Exceptions and limitations to copyright are special cases defined by law where the general principle that the prior authorization of the rightsholder is necessary to make use of a work does not apply. That is, in the public interest of maintaining a balance between the interests of rightsholders and those of content users, copyright-protected works may in some cases be used without the authorization of the rightsholder.
Generally, exceptions and limitations to copyright are subject to a three-step test initially set out in the Berne Convention and repeated in a number of other international agreements. Briefly stated, the Berne Convention provides that an exception or limitation to copyright is permissible only if (1) it covers only special cases, (2) it does not conflict with the normal exploitation of the work, and (3) it does not unreasonably prejudice the legitimate interests of the author.
Within that standard, exceptions and limitations vary substantially from country to country in number and scope, who is entitled to benefit from them, and whether or not they include an obligation to compensate the rightsholders whose rights are so limited.
Usually, the exceptions and limitations established in the law of a country do not cover acts of exploitation made in private companies and/or for business purposes.
Fair Dealing and Fair Use
While most countries specifically identify the exceptions and limitations to copyright that they have created, the United Kingdom and the United States have each created broad exceptions in their respective statutes.
In the United Kingdom and many of its former colonies (including Ireland, Canada, Hong Kong, Australia and New Zealand), the principle of “fair dealing” covers a substantial scope of uses where prior permission is not needed. The criteria for what is considered to be fair dealing are listed in the law in each of those countries, without mentioning every specific possible use. In the United States (and, more recently, Israel, Poland and possibly a few other countries), the concept of “fair use” covers certain uses that, on balance, are deemed not to impinge on the rights of the copyright holder sufficiently, and/or are deemed to serve a sufficiently important public-policy goal, that they are permitted without the authorization of the copyright holder. The factors assessed by a court to determine fair use are set forth in each country’s statute and case law.
Fair Use in the United States
The concept of fair use can be confusing and difficult to apply to particular uses of copyright protected material. Understanding the concept of fair use and when it applies may help ensure your compliance with copyright law.
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The public domain refers to works (i) no longer protected by copyright (that is, where the copyright has expired), and (ii) belonging to categories of works not protected by copyright law.
In addition, in some countries (including the United States and, for certain purposes, the United Kingdom) government works are defined by law as being in the public domain (not protected by copyright) from the moment of their creation.
Thus, differences in how national copyright laws define the duration of copyright and list the categories of works protected, result in different definitions of the public domain on a country-by-country basis.
In Europe, the Europeana Connect project has developed a helpful Public Domain Calculation tool.
Public Domain in the United States
The legal concept of the public domain as it applies to copyright law should not be confused with the fact that a work may be publicly available, such as information found in books or periodicals, or on the Internet. The public domain comprises all those works that are either no longer protected by copyright or never were.
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The First Sale Doctrine
The physical ownership of an item, such as a book or a CD, is not the same as owning the copyright to the work embodied in that item.
Under the first sale doctrine (section 109 of the Copyright Act), ownership of a physical copy of a copyright-protected work permits lending, reselling, disposing, etc. of the item, but it does not permit reproducing the material, publicly displaying or performing it, or otherwise engaging in any of the acts reserved for the copyright holder, because the transfer of the physical copy does not include transfer of the copyright rights to the work.
Please click here for more information on the First Sale Doctrine.