The Digital Media Project

 

Source

Melanie Dulong de Rosnay

Title

TRU #02 to make personal copy

No.

040113dulong01

 

Name:

Melanie Dulong de Rosnay

Affiliation/additional information:

Medialive, Paris

Date submitted:

2004/01/13

 

#

Criteria

Description

1.

Name of the TRU

TRU to make personal copy
Civil law countries legal term is  private copy , while common law countries do not handle it specifically and consider it as part of fair use prerogatives (USA), or fair dealing and other exceptions for private study or research (UK).
 

2.

Summary description of TRU

This mechanism allows certain acts that pertain to exclusive right of reproduction without requesting prior authorization.
Two factors are taken into account: the user (individual, some institutions) and/or the purpose of the use (education, non commercial…) to fall under the exception scope and avoid copyright infringement.
 

3.

Use records of TRU

  • paper reprography and photocopying of a book, an article

  • analog or digital recording of an audiovisual work on a VCR, a tape recorder, a CD burner, a removable memory, a HD…

  • a coming use can be a virtual private copy accessible online

4.

 Nature of TRU

Both customary and legally supported.
The foundation of this TRU is the respect of privacy and the former impossibility to control acts and uses made at home.

The private destination of the copy was supposed not to damage the work exploitation.
 

5.

Benefits of TRU

Private copy benefit for users is obvious: open access, creation emulation, inequalities reduction…
TRU to make personal copy can be associated to a license fee (levy, compensation or equitable remuneration) collectively shared out between right holders.
 

6.

Possible digital support

Personal end-user identification and client-server authentication technologies could adapt this TRU to the digital age (risk of  jeopardizing other TRU : TRU to use content anonymously, TRU to be ignorant of the usage…)
It could be possible to propose a virtual private copy that could be accessed only online after user/purpose control. Copy-right would be replaced by access-right.

Qualification of the use purpose might require the mediation of a trusted third party. 

7.

Requirements

Reflect national differences. e.g.:

  • Belgian law distinguishes copy of literary and plastic arts works, and sound/audiovisual copy. Full copy of a book is prohibited but full copy of an article or a sound/audiovisual work is permitted.

  • Canadian law allows it only for sound recordings and partly for software (back-up or compatibility purposes).

  • French law prohibits any collective use (copyist and user must be the same person and communication reserved to the family circle) and gratuitous nature of the act is not a criteria

  • UK copyright legislation authorises personal copy for research purposes including commercial research.

  • German law authorizes works to be digitally displayed only (no copy) within teaching and research institution, while articles or fragments can be copied.

  • some countries differentiate between analogical and digital private copy.

Support changing interpretation

 The three steps test is increasingly adopted (Berne, WTO TRIPs, 1996 WIPO treaties, 2001 European Directive) to evaluate the legitimacy of exceptions and limitations on copyright. It binds their enforcement certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.
States, rightholders or industrials may have to take measures to ensure the compatibility between protection techniques and reproduction for private use. The law never defines the number of reproduction and the amount of the original materials allowed.

8.

Requirements