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This guide is intended to provide a brief explanation and some guidelines on the international treatment of “fair use” or its equivalent in the European Copyright perspective.
It is primarily useful die librarians who have questions about digitization and reproduction of literary and artistic works
In countries party to the Berne Convention and some other countries, the duration of copyright provided in national law is, as a general rule, the life of the author plus not less than 50 years after the author’s death. There is a trend in a number of countries to lengthen the duration of copyright to the life of the author plus 70 years after the author’s death.
In countries party to the Berne Convention and some other countries, the duration of copyright provided in national law is, as a general rule, the life of the author plus not less than 50 years after the author’s death. There is a trend in a number of countries to lengthen the duration of copyright to the life of the author plus 70 years after the author’s death.
In cases where the author's death cannot be determined, the closest doctrine to apply is the Orphan law. An orphan work is a copyrighted work whose owner is impossible to identify or contact. Under the Directive 2012/28/EU Sec. 20. In order to promote learning and the dissemination of culture, Member States should provide for an exception or limitation in addition to those provided for in Article 5 of Directive 2001/29/EC. That exception or limitation should permit certain organisations, as referred to in point (c) of Article 5(2) of Directive 2001/29/EC and film or audio heritage institutions which operate on a non-profit making basis, as well as public-service broadcasting organisations, to reproduce and make available to the public, within the meaning of that Directive, orphan works, provided that such use fulfils their public interest missions, in particular the preservation of, the restoration of, and the provision of cultural and educational access to, their collections, including their digital collections. Film or audio heritage institutions should, for the purposes of this Directive, cover organisations designated by Member States to collect, catalogue, preserve and restore films and other audiovisual works or phonograms forming part of their cultural heritage. Public-service broadcasters should, for the purposes of this Directive, cover broadcasters with a public-service remit as conferred, defined and organised by each Member State. The exception or limitation established by this Directive to permit the use of orphan works is without prejudice to the exceptions and limitations provided for in Article 5 of Directive 2001/29/EC. It can be applied only in certain special cases which do not conflict with the normal exploitation of the work or other protected subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.
Internal guideline for OI Library:
Internal guideline for OI Library:
In works with multiple authors, we follow the death of the last author who passed away to count the plus 70-year period to be safe. In case where the author's death cannot be determined, a 50-year period after the copyright is determined should be an assumption of death plus 70-years after death. Example, the copyright of the book is 1935 + 50 (assumed death of author) + 70 year European/ Czech rule = 2055 is the time the whole material can be considered public domain.
In works with multiple authors, we follow the death of the last author who passed away to count the plus 70-year period to be safe. In case where the author's death cannot be determined, a 50-year period after the copyright is determined should be an assumption of death plus 70-years after death. Example, the copyright of the book is 1935 + 50 (assumed death of author) + 70 year European/ Czech rule = 2055 is the time the whole material can be considered public domain.
Also note that the +70-year rule applies in Europe and it is only 50 years in the US and other countries. For US produced materials, the binisdng rule is the country's provision for US and other countries, the Doctrine of Fair Use applies.
Librarians who are reproducing or distributing or sharing the works (book, resources, etc) must do all means to determine the death of the author to ensure that "due diligence" is practiced.
Librarians who are reproducing or distributing or sharing the works (book, resources, etc) must do all means to determine the death of the author to ensure that "due diligence" is practiced.
Exception on the author's death plus 70 years rule:
Exception on the author's death plus 70 years rule:
Copyright Duration: Czech Republic and North Korea
Copyright Duration: Czech Republic and North Korea
According to Article 107, Section 4 of the Czech Copyright Act, foreign works are protected only as long as their copyright remains valid in their country of origin.
In North Korea, copyright law was first enacted in 2001 and does not include retroactive protection for works published before then. This means that publications from 1956 fall outside the scope of North Korean copyright law and are not protected under it.
Furthermore, although North Korea joined the Berne Convention in 2003, the convention's copyright protections do not apply retroactively to works published before that year. As a result, the 1956 North Korean publications are not subject to copyright protection under either North Korean law or the Berne Convention.
Fair Practice
Fair Practice
Exception is the concept of Fair Practice which is in the Berne Convention art 9 and 10. There is the three- step test from Berne Convention which is applicable in Europe:
The three-step test was first established in relation to the exclusive right of reproduction under Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works in 1967. Article 9 of the Berne Convention states that:
Right of Reproduction: 1. Generally; 2. Possible exceptions; 3. Sound and visual recordings - (1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form. (2) 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. (3) Any sound or visual recording shall be considered as a reproduction for the purposes of this[Berne] Convention.
Marrakesh Treaty - To serve clients with special needs
Marrakesh Treaty - To serve clients with special needs
Czech Republic signed the agreement in June 24, 2014
Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (Marrakesh Treaty), was adopted by WIPO Member States in June 2013. The Marrakesh Treaty requires its members to adopt limitations and exceptions for the creation and cross-border transfer of certain published works in formats accessible to persons who are blind, visually impaired, or otherwise print disabled.
Illustration of teaching with proper credit to the author/s
Illustration of teaching with proper credit to the author/s
Berne Convention, Article 10. Certain Free Uses of Works:
1. Quotations; 2. Illustrations for teaching; 3. Indication of source and author
(1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.
(2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit 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.
(3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author if it appears thereon.
Useful Readings:
Useful Readings:
Brito, Jerry, and Bridget Dooling. "An orphan works affirmative defense to copyright infringement actions." Mich. Telecomm. & Tech. L. Rev. 12 (2005): 75.
Hugenholtz, P. Bernt. "Fair use in Europe." Communications of the ACM 56, no. 5 (2013): 26-28.
Hugenholtz, P. Bernt, and Martin Senftleben. "Fair use in Europe: in search of flexibilities." Available at SSRN 1959554 (2011).
Schwartz, Eric J. "An Overview of the International treatment of exceptions." J. Copyright Soc'y USA 57 (2009): 473. https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1043&context=research
World Intellectual Property Organization. Understanding copyright and related rights. Wipo, 2016. https://www.wipo.int/edocs/pubdocs/en/wipo_pub_909_2016.pdf
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