ction 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 therein to 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.”
Furthermore, the Agreed Statement to Article 10 clarifies this and allows scope for signatory nations to extend exceptions in the digital environment:
“Concerning Article 10
It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws, which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment.
It is also understood that Article 10(2) neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention.”
Implementation of the WIPO treaties
A number of developed nations have updated or begun updating their copyright laws in accordance with the WIPO treaties. The U.S., Australia and the European Union have enacted WCT-consistent legislation. By early 2003 all EU member states should have implemented the new copyright directive. Other nations such as Canada, New Zealand and South Africa are in the process of updating their copyright legislation. The way in which these treaties are implemented will, in large measure, determine the future of the balance that has been so important to the copyright system and to information users in the past.
The most well known and controversial implementation of the WIPO Treaties is the U.S. Digital Millennium Copyright Act. As well as updating the U.S. Copyright Act
to add legal protection for technological copyright protection measures (which will be discussed below) the DMCA updates copyright exceptions for the digital environment.
Section 1201 of the DMCA contains a ‘savings’ clause, which states that no new protection for copyright holders (such a