Crash course on copyrights: Limitations on the rights granted by copyright

While the rights granted by copyright do cover most uses of a copyrighted work, there are some limitations on these rights. The most important ones are the right to "fair use", and to cite from the work. And of course, once a specimen of a work is sold, the buyer of the work is free to use that specimen however he sees fit. This is called exhaustion of rights.

For works such as photographs or films, the author may have to keep the portrait rights of the persons being portrayed in the photo or film into account.

Citing from a protected work

Being able to use the results of another person's work as the basis for your own is an important cornerstone of science. So, it should be no surprise that an important exception to the copyrights to a work lies in the field of research and teaching.

According to article 10(1) of the Berne Convention, anyone has the right to take a relevant portion of somebody elses work and copy it in his own work, provided attribution is given to the author. The citation should of course not go beyond what is necessary for the purpose of the citation.

Citations are also permissible in case of reviews or other discussions of a work. For example, when discussing a new movie, a reviewer could include some relevant video captures from the movie to give an impression of what the movie is about, or to illustrate a particularly good or bad moment in the movie.

Fair use

US copyright law has a concept that is related to the right to make citations, but which goes much further. This concept is called "fair use". Title 17, Section 107 of the US Code permits the use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research without the author's permission.

The factors that determine fair use

The law requires that an analysis is made of:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

It will be evident that making this analysis can be very complex in practice. The interpretation of these four factors is influenced greatly by the caselaw regarding earlier comparable cases. Reasoning from the text of the law itself is not sufficient!

Fair use in the Berne Convention

Article 10 Berne Convention states that a country is free to permit fair use of a work or not. Fair use in the Berne Convention is defined as "the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice."

While the principles behind fair use are largely the same as behind the citation rights, it is possible that a certain usable work is considered a fair use, even though it is not a citation. For example, if somebody writes an article and gives it away for free, the author has himself severely limited the potential market and the value of his work. If somebody else then makes a copy of the work and puts it on a non-commercial website, he could be making a fair use of the work. Since the original was also given away for free, the effect of giving away copies via the website does not effect the potential market for the original work. However such a copy of the whole work is highly unlikely to be seen as a citation from the work.

Exhaustion of rights

When an author creates a work and sells it in the form of copies, he has a chance to charge money for it or to exploit his copyright in some other way with respect to those copies. It would be unfair if the author could later use his copyright with respect to those specific copies, for example to charge again further sales of those copies. In legal terms, we say that the rights to the works with regards to those copies are "exhausted". The US concept of "first sale doctrine" roughly boils down to the same thing.

Exhaustion only applies to copies sold by the author

The exhaustion of the copyrights on a specific work is restricted to the specific copies sold by the author. Of course it also applies to copies sold with the author's consent. A copy that was sold without the author's consent is not exhausted.

Exhaustion is world-wide

Exhaustion is generally assumed to be world-wide. If the author sells a book in the Netherlands, he cannot act against someone who sells that particular book in the United States. The same goes for any other country. He can, however, act against someone who makes copies of that book and sells the copies.

Other intellectual property rights, most notably patents, have much more limited exhaustions. The holder of a European patent can object to the import of a patented product into Europe, even if he himself brought the product on the market in the USA.

No exhaustion for intangible distribution

If the distribution of the work does not involve the making and selling of tangible copies, there is no exhaustion of rights. So, a broadcast transmission of a television program does not exhaust the copyrights on the program. You can't make a recording of the broadcast and claim the rights are exhausted.

The same applies with respect to distribution over the Internet. An electronic copy does not qualify as "tangible copy" for the purposes of determining exhaustion.

Portrait rights

Photographic works often are portraits of specific persons. They may, but need not necessarily be, commissioned by the portrayed persons. Many copyright laws contain provisions that require the author to get permission from the portrayed person when publishing the portrait.

In case the portrait was not commissioned, e.g. a photo taken on the street, the portrayed person should demonstrate some likelihood of damage that can arise from the publication. A famous person could for instance argue that he normally charges for photos, and so the unauthorized portrait robs him of this income.

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