On the need to protect copyright exceptions from contractual interference

Combat des polonais contre les russes
Protect Copyright exceptions from harm.

One of the positive points contained in the recently adopted Reda report that we have not discussed here before is the freedom to exercise copyright exception and limitations (although this is not a new topic – see Treaty Proposal on Limitations and Exceptions for Libraries and Archives). In paragraph 61 of the report the members of the European Parliament stress that ‘the effective exercise of exceptions or limitations, and access to content that is not subject to copyright or related rights protection, should not be waived by contract or contractual terms’.

The Directive 2001/29/EC (so-called the Infosoc Directive) introduced 21 exceptions and limitations to copyright, making only one of them mandatory (transient or incidental acts of reproduction), and leaving the remaining 20 optional for national legislators to implement.

This has led to cherry-picking by countries in their implementation of the optional exceptions and limitations, and it has created a situation where users in different EU member states have different rights when it comes to their interaction with copyright-protected materials. Even worse is the fact that the existing legislation does not contain rules that protect users from a contractual or technological override of the exceptions and limitations available within current EU system. As a result, rightsholders and intermediaries are essentially able to limit or modify exceptions or limitations, thus reducing the potential benefit of the copyright exceptions for the public.

Neither the Infosoc Directive nor most national copyright legislation protects exceptions and limitations from manipulation by contractual agreements. It is only a few EU member states providing for provisions regulating the contractual modifications of copyright exceptions and limitations:

Article 29 (4B) of British Copyright, Designs and Patents Act (and other similar in this Act)

‘To the extent that a term of any contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable’;

Article 2 (10) of Irish Copyright and Related Rights Act

‘Where an act which would otherwise infringe any of the rights conferred by this Act is permitted under this Act it is irrelevant whether or not there exists any term or condition in an agreement which purports to prohibit or restrict that act’;

Article XI.193 of Belgian Code of Economic Law:

‘The provisions of Articles XI.189, XI.190, XI.191 and XI.192, §§ 1 and 3 are mandatory’;

Article 75 (5) of Portuguese Copyright and Related Rights Code:

‘It is null and void any contractual provision aims to eliminate or prevent the normal exploitation by beneficiaries of uses set out in paragraphs 1, 2 and 3 of this Article, subject to possibility of the parties freely agree on ways of exercise, in particular as regards the amounts of remuneration equitable’.

But these are single cases among the 28 EU member states. Therefore, the absence of protections in national legislation permit contracting parties to restrict the effectiveness of exceptions and limitations to copyright. And in the majority of cases the stronger party within these negotiations is the rightsholder, who typically enjoys a (temporary) monopoly to grant permission to use the copyright-protected work. This leads to rights holders abusing their monopolies, essentially communicating to potential users, “If you want access to my work, you will follow the conditions I set. Take it or leave it.”

Some examples

Let’s focus briefly on B2C contracts (business to consumer). When you buy a DVD of your favorite movie, you probably have noticed the legal warning on the box cover which says, “copying a disc in any form is strictly prohibited”. If you live in a country where copying material for private use without the permission of the rightsholder is permitted because of an exceptions to copyright, what does this warning mean for you?

Interpretations depend on the legal system of your country, but oftentimes the act of purchasing a DVD is interpreted as an agreement between you and rightsholder, in which you agree–as a condition of purchasing the disc– to waive the right to make a copy of the DVD for private use. Did you–as the consumer–have any say in whether you would agree to the terms of the contract when you purchased the DVD? Of course not. Your choice was the same kind talked about by Henry Ford in a famous speech: “A customer can have a car painted any color that he wants so long as it is black.” The analogy is clear: buy the DVD and accept the terms the rightsholder attaches to it, or don’t buy the disc at all.

Let’s now switch to the B2B (business to business) market. Within a university setting, students and faculty receive access to thousands of scholarly journal articles and scientific dissertations because the university library pays for an institutional subscription to these resources. Typically, universities enter into a contract with the rightsholders where they agree to only provide access to read these materials. The contract explicitly says something akin to, “you are not allowed to print any materials or to disseminate or reproduce them in any other way.”

Does this kind of stipulation prevent students and faculty from relying on education and scientific exceptions to copyright which have been implemented within national laws based on Article 5.3(a) of the Infosoc Directive (‘use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author’s name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved’)?

Let’s explore a bit further. Could a university permit text and data mining to the resources they have access to via their institutional subscriptions to scholarly journals? This is an open question since there are not yet many countries that have adopted a limitation or exception to copyright for this activity. Absent a clear exception for text and data mining, there are not many university lawyers that would approve of such activities without getting the permission from the rightsholder.

Chilling Effects

The cases described above are examples of how the ‘law in action’ works. Without a clear provision excluding the possibility of contractual overrides of copyright exceptions and limitations in the Infosoc Directive (e.g. as in the Directive 2009/24/EC on the legal protection of computer programs and the Directive 96/9/EC on the legal protection of databases), there will always be attempts to compel users to get access to protected materials via separate agreements or licenses with rightsholders. This means that the effectiveness of copyright exceptions would be limited.

Of course one may always seek help in other branches of law. In Poland, where the National Competition Authority decided that Warner Bros is potentially misleading consumers by writing on the covers of DVDs distributed in Poland information on the absolute prohibition of borrowing and copying discs. At the same time, the Polish copyright law provides for an exception for private use. Legal battles will continue over commonplace, everyday activities that seem natural to users and which are backed up by exceptions within national copyright laws.

In summary, when granted certain freedoms via exceptions and limitations to copyright law in the Infosoc Directive, users should feel comfortable in taking advantage of such exceptions. They should not be forced to defend everyday activities such as buying DVDs, signing up to subscription music services, or accessing copyrighted content on websites or research portals. Users should not feel chilled in what they are able to do because of vague contractual provisions instituted by rights holders. Including a provision like the one suggested in paragraph 61 of the Reda Report the upcoming update of the EU copyright rules would be a big step forward in this direction.

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