Ricketson (2003)

From Copyright EVIDENCE

Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Ricketson (2003)
Title: WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment
Author(s): Ricketson, S.
Year: 2003
Citation: Ricketson, S., WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment (2003) SCCR/9/7.
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
Linked by: Dusollier (2010), Monroy Rodríguez (2009), Seng (2009)
About the Data
Data Description: Legal analysis of the limitations and exceptions in five major international copyright treaties.
Data Type: Secondary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: Yes
Comparative Study?: No
Literature review?: No
Government or policy study?: Yes
Time Period(s) of Collection:
  • 2003
Funder(s):
  • World Intellectual Property Organization

Abstract

The present Study is intended to outline the main limitations and exceptions to copyright and related rights protection that exist under the following international conventions:

  • The Berne Convention for the Protection of Literary and Artistic Works 1886 (most recently revised at Paris in 1971–“the Paris Act of Berne”)
  • The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations 1961 (“the Rome Convention”)
  • The Agreement on Trade-Related Aspects of Intellectual Property Rights (the “TRIPS Agreement”)
  • The WIPO Copyright Treaty 1996 (the “WCT”)
  • The WIPO Performances and Phonograms Treaty 1996 (the “WPPT”).

While the study is concerned principally with the limitations and exceptions that these provisions impose as a matter of international law,1 some attention will also be paid to different national approaches to their application, in particular with respect to the digital environment.

Main Results of the Study

It has long been recognized that restrictions or limitations upon authors, and related rights may be justified in particular cases. Thus, at the outset of the negotiations that led to the formation of the Berne Convention in 1884, the distinguished Swiss delegate Numa Droz stated that it should be remembered that “limits to absolute protection are rightly set by the public interest.”2 In consequence, from the original Berne Act of 1886,3 the Berne Convention has contained provisions granting latitude to member states to limit the rights of authors in certain circumstances. In keeping with this approach, the present international conventions on authors’ and related rights contain a mixture of limitations and exceptions on protection that may be adopted under national laws. These can be grouped, very roughly, under the following headings:

1. Provisions that exclude, or allow for the exclusion of, protection for particular categories of works or material.

2. Provisions that allow for the giving of immunity (usually on a permissive, rather than mandatory, basis) from infringement proceedings for particular kinds of use, for example, where this is for the purposes of news reporting or education, or where particular conditions are satisfied.

3. By provisions that allow a particular use of copyright material, subject to the payment of compensation to the copyright owner.

The juridical and policy basis for each kind of provision is different. The first proceeds on the assumption that there are clear public policy grounds that copyright protection should not exist in the works in question, for example, because of the importance of the need for ready availability of such works from the point of view of the general public. The second represents a more limited concession that certain kinds of uses of works that are otherwise protected should be allowed: there is a public interest present here that justifies overriding the private rights of authors in their works in these particular circumstances. In the third category of cases, the author’s rights continue to be protected but are significantly abridged: public interest still justifies the continuance of the use, regardless of the author’s consent, but subject to the payment of appropriate remuneration. Instances of all three kinds of provisions are to be found in each of the conventions that are the subject of the present study, although they are most developed in the case of the Paris Act of Berne. For the most part, they are not made mandatory, but are left as matters for the national legislation of member states to determine for themselves, albeit usually within strict boundaries that are set by the provision in question.

Policy Implications as Stated By Author

Not stated.


Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Green-tick.png
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Green-tick.png
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets

Sample size: 5
Level of aggregation: Treaty
Period of material under study: 2003