 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 repeated in Article 13 of TRIPS, with respect to all rights, not simply the right of reproduction.).
Exceptions form an important part of many national copyright regimes. Probably the best known copyright exception is the U.S. ‘Fair Use’ Doctrine. This provision was enacted as section 107 in the 1976 enactment of Title 17, the U.S. Copyright Act but it has its origins in over a century of case law. It provides that a ‘fair use’ is not an infringement of copyright. ‘Fairness’ is determined with reference to the following four principles:
- the purpose and character of the use, including whether such use is of a commercial nature 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.
Purposes such as ‘criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research’ are suggested as possible ‘fair uses’ but these are not exclusive; other purposes also fit within the fair use criteria. As such this allows for a potentially very wide (and ever expanding) set of free uses covered by these exceptions.
Other jurisdictions such as the United Kingdom, Canada, South Africa, Australia and New Zealand and some other Commonwealth countries have similar provisions, which are tied to specific purposes (such as ‘fair dealing for research or private study’). These countries typically have a wide set of relatively narrow exceptions for the benefit of individuals, educational institutions, libraries or other cultural institutions and Governments. (The United States also has another provision, section 108, for the benefit of libraries and archives.) Such exceptions have been recognised as being acceptable.
“The fair dealing exception to infringement to copyright is, and always has been, squarely based on recognition of the paramount public interest in the copying or reprodu