in broadly inaccessible, as it will not enter the public domain until the expiry of its allotted span – well beyond the lifetime of the author. Following the passage of the Copyright Term Extension Act in the United States, for example, almost no additional works will come into the public domain until 2023. With copyright enjoying such a long duration, the operation of exceptions becomes more important than ever.
Limited suite of rights
A copyright owner’s capacity to control the use of his or her work is limited to the suite of rights, which is specifically granted by the copyright regime. These rights typically include the right to reproduce, the right to communicate to the public, the right to publish etc. Uses that fall outside these rights are not subject to the copyright owner’s control. For example, copyright permission is required to print copies of a book; however, once a legitimately-printed copy has been sold, the copyright owner may not control what is done with that copy (with the exceptions of importation in some jurisdictions and rental and lending rights in Europe). The purchaser is free to read the book multiple times, lend, borrow, sell or destroy it. (This was enshrined in U.S. law as the ‘Doctrine of First Sale.’)
Again, the digital environment has very much weakened the value of this limit; most uses of a digital work will constitute either a reproduction or a communication or both. Access to copyright works in the digital environment requires a reproduction even of a temporary nature, e.g. a cache copy. If the right to control reproduction is not limited, a rights owner has the right to total control of every access.
Copyright historically applied only to books. It has been expanded ever since to include an ever-widening set of creative and non-creative material. For example, some compilations of purely factual data (e.g., directories) may be protected by copyright, if they fulfil the originality test, as well as by a unique database protection in many jurisdictions, although notably, not in the U.S. In those jurisdictions where such data is protected, the traditional distinction between an idea and its expression in copyright is broken down and means that users are constrained from extracting factual data contained in a database (such as a residential address) as well as more creative material.
Due to the reduced impact of these limitations on the scope of copyright in the digital environment, other exceptions and limitations have become more important than ever. It should not be forgotten that copyright is a monopoly right. Without exceptions, copyright owners would have a complete monopoly over learning, and thus control access to knowledge in the digital age.
The role and operation of exceptions to the rights of copyright owners
Exceptions to the rights of copyright owners have been around almost as long as the rights themselves. The English Statute of Anne (1710) contained no exceptions but did require that deposit copies be lodged with seven important libraries as a condition of protection – the first codification of a balancing principle, that is, in return for copyright protection, copies of the work must be made available to the public.
Article 9(2) of the Berne Convention (Paris Act 1971) permits member countries to make exceptions with respect to the right of reproduction of copyright owners provided that such exceptions:
- Are a ‘special case’;
- Do ‘not conflict with a normal exploitation of the work’; and
- Do ‘not unreasonably prejudice the legitimate interests of the author.’
The Berne Convention also contains Article 10 (which permits free uses for the
purposes of ‘Quotations’ and ‘Illustrations for teaching’) and Article 10bis (which permits further possible free uses for the purpose of reporting current events). Compulsory licences are also permitted in certain other circumstances by Article 11bis and Article 13.
Similar provisions exist in the World Trade Organisation agreement on Trade-Related Aspects of Intellectual Property (TRIPS) (specifically Article 9(2) of Berne is repeat