Page:Creative Commons for Educators and Librarians.pdf/46

COPYRIGHT LAW - 33 - 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 added)"

For more information about the scope and use of the three-step test, read the short primer published by the Electronic Frontier Foundation at https://www.eff.org/files/filenode/three-step_test_fnl.pdf.

The exceptions and limitations to copyright vary by country. There are global discussions around how to harmonize them. A World Intellectual Property Organization study (https://www.wipo.int/edocs/mdocs/copyright/en/sccr_30/sccr_30_3.pdf) 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 are 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, in which a federal court judge considers (1) the purpose and character of use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken from the work, and (4) the effect of the use upon the potential market for the copyrighted work. (See the at the end of this chapter for a good selection of publications that discuss fair use and other exceptions and limitations to copyright.)