2.4 Exceptions and Limitations to Copyright

The limitations and exceptions built into copyright, including “fair use” and “fair dealing” in some parts of the world, were designed to ensure that the rights of the public were not unduly restricted by copyright.

The Big Question

What would the world look like if copyright did not have any limits to what it prevented you from doing with copyrighted work?

Imagine resorting to Google’s search engine on your laptop or smartphone to settle a disagreement with a friend about some bit of trivia. You type in your search query, and Google comes up empty. You then learn that a court has required Google to delete its entire web index because it never entered into copyright agreements with each individual author of each individual page on the web. By indexing a web page and showing the public a snippet of the contents in their search results, the court has declared that Google violates the copyrights of hundreds of millions of people, and can no longer show those search results.

Fortunately, thanks to exceptions and limitations built into copyright laws in much of the world, including the fair use doctrine under U.S. copyright law, this hypothetical is unlikely to become reality in many countries. This is one of many illustrations of why it is so important that copyright has built-in limitations and exceptions.

Learning Outcomes

• State what limitations and exceptions to copyright are and why they exist
• Name a few common exceptions and limitations to copyright

Personal Reflection / Why It Matters to You

Have you ever made a copy of a creative work? Can you recall a time when you were studying and you included properly cited quotations in a research paper you wrote? Can you think of a way an exception or limitation to copyright has benefited you?

Acquiring Essential Knowledge

Copyright is not absolute. There are some uses of copyrighted works that do not require permission. These uses are limitations on the exclusive rights normally granted to copyright holders and are known as “exceptions and limitations” to copyright.

Fair use, fair dealing and other exceptions and limitations to copyright are an extremely important part of copyright design. Some countries afford exceptions and limitations to copyright, such as fair dealing, and other countries do not offer exceptions or limitations at all.^[1] If your use of another’s copyrighted work is “fair” or falls within another exception or limitation to copyright, then you are not infringing the creator’s copyright.

When legislators created copyright protections, they realized that allowing copyright to restrict all uses of creative works could be highly problematic. For example, how could scholars or critics write about plays, books, movies, or other art without quoting from them? (It would be extremely difficult.) And would copyright holders be inclined to provide licenses or other permission to people whose reviews might be negative? (Probably not.)

For this and a range of other reasons, certain uses are explicitly carved out from copyright – including, in most parts of the world, uses for purposes of criticism, parody, access for the visually impaired, and more.

The Berne Convention first established the concept of “fair” use, by providing the following in Article 9 section 2. This is known as the “three-step” test, and has been adopted in some form in several other treaties.

It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. (emphasis supplied)

For more information about the scope and use of the three-step test, read this short primer published by the Electronic Frontier Foundation.

Exceptions and limitations to copyright vary by country. There are global discussions around how to harmonize them. This WIPO study by Kenneth Crews compares the copyright exceptions and limitations for libraries in many countries around the world.

Generally speaking, there are two main ways in which limitations and exceptions are written into copyright law. The first is by listing specific activities that are excluded from the reach of copyright. For example, Japanese copyright law has a specific exemption allowing classroom broadcasts of copyrighted material. This approach has the benefit of providing clarity about precisely what uses by the public are allowed and not considered infringing. However, it can also be limiting because anything not specifically on the list of exceptions may be deemed restricted by copyright.

The other approach is to include flexible guidelines about what is allowed in the spirit of the three-step test described above. Courts then determine exactly what uses are allowed without the permission of the copyright holder. The downside to flexible guidelines is that they leave more room for uncertainty. This is the approach used in the United States with fair use, although U.S. copyright law also has some specific exceptions to copyright written into the law as well. In the United States, fair use is determined using a four-factor test, where a federal court judge considers: 1) the purpose and character of your use, 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion taken, and 4) the effect of the use upon the potential market.  See additional resources for a good selection of publications that discuss fair use and other exceptions and limitations to copyright.

Most countries also have compulsory licensing schemes, which are another form of limitation on the exclusive rights of copyright holders. These statutory systems make copyrighted content (for example, music) available for particular types of reuse without asking permission, but they require payment of specified (and non-negotiable) fees to the copyright owners. Compulsory licensing schemes permit anyone to make certain uses of copyrighted works so long as they pay a fee to the rights holder whose work will be used.

As an organization and as a movement, Creative Commons supports strong exceptions and limitations to copyright. The vision of Creative Commons—universal access to research and education and full participation in culture—will not be realized through licensing alone. CC supports a copyright system that appropriately balances the rights of creators and the rights of users and the general public.

Final remarks

Like the public domain, exceptions and limitations to copyright are just as important as the exclusive rights copyright grants. Think of them as a safety valve for the public in order to be able to utilize copyrighted works for particular uses in the public interest. Educate yourself about the exceptions and limitations that apply where you live, so you can take advantage of and advocate for these critical user rights.

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