IRIS Plus 2017-1: Exceptions and limitations to copyright
Author: Francisco Javier Cabrera Blázquez, Maja Cappello, Gilles Fontaine, Sophie Valais, European Audiovisual Observatory
In the beginning, information was free. “Not who said it, but what was said - this was what mattered”. But with time, as soon as the connection between information and power, including religious power, became clear, copyright was introduced as a property right, with privileges to those who would take care of reproducing written texts, either manually, as in the case of monks, or in print after Gutenberg’s era, and distributing them to a wider audience.
It was only in the XIX century that the relationship between authors’ rights and other reasons of public interest was analysed by courts and parliaments, and then enshrined in the Berne convention in 1886. In his speech at the first 1884 Berne Conference, the Chairman of the Conference, Numa Droz, underlined that “Consideration also has to be given to the fact that limitations on absolute protection are dictated, rightly in my opinion, by the public interest. The ever-growing need for mass instruction could never be met if there were no reservation of certain reproduction facilities, which at the same time should not degenerate into abuses”.
Since property rights are absolute, the result of this balancing of interests was legally translated into the concept of an exception to intellectual property rights, with the connected obligation of restrictive interpretation, as is the case with any exceptional provision according to the general principles of law. As can be imagined, the public needs underlying the balancing of possibly conflicting interests have naturally evolved over time, which explains the succession of rules in this domain.
This IRIS Plus aims at providing a general overview of the rationale and the evolution of the exceptions and limitations to copyright (chapter 1) in the numerous international treaties and European directives devoted to this topic (chapter 2), and in the consequent ratifications and implementations at national level (chapter 3). Particular attention is given to the challenges deriving from the digital revolution, such as the adaptations of the rules concerning temporary acts of reproduction, private copying and exceptions for cultural heritage institutions to the online context.
At the same time, this is an area where the initiatives from the industry have been particularly welcomed at EU level (chapter 4). This has been the case in the field of out-of-commerce works or of accessible copies for people with disabilities. The increasing use of so-called copyleft licenses, such as open-source software or creative commons licenses, also bears witness to the inventiveness of private actions..
As is the case when interests of a different nature have to be balanced against each other, judicial case law has been very significant also in the domain of copyright exceptions (chapter 5). Considering the harmonised nature of these rules, the report focuses on EU jurisprudence, which has been an important source of inspiration both for national courts and legislators.
The publication rounds up with an overview of the state of play of EU legislation under the Digital Single Market Strategy (chapter 6). The most recent iniatives under the so-called copyright package are explored – text and data mining, cross-border uses in the field of education, the preservation of cultural heritage and accessible formats for people with disabilities. An insight is also given into pending issues, such as e-lending, panorama exception and private copying, which remain to be dealt with by future legislative actions and…future reports from the European Audiovisual Observatory.