États-Unis d'Amérique
Droit d'auteur et droits connexes
8. Please explain how the provisions of Sections 44 to 48, 68, 70, 71, 79, 81, 87, 186 and 188 comply with Berne Articles 9(2) and 10(2) and TRIPS Articles 13 and 14.6, which restrict the scope of permissible limitations on exclusive rights.
New Zealand considers that Sections 44-48, 68, 70, 71, 79, 81, 87, 186 and 188 comply with Berne and TRIPS, by virtue of being permitted exceptions and limitations on the rights granted under these two treaties for the reasons outlined below: -Sections 44-48 are concerned with educational purposes. Provision is made in certain circumstances for copying to be done for educational purposes; the performing, playing or showing a work in public for educational purposes; and the recording of a broadcast or cable programme for educational purposes. These limitations on owners' rights are, however, tightly prescribed including, in the case of copying of a sound recording or recording a broadcast or cable programme, not permitting the copying or recording where licenses are available under a licensing scheme. Sections 44-48 do, therefore, comply with Berne Articles 9(2) and 10(2) and TRIPS Article 13; -Section 68 is intended to deal with the situation where, for example, there is a speech or oration delivered without any notes. As copyright can only vest in a tangible expression of a work, this provision enables the speaker to obtain copyright by virtue of the speech or oration having been written down or broadcast while also enabling the writer or broadcaster, as the recorder, an opportunity to use the recording. Such use is, however, subject to limitations including the right of the speaker to prohibit the recording; The provision is considered necessary in order to comply with Berne Articles 2(1), 7(1), 8, 9(1), 10(1), and 10bis(1). The limitations in Section 68(1) are considered to provide appropriate protection for the copyright owner in terms of Berne Article 9(2) and TRIPS Article 13; -Section 70 concerning a public reading or recitation complies with Berne Articles 9(2) and 11ter since it is limited to a reading: -by one person only; -only to a reasonable extent; -which provides sufficient acknowledgement; and -which, if it involves a sound recording or broadcast, is using mainly material other than the public reading or recitation; -Section 71, concerning abstracts of scientific or technical articles, is in compliance with Berne Article 9(2) and TRIPS Article 13 in that abstracts are not a reproduction of the work and do not, therefore, conflict with the normal exploitation of the work nor unreasonably prejudice the legitimate interests of the author; The abstracts are intended to aid in the dissemination of information. It is arguable that the abstracts are original works in their own right and, therefore, enjoy copyright protection; -Section 79 permits educational establishments and libraries to rent non-infringing copies of computer programmes, sound recordings or films for non-profit reasons. As TRIPS Article 11 is only concerned with "commercial rental", this exception is permissible; -Sections 81 and 186 relate to the playing of a sound recording in a club, society or other organization which is primarily concerned with religion, education or social welfare, which is not established for profit and where any proceeds from admission are applied for the benefit of the club, society or organization. As these provisions only provide for playing sound recordings and not reproducing sound recordings they are not inconsistent with Berne or with TRIPS Articles 14.1 and 14.2. In respect to TRIPS Article 13, the purpose and nature of the limitations are consistent with this Article; and -Section 188 provides for the playing or showing of a broadcast or cable programme to an audience not paying for admission to the place where the broadcast or cable programme is heard. It includes, for example, prisons and clubs or societies but does not include hotels, motels or camping grounds. The limitation on this exception is in terms of TRIPS Article 14.6 and is consistent with TRIPS Article 13.