0.3 Rights, exceptions, and limitations  (Page 6/12)

Given the highly incomplete coverage of rental and public lending rights in the supranational agreements, it is not surprising that many countries currently do not recognize them. Of particular importance to libraries,  currently only 29 countries  have established public lending rights systems. Most of those countries are in Europe. The United States does not have one, nor does any country in Latin America, Africa, or Asia.

Librarians in developing countries may soon be called upon to participate in discussions concerning whether their countries should adopt a public lending right system. What position should they take?  The International Federation of Library Associations and Institutions (IFLA)  offers  two sensible recommendations . First, librarians should not accept any legislative proposals that would require the libraries themselves to pay fees to authors, performers, and producers. The only ways that libraries could make such payments would be either to charge users or to withdraw scarce resources from other programs. Either strategy would fundamentally impair the libraries' core mission. In short, the only acceptable version of a public lending system would be one in which the government, not the libraries, paid the fees -- as occurs in most European countries. Second, the IFLA argues that even a system in which the government paid the fees would be unwise in developing countries, because it would reduce the money the government could spend on even more essential social or cultural functions -- such as providing its citizens adequate health care or basic educations.

This issue will almost certainly require librarians' close attention in the near future.

Exceptions and limitations

As was shown in  Module 2: The International Framework , all of the international copyright agreements permit countries to make certain exceptions to the rights we have described thus far. Every country has indeed made such exceptions. The purposes of these exceptions vary. Some are justified by the need to respect freedom of expression or privacy. Others are intended to prevent copyright law from frustrating rather than fostering creativity. Still others recognize the impossibility of monitoring and charging for some uses. The list of exceptions is very long. In general, the exceptions should be considered just as important as the rights they qualify. Together, they are intended to strike a balance between the interests of authors and the interests of users and the public at large. For this reason, it is sometimes said that the exceptions create "user rights."

The exceptions take one of two forms. Exceptions of the first type identify specific permissible activities. An influential example of this approach is Article 5 of the EU Copyright Directive . Section 2 of that article authorizes EU member countries to provide for the following exceptions to the right of reproduction:

(a) in respect of reproductions on paper or any similar medium, effected by the use of any kind of photographic technique or by some other process having similar effects, with the exception of sheet music, provided that the rightholders receive fair compensation;

(b) in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject-matter concerned;

(c) in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage;

(d) in respect of ephemeral recordings of works made by broadcasting organisations by means of their own facilities and for their own broadcasts; the preservation of these recordings in official archives may, on the grounds of their exceptional documentary character, be permitted;

(e) in respect of reproductions of broadcasts made by social institutions pursuing non-commercial purposes, such as hospitals or prisons, on condition that the rightholders receive fair compensation.''