, graphics, photographs, etc., publication, demonstra-tion by projection at public places and broadcasting through radio-TV and similar media ofthe works of fine arts stationarily placed on the public roads, streets and avenues are al-lowed. This authority is exclusive only to the outer shape in the works of architecture (Article40/1 of the Law on Intellectual and Artistic Works).Unless a prohibitory record is clearly placed on them by their owners, the works of fine artscan be demonstrated at public places by their possessors or by others upon their approval(Article 40/2 of the Law on Intellectual and Artistic Works).


Provision which stipulates that duplication for personal use may not damage the legal inter-ests of right-holders without a justified reason or may not be contradictory to the normal useof the work is a definitive rule (Article 38/1 of the Law on Intellectual and Artistic Works). Inthis context, the following types of duplication cannot be deemed as personal use:-Copying an entire book or a large part of a book.- Using an illegal copy when duplicating. This is quite common in the internet, particularlyin peer to peer systems. However, duplication by a user for personal use, in circumstanceswhere the server does not clearly comply with the law, is not deemed legal. For instance,exceptions for personal use do not apply when a work, which has not been publicized yet, isdownloaded through the internet, since illegality is obvious.- Copying of the contents of a carrier material by way of removing or changing the passwordand similar codes on the carrier materials such as CDs and DVDs.


yes


yes

It is allowed to perform, directly and indirectly, the works that are publicized or pub-lished, in all education institutions for face-to-face education and training purposes,without aiming for profit (Article 33 of the Law on Intellectual and Artistic Works). Forinstance, a literary work may be read in literature classes, a video clip may be viewedin music classes. In order to benefit this freedom, the name of the owner of the workand the title of the work should be cited as usual. Such freedom may apply not only toschools but pre-school classes and the courses organized by the Municipalities. This isregardless whether the school is private or public. In our legal system, education institu-tions known as foundation universities are education channels organized by non-profitfoundations, although they are fee-paying schools. Therefore, libraries of foundationuniversities should be considered just like any other libraries.ÒÒFreedom to PerformÓ:

417

b)

c)

d)

e)

Art. 33 - Published works may be freely performed in all education and training in-stitutions for the purpose of face-to-face education and without directly or indirectlyaiming for profit, provided that the names of the owner of the work and the work areannounced in the customary manner.Ó


yes

For the selected or collected works, which are dedicated to education and training pur-poses, it is free to make quotations from other works (Art. 34/1 of the Law on Intel-lectual and Artistic Works). This freedom is limited to published musical, literary worksand works of fine arts that are publicized. Quotations should be made in an amountjustified by the purpose. For instance, 90% or all poems in a poetry book may not beused (11. Civil Chamber, 18.11.200, Case No. 7065(Decision No. 9425 Ð Suluk /Orhan, C. 2 536). This limitation is even narrower for technical and scientific works ascited in Article 2/1 b.3 of the Law on Intellectual and Artistic Works, works of fine artsas cited in Article 4/1 b.1 and photographic works and slides as cited in Article 4/1 b.5(Art. 34/1 of the Law on Intellectual and Artistic Works). Quotations in such works mayonly be made in order to explain the contents of the selected and collected works.This freedom also applies to (school radio) broadcasts made exclusively for schoolsand approved by the Ministry of Education (Art. 34/2 of the Law on Intellectual andArtistic Works).


yes

Art. 6 of the Law on Intellectual and Artistic Works; since translation, one of the maintypes of derivative work, requires creative efforts mainly as ability for empathy andstyle, they are protected as derivative works. On the other hand, routine translationworks such as menus and theatre programs and translations made through electronictranslation tools are not protected since they do not bear any individuality.


yes

Since Art. 33 of the Law on Intellectual and Artistic Works stipulates face-to-face con-dition, the participants of a class need to assemble in one location. When this article isconsidered in terms of providing access to or broadcasting of a work through internetor a closed computer network accessible only by students or using a work for purpos-es such as open learning, the intended effect with the Òface-to-faceÓ statement by thelaw-maker should be kept in mind.


yes

Quotations from a work are permitted, as a rule, in an independent work other thanselected and collected works for education and training purposes (Art. 35 of the Lawon Intellectual and Artistic Works). The law-maker introduced freedom of quotation forpublic interest, and scientific and cultural needs in order to express opinions. Freedom

418

f)

6)6)

7)7)

of quotation does not apply if quotation fails to serve any purpose and on the contrary,works or parts of works of others are quoted incoherently, or if they are of no relevancewith the central theme of the quoted work.Systematic of Article 35/1 of the Law on Intellectual and Artistic Works regarding quo-tation is as follows:á It is permitted to quote a few sentences or passages of a work that is publicized, butnot published or published, in an independent literary or scientific work. This is calledminor quotation.á Minor quotation is also permitted in compositions. It is free to incorporate certain el-ements of a published composition, at the most such as themes, patterns, passages orideas, into an independent musical work.á Major quotation is quoting some or all parts of a work. Such quotations are allowedin terms of scientific works for the purpose of contributing to scientific development andexplaining differences of opinion (Schricker / Schricker, Art.52 No: 31). However it isrequired to use quotations prominently and to the extent justified by such purpose.á It is free to display works of fine arts that have been publicized by projection or similarmeans in order to explain a subject at scientific conferences or lecturesá In minor or major quotations, the source of the quotation must be mentioned (Art.35/2 of the Law on Intellectual and Artistic Works. However, an unjustified major quo-tation violates the rights of the owner of the work even if the owner is mentioned.


yes

Some libraries transfer hard copies into digital media and provide their members withaccess to works through their data bases (see Library of Istanbul Bilgi University). Pur-suant to Art. 6 and Additional Art. 8 of the Law on Intellectual and Artistic Works, databases are protected as derivative works.


Said exceptions and limitations only cover the right to perform without pursuing profit and toduplicate for personal use.


According to Art. 38 of the Law on Intellectual and Artistic Works, it is possible to duplicateintellectual and artistic works for personal use without pursuing profit. There is no other ex-ception and limitation stipulated by law. In this context, personal use of works for educationpurpose has not been specifically regulated by legislation.However, in practice, it is seen that institutions apply special limitations and rules about theuse of works for this purpose within the framework of their own regulations. For instance,works may be duplicated in the number of students for education purposes in educationalinstitutions or only 10% of the works in libraries may be duplicated for education purposes.In this respect, detailed examples on the matter are given in answer 1.

419

8)8)

9)9)

10)10)

11)11)


In our legislation, exceptions and limitations have not been regulated according to the typeof work.



Within the scope of Article 34 of the Law on Intellectual and Artistic Works, it is free to createselected and collected works, made exclusively for schools and approved by the Ministry ofEducation, from previously published works for educational purposes.In addition to this, Turkish legislation also includes education institutions for disabled peoplein the scope of this exception. According to Article 11 of the Law on Intellectual and ArtisticWorks, ÒIt is permitted to duplicate or lend scientific and literary works in writing, includ-ing school books, which are publicized or published, without obtaining the permissions pre-scribed by this Law and without any commercial purpose in the form of cassettes, CDs, Braillealphabet, and similar formats by a person with disability for his/her own use or by anotherperson acting on behalf of him in a single copy, or by educational institutions, foundations,associations, and the like providing services for the benefit of the people with disability in thequantity required, provided that no such copies have already been produced for the use ofpeople with disability.Ó


Even though Three Stage Testing is not regulated in the Turkish Law, the Courts sometimesrefer to said three stage testing in their justified decisions. The late Turkish Draft Law on In-tellectual and Artistic Works which will take effect soon is expected to expressly ensure threestage testing.


Within the framework of Article 33 of the Law No. 5846, it is free to perform a publishedwork in all education and training institutions, without pursuing any profit.Furthermore, within the scope of Article 34 of the Law on Intellectual and Artistic Works, itis free to create selected and collected works from previously published works for educationand training purposes and this freedom also applies to broadcasts made exclusively forschools and approved by the Ministry of Education.Article 35 of the same prescribes that Òquotations from a published works are permitted foreducation purposesÓ. Said freedom of quotation stands for ÒquotingÓ.Lastly, according to Article 11 of the Law on Intellectual and Artistic Works, ÒIt is permittedto duplicate or lend scientific and literary works in writing, including school books, whichare publicized or published, without obtaining the permissions prescribed by this Law andwithout any commercial purpose in the form of cassettes, CDs, Braille alphabet, and similarformats by a person with disability for his/her own use or by another person acting on behalfof him in a single copy, or by educational institutions, foundations, associations, and the likeproviding services for the benefit of the people with disability in the quantity required, pro-vided that no such copies have already been produced for the use of people with disability.Ó

420

12)12)

13)13)

14)14)

15)15)

In the above-mentioned circumstance, the permission of the owner of the work is not re-quired. However, use of such works for the purposes other than education is subjected to thepermission of the owner of the work.


There is no regulation provided in legislation regarding the tariff to be paid in terms of limi-tations and exceptions for the rights of work in the libraries, archives and education/researchinstitutions, stated under the legislation. Then again, in terms of such exceptions within theframework of education and training purposes, the permission of the owner of the work isnot required.


There is no specific regulation within the scope of limitations and exceptions regarding Or-phan Works.


Financial rights regarding the relevant exceptions and limitations may be arranged by a con-tract. If financial rights are to be transferred by a contract, the rights to be transferred shouldbe in writing individually and clearly. Unless the rights to be transferred are shown separate-ly, the transfer shall not be valid.Moral rights, on the other hand, are deemed as being strictly exclusive to a person; they maynot be subject to transfer by contractual relation in any way.


yes

Article 42 of the Law on Intellectual and Artistic Works sets out regulations regarding theestablishment of professional unions. Professional union is an institution that bears the qual-ification of a civil law legal person engaging in activities, on behalf of its members whoare right holders, such as monitoring the use of works in various ways, looking after theright ownersÕ rights on the work, issuing permission contracts on behalf of its members, col-lect receivable charges, to distribute such revenues to the owners of the rights, taking legalactions to prevent unfair use, maintaining social solidarity between its members. In Turkey,organization structure of professional unions is determined according to the type of the own-ers of the artistic work. In this context, there are already 27 professional unions engaging incinema, music, science and literature, radio and television, fine arts and theatre, includingprofessional unions for musical works.Additionally, new draft law also includes regulations regarding Joint Licensing Union.However, structures such as private licensing organizations except for professional unions donot exist in our country.

421

II.)II.)

16)16)

17)17)

18)18)

19)19)

20)20)



no

The Law on Intellectual and Artistic Works does not provide any regulations regarding thelimitations and exceptions in relation to protection of the rights of artistic works for librariesand archives.Interpreting and practicing access to information in a broader sense, in particular, in publiclyavailable places such as education research centers, universities, libraries, and archives,compared to copyrights which is subject to contractual relations, fits for the purpose of es-tablishing the right of access to information and also looking after public interests.


no

Even though there is no explicit provision in the Law on Intellectual and Artistic Works re-garding limitations and exceptions on the protection of rights of work for the education andtraining institutions; there are four types of limitations for use for education purposes. Theselimitations and exceptions are explained in Article 11. In this context, although it is not re-quired to introduce any additional specific regulations to the current limitations and excep-tions, an explicit provision stating that these limitations and exceptions may be applicable toeducation and training institutions will eliminate any uncertainties.


yes

When limitations and exceptions for the protection of the rights of work are considered interms of use by the Libraries, Archives and Education / Training Institutions, evaluation withinthe framework of Three Stage Testing is applicable. However, when inclusion in legislationin addition to current practice is brought to agenda, new legislation should be set forth in aflexible structure so as to enable the regulation to cover all work types and to be enforceablein terms of possibly new work types to emerge in future.


Current regulations protect the rights of the owner of a work in compliance with the law.Therefore, no new regulations are required on the issue.


Since there is no regulation in Turkish Law regarding the limitations and exceptions for therights of work at the Libraries, Archives and Education / Training Institutions, there is no reg-ulation on the tariffs to be paid either. It should be shaped according to the particulars ofeach present case.

422

21)21)

III.)III.)

22)22)

23)23)

24)24)

a)

b)

c)


Directive suggests all member states to make amendments in their national laws for the rel-evant issues regulated. Turkey is not a member state to the EU, and yet it became a partyto the Bern Convention with the Law No. 5777 in 1951, to WIPO in 1974 and to the TRIPSAgreement in 1995 with the Law No. 4067. Turkey has amended the Law on Intellectualand Artistic Works in 1995, 2001 and 2004 within the transposition of the acquis commu-nautarie. Similarly, it is possible to work on the harmonization with said Directive and ThreeStage Testing and enable the Law on Intellectual and Artistic Works to comply with these reg-ulations.



yes

Studies to introduce the same rights in Turkey, in comparison with the practice in the Euro-pean countries, and studies for harmonization to achieve uniformity are welcomed.



yes

As mentioned above, Turkey became a party to the Bern Convention with the Law No. 5777in 1951, to WIPO in 1974 and to the TRIPS Agreement in 1995 with the Law No. 4067.However, these agreements do not include any regulations on the limitations and exceptionsfor the rights of work at Libraries, Archives and Education/Training Institutions. If an agree-ment or a convention is prepared regarding such limitations, it is considered that it will bebeneficial to join in such agreements or to adopt the agreement in the national law, provid-ed that they adopt terms and conditions which comply with the Turkish law and the publicorder.



N/A


N/A


N/A

423

25)25)

a)

b)

c)

26)26)

27)27)

28)28)



N/A


N/A


N/A



These freedoms, regulated by law, may not be exercised in a way so as to damage the legalinterests of the owner of the right without a justified reason or be contradictory to the normaluse of the work. Use of the work for any other purposes except for education and trainingpurposes is subject to permission of the owner of a work. In all such circumstances, name ofthe work and of the owner of the work should be stated.In this framework, no special permission is required for the limitations and exceptions re-garding the rights of work in terms of Libraries, Archives and Education / Research Institu-tions and such limitations and exceptions can be directly implemented as long as the legalregulations allow. There is no need to make any amendments or to add any special criteria.


There is no specific regulation regarding the tariffs to be paid for the limitations and excep-tions regarding the rights of work in Libraries, Archives and Education / Research Institutions;the parties decide and agree on the amount of tariffs, mode of payment, receiver of the pay-ment, etc. in accordance with the particulars of the present case.


There is no specific exception in the Turkish Law for the use of orphan works at Libraries,Archives and Education/Training Institutions. One of the problems for orphan works is thatdifferent institutions and authorities approach orphan works with different ways and methodsand, consequently, there is no standardization.The European Union has prepared the directive number 2012/25/EU for the purposes ofprotecting EuropeÕs cultural heritage and providing access in digital media. It is suggestedto harmonize a similar regulation in the Turkish Law. Any kind of measures which provideharmonization will increase the effectiveness of the system in terms of orphan works.

424

29)29)

30)30)


Within the framework as explained in detail in question 14, even though the financial rightsare handled within the scope of contractual relations, moral rights may not be subject to con-tractual relations. Current regulations also serve the purpose of protection of the personalrights of the owners of the work; therefore, current regulations and practice are to the point.


Although limitations and exceptions made for Libraries, Archives and Education/Training In-stitutions are not regulated by law, group is not aware of any special studies conducted byprivate institutions and cannot reach any such studies in this respect. Having said that, Article42 of the Law on Intellectual and Artistic Works sets out regulations regarding establishmentof professional unions. Professional union is an institution that bears the qualification of acivil law legal person engaging in activities, on behalf of its members who are right holders,such as monitoring the use of works in various ways, looking after the right ownersÕ rights onthe work, issuing permission contracts on behalf of its members, collect receivable charges,to distribute such revenues to the owners of the rights, taking legal actions to prevent unfairuse, maintaining social solidarity between its members. In Turkey, organization structure ofprofessional unions is determined according to the type of the owners of the artistic work.Since the required regulations regarding the establishment and the conditions of operationof the professional unions are set out by law, it is considered that studies to be made by suchunions will be approved in practice. And additionally, ÒSpotifyÓ may be considered in Turkeyto establish a precedent in terms of infrastructure for a Òcollecting societyÓ which is projectedto be actually established.

SummarySummary

The Revised Berne Convention (RBC) and the WIPO Copyright Treaty (WCT) have been rat-ified by Turkey and the minimal obligations imposed by the above-mentioned internationalinstruments have already been implemented. In addition, the Ministry of Culture and Tourismis currently undertaking a comprehensive amendment of the current legislation and drafteda bill.However, it has to be noted that the exceptions and limitations regarding the copyright issuesare currently governed in a general sense in Turkish legislation. Therefore, it is only possibleto discuss the exceptions and limitations to be applied for libraries, archives and educationaland research institutions through interpretation.The Turkish National Group considers that these exceptions and limitations are suitable tohold the balance between the interest of the public and copyright owners in the digital in-dustry. These exceptions and limitations shall not be extended or differentiated except in verylimited circumstances. However, it would be beneficial to define the frame and componentsof these industries in order to facilitate the interpretation regarding their unique nature andcharacteristics.


425

I.)I.)

1)1)

a)

United KingdomUnited Kingdom


in the name of the United Kingdom Groupby Ashley ROUGHTON, Alisa KHOZINA, Professor Lionel BENTLY, Penelope THORNTON, Cam

GATTA and Jonathan D.C. TURNER


QuestionsQuestions




yes


yes

General introductory comments, relevant to all our answers:General introductory comments, relevant to all our answers:In these answers the current law is governed by the United Kingdom Copyright, De-signs and Patents Act 1988 (as amended from time to time) - the CDPA. A referenceto a section number alone is a reference to the corresponding provision of the CDPA.The part of the CDPA which govern libraries and so on are governed by sections 40A-44A. The general scheme is as follows:

SectionSection Short titleShort title AnswerAnswer Brief referenceBrief reference

40A. Lending of copies by libraries or archives. A1.c(I). lending.

40B.Libraries and educational establishments etc: mak-ing works available through dedicated terminals.

A1.c(II).dedicated termi-nal.

41.Copying by librarians: supply of single copies toother libraries.

A1.b.single copy sup-ply.

42.Copying by librarians etc: replacement copies ofworks.

A1.a.replacementcopy.

42A.Copying by librarians: single copies of publishedworks.

A1.c(III). published works.

43.Copying by librarians or archivists: single copies ofunpublished works.

A1.c(IV).unpublishedworks.

43A. Sections 40A to 43: interpretation. Intro.

44.Copy of work required to be made as condition ofexport.

Ð

44A. Legal deposit libraries. A1.d. legal deposit.

Definitions:Definitions:AA librarylibrary is defined in a dictionary sense as a building, room or place (including cyber-space) containing collections of books, periodicals, and sometimes films and recordedmusic for use or borrowing by the public or the members of an institution. Likewise

426

b)

an archive (though undefined in our national legislation) is a collection (and a placewhere such a collection is housed or situate) of historical documents or records provid-ing information about a place, institution, or group of people.A reference to a library is to a library which is publically accessible (s43A(2)(a)) or alibrary of an educational establishment (s43A(2)(b)). A reference to a museum includesa gallery (s43A(3)). A body being conducted for profit includes a body which formspart of or is administered by a body conducted for profit (s43A(4)). A reference to alibrarian, archivist or curator includes a person acting on their behalf (s43A(5)).The expression ÒexceptionexceptionÓ is an exception to the law of copyright where the acts sanc-tioned by the CDPA are otherwise copyright infringing under the CDPA. These answersdo not provide any guidance as to whether other rights are infringed or other acts (notbeing related to libraries and archives) are excepted from infringement.We believe that the word ÒitemitemÓ appearing in s42 is of the widest ambit and includesa work of any type.Finally Òdepositdeposit librarylibraryÓ means the authorities controlling the British Library, the Na-tional Library of Scotland, the National Library of Wales, the Bodleian Library, Oxford,the University Library, Cambridge and the Library of Trinity College, Dublin and "rel-evant material" means a copy delivered to a deposit library of a work published in amedium other than print, a copy of a computer program and information necessary toaccess it or a copy (at any remove) of that copy.Answer (a): (s42 - replacement copy exception)Answer (a): (s42 - replacement copy exception)A librarian or archivist may, subject to conditions, make a copy of, i.e. reproduce, anitem held in the institutionÕs permanent collection, provided that:-i. the making of the copy is done in order to preserve or replace an item in the collec-tion orii. the making of the copy is done in order to preserve or replace an item in the collec-tion of another library or archive where that other, receiving, library or archive is notconducted for profit and it has lost its copy of the same work or it has been destroyedor damaged.The conditions are:(1) that the originating item is kept on the premises of that part of the collection of theinstitution which is wholly or mainly for reference purposes, is in a closed collection, oris only for inter-library or inter-archive loan and(2) that it is not reasonably practicable to purchase a copy of the item in order toachieve the objects stated in a.i and a.ii above.Finally any charge made for the making of the necessary copy made by the originatinglibrary or archive to the receiving library or archive must not exceed the reproductioncharge.


yes

b. (s41 - single copy supply exception)b. (s41 - single copy supply exception)A librarian may, subject to conditions, make a single copy of the whole or part ofa published work and supply it to another library, without infringing copyright in thework.The conditions are-(1) the copy is supplied in response to a request from a library (which is not conductedfor profit) for a copy of the work, and(2) (where the work is not an article in a periodical) at the time of making the copy thelibrarian does not know, or could not reasonably find out, the name and address of aperson entitled to authorise the making of a copy of the work.Finally any charge made for the making of the necessary copy made by the parentlibrary or archive to the receiving library or archive must not exceed the reproductioncharge.

427

c) reproduction and/or distribution for the purpose of providing copies (either in a physi-cal or a digital form) to users of libraries or archives; or

yes

(1) (s40A - lending exception)(1) (s40A - lending exception)Any person acting for or on behalf of a public library (i.e. a library which is run by astate designated library authority) and in relation to a certified book (i.e. a book whichis certified by the said state designated library authority), audio book or e-book, be-ing certified by the state as being a work which is deemed part of a state specifiedpublic lending scheme or in relation to a not-for profit library or archive other than apublic library may lend any book without infringing any copyright of any work in thatbook. Any copy of any audio book or e-book may also be lent without infringing anycopyright of any work in that other kind of work and in addition the making of any in-cidental copy, incidental to the lending of the audio book or e-book is also permitted.Further there is no infringement where copies of the book etc. are lent by a library orarchive (other than a public library) which is not conducted for profit. By lending it ismeant making available to a member of the public for use away from library premisesfor a limited time, but does not include being communicated by means of electronictransmission to a place other than library premises, and ÒloanÓ and ÒborrowedÓare tobe read in the same way.(2)(2) (s40B - dedicated terminal exception)(s40B - dedicated terminal exception)Copyright in a work is not infringed by a library, an archive, a museum or an edu-cational establishment communicating a work to the public or making it available tothe public by means of a dedicated terminal on its premises (and digitising any spe-cific work held by it for that purpose - wholesale digitization would not be allowed- see Case C-117/13 Technische Universitat Darmstadt v. Eugen Ulmer KGECLI:EU:C:2014:2196; [2014] E.C.D.R. 449, C.J.E.U.), provided that the work or acopy of the work has been lawfully acquired by the library or archive, is communicatedor made available to individual members of the public for the purposes of researchor private study, and is communicated or made available in compliance with any pur-chase or licensing terms to which the work is subject.(3) (s42A - published works exception)(3) (s42A - published works exception)A librarian (but not archivist) of a not-for-profit library may, subject to conditions, makeand supply a copy of, i.e. reproduce a single copy of the whole or part of a work whichwas published or which appeared in any one issue of a periodical before the date ofany request for such a copy, provided that the copy is supplied in response to a requestfrom a person who has provided the librarian with a written declaration which includescertain information (see below) and where the librarian is not aware of the declarationbeing false in any material particular.The information required in the declaration is : (1) the name of the requesting partyand the identity of the required material or part thereof and (2) declarations that (i) thesaid material or part thereof has not previously been supplied to the requestor by anyother library, (ii) the requestor requires the copy for non-commercial research purposesor private study, (iii) the requestor will only used the supplied copy for the purposes setout in the previous declaration, (iv) to the requestorÕs knowledge no person with whomthe requestor works or studies has made or intends to make at about the same timeas the request, a request substantially for the same material for substantially the samepurpose.Finally any charge made for the making of the necessary copy made by the parentlibrary or archive to the receiving library or archive must not exceed the reproductioncharge.(4) (s43 - unpublished works exception)(4) (s43 - unpublished works exception)A librarian or archivist may, subject to conditions, make and supply a copy of the wholeor part of a work unless before being deposited in the library or archive the librari-an knew or ought to have been aware of the fact that the work had been published

428

d)

or communicated to the public or that the author of the work had prohibited copying,provided that the copy is supplied in response to a request from a person who has pro-vided the librarian with a written declaration which includes certain information (seebelow) and where the librarian is not aware of the declaration being false in any ma-terial particular.The information required in the declaration is : (1) the name of the requesting partyand the identity of the required material or part thereof and (2) declarations that (i) thematerial or part thereof has not previously been supplied to the requestor by any oth-er library or archive, (ii) the requestor requires the copy for non-commercial researchpurposes or private study, (iii) the requestor will only used the supplied copy for thepurposes set out in the previous declaration.Finally any charge made for the making of the necessary copy made by the parentlibrary or archive to the receiving library or archive must not exceed the reproductioncharge.


yes

d.d. CopiesCopies ofof aa workwork maymay bebe takentaken fromfrom thethe internetinternet byby aa depositdeposit librarylibrary oror personpersonacting on its behalf if-acting on its behalf if-(a) the work is published in a medium other than print, published on or off line, but notincluding (1) works consisting only of a sound recording or film or both, or such mate-rial and other material which is merely incidental to it (2) works which contain personaldata and which are only made available to a restricted group of persons or (3) works

which were published before the 6th of April 2013.(b) its publication on the internet, or a person publishing it there, is connected with theUnited Kingdom if (1) it is made available to the public from a website with a domainname which relates to the United Kingdom or to a place within the United Kingdomor (2) it is made available to the public by a person and any of that personÕs activi-ties relating to the creation or the publication of the work take place within the UnitedKingdom. However a work published on line shall not be treated as published in theUnited Kingdom if access to the work is only made available to persons outside theUnited Kingdom.(c) the copying is otherwise done in accordance with any conditions so prescribed,which are highly complex. The rules are:-

(i) Where terminal access is made available by a deposit library then it must ensurethat only one computer terminal is available to readers to access the same relevantmaterial at any one time.

(ii) In the case of relevant material which is work published on line, at least sevendays must elapse from the date of delivery of that relevant material to the deposit li-brary before a reader may be permitted to view it.

(iii) A copyright owner, in relation to relevant material, may make a request in writ-ing to a deposit library to withhold access to that relevant material from readers fora specified period of time, provided that (a) the period specified in the request doesnot exceed three years from the date on which the request is made and (b) the depositlibrary is satisfied on reasonable grounds that, for the period specified in the request,viewing of the relevant material by a reader would, or would be likely to, unreasonablyprejudice the interests of the person making the request.

(iv) A deposit library may make and supply for use on its premises accessible copiesof relevant material, other than if it is a database in which copyright subsists, for a visu-ally impaired person if copies of the relevant material are not commercially availablein a form that is accessible to the visually impaired person. But:-

(I) A deposit library must ensure that only one reader uses an accessible copyof the same relevant material made under this regulation at any one time.

(II) An accessible copy made above must be accompanied byÑ

429

(a) a statement that it is made under the relevant rules; and(b) a sufficient acknowledgement.

(III) A deposit library entitled to make accessible copies may hold an interme-diate copy of the relevant material which is necessarily made during the production ofthe accessible copies, but onlyÑ

(a) if and so long as the deposit library continues to be entitled to makeaccessible copies of that relevant material; and

(b) for the purposes of the production of further accessible copies.(III) A deposit library may lend or transfer the intermediate copy to another de-

posit library which is entitled to make accessible copies of the relevant material provid-ed that the intermediate copy is used only for the purposes of the production of furtheraccessible copies.

(IV) A deposit library mustÑ(a) keep records of accessible copies made under this regulation and of the

persons to whom they are supplied;(b) keep records of any intermediate copy lent or transferred under this reg-

ulation and of the deposit libraries to whom it is lent or transferred;(c) allow a copyright owner or a person acting for a copyright owner, on

giving reasonable notice, to inspect the records at any reasonable time.(IV) Within a reasonable time of making an accessible copy or lending or trans-

ferring an intermediate copy, the deposit library must notifyÑ(a) each representative body; or(b) if there is no such body, the copyright owner.

(V) A representative body is a body whichÑ(a) represents particular copyright owners, or owners of copyright in the type

of copyright work concerned; and(b) has given notice to the relevant government minister of the copyright owners,

or the classes of copyright owner, represented by it.(VI) The requirement to notify the copyright owner does not applyÑ

(a) if it is not reasonably possible for the deposit library to ascertain the nameand address of the copyright owner; or

(b) (where there is more than one copyright owner of the work to which thenotification relates) in respect of those persons for whom it is not reasonably possiblefor the deposit library to ascertain their names and addresses.

(v) A deposit library may, if the following conditions are met, produce and supplyto a person a copy of relevant material. Those conditions are thatÑ

(a) in relation to relevant material in which database right does not subsist,the deposit library is satisfied that the copy is required by that person for the purposesof non-commercial research or private study, criticism or review or reporting currentevents, parliamentary or judicial proceedings or a Royal Commission or statutory in-quiry and will not be used for any other purpose,

(b) in relation to relevant material in which database right subsists, the depositlibrary is satisfied that the copy is required by that person for the purposes of parlia-mentary or judicial proceedings or a Royal Commission or statutory inquiry and willnot be used for any other purpose,

(c) that person has delivered to the deposit library a signed declaration inwriting in relation to the relevant material substantially in accordance with the Form inthe Schedule to these Regulations and

(d) in relation to a copy of relevant material required for the purposes ofnon-commercial research or private study, the deposit library is satisfied that the re-quirement of the person requiring the copy is not related and similar to that of anotherperson; requirements shall be regarded as similar if the requirements are for copies ofsubstantially the same relevant material at substantially the same time and for substan-tially the same purpose and requirements of persons shall be regarded as related ifthose persons receive instruction to which the relevant material is relevant at the sametime and place.

430

2)2)

(vi) Where the relevant material is capable of being supplied in print, a deposit li-brary must supply a copy of the relevant material in print unless the copyright owner ordatabase right owner (as the case may be) has given permission for a copy to be sup-plied in a medium other than print in which case it may be supplied in that medium.

(vii) Where the relevant material is not capable of being supplied in print, a depositlibrary may only supply a copy of the relevant material in a medium other than printif the copyright owner has given permission for the deposit library to supply a copy inthat medium.

(viii) In relation to a copy of relevant material required for the purposes of non-commercial research or private studyÑ

(a) a deposit library must not supply a person with more than one copy of thesame relevant material,

(b) the copy of the relevant material supplied by a deposit library must notrepresent more than a reasonable proportion of the relevant material of which theelement copied forms a part and

(c) if the relevant material being copied is an article in a periodical, a depositlibrary must not supply a person with more than one copy of that article or more thanone article contained in the same edition of that periodical.

(ix) The person requiring the copy of the relevant material is required to pay forthat copy a sum not less than the cost (including a contribution to general expenses)attributable to its production.

AA depositdeposit librarylibrary maymay copycopy relevantrelevant materialmaterial ifif thethe copycopy isis mademade (whether(whether fromfrom thetherelevantrelevant materialmaterial itselfitself oror fromfrom aa copycopy mademade byby thethe depositdeposit librarylibrary byby virtuevirtue ofof thisthisregulation) in orderÑregulation) in orderÑ

(a) to preserve or replace the relevant material by placing the copy in the per-manent collection in addition to or in place of the relevant material or

(b) to replace the relevant material in the permanent collection of another de-posit library if that relevant material has been lost, destroyed or damaged.A copy may be made in a different medium or format from the relevant material ifthe deposit library considers the change is necessary or expedient for the purpose forwhich the copy is made.A deposit library may adapt relevant material if the adaptation is made (whether fromthe relevant material itself or from a copy made by the deposit library for the followingpurposesÑ

(a) to preserve or replace the relevant material by placing the adaptation inthe permanent collection in addition to or in place of the relevant material or

(b) to replace the relevant material in the permanent collection of anotherdeposit library if that relevant material has been lost, destroyed or damaged.An adaptation may be made in a different medium or format from the relevant mater-ial if the deposit library considers the change is necessary or expedient for the purposefor which the adaptation is made.


The libraries, archives or other organizations (as defined above) entitled to the benefit of theexceptions are set out in the answer to Q2 above and summarised below.

ExceptionException SectionSection BeneficiariesBeneficiaries

lending.s40A &s36A

Public libraries and educational establishments and not for profitlibraries but not other institutions.

dedicated terminal. s40B. Libraries, archives, museums and educational establishments.

single copy supply. s41. A librarian of a library but not to other individuals or institutions.

431

3)3)

4)4)

ExceptionException SectionSection BeneficiariesBeneficiaries

replacement copy. s42.Librarians of libraries, curators of museums or archivists ofarchives but not to other individuals or other institutions.

published works. s42A. A librarian of a library but not to other individuals or institutions.

unpublished works. s43.Librarians of all libraries and archivists of archives but not toother institutions.

legal deposit. S44A. The Deposit libraries or person acting on their behalves.


The scope of permitted activities are set out in the answer to Q1 above and summarised be-low.

ExceptionException SectionSection ScopeScope

lending. s40A. No limitation.

dedicated terminal. s40B. Digital reproduction only.

single copy supply. s41.Make and supply a single copy of whole or part of work but ex-cluding the copying of an article in a periodical.

replacement copy. s42.Make and supply a copy of the item to be replaced or pre-served.

published works. s42A.Make and supply a single copy of an article in a periodical or areasonable proportion of any other published work.

unpublished works. s43. Make and supply a single copy of the whole or part of a work.

legal deposit. s44A. No limitation.


The scope of any conditions as to the type of copyrighted work that may be used are set outin the answer to Q1 above and summarised below.


lending. s40A.It must be a book (including audio book or e-book) declared bythe government to be part of a statutory scheme called thepublic lending right scheme.

dedicated terminal. s40B.The work or a copy of thereof must have been lawfully acquiredby the institution.

single copy supply. s41. No limitation.

replacement copy. s42.

The work to be copied and must have been (1) included in thepart of the collection kept wholly or mainly for the purposes ofreference on the institution's premises, (2) included in a part ofthe collection not accessible to the public or (3) available onloan only to other libraries, archives or museums. Finally itmust not have been reasonably practicable to purchase a copyof the item to achieve the replacement purpose.

published works. s42A.All Published works (limited to one article in any one issue of aperiodical or a reasonable proportion of any other publishedwork) - published before a request is made for the copy.

432


unpublished works. s43.

All unpublished works - unpublished before a request is madefor the copy. If the work had been published or communicatedto the public before the date it was deposited in the library orarchive or the copyright owner has prohibited the copying ofthe work then a copy may be still be made and supplied unlessand at the time of making the copy the librarian or archivist isor ought to be aware of those facts.

Education and research institutionsEducation and research institutionsIn these answers the current law is governed by the CDPA. The part of the CDPA which gov-ern education and research institutions and so on are governed by sections 29-30 and 32-36A. The general scheme is as follows:

SectionSection Short titleShort title AnswerAnswer ExceptionException

29 Research and private study.A5.eA5.f

researchprivate study.

29A.Copies for text and data analysis for non-commercialresearch.

A5.ftext analysis.data analysis.

30. Criticism, review, quotation and news reporting. A5.f

criticism.review.quotation.news reporting.

32. Illustration for instruction. A5.b(I) illustration.

33. Anthologies for educational use. A5.b(ii) anthologies.

34.Performing, playing or showing work in course of ac-tivities of educational establishment.

A5.aperforming, play-ing or showing.

35.Recording by educational establishments of broad-casts.

A5.b(iii)A5.d

broadcasts.

36.Copying and use of extracts of works by educationalestablishments.

A5.b(iv)A5.d

extracts.

36A. Lending of copies by educational establishments. Ð lending.

A reference to an educational establishment means (a) any school, and (b) any other de-scription of educational establishment specified by the government minister being any uni-versity empowered by Royal Charter or Act of Parliament to award degrees and any college,or institution in the nature of a college, in such a university, (c) any institution in Englandand Wales which provides a course of any prescribed description, (d) any higher educationinstitution in Scotland, (e) any institution in Northern Ireland which provides a course of anyprescribed description or any institution in Northern Ireland which is a college of education,(f) any institution in England and Wales, Scotland or Northern Ireland the sole or main pur-pose of which is to provide further education, and (g) any theological college. A school inrelation to England and Wales, means an educational institution which is outside the furthereducation sector and the higher education sector and is an institution for providing primaryeducation, secondary education, or both primary and secondary education, whether or notthe institution also provides part-time education suitable to the requirements of junior pupilsor further education. In relation to Scotland, school means an institution for the provision ofprimary or secondary education or both primary and secondary education being a publicschool, a grant-aided school or an independent school, and includes a nursery school anda special school but does not include an establishment or residential establishment providedfor social security purposes. In relation to Northern Ireland a school means an institution forproviding primary or secondary education or both primary and secondary education, beinga grant-aided school or an independent school.A reference in relation to an educational establishment toÒteacherÓ and ÒpupilÓ include, re-spectively, any person who gives and any person who receives instruction.

433

5)5)

a)

b)


yes


yes

(s34 - playing, performing or showing exception)(s34 - playing, performing or showing exception)So far as concerns performance for educational purposes, the performance of a liter-ary, dramatic or musical work before an audience consisting of teachers and pupils atan educational establishment and other persons directly connected with the activitiesof the establishment (a person is not take to be directly connected with the activities ofthe educational establishment simply because that person is the parent of a pupil atthe establishment) (a) by a teacher or pupil in the course of the activities of that estab-lishment or (b) at the establishment, by any person for the purposes of instruction doesnot amount to an infringement of copyright arising by way of a public performance.Further the playing or showing of a sound recording, film or broadcast before suchan audience at an educational establishment for the purposes of instruction is not aninfringement of copyright arising by way of a public performance. Infringement may,however arise in other circumstances such as distributing recordings of such perfor-mances.


yes

(i) (s32 - instruction exemption)(i) (s32 - instruction exemption)The fair dealing of any work by means of illustrating an idea or concept (though thisis not intended to be limiting - the overarching purpose is instruction) for the purposeof instruction (including exam setting and communicating questions and answers topupils), such as power point or prezzie presentation to a class for example, for thatsole purpose does not infringe copyright in the work provided that the dealing is (a)non-commercial, (b) by a person giving or receiving instruction (or preparing for thosethings), and (c) there is sufficient acknowledgment (unless this would be impossible forreasons of practicality or otherwise).(ii) (s33 - anthology exception)(ii) (s33 - anthology exception)The inclusion of a short passage from a published literary or dramatic work in a col-lection, consisting mainly of material in which no copyright subsists and which (a) is in-tended for use for the educational purposes of an educational establishments and is sodescribed in its title, and in any advertisements issued by or on behalf of the publisherand (b) consists mainly of material in which no copyright subsists, does not infringe thecopyright in the work if the work itself is not intended for use in such establishmentsand the inclusion is accompanied by a sufficient acknowledgment. However what is notauthorised is the inclusion of more than two excerpts from copyright works by the sameauthor in collections published by the same publisher over any period of five years.Further in relation to any given passage the reference to excerpts from works by thesame author (a) shall be taken to include excerpts from works by him in collaborationwith another, and (b) if the passage in question is from such a work, shall be taken toinclude excerpts from works by any of the authors, whether alone or in collaborationwith another. We comment that this section is unlikely to be of any real utility; for in-stance it is highly unlikely that there would ever be a work which Òconsists mainly ofmaterial in which no copyright subsists.Ó(iii) (s35 - broadcast exception)(iii) (s35 - broadcast exception)

434

c)

d)

A recording of a broadcast, or a copy of such a recording, may be made by or on be-half of an educational establishment for the educational purposes of that establishmentwithout infringing copyright in the broadcast, or in any work included in it, providedthat (a) the educational purposes are non-commercial, and (b) the recording or copyis accompanied by a sufficient acknowledgment (unless this would be impossible forreasons of practicality or otherwise). Further, copyright is not infringed where a record-ing of a broadcast or a copy of such a recording is communicated by or on behalf ofthe educational establishment to its pupils or staff for the non-commercial educationalpurposes of that establishment. However so far as concerns a communication receivedoutside the premises of the establishment then the exception only applies if that com-munication is made by means of a secure electronic network accessible only by theestablishment's pupils and staff. Finally if licences are available authorising the acts inquestion and the educational establishment responsible for those acts knew or oughtto have been aware of that then the exception does not apply. If a copy is subsequent-ly sold or let for hire, offered or exposed for sale or hire, or communicated otherwisethan as permitted than that is an infringing act.(iv) (s36 - extracts exception)(iv) (s36 - extracts exception)Copying of extracts of a relevant work (being a copyright work other than a broadcast,or an artistic work which is not incorporated into another work) where the copy is madefor the purposes of instruction for a non-commercial purpose, and the copy is accom-panied by a sufficient acknowledgment (unless this would be impossible for reasonsof practicality or otherwise) by or on behalf of an educational establishment does notinfringe copyright in the work. Further, copyright is not infringed where a copy of anextract made above is communicated by or on behalf of the educational establishmentto its pupils or staff for the purposes of instruction for a non-commercial purpose. How-ever this exception only applies if that communication is made by means of a secureelectronic network accessible only by the establishment's pupils and staff outside thepremises of the establishment. The copying of an ÒextractÓ is defined as an act of copy-ing where not more than 5% of a work (where a work which incorporates another workbeing treated as a single work) is copied by or on behalf of an educational establish-ment in any period of 12 months. Finally if licences are available authorising the actsin question and the educational establishment responsible for those acts knew or oughtto have been aware of that then the exception does not apply. If a copy is subsequent-ly sold or let for hire, offered or exposed for sale or hire, or communicated otherwisethan as permitted than that is an infringing act.


yes

The making of a translation of a work is an infringing act. No specific provision existsfor exceptions to copyright works so far as concerns translation. However the fair deal-ing for the purposes of illustration for instruction for non-commercial purposes (s 32)would be wide enough to include translations made for such purposes.


yes

(ss 35 & 36 - broadcast and extract exception)(ss 35 & 36 - broadcast and extract exception)the broadcast and extract exceptions (and no other) also apply to communications re-ceived outside the premises of the establishment if those communications are made bymeans of a secure electronic network accessible only by the establishment's pupils andstaff.

435

e)

f)

6)6)

7)7)


yes

(s29 - research exception)(s29 - research exception)reproduction, distribution or both for research purposes is permitted. The extent of thereproduction or distribution must be fair, which is a matter of fact dependant uponthe individual circumstances of each case. The research must be for a non-commercialpurpose and the copied work must be accompanied by a sufficient acknowledgmentunless it is impossible to make the acknowledgment (whether for reasons of practicalityor otherwise).It is not fair dealing:-(i) for a person other than a researcher himself or a student himself, where that personis a librarian carried out an act not permitted by s42A or in any other case, the persondoing the copying knows or has reason to believe that it will result in copies of sub-stantially the same material being provided to more than one person at substantiallythe same time and for substantially the same purpose,(ii) to convert a computer program expressed in a low level language into a versionexpressed in a higher level language, or incidentally in the course of so converting theprogram, to copy it or(iii) to observe, study or test the functioning of a computer program in order to deter-mine the ideas and principles which underlie any element of the program


yes

There are other excepted activities, being s29 - fair dealing for the purposes of non-commercial (direct or indirect) private study, s29A - the copying, with sufficient ac-knowledgment, of anything for the purposes of non-commercial research by way ofcomputational analysis and s30 - fair dealing, with sufficient acknowledgment, for thepurposes of criticism, review or quotation.


The exceptions apply to educational institutions as extensively defined above. There is noconcept (and, we submit, no need for such a concept) of a research institution so far as con-cerns copyright exceptions under the laws of the United Kingdom.


There are conditions as to the type or scope of the activities and the persons who may en-gage in such activities. Those conditions are explained as follows:-

ExceptionException SectionSection Type and scope of activities.Type and scope of activities.


29. Fair Dealing. No limitation on who.

text analysis.data analysis.

29A.Only to making enough of a copy with a sufficient acknowledgmentto enable text and data analysis for non-commercial research. Nolimitation on who.

436

8)8)

ExceptionException SectionSection Type and scope of activities.Type and scope of activities.


30. Fair dealing. No limitation on who.

instruction. 32. Fair dealing - limited to a person giving or receiving instruction.

anthologies. 33.Inclusion of short passage in a work intended for use in an educa-tional establishment. No limitation on who.

performing,playing or show-ing.

34.Performing, playing or showing work in course of activities of educa-tional establishment before teachers and pupils and other personsconnected directly. No limitation on who.

broadcasts. 35.Non-commercial recording of broadcasts for educational purposes ofan educational establishment, with a sufficient acknowledgment. Mayonly be done for or on behalf of that educational establishment.

extracts. 36.Copying and use of extracts of works for the purposes of non-commercial instruction. May only be done for or on behalf of an edu-cational establishment.

lending. 36A. Lending of copies by educational establishments.


There are conditions as to the type of copyrighted work that may be used, as follows:-ExceptionException SectionSection Type of work.Type of work.


29. Any.

text analysis.data analysis.

29A. Any.


30. Any.

instruction. 32. Any.

anthologies. 33.Short passages from published literary or dra-matic work.

performing, playing or showing. 34.Literary, dramatic or musical works and films,sound recordings and broadcasts.

broadcasts. 35. Broadcasts and their fixations.

extracts. 36.Any work which is not a broadcast or artisticwork which is not incorporated into anotherwork.

lending. 36A. Any.

For the questions below, please provide an answer for each exception or limitation men-tioned above.


437

9)9)

10)10)


There are statutory provisions which specifically provide for such exceptions or limitations.They are, so far as concerns libraries and the like

SectionSection Short titleShort title ExceptionException

40A. Lending of copies by libraries or archives. lending.

40B.Libraries and educational establishments etc: making worksavailable through dedicated terminals.

dedicated terminal.

41. Copying by librarians: supply of single copies to other libraries. single copy supply.

42. Copying by librarians etc: replacement copies of works. replacement copy.

42A. Copying by librarians: single copies of published works. published works.

43.Copying by librarians or archivists: single copies of unpublishedworks.

unpublished works.

44A. Legal deposit libraries. legal deposit.

And so far as concerns research and so on:-SectionSection Short titleShort title ExceptionException

29. Research and private study.researchprivate study.

29A. Copies for text and data analysis for non-commercial research.text analysis.data analysis.

30. Criticism, review, quotation and news reporting.


32. Illustration for instruction. instruction.

33. Anthologies for educational use. anthologies.

34.Performing, playing or showing work in course of activities of ed-ucational establishment.

performing, playingor showing.

35. Recording by educational establishments of broadcasts.broadcasts.

36.Copying and use of extracts of works by educational establish-ments.

extracts.

36A. Lending of copies by educational establishments. lending.


The answer to this question is a matter for the Court of Justice of the European Union yet todecide in interpreting article 5(5) of Directive 2001/29/EC of the European Parliament and

of the Council of the 22nd of May 2001 on the harmonisation of certain aspects of copyrightand related rights in the information society. We observe that there is no statutory or caselaw in the United Kingdom which, in relation top copyright exceptions, expressly requires theoperation of a three-step test, as such. However, and importantly it may be that the Nationalor European legislators in framing the legislation concerned may have adopted this test inrelation to each of the exceptions upon which we have been asked to comment. If that be thecase then it is highly likely to be legitimate for the court construing the legislation to do so on

438

11)11)

12)12)

the basis that the wording and operation of the exception is consistent with and satisfies thethree step test. This approach has been supported by case law of high authority both hereand in the Court of Justice of the European Union.


Use under the exception or limitation is permitted automatically without any further actionsave that in relation to the broadcasts and extracts exceptions they do not apply if there is alicensing scheme in operation; further, so far as concerns the provision of certain materialsin alternative formats by deposit libraries permission is also required to provide that materialin that alternative format. In addition under the single copy supply and published & unpub-lished works exceptions a request has to be made for the copy in question which must includecertain declarations as to the b™na fides of the person making the request for the exceptedcopy in question.


Remuneration is payable in relation to the broadcasts and extracts exceptions if there is a li-censing scheme in operation. Licensing schemes are governed by statute and a tribunal setsrates (if not agreed) for such licences. Royalties are to be reasonable or in some other wayas may be agreed or determined in default of agreement by the said tribunal.In relation to broadcasts there is a collection scheme in operation run by the EducationalRecording Agency scheme. In relation to extracts there is a collection scheme run by theCopyright Licensing Agency scheme but it does not apply to the exceptions unless the pur-pose of the acts of reproduction are commercial in which case a flat fee of £12.50 is payableper work used. So far as concerns broadcasting the rates are as follows(a) for students in Primary schools (including Preparatory schools, special schools, pupil re-ferral units and non-maintained special schools):-

From the 1st of April 2014 to the 31st of March 2015 Ð 35p per student viewing.


From the 1st of April 2016 to the 31st of March 2017 Ð 43p per student viewing.(b) for students in Secondary Schools and students in educational establishments of FurtherEducation (including former Sixth Form Colleges) who have not attained the age of 18 at thestart of the education year:-



From the 1st of April 2016 to the 31st of March 2017 Ð 93p per student viewing.The person liable for payment is the person making or distributing or making the copy con-cerned.(b) for students in universities and like institutions of higher education an annual fee of £7.06is payable by the institution per student - this is a blanket, one off, fee which is payable forcopies of works, scans thereof or playing online for up to 5% of any given work.In relation to lending, a scheme is also in operation which confers a right on authors to re-ceive payments under the public lending right scheme in relation to certified books which arecertified to be part of the scheme. The payment is subject to a cap of £6,600 and is payablein proportion to the number of times a particular book has been lent out. The actual benefitis calculated by reference to an annual allocation by the UK parliament which is divided bythe total number of books lent in any one period of account, yielding a price per book perlend. Fees are then paid by the government minister (acting through the British Library) toeach author on the basis of how many times their books have been lent.

439

13)13)

14)14)

15)15)


There is no special treatment for orphan works for use within such exception or limitation


The law of our jurisdiction does allow the exception or limitation to be overridden by contractas follows:-They are, so far as concerns libraries and the like

SectionSection Short titleShort titlePossible to ContractPossible to Contract

out?out?

40A. Lending of copies by libraries or archives.

✓ - but this sectiononly applies if anauthor applies tojoin the scheme.

40B.Libraries and educational establishments etc: making worksavailable through dedicated terminals. ✓

41. Copying by librarians: supply of single copies to other libraries. ✕

42. Copying by librarians etc: replacement copies of works. ✕

42A. Copying by librarians: single copies of published works. ✕

43.Copying by librarians or archivists: single copies of unpublishedworks. ✓

44A. Legal deposit libraries. ✓

And so far as concerns research and so on:-

SectionSection Short titleShort titlePossible to contractPossible to contract

out?out?

29. Research and private study. ✕

29A. Copies for text and data analysis for non-commercial research. ✕

30. Criticism, review, quotation and news reporting. ✕

32. Illustration for instruction. ✕

33. Anthologies for educational use. ✓

34.Performing, playing or showing work in course of activities of ed-ucational establishment. ✓

35. Recording by educational establishments of broadcasts. ✓

36.Copying and use of extracts of works by educational establish-ments.

Cannot contract outCannot contract outso far as restrictso far as restrictamount which mayamount which maybe copied.be copied.

36A. Lending of copies by educational establishments. ✓


yes

Efforts are made by private organizations (such as a private licensing organizations) to ad-dress use by libraries, archives and educational and research institutions. Those efforts aremainly carried out by collecting societies, copyright owning associations, consumer associa-

440

II.)II.)

16)16)

17)17)

tions and copyright users (such as, for instance, newspapers and suppliers of materials forpublication such as photographic agents) and concern the terms of licensing schemes androyalty rates. So far as collecting societies are concerned they represent copyright ownersbefore the rate setting tribunals.So far as broader copyright is concerned these bodies also negotiate with the legislatures toachieve outcomes representing the best possible benefit for their members of parties whomthey represent.



yes

We believe that the justification for a library or archive scheme is to enable access whereotherwise the works in question would not be accessible for a variety of reasons. On the as-sumption that the copyright owner is entitled in every case to compensation (an assumptionwith which we do not necessarily agree), where a work is copied then accessibility impactsprincipally on those who may desire the works but cannot, whether for objective or subjec-tive reasons, afford them or any licence fee associated with making those works available.Absent the library system or a system of exceptions and limitations for archives such peoplecould be excluded; in addition important cultural and like information would have no nat-ural repository and scientific and cultural advancement may be inhibited. Hence there is ajustification of a library system and a system of exceptions and limitations for archives. Webelieve that the current scope of activities which are allowed under UK legislation strike thecorrect balance between the rights of the copyright owner and the needs of the relevant pub-lic. However this answer is confined to libraries and archives of a public or non-commercialnature. Where money is to be made from the venture of a library or archive then the situationwould tend to suggest that remuneration (at least) should be available to copyright owners.


yes

The justification for education based exceptions stems from the fact that the volume of ed-ucational material generated by any educational establishment on a term to term basis islikely to be huge by reason of the volume of students passing through the doors of such in-stitutions and that there is a strong social interest in maintaining, furthering and improvingeducation and standards of education. We believe that this outweighs the totality of rights ofa copyright owner but that a reasonable, fair and affordable royalty is made available. Inthe United Kingdom such schemes exist for determining the level of such royalties.The justification for a research based exception stems from the fact that in a non-commercialcontext, research budgets are constrained and that there is a benefit to be attained fromhaving such research carried out. Whether this outweighs the rights of the copyright owner isa matter of debate but it is likely that focused research would lead to greater exposure of thecopyright work to the public and to increasing the sum total of human knowledge and in alllikelihood would encourage further research (including commercially based research whichcould benefit the copyright owner). We believe that the current scope of activities which areallowed under UK legislation strike the correct balance between the rights of the copyrightowner and the needs of the researcher. However this answer is confined to non-commercialresearchers. Where money is to be made by the researcher then the situation would tend tosuggest that remuneration (at least) should be available to copyright owners.

441

18)18)

19)19)

20)20)

21)21)

III.)III.)

22)22)


yes

The Three-Step Test can be a useful test for determining any exceptions or limitations to copy-right protection but only if applied by legislators and provided that a special case is not tobe regarded as rare or exceptional.The Three-Step Test seeks to confine exceptions to spe-cial cases which do not conflict with a Ônormal exploitation of the workÕ. A possible difficultyis the potentially circular nature of the concept of Ônormal exploitationÕ. On the one hand,one could interpret it as the unfettered exploitation of copyright works by the copyright ownereach time the work is used by a person other than the copyright owner. Under that extremeinterpretation, obviously any use would conflict with the copyright ownerÔs normal exploita-tion of the work and that cannot have been the legislatorÔs intention. On the other hand, onecould interpret Ônormal exploitationÕ as factoring in/carving out specific exceptions and lim-itations (which would not constitute the normal exploitation of the work). However, by doingso, there is the risk of determining a priori what is or is not a legitimate exception or limita-tion (i.e. what constitutes a special case) even before applying the Three-Step Test.


The exception or limitation should be capable of being overridden by contract but only incases of equal bargaining power on an armÕs length basis and provided that the public in-terest underlying the exception is borne in mind when assessing compensation due to thecopyright owner.


Remuneration should be available for the activities described in Q16) and Q17) for com-mercial activities but not otherwise for the reasons set out in answers A16) and A17).


We do not believe that our current law as it applies to exceptions and limitations to copyrightprotection for libraries, archives and educational and research institutions needs to beamended. The United Kingdom recently underwent significant amendment and updating ofthese exceptions following a government commissioned independent review (called the Har-

greaves review). The recommendations were implemented from the 1st of June 2014. Wesubmit that given that recent changes have taken place it is better to wait until they have hada chance to have effect before considering yet further changes to the law.



yes

Simply yes, harmonisation in this area is desirable. We say this because institutions are in-creasingly of an international nature as indeed are the relevant ÔaudiencesÕ and the channelsfor content distribution. However, harmonisation may not mean that the law has to be thesame everywhere within the world since it is an important consideration that there be differ-ent considerations for countries which are at different stages of economic development.

442

23)23)

24)24)

a)

b)

c)

25)25)

a)

b)

c)



yes

Our answers to question Q16) or Q17) are yes but bearing what we say below under A27.



the libraries, archives and other organizations to which the exceptions apply should notbe the subject of any discrimination; however different considerations may apply if theorganisations in question are of a commercial nature, such as private or commerciallibraries; to this we add that we foresee practical difficulties of definition where organ-isations of a non-commercial nature have commercial operating subsidiaries (such asuniversity intellectual property commercialisation companies),


these exceptions should apply to activities which are conducive to education, heritagepreservation and research needs and


the conditions under which the activities should be undertaken or the copyrighted workused are those consistent with the objects of education, heritage preservation and re-search needs.



the educational and research institutions to which the exceptions apply should not bethe subject of any discrimination,


these exceptions should apply to activities which are conducive to education and re-search needs and


the conditions under which the activities should be undertaken or the copyrighted workused are those consistent with the objects of education and research.


443

26)26)

27)27)

28)28)

29)29)


We believe that use under the exceptions should be permitted subject to specific conditions(as outlined above) otherwise there is a danger of abuse.


So far as a remuneration scheme should exist (which we do not believe should always be thecase) then such remuneration should be determined or calculated by reference to what is eq-uitable, having regard to the effort of the copyright owner, the need to encourage creation,the need to encourage use, including but not limited to the benefit attained by recipients andthe accretion of the copyright ownerÕs goodwill arising by reason of the increased exposureof his works. It stands to reason that the person making such remuneration should be theperson who would otherwise be the infringer or any body standing in his or its stead and therecipient should be the copyright owner.However in answering his question there are a number of additional points we would make:-(1) In many cases the allocation of a royalty to a specific copyright owner is not possible orthe transaction costs related to such an allocation outweigh the benefits to be attained. Insuch cases a rough and ready or estimation approach is used.(2) In many cases licensing schemes are operated by more than one entity although the usein question relates to only one cultural product (for example, a book which may contain anumber of different types of copyright, such as literary copyright, artistic copyright and soon); this may necessitate multiple licensing arrangements, such as cross or onward licensing.(3) The licensing schemes and cross and onward arrangements may operate in differentways and may, in some cases, be compulsory.(4) Some regard must be had to developing countries whose priorities may be more orien-tated towards industrial growth and establishing or improving standards of living than theestablishment of a coherent copyright policy.


In relation to the exceptions concerning libraries, archives or educational establishments, wedo not believe that orphan works deserve any better or different treatment than is deliv-ered by UK legislation. This is not least because the UK has recently implemented the long-awaited EU Directive relating to the permitted uses of orphan works. The consequence is thata limited exception - to permit the digitisation of collections of works - has been introducedfor libraries, archives and certain other institutions. Given the extensive debate that led tothe EU Directive in the first place we believe that this exception strikes the correct balancebetween the expectations of right owners and the public interest.


The exception or limitation should be capable of being overridden by contract but only incases of equal bargaining power on an armÕs length basis.

444


The efforts by private organisations to address use by libraries, archives and educational andresearch institutions, be reconciled with any exception or limitation provided by law by askingwhether the exception in question is such as to cause substantially fewer works to be created.

SummarySummary


1. We believe that the starting point so far as exceptions are concerned (and only so far asexceptions are concerned) is that all copyright should be the same and that inroads intoit are made by way of exception as opposed to limitation. That way will ensure that thereis no danger of unclear and different interpretations on a necessarily more complicatedset of copyright laws. This comment should not be taken out of context; it is in no case tobe extended or used to support any argument concerning term, ownership, subsistence,qualification or any other aspect of copyright

2. A proper basis for copyright protection and exceptions to it should be evidence-based.However we in the UK have just undergone a change in our law concerning exceptionsto copyright infringement - the time for change has passed

3. The right of communication to the public (however that expression is construed) is, atpresent, not included in the exceptions. We believe this to be wrong. The question ofremuneration aside it would preclude, for instance, the making of a presentation in alibrary exhibition, by a library, of the or some of the contents of (or extracts thereof) theworks kept in the library for the purpose of encouraging use of the library

4. Finally it is understood that in 2010 WIPO commissioned the International Federation ofLibrary Associations and Institutions and others to carry out work on proposing a drafttreaty on limitations and exceptions for archives in an attempt to achieve harmonisationon a number of issued raised by this question. A draft treaty was published at the begin-ning of December 2013. It is not known what the progress of this draft is but the docu-ment proposed is to be found on the IFLA website (ifla.org).

445

I.)I.)

1)1)

a)

United States of AmericaUnited States of America


in the name of the United States of America Groupby Rudy HOFMANN and Kevin TOTTIS


QuestionsQuestions




yes


yes

Yes[1], section 108 of the Copyright Act, 17 U.S.C. 108, establishes specific exceptionsfrom copyright infringement of a library or archives with publicly accessible physicalpremises, or any of its employees acting within the scope of their employment for cer-tain activities.Additional exceptions may be available under the Òfair useÓ doctrine. Fair use has longbeen part of U.S. copyright case law and was codified in the Copyright Act of 1976.The statute provides examples that may constitute fair use, such as Òcriticism, com-ment, news, reporting, teaching (including multiple copies for classroom use), scholar-ship, and research.Ó Fair use is applied on a case-by-cases basis taking into consider-ation the following factors:1. the purpose and character of the use, including whether the use is for nonprofit

educational purposes;2. the nature of the copyrighted work;3. the amount and substantiality of the portion used in relation to the copyrighted

work as a whole; and4. the effect of the use upon the potential market for or value of the copyrighted work.As such, neither the statutory examples nor any other uses are automatically consideredto constitute fair use.With regard to preservation, section 108(h)(1) provides that during the last 20 years ofany term of a copyrighted work, a library or archive may reproduce, distribute, display,or perform in facsimile or digital form a copy or phonorecord of the work, or portionsof it, for purposes of preservation. However, reproduction, distribution, display, or per-formance are not authorized if the work meets any of three conditions:1. the work is subject to normal commercial exploitation;2. a copy or phonorecord of the work can be obtained at a reasonable price; or3. the copyright owner or its agents provides notice that the conditions of (1) and (2)

apply.Section 108(b) further establishes the rights of reproduction and distribution of anunpublished work for up to three copies or phonorecords solely for the purposes ofpreservation and security.

446

b)

c)

d)

2)2)

With regard to replacement, section 108(c) establishes a right of reproduction limitedto three copies or phonorecords for the sole purpose of replacement of a copy orphonorecord that is damaged, deterioration, lost, or stolen, or if the existing formathas become obsolete.

FootnotesFootnotes

1. ^ ASDASDSAFASFAS


yes

Section 108(d) provides the rights of reproduction and distribution apply where the usermakes his or her request from that of another library or archives. Section 108(g)(2)does not prevent a library or archive from participating in interlibrary arrangements solong as the arrangements do not have the purpose or effect of the receiving library orarchive substituting this arrangement for a subscription to or purchase of the work.


yes

Section 108(a)(1) provides an exception for reproduction and distribution made by alibrary or archive under the condition that it is made without any purpose of direct orindirect commercial advantage. Section 108(g) establishes the rights of reproductionand distribution to isolated and unrelated reproduction or distribution of a single copyof phonorecord of the same material.


yes

Fair use of a copyright work may apply to other activities.


The exceptions of section 108 of the Copyright Act extend to libraries and archives if:1. the reproduction or distribution is made without any purpose of direct or indirect com-

mercial advantage, and2. the collections of the library or archives are (i) open to the public, or (ii) available not

only to researches affiliated with the library or archives but also to other persons doingresearch.

The exception for reproduction and distribution for the purpose of preservation of publishedworks extends to nonprofit educational institutions that function as a library or archives. Ingeneral, museums and other organizations are currently not eligible for section 108 exemp-tions.

447

3)3)

4)4)

5)5)

a)

b)

c)


Reproduction is limited to no more than one copy or phonorecord of a work except for thesole purposes of preservation of an unpublished work or for the purpose of replacement ofa work that is damaged, deteriorating, lost, stolen, or if the existing format has become ob-solete. In those instances, three (3) copies or phonorecords may be made.


Section 108(i) of the Copyright Act provides that the right of reproduction and distribution af-forded to library and archives does not apply to musical works, pictorial, graphical, sculptur-al work, a motion picture or other audiovisual work other than the news. However the rightsof reproduction and distribution for the purpose of preservation of an unpublished work, re-placement, or preservation of a work during the last twenty (20) years of its copyright termare not excluded.


yes


yes

Yes, as described above, the fair use doctrine codified in Section 107 and the exemp-tions codified in Section 108 may apply to education and research institutions. Also,section 110 of the Copyright Act, 17 U.S.C. ¤ 110, provides exceptions of the exclusiverights of performance and display to instructors or pupils in the course of face-to-faceteaching or in the course of transmission with restrictions.Performance or display of a work in the course of face-to-face teaching of a nonprofiteducational institution does not infringe copyright.


yes

Reproduction and distribution of copies or phonorecords for the purposes of teachingis not copyright infringement if it is found to be fair use. However, U.S. case law hasinterpreted this provision narrowly. See e.g. Basic Books v. KinkoÕs, 758 F. Supp. 1522(S.D.N.Y. 1991).


yes

Making translations are considered derivative works. There is no express exemption foreducational institutions to make derivative works.

448

d)

e)

f)

6)6)

7)7)


yes

The display of a work made in the course of transmission is exempt if, as section 110provides, the performance or display is:1. an integral part of a class session of a systematic mediated instructional activity of

a governmental body or by an accredited nonprofit educational institution;2. related and of material assistance to the teaching content of the transmission;3. made solely for the students enrolled in the course, or officers or employees of gov-

ernmental bodies.


yes

Fair use of a copyrighted work may apply reproduction or distribution for purposes ofresearch.


yes

Fair use of a copyright work may apply to other activities.


The performance or display of a work in face-to-face teaching activities applies only to non-profit educational institutions.The fair use doctrine is not limited to certain institutions but the purpose and character ofthe use are considered such as whether the use is for a commercial nature or a nonprofiteducational purpose, along with the other factors.The transmitting body or institution that displays a work in the course of a digital transmissionmust institute polices regarding copyright to promote and describe compliance with U.S.copyright law. The institution must also provide notice to students that course materials maybe subject to copyright protection.


Either the instructor or pupil may perform or display a work in face-to-face teaching. Theperformance or display must also occur in a classroom or a similar place of devoted in-struction. The performance and display made in a live classroom session or in the course ofdigital transmissions must be made by, at the direction of, or under the actual supervision ofan instructor. Further, the performance or display must be directly related to the content ofthe transmission and of material assistance to the teaching content.

449

8)8)

9)9)

10)10)

11)11)

12)12)

In the case of fair use for the purposes of teaching, whether copies can be made, what typeof copies can be made, and the number of copies made for the purposes of teaching or re-search will be subject to determination using the a fair use analysis outlined above, includingthe amount and substantiality of the portion used and the effect the use would have on thevalue of the copyrighted work.


The performance or display of work in face-to-face teaching activities of a motion pictureor other audiovisual work by means of a copy not lawfully made or the person responsiblefor the performance knew or had reason to believe the copy was not lawfully made is notexempt under section 110 of the Copyright Act.The nature of the work is considered, and so fair use determination may depend on thewhether the work is published or an unpublished work.



The statutory provisions of the Copyright Act specifically provide for exceptions and limita-tions. As discussed above, specific exceptions for reproduction and distribution by librariesand archives are covered in 17 U.S.C. ¤ 108. Additional exceptions can be made under thefair use doctrine set forth in 17 U.S.C. ¤ 107 that may also be applied to educational andresearch institutions. Case law supports the application of the four factors used to determinewhether a particular use is fair use. Still further, 17 U.S.C. ¤ 110 provides limitations on theexclusive rights to certain performances and displays, including those made in the course offace-to-face teaching activities, and through the course of digital transmission as part of aclass session offered by an accredited nonprofit educational institution or through the sys-tematic mediated instructional activities of a governmental body.


The exceptions and limitations in sections 107 and 108 satisfy the Three-Step Test set forthin Article 9(2).


The exceptions of reproduction and distribution under section 108 of the Copyright Act areautomatic. There are no additional requirements that must be met.


No. There is no remuneration payable for use under the exceptions for libraries or archivesnor is there remuneration payable for fair use.

450

13)13)

14)14)

15)15)

II.)II.)

16)16)

17)17)

18)18)


No. Orphan works legislation does not exist under U.S. law at this time


Yes. Section 108 of the Copyright Act does not excuse a library or archives from enforceablecontracts, including license agreements that restrict or prohibit reproduction or distribution.


yes

Yes. At the urging of the Chair and other members of the House Judiciary Subcommittee,three groups representing educators, authors, and publishers delivered to Congress anÒAgreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutionswith Respect to Books and Periodicals,Ó in 1976, which is reproduced in the legislative historyof the Copyright Act of 1976. ÒThe [Classroom] [G]uidelines were designed to give teachersdirection as to the extent of permissible copying and to eliminate some of the doubt whichhad previously existed in the area of the copyright laws,Ó but they Òare not controlling on

the court.Ó Marcus v Rowley, 695 F.2d 1171, 1178 (9th Cir. 1983). Whatever persuasivevalue the Classroom Guidelines may possess, they (1) were drafted by partisan groups (2),state the minimum and not maximum standards in fair use, and (3) adopt presumptions asto which types of use is fair the Supreme Court has since warned against. See, CambridgeUniversity Press v Patton, 769 F.3d 1232, 1246 n. 12 (11th Cir. 2014).



yes

Yes. As discussed above, the Copyright Act currently provides for a number of exceptionsand limitations to copyright protection for libraries and archives.


yes

Yes. As discussed above, the Copyright Act currently provides for a number of exceptionsand limitations to copyright protection for education and research institutions.


yes

Yes. The Three-Step Test is flexible and technology neutral to allow the national copyrightlaws to balance the interests of the rights holders and the users.

451

19)19)

20)20)

21)21)

III.)III.)

22)22)


The AIPPI-US Group does not take a position at this time as to whether these exceptions orlimitations should be capable of being overridden by contract.


As discussed above, the Copyright Act does not provide for remuneration. Whether remu-neration should be payable is dependent on a number of complex practical and policy con-siderations including how such payments are to be made and by what mechanism.


Recognizing that section 108 was enacted in the pre-digital era, the U.S. Copyright Officehas indicated that new technologies had altered the activities of libraries and archives in sucha way as to call into question the continued relevance and effectiveness of section 108. Con-sequently, the Library of CongressÕs National Digital Information Infrastructure and Preser-vation Program in cooperation with the Copyright Office convened a Section 108 StudyGroup to conduct a reexamination of the exceptions and limitations applicable to library andarchives under the Copyright Act, specifically in light of digital technologies. While the AIPPI-US Group recognizes that the recommendations for improvement published by the Section108 Study Group are worthy of further consideration, we make no endorsement one way orthe other as to the specific recommendations at this time.



yes

While the AIPPI-US Group generally supports harmonization of intellectual property rights,the Berne Convention already provides for the Three-Step Test. Many countries of the worldalready successfully provide for exceptions and limitations for libraries and archives and edu-cational and research institutions. These tend to vary in their detail based on numerous localneeds, practices and practicalities. Specific implementations of these exceptions and limita-tions do not affect the rights of the copyright owners beyond that afforded with the Three-Step Test. Harmonization may occur organically, but there is no perceived need for addi-tional harmonization at this time, which may prove disruptive to local practices and rightsh-olders. Specific implementations of these exceptions and limitations may affect the rights ofvirtual-only libraries and archives (those that do not conduct their operations through phys-ical premises) that may span multiple jurisdictions. The AIPPI-US Group does not currentlytake a position on specific proposals for harmonization of rights with respect to virtual-onlylibraries and archives.


452

23)23)

24)24)

a)

b)

c)

25)25)

a)

b)

c)

26)26)

27)27)

28)28)




See the answer to Question 22 above.


















Orphan works legislation, based in part on a U.S. Copyright Office report in 2005, recentlywas been introduced and not passed, and it may be reintroduced in the future. Issues relat-ing to orphan works arise broadly across many different uses in addition to those of libraries

453

29)29)

30)30)

and archives, and the AIPPI-US Group knows of no effort or formal recommendation to passan orphan works exception specific to libraries and archives. Therefore, see the answer toQuestion 22 above with regard to harmonization, generally.


The AIPPI-US Group does not take a position at this time as to what circumstances the ex-ceptions or limitations should be capable of being overridden by contract.


Any efforts by private organizations should not grant exemptions and limitations beyondthose available with the Three-Step Test.

SummarySummary

Section 108 of the U.S. Copyright Act establishes specific exceptions from copyright protec-tion of a library or archives with publicly accessible physical premises for certain activities andunder certain restrictions. Activities include reproduction for preservation or replacement, in-terlibrary lending, and for private study, scholarship and research. These exceptions may al-so apply to education and research institutions, and additional exceptions may be availableunder the Òfair useÓ doctrine. The U.S. Copyright Office has indicated that new technologieshave altered the activities of libraries and archives in such a way as to call into question thecontinued relevance and effectiveness of Section 108, which was enacted in the pre-digitalera. While the AIPPI-US Group recognizes that recommendations for improvements to Sec-tion 108 are worthy of further consideration, we make no endorsement as to specific rec-ommendations. Further, the AIPPI-US Group does not currently take a position on specificproposals for harmonization of rights.


454

I.)I.)

1)1)

a)

b)

c)

d)

2)2)

3)3)

UruguayUruguay


in the name of the Uruguay Groupby Agust’n MAYER and Mercedes CASTELLS


QuestionsQuestions




no

Uruguayan Copyright Law N¼ 9.739 of December 17, 1937 amended by Law N¼ 17.616dated January 10, 2003 (hereinafter the ÒCopyright LawÓ) does not provide any exceptionsor limitations to copyright protection specifically for libraries and archives.However, there is currently a new proposal of amendments to the Copyright Act, which isbeing discussed by the Uruguayan Parliament. These amendments provide for exceptions orlimitations in favor of libraries and archives, for the reproduction of copyrighted works thatare not available in the marketplace. The same also allows the making of copies of frag-ments of the works, in order to be consulted at the library premises. Translation of copy-righted works that are not available in Spanish is allowed to the libraries, when used forinvestigation or study purposes. The proposal also contemplates an exception for partial re-production of copyrighted works with educational purposes and provided they are not forprofit-making purposes.






As expressed above, there are no specific exceptions or limitations for libraries and archives.


Please refer to our answer above.

455

4)4)

5)5)

a)

b)

c)

d)

e)

f)




yes


yes

The last paragraph of article 44 of Uruguayan Copyright Law (as amended by article14 of Law No. 17.616 dated January 10, 2003), provides that representations or per-formances (of theatrical, musical, poetic or cinematographic works) that take place inpublic or private educational institutions shall not be considered unlawful, providedthey are not for profit-making purposes.


no

There is no specific exception or limitation regarding this subject.


no



no



no



no

N/A.

456

6)6)

7)7)

8)8)

9)9)

10)10)

11)11)

12)12)

13)13)


As expressed above, the existing exceptions and limitations apply only to educational institu-tions (with the scope already discussed). There are no exceptions or limitations foreseen forresearch institutions in the Copyright Law.


Only conditions are those referred to in the statute discussed under a) above.





Exceptions and limitations have been traditionally regarded in Uruguay as being interpretedwith a narrow scope, and should arise from a statutory provision. Exceptions or limitationsdo not arise or are recognized in case law. Statutory provision applicable to education insti-tutions is article 44 of the Copyright Law.


Yes. As a general rule Uruguay adopted the Three-Step Test, since it ratified the Berne Con-vention and the WIPO 1996 Treaties.


There is no specific provision regarding this issue.





457

14)14)

15)15)

II.)II.)

16)16)

17)17)

18)18)




yes

Currently there is a new proposal to amend the Copyright Law, which is being discussed bythe Uruguayan Parliament, providing for exceptions or limitations in favor of libraries andarchives, for the reproduction of copyrighted works that are not available in the marketplace.As also mentioned, this proposal also allows the making of copies of fragments of the works,in order to be consulted at the library premises. Translation of copyrighted works that arenot available in Spanish is allowed to the libraries, when used for investigation or study pur-poses. The proposal also contemplates an exception for partial reproduction of copyrightedworks with educational purposes and provided they are not for profit-making purposes.



yes

The Uruguayan Parliament is discussing a new proposal of amendments to the CopyrightLaw, which provide for exceptions or limitations in favor of libraries and archives, for thereproduction of copyrighted works that are not available in the marketplace. The same alsoallows the making of copies of fragments of the works, in order to be consulted at the li-brary premises. Translation of copyrighted works that are not available in Spanish is allowedto the libraries, when used for investigation or study purposes. The proposal also contem-plates an exception for partial reproduction of copyrighted works with educational purposesand provided they are not for profit-making purposes. Once approved those amendments,Copyright Law would be in better shape to adapt to the social reality of our country.


yes

Uruguayan Copyright Law already provides Ð with a limited scope Ð for exceptions or lim-itations to copyright protection for education institutions. There is no provision addressingexceptions or limitations for research institutions, but if these institutions pursue educationalor cultural purposes they could benefit from the limitations already foreseen by the Law.


yes

The Three- Steps Test is generally considered an effective way of preventing the excessive ap-plication of limitations and exceptions. Uruguay adopted the Three-Step Test, since it ratifiedthe Berne Convention and the WIPO 1996 Treaties.

458

19)19)

20)20)

21)21)

III.)III.)

22)22)

23)23)

24)24)

a)

b)

c)

25)25)

a)

b)


It would not be appropriate, taking into account the existence of others who might not knowthe terms of the contract


The limitations are intended precisely to avoid paying for the use of the copyright


The currently proposal to amend the Copyright Law, which is being discussed by theUruguayan Parliament, could be deemed as an improvement to the current regime.



yes

As expressed above, currently there is a new proposal to amend the Copyright Law.





They should apply to public or non-profit ones.


They should apply to investigation or study activities.


In line with the current proposal to amend the Copyright Law, a condition for the re-production of copyrighted works should be that were not available in the marketplace.



They should apply to public or non-profit ones.


459

c)

26)26)

27)27)

28)28)

29)29)

30)30)

They should apply to investigation or study activities.


According to the current proposal to amend the Copyright Law, a condition for the re-production of copyrighted works should be that such works were not available in themarketplace.



The exception or limitation should be permitted automatically.


N/A.


N/A.


N/A.


Since the exceptions or limitations are provided by law in a restrictive manner, and are aimedto be used in the benefit of public interest, such exceptions should not be deemed as to beprejudicial to private organizations interest.

SummarySummary

EN - Uruguayan Copyright Law provides Ð with a limited scope Ð for exceptions or limitationsto copyright protection for education institutions. There is no provision addressing exceptionsor limitations for research institutions. It is worth noting, however, that Uruguay has recentlyratified the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who AreBlind, Visually Impaired or Otherwise Print Disabled, by Law N¼ 19.262 dated August 29,2014. In addition, in 2013, the Copyright Law was amended to include for exceptions andlimitations in the benefit of blind or visually impaired persons. Currently there is a new pro-posal to amend the Copyright Law, which is being discussed by the Uruguayan Parliament,providing for exceptions or limitations in favor of libraries and archives, for the reproductionof copyrighted works that are not available in the marketplace. This proposal also allows themaking of copies of fragments of the works, in order to be consulted at the library premises.Translation of copyrighted works that are not available in Spanish is allowed to the libraries,

460

when used for investigation or study purposes. The proposal also contemplates an exceptionfor partial reproduction of copyrighted works with educational purposes and provided theyare not for profit-making purposes.FR - La Loi uruguayenne de droit d'auteur prŽvoit - avec une portŽe limitŽe - des exceptionsou limitations au droit d'auteur pour les Žtablissements d'enseignement. Il n'y a aucune dis-position concernant les exceptions ou limitations pour les institutions de recherche. Il est ˆnoter, cependant, que l'Uruguay a rŽcemment ratifiŽ le TraitŽ de Marrakech pour faciliterl'accès aux Ïuvres publiŽes pour les personnes qui sont aveugles, malvoyants ou d'autreforme handicapŽs ImprimeŽ, par la loi N¼ 19,262 en date du 29 Aožt 2014. De plus,en 2013, le droit d'auteur a ŽtŽ modifiŽe afin d'inclure des exceptions et limitations dansl'intŽrêt des personnes aveugles ou malvoyantes. Actuellement, il est une nouvelle propo-sition visant ˆ modifier le droit d'auteur, qui est en cours de discussion par le Parlementuruguayen, prŽvoir des exceptions ou limitations en faveur des bibliothèques et des archives,pour la reproduction d'Ïuvres protŽgŽes qui ne sont pas disponibles sur le marchŽ. Cetteproposition permet Žgalement la rŽalisation de copies de fragments des Ïuvres, afin d'êtreconsultŽs dans les locaux de la bibliothèque. Traduction d'Ïuvres protŽgŽes qui ne sontpas disponibles en espagnol est autorisŽ ˆ les bibliothèques, lorsqu'il est utilisŽ ˆ des finsd'enquête ou d'Žtude. La proposition prŽvoit Žgalement une exception pour la reproductionpartielle d'Ïuvres protŽgŽes ˆ des fins Žducatives et ˆ condition qu'ils n'ont pas des fins lu-cratives.


-

461

I.)I.)

1)1)

a)

b)

c)

VenezuelaVenezuela


in the name of the Venezuela Groupby Joaquin NU„EZ


QuestionsQuestions




yes


yes

Yes. Article 44.4 of the Venezuelan Copyright Act establishes limitations to copyrightprotection for nonprofit use in libraries and archives.

This provision allows the reproduction for the purpose of preservation or replacement,when the copy is in its permanent collection pursuing to preserve the work, and replaceit if needed, in the permanent collection or another library or archive. It also appliesfor a specimen that has been lost, destroyed or disabled, and that is not possible toacquire such copy in a reasonable time and conditions.


yes

Among other exceptions that can be related to libraries and archives established in Ar-ticle 44 of the Venezuelan Copyright Act are:

i. The reproduction for nonprofit teaching and educational purposes, in accordanceto the fair use,

ii. The reproduction for personal and exclusive use of a person, carried out by thisperson with its own resources, in accordance to the fair use, and

iii. The reproduction of works of art made for the single purpose of a study.


yes



462

d)

2)2)

3)3)

4)4)

5)5)

a)




yes






These exceptions are extended to all kind of libraries or archives, as long as the reproductionis for nonprofit purposes and carried out in accordance to the fair use rules.


There are no specific types or scopes permitted for reproduction of works. Accordingly, li-braries and archives can reproduce works as long as is it complies with Article 44.4 of theVenezuelan Copyright Act. This reproduction can be in different formats, including digital re-productions.


There are no conditions regarding the type of copyrighted work that may be used, besidescomputer programs, which can be done exclusively for protection and security purposes (Ar-ticle 44.5 of the Venezuelan Copyright Act).


yes


yes

Yes. Article 44.3 of the Venezuelan Copyright Act establishes exceptions to copyrightprotection for nonprofit teaching and educational purposes, related to brief extractsfrom works or short works lawfully published, as long as such use is justified for thepursued matter.

463

b)

c)

d)

e)

f)

6)6)


yes

The Venezuelan Copyright Act does not explicitly establish limitations to the works withrespect to the performance, display, reproduction, distribution of digital networks orany other activity


yes

The Venezuelan Copyright Act does not explicitly establish limitations for translations


yes

The Venezuelan Copyright Act does not explicitly establish limitations to the works withrespect to digital networks or any other activity


yes



yes



These exceptions specify the nonprofit nature of the reproduction. Therefore, although theinstitutions may be interpreted in broad scope, the reproduction must be for nonprofit pur-poses and it is not limited to certain institutions.

464

7)7)

8)8)

9)9)

10)10)

11)11)

12)12)


There are no conditions as to the type or scope of the activities and the persons who mayengage in such activities explicitly established by the Venezuelan Copyright Act. However,Article 44.3 emphasized the justified purposes of the reproduction in connection to the sub-ject matter, as well as the reproduction of brief extracts from works or short works lawfullypublished.


There are no conditions explicitly established by the Venezuelan Copyright Act, as to the typeof copyrighted work that may be used for this purposes. Nevertheless, as explained in pre-vious questions, the Act establishes the justified purposes of the reproduction in connectionto the subject matter, as well as the reproduction of brief extracts from works or short workslawfully published.

In addition, computer programs can be reproduce exclusively for protection and security pur-poses (Article 44.5 of the Venezuelan Copyright Act).



The statutory provisions explained above established in the Venezuelan Copyright Act. Pleaserefer to Question 1.


Yes. The Venezuelan Copyright Act complies the Three-Step Test.


Yes. The use of a work under the exceptions of the Venezuelan Copyright is automatic. Thereis no need to comply with other requirements or carry out any other activities.


No. There is no remuneration for the use of a work under these exceptions for libraries,archives and educational and research institutions.

465

13)13)

14)14)

15)15)

II.)II.)

16)16)

17)17)

18)18)

19)19)


No. There is no special treatment for the use of orphan works under these exceptions.


The Venezuelan Copyright Law does not explicitly determine that an exception or limitationcan be overridden by contract. However, as long as it not contrary to public order matters,libraries and archives, and educational/research institutions, can executed contracts to over-ride these exceptions or limitations.


yes

There has been efforts by private organizations in the past regarding the use of libraries,archives and educational and research institutions. However, there are no new developmentsbesides what is established in the Venezuelan Copyright Act.



yes

As stated in the Venezuelan Copyright Act, there should be exceptions and limitations to thecopyright protection for libraries and archives seeking the preservation and physical pro-tection of works. In addition, it will be important to determine what other exceptions wouldapply in order to satisfy libraries and archives user«s necessities and the dissemination ofknowledge.


yes

There should be exceptions and limitations to the copyright protection for education and re-search institutions, when it comes to nonprofit activities and for a justified purpose.


yes

The Three-Step Test is a useful instrument that allows the responsible use of copyrightedworks under specific circumstances.


Yes. As long as it does not interfere with public order matters, the exception should be capa-ble of being overridden by contract.

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20)20)

21)21)

III.)III.)

22)22)

23)23)

24)24)

a)

b)

c)

25)25)

a)


No. There should not be remuneration for the activities described in questions 16) and 17),particularly, considering the nonprofit use of the work.


The exceptions and limitations of the current Venezuelan Copyright Act can be improved byincluding explicitly digital works and by being more specific in the proper use of the copy-righted work that falls under these exceptions.



yes

Harmonization on this matter might be desirable as it will provide an international standardfor nonprofit use of copyrighted material for libraries, archives and educational and researchinstitutions.



no

does not apply



It should apply to all libraries and archives for nonprofit activities, seeking the preser-vation and physical protection of works.







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b)

c)

26)26)

27)27)

28)28)

29)29)

30)30)

It should apply to all educational and research institutions for nonprofit activities andfor a justified purpose.







Yes. The use under these exceptions or limitations should be permitted automatically.


Remuneration should only apply in cases that does not fall under these exception or limita-tion.


Orphan works should have the same treatment as any other work with respect to the excep-tion or limitation of copyright.


The parties executing the contract should be capable of overridden the exceptions or limita-tions.


The efforts by private organizations should aim the nonprofit dissemination of knowledge,taking into account the Three-Step Test established in the Berne Convention.

SummarySummary

The Venezuelan Copyright Act complies with the Three-Step Test that allows the responsibleuse of copyrighted works under specific circumstances, namely, the reproduction for non-profit teaching and educational purposes, the reproduction for personal and exclusive useof a person, and the reproduction of works of art made for the single purpose of a study.

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Therefore, as the Venezuelan Copyright Act does not specifically establish other conditions,these exceptions are extended to all kind of libraries or archives, as long as the reproductionis for nonprofit purposes and carried out in accordance to the fair use rules.


None

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Summary Report

Question 246


by Sarah MATHESON, Reporter GeneralJohn OSHA and Anne Marie VERSCHUUR, Deputy Reporters General

Yusuke INUI, Ari LAAKKONEN and Ralph NACKAssistants to the Reporter General

This Question primarily examines national laws relating to exceptions and limitations to copyright protection for the benefit of libraries and archives, as well as educational and research institutions. Copyright law grants comprehensive and exclusive exploitation rights to the copyright holder with regard to the copyrighted work. However, in certain circumstances, these rights can be restricted either by exceptions or limitations to copyright protection.

This Question addresses the issue of what, if any, exceptions and limitations to copyright protection should be recognized for the benefit of libraries, archives and educational and research institutions. Neighboring and moral rights recognized under copyright law are also covered by the scope of this Question. A key area of focus is the conditions under which such exceptions or limitations to copyright apply. In addition, this Question examines the national and regional acceptance of the current provisions and potential avenues for international harmonization. General exceptions and limitations to copyright protection not specific to such institutions (such as exceptions and limitations for private/personal use et cetera) do not fall within the scope of this Question, unless they relate to libraries, archives and educational and research institutions.

For the purposes of this Question, the Three-Step Test means the test provided in Article 9(2) of the Berne Convention of 1886, under which the reproduction of a copyrighted work is permissible: (a) in certain special cases; (b) when the reproduction does not conflict with a normal exploitation of the work; and (c) when the reproduction does not unreasonably prejudice the legitimate interests of the author.

The Reporter General has received Reports from the following Groups in alphabetical order: Argentina, Australia, Belgium, Brazil, Bulgaria, Canada, Central American & Caribbean Regional Group, China, Czech Republic, Denmark, Egypt, Estonia, Finland, France, Germany, Greece, Hungary, India, Indonesia, Italy, Japan, Latvia, Mexico, the Netherlands, New Zealand, Paraguay, the Philippines, Poland, Republic of Korea, Russian Federation, Singapore, Spain, Sri Lanka, Sweden, Switzerland, Turkey, United Kingdom, United States of America, Uruguay and Venezuela. 40 Reports were received in total. All of the Reports were very helpful and assisted generally.

The Reports provide a comprehensive review of national and regional provisions and policies relating to the exceptions and limitations to copyright protection for libraries, archives and educational and research institutions. This Summary Report does not attempt to reproduce the detailed responses given by each Group. If any question arises as to the exact position in a particular jurisdiction, reference should be made to the original Reports. See https://www.aippi.org.

Where percentages of responses are given, they are to the nearest 5%.

In Part IV below, some conclusions have been drawn in order to provide guidance to the Working Committee.

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I. Current law and practice

1) Does your law provide for exceptions or limitations to copyright protection for libraries and archives?

The vast majority of the reporting Groups indicate that different types of exceptions or limitations to copyright protection apply for the benefit of libraries and archives in their jurisdictions. All responses reported at 2) to 4) below are with reference to those Groups who answered YES to this question.

Only four countries do not provide for such exceptions in favor of libraries and archives1. However, libraries and archives are free to make use of general exceptions subject to certain conditions that are not specifically designed for their purposes (e.g. “use of excerpts of protected works for the purposes of study, criticism or debate” as a general limitation to copyright protection in Brazil).

Currently, Uruguay is discussing a new proposal for amendments to the Uruguayan Copyright Act, which would provide for such exceptions or limitations for the benefit of libraries and archives.

If the answer to question (1) is yes, please provide details of such exceptions or limitations, including in relation to the following activities:

a. Reproduction and/or distribution for the purpose of preservation or replacement.

All Groups who answered YES to question (1) indicate that their law implements specific provisions for preservation and replacement purposes.

In systems which differentiate between reproduction for the purpose of preservation and reproduction for the purpose of replacement, the latter is subject to considerable higher conditions.2

Two-thirds of these Groups state that reproduction for the purpose of preservation or replacement are only permitted where it is impossible for the library or archive to acquire a copy of the work under reasonable conditions and/or within a reasonable time on the market.3

The other third explains that these specific exceptions for preservation or replacement only apply to institutions that do not pursue any direct or indirect commercial advantage (with this reproduction).

Further, the Korean Group states that this exception does not apply to books sold in digital form.

b. Reproduction and/or distribution for the purpose of interlibrary lending

Almost half of all Groups indicate that their jurisdiction provides for specific provisions which in general permit the reproduction of works for the purpose of interlibrary lending. Six of these Groups additionally report varying conditions in relation to such permissions (e.g. the work cannot be acquired in normal trade, entails an obligation to remuneration).4 Within the Groups whose law provides specific provisions, considerable divergence is found as to the conditions for this reproduction:

1. Argentina, Brazil, Turkey and Uruguay.

2. See Reports from Australia and the US.

3. According to the Czech report it doesn’t depend on availability on the market as far as only a minor part of the work is reproduced. The Group from Denmark mentions that only reproduction for the purpose of completion is conditional upon availability.

4. The Group Reports from Italy and the Netherlands mention that their law does not contain a specific exception for the benefit of interlibrary lending, but it may be argued that other general provisions at least partly cover the reproduction and distribution for lending purposes.

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40% of the jurisdictions make the reproduction of a work for interlibrary supply conditional upon the fact that a copy of that work is not available on the market under reasonable terms.5

30% allow the reproduction only in cases where the library or archive does not pursue any economic or commercial advantage.

In 20% the action of interlibrary lending is subject to an equitable remuneration.6

Three Groups7 report that reproduction is limited to one additional copy of the work for the purpose of interlibrary lending. The laws of Australia and Sweden restrict the right to reproduce works to a reasonable portion of the work.8 In the UK, reproduction conditional upon the fact that the person entitled to authorize the reproduction could not be found despite reasonable effort. 9 Korea excludes works available for sale in digital format. Singapore excludes reproductions which would replace a subscription of periodicals. Moreover, the “fair use” doctrine, as applicable in the US 10, permits such interlibrary agreements only to the extent that intended subscriptions or acquisitions of a work are not being substituted.

The remaining Groups (55%) implicitly or explicitly respond that the lending of reproductions is not permissible to libraries or archives. The lending of their own legally obtained copy of a work, however, is either not subject to copyright law or generally allowed between libraries.

c. Reproduction and/or distribution for the purpose of providing copies (either in a physical or a digital form) to users of libraries or archives

Two-thirds of the Groups indicate that their law generally permits libraries and/or archives to reproduce and distribute works in order to provide them to their patrons. In contrast, one-third of the Groups either explicitly or implicitly state that their law does not generally provide for such exceptions.

However, among the Groups that report that reproduction and distribution of works for the purpose of providing copies is generally permitted, the following restrictions can be found (individually or cumulatively):

More than half of these Groups report a restriction to the provision of copies for the purposes of private study, education and/or the absence of a commercial advantage.

30% of the relevant Groups report that such permission is limited to reproduction of an extract or a small part.

One quarter indicates that according to their legislation as to the type of copy both hard (e.g. photo copies or similar means) and electronic copies may be provided to their users. Another quarter states that only hard copies of works may be provided.

5. In Australia this prerequisite only applies if the whole work or a major part of it is reproduced.

6. New Zealand provides for an equitable remuneration only in the case of reproduction for the purpose of supplying another library. In the Czech Republic and France the obligation to remunerate applies even if the library is lending its own copy of the work without reproduction.

7. Canada, Greece and the UK.

8. The Australian Group defines a “reasonable portion” as “10% of the work or, if it is published in chapters, not more than one chapter.” The Swedish Group defines the restriction on this exception by reference to the term “short extract”, which “refers, for example, to a single chapter of a book. However, the chapter must be short; copying of dozens of pages is not permitted.”

9. The UK Group Report explains that “at the time of making the copy the librarian does not know or could not reasonably find out, the name or address of a person entitled to authorise the making of a copy of the work.”

10 The US Group Report US mentions that making of copies for the purpose of interlibrary supply is legal “so long as the arrangements do not have the purpose or effect of the receiving library or archive substituting this arrangement to or purchase of the work.”

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According to the Reports from France, Hungary and Poland, reproduction for the purpose of providing copies to users is limited to an on-the-spot consultation on the premises of the establishment or on dedicated terminals. In contrast, China, Sweden and the UK provide for such restrictions only as far as digital copies are concerned.

It is noteworthy that four Groups11 point out that the permission to prepare a reproduction of a work may be based on the users’ rights to prepare such copies for themselves (the so called “private copy exception”).

d. Any other activities, and if so, what activities?

More than half the Groups confirm that in their jurisdiction other activities are also covered by exceptions or limitations to copyright, beside regulations concerning preservation or replacement, interlibrary lending and providing copies to libraries’ patrons.

However, considerable divergence is found within these Group Reports:

About one-third of the Reports note that limitations to copyright protection other than mentioned in the responses to the Questions 1a), b) and c) may apply if the reproduction and/or the distribution is made for the purpose of research or education.12

Further, one-third of the Reports indicate that libraries or archives are allowed to provide a work or display a digital copy of it on their premises or within dedicated networks under certain conditions.

The Estonian and the German group state that their legislation, in addition, provides for an exception in connection with an exhibition. The German provisions only apply to public libraries, educational institutions and museums, but not to archives. Of note, this exclusion of archives from the scope of the exception does not correspond to the broader scope of Art. 5 (2) lit. c Copyright Directive 2001/29/EC.

Finland and Germany also respond that the reproduction of work for the purpose of administration and organization is permitted in their jurisdiction.

In addition, the Groups from the Philippines and the United States make reference to the “fair use” doctrine to determine if the particular activity falls within the scope of a “fair use” or not.

The Russian Group states that reproduction of special copies for people with disabilities is permitted.

Finally, the Australian Group reports that their law provides for exceptions regarding Parliamentarians and certain works of historical and cultural significance.

2) Do any of these exceptions or limitations apply to libraries, archives or other organizations (e.g. museums) generally, or only to certain organizations (e.g. public and/or commercial libraries and archives)? If so, which organizations?

About two-thirds of the Reports who answered YES to question (1) indicate that the institutions must not pursue an economic or commercial gain to benefit from certain exceptions referred to in Question 1 a) to d).13

11. Canada, Germany, Netherlands and Sweden.

12. In Sweden, the permission to distribute is subject to the condition that the research needs to be reasonably qualified; ordinary student papers do not fall within the scope of this limitation.

13. The Dutch Group explains that it is not entirely clear whether the “not-for-profit condition” only applies to archives. The Swiss Group points out that the differentiation between commercial and non-commercial use is mainly decisive for the obligation to pay remuneration.

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About 60% of the relevant Group Reports indicate that “public accessibility” of a library, an archive or similar organizations is a condition for at least one of the various exceptions mentioned above in 1a) to 1d) above. In Finland and the Netherlands, this condition only applies to archives and not to libraries.

Further, about 40% state that at least some of the relevant exceptions are not only applicable to libraries and archives but also to similar institutions such as museums or educational establishments.

About 25% of the Reports mention that some of these above mentioned exceptions, in particular those which tend to restrict the copyright holder’s rights more severely, only apply to a specific form of institutions (e.g. institutions governed by the state, only declared or recognized by the government, national libraries).

3) Are there any conditions as to the type or scope of any permitted activities (e.g. number of copies that may be created, whether only a portion of a work may be used, whether certain forms of reproduction (e.g. digital reproduction) are excluded)? If so, please explain the conditions.

Numerous restrictions to the permitted activities already arise in the prerequisites of the relevant exceptions. A more detailed breakdown is beyond the scope of this summary.

However, some common themes can be found in the particular exceptions for the benefit of libraries or archives:

Slightly less than half of the Groups who answered YES to question (1) indicate that their exceptions and limitations also imply quantitative restrictions. Ten Groups point out that generally just one additional copy is permitted. Three Groups explain that the number of copies that may be produced or used must be justified by the underlying purpose of the applicable exception.

About 40% of the Groups respond that at least some of their limitations also imply a restriction with regard to the scope of the reproduction: Five Groups14 explain that a copy relying on one of these exceptions may only be a “minor part” or a “reasonable proportion”. The German Group suggests 12% of the work, while Singapore suggests 10% (for certain scenarios). Belgium and Estonia rely on the Three Step Test to determine the scope of the copy.

The restrictions relating to the form of the reproduction or distribution mostly depend on the specific exception. However, nine Groups state that, in general, reproduction and/or distribution of digital copies is not allowed.

4) Are there any conditions as to the type of copyrighted work that may be used (e.g. lawfully created copies, copies existing in the library’s or archives collection, published works)? If so, please explain the conditions.

Insofar as such conditions exist, they do not apply generally to all exceptions, but rather to particular exceptions.

More than half of the Groups which report the existence of exceptions for libraries/archives explain that certain exceptions are not applicable to unpublished works.

In addition, more than half of the Groups indicate that the exceptions for digitization and presentation of works on institutions’ premises as well as for the purpose of preserving and replacement of works require that the copies are part of the library’s or archive’s collection.

14. In particular Hungary, Japan, New Zealand, Sweden, Switzerland and the UK.

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About one-third of the Groups expressly remark that such exceptions only apply on reproduction made from lawful copies.

5) Does your law provide for exceptions or limitations to copyright protection for education and research institutions?

All Groups except Mexico report that some exceptions for education and research institutions are provided by their jurisdiction.

a. Performance and/or display for educational purposes

Almost all Groups confirmed the availability of exceptions in relation to the performance or display of works for educational purposes (in a narrow sense, e.g. not covering school music festivals).15 Only the Reports from China, Greece and Poland state that their respective laws do not provide for such exceptions.

However, more than two-thirds of all Groups state that the qualification as performance or display for educational purposes (e.g. teaching) requires a non-profit character of use.

b. Reproduction and/or distribution for educational purposes (e.g. preparation of course packs, compilations or anthologies, exams)

The clear majority of all Groups indicate that their law also provides for exceptions with regard to the reproduction or distribution for educational purposes. Of note, these permissions tend to be of narrow scope and are subject to strict conditions (e.g. the exception only applies to works not available in the market, or only to reproductions in textbooks, or is conditional upon remuneration).

Furthermore, the reports from France, Germany, Italy, Japan, Singapore, Sweden and the UK describe a highly differentiated regime with various conditions and permissions for the reproduction and distribution for educational purposes.

Finally, about 25% of all Groups state that the distribution of these legally reproduced copies is only permitted if the source and the name of the author are indicated.

c. Making translations

Almost two-thirds of the Groups point out that exceptional provisions regarding translations are provided by their law.16 However, five Groups17 note that the preparation of a translation is covered by a general provision in connection with educational use.

d. Making available in digital networks for educational purposes (e.g. uploading course packs onto on-line platforms, compilations or anthologies, providing distance education)

About two-thirds of the Groups report that making works available in digital networks for educational purposes is permitted under specific conditions – as long as the institutions can ensure that only intended users (e.g. students) have access. Seven Groups18, however, indicate that the distribution via digital networks is already covered by an existing general exception.

15 According to Brazilian Group, Brazilian law provides for the use of excerpts of protected works for the purposes of study, criticism or debate only in general. In Denmark the permission is subject to a “voluntary license agreement with a copyright administration organization“. The German and the Italian Groups emphasize that the display or performance shall not be considered as public (and does not infringe the scope of copyright) if it takes place within a teaching relationship.

16 The Belgian Group reports that it is still unclear whether or not making translations is included in the copyright exception for educational purposes. Hence, it was counted as a negative response.

17 Germany, the Netherlands, the Philippines, Switzerland and the UK.

18 Egypt, Germany, Korea, the Netherland, the Philippines, Russia, and Switzerland.

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Further, the Groups from Australia, Denmark and Finland point out that such acts falls within the scope of their system of collective licenses, giving the institutions the right to make copies of works available online.

e. Reproduction and/or distribution for research purposes; or

About 75% of all Groups confirmed the availability of exceptions with regard to the reproduction or distribution for research purposes. Among these Groups France, Germany, Italy, Japan and Turkey indicate that reproduction and distribution is covered by a right to quotation.

The Chinese provisions, however, only allow the reproduction and the use for scientific research and do not include publication or distribution thereof. According to the Reports from Greece and Mexico, the permission to reproduce works for the purpose of research is partly covered by the private use exception (without reference to specific statutory exceptions).

f. Any other activities, and if so, what activities?

About half of the Reports mention that the statutory exceptions also cover other activities. However, these additional exceptions cover such a broad range of different activities that a detailed description is beyond the scope of this Summary.

However, one particular exception is noted by the Groups of Japan, Paraguay and Switzerland: reproduction and distribution of works by means of the Braille system or other specific systems designed for visually as well as hearing impaired people is permitted.

6) Do any of these exceptions or limitations apply to educational or research institutions generally (e.g. non-profit institutions), or only to certain institutions? If so, which institutions?

Half of the Groups mention certain generally applicable restrictions as to the type of institution, most importantly a restriction to non-profit organizations (e.g. public schools). About one-third of these Groups indicate that the institutions must be either recognized by the government (e.g. as official educational institutions) or must have entered into specific license agreements.

Germany, Italy and the Netherlands provide for a more complex system that sets up independent conditions for each exception. For further detail, refer to the respective Group Reports.

The Central American & Caribbean Regional Group states that while the institution does not have to be non-profit, the use must be for non-profit purposes.

7) Are there any conditions as to the type or scope of the activities and the persons who may engage in such activities (e.g. number of copies that may be created, whether only a portion of a work may be used, whether both a teacher’s and student’s performance is covered, or only one or the other)? If so, please explain the conditions.

About 30% of the Groups report that their law does not provide for the exceptions referred to in the question, or that there are no specific conditions as to the type or scope.Within the remaining 70% of Group Reports several conditions and/or limitations are mentioned:

About 25% of those Reports explain that their jurisdictions does not specify exact numerical conditions, but rather provide for concepts such as a reasonable portion, or refer to (eg) segments, extracts, parts.

The German Group mentions a numerical limitation of 12% to 33% of the work, and an absolute limit of 100 pages. Turkey sets a limit of 10% of a work. The French, Italian and Singaporean Reports describe other numerical limitations.

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In addition, 7 Groups19 (directly or indirectly) refer to the “fair use doctrine” as a limiting factor for usage of works under certain provisions. Several Groups state that the source and author of the original work has to specified, if appropriate.

Three Groups20 indicate that certain statutory exceptions distinguish between pupils/students and teachers/researchers/instructors.

8) Are there any conditions as to the type of copyrighted work that may be used (e.g. only lawfully created copies, only certain kinds of copyrighted works)? If so, please explain the conditions.

About two-thirds of the Reports state that there are conditions as to the type of copyrighted work.

About 60% of these Groups explain that the provisions for the benefit of education and research institutions are not applicable to unpublished works.

Further, about one-third of these Reports emphasize that only lawfully acquired copies of the work may be a subject matter of the exceptions pointed out in the previous questions.

Three Groups21 exclude the reproduction of computer programs from the scope of several exceptions. Moreover, the French and German Reports remark that works intended for instructional or pedagogical purposes cannot benefit from the exceptions in favor of education institutions.

9) Is there any statutory provision that specifically provides for such exception or limitation? Is it alternatively or additionally recognized in case law? If neither, does your jurisdiction have a more general or broad exception or limitation that is interpreted as covering such specific exception or limitation?

Almost all Reports (except those from Argentina and Brazil) state that, in principle, all relevant exceptions and limitations to copyright protection are stipulated by statutory provisions.

The Argentinian Group explains that only the right to use a work for educational purposes is codified. However, more general exceptions exist. In contrast, the Brazilian Group indicates that no corresponding statutory provisions exist. However, exceptions and limitations to copyright may be based on fundamental constitutional rights (e.g. right to education, freedom of speech).

In addition, the Canadian, Greek, Korean and US Groups state that further exceptions are/can be recognized by the courts.

10) Does your law adopt the Three Step Test (or equivalent wording) in relation to such exception or limitation?

About half of the Reports indicate a direct implementation of the Three Step Test within the above mentioned exceptions and limitations.

In addition, according to more than one-third of the responses, the Three Step Test is either applied as a rule of interpretation or through “general” terms (e.g. fair use doctrine).22

19 Australia, Greece, Korea, the Philippines, Sri Lanka, UK and the USA.

20 China, the Czech Republic and the UK.

21 Germany, Switzerland and Venezuela

22 The Groups from Germany and Mexico further indicate that even without an explicit adoption of the Three Step Test, the requirements in Art. 9 para 2 of the Berne Convention can be applied directly.

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About 20% of the Groups explain that the Three Step Test has not been adopted in their jurisdiction. However, the Polish and Turkish Groups state that the Three Step Test is likely to be included in an upcoming amendment.

11) Is use under the exception or limitation permitted automatically (without any further action), or must certain criteria be fulfilled/procedure(s) followed (e.g. seeking a compulsory license)? If it is the latter, please explain the criteria/procedure(s).

Almost all Reports explain that use under the exception or limitation is permitted automatically. About 30% of the Groups explain that several exceptions provided by their jurisdictions require participation in a collective license agreement.

12) Is remuneration payable for use under such exception or limitation? If so, how is the amount of remuneration determined or calculated? Who is liable for making such payment, and to whom must such payment be made?

Nearly half of the Groups note that either no remuneration is payable for use under above mentioned exceptions/limitations or no regulation is provided in their legislation regarding any kind of compensation.

In contrast, about 55% of the Groups indicate that a remuneration fee is at least partly payable for actions falling within the scope of such exceptions/limitations. It is either determined by a collecting society, an authority or a negotiated collective license. In addition, various calculation systems were described. Most systems calculate an adequate remuneration on the basis of the actual use or the number of the registered users summarized in an annual report prepared by the institution. In some cases the compensation rates can be adjusted depending on the extent of the use (e.g. discounts for large amounts of copies) or the character of the institution (e.g. better tariffs for public and non-commercial libraries).

Almost all Groups referring to a compensation system explain that the remuneration is payable by the institution which conducted certain activities. The French Group explains a model where the fee is partly paid by the state and partly by the booksellers. Likewise, the Finish Group points out that in cases of private use the state is liable to pay the remuneration fee.

However, almost all Groups clarified that the fees or royalties have to paid to the competent collecting society. It is only possible in a few Groups to effect the payment directly to the author.

13) Is there any special treatment for orphan works for use within such exception or limitation? If so please explain.

About 45% of Groups indicate that their jurisdictions provide for specific regulations regarding orphan works – but not necessarily as part of the exceptions and limitations for libraries, archives and educational and research institutions.

About 70% of these jurisdictions require that the use (in particular the reproduction and making available) of such works is in the public interest and is only practiced by non-profit organizations. This is in particular true for EU countries due to the EU Directive 2012/28/EU on certain permitted uses of orphan works, which had to be implemented by all member states.

The Hungarian Group additionally points out that the Hungarian Intellectual Property Office may grant a 5-year compulsory license of orphan works protected by copyright. Similarly, the Indian Group points out that for the purpose of using orphan works, an application must be made to the Copyright Board for compulsory licensing of such work.

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14) Does the law of your jurisdiction allow the exception or limitation to be overridden by contract?

Many Groups were unable to give a definitive answer as this issue is not clear under their law.

Nevertheless, about 55% of all Groups consider that the above mentioned exceptions may be overridden by contract, at least to the extent that other fundamental rights protected by the exceptions are not unduly restricted (e.g. access to information, right to education, freedom of quotation).

15) Other than what is provided in the law of your jurisdiction, are there any efforts by private organizations (such as a private licensing organizations) to address use by libraries, archives and educational and research institutions?

Nearly 45% of the Groups respond that such private organizations exist. Licensing organizations (mainly limited to a certain field, e.g. licensing organization for newspaper articles, or more generally for the educational use of works) representing copyright owners administer and provide licenses for libraries, archives and educational and research institutions not covered by statutory exceptions and limitations.

Moreover, according to a vast majority of their responses, these organizations fulfill the role of collecting societies and facilitate the payment of royalties and compensation.

II. Policy considerations and proposals for improvements of the current law

16) Should there be any exceptions or limitations to copyright protection for libraries and archives?

Most Groups are of the view that there should be at least some exceptions or limitations to copyright protection for libraries and archives. For example, the Belgian Group states that there should be exceptions and limitations in relation to the activities that pertain to the public interest mission that libraries and archives are supposed to pursue, namely: (i) preservation; (ii) restoration (including format shifting); and (iii) making accessible (dissemination) to the public of cultural, scientific or informational works.

The Egyptian and the Turkish Group answer NO to the above question, but do not seem to object to having such exceptions and limitations.

17) Should there be any exceptions or limitations to copyright protection for education and research institutions?

Most Groups are of the view that there should be at least some exceptions or limitations to copyright protection for education and research institutions. For example, the Japanese Group states that in order to provide high-quality education, it is essential to use a work in a textbook and exam questions, to produce, present or recite a work in the course of classes, to make an adaptation of a work for pupils and students with disabilities, and to allow pupils and students to use a work by way of performance or recital. The Japanese Group also states that understanding of prior research achievements found in academic journals and books is essential for the creation of new research themes.

The Turkish Group answers NO to the above question, but does not seem to object to having such exceptions and limitations.

18) Is the Three Step Test a useful test for determining any exceptions or limitations to copyright protection?

Most Groups are of the view that the Three Step Test is a useful test for the above purpose. For example, the French Group states that the Three Step Test is an appropriate test for determining the legitimacy of an encroachment on the author’s monopoly, and that the test makes it possible to guide the courts in their interpretation of the scope of the limitations and exceptions.

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Some Groups find the Three Step Test useful but with some reservations. For example:

• The Dutch Group states that an overly restrictive interpretation of the Three Step Test (such as the interpretation adopted by the CJEU) discredits the test as an additional assessment tool and casts doubt upon the appropriateness of use of the test in general. The Dutch Group supports an alternative approach, namely, an approach employing the test as a refined proportionality test that offers the opportunity to weigh carefully the different rights and interests involved. A similar concern is shared by the Spanish Group

• The Mexican Group states that it would be convenient to modify the Three Step Test in order to extend the limitations into the digital environment and create new exceptions as appropriate.

Five Groups are of the view that the utility of the Three Step Test is limited due to its abstract nature. For example, the Australian Group states that the terms in which the test is expressed are very general and uncertain in application, and that there is very little guidance to courts and the general public on how the test should be applied in day to day situations.

The Indian Group states that it does not favour the Three Step Test, since it is likely to restrict the scope of compulsory license in a developing economy; nevertheless, as a compromise with the international community, the test may be used provided that the author is compensated.

19) Should the exception or limitation be capable of being overridden by contract? Why? Why not?

Around half of the Groups are of the view that the exceptions or limitations should not be capable of being overridden by contract. The Groups that take this view generally state the public interest that underlies the exceptions or limitations. For example, the Greek Group states that the exceptions are placed in order to safeguard the access to basic information and educational material for all users (especially students), as well as the viability of libraries, archives and educational institutions.

The French Group, while taking the above view, states that authors can waive their right to remuneration by contract.

Around one third of the Groups state that the exceptions and limitations should be capable of being overridden by contract. However, most Groups taking this view make certain reservations, for example:

• The contract should not be against public interest (4 Groups)

• The parties should have equal bargaining power on an arm’s length basis (1 Group)

• The exceptions should only be overridable in favour of the copyright holder (1 Group)

• Certain exceptions such as private copy exception should not be overridden by contracts (1 Group).

The Australian Group takes a mixed approach, namely, that while the exceptions and limitations for libraries and archives should not be overridden by contract, it should be possible to contract out of the exceptions and limitations for educational institutions.

The Belgian, the Canadian and the US Groups do not take a particular view on this issue. The Canadian Group states that this issue should be left to further study.

20) Should remuneration be payable for any of the activities described in 16) and 17) above? Why? Why not?

Around 70% of the Groups state or suggest that remuneration should be paid at least under certain circumstances. However, the circumstances under which remuneration should (or does not have to) be paid vary greatly among the Groups, for example:

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• Remuneration should be paid in general (5 Groups)

• Libraries and archives should not have to pay remuneration (2 Groups)

• Remuneration should not have to be paid for preservation/replacement (4 Groups)

• Remuneration should be paid for public lending by libraries (5 Groups)

• Remuneration should be paid for educational activities generally (3 Groups)

• Remuneration should be paid for educational activities, if multiple copies are made (2 Groups)

• Remuneration should be paid when a work, provided primarily for education or research purposes, is also capable of being used for normal purposes (1 Group)

• Remuneration may be payable if the quantity of copying from a particular work exceeds some reasonable portion (2 Groups)

• For-profit organizations should pay remuneration (2 Groups)

• Remuneration should be paid for commercial activities, but not for non-commercial activities (2 Groups)

• Remuneration should be paid for activities that interfere with normal exploitation of the work (2 Groups)

• Whether remuneration should be paid or not shall be determined by taking into account various factors (2 Groups).

Around a quarter of the Groups state that remuneration should not be payable.

21) How can your current law as it applies to exceptions and limitations to copyright protection for libraries, archives and educational and research institutions be improved?

Various proposals were made by the Groups, for example:

• Around 30% of the Groups state that their current law should be improved so as to address the issue of digital copies (e.g., digitization of collections in libraries and providing digitized copies, distant education)

• 3 Groups propose adopting a broader and more general exception or limitation (e.g., fair use, implementation of the Three Step Test) as opposed to just having a list of very specific exceptions and limitations

• 2 Groups propose broadening the exception to allow libraries to make more than one copy for preservation purposes

• The Dutch Group suggests adopting an extended collective license (ECL) regime for the digitization and making available of works by libraries and archives.

III. Proposals for harmonisation

22) Is harmonisation in this area desirable?

Most Groups are of the view that harmonization in this area is desirable. For example, the Estonian Group states that similar exceptions and limitations provide a clearer legal environment on the free use of works for the purpose of preservation and access to knowledge. However, the Hungarian Group considers harmonization is unrealistic due to the different approaches between general fair use/fair dealing exceptions on the one hand, and specific exceptions on the other.

The Finnish, French and US Groups are of the view that harmonization in this area is not desirable.

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• The Finnish Group states that due to the profound differences in national educational and research systems, their structure and financing as well as differences in remuneration regimes for copyright exceptions, international harmonization is not a desired or workable solution. The Finnish Group also states that the national differences in the structure of libraries and archives and their financing are more prominent than in the field of education and research, which renders international harmonization unsuitable

• The French Group states that the policies and priorities for education and research of each country must prevail and enable each country to develop its exceptions and limitations in line with public interest

• The US Group states that, under the Three Step Test, many countries already successfully provide for such exceptions and limitations; and that while they tend to vary in their detail, there is no perceived need for additional harmonization at this time, which may prove disruptive to local practices and copyright holders.

Notwithstanding their general position, these 3 Groups do make some proposals for certain questions, as stated below.

23) If your answer to question 16) or 17) is no, should this be explicitly set out in any international treaty/convention?

Most Groups essentially answer “Not Applicable” to this question, since their answers to question 16) and 17) were YES.


a. To what libraries, archives and other organizations should these exceptions or limitations apply

Around 60% of the Groups are of the view that the exceptions and limitations should apply only to libraries or archives that are public, non-profit (non-commercial) and/or publicly accessible. For example, the Dutch and German Groups consider these exceptions and limitations to copyright protection are justified on the basis of public interest.

Around 20% of the Groups are of the view that the exceptions and limitations should apply to any kind of libraries, including private and for-profit libraries.

However, the Swiss and UK Groups, while taking the above view, suggest that certain libraries should be treated differently. The Swiss Group states that that publicly accessible libraries and archives should benefit from lower rates. The UK Group states that different considerations may apply if the organizations are of a commercial nature, such as private or commercial libraries.

b. To what activities should these exceptions or limitations apply

Around 40% of the Groups are of the view that the exceptions and limitations should apply to preservation and/or replacement purposes (including making back-up copies). For example, the Argentinian Group states that the following activities should be allowed: (a) making back-up copies for high-value documents and possible replacement for prevention in hypothetical cases of loss, theft or catastrophe; (b) making back-up copies for temporary moving purposes (e.g., when the documents are moved from libraries for an exhibition or fair); (c) making an access copy in order to avoid manipulation of a single original; and (d) making copies in order to prevent loss of data or inability to access documents for obsolescence issues.

Around one third of the Groups are of the view that the exceptions and limitations should apply to education and/or research activities.

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6 Groups are of the view that the exceptions and limitations should apply to providing on-site access to works (e.g., via reading stations).

8 Groups are of the view that the exceptions and limitations should apply to lending of copies (including e-books). On the other hand, the Japanese Group states that it is premature to apply the exceptions and limitations to lending of e-books.

5 Groups are of the view that the exceptions and limitation should apply to interlibrary lending of copies.

Examples of other exceptions and limitations raised by the Groups are:

• Making copies for criticism and/or news reporting purposes (2 Groups)

• Providing copies of works that became unavailable on the market (2 Groups)

• Making copies for personal use (2 Groups)

• Copy delivery services (1 Group)

• Data mining (1 Group).

c. Under what conditions should the activities be undertaken or the copyrighted work used?

The Groups’ answers to this question, as well as their levels of detail, vary greatly. Examples of the conditions stated in the Group Reports include:

• The activities should be in accordance with the Three Step Test. (3 Groups)

• The library or the archive should possess a legitimate copy. (6 Groups)

• Reproduction may be allowed only if the work is not otherwise commercially available. (4 Groups)

• Safeguard measures should be adopted with respect to digital copies. (3 Groups)

• Limitation on number of copies:

- In case of e-lending, one digital copy may be lend out to only one user (1 Group)

- In case of providing on-site access, the number of copies accessible at one moment should not be increased (1 Group)

- Only a single copy may be made (3 Groups)

• The Library or the archive should keep a record of to whom copies were provided. (1 Group).


a) To what educational and research institutions should these exceptions or limitations apply

Around 35% of the Groups are of the view that the exceptions and limitations should apply to all educational and research institutions (either public or private, for-profit or non-profit). Of these Groups, 4 are of the view that any such institutions may benefit from such exceptions and limitations, provided that their use of the copy is not for profit. For example, the German Group states that the exceptions should apply to all kinds of educational and research institutions, as long as they do not pursue any commercial purpose with the use.

Around 30% of the Groups are of the view that the exceptions and limitations should apply only to educational and research institutions that are public and/or non-profit (non-commercial).

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The Argentinian and the Greek Groups treat educational and research institutions differently: for educational institutions, the exceptions and limitations should apply to both public and private institutions; for research institutions only public research institutions should benefit from such exceptions and limitations.

The Australian Group is of the view that whether an educational institution qualifies for the exceptions and limitations should be determined by taking into account whether the main focus of the institution is to provide education and/or training, and whether the copy is provided for a charge in excess of costs. The Australian Group does not make any proposal in relation to research institutions.

The Danish Group is of the view that the exceptions and limitations should be available to institutions that have entered into a compulsory license agreement (under the Danish model).

b. To what activities should these exceptions or limitations apply

Around 40% of the Groups are of the view that the exceptions and limitations should apply to educational or research activities in general.

3 Groups are of the view that the exceptions and limitations should apply to providing of copies (including digital copies) to teachers and students.

The Brazilian Group is of the view that the exceptions and limitations should apply to the use and reproduction of works for the purpose of preservation and access to culture and education.

The Singaporean Group is of the view that the exceptions and limitations should apply to the provision of information, whether online or in physical format, for the purpose of education or research.

The Spanish Group is of the view that the exceptions and limitations should apply to reproduction and communication to the public for the benefit of professors, researchers, academics and students.

The Sri Lankan Group is of the view that the exceptions and limitation should apply to: (i) performance or display of works and reproduction or distribution for educational purposes in educational and research institutions; (ii) translations; and (iii) transmission via communication networks for educational and research purposes.

c) Under what conditions should the activities be undertaken or the copyrighted work be used?

The Groups’ answers to this question, as well as their levels of detail, vary greatly. Examples of the conditions stated in the Group Reports include:

• The activities should be in accordance with the Three Step Test (3 Groups)

• The institution should possess a legitimate copy (4 Groups)

• Reproduction should be allowed only if the work is not available in the marketplace (2 Groups)

• Only a portion of a work should be used where appropriate (3 Groups)

• The institution should give a notice to copyright owners to pay remuneration (1 Group)

• The author and the source should be cited whenever possible (2 Groups)

• Safeguard measures should be adopted with respect to digital copies (1 Group).

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26) Should use under the exception or limitation be permitted automatically (without any further action), or should certain criteria or procedure(s) be required? If so, what criteria/procedure(s)?

Around 70% of the Groups are of the view that use under the exception or limitation should be permitted automatically.

The Canadian Group states that use should be permitted automatically in general, but where the exception requires a considered balance between the rights holders and the users, it should be subject to review by an independent quasi-judicial body or a court.

The Italian Group states that use should be permitted automatically in general, but collective agreements are required in case of digitization of out-of-commerce works.

The Dutch Group states that use should be permitted automatically in general, but in case of orphan works, it should be subject to either a diligent search or a collective licensing scheme.

The Australian Group is of the view that the libraries and archives should keep a record of each copy made and to whom it was supplied. Also, educational institutions should give a notice to the copyright owner or a collecting society to pay equitable remuneration, and also pay the remuneration.

The Singaporean Group is of the view that institutions should notify the copyright owner that the work will be released to the public under certain exceptions or limitations.

27) How should any remuneration for use that falls under such exception or limitation be determined or calculated? Who should be liable for making such payment, and to whom should such payment be made?

The Groups’ answers to this question, as well as their levels of detail, vary greatly.As to how (by what means) a remuneration should be determined, examples in the Group Reports include:

• Private negotiation between the parties (2 Groups)

• Market (1 Group)

• Collective negotiation between representatives of each interest group (3 Groups)

• An independent quasi-judicial body (3 Groups).

As to the factors to be considered in calculating the amount of remuneration, examples of such factors provided in the Group Reports include:

• Amount copied (1 Group)

• Number of copies used (3 Groups)

• Market value of the work (1 Group)

• Nature of the material copied (e.g., whether it is illustration or text) (1 Group)

• Nature of use of the work (e.g., whether it is use by universities or primary/secondary schools) (2 Groups)

• Harm to copyright owner (2 Groups)

• Public or audience reached (1 Group)

• Revenue derived (2 Groups)

• The amount should be less than the amount paid for regular use of the work. (1 Group).

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As to who should make the payment, around 30% of the Groups are of the view that the payment should be made by the institution that uses the work. On the other hand, the Czech, the Estonian and the Paraguayan Groups are of the view that the State should make the payment, and the Polish Group is of the view that the money should come from special public funds. The German Group states that manufactures and importers of copying device should also pay the remuneration with respect to libraries and archives exceptions and limitations.

As to who should receive the payment, 6 Groups are of the view that payment should be made directly to the copyright owner, while 5 Groups are of the view that payment should be made to the collecting society. The Australian Group and the Central American & Caribbean Regional Group are of the view that payment should be made either to the copyright owner or the collective society.

5 Groups are of the view that remuneration should not be payable at all.

28) What special treatment, if any, should there be for use of orphan works within such exception or limitation?

Around 45% of the Groups are of the view that the institution must make a reasonable (diligent) search for the copyright holder before using an orphan work. For example, the Danish Group states that, as provided in EU Directive 2012/28/EU, the institution which wants to use the orphan work should be required to perform reasonable research in order to identify the copyright holder, and to the extent such research does not lead to a result, the institution should be allowed to use the material.

3 Groups are of the view that deposit of remuneration is required in the case of an orphan work.

2 Groups are of the view that attribution of authorship is required if possible.

The Central American & Caribbean Regional Group is of the view that remuneration could be less in case of an orphan work.

6 Groups are of the view that there should be no special treatment for orphan works.

29) In what circumstances should the exception or limitation be capable of being overridden by contract?

Around 40% of the Groups are of the view that the exception or limitations should not be capable of being overridden by contract.

Around 30% of the Groups state that the exceptions and limitations should be capable of being overridden by contract. However, most Groups with this view make certain reservations, for example:

• The contract should not be against public interest (2 Groups)

• There must be actual contract between the parties (4 Groups)

• The parties should have equal bargaining power on an arm’s length basis (1 Group)

• It can be overridden only in the case of out-of-commerce works (1 Group)

• The contract must be mutually more beneficial to both parties (1 Group)

• There must be permission by the copyright holder (1 Group).

The Canadian and the US Groups do no take a particular view on this issue. The Canadian Group states that this issue should be left to further study.

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30) How should any efforts by private organisations to address use by libraries, archives and educational and research institutions, be reconciled with any exception or limitation provided by law?

Many of the answers provided in the Group Reports do not seem to directly address this question.

There are however some useful suggestions. For example:

• The Belgian Group states that in cases where it is not clear whether the exception or limitation apply, it might be useful to address the use of the works through contractual arrangements

• The French and the Italian Groups state that the efforts of private organizations may be useful in areas beyond the scope covered by the exceptions or limitations (e.g., for-profit activities)

• The German Group states that it is in the genuine interest of collecting societies and right-holders to establish such private organizations in order to provide sustainable licensing models, where individual licensing is not feasible

• The Italian Group states that institutions may find it more efficient to rely on services offered by the copyright holders (e.g., contractual base e-lending service performed by publishers, massive digitization of collections)

• The Singaporean Group states that collective management organizations can facilitate requests for remuneration by copyright copyright holders, when the exceptions or limitations are invoked by the institutions.

Please comment on any additional issues concerning exceptions and limitations to copyright protection for libraries, archives and educational and research institutions you consider relevant to this Working Question.

The Egyptian Group comments that people with visual incapacity shall be entitled to benefit from a possibility to transform works into an appropriate form suitable to satisfy their needs.

The Italian Group comments that the exceptions and limitations provided in its copyright law apply also to neighbouring rights.

IV. Conclusions

General

Most Groups agree that there should be at least some kind of exceptions or limitations to copyright protection for libraries and archives, as well as for educational and research institutions.

Most Groups agree that the Three Step Test is a useful test for determining exceptions or limitations to copyright protection.

Exceptions or limitations for libraries and archives

As to the exceptions or limitations for libraries and archives, around 60% of the Groups agree that such exceptions or limitations should apply only to libraries or archives that are public, non-profit and/or publicly accessible, while around 20% of the Groups are of the view that they should apply to any kind of libraries and archives.

As to the type of activities to which the exceptions or limitations for libraries and archives apply, around 40% of the Groups agree that such exceptions or limitations should cover preservation and/or replacement, and around one third of the Groups agree that such exceptions or limitations should apply to education and/or research activities. Examples of other activities raised by the Groups are: (a) on-site access to works; (b) lending of copies (including e-books); and (c) interlibrary lending.

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As to the conditions for the exceptions or limitations for libraries and archives, the Groups’ answers vary greatly. Examples of the conditions raised by the Groups are: (a) the activities should be in accordance with the Three Step Test; (b) the library or the archive should possess a legitimate copy; (c) reproduction may be allowed only if the work is not otherwise commercially available; (d) safeguard measures should be adopted with respect to digital copies; and (e) limitation on number of copies.

Exceptions or limitations for educational and research institutions

As to the exceptions or limitations for educational or research institutions, around 35% of the Groups are of the view that such exceptions or limitations to apply to all educational and research institutions (whether public or private, for-profit or non-profit), while around 30% of the Groups are of the view that such exceptions or limitations should apply only to educational and research institutions that are public and/or non-profit.

As to the type of activities to which the exceptions or limitations for educational or research institutions, around 40% of the Groups are of the view that such exceptions or limitations should cover educational or research activities in general.

As to the conditions for the exceptions or limitations for educational and research institutions, the Groups’ answers vary greatly. Examples of the conditions raised by the Groups are: (a) the activities should be in accordance with the Three Step Test; (b) the library or the archive should possess a legitimate copy; (c) reproduction may be allowed only if the work is not otherwise in the marketplace; and (d) only a portion of a work may be used where appropriate.

Other issues

Around 70% of the Groups agree that use under the exceptions or limitations should be permitted automatically.

As to remuneration, around 70% of the Groups agree that remuneration should be payable at least under some circumstances, but the Groups disagree on under what circumstances remuneration should become payable. Examples of the Groups’ answers are: (a) remuneration should be paid in general; (b) remuneration does not have to be paid for preservation or replacement; (c) remuneration should be paid for public lending by libraries; and (d) remuneration should be paid for educational activities.

Also, the Groups disagree on who should determine the remuneration (e.g., private negotiation between the parties, collective negotiation between representatives of each interest group, an independent quasi-judicial body) and the factors to be taken into account in the determination (e.g., amount copied, number of copies used, nature of use of the work, harm to copyright holder). As to who should make the payment, more than a quarter of the Groups are of the view that the payment should be made by the institution itself, while a few Groups take the view that the state should make the payment. As to whom the payment should be made, some Groups state that the payment should be made directly to the copyright holder, while some other Group state that it should be made to the collective society.

As to the treatment of orphan works, around 45% of the Groups are of the view that an institution should make a reasonable (diligent) search of the copyright holder before using the orphan works.

Around 40% of the Groups are of the view that the exceptions or limitations should not be capable of overridden by contract, while around 30% of the Groups state that such exceptions or limitations may be overridden by contract, at least under certain conditions (e.g., not against public interest).

Finally, as to how the efforts by private organisations to address use by libraries, archives, educational and research institutions be reconciled with exceptions or limitations provided by law, the Groups’ views vary greatly. One example of such views is that, the efforts of private organizations may be useful in areas beyond the scope covered by the exceptions or limitations (e.g., for-profit activities).

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Resolution

Question Q246


Background:

1) ThisResolutionconcernstheissueofwhat,ifany,specificexceptionsandlimitationstocopyrightprotectionshouldberecognizedfor thebenefitof libraries,archivesandeducationalandresearchinstitutions.Otherpossibleexceptionsandlimitationstocopyrightprotection(e.g.forprivate/personaluseorfororphanworks)areoutsidethescopeofthisResolution,unlesstheyrelatetolibraries,archivesandeducationalandresearchinstitutions.

2) Various international treaties generally address the topic of this Resolution, stipulatinghowever that the issue ofwhether to create such exceptions and limitations is left to therelevantmemberstates.OneexampleisArticle10(2)oftheBerneConvention,whichdealswithutilizationof literaryorartisticworksfor teaching.Currently,atWIPOinitsStandingCommitteeonCopyrightandRelatedRights(SCCR),“limitationsandexceptionsforlibrariesandarchives”and“limitationsandexceptionsforeducationalandresearchinstitutions”arediscussedseparately,tryingtodevelopinstrumentstofosterharmonizationontheinternationallevel.IntheEU,acertaindegreeofharmonizationisprovidedbyDirectives2001/29/EU(CopyrightDirective)and2012/28/EU(OrphanWorksDirective).

3) Almost all national/regional legislation provides for some exceptions or limitations tocopyrightprotectionforthebenefitoflibraries,archives,educationalandresearchinstitutions.However,apartfromthisverybasicconsensus,thereareverydifferentapproachesastotherequirements,preconditions,scopeandfinancialconsequencesofanysuchexceptionsandlimitations.

4) As the collections of libraries and archives become more digitally accessible, theirgeographicalavailabilityincreases.Aspartofa“globalknowledgebase”,purelynational/regionallimitationsandexceptionsassumelessrelevance.Likewise,educationandresearchactivitiesarenolongerlimitedtoaphysicalcampus;classroomsandresearchlaboratoriesare becoming increasingly virtual, involving and relying on electronic exchange of andaccesstocopyrightedworks.

5) Againstthisbackground,atleastsomedegreeofinternationalharmonizationisdesirable.

6) ThetermThree-Step TestasusedinthisResolutionmeansthetestprovidedinArticle9(2)oftheBerneConvention,underwhichthereproductionofacopyrightedworkispermissible:(a) in certain special cases; (b) when the reproduction does not conflict with a normalexploitationofthework;and(c)whenthereproductiondoesnotunreasonablyprejudicethelegitimateinterestsoftheauthor.

7) 40Reportswere received fromAIPPI’sNationalandRegionalGroupsprovidingdetailedinformationandanalysis regardingnationaland regional laws relating to thisResolution.TheseReportswerereviewedbytheReporterGeneralofAIPPIanddistilledintoaSummaryReport.TheseindividualReportsandtheSummaryReportareavailableontheAIPPIwebsitewww.aippi.org.At theAIPPIWorldCongress inRiode Janeiro, the subjectmatterof this

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Resolutionwas furtherdiscussedwithinaWorkingCommitteeandagain ina fullPlenarySession,whichledtoadoptionofthepresentResolutionbytheExecutiveCommitteeofAIPPI.

AIPPI resolves that:

1) There should be some exceptions or limitations to copyright protection for libraries andarchives,andeducationalandresearchinstitutions.Theseexceptionsandlimitationsshouldbe adapted to the digital network environment to achieve a fair balance between thelegitimateinterestsofthecopyrightholdersandthepublic,andshouldbeconsistentwiththeThree-StepTest.

2) Withreferencetolibrariesandarchives,theexceptionsandlimitationsshouldapplytobothpublicandprivatelibrariesandarchives,butonlytolibrariesorarchivesthatarenot-for-profitandpubliclyaccessible.Withregardtoeducationalandresearchinstitutions,theexceptionsand limitations should apply to both public and private institutions, for non-commercialactivities.

3) Theexceptionsandlimitationswithregardtolibrariesandarchivesshouldallow,interalia:

a. reproduction including making back-up copies, large scale digitization and formatshifting,providedthattheyowntheoriginaloralawfullyacquiredcopy,ineachcasethereproductionbeingsolelyforthepurposesofpreservation,restorationorrepairofsaidoriginalorlawfullyacquiredcopy;

b. thereprographicanddigitalcopyingoforiginalsorlawfullyacquiredcopiesexistingintheircollectionsforuseswhichareprivateandnon-commercial;

c. themakingavailableondedicatedterminalsontheirpremisesofworksorothermaterialscontainedintheircollections;and

d. the inter-library lending of copies, including digital copies provided that a lawfullyacquiredcopyoftheworklentisheldbythelendinglibraryanddoesnotsubstituteforthepotentialpurchaseofsuchmaterials.

Inconnectionwithpoints3band3cabove,equitableremunerationshouldbepaidtothecopyrightholderbytheinstitutionusingthework,suchremunerationeithertobesetbyprivateagreementorthroughcollectiveagreementsbetweenrepresentativesoftherespectiveinterestgroupsor,failingsuchanagreement,tobedeterminedbyacourtorrelevantauthority.

4) Withreferencetoeducationalandresearchinstitutions,theexceptionsandlimitationsshouldallow the reproduction and communication to teachers, pupils, students and researchersof reasonableand limitedportionsofworks, for the solepurposesofgivingor receivinginstruction,andpreparingtherefor,withintheirpremisesand/orbymakingthemavailableonlineinarestrictedmanner.

Inconnectionwiththeaboveactivities,equitableremunerationshouldbepaidtothecopyrightholderbytheinstitutionusingthework,suchremunerationeithertobesetbyprivateagreementorthroughcollectiveagreementsbetweenrepresentativesoftherespectiveinterestgroupsor,failingsuchanagreement,tobedeterminedbyacourtorrelevantauthority.Indeterminingthelevelofanysuchremuneration,accountshouldbetakenoftheparticularcircumstancesofeachcase.Theremaybecaseswherenoobligationforpaymentmayarise.

5) Libraries and archives and educational and research institutions should have adequatesafeguardsinplacetoensurethelawfulandlegitimateexerciseofexceptionsandlimitations,so as to avoid undue prejudice to the exclusive rights of the copyright holders. Further,effective technological protection measures against unauthorized reproduction of digitalcontentshouldbeadopted.

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6) Alltheaboveactivitiesshouldbepermittedautomatically,withouttheneedtoapplyforpriorpermissionbyacourtorrelevantauthority.

7) Orphanworks should only be used by libraries, archives and educational and researchinstitutionsforpurposesconnectedwiththeirmissioninthepublicinterest.Libraries,archivesandeducationalandresearchinstitutionsshouldmakeadiligentsearchforanycopyrightholdersbeforeusinganorphanwork.Totheextentsuchresearchdoesnotleadtoapositiveresult,suchinstitutionsshouldbeallowedtousethework,subjecttoremunerationincaseanycopyrightholderissubsequentlyfound,andinwhichcaseattributionofauthorshipshallalsoberequired.

8) Theaboveexceptionsorlimitationsshouldinprinciplenotbecapableofbeingoverriddenbycontract,inviewofthepublicinterestunderlyingthem.Theymaybeoverriddenbycontractonlyandtotheextentthatthefundamentalrightsprotectedbytheexceptionsorlimitations,suchastherightofaccesstoinformation,therighttoeducation,andthefreedomofquotation,arenotundulyrestricted.

9) Efforts by private organizations, such as licensing organizations representing copyrightowners, to facilitate the use of works through contractual arrangements and payment ofroyaltiesandothercompensationtorightownersshouldbeencouraged.

Links:

• WorkingGuidelines http://aippi.org/wp-content/uploads/committees/246/WG246English.pdf

• SummaryReport http://aippi.org/wp-content/uploads/2015/10/SR246English.pdf

• GroupReportspage http://aippi.org/event/2015-aippi-world-congress/#group-reports

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Résolution

Question 246

Exceptions et limites à la protection par le droit d’auteur pour les bibliothèques, archives et instituts de recherche et d’enseignement

Rappelant que :

1) LaprésenteRésolutionportesurlaquestiondequellesexceptionsspécifiquesetlimitationsàlaprotection par le droit d’auteur devraient être reconnues en faveur des bibliothèques, archives et institutsderechercheetd’enseignement.D’autreséventuellesexceptionset limitationsàlaprotectionparledroitd’auteur(parexemplepourunusageprivé/personneloupourdesœuvresorphelines)sontendehorsdupérimètredelaprésenteRésolutionsaufdanslamesureoùellesserapportentauxbibliothèques,archivesetinstitutsderechercheetd’enseignement.

2) DiverstraitésinternationauxcouvrentdemanièregénéralelesujetdelaprésenteRésolutionenprévoyantcependantquec’estauxétatsmembresconcernésdedéciders’ilfautcréerdetellesexceptionsetlimitations.L’article10(2)delaConventiondeBerneparexempletraitede l’utilisation d’œuvres artistiques ou littéraires à des fins d’enseignement. Actuellement,l’OMPIdanssonComitéPermanentsurleDroitd’AuteuretlesDroitsVoisins(SCCR)discuteséparément des « limitations et exceptions pour les bibliothèques et archives » et des«limitationsetexceptionspour les institutsde rechercheetd’enseignement»,essayantdedévelopperdesinstrumentspourpromouvoirl’harmonisationauniveauinternational.Dansl’UnionEuropéenne,uncertaindegréd’harmonisationestassuréparlesDirectives2001/29/UE(Directivedroitsd’auteurs)et2012/2//UE(Directiveœuvresorphelines).

3) Presque toutes les législations nationales/régionales prévoient quelques exceptions oulimitationsà laprotectionpar ledroitd’auteuraubénéficedesbibliothèques,archivesetinstitutsderechercheetd’enseignement.Cependant,endehorsdececonsensusdebase,ily a des approches très différentes concernant les conditions, préconditions, l’étendue et les conséquencesfinancièresdetellesexceptionsetlimitations.

4) Amesureque lescollectionsdesbibliothèquesetarchivesdeviennentplusaccessiblesdemanière numérique, leur disponibilité géographique s’accroit. En tant qu’éléments d’une« base de savoir global », les limitations et exceptions purement nationales/régionalesdeviennentmoinspertinentes.Demême,lesactivitésd’enseignementetderecherchenesontpluslimitéesàuncampusphysique;lessallesdeclasseetlaboratoiresderecherchesontentraindedevenirdeplusenplusvirtuelles,comprenantetdépendantd’échangesetd’accèsélectroniquesàdesœuvresprotégéesparledroitd’auteur.

5) Danscecontexte,aumoinsuncertaindegréd’harmonisationinternationaleestdésirable.

6) L’expression Test des trois étapestellequ’utiliséedanslaprésenteRésolutionsignifieletestprévuàl’article9(2)delaConventiondeBerneselonlequellareproductiond’uneœuvreprotégéeparledroitd’auteurpeutêtrepermise:(a)danscertainscasspéciaux;(b)pourvuqu’une telle reproductionneportepasatteinteà l’exploitationnormalede l’œuvre ;et (c)quand la

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7) 40 Rapports ont été reçus des GroupesNationaux et Régionaux de l’AIPPI détaillant etanalysant les législationsnationaleset régionalesen relationavec laprésenteRésolution.CesRapportsontétérevusparleRapporteurGénéraldel’AIPPIetdistillésdansunRapportdeSynthèse.CesRapportsindividuelsainsiqueleRapportdeSynthèsesontdisponiblessurlesitedel’AIPPIwww.aippi.org.AuCongrèsMondialdel’AIPPIàRiodeJaneiro,lecontenudelaprésenteRésolutionaétédiscutéd’abordauseindelaCommissiondeTravailetensuiteenSéancePlénière,cequiaconduitàl’adoptiondelaprésenteRésolutionparleComitéExécutifdel’AIPPI.

L’AIPPI adopte la Résolution suivante :

1) Ildevraityavoirquelquesexceptionsoulimitationsàlaprotectionparledroitd’auteurenfaveurdesbibliothèques,archivesetinstitutsderechercheetd’enseignement.Cesexceptionset limitations devraient être adaptées à l’environnement numérique en réseau dans unéquilibreéquitableaveclesintérêtslégitimesdestitulairesdedroitd’auteuretdupublic,etdevraientêtrecohérentavecleTestdestroisétapes.

2) En ce qui concerne les bibliothèques et archives, les exceptions et limitations devraients’appliquer aux bibliothèques et archives publiques et privées, mais seulement auxbibliothèquesouarchivesquinerecherchentpasunavantageéconomiqueoucommercialetquisontaccessiblesaupublic.Encequiconcernelesinstitutsderechercheetd’enseignement,lesexceptionsetlimitationsdevraients’appliqueràdesinstitutspublicsetprivés,pourdesactivitésnon-commerciales.

3) En ce qui concerne les bibliothèques et archives, ces exceptions et limitations devraientpermettreentreautres:

a) La reproduction, y compris la création de copies de sauvegarde, la numérisation àgrandeéchelleetletransfertdeformat,àconditionqu’ellesdétiennentl’originalouunecopieacquiselicitement,lareproductionétantdanstouslescasseulementauxfinsdepréservation,restaurationouréparationduditoriginaloudelacopieacquiselicitement;

b) La copie reprographique et numérique des originaux ou copies acquises licitementexistantdansleurscollectionspourdesusagesàdesfinsprivéesetnoncommerciales;

c) Lamiseàdispositionsurdesterminauxdédiésdansleurslocauxdesœuvresouautresmatérielscontenusdansleurscollections;et

d) Le prêt entre bibliothèques de copies, y compris de copies numériques, à conditionqu’unecopieacquiselicitementdel’œuvreprêtéesoitdétenueparlabibliothèquequiprêteetnesesubstituepasàl’achatéventueldecematériel;

Enrapportaveclespoints3bet3csusvisés,unerémunérationéquitabledevraitêtrepayéeau titulairedesdroits d’auteur par l’institut qui utilise l’œuvre, ladite rémunérationdevantêtrefixéeparaccordprivéoupardesaccordscollectifsentrelesreprésentantsdesgroupesd’intérêtrespectifsou,àdéfautd’untelaccord,paruntribunalouautoritécompétente.

4) Encequiconcernelesinstitutsderechercheetd’enseignement,lesexceptionsetlimitationsdevraientpermettrelareproductionetcommunicationàdesenseignants,élèves,étudiantsetchercheursdeportionsraisonnablesetlimitésd’œuvresauxseulesfinsdedonnerourecevoirde l’enseignement,etd’ypréparer,dans leurs locauxet/ouen lesrendantdisponiblesenlignedemanièrerestrictive;

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Danslecadredesactivitésmentionnéesci-dessus,unerémunérationéquitabledevraitêtreverséeautitulairedesdroitsd’auteurparl’institututilisantl’œuvre,laditerémunérationdevantêtrefixéeparaccordprivéoupardesaccordscollectifsentrelesreprésentantsdesgroupesd’intérêtrespectifsou,àdéfautd’untelaccord,paruntribunalouautoritécompétente.Pourdéterminer leniveaudecette rémunération, lescirconstancesdechaquecasdoiventêtreprisesencompte.Ilpeutyavoirdescasquinedonnentpaslieuàobligationdepaiement.

5) Les bibliothèques et archives et instituts de recherche et d’enseignement devraientmettreen place des mesures de sécurité adéquats pour assurer l’exercice licite et légitime desexceptions et limitations afin d’éviter un préjudice indu aux droits exclusifs des titulairesdesdroitsd’auteur.Aussi,desmesuresdeprotectiontechniquescontrelareproductionnonautoriséedevraientêtreadoptées.

6) Toutes les activités ci-dessus devraient être permises automatiquement sans nécessité dedemanderuneautorisationpréalableàuntribunalouuneautoritécompétente.

7) Lesœuvresorphelinesdevraient seulementêtreutiliséespar lesbibliothèques,archivesetinstitutsderechercheetenseignementàdesfinsenlienavecleursmissionsd’intérêtpublic.Les bibliothèques, archives et instituts de recherche et d’enseignement devraient effectuerune recherche diligente pour trouver les titulaires des droits d’auteur avant d’utiliser une œuvreorpheline.Danslamesureoùcetterecherchen’aboutitpasàunrésultatpositif,cesinstitutionsdevraientêtreautoriséesàutiliserl’œuvresousréservederémunérationaucasoùun titulaire des droits d’auteur est ensuite trouvé, auquel cas l’attribution de la paternité sera égalementrequise.

8) Lescontratsnedevraientpasenprincipepouvoirl’emportersurlesexceptionsoulimitationseu égard à l’intérêt public qui les sous-tend. Elles peuvent être outrepassées par contratseulement et dans lamesure où les droits fondamentaux protégés par les exceptions oulimitations, telsqueledroitàl’accèsàl’information, ledroitàl’éducationet lalibertédecitationnesontpaslimitésdemanièreindue.

9) Deseffortspardesorganisationsprivéestellesquedesorganisationsdegestioncollectivereprésentant les titulairesdedroitsd’auteurvisantàfaciliter l’utilisationd’œuvresàtraversdesarrangementsconventionnelsetpaiementderedevancesetautrescompensationsauxtitulairesdesdroitsdevraientêtreencouragés.

LIENS :

• Orientations de travail http://aippi.org/wp-content/uploads/committees/246/WG246English.pdf

• Rapport de synthèse http://aippi.org/wp-content/uploads/2015/10/SR246English.pdf

• Rapports des groupes http://aippi.org/event/2015-aippi-world-congress/#group-reports

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Resolution

Frage Q246

Ausnahmen und Beschränkungen des Urheberrechtsschutzes für Bibliotheken und Archive sowie für Bildungs-

und Forschungseinrichtungen

Background:

1) Diese Resolution betrifft die Frage, ob, und wenn ja welche, besonderen Ausnahmen und Beschränkungen des Urheberrechtsschutzes zugunsten von Bibliotheken, Archiven sowie Bildungs- und Forschungseinrichtungen anerkannt werden sollten. Andere mögliche Ausnahmen und Beschränkungen vom Urheberrechtsschutz (z.B. für privaten/persönlichen Gebrauch oder für verwaiste Werke) liegen außerhalb dieser Resolution, es sei denn sie betreffen Bibliotheken, Archive sowie Bildungs- und Forschungseinrichtungen.

2) Verschiedene internationale Abkommen adressieren in allgemeiner Form den Gegenstand dieser Resolution, wobei sie allerdings bestimmen, dass die Frage, ob derartige Ausnahmen und Beschränkungen eingeführt werden sollen, den Vertragsstaaten überlassen bleibt. Ein Beispiel ist Art. 10 (2) der Berner Übereinkunft, der den Gebrauch von literarischen oder künstlerischen Werken für die Lehre behandelt. Gegenwärtig werden im Ständigen Ausschuss der WIPO für Urheberrecht und Verwandte Rechte (SCCR) „Beschränkungen und Ausnahmen für Bibliotheken und Archive“ sowie „Beschränkungen und Ausnahmen für Bildungs- und Forschungseinrichtungen“ getrennt diskutiert mit dem Versuch, Instrumente zu entwickeln, um die Harmonisierung auf internationaler Ebene voranzubringen. In der EU schaffen die Richtlinien 2001/29/EU (Urheberrechtsrichtlinie) und 2012/28/EU (Richtlinie über verwaiste Werke) einen gewissen Grad an Harmonisierung.

3) Beinahe alle nationalen und regionalen Gesetzgebungen enthalten einige Ausnahmen oder Beschränkungen des Urheberrechtsschutzes zugunsten von Bibliotheken, Archiven, Bildungs- und Forschungseinrichtungen. Über diesen sehr allgemeinen Konsens hinaus gibt es indes sehr verschiedene Ansätze hinsichtlich der Anforderungen, Voraussetzungen, Umfang und finanziellen Konsequenzen derartiger Ausnahmen und Beschränkungen.

4) Mit der zunehmenden digitalen Zugänglichkeit der Sammlungen von Bibliotheken und Archiven wächst auch deren geographische Verfügbarkeit. Als Teil einer „globalen Wissensbasis“ besitzen reine nationale/regionale Beschränkungen und Ausnahmen weniger Relevanz. In gleicher Weise sind auch Bildungs- und Forschungsaktivitäten nicht länger physisch auf einen Campusbegrenzt; Klassenräume und Forschungslaboratorien werden zunehmend virtuell und schließen den elektronischen Austausch von und Zugang zu urheberrechtlich geschützten Werken ein und stützen sich darauf.

5) Vor diesem Hintergrund ist zumindest ein gewisser Grad an internationaler Harmonisierung wünschenswert.

6) Der in dieser Resolution verwendete Begriff „Drei-Stufen-Test“ bezeichnet den Test nach Artikel 9 (2) der Berner Übereinkunft, wonach die Vervielfältigung eines urheberrechtlich geschützten Werkes zulässig ist (a) in gewissen Sonderfällen, wenn (b) die Vervielfältigung weder die normale Auswertung des Werkes beeinträchtigt noch (c) die berechtigten Interessen des Urhebers unzumutbar verletzt.

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7) Von den nationalen und regionalen Gruppen der AIPPI wurden 40 Berichte eingesandt, die detaillierte Informationen und Analysen der nationalen und regionalen Rechtsordnungen in Bezug auf diese Resolution liefern. Diese Berichte wurden vom Generalberichterstatter ausgewertet und in einen Zusammenfassenden Bericht destilliert. Diese individuellen Berichte sowie der Zusammenfassende Bericht sind auf der Webseite der AIPPI verfügbar (www.aippi.org). Während des Weltkongresses der AIPPI in Rio de Janeiro wurde der Gegenstand dieser Resolution in einem Arbeitsausschuss und sodann in einer Plenarsitzung näher diskutiert, was zur Annahme der vorliegenden Resolution durch den Geschäftsführenden Ausschuss der AIPPI geführt hat.

AIPPI beschließt:

1) Es sollte gewisse Ausnahmen und Beschränkungen des urheberrechtlichen Schutzes für Bibliotheken und Archive sowie Bildungs- und Forschungseinrichtungen geben. Diese Ausnahmen und Beschränkungen sollten dem Umfeld der digitalen Netzwerke angepasst sein, um ein faires Gleichgewicht zwischen den berechtigten Interessen des Urhebers und der Öffentlichkeit zu erzielen, und sollten mit dem Drei-Stufen-Test in Einklang stehen.

2) In Bezug auf Bibliotheken und Archive sollten die Ausnahmen und Beschränkungen sowohl auf öffentliche als auch private Bibliotheken und Archive anwendbar sein, jedoch nur auf solche Bibliotheken und Archive, die nicht auf Gewinnerzielung ausgerichtet und die öffentlich zugänglich sind. In Bezug auf Bildungs- und Forschungseinrichtungen sollten die Ausnahmen und Beschränkungen sowohl auf öffentliche als auch private Institutionen für nicht-kommerzielle Aktivitäten anwendbar sein.

3) In Bezug auf Bibliotheken und Archive sollten derartige Ausnahmen und Beschränkungen unter anderem das Folgende gestatten:

a. die Vervielfältigung unter Einschluss der Erstellung von Sicherungskopien, der Digitalisierung im großen Umfang und der Formatänderung unter der Voraussetzung, dass sie Eigentümer des Originals oder einer rechtmäßig erworbenen Kopie sind, wobei in jedem Falle die Vervielfältigung lediglich für die Zwecke der Erhaltung, Restauration oder Reparatur des erwähnten Originals oder der rechtmäßig erworbenen Kopie erfolgen darf;

b. die Fotokopie oder digitale Kopie der in ihren Sammlungen vorhandenen Originale oder rechtmäßig erworbenen Kopien für eine private und nicht kommerzielle Verwendung;

c. das Zurverfügungstellen von in ihren Sammlungen enthaltenen Werken oder anderen Materialien auf festgelegten Terminals vor Ort;

d. das Verleihen von Kopien von Bibliotheken untereinander unter Einschluss von digitalen Kopien unter der Voraussetzung, dass die verleihende Bibliothek eine rechtmäßig erworbene Kopie des verliehenen Werkes besitzt und diese Kopie nicht den möglichen Kauf derartiger Materialien ersetzt.

Im Zusammenhang mit den zuvor genannten Punkten 3(b) und 3(c) sollte eine angemessene Entschädigung an den Inhaber der Urheberrechte durch diejenige Institution gezahlt werden, die das Werk nutzt. Diese Entschädigung sollte entweder durch private Vereinbarung oder durch Kollektivvereinbarungen zwischen Vertretern der entsprechenden Interessengruppen festgelegt werden. Wo derartige Vereinbarungen fehlen, sollte die Entschädigung durch ein Gericht oder die zuständige Behörde festgesetzt werden.

4) In Bezug auf Bildungs- und Forschungseinrichtungen sollten die Ausnahmen und Beschränkungen die Vervielfältigung und Verbreitung von angemessenen und begrenzten Teilen von Werken an Lehrende, Schüler, Studierende und Forschende ausschließlich zum

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Zwecke der Erteilung oder des Empfangs von Ausbildung sowie der Vorbereitung dazu vor Ort sowie im Wege desZugänglichmachens online in begrenzter Weise umfas-sen.

Im Zusammenhang mit den zuvor genannten Tätigkeiten sollte eine angemessene Entschädigung an den Inhaber der Urheberrechte durch diejenige Institution gezahlt werden, die das Werk nutzt. Diese Entschädigung sollte entweder durch private Vereinbarung oder durch Kollektivvereinbarungen zwischen Vertretern der entsprechenden Interessengruppen festgelegt werden. Wo derartige Vereinbarungen fehlen, sollte die Entschädigung durch ein Gericht oder die zuständige Behörde festgesetzt werden. Bei der Bestimmung der Höhe dieser Entschädigung sollten die besonderen Umstände jedes Falles berücksichtigt werden. Es mag Fälle geben, in denen keine Verpflichtung zur Zahlung entsteht.

5) Bibliotheken und Archive sowie Bildungs- und Forschungseinrichtungen sollten angemessene Vorkehrungen dafür treffen, dass die rechtmäßige und berechtigte Ausübung von Ausnahmen und Beschränkungen gewährleistet ist, um unangemessene Beeinträchtigungen der Ausschließlichkeitsrechte des Inhabers der Urheberrechte zu verhindern. Ebenso sollten effektive technische Maßnahmen gegen die unberechtigte Vervielfältigung von digitalen Inhalten getroffen werden.

6) Sämtliche vorstehend genannten Tätigkeiten sollten automatisch gestattet sein, ohne dass es der vorherigen Erteilung einer Erlaubnis durch ein Gericht oder die zuständige Behörde bedarf.

7) Verwaiste Werke sollten durch Bibliotheken, Archive sowie Bildungs- und Forschungseinrichtungen nur für Zwecke genutzt warden, die im Zusammenhang mit ihrer Aufgabe im öffentlichen Interesse stehen. Bibliotheken, Archive sowie Bildungs- und Forschungseinrichtungen sollten eine ausreichende Suche nach dem Inhaber von Urheberrechten vor der Nutzung verwaister Werke durchführen. Soweit diese Suche nicht zu einem positiven Ergebnis führt, sollte es diesen Institutionen gestattet sein, das Werk zu nutzen, vorbehaltlich einer Entschädigung in dem Fall, dass nachträglich ein Inhaber von Urheberrechten aufgefunden wird, und unter der weiteren Voraussetzung, dass in diesem Fall die Zuordnung der Urheberschaft erforderlich ist.

8) Die oben genannten Ausnahmen oder Beschränkungen sollten wegen des zugrundeliegenden öffentlichen Interesses grundsätzlich nicht durch vertragliche Vereinbarungen aufgehoben werden können. Sie mögen nur durch vertragliche Vereinbarungen und nur soweit aufgehoben werden, dass die durch die Ausnahmen und Beschränkungen geschützten fundamentalen Rechte, wie das Recht auf Zugang zu Informationen, das Recht auf Bildung und die Zitierfreiheit, nicht ungebührlich beschränkt werden.

9) Anstrengungen privater Organisationen, wie Lizenzierungsorganisationen, die die Inhaber von Urheberrechten vertreten, mit dem Ziel, den Gebrauch von Werken mit Hilfe von vertraglichen Vereinbarungen und der Zahlung von Lizenzgebühren und anderen Entschädigungen an Rechteinhaber zu erleichtern sollten unterstützt werden.

Links:

• Zusammenfassender Berichthttp://aippi.org/wp-content/uploads/2015/10/SR246English.pdf

• Arbeitsrichtlinien http://aippi.org/wp-content/uploads/committees/246/WG246English.pdf

• Gruppenberichtehttp://aippi.org/event/2015-aippi-world-congress/#group-reports

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Resolución

Cuestión Q246

Excepciones y limitaciones de la protección del derecho de autor en beneficio de bibliotecas, archivos e instituciones

educativas y de investigación

Antecedentes:

1) EstaResoluciónhacereferenciaaqué limitacionesyexcepcionesespecíficasdelderechodeautor,siesquelashay,debenserreconocidasenbeneficiodebibliotecas,archivoseinstitucioneseducativasydeinvestigación.Otrasposiblesexcepcionesy limitacionesa laproteccióndederechodeautor(porejemplo,parausoprivado/personaluobrashuérfanas)seencuentranfueradelalcancedeestaResolución,anoserqueesténrelacionadasconbibliotecas,archivoseinstitucioneseducativasydeinvestigación.

2) Sinembargo,variostratadosinternacionalesabordanelasuntodeestaResoluciónestipulandoqueladecisiónsobresicreardichasexcepcionesylimitacionesdebedejarseenmanosdelEstadomiembroencuestión.UnejemplopuedeserelArtículo10(2)delaConvencióndeBerna,quetrataelusodeobrasliterariasyartísticasenlaenseñanza.Actualmente,laOMPI,ensuComitéPermanentedeDerechodeAutoryDerechosConexo(SCCR),“limitacionesyexcepcionesparabibliotecasyarchivos”y“limitacionesyexcepcionespara institucioneseducativasydeinvestigación”,sondiscutidasdemaneraseparada,intentandodesarrollarinstrumentosparafomentarlaarmonizaciónanivelinternacional.EnlaUE,ciertogradodearmonizaciónquedaproporcionadoporlasDirectivas2001/29/CE(relativaaderechosdeautor)y2012/28/EU(relativaaobrashuérfanas).

3) Casitodalanormativanacional/regionalproporcionaregulaciónsobreciertasexcepcionesy limitaciones del derecho de autor en beneficio de bibliotecas, archivos e institucioneseducativasydeinvestigación.Sinembargo,peseaesteconsensotanbásico,existendistintosenfoques en relación a requisitos, presupuesto, alcance y consecuencias financieras, decualquiertipodeexcepciónylimitación.

4) Amedidaque las coleccionesde lasbibliotecasy losarchivos sehacenmásaccesiblesdigitalmente,sualcancegeográficoseamplía.Comopartede la“basedeconocimientoglobal”, las limitaciones y excepciones puramente nacionales/regionales asumen menorrelevancia.Asimismo,lasactividadeseducativasydeinvestigaciónyanoselimitanúnicamenteauncampusfísico;lasaulasyloslaboratoriosdeinvestigaciónestánconvirtiéndosecadavezmásenvirtuales,implicandoydependiendodelosintercambioselectrónicosyelaccesoalasobrasdederechosdeautor.

5) Enesecontexto,alcanzarciertopuntodearmonizacióninternacionalseríaconveniente.

6) El término Test de los Tres Pasos tal y como se emplea en esta Resolución hace referencia altestprevistoenelArtículo9(2)delaConvencióndeBerna,bajoelcual,lareproducciónde unaobradederechosdeautor quedapermitida: (a) en ciertos casos especiales; (b)cuandounareproducciónnoentraenconflictoconunaexplotaciónnormaldelaobra;y(c)cuandolareproducciónnoperjudicademanerairracionallosintereseslegítimosdelautor.

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7) 40InformesfueronrecibidosdelosGruposNacionalesyRegionalesdelaAIPPIdetallandoinformaciónyanálisissobrelanormativanacionalyregionalrelativaaestaResolución.EstosInformesfueronrevisadosporelRelatorGeneraldelaAIPPIycondensadosenunInformedeSíntesis.DichosInformesindividualesasícomoelInformedeSíntesisestándisponiblesenlawebdelaAIPPI(www.aippi.org).EnelCongresoMundialdelaAIPPI,enRíodeJaneiro,eltemadeestaResoluciónfuelargamentediscutidoenelComitédeTrabajoydespuésenSesiónPlenaria,loquellevóalaadopcióndelapresenteResoluciónporelComitéEjecutivodelaAIPPI.

La AIPPI resuelve que:

1) Deberían existir ciertas excepciones o limitaciones a la protección del derecho de autoren beneficio de bibliotecas, archivos e instituciones educativas y de investigación. Estasexcepciones y limitaciones deberían adaptarse al entorno digital en equilibrio justo conlosintereseslegítimosdelostitularesdelosderechosdeautorydelpúblico,asícomoserdeterminadasdeconformidadconelTest de los Tres Pasos.

2) Enrelaciónalasbibliotecasylosarchivos,lasexcepcionesylimitacionesdeberíanaplicarsea las bibliotecas y archivos tanto públicos como privados, pero siempre que sean sinánimodelucroypúblicamenteaccesibles.Encuantoalasinstitucionesdeeducaciónydeinvestigación,lasexcepcionesylimitacionesdeberíanaplicarsetantoainstitucionespúblicascomoprivadas,paraactividadesconosinánimodelucro.

3) En loquese refierea lasbibliotecasyarchivos, lasexcepcionesy limitacionesdeberíanpermitir,interalia:

a) Lareproducción,incluyendohacercopiasdeseguridad,ladigitalizaciónagranescala,yelcambiodeformatosiemprequeseposeaeloriginalounacopiaadquiridalegalmente;en cada caso, la reproducción deberá tener como único objetivo la preservación,restauraciónolareparacióndedichacopiaoriginalolegalmenteadquirida;

b) Lacopiadigitalydereprografíadeobrasoriginalesolegalmenteadquiridasexistentesensucolección,parausoconfinesprivados,nocomerciales;

c) Lapuestaadisposiciónenterminalesespecializados,ubicadosensusestablecimientos,deobrasuotrosmaterialescontenidosensuscolecciones;

d) Préstamosdecopiasinter-bibliotecas,incluyendocopiasdigitales,siempreycuandounacopialegítimadelaobraprestadasemantengaenlabibliotecaprestamistaynosesustituyaporlacomprapotencialdedichosmateriales;

Enrelaciónalasactividadescitadasenlospuntos3.b)y3.c),unaremuneraciónequitativadeberíaserpagadaaltitulardelderechoporlasinstitucionesquehaganusodesuobra,debiendo,dicharemuneraciónseracordadamedianteacuerdoprivadooacuerdocolectivoentrelosrepresentantesdelosgruposdeinterésrespectivos,ydebiendoserdeterminadaporlostribunalesencasodenollegaraacuerdo.

4) Encuantoa las institucioneseducativasyde investigación lasexcepcionesy limitacionesdeberían permitir la reproducción y comunicación a profesores, pupilos, estudiantes einvestigadores,departes razonablesy limitadasde lasobras, conel únicofindedarorecibirinstrucción,ysupreparación,yaseadentrodesusinstalacionesy/oponiéndolasadisposiciónenlíneaenformarestrictiva.

En relación a las actividades citadas anteriormete, una remuneración equitativa deberíaserpagadaal titulardelderechopor la instituciónquehagausodesuobra,debiendo,dicharemuneración,seracordadamedianteacuerdoprivadooacuerdocolectivoentrelos

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representantesde losgruposde interés respectivos, ydebiendo serdeterminadapor lostribunalesoautoridadrelevanteencasodenollegaraacuerdo.Paradeterminarelniveldecadaremuneración,setomaránencuentalascircunstanciasparticularesdecadacaso.Puedehabercasosdondenosurjalaobligacióndepagar.

5) Bibliotecas, archivos e instituciones educativas o de investigación deberían disponer degarantías adecuadas para asegurar un ejercicio legal y legítimo de las excepciones ylimitaciones,afindeevitarunperjuicioindebidoalosderechosexclusivosdeltitulardelosderechosdeautor.Además,deberíanadoptarsemedidasdeproteccióntecnológicafrenteareproduccionesnoautorizadas.

6) Todas las actividades anteriores, deberían permitirse automáticamente sin necesidad desolicitarunpermisoauntribunaloautoridadrelevante.

7) Lasobrashuérfanassólodeberíanserusadaspor lasbibliotecas,archivose institucioneseducativasyde investigaciónconobjetivosconectadosasumisiónenel interéspúblico.Bibliotecas,archivose institucioneseducativasyde investigación,deberían llevaracabounainvestigacióndiligenteparalostitularesdelderechodeautorantesdeusarunaobrahuérfana.Enestesentido,cuandoesta investigaciónno lleveaningúnresultadopositivo,dichainstitucióntendráelderechoausaresaobra,aunquesiempresujetoaldepósitodelaremuneraciónparaelcasoenqueseidentifique,posteriormente,altitulardelderecho,encuyocasotambiénserequerirálaatribucióndeautoría.

8) Lasexcepcionesylimitacionesanterioresnodeberían,enprincipio,sercapacesdeanularsepor contrato en vistas al interés público subyacente. Podrían quizá, ser anuladas porcontrato,únicamentecuandoderechos fundamentalesprotegidosporesasexcepcionesylimitacionesnoesténindebidamenterestringidos,comoporejemploelderechodeaccesoalainformación,elderechoalaeducaciónyelderechoalalibertaddecita.

9) Deberían fomentarse los esfuerzos llevados a cabo por organizaciones privadas, comoorganizacionesqueotorganlicenciasrepresentandoatitularesdederechosdeautor,parafacilitarelusodelasobrasmediantedisposicionescontractualesypagodecánonesyotrotipodecompensaciónalostitularesdelderecho.

Enlaces:

• Guíasdetrabajo(WorkingGuidelines) http://aippi.org/wp-content/uploads/committees/246/WG246English.pdf

• Informedesíntesis(SummaryReport) http://aippi.org/wp-content/uploads/2015/10/SR246English.pdf

• Informesdelosgrupos http://aippi.org/event/2015-aippi-world-congress/#group-reports

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Table of contents2015 AIPPI World Congress – Rio de Janeiro

October 10, 2015 - October 14, 2015

I. The Questions on the Agenda .............................................................. 5 Les questions à l’ordre du jour ........................................................... 5 Die Fragen der Tagesordnung ............................................................. 5

II. Q246: Exceptions and limitations to copyright protection for libraries, archives and educational and research institutions

Q246: Exceptions et limites de la protection du droit d’auteur pour les bibliothèques et archives et pour les instituts de recherche et d’enseignement

Q246: Ausnahmen und Beschränkungen des Urheberrechtsschutzes für Bibliotheken und Archive sowie für Bildungs- und Forschungseinrichtungen

Working Guidelines ................................................................................ 11 Orientation de travail Arbeitsrichtlinien

Group Reports: Rapports des Groupes: Gruppenberichte:

Argentina ........................................................................................................ 20 Australia.......................................................................................................... 28 Belgium .......................................................................................................... 48 Brazil .............................................................................................................. 66 Bulgaria .......................................................................................................... 73 CA-Caribbean Regional-Group .......................................................................... 81 Canada .......................................................................................................... 89 China ............................................................................................................. 102 Czech Republic ............................................................................................... 113 Denmark ........................................................................................................ 121 Egypt .............................................................................................................. 130 Estonia ............................................................................................................ 136 Finland ........................................................................................................... 147 France ............................................................................................................ 157 Germany ........................................................................................................ 182 Greece ........................................................................................................... 205 Hungary ......................................................................................................... 213 India ............................................................................................................... 221 Indonesia ........................................................................................................ 233 Italy ................................................................................................................ 240 Japan ............................................................................................................. 255

501

Latvia .............................................................................................................. 273 Mexico............................................................................................................ 282 Netherlands ..................................................................................................... 291 New Zealand .................................................................................................. 306 Paraguay ........................................................................................................ 313 Philippines ....................................................................................................... 320 Poland ............................................................................................................ 328 Republic of Korea ............................................................................................. 335 Russia ............................................................................................................. 344 Singapore ....................................................................................................... 349 Spain .............................................................................................................. 366 Sri Lanka ......................................................................................................... 380 Sweden ........................................................................................................... 390 Switzerland .................................................................................................... 402 Turkey ............................................................................................................. 413 United Kingdom ............................................................................................... 425 United States of America ................................................................................... 445 Uruguay .......................................................................................................... 454 Venezuela ....................................................................................................... 461

Summary Report ...................................................................................... 469 Rapport de synthèse Zusammenfassender Bericht

Resolution .................................................................................................. 488 Résolution Entschliessung Resolución

YEARBOOK 2015 / III2015 aippi world congress – rio de janeiro october 10, 2015 - october 14, 2015...

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