Exceptions and limitations to copyright are special cases defined by law where the general principle that the prior authorization of the rightsholder is necessary to make use of a work does not apply. That is, in the public interest of maintaining a balance between the interests of rightsholders and those of content users, copyright-protected works may in some cases be used without the authorization of the rightsholder.
Generally, exceptions and limitations to copyright are subject to a three-step test initially set out in the Berne Convention and repeated in a number of other international agreements. Briefly stated, the Berne Convention provides that an exception or limitation to copyright is permissible only if (1) it covers only special cases, (2) it does not conflict with the normal exploitation of the work, and (3) it does not unreasonably prejudice the legitimate interests of the author.
Within that standard, exceptions and limitations vary substantially from country to country in number and scope, who is entitled to benefit from them, and whether or not they include an obligation to compensate the rightsholders whose rights are so limited.
Usually, the exceptions and limitations established in the law of a country do not cover acts of exploitation made in private companies and/or for business purposes.
Fair Dealing and Fair Use
While most countries specifically identify the exceptions and limitations to copyright that they have created, the United Kingdom and the United States have each created broad exceptions in their respective statutes.
In the United Kingdom and many of its former colonies (including Ireland, Canada, Hong Kong, Australia and New Zealand), the principle of “fair dealing” covers a substantial scope of uses where prior permission is not needed. The criteria for what is considered to be fair dealing are listed in the law in each of those countries, without mentioning every specific possible use. In the United States (and, more recently, Israel, Poland and possibly a few other countries), the concept of “fair use” covers certain uses that, on balance, are deemed not to impinge on the rights of the copyright holder sufficiently, and/or are deemed to serve a sufficiently important public-policy goal that they are permitted without the authorization of the copyright holder. The factors assessed by a court to determine fair use are set forth in each country’s statute and case law.
Fair Use in the United States
The concept of fair use can be confusing and difficult to apply to particular uses of copyright protected material. Understanding the concept of fair use and when it applies may help ensure your compliance with copyright law.
Fair use is a uniquely U.S. concept, created by judges and enshrined in the law. Fair use recognizes that certain types of use of other people’s copyright protected works do not require the copyright holder’s authorization. In these instances, it is presumed the use is minimal enough that it does not interfere with the copyright holder’s exclusive rights to reproduce and otherwise reuse the work.
Fair use is primarily designed to allow the use of the copyright protected work for commentary, parody, news reporting, research and education. However, fair use is not an exception to copyright compliance so much as it is a “legal defense.” That is, if you use a copyright protected work and the copyright owner claims copyright infringement, you may be able to assert a defense of fair use, which you would then have to prove.
Section 107 of the United States Copyright Act lists four factors to help judges determine, and therefore to help you predict, when content usage may be considered “fair use.”
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. If a particular usage is intended to help you or your organization to derive financial or other business-related benefits from the copyright material, then that is probably not fair use.
- The nature of the copyrighted work. Use of a purely factual work is more likely to be considered fair use than use of someone’s creative work.
- The amount and substantiality of the portion used in relation to the copyright protected work as a whole. There are no set page counts or percentages that define the boundaries of fair use. Courts exercise common-sense judgment about whether what is being used is too much of — or so important to — the original overall work as to be beyond the scope of fair use.
- The effect of the use on the potential market for or value of the copyright protected work. This factor looks at whether the nature of the use competes with or diminishes the potential market for the form of use that the copyright holder is already employing, or can reasonably be expected soon to employ, in order to make money for itself through licensing.
At one extreme, simple reproduction of a work (i.e., photocopying) is commonly licensed by copyright holders, and therefore photocopying in a business environment is not likely to be considered fair use.
At the other extreme, true parody is more likely to be considered fair use because it is unlikely that the original copyright holder would create a parody of his or her own work.
While the factors above are helpful guides, they do not clearly identify uses that are or are not fair use. Fair use is not a straightforward concept, therefore the fair use analysis must be conducted on a case-by-case basis.
Understanding the scope of fair use and becoming familiar with those situations where it applies and those where it does not can help protect you and your organization from unauthorized use of copyright materials, however, many individuals do not want this responsibility. Corporate copyright policies often provide guidelines for determining whether a use may be considered fair use. Frequently, a complete risk analysis is required. Most organizations prefer to follow the motto “when in doubt, obtain permission.”
Thousands of cases, and many books and articles have attempted to analyze fair use in order to define specific examples.
Examples of Fair Use Include:
- Quotation of excerpts in a review or criticism for purposes of illustration or comment.
- Quotation of short passages in a scholarly or technical work for illustration or clarification of the author’s observations.
- Reproduction of material for classroom use where the reproduction was unexpected and spontaneous–for example, where an article in the morning’s paper is directly relevant to that day’s class topic.
- Use in a parody of short portions of the work itself.
- A summary of an address or article, which may include quotations of short passages of the copyrighted work.
The public domain refers to works (i) no longer protected by copyright (that is, where the copyright has expired), and (ii) belonging to categories of works not protected by copyright law.
In addition, in some countries (including the United States and, for certain purposes, the United Kingdom) government works are defined by law as being in the public domain (not protected by copyright) from the moment of their creation.
Thus, differences in how national copyright laws define the duration of copyright and list the categories of works protected, result in different definitions of the public domain on a country-by-country basis.
In Europe, the Europeana Connect project has developed a helpful Public Domain Calculation tool.
Public Domain in the United States
The legal concept of the public domain as it applies to copyright law should not be confused with the fact that a work may be publicly available, such as information found in books or periodicals, or on the Internet. The public domain comprises all those works that are either no longer protected by copyright or never were.
Essentially, all works first published in the United States prior to 1923 are considered to be in the public domain in the United States, as are works published between 1923 and 1963 on which copyright registrations were not renewed. Materials created since 1989, other than those created by the U.S. federal government, are presumptively protected by copyright. Therefore, the likelihood that materials of greatest interest are in the public domain is low. In addition, you must also consider other forms of legal protection, such as trademark or patent protection, before reusing third-party content.
Public domain materials generally fall into one of four categories:
- Generic information, such as facts, numbers and ideas
- Works whose copyrights have lapsed due to the passage of time or the failure of the copyright holder to renew a registration (a requirement that applies to works created before 1978)
- Works created prior to March 1989 that failed to include a proper notice of copyright
- Works created by the U.S. federal government
Also, in rare instances, works may be “dedicated” (donated) to the public domain.
The First Sale Doctrine
The physical ownership of an item, such as a book or a CD, is not the same as owning the copyright to the work embodied in that item.
Under the first sale doctrine (section 109 of the Copyright Act), ownership of a physical copy of a copyright-protected work permits lending, reselling, disposing, etc. of the item, but it does not permit reproducing the material, publicly displaying or performing it, or otherwise engaging in any of the acts reserved for the copyright holder, because the transfer of the physical copy does not include transfer of the copyright rights to the work.