ed 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 reproduction of copyright material for certain purposes such as research and study, criticism or review, news reporting, court proceedings and the provision of legal advice.”
Countries outside the Common Law tradition tend not to have as broad a range of exceptions as those within. Nevertheless, many allow an important number of free uses.
According to Goldstein:
“There is no specific provision for fair dealing in civil law practice, but copyright legislation in most civil law countries contains exemptions comparable to those provided under the fair dealing defense. The French legislation, for example, provides narrow exceptions in the case of published works for private copies and, so long as the source and author’s name are clearly stated, for press reviews and analyses as well as short quotations for critical, educational, polemic, or scientific purposes. The German Copyright Act provides a long list of limited exceptions in addition to those for quotation and private use.”
Copyright exceptions in the digital environment
The World Intellectual Property Organisation treaties, finalised in Geneva in December 1996, set the framework for world digital copyright regimes. The WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), both of which recently came into force following the 30th ratification of each treaty, provide for a Berne-consistent update of the international copyright regime.
The WCT specifically provides for member countries to enact exceptions within the confines of the three-step test:
Limitations and Exceptions
(1) Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.
(2) Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for 