LIMITATIONS ON IP RIGHTS

The most important feature of any kind of property is that the owner may use it
ex!usi"e!y# i$e$# as he wishes# and that no%ody e!se an !awfu!!y use it without his
authori&ation$ This does not# of ourse# mean that he an use it re'ard!ess of the
!e'a!!y reo'ni&ed ri'hts and interests of other mem%ers of soiety$ Simi!ar!y the
owner of opyri'ht in a proteted work may use the work as he wishes# and may
pre"ent others from usin' it without his authori&ation$ Howe"er# there are !imitations
to the ri'hts$
The first !imitation is the ex!usion from opyri'ht protetion of ertain ate'ories of
works$ In some ountries# works are ex!uded from protetion if they are not fixed in
tan'i%!e form$ (or examp!e# a work of horeo'raphy wou!d on!y %e proteted one the
mo"ements were written down in dane notation or reorded on "ideotape$ In ertain
ountries# the texts of !aws# ourt and administrati"e deisions are ex!uded from
opyri'ht protetion$
The seond ate'ory of !imitations onerns partiu!ar ats of exp!oitation# norma!!y
re)uirin' the authori&ation of the ri'hts owner# whih may# under irumstanes
speified in the !aw# %e arried out without authori&ation$ There are two %asi types of
!imitations in this ate'ory* +a, free use# whih arries no o%!i'ation to ompensate the
ri'hts owner for the use of his work without authori&ation- and +%, non."o!untary
!ienses# whih do re)uire that ompensation %e paid to the ri'hts owner for non.
authori&ed exp!oitation$
/xamp!es of free use in!ude*
..)uotin' from a proteted work# pro"ided that the soure of the )uotation and the
name of the author is mentioned# and that the extent of the )uotation is ompati%!e
with fair pratie-
..use of works %y way of i!!ustration for teahin' purposes- and
..use of works for the purpose of news reportin'$
In respet of free use for reprodution# the 0erne 1on"ention ontains a 'enera! ru!e#
rather than an exp!iit !imitation$ Arti!e 2+3, states that Mem%er States may pro"ide
for free reprodution in speia! ases where the ats do not onf!it with norma!
exp!oitation of the work and do not unreasona%!y pre4udie the !e'itimate interests of
the author$ As noted a%o"e# many !aws a!!ow for indi"idua!s to reprodue a work
ex!usi"e!y for their persona!# pri"ate and non.ommeria! use$
Howe"er# the ease and )ua!ity of indi"idua! opyin' made possi%!e %y reent
tehno!o'y has !ed some ountries to narrow the sope of suh pro"isions# in!udin'
throu'h systems whih a!!ow ertain opyin'# %ut inorporate a mehanism for
payment to ri'hts owners for the pre4udie to their eonomi interests resu!tin' from
the opyin'$
In addition to the speifi ate'ories of free use set out in nationa! !aws# the !aws of
some ountries reo'ni&e the onept known as fair use or fair dea!in'$ This a!!ows use
of works without the authori&ation of the ri'hts owner# takin' into aount fators suh
as the nature and purpose of the use# in!udin' whether it is for ommeria! purposes-
the nature of the work used- the amount of the work used in re!ation to the work as a
who!e- and the !ike!y effet of the use on the potentia! ommeria! "a!ue of the work$
Non."o!untary !ienses a!!ow use of works in ertain irumstanes without the
authori&ation of the owner of ri'hts# %ut re)uire that ompensation %e paid in respet
of the use$ Suh !ienses are a!!ed non."o!untary %eause they are a!!owed in the !aw#
and do not resu!t from the exerise of the ex!usi"e ri'ht of the opyri'ht owner to
authori&e partiu!ar ats$
The 4ustifiation for non."o!untary !ienses is# howe"er# inreasin'!y a!!ed into
)uestion# sine effeti"e a!ternati"es now exist for makin' works a"ai!a%!e to the pu%!i
%ased on authori&ations 'i"en %y the ri'hts owners# in!udin' in the form of o!!eti"e
administration of ri'hts$