Consumers’ FAQs on copyright: when you can use a work protected by copyright created by another?

There has been published a very useful guide for consumers and for anyone who is curious about copyright. This guide explains different things, relating to IP rights, in simple way. The project has been commissioned by the European Union intellectual property office.

The Guide aims to give ‘answers to the most frequently asked questions (FAQs) average consumers have in relation to copyright for all twenty-eight EU Member States.’ The present Summary Report highlights the convergences and differences in national copyright laws in relation to the 15 consumer questions.

Using a work protected by copyright will not necessarily amount to copyright infringement: first, the rights holder may authorise uses of his or her work in the framework of copyright contracts, or of ‘open content’ licences. Furthermore, most jurisdictions allow certain uses without the explicit authorisation of the rights holder. Commonly, these uses are said to fall under ‘exceptions and limitations’ to copyright. While such limitations or defences exist in all Member States, their scope and modalities of application vary across the EU.

Quotation is one example of these ‘free uses’. EU law suggests that Member States (may) permit ‘quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author’s name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose’.

Explanations of how rights holders may authorise consumers to use their work vary. As regards uses in the online environment, uses are typically allowed through licensing agreements, for example, in the form of terms and conditions of a website or standard licences incorporated in a document or file. Common examples are services that offer uses against remuneration, or ‘Creative Commons’ or open content licences that allow certain uses without remuneration.

Consumers are advised to read the terms of a licence agreement carefully, since not all types of uses are necessarily allowed. Indeed, the terms of a licensing agreement usually specify under what conditions a work can be used: rights holders may resort to a standard agreement (e.g. Creative Commons licences) or an agreement tailored to the individual needs of the parties; the licence can be exclusive or non-exclusive; and conditions of use relating to territory, duration, and costs should be stated clearly. Often, written form of a licensing agreement is a requirement. In Spain ‘implied’ licences could in theory be ‘inferred from the facts – for instance, with an icon to “re-tweet” content available online’, although there appears to be no relevant case-law.

Beside uses authorised by the rights holder, all Member States allow a certain number of uses without authorisation. The terminology for these types of uses diverges among Member States. Experts frequently speak of ‘exceptions and limitations’ (see, e.g. BG, CZ, FR, HR, IT, LT, LU, NL, SK, FI), ‘compulsory licences’ (CZ), ‘limitations’ (DE, ES), ‘exceptions’ (MT), or ‘defences’ (UK).

Generally, ‘the law allows [certain uses of protected works, such as] the use of a work for private purposes, quote, training and research purposes […]’. An exception especially relevant for consumers is the so-called private copying exception. It does not exist in all Member States, and the conditions and the scope of the exception vary.

In the United Kingdom, ‘certain exceptions under UK copyright law only apply if the use of the work is a “fair dealing”. There is no statutory definition of fair dealing – it will always be a matter of fact, degree and impression in each case. The question to be asked is: how would a fair-minded and honest person have dealt with the work?’ The concept of fair dealing also exists in Ireland and Cyprus. Cypriot law establishes both a flexible fair dealing clause and a closed list of specific exceptions.

All Member States allow quotations. EU law sets out various conditions for lawful quotations. A quote must relate to a work or other subject matter that has already been made available lawfully to the public. The extent should be justified by the specific purpose of the quote, and the use should be in accordance with fair practice. Whenever possible, the source, including the author’s name, must be indicated. Several experts note that the purpose of the quote should be criticism or review, information or education. In Cyprus, the ‘purposes for which quotations can be made are not strictly defined by the law and, therefore, quotations can be made for various purposes.’

Regarding the length of the quote, some experts mention that only fragments of the work may be used (see, e.g. DK, ES, FR, LU). In view of specific categories, the entire work may be quoted in Slovenia (photographs, works of fine arts, architecture, applied art, industrial design, cartography). Sometimes, only literary and scientific works, and not works of art, may be quoted.

Some national laws add that the use should not prejudice the economic interests of the rights holder (IE), for example, not ‘erode the economic value of the quoted works substantially’ (AT), or damage the normal commercial use of the work (IT, LV, RO). In Germany, a quote may ‘not simply be the addition of supplementary thoughts to one’s work; a merely associative reference does not suffice’.

Regarding the nature/contents of the quote, the ‘idea of the work as a whole which is being quoted must be conveyed correctly’ in Estonia. In Finland and Germany, there must be a true, internal relation between the quoted part and the quoting work. In Sweden, the quote may not be prejudicial to the author’s artistic reputation or individuality.