Copyright Law and Copyright Law and Exceptions and Limitations Exceptions and Limitations

for the purpose of Education for the purpose of Education

and Access to Knowledgeand Access to Knowledge

Ahmed Abdel Latif Ahmed Abdel Latif Ministry of Foreign AffairsMinistry of Foreign Affairs

Workshop on Intellectual Property and Workshop on Intellectual Property and New Tools for the Dissemination of New Tools for the Dissemination of

KnowledgeKnowledgeBA-IDLOBA-IDLO

May 2007May 2007

Copyright ProtectionCopyright Protection

Copyright Protection aims at:Copyright Protection aims at:

Providing incentives for Providing incentives for creativity by granting authors a creativity by granting authors a number of exclusive rightsnumber of exclusive rights

Balancing the rights granted to Balancing the rights granted to authors with the public interest authors with the public interest of society at large (Exceptions of society at large (Exceptions and Limitations)and Limitations)

Copyright LawCopyright Law

International ConventionsInternational Conventions- - The Bern Convention (1886) The Bern Convention (1886) - The TRIPS Agreement (1994)- The TRIPS Agreement (1994)- WIPO Copyright Treaty (1996)- WIPO Copyright Treaty (1996)

Egyptian National LawEgyptian National Law- Law 82 (2002)- Law 82 (2002)

Limitations on Copyright (I)Limitations on Copyright (I)

A) A) Temporal LimitationTemporal Limitation- Copyright Protection is - Copyright Protection is time boundtime bound- It begins with the - It begins with the creation of the creation of the workwork and and continues until some time continues until some time after the death of the authorafter the death of the author in order in order to enable the author’s successors to to enable the author’s successors to have economic benefits after the have economic benefits after the author’s deathauthor’s death- International standard: - International standard: Life of the Life of the author + 50 yearsauthor + 50 years

Limitations on Copyright (II)Limitations on Copyright (II)

B) B) Geographic LimitationGeographic Limitation - The owner of a copyrighted work is - The owner of a copyrighted work is protected by the law of a country against acts protected by the law of a country against acts restricted by copyright law which are done in restricted by copyright law which are done in that countythat county- For protection against acts done in another - For protection against acts done in another country , he must refer to the law of that country , he must refer to the law of that countrycountry- Membership of both countries in - Membership of both countries in international copyright conventions helps international copyright conventions helps settle practical problems arising from settle practical problems arising from geographic limitationgeographic limitation

Exceptions to Copyright (I)Exceptions to Copyright (I)

A) A) Exclusions from copyright Exclusions from copyright protectionprotection : :- Ideas, procedures, methods of operation Ideas, procedures, methods of operation

or mathematical concepts as such or mathematical concepts as such - News of the dayNews of the day- Works that are not fixed in material form Works that are not fixed in material form - The text of laws and decisions of courts The text of laws and decisions of courts

and administrative bodiesand administrative bodies- Non-original databasesNon-original databases

Exceptions to Copyright Protection (II)Exceptions to Copyright Protection (II)

B) B) “Fair use”“Fair use”- Certain acts may, in circumstances - Certain acts may, in circumstances specified in the law, be done without the specified in the law, be done without the authorization of the copyright ownerauthorization of the copyright owner- Examples:- Examples:* reproduction of a work exclusively for * reproduction of a work exclusively for the personal and private usethe personal and private use* making quotations from a protected work * making quotations from a protected work ((provided that the source of the quotation is mentioned provided that the source of the quotation is mentioned and that the extent of the quotation is compatible with fair and that the extent of the quotation is compatible with fair practice)practice)

Exceptions to Copyright Protection (III)Exceptions to Copyright Protection (III)

C) C) Public communication when Public communication when the use is justified by an the use is justified by an informatory purposeinformatory purpose

- The laws of some countries permit - The laws of some countries permit the broadcasting of protected works the broadcasting of protected works without authorization provided that without authorization provided that fair remuneration is provided to fair remuneration is provided to owner of the copyrightowner of the copyright

Exceptions to Copyright Protection (IV)Exceptions to Copyright Protection (IV)

DD)) Compulsory LicenseCompulsory License- The Paris Appendix (1971) of the Bern - The Paris Appendix (1971) of the Bern Convention permits developing countries Convention permits developing countries to issue compulsory licenses for the to issue compulsory licenses for the reproduction of copyrighted material “reproduction of copyrighted material “for for use in relation to certain systematic use in relation to certain systematic instructional activitiesinstructional activities” and for the ” and for the translation of copyrighted material into a translation of copyrighted material into a language of general use in the authorizing language of general use in the authorizing countrycountry

Importance of E and LImportance of E and L

to Developing Countries to Developing Countries The Report of the Commission on The Report of the Commission on Intellectual Property Rights (2002)Intellectual Property Rights (2002)“…“…access to books and learning materials access to books and learning materials is still a real problem in many developing is still a real problem in many developing countriescountries …In order to improve access to …In order to improve access to copyrighted works and achieve their goals copyrighted works and achieve their goals for education and knowledge transfer, for education and knowledge transfer, developing countries should adopt pro-developing countries should adopt pro-competitive measures under copyright competitive measures under copyright laws. laws. Developing countries should be Developing countries should be allowed to maintain or adopt broad allowed to maintain or adopt broad exemptions for educational, research and exemptions for educational, research and library uses in their national copyright library uses in their national copyright laws.”laws.”

E and L in International ConventionsE and L in International Conventions

Article 13 of TRIPSArticle 13 of TRIPS/ / Article 9 (2) of Article 9 (2) of BerneBerne

““Members shall confine limitations or Members shall confine limitations or exceptions to exclusive rights exceptions to exclusive rights to certain to certain special casesspecial cases which which do do not conflict with not conflict with a normal exploitation of the worka normal exploitation of the work and and do not unreasonably prejudice the do not unreasonably prejudice the legitimate interests of the right holder”legitimate interests of the right holder”

Three Step Test (1)Three Step Test (1)

11) Members shall confine limitations ) Members shall confine limitations or exceptions to exclusive rights or exceptions to exclusive rights to to certain special casescertain special cases

- Copies made for the purposes of scholarly and - Copies made for the purposes of scholarly and private useprivate use

- Media uses for currents events or news of the day- Media uses for currents events or news of the day

- Uses in educational institutions, including for - Uses in educational institutions, including for teachingteaching

- Teaching- Teaching

- Quotation- Quotation

Three Step Test (2)Three Step Test (2)

22) ) which do which do not conflict with a not conflict with a normal exploitation of the worknormal exploitation of the work

- Exceptions are limited to non-- Exceptions are limited to non-commercial usescommercial uses

- Copies made for this purpose will not - Copies made for this purpose will not be sold in the marketbe sold in the market

Three Step Test (3)Three Step Test (3)

3) 3) and and do not unreasonably do not unreasonably prejudice the legitimate prejudice the legitimate interests of the right holderinterests of the right holder

- An exception which caused - An exception which caused “unreasonable loss” would prejudice “unreasonable loss” would prejudice the legitimate interests of the right the legitimate interests of the right holder holder

- Need of case by case analysis- Need of case by case analysis

WIPO Copyright TreatyWIPO Copyright Treaty

Extends E and L into the Digital Extends E and L into the Digital Environment Environment

According to According to Article 11Article 11, Contracting , Contracting Parties must provide “adequate legal Parties must provide “adequate legal protection and effective legal protection and effective legal remedies against the circumvention remedies against the circumvention of effective technological measures of effective technological measures that are used by authors in that are used by authors in connection with the exercise of their connection with the exercise of their rights”rights”

Recent Developments Recent Developments the Global Level the Global Level

““Fair use” and Technological Fair use” and Technological Protection Measures (TPMs) Protection Measures (TPMs)

Development Agenda in WIPODevelopment Agenda in WIPO Chile’s proposal on E and L at Chile’s proposal on E and L at

WIPO’s Standing Committee on WIPO’s Standing Committee on Copyright Copyright

Law 82 (2002)Law 82 (2002) Article 141: (ExceptionsArticle 141: (Exceptions))

Protection Protection shall not includeshall not include mere ideas, procedures, mere ideas, procedures, methods of process, manners of operation, concepts, methods of process, manners of operation, concepts, principles, explorations, and data; even if expressed, principles, explorations, and data; even if expressed, described, illustrated or included in a work.described, illustrated or included in a work.

Protection Protection shall not include:shall not include:

First : First : Official documentsOfficial documents, whatever the source or target , whatever the source or target language thereof, including legal texts, regulations, language thereof, including legal texts, regulations, decisions, international agreements, judicial rulings, arbitral decisions, international agreements, judicial rulings, arbitral awards, judgments issued by administrative committees of awards, judgments issued by administrative committees of judicial competence. judicial competence.

Second: Second: News of incidents or current events having the News of incidents or current events having the character of mere items of press informationcharacter of mere items of press information. Nevertheless, . Nevertheless, the above items shall be protected if characterized by the above items shall be protected if characterized by innovation in order, display or by any personal effort eligible innovation in order, display or by any personal effort eligible for protection.for protection.

Law 82 (2002)Law 82 (2002)

Article 148 (Translation)Article 148 (Translation)

- Protection granted to the copyright and - Protection granted to the copyright and the right of the translator of the work the right of the translator of the work thereof into another foreign language, thereof into another foreign language, with with respect to the translation of such work into respect to the translation of such work into the Arabic language shall terminate,the Arabic language shall terminate, unless the author or the translator assume unless the author or the translator assume such right directly or through an such right directly or through an intermediary, intermediary, within three years calculated within three years calculated from the date of first publication of the from the date of first publication of the original or translated workoriginal or translated work

Law 82 (2002)Law 82 (2002)

Article 170 (Compulsory License)Article 170 (Compulsory License)

- - Any person may demand the competent Ministry to grant such Any person may demand the competent Ministry to grant such person a personal license for reproducing and /or translating any person a personal license for reproducing and /or translating any protected work pursuant to the stipulations of the law herein, protected work pursuant to the stipulations of the law herein, without having the author's permission, for the purposes set forth without having the author's permission, for the purposes set forth in the following paragraph. The grant of such license shall be in the following paragraph. The grant of such license shall be against payment of fair compensation to the author or his against payment of fair compensation to the author or his successors. successors. Such license shall not contradict with the normal Such license shall not contradict with the normal exploitation of the work and does not unreasonably prejudice the exploitation of the work and does not unreasonably prejudice the legitimate interests of the author or the copyright holders.legitimate interests of the author or the copyright holders.

- - Licenses shall be granted, pursuant to a justified decision in which Licenses shall be granted, pursuant to a justified decision in which the time and place limits thereof are specified; and the time and place limits thereof are specified; and for the for the purposes of fulfilling the requirements of all kinds and levels of purposes of fulfilling the requirements of all kinds and levels of educationeducation..

TT The executive regulations of the law herein shall define the The executive regulations of the law herein shall define the conditions and terms stipulated for granting licenses, as well as conditions and terms stipulated for granting licenses, as well as the categories of the due fees, which shall not exceed one the categories of the due fees, which shall not exceed one thousand Egyptian pounds for each workthousand Egyptian pounds for each work..

Law 82 (2002Law 82 (2002

Article 171 (Fair UseArticle 171 (Fair Use))

Without prejudice to the moral rights of the author, pursuant to the Without prejudice to the moral rights of the author, pursuant to the provisions of the law herein, the author may not prevent third parties, after the provisions of the law herein, the author may not prevent third parties, after the publication of his work, from undertaking any of the following acts:publication of his work, from undertaking any of the following acts:

FirstFirst: : Performance of a work in meetings with family members or pupils Performance of a work in meetings with family members or pupils in an educational institutionin an educational institution, so long as such performance has , so long as such performance has been without direct or indirect financial consideration.been without direct or indirect financial consideration.

SecondSecond: :

Reproducing one single copy of the work to be used by the Reproducing one single copy of the work to be used by the reproducer himself, provided that such reproduction does not reproducer himself, provided that such reproduction does not contradict with the normal exploitation of the work and does not contradict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author or unreasonably prejudice the legitimate interests of the author or the holders of copyrights. Nevertheless, the author or his the holders of copyrights. Nevertheless, the author or his successors may prevent third parties, after the publication of hissuccessors may prevent third parties, after the publication of his work, from undertaking any of the following acts, without work, from undertaking any of the following acts, without permission therefrom: permission therefrom: - Reproducing, photographing or copying fine, applied or plastic arts, unless existing in - Reproducing, photographing or copying fine, applied or plastic arts, unless existing in public, or is an architectural work; public, or is an architectural work; - Reproducing or copying all or a substantial part of a musical note.- Reproducing or copying all or a substantial part of a musical note.- Reproducing or copying all or a substantial part of computer database or software. - Reproducing or copying all or a substantial part of computer database or software.

Egyptian Law: Law 82 (2002)Egyptian Law: Law 82 (2002)

FourthFourth: : Conducting analytic studies of the work or parts or quotations Conducting analytic studies of the work or parts or quotations therefrom, for the purpose of criticism, discussion or media.therefrom, for the purpose of criticism, discussion or media.

SixthSixth::Reproducing extracts of a work in the form of manuscripts or audio, Reproducing extracts of a work in the form of manuscripts or audio, visual, or audio- visual recordings, for the purposes of teaching for visual, or audio- visual recordings, for the purposes of teaching for illustration or explanation, with the provision that: i) Reproduction illustration or explanation, with the provision that: i) Reproduction shall be within the reasonable limits; ii) Reproduction shall not shall be within the reasonable limits; ii) Reproduction shall not surpass the purpose thereof; and iii) mention shall be made of the surpass the purpose thereof; and iii) mention shall be made of the name of the author and the title of the work on all copies of the name of the author and the title of the work on all copies of the works, whenever possible.works, whenever possible.

SeventhSeventh: : Reproducing an article, short work or a derivative of a work, if Reproducing an article, short work or a derivative of a work, if necessary, for the purposes of teaching in educational institutions, necessary, for the purposes of teaching in educational institutions, with the provision that: with the provision that: i) Reproduction shall be made only once or on separate and i) Reproduction shall be made only once or on separate and interrupted intervals.interrupted intervals.ii) Mention shall be made of the name of the author and the title of ii) Mention shall be made of the name of the author and the title of the work on each copy.the work on each copy.

Egyptian Law: Law 82 (2002)Egyptian Law: Law 82 (2002)

EighthEighth::Making one single copy of the work through the national archives; Making one single copy of the work through the national archives; or through the non-profit libraries- either directly or indirectly - in or through the non-profit libraries- either directly or indirectly - in the following cases:the following cases:Reproduction is made for a published article, a short work or a Reproduction is made for a published article, a short work or a derivative of a work, so long as the purpose of reproduction has derivative of a work, so long as the purpose of reproduction has been in fulfillment of a request made by a natural person, for been in fulfillment of a request made by a natural person, for using same in study or research. Such reproduction shall be made using same in study or research. Such reproduction shall be made for once or on irregular intervals.for once or on irregular intervals.Reproduction is made for the purpose of maintaining the original Reproduction is made for the purpose of maintaining the original copy or of substituting a lost, destroyed or spoiled copy, where it copy or of substituting a lost, destroyed or spoiled copy, where it became impracticable to obtain a substitute thereof under became impracticable to obtain a substitute thereof under reasonable conditions.reasonable conditions.

NinthNinth: : Temporarily reproducing work subsequent to or during the digital Temporarily reproducing work subsequent to or during the digital transmission of the work; or during exercising an act aiming at transmission of the work; or during exercising an act aiming at receiving a digitally stored work; and within the framework of receiving a digitally stored work; and within the framework of normal operation of the device used by the rightnormal operation of the device used by the right holder. holder.

Law 82 (2002Law 82 (2002

Article 172 (Media)Article 172 (Media)

Without prejudice to the moral rights of the author pursuant Without prejudice to the moral rights of the author pursuant to the provisions of the law herein, the author or his to the provisions of the law herein, the author or his successor in title shall successor in title shall not prevent the newspapers, not prevent the newspapers, periodicals or broadcasting organizations, withinperiodicals or broadcasting organizations, within the limits the limits justified by the objective thereof from the following:justified by the objective thereof from the following:

FirstFirst: : Publishing extracts of the works thereof that have been Publishing extracts of the works thereof that have been lawfully made available to the public and the published lawfully made available to the public and the published articles thereof relating to issues which have occupied articles thereof relating to issues which have occupied public opinion at certain times; unless such has been public opinion at certain times; unless such has been prohibited by the author upon publication. Mention shall be prohibited by the author upon publication. Mention shall be made in this case, of the source of such selections, the made in this case, of the source of such selections, the name of the author and title of the work.name of the author and title of the work.

Egyptian Law: Law 82 (2002Egyptian Law: Law 82 (2002

SecondSecond: : Publishing speeches, lectures, seminars, and address Publishing speeches, lectures, seminars, and address delivered in the course of public sessions of delivered in the course of public sessions of parliament, legislative and administrative parliament, legislative and administrative organizations and public meetings in the scientific, organizations and public meetings in the scientific, literary, artistic, political, social, and religious literary, artistic, political, social, and religious domain, including judicial hearings in the public domain, including judicial hearings in the public sessions. sessions. However, the author or his successor shall However, the author or his successor shall have the sole right to compile such works in have the sole right to compile such works in collections attributed theretocollections attributed thereto..

ThirdThird::Publishing extracts of an audio, visual, or audiovisual Publishing extracts of an audio, visual, or audiovisual work that has been made available to the public work that has been made available to the public within press coverage of current incidents.within press coverage of current incidents.

General Remarks (I)General Remarks (I)

Countries must abide by Countries must abide by international agreements and by international agreements and by their international obligationstheir international obligations

Yet there is a “Yet there is a “margin of margin of interpretation”interpretation” that countries that countries can use when doing thatcan use when doing that

This is the case in the area of This is the case in the area of Copyright Law and Copyright Law and Exceptions/Limitations Exceptions/Limitations

General Remarks (II)General Remarks (II)

What is stipulated in laws is What is stipulated in laws is important important

...But what is even more ...But what is even more important is important is the manner in which the manner in which laws are implementedlaws are implemented……

…….particularly .particularly by the court systemby the court system

ConclusionConclusion The ultimate goal of copyright is the cultural The ultimate goal of copyright is the cultural

enrichment of society.enrichment of society. If society cannot benefit from the author’s work in If society cannot benefit from the author’s work in

a satisfying degree –because the author charges a satisfying degree –because the author charges excessive prices – this would disturb the mutual excessive prices – this would disturb the mutual exchange between them. This could justify the exchange between them. This could justify the authorization of third parties to reproduce the authorization of third parties to reproduce the copyrighted materials without the author’s copyrighted materials without the author’s consent.consent.

However, in order to preserve incentive for However, in order to preserve incentive for authors the exception should be limited to what is authors the exception should be limited to what is absolutely required in the public interest.absolutely required in the public interest.

This requires a delicate balancing test This requires a delicate balancing test between the competing interests of the between the competing interests of the public and the author. public and the author.