Infringement

IRIS Extra 2016-1: Exceptions to copyright in Russia and the “fair use” doctrine

Published: 14/04/2016

Anyone who wishes to comment on, criticise or make a parody of a copyrighted work may quote a portion of it without the author’s permission. This principle is grounded in the notion that without this freedom any author could prevent the expression of possible negative comments about his or her work, with a clear impact on freedom of expression and pluralism of information. Considered from a different perspective, this freedom to quote is an exception to an exclusive right of a rightsholder: what would in principle qualify as an infringement, namely the use of another author’s work without prior consent to do so, would under these circumstances be considered legitimate.

This tension between copyright and freedom of speech, which are both recognised as fundamental rights in various international treaties, explains why copyright laws are accompanied by a set of limitations. This encapsulates the US “fair use” doctrine, and is also the rationale of the exceptions to copyright in European countries and of the so-called “free use” principle applied in the Russian Federation.

According to the US Constitution, the very purpose of copyright is "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". As copyright includes a limitation on the right to copy or replicate a work, one could be lead to believe that rather than fostering creativity, it represents an obstacle for other people to create and to build on other people's creation. However, it is exactly thanks to the “transformative” use that is allowed by the exceptions and limitations to copyright that a new work might be created.

Under the fair use doctrine, a “transformative use” – as distinct from “derivative work”, which also implies a certain degree of transformative effect – makes a new, original work. Absent this transformative effect, the result would be plagiarism, namely a copyright infringement. A long time before these concepts were translated into modern law, Martial wrote about his rival poet Fidentinus, who had performed one of his works in public pretending he was the author, that “Quem recitas meus est, o Fidentine, libellus: sed male cum recitas, incipit esse tuus” (the little book you are reciting is one of mine, Fidentinus, but you are reciting it so badly, it’s turning into one of yours). This epigram clearly exemplifies the author’s perception of ownership of the initial creation, but also his disclaimer when the transformative effect is so evident (in this case negatively so) that the result is a new work, of which the initial author rejects his ownership.

The purposes of fostering creativity become evident when the effect of a legitimate transformative use is a new work. Nevertheless, this should happen within clearly defined perimeters, otherwise the effect would be quite different; namely the violation of the exclusive rights of rightsholders and, consequently, an infringement of copyright rules. This is the reason why limitations and exceptions to exclusive rights are allowed in certain special cases, provided that they do not conflict with normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rightsholders, according to the so-called ‘three-step’ test provided for by the WIPO Copyright Treaties.

In summary, the rule is that copyright is an exclusive right, whereas the exceptions to it may be allowed in certain special cases in the name of potentially conflicting freedoms, such as those of expression and information, or of education and research, or in order to safeguard certain environments, such as prisons or hospitals, or people, such as persons with disabilities. These exceptions, to be interpreted restrictively, are intended to provide some flexibility to certain uses of a copyrighted work.

The distinction between copyright infringement and legitimate copy of parts of a copyrighted work for the purposes of commenting and/or criticising or of parodying the work is at the centre of the following article. The author, Margarita Sobol, discusses the notion of fair use under US law and its equivalent under Russian law, and describes those exceptions to copyright that aim at balancing copyright with other fundamental rights in both countries, referring to relevant case-law.

With a structure that considers the US and the Russian landscape in parallel, she first explores the main concepts underpinning the two notions of fair use and free use, with a separate chapter devoted to the very specific case of parody. An extensive part of the article explores the influence that the DMCA (the US Digital Millennium Copyright Act) has had on Russian legislation, and touches upon Digital Rights Management (DRM), takedown notices, social issues in the audiovisual media and user-generated content (UGC). Despite these influences, this article demonstrates that Russian copyright legislation remains more anchored in the continental principles of exceptions to copyright than in those deriving from the US practice under the fair use doctrine.

The case-law developed around these concepts is often called upon in the current debate on how to adapt the existing EU regulatory framework to the online environment. This article highlights similarities and differences between the two approaches and helps clarify why a transposition of the fair use doctrine into European legislation, as is requested by many freedom of expression activists, is likely to be a complicated exercise.

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