pilch.indd


       
    

     

  

          

 

 

 

 

            

    
   

   

     

      

    

     

    
     

     
    

 

Fair Use and Beyond: The Status of 
Copyright Limitations and Exceptions 
in the Commonwealth of Independent 
States 

Janice T. Pilch 

Fair-use and other free-use limitations and exceptions in national copy-
right laws maintain a balance between the individual interests of creators 
of works and other copyright holders, and the public interest in fostering 
a culturally productive exchange of information and ideas. The status of 
fair use and free use has come into question in recent years, in part by 
the rapid pace of technological change, which has led to laws favoring 
new modes of information management. This article discusses fair-use 
and other copyright limitations and exceptions in an international context 
and their origins in international conventions, treaties, and agreements. 
It then offers a comparative analysis of the limitations and exceptions 
found in the current copyright laws of the twelve nations comprising the 
Commonwealth of Independent States (CIS), highlighting the range of 
limitations and exceptions found in the CIS statutes and the differences 
among the laws of those nations. In the current climate of change in 
global copyright legislation, this article provides broad perspective in an 
area that is of increasing relevance to the aims of academic and research 
libraries internationally. 

he status of fair use is a sub-
ject of increasing concern in 
libraries, archives, and edu-
cational institutions that have 

long relied on limitations and exceptions 
in copyright laws to carry out essential 
services in support of research and 
education. In the United States, fair use 
makes it possible for individuals to quote 
from, or reproduce, copyrighted materi-
als without seeking permission from 

the copyright holder. It allows instruc-
tors to photocopy excerpts from books, 
journals, newspapers, and other works 
for classroom teaching, to quote from 
works in their publications, and to place 
course materials on reserve in print and 
electronically. The fair use doctrine makes 
it possible for students to photocopy pas-
sages from copyrighted materials and to 
quote from others’ writings in their own 
wri en work. Further exceptions in the 

Janice T. Pilch is Slavic and East European Technical Services Librarian and Assistant Professor of Library 
Administration at the University of Illinois at Urbana-Champaign; e-mail: pilch@uiuc.edu. 

468 

mailto:pilch@uiuc.edu


     

      
     

     
     

     
   

     
     

      

       
     

      
    

      
     

     

     
    

     

   

    
      

    

     

     
        

      

    
    

     
      

    

      
    

    
   

     

    
     

       

      
        

    

     

1976 U.S. Copyright Act allow research 
libraries and archives to reproduce copy-
righted books, journals, and newspapers 
that have been lost or stolen from their 
collections or that have become damaged 
or obsolete, and to lend materials on-site 
and through interlibrary loan. 

In the United States, the judicial doc-
trine of fair use, having originated in a 
decision by Justice Story in the 1841 case 
Folsom v. Marsh, and having first been 
articulated in the 1869 case Lawrence 
v. Dana, became part of U.S. law in the 
1976 U.S. Copyright Act.1,2 The earlier 
copyright law, the 1909 U.S. Copyright 
Act, did not contain a provision for fair 
use. In response to issues facing research 
libraries in connection with the growing 
use of methods of photographic repro-
duction, a “Gentlemen’s Agreement” 
between the Joint Commi ee on Materials 
for Research and the National Association 
of Book Publishers was reached in 1935 
and served as an unofficial guideline for 
libraries, archives, and other institutions 
with respect to the reproduction of print-
ed material until the fair-use doctrine was 
incorporated into the U.S. Copyright Act 
of 1976.3 The fair-use doctrine is a judicial 
tool for maintaining a balance between 
the interests of the creators of works in 
seeking reward for their creative activity 
and the public interest in having works 
freely available for use. Put in broader 
terms, it mediates between individual 
and social interests. 

As the digital age progresses, we face 
a situation in which a large number 
of copyrighted works will be created 
and stored almost exclusively in digital 
format. With the advent of intellectual 
property laws developed to control the 
use of digital material, in particular with 
the introduction in the United States 
of the Digital Millennium Copyright 
Act (DMCA) in 1998, implementing the 
two 1996 treaties administered by the 

Fair Use and Beyond 469 

World Intellectual Property Organization 
(WIPO), the WIPO Copyright Treaty and 
the WIPO Performances and Phonograms 
Treaty, fair use is being compromised with 
respect to copyrighted works stored in a 
digital medium. Under the provisions 
of the 1976 Copyright Act, as amended 
by the DMCA, fair use has already been 
overridden as a defense to copyright 
violation for reproduction of a digitally 
stored and encrypted work. Along with 
this, the growth of licensing threatens 
to erode the validity of fair use as the 
business sector defines the terms of in-
formation management in areas such as 
electronic books, serial aggregations, and 
other digitized and born-digital materials. 
At the outer edges of the current debate 
on fair use, arguments are advanced that 
whereas the effects on copyright holders 
of fair-use or private-use exceptions might 
have been minimal in the past, current 
technology may make them unacceptable 
and no longer compatible with the Berne 
Convention.4 Technology itself is offered 
as a means of bypassing copyright be-
cause digital rights management systems 
are considered options for controlling 
copyright infringement by eliminating 
the decisions involved in applying the 
fair-use doctrine. 

The library and educational com-
munities are working to maintain and 
expand awareness of the importance of 
fair use to the progress of learning and 
to cultural advancement and of its global 
significance in the digital and networked 
environment. Efforts to assess the impact 
of technological change on fair use and to 
defend its role in the digital environment 
are escalating, and it is as important as 
ever to understand fully what fair use 
is and how it relates to other types of 
limitations and exceptions in copyright 
law. In the ongoing international discus-
sion of exceptions to copyright that have 
not merely benefited, but indeed have 



       
      

     

   

   

    

      

      

     
    

      

      
     
     

 
     

 

      
      

    

    

     
       

     

    
     

     

    

     

     

       
      

       

       

     

 
       

 470 College & Research Libraries 

made possible, research and educational 
pursuits, it is helpful to gain perspective 
on the relative strength of fair use and 
its equivalents in the statutes of other 
nations. A comparative analysis lends per-
spective in an area that has truly become 
an international concern. 

This article is an a empt to show how 
copyright limitations and exceptions fare 
in the nations that currently make up the 
Commonwealth of Independent States 
(CIS). For the be er part of the twentieth 
century, these former Communist enti-
ties placed heavy emphasis on social and 
public interests at the expense of private 
interests, an emphasis that was reflected 
in the copyright law of the former Soviet 
Union. Since the demise of the Soviet 
Union, all of these nations have enacted 
new national copyright laws, or in the 
case of Turkmenistan amended existing 
laws, and many of the new laws have un-
dergone amendment since they came into 
being.5 A comparative analysis highlights 
the range of limitations and exceptions to 
copyright found in the statutes of the CIS 
nations and also offers a view of the dif-
ferences among the laws of those nations. 
This study is intended to complement 
other recent articles covering the more 
practical aspects of copyright for materi-
als originating in CIS nations and being 
used in the United States in the library 
and educational spheres.6 Its methodol-
ogy is analytical rather than practical, 
with the primary aim of illuminating the 
issue of fair and free use from a compara-
tive perspective. Practical applications of 
this analysis are summarized at the end 
of the study. 

Fair Use in an International Context 
A preliminary note on terminology is in 
order to clarify how the fair-use doctrine 
relates to other exceptions in the U.S. 
copyright law and how it fits within 
the international scheme of copyright 

November 2004 

limitations and exceptions. The phrase 
“fair use” is most o en associated with 
an American concept that evolved as 
a judicial doctrine and that now has a 
statutory basis in Section 107 of the 1976 
U.S. Copyright Act as a valid defense to 
copyright violation. The phrase “fair deal-
ing” is used in the United Kingdom and 
other common-law nations deriving their 
copyright laws from English law. Fair 
use and fair dealing have their origins in 
common-law doctrine as a defense of the 
use of copyrighted material that would 
otherwise be infringing and are rooted in 
the Anglo-American common-law tradi-
tion of case-by-case adjudication. The fair-
use provision does not provide a defined 
list of uses deemed to be fair. Rather, it 
requires an open-ended equitable balanc-
ing inquiry that assesses the use relative 
to several factors. The American fair-use 
doctrine takes a considerably broader ap-
proach than even the fair-dealing provi-
sions of other common-law nations. 

Nations of the civil law tradition, as-
sociated with continental Europe, do not 
have an expansive or flexible doctrine 
equivalent to the U.S. fair-use provision. 
The European solution to the problem of 
fair use involves a number of specific, dis-
crete limitations or exceptions. In the civil 
law nations, the notions of fair use and 
fair dealing are not present as doctrines as 
such. However, the concept of free use is 
indeed present. Free use is a more general 
concept, characterizing a type of limita-
tion that exists in copyright laws of both 
civil and common-law tradition, involv-
ing use of a work that does not require 
payment or authorization, subject to cer-
tain conditions, primarily because the use 
is informatory or advances educational, 
scientific, or cultural development.7 Fair 
use and fair dealing are approaches in the 
common-law tradition for providing free 
use. Free use is a category of limitation or 
exception. 



     
    

 
     

     

 

     

      
      

    
      

      
 

       

     

      
     

     
 

     

      

        

       

      

      

     

      

      
     

   
   

     

     
      

       

     
     

      

The term “fair practice” also occurs 
in discussions of copyright limitations 
and exceptions. It appears in the Berne 
Convention in two contexts, in connec-
tion with the exception for quotations 
in Article 10(1) and the exception for il-
lustration in teaching in Article 10(2), as 
a term denoting an objective assessment 
of fairness, developed by courts in each 
country, for such free use of works.8 The 
above terms are o en used in ways that 
can be confusing to nonspecialists. 

The CIS nations have constructed their 
new copyright laws in the civil law tradi-
tion, which was prevalent in much of the 
territory comprising these nations before 
the Communist era. The very use of the 
term “author’s right” in CIS laws, as op-
posed to “copyright,” is an indication that 
the copyright laws of these nations are 
associated with the continental European 
system of author’s right (droit d’auteur), or 
the civil law tradition. In CIS nations, the 
phrase “free use” is commonly used in 
provisions that deal with specific limita-
tions or exceptions to the exclusive rights 
of authors that do not require remunera-
tion or authorization, but none of the na-
tions has an open-ended equivalent of the 
American fair-use doctrine. A number of 
exceptions in the CIS laws allow for the 
free use of material for specific purposes 
and under specific conditions. 

Even in the United States, the phrase 
“fair use” is tied to the provisions stipu-
lated in Section 107 of the 1976 Copyright 
Act but is o en confused with other pro-
visions that limit the exclusive rights of 
authors and copyright holders, such as 
limitations on exclusive rights for librar-
ies and archives stipulated in Section 108, 
or the limitation concerning transfer of 
a particular copy of a work or a phono-
record, commonly known as the “first-
sale” doctrine, in Section 109, or even the 
provision for use of works as classroom 
illustrations in Section 110. There are 

Fair Use and Beyond 471 

now fi een limitations and exceptions to 
the exclusive rights of authors and other 
copyright holders in the U.S. copyright 
law in addition to the fair-use doctrine. 
They are found in Sections 107–122 of the 
1976 Copyright Act. It bears repeating that 
fair use is but one limitation. 

The fair-use doctrine was meant to be 
ambiguous as well as flexible, unlike the 
other specific limitations and exceptions 
found in U.S. law or laws of other nations. 
Its open formulation was intentional on 
the part of Congress so that the doctrine 
would be adaptable to new forms of tech-
nology over time. The House Commi ee 
Report on the 1976 Copyright Bill that 
became Section 107 reads: 

The statement of the fair use doc-
trine in section 107 offers some guid-
ance to users in determining when 
the principles of the doctrine apply. 
However, the endless variety of situ-
ations and combinations of circum-
stances that can arise in particular 
cases precludes the formulation of 
exact rules in the statute. The bill 
endorses the purpose and general 
scope of the judicial doctrine of fair 
use, but there is no disposition to 
freeze the doctrine in the statute, 
especially during a period of rapid 
technological change. Beyond a 
very broad statutory explanation 
of what fair use is and some of the 
criteria applicable to it, the courts 
must be free to adapt the doctrine 
to particular situations on a case-by-
case basis. Section 107 is intended to 
restate the present judicial doctrine 
of fair use, not to change, narrow, or 
enlarge it in any way.9 

Section 107 establishes that certain uses 
of copyrighted material are not infringing 
and provides a nonexhaustive list of such 
noninfringing uses: criticism, comment, 



   
     

      

     

     

      
    

       
       

      

      

      
    

       
      

     
     

    
    

        
      

      
     

       
    

     
    

      

     
    

      

    

     

 

       
      

    

 
       

      
     

 
      

       
    

       

 472 College & Research Libraries 

news reporting, teaching, (including 
multiple copies for classroom use), schol-
arship, and research. It then provides the 
well-known list of four factors to be used 
in a determination of whether a particular 
use is a fair use: 

1. the purpose and character of the 
use, including whether such use is of a 
commercial nature or is for nonprofit 
educational purposes; 

2. the nature of the copyrighted work; 
3. the amount and substantiality of 

the portion used in relation to the copy-
righted work as a whole; 

4. the effect of the use upon the poten-
tial market for or value of the copyrighted 
work. 

It also provides for the noninfringing 
use of unpublished works: “The fact that 
a work is unpublished shall not itself 
bar a finding of fair use if such finding is 
made upon consideration of all the above 
factors.” 

Section 107 has been described as a 
“broad, largely judicially created doctrine 
that defies a simple definition or descrip-
tion…. Reduced to its most basic defini-
tion, the fair use exception permits what 
would otherwise be an infringing use of a 
work because allowing the use will result 
in a greater public benefit than denying 
it.”10 One commentator called Section 107 
the “adjustable tool” for judicial balancing 
of copyright, while labeling categorical 
exemptions “precision tools” for fine-tun-
ing the copyright balance legislatively.11 
But even as it is regarded as a cornerstone 
of free use of information, the concept 
of fair use is not without its critics. The 
doctrine is considered by some to be 
troublesome, and it has been criticized 
for its ambiguity with respect to the other 
copyright limitations and exceptions in 
the 1976 U.S. Copyright Act: 

Because §107 is followed by four-
teen other sections providing cat-

November 2004 

egorical exceptions in considerable 
detail, it is tempting to conclude that 
the exceptions in §107 are not cat-
egorical and are reserved for special 
circumstances. But the references in 
§107, even if only exemplary, are too 
clearly to the contrary. Thus one is 
le  with categorical exceptions and 
the list of four factors to consider. 
Are the uses mentioned in the stat-
ute, then, presumptively fair use, 
exceptions to the general copyright 
rule, unless so-called “factor analy-
sis” indicates special circumstances 
warranting an exception to the ex-
ception, bringing them back within 
the rule? Or do those uses have to 
pass through the mesh of factor 
analysis on the same terms as other 
uses, with perhaps an extra cheer if 
they succeed? Who knows?”12 

The concept of fair use in U.S. law, as 
codified in Section 107 of the Copyright 
Act of 1976, is far broader than the limita-
tions on copyright that have been adopted 
in other nations. Fair use is not an inter-
national standard. Such a standard does 
not exist, although there are suggestions 
that a comprehensive interpretation of 
existing national and international legis-
lation might make it possible to develop 
an international law of fair use.13 Fair use 
captures a great deal of a ention in library 
and legal literature. Its context in relation 
to other limitations and exceptions in U.S. 
copyright law draws somewhat less a en-
tion, and the comparative view of limita-
tions and exceptions in other countries is 
even less studied. A direct comparison of 
U.S. and CIS exceptions would be difficult 
within the scope of this article. U.S. excep-
tions are generally longer, convoluted, 
and more technical than those of the CIS 
and exhibit an indistinct relationship to 
Berne provisions in syntax and structure. 
Because CIS laws are the emphasis of this 

http:legislatively.11


   

 

     
    

       
    

     

     
    
      

 
      

      

   
     

       

      
     

       
        

       

    

      
       

     

 

 

 

article, the following discussion focuses 
on international copyright limitations 
and exceptions. 

Limitations and Exceptions to 
Exclusive Rights of Copyright 
Holders in International Conventions, 
Treaties, and Agreements 
Limitations and exceptions may be in-
cluded in international, regional, and 
national legislation, and they may vary 
widely from country to country. As is well 
known, the foundation of international 
copyright is the Berne Convention, es-
tablished in 1886. The current version of 
the Berne Convention, the Paris Revision, 
dates from July 24, 1971, and entered into 
force on October 10, 1974. The United 
States became a party to this convention 
in 1989. The USSR was making plans to 
join and was revising its federal copyright 
law to implement the Berne Convention 
but dissolved before that happened. All of 

Fair Use and Beyond 473 

the CIS nations except Turkmenistan and 
Uzbekistan joined the Berne Convention 
a er the fall of the Soviet Union in 1991. 
Other international treaties, conventions, 
and multilateral trade agreements are de-
veloped in relation to Berne, to expand its 
application, clarify its meaning, or apply 
it to new technologies. Within the context 
of this discussion of copyright limitations 
and exceptions in the laws of CIS nations, 
it is worth keeping in mind that Berne was 
in place long before the U.S. doctrine of 
fair use was legally recognized and that it 
is an instrument based on the continental 
perspective. 

The Berne Convention contains a 
number of articles outlining specific re-
strictions to rights of copyright holders 
for implementation in member nations. 
Only two of these are actually mandatory; 
the others are le  for member countries to 
introduce in their domestic legislation as 
they see fit. Moreover, the Berne Conven-

TABLE 1 
Membership of CIS Nations in International Copyright Conventions, 

Treaties, and Agreements Listing Year of Entry 

Berne 
Convention 

Rome 
Convention 

WIPO 
Copyright 
Treaty 

WIPO 
Performances 
and Phonograms 

Treaty 
TRIPS 
Agreement 

Armenia 2000 2003 2003 
Azerbaijan 1999 
Belarus 1997 2003 2002 2002
 Georgia 1995 2002 2002 2000 
Kazakhstan 1999 
Kyrzyzstan 1999 2003 2002 2002 1998 
Moldova 1995 1995 2002 2002 2001 
Russia 1995 2003 
Tajikistan 2000 
Turkmeni-
stan 
Ukraine 1995 2002 2002 2002 
Uzbekistan 



      

       
      

     

       
      

   

   
    

    
     

     
   

    
     

    
     

      
      

     

     
     

    

    
   

 
      

      
        

     
     

     
      

      
     

      

     

    
     

    
     

     

     

     

     
      

        
       

 474 College & Research Libraries 

tion contains a key provision that allows 
nations to adopt their own limitations and 
exceptions, subject to certain conditions. 
Article 9(2) states: “It shall be a ma er 
for legislation in the countries of the 
Union to permit the reproduction of such 
works in certain special cases, provided 
that such reproduction does not conflict 
with a normal exploitation of the work 
and does not unreasonably prejudice the 
legitimate interests of the author.” Much 
has been made of this clause, which has 
come to be known as the “three-step test” 
for limiting the exclusive rights of authors 
or copyright holders, in view of the fact 
that it embodies three concepts. Table 1 
provides a list of members of CIS nations 
in international copyright conventions, 
treaties, and agreements. 

The Agreement on Trade-Related 
Aspects of Intellectual Property Rights 
(TRIPS Agreement), the multilateral trade 
agreement concluded in 1994 and binding 
for members of the World Trade Organi-
zation, is a major international instrument 
governing copyright internationally. It 
incorporates the Berne Convention by 
reference and includes a provision similar 
to Article 9(2) of Berne. Article 13 of the 
TRIPS Agreement states: “Members shall 
confine limitations or exceptions to exclu-
sive rights to certain special cases which 
do not conflict with a normal exploitation 
of the work and do not unreasonably 
prejudice the legitimate interests of the 
right holder.” The 1996 WIPO Copyright 
Treaty, which expanded on aspects on 
Berne not sufficiently addressed in the 
1971 Paris Act to adapt copyright to the 
digital age, includes a similar provision 
in Article 10, as does the 1996 WIPO Per-
formances and Phonograms Treaty, which 
protects the rights of performers, phono-
gram producers, and radio, television, 
broadcasting, and cable organizations 
under the sphere of neighboring rights in 
the digital environment, in Article 16. The 

November 2004 

language in all of these instruments thus 
gives nations the right to adopt limita-
tions or exceptions to rights as long as the 
exceptions satisfy the three-part require-
ment. The Rome Convention, governing 
neighboring rights, is discussed later in 
this article. It contains four exceptions 
for neighboring rights and also allows 
member nations to adopt the same kinds 
of limitations with respect to neighboring 
rights that Berne provides for literary and 
artistic works. 

Categorization of Copyright 
Limitations and Exceptions 
What kinds of copyright limitations and 
exceptions have been adopted by nations 
in their domestic legislation? One of the 
difficulties in discussing copyright limi-
tations and exceptions is that they have 
been categorized in a number of different 
ways by the world’s leading copyright 
specialists. The WIPO Glossary of Terms of 
the Law of Copyright and Neighboring Rights 
treats limitations of copyright as synony-
mous with exceptions and categorizes the 
main forms of limitations as cases of free 
use, compulsory licenses, and statutory 
licenses.14 

Noted copyright expert Stephen M. 
Stewart, in his book International Copyright 
and Neighbouring Rights, outlined three 
types of exceptions and restrictions on 
the exclusive rights of the creator of the 
work that exist in international law: free-
use (fair-use, or fair-dealing) exceptions; 
nonvoluntary licenses, by which the work 
may be used without prior consent of the 
author, subject to certain conditions, such 
as payment of remuneration to the copy-
right holder; and exceptions permi ed by 
international conventions for use of the 
work in developing countries. 

He described free-use provisions as 
being of two kinds—those stipulating free 
use with respect to a specific purpose for 
all classes of works and those stipulating 

http:licenses.14


       
     

      
     

      
       

      
     

     
       

        
      
      

     
    

    

     

      
     

 
      

    
   

     
    

       

    
    

    
    

    
      

     

       

   

     

        
     
      
     
     

      
      

     
     

     
     

     
       

      
     

     
     

      
      

     
       

     
       

 
   

   
     

    

     
    

     

free use for particular classes of works—and 
delineated five categories of exceptional 
free use: exceptions for public speeches, 
lectures, and speeches in legal proceed-
ings; exceptions established with the aim 
of freedom of information in press and 
broadcasting; exceptions for the use of 
quotations; exceptions for private study 
and research; and exceptions for repro-
duction for personal or private use.15 In 
this scheme, the term “free use” is used 
with respect to all limitations and excep-
tions except for those governed by non-
voluntary (compulsory) licenses and those 
pertaining to developing countries. 

In discussing exceptions and limita-
tions on exclusive rights, Professor Paul 
Goldstein, in his book entitled Interna-
tional Copyright, grouped limitations and 
exceptions into the categories of private 
uses and public uses. Private uses encom-
passed scholarship and private study, and 
research, including reverse engineering. 
Public uses included parody, press use, in-
struction, and quotation. He also defined 
two incidental uses: ephemeral broadcast 
copies by broadcasting organizations, 
and computer copies to enable proper 
utilization. He included the commonly 
found exhaustion, or first-sale, doctrine, 
which can work to either allow the owner 
of a work to transfer ownership without 
negotiations with the copyright owner 
or prevent unlawful reproduction of 
rented phonograms or computer pro-
grams. He discussed other exceptions 
found in national laws, but not explicitly 
outlined in Berne, including reproduc-
tion of published works in Braille, and 
exceptions to libraries and archives for 
preservation, for the benefit of users, and 
for library lending (note that this exemp-
tion did not originate in Berne). Forming a 
separate category were statutory licenses 
involving equitable remuneration to 
the author, which he divided into three 
types: recording of musical works; private 

Fair Use and Beyond 475 

copying, such as audio- and videotaping 
and reproduction of printed works; and 
translation and reproduction of works in 
developing countries.16 

Professor J. A. L. Sterling, in his book 
entitled World Copyright Law, categorized 
various areas for which national laws fre-
quently contain limitations and exceptions: 
private use, including performance within 
the family circle; private use involving 
private copying levies to provide some 
compensation to copyright holders under 
certain conditions; or private use involv-
ing time-shi ing of television programs. 
He outlined additional limitations and 
exceptions to exclusive rights pertaining 
to criticism or review of works; education; 
library and archival activities; research, as 
sometimes distinguished from private use, 
which might involve pure entertainment; 
use of computer programs, involving 
provisions for the making of backup cop-
ies and copying for purposes of observa-
tion, study, testing, and decompilation, 
under certain conditions; and the use of 
databases, involving acts necessary to 
ensure normal use of the database and 
its contents. 

Professor Sterling described other 
types of restrictions, some of which have 
relevance for CIS laws, including use of 
protected material by a government, use 
of works by disabled persons, access to 
material open to public inspection, news 
reporting of current events, photograph-
ing artistic works that are on public dis-
play, uses involving public security, use 
of works for administrative and judicial 
procedures, and ephemeral recording 
by broadcasters.17 Included in his dis-
cussion of limitations and exceptions 
were compulsory and statutory licenses, 
whereby the limitation or exception is 
only permi ed upon compliance with 
certain procedures, such as payment of 
royalties; and national laws that include 
provisions stipulating that a specific right 

http:broadcasters.17
http:countries.16


      
 

       
     

     
    

    

      
     

    

     

     

      
      

      
     
       

     
     
       

     
      

    
      

      
      

     
       

      
      

      
        

       
     

  

     

     
     

      

     
     

    
    

  
     

      

     

     

      
     

 
     

     

     

       

 476 College & Research Libraries 

may be exercised only through a collective 
administration society.18 

Still, one wonders why the task of clas-
sifying the various types of limitations 
and exceptions in copyright laws around 
the world varies so much among leading 
copyright specialists. This is no doubt at 
least partly because the Berne Convention 
along with other relevant international 
copyright and neighboring rights treaties 
do not themselves contain all the excep-
tions that may exist in copyright laws 
worldwide. But given the possibilities for 
widely different types of formulations, 
there is a surprising consistency among 
the laws of many nations worldwide, 
and certainly among the CIS nations, in 
the range of such provisions incorporated 
into copyright laws. 

The recently published WIPO Study on 
Limitations and Exceptions of Copyright and 
Related Rights in the Digital Environment, 
authored by Professor Sam Ricketson 
(herea er referred to as the WIPO Study) 
provides a lengthy and comprehensive 
analysis of copyright limitations and ex-
ceptions as found in the Berne Convention, 
Rome Convention, TRIPS Agreement, 1996 
WIPO Copyright Treaty, and 1996 WIPO 
Performances and Phonograms Treaty, 
with some treatment of individual national 
approaches. In this study, limitations and 
exceptions to copyright are grouped in 
three categories: those that exclude protec-
tion for particular categories of works or 
material, defined as limitations; those that 
allow for immunity for infringement for 
particular kinds of use, defined as excep-
tions; and those that allow a particular use 
subject to payment of remuneration of the 
copyright owner, defined as compulsory 
or obligatory licenses.19 

It is clear that categorization of limita-
tions and exceptions in copyright law 
may follow different schemes. As for the 
present study, and without ge ing too 
enmeshed in categories, it is important 

November 2004 

to see how the various limitations and 
exceptions provided in Berne have been 
applied in the copyright laws of the CIS 
nations and to identify additional limita-
tions and exceptions found in these laws 
as common practice. The present study 
refers primarily to the categories as 
presented in the WIPO Study prepared 
by Professor Ricketson and discusses 
“free-use” exceptions, which have the 
most relevance for libraries and archives. 
Nonvoluntary licenses (compulsory 
licenses and statutory licenses) are not 
within the scope of this article. This com-
parative analysis will show the purpose of 
the provision, its implementation in CIS 
national legislation, and variants in the 
provisions across the CIS laws. 

The WIPO Study classifies three limita-
tions to copyright in the Berne Conven-
tion. They concern official texts of a leg-
islative, administrative, and legal nature; 
news of the day and miscellaneous facts; 
and political speeches and speeches de-
livered in the course of legal proceedings. 
It also identifies numerous exceptions, six 
of which are discussed here because they 
are relevant for free use of copyrighted 
materials in the CIS nations. 

CIS Limitations and Exceptions to 
Copyright Originating in the Berne 
Convention 
Official Texts of a Legislative, Administra-
tive, and Legal Nature 
Article 2(4) of the Berne Convention 
states: 

It shall be a ma er for legislation in 
the countries of the Union to deter-
mine the protection to be granted 
to official texts of a legislative, ad-
ministrative and legal nature, and to 
official translations of such texts. 

This is an optional limitation. All of the 
CIS nations contain a provision address-

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ing the protection of official documents, 
included in an article covering works not 
protected by copyright. There are two 
aspects to this provision: the scope of the 
term “official texts,” and whether their 
official translations are also protected. It 
is generally accepted that types of official 
texts other than legislative, administra-
tive, and legal do not come within the 
scope of this provision. 

Strictly speaking, this limitation has 
been incorporated in domestic CIS laws 
as a provision indicating the nonprotected 
nature of official texts, rather than as a 
provision allowing for free use of official 
texts that are otherwise protected. This 
distinction is important to recognize. As 
for translations of official documents, 
the WIPO Guide to the Berne Convention 
for Literary and Artistic Works (herea er 
referred to as the WIPO Guide to the Berne 
Convention) clarifies that at the Stockholm 
Revision of 1967, official translations were 
considered to fall under this limitation.20 
All of the CIS laws exclude protection for 
official translations. 

The wording of this provision differs 
somewhat in the various laws. The laws of 
Azerbaijan (Article 7), Belarus (Article 8), 
Russia (Article 8), and Tajikistan (Article 
7) stipulate that works not protected by 
copyright include “official documents 
(laws, court decisions, and other texts of 
a legal, administrative, or judicial nature) 
and their official translations.” Kazakh-
stan (Article 8) adds to this listing works 
of a diplomatic nature. Georgia (Article 
8) uses the word “normative” rather than 
“legal” or “judicial.” Armenia (Article 6), 
Uzbekistan (Article 8) and Kyrgyzstan 
(Article 8) use the phrase “official docu-
ments (laws, resolutions, decisions, etc.) 
and their official translations.” The Mol-
dovan law (Article 7) is more open-ended, 
using the phrase “official documents 
(laws, court decisions, and other docu-
ments), and their official translations.” 

Fair Use and Beyond 477 

The law of Turkmenistan (Article 1061) 
excludes from protection “official docu-
ments (laws, court decisions, and other 
texts of an administrative and normative 
character), and also official translations 
thereof.” The Ukrainian law (Article 10) 
contains a unique formulation: “official 
documents of a political, legal, and ad-
ministrative nature (laws, decrees, reso-
lutions, court decisions, state standards, 
etc.) and their official translations.” 

News of the Day and Miscellaneous Facts 
Article 2(8) of the Berne Convention 
states: 

The protection of this Convention 
shall not apply to news of the day 
or to miscellaneous facts having 
the character of mere items of press 
information. 

This is a mandatory limitation. It is 
interesting that all the CIS nations contain 
a provision to this effect, whether or not 
they are currently parties to the Berne 
Convention. The WIPO Guide to the Berne 
Convention clarifies that “[T]he news and 
the facts themselves are not protected nor 
the simple telling of them, since ma ers of 
this kind lack the necessary conditions to 
be considered as falling into the category 
of literary and artistic works. This excep-
tion merely confirms the general principle 
that, for a work to be protected, it must 
contain a sufficient element of intellectual 
creation.”21 It therefore can be interpreted 
against the expressed view that journal-
istic articles are protected insofar as they 
are literary or artistic works, as found in 
the Report of the Main Commi ee I at the 
1967 Stockholm Conference.22 

The wording in the various CIS laws 
differs somewhat, but the meanings are 
consistent, conveying the idea that news 
of the day and factual information in the 
press are not protected by copyright. The 

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 478 College & Research Libraries 

laws of Azerbaijan (Article 7), Kazakhstan 
(Article 8), Russia (Article 8), Tajikistan 
(Article 7), and Turkmenistan (Article 
1061) contain language that translates as 
“communications on events and facts of 
an informational nature.” Kyrgyzstan (Ar-
ticle 8) excludes “communications of news 
or communications concerning events of 
an everyday informational journalistic 
nature.” Georgia (Article 8) excludes “in-
formation on facts and events.” Armenia 
(Article 6), Uzbekistan (Article 8), and 
Ukraine (Article 10) exclude “communi-
cations on news of the day or on current 
events having the character of ordinary 
press information.” The Moldovan law 
(Article 7) refers to “news of the day and 
facts of a simple informational nature.” 
Belarus (Article 8[2]) has the broadest 
and most concise formulation, excluding 
“information as such.” 

Political Speeches and Speeches Delivered 
in the Course of Legal Proceedings 
Article 2bis(1) of the Berne Convention 
states: 

It shall be a ma er for legislation 
in the countries of the Union to 
exclude, wholly or in part, from the 
protection provided by the preced-
ing Article political speeches and 
speeches delivered in the course of 
legal proceedings. 

This limitation is optional. This provi-
sion was introduced at the Rome Revision 
(1928) and has remained unchanged, and 
its justification is freedom of information.23 
It is qualified by Article 2bis(3), which 
states: “Nevertheless, the author shall enjoy 
the exclusive right of making a collection of 
his works mentioned in the preceding para-
graphs.” It is also closely related to Article 
2bis(2), which deals with publicly delivered 
lectures and addresses reproduced by the 
press, and is discussed below. 

November 2004 

In most of the CIS laws, this provision 
is included in a general provision on “use 
of a work without consent of the author 
and without payment of royalties” or 
“free use of a work with indication of 
the author ’s name.” Several ideas are 
implicit in this provision, as qualified by 
Article 2bis(3), some or all of which are 
incorporated into the various domestic 
laws because this provision is optional: 
the extent of the exclusion; reproduction 
of publicly delivered political speeches; 
reproduction of legal speeches; and 
retention by the author of the right to 
include such a work in a compilation. 
The CIS provisions also contain a further 
qualification concerning the nature of the 
reproduction: they all indicate that this 
provision applies to reproduction for the 
press and broadcasting media. 

The laws of Armenia (Article 13) and 
Uzbekistan (Article 28) contain the most 
generic formulations, allowing reproduc-
tion in the press and the broadcast of pub-
licly delivered political speeches, lectures, 
addresses, and other similar works, to the 
extent justified by the intended purpose 
of the information, without consent of 
the author or other copyright holder and 
without payment of remuneration, but 
with an indication of the author’s name 
and of the source of the borrowing. The 
Uzbek law adds the condition that the 
reproduction must not conflict with a 
normal exploitation of the work and must 
not compromise the lawful interests of 
the author. 

All of the CIS laws specify that the 
works excluded from protection must be 
publicly delivered, but Belarus (Article 
19), Moldova (Article 22[1][b]), Tajikistan 
(Article 20[4]), and Ukraine (Article 21[9]) 
do not include any political qualification; 
Moldova specifies that the works must be 
on current topics. Only three, Azerbaijan 
(Article 19[5]), Georgia (Article 23[e]), and 
Turkmenistan (Article 1087[e]), include 

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wording for the category of speeches 
delivered in the course of legal proceed-
ings. All except Azerbaijan and Moldova 
restrict the amount of the work that can 
be reproduced to “the extent justified by 
the informational (or intended) purpose”; 
Moldova specifies that they be excerpts. 
Azerbaijan, Georgia, Kazakhstan (Ar-
ticle 19[4]), Kyrgyzstan (Article 19[4]), 
Russia (Article 19[4]), Tajikistan, and 
Turkmenistan contain the reservation that 
the author reserves the exclusive right to 
publication of such works in a separate 
collection or book. Turkmenistan adds the 
word “prophecies” to the list of types of 
works that may be reproduced. 

Thus, there is quite a bit of variation 
in this provision across the laws. Part of 
this might be a ributed to an a empt on 
the part of these nations to combine the 
concepts of Berne Articles 2bis(1) and 
2bis(2). This is discussed below. 

Quotations 
Article 10(1) of the Berne Convention 
states: 

It shall be permissible to make 
quotations from a work which has 
already been lawfully made avail-
able to the public, provided that 
their making is compatible with fair 
practice, and their extent does not 
exceed that justified by the purpose, 
including quotations from newspa-
per articles and periodicals in the 
form of press summaries. 

This is a mandatory exception for Berne 
member states. It is subject to the terms of 
Article 10(3), which requires that mention 
be made of the source and of the name of 
the author if it appears on the work. All of 
the CIS nations contain a provision to this 
effect. There are four main elements to 
this provision, as it is qualified by Article 
10(3): that the work from which quotation 

Fair Use and Beyond 479 

is made has been lawfully made available 
to the public; that the use is compatible 
with fair practice; that the extent of the use 
is justified by the purpose of the quota-
tion; and that the source and name of the 
author is identified. 

In all cases except Ukraine (Article 
21[1]) and Uzbekistan (Article 28), the 
requirement for the work to have been 
lawfully made available to the public 
is satisfied by the phrasing “lawfully 
published” or “lawfully promulgated.” 
In those two cases the phrasing is simply 
“published.” The “fair-practice” require-
ment is not stated explicitly in the CIS 
laws, but each law specifies purposes for 
quotations that serve to indicate what is 
considered “fair.” 

Quotation for scientific, critical, in-
formatory, or educational purposes was 
discussed in preparatory work for the 
Stockholm Conference as being within the 
scope of Article 10(1), hence that is where 
the list originates, but a list of purposes 
was not included in the final revision.24 In 
the laws of Armenia (Article 13), Azerbai-
jan (Article 19[1]), Georgia (Article 23[a]), 
Kazakhstan (Article 19[1]), Kyrgyzstan 
(Article 19[1]), Russia (Article 19[1]), Ta-
jikistan (Article 20[1]), and Turkmenistan 
(Article 1087[a]), five valid purposes are 
included: scientific, research, polemical, 
critical, and informational. Belarus (Ar-
ticle 19) adds educational use to the list-
ing, Moldova (Article 22[a]) and Ukraine 
do not specify research as a justifiable 
purpose, and Uzbekistan does not specify 
polemical use as a justifiable purpose. 
All of the laws specify that quotation is 
allowed only to the extent justified by the 
intended purpose of the quotation. All 
of the laws except Ukraine’s specify that 
quotation may be made from the original 
work as well as from a translation. 

All of the CIS provisions require the 
indication of the author and the source. 
The Ukrainian provision adds permis-

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 480 College & Research Libraries 

sion to “freely use quotations in the form 
of brief excerpts from performances and 
works incorporated in a phonogram (vid-
eogram) or a broadcasting program,” evi-
dently reinforcing its obligations under 
the WIPO Performances and Phonograms 
Treaty. The Moldovan provision (Article 
22) offers very specific guidelines for free 
use of works. The quotation of an isolated 
extract in prose must not exceed four 
hundred words. In quoting from several 
excerpts from one work, the amount of 
prose may not exceed three hundred 
words from each extract (but not con-
stituting more than one author’s page25) 
and the amount of poetry may not exceed 
forty lines (but not constituting more than 
one-fourth of the work of poetry). 

The inclusion of the words “in the 
form of press summaries” in the Berne 
Convention has been acknowledged as 
confusing.26 It is generally understood as a 
relic of the past when quotations and press 
reviews were linked, and the distinction 
appears to be largely irrelevant today.27 
The latest revision of Berne does not in-
clude the adjective “short” to qualify the 
word “quotations,” which was included in 
the Brussels Revision of 1948 but later re-
moved.28 The laws of Armenia and Belarus 
restrict quotation to “excerpts,” conveying 
the idea that only smaller portions may be 
used for quotation. Ukraine further quali-
fies the portion of the work that may be 
used in quotation to “brief excerpts.” 

Use of Works for Teaching 
Article 10(2) of the Berne Convention 
states: 

It shall be a ma er for legislation in 
the countries of the Union, and for 
special agreements existing or to be 
concluded between them, to permit 
the utilization, to the extent justified 
by the purpose, of literary or artis-
tic works by way of illustration in 

November 2004 

publications, broadcasts or sound 
or visual recordings for teaching, 
provided such utilization is compat-
ible with fair practice. 

This exception is optional. Five ideas 
are present here: that the use is from 
literary and artistic works; that the use is 
for illustration in teaching; that it is in the 
form of publication, broadcast, or sound 
or visual recording; that the extent of the 
use is justified by the purpose; and that 
the use is consistent with fair practice. 
This provision is subject to the terms of 
Article 10(3), which requires that mention 
be made of the source and of the name 
of the author if it appears on the work. 
By way of comparison, this provision is 
implemented in U.S. law in Section 110 
of the 1976 Copyright Act, which was 
recently revised by the TEACH Act. 

The purpose of Article 10(2) is “to 
meet teaching needs.” At the Stockholm 
Revision of 1967, there was agreement 
that this provision encompassed teaching 
at all levels, “in educational institutes, 
municipal and state schools, and private 
schools,” but that it did not include 
within its scope the concept of scientific 
research.29 Professor Ricketson has clari-
fied that the intention of the delegates at 
the Stockholm Conference was to exclude 
teaching outside those types of institu-
tions, therefore teaching for the general 
public would not be included under this 
provision.30 

All of the CIS nations except Moldova 
have incorporated this provision into 
their laws. All indicate that the use is for 
illustration in teaching and that it is in the 
form of publication, broadcast, or sound 
or visual recording. All require the indi-
cation of the source and the name of the 
author, and require that the extent of the 
use be justified by the purpose, but none 
explicitly includes the phrase concerning 
compatibility with fair practice. In ad-

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http:moved.28
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dition, all include the qualification that 
works be lawfully published or disclosed, 
indicating that unpublished works may 
not be used in this manner. Armenia (Arti-
cle 13) and Ukraine (Article 21[2]) specify 
that the provision applies to “literary and 
artistic works.” The other laws indicate 
simply “works.” Uzbekistan (Article 28) 
uses the qualification “disclosed.” 

The word “extracts” was removed from 
the text of the Berne Convention with the 
Stockholm Revision of 1967.31 It is interest-
ing that two nations, Azerbaijan (Article 
19[2]) and Belarus (Article 19), restrict 
the use to “excerpts” (synonymous with 
extracts) of works; and Georgia (Article 
23[b]) and Turkmenistan (Article 1087[b]) 
restrict use to “short excerpts.” Some of 
the laws include language encompassing 
use of both works and excerpts of works: 
Armenia, Kazakhstan (Article 19[2]), 
Kyrgyzstan (Article 19[2]), Russia (Article 
19[2]), Tajikistan (Article 20[2]). 

Moldova does not include a provision 
of this type but does allow reproduction 
of a work without gainful intent in iso-
lated situations and to the extent justified 
by the purpose by educational institutions 
of lawfully published separate articles 
and other small works or short excerpts 
from wri en works (with the exception of 
computer programs) for classroom use. 
That provision more closely resembles 
another on reproduction for libraries, 
archives, and educational institutions, 
which is also common to CIS laws, though 
not originating in Berne, and which is 
discussed below. 

Reproduction by the Press, Broadcast-
ing, or Public Communication by Wire of 
Articles in Newspapers and Periodicals 
Article 10bis(1) of the Berne Convention 
states: 

It shall be a ma er for legislation in 
the countries of the Union to permit 

Fair Use and Beyond 481 

the reproduction by the press, the 
broadcasting or the communication 
to the public by wire of articles pub-
lished in newspapers or periodicals 
on current economic, political, or 
religious topics, and of broadcast 
works of the same character, in cases 
in which the reproduction, broad-
casting or such communication 
thereof is not expressly reserved. 
Nevertheless, the source must al-
ways be clearly indicated; the legal 
consequences of a breach of this 
obligation shall be determined by 
the legislation of the country where 
protection is claimed. 

This is an optional exception, originat-
ing in Berne for the benefit of the press. 
The CIS nations all have a provision to 
this effect in their copyright laws. Five 
ideas are embodied in this provision: that 
the subject of the provision is published 
items in newspapers and periodicals and 
broadcast works; that the works in ques-
tion are on current economic, political, 
or religious topics; that the use involves 
reproduction in the press or public com-
munication; that the use is made only 
if not expressly reserved; and that the 
source is indicated. All of the laws include 
similarly worded provisions expressing 
all of these concepts. All the laws except 
that of Tajikistan (Article 20[3]) include 
the additional adjective “social” to qualify 
the range of topics. Belarus (Article 19) 
contains the language “economic, politi-
cal, social, and other.” The Moldovan law 
Article 22(1)(b) specifies that the use may 
be from an original or a translation but 
does not include a restriction to cases in 
which the use is not expressly reserved. 
The Georgian law (Article 23[c]) adds that 
the author retains the right to publication 
of such works in collections. 

The laws of Armenia (Article 13), 
Azerbaijan (Article 19[3]), Belarus, Geor-



      
     

      
      

       
    

     

     

      

    
     

    
     

      

    

     
       

    
      

     

     
     

       

     

    

      

     

      

    
        

     

    
    

     

      

 482 College & Research Libraries 

gia, Russia (Article 19[3]), Tajikistan, and 
Turkmenistan (Article 1087[c]) specify that 
the work reproduced must be lawfully 
published. The provision is also found 
in the laws of Kazakhstan (Article 19[3]), 
Kyrgyzstan (Article 19[3]), Ukraine (Ar-
ticle 21[3]), and Uzbekistan (Article 28). 

Reproduction by the Press, Broadcasting, 
or Public Communication by Wire of Lec-
tures, Addresses, and Other Similar Works 
Article 2bis(2) of the Berne Convention 
states: 

It shall also be a ma er for legisla-
tion in the countries of the Union 
to determine the conditions under 
which lectures, addresses and other 
works of the same nature which 
are delivered in public may be re-
produced by the press, broadcast, 
communicated to the public by wire 
and made the subject of public com-
munication as envisaged in Article 
11bis(1) of this Convention, when 
such use is justified by the informa-
tory purpose. 

This is an optional exception origi-
nating in Berne, also for the benefit of 
the press. Only some of the CIS nations 
contain a provision to this effect. This is 
not to be confused with provision 2bis(1) 
concerning political speeches and legal 
speeches made in the courtroom. It is 
qualified by Article 2bis(3), which states: 
“Nevertheless, the author shall enjoy the 
exclusive right of making a collection of 
his works mentioned in the preceding 
paragraphs.” 

There are several aspects to this provi-
sion: it applies to publicly delivered oral 
works; the use involves reproduction in 
the press or public communication; the 
use must be justified by the informatory 
purpose; and the author retains the right 
to publication of the work in collections. 

November 2004 

There are no restrictions on subject mat-
ter. The CIS laws treat this provision in 
various ways because it would appear 
that most have attempted to combine 
the requirements of Berne articles 2bis(1) 
and 2bis(2). In most of the laws, there is 
an overlapping of concepts in one provi-
sion. 

Strictly speaking, only Tajikistan (Ar-
ticle 20[4]) has a provision containing all 
of the elements stipulated in this Berne ar-
ticle. The laws of Belarus (Article 19) and 
Ukraine (Article 21[9]) include a provision 
concerning publicly delivered speeches, 
permitting reproduction to an extent 
justified by the purpose, but they do not 
contain a reservation to the effect that 
the author reserves the exclusive right to 
publication of such works in a separate 
collection or book. The Moldovan law 
(Article 22[1][b]) refers to publicly deliv-
ered speeches and addresses on current 
topics but does not include wording about 
justified use or retention of the author’s 
exclusive right to publication. 

The other CIS laws contain provisions 
more closely resembling Berne Article 
2bis(1), as the list of oral works is qualified 
with the adjective “political.” Such provi-
sions are found in the laws of Armenia 
(Article 13), Azerbaijan (Article 19[5]), 
Georgia (Article 23[e]), Kazakhstan (Arti-
cle 19[4]), Kyrgyzstan (Article 19[4]), Rus-
sia (Article 19[4]), Turkmenistan (Article 
1087[e]), and Uzbekistan (Article 28). 

Incidental Reproduction of Works in the 
Course of Reporting Current Events 
Article 10bis(2) of the Berne Convention 
states: 

It shall also be a ma er for legisla-
tion in the countries of the Union 
to determine the conditions under 
which, for the purpose of reporting 
current events by means of photog-
raphy, cinematography, broadcast-



     

     
    

     

     

      

    
      

     
      

      
  

      

    

    
   

    
       

      
    

    
     

   
     

      

 
   

    

       

      

    
     

        

     
     

       

   
     

    
     

        
       

ing or communication to the public 
by wire, literary or artistic works 
seen or heard in the course of the 
event may, to the extent justified 
by the informatory purpose, be 
reproduced and made available to 
the public. 

This is an optional exception, and like 
the previous two exceptions, it originated 
for the benefit of the press. Several ideas 
are present here: that the purpose of the 
reproduction and making available to the 
public is the reporting of current events; 
that the reproduction is made only by 
means of photography, cinematography, 
or public broadcast or communication; 
that the subject is literary and artistic 
works seen or heard incidentally in the 
reporting of current events; and that the 
extent of the reproduction and making 
publicly available is justified by the infor-
matory purpose. All of the CIS laws ex-
cept those of Moldova contain a provision 
including all the elements found in Berne 
article 10bis(2). They are found in the 
laws of Armenia (Article 13), Azerbaijan 
(Article 19[4]), Belarus (Article 19), Geor-
gia (Article 23[d]), Kazakhstan (Article 
19[5]), Kyrgyzstan (Article 19[5]), Russia 
(Article 19[5]), Tajikistan (Article 20[5]), 
Turkmenistan (Article 1087[d]), Ukraine 
(Article 21[4]), and Uzbekistan (Article 
28). Azerbaijan, Kazakhstan, Kyrgyzstan, 
Russia, Tajikistan, and Turkmenistan add 
that he author retains the right to publica-
tion of such works in collections. 

Ephemeral Recordings by Broadcast 
Organizations 
Article 11bis(3) of the Berne Convention 
states: 

In the absence of any contrary stipu-
lation, permission granted in ac-
cordance with paragraph (1) of this 
Article shall not imply permission 

Fair Use and Beyond 483 

to record, by means of instruments 
recording sounds or images, the 
work broadcast. It shall, however, be 
a ma er for legislation in the coun-
tries of the Union to determine the 
regulations for ephemeral record-
ings made by a broadcasting organi-
zation by means of its own facilities 
and used for its own broadcasts. The 
preservation of these recordings in 
official archives may, on the ground 
of their exceptional documentary 
character, be authorized by such 
legislation. 

Article 11bis(3) modifies 11bis(1) (the 
exclusive right of authors to works to per-
mit their broadcast or communication to 
the public) by permi ing member states to 
introduce regulations on the production 
and short-term preservation of recordings 
of broadcast works by broadcasting orga-
nizations. It makes a distinction between 
the broadcasting of a work, governed by 
that exclusive right, and the recording of 
the broadcast work. Several elements are 
in this exception: the recording must be 
made by a broadcasting organization by 
means of its own facilities and used for its 
own broadcasts; national law may allow 
that if the recording is of an exceptional 
documentary character, it may be retained 
in official archives without consent of 
the author; and national law defines the 
meaning of “ephemeral.” 

All of the CIS nations except Ukraine 
contain provisions to this effect. They are 
found in the laws of Armenia (Article 17), 
Azerbaijan (Article 23), Belarus (Article 
37), Georgia (Article 27), 

Kazakhstan (Article 25), Kyrgyzstan 
(Article 24), Moldova (Article 32), Rus-
sia (Article 24), Tajikistan (Article 21[4]), 
Turkmenistan (Article 1091), and Uz-
bekistan (Article 33). As this provision 
appears in CIS laws, the use may be made 
without the consent of the author or other 



     

    
     

    
    

     

     
    

     

      

      
       

  
     

     

     

      

     
    

    

     

   

     

    

    
     

 
     

     

    
    

       
    
        
      

   
     
     

 484 College & Research Libraries 

copyright holder and without payment of 
additional remuneration. All of the laws 
except Moldova’s permit the preservation 
of these recordings in official archives 
without the author’s consent if they are 
of an exceptional documentary character. 
Armenia makes a distinction between 
sound recording and video recording and 
allows them both. 

The Berne Convention leaves the in-
terpretation of “ephemeral” to national 
legislation, and it has been interpreted 
in a number of different ways. The CIS 
nations with this provision all interpret 
“ephemeral” as a period of six months 
from the making of the recording, unless 
a longer period has been agreed upon 
with the author of the recorded work. The 
WIPO Guide indicates that preservation 
in official archives usually means that 
one copy may be retained for historical 
purposes.32 Table 2 further explains the 
free-use copyright limitations and excep-
tions among the CIS nations. 

Article 9(2) of the Berne Convention 
Article 9(2) of the Berne Convention 
states: 

It shall be a ma er for legislation in 
the countries of the Union to permit 
the reproduction of such works in 
certain special cases, provided that 
such reproduction does not conflict 
with a normal exploitation of the 
work and does not unreasonably 
prejudice the legitimate interests of 
the author. 

This provision, commonly referred to 
today as the three-step test, is the basis 
for many types of exceptions involving 
reproduction for personal or private 
use, and research, science, teaching, and 
classroom use, that are found in national 
legislation but are not explicitly outlined 
in Berne. The underlying rationale for 

November 2004 

such provisions is that the use should not 
cause loss of profit to the author or other 
copyright holder, but any provision cre-
ated under the terms of this article also 
extends to the moral rights of the author. 
This article opens up possibilities for 
nations to restrict the exclusive right of 
reproduction and at the same time limits 
conditions under which provisions to 
this effect may be introduced to certain 
special cases that do not conflict with the 
normal exploitation of the work and do 
not unreasonably prejudice the legitimate 
interests of the author. The following 
are exceptions to the exclusive rights of 
authors and other copyright holders that 
do not originate in the Berne Convention 
but are present in copyright laws of the 
CIS nations and are considered justified 
by Berne Article 9(2). 

Other CIS Copyright Limitations and 
Exceptions 
Personal Use 
The “fair-use” doctrine in the United 
States and the “personal- or private-use” 
exceptions in other nations are consid-
ered to be justified by Berne Article 9(2). 
Personal- or private-use exceptions are 
common in national copyright laws 
worldwide.33 

All of the CIS nations include a provi-
sion for personal use as is a limitation to 
the right of reproduction (solely the right 
of reproduction). In all of the CIS laws, it 
allows for reproduction without consent 
of author or payment of royalties of a 
lawfully disclosed work exclusively for 
personal use or for the personal use of the 
members of a family. Several concepts are 
involved in this provision: 
• reproduction, without consent of 

author or other copyright holder, and 
without payment of remuneration (see ex-
ception for phonograms and audiovisual 
works below), of a lawfully promulgated 
work exclusively for personal use or for 

http:worldwide.33
http:purposes.32


 
 

 
   

Fair Use and Beyond 485 

TA
B
L
E
 2

F
re
e-
us
e 
C
op
yr
ig
ht
 L
im
it
at
io
ns
 a
nd
 E
xc
ep
ti
on
s 
in
 th
e 
C
IS
 N
at
io
ns

A
rm
en
ia
 

A
ze
rb
ai
ja
n 

B
el
ar
us
 

G
eo
rg
ia
 

K
az
ak
hs
ta
n 

K
yr
gy
zs
ta
n 

M
ol
do
va
 

O
ffi
ci
al
 te
xt
s 
an
d 
th
ei
r t
ra
ns
la
tio
ns

[B
er
ne
 2
(4
)]
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

N
ew
s 
of
 th
e 
da
y 
an
d 
fa
ct
ua
l i
nf
or
m
a-

tio
n 
[B
er
ne
 2
(8
)]
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

R
ep
ro
du
ct
io
n 
an
d 
br
oa
dc
as
t b
y

th
e 
pr
es
s 
of
 p
ol
iti
ca
l a
nd
/o
r l
eg
al

sp
ee
ch
es
 [B
er
ne
 2
bi
s(
1)
] 

Pu
bl
ic
 p
ol
iti
-

ca
l s
pe
ec
he
s 

Pu
bl
ic
 p
ol
iti
-

ca
l a
nd
 le
ga
l

sp
ee
ch
es
 

Pu
bl
ic

sp
ee
ch
es
 

Pu
bl
ic
 p
ol
iti
-

ca
l a
nd
 le
ga
l

sp
ee
ch
es
 

Pu
bl
ic
 p
ol
iti
-

ca
l s
pe
ec
he
s 

Pu
bl
ic
 p
ol
iti
-

ca
l s
pe
ec
he
s 

Pu
bl
ic

sp
ee
ch
es
 o
n

cu
rr
en
t t
op
ic
s 

Q
uo
ta
tio
n 
fr
om
 p
ub
lis
he
d 
w
or
ks

[B
er
ne
 1
0(
1)
] 

Sc
ie
nt
ifi
 c,
 

re
se
ar
ch
,

po
le
m
ic
al
,

cr
iti
ca
l, 
in
fo
r-

m
at
io
na
l u
se
 

Sc
ie
nt
ifi
 c,
 

re
se
ar
ch
,

po
le
m
ic
al
,

cr
iti
ca
l, 
in
fo
r-

m
at
io
na
l u
se
 

Sc
ie
nt
ifi
 c,
 re
-

se
ar
ch
, p
ol
em
-

ic
al
, c
rit
ic
al
,

ed
uc
at
io
na
l,

in
fo
rm
at
io
na
l

us
e 

Sc
ie
nt
ifi
 c,
 

re
se
ar
ch
,

po
le
m
ic
al
,

cr
iti
ca
l, 
in
fo
r-

m
at
io
na
l u
se
 

Sc
ie
nt
ifi
 c,
 

re
se
ar
ch
,

po
le
m
ic
al
,

cr
iti
ca
l, 
in
fo
r-

m
at
io
na
l u
se
 

Sc
ie
nt
ifi
 c,
 

re
se
ar
ch
,

po
le
m
ic
al
,

cr
iti
ca
l, 
in
fo
r-

m
at
io
na
l u
se
 

Sc
ie
nt
ifi
 c,
 

po
le
m
ic
al
,

cr
iti
ca
l, 
in
fo
r-

m
at
io
na
l u
se
 

U
se
 o
f p
ub
lis
he
d 
w
or
ks
 in
 te
ac
hi
ng

[B
er
ne
 1
0(
2)
] 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Se
e 
pr
ov
is
io
n

on
 re
pr
o-

du
ct
io
n 
fo
r

cl
as
sr
oo
m
 u
se

in
 e
du
ca
tio
na
l

in
st
itu
tio
ns
. 

R
ep
ro
du
ct
io
n 
an
d 
us
e 
by
 th
e 
pr
es
s 
of

ne
w
s 
an
d 
pe
ri
od
ic
al
 a
rt
ic
le
s 
on
 c
ur
-

re
nt
 to
pi
cs
 [B
er
ne
 1
0b
is
(1
)]
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

R
ep
ro
du
ct
io
n 
an
d 
us
e 
by
 th
e 
pr
es
s

of
 p
ub
lic
 s
pe
ec
he
s,
 a
dd
re
ss
es
, e
tc
.

[B
en
re
 2
bi
s(
2)
] 

N
o 

N
o 

Y
es
 

N
o 

N
o 

N
o 

Pu
bl
ic

sp
ee
ch
es
 o
n

cu
rr
en
t t
op
ic
s 



 
 

 
 

 
 

 
 

 
 

 
 

 486 College & Research Libraries November 2004 

TA
B
L
E
 2

F
re
e-
us
e 
C
op
yr
ig
ht
 L
im
it
at
io
ns
 a
nd
 E
xc
ep
ti
on
s 
in
 th
e 
C
IS
 N
at
io
ns

A
rm
en
ia
 

A
ze
rb
ai
ja
n 

B
el
ar
us
 

G
eo
rg
ia
 

K
az
ak
hs
ta
n 

K
yr
gy
zs
ta
n 

M
ol
do
va
 

In
ci
de
nt
al
 re
pr
od
uc
tio
n 
an
d 
us
e

in
 re
po
rt
in
g 
cu
rr
en
t e
ve
nt
s 
[B
er
ne

10
bi
s(
2)
] 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

N
o 

E
ph
em
er
al
 re
co
rd
in
g 
by
 b
ro
ad
ca
st
in
g

or
ga
ni
za
tio
ns
; p
re
se
rv
at
io
n 
as
 d
oc
u-

m
en
ta
tio
n 
[B
er
ne
 1
1b
is
(3
)]
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
; n
o 
pr
es
-

er
va
tio
n 

R
ep
ro
du
ct
io
n 
of
 p
ub
lis
he
d 
w
or
ks
 fo
r

pe
rs
on
al
 u
se
; p
ay
m
en
t f
or
 a
ud
io
vi
su
al

w
or
ks
 a
nd
 s
ou
nd
 re
co
rd
in
gs
 

Y
es
; p
ay
m
en
t 

no
t s
pe
ci
fie
d 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Pe
rf
or
m
an
ce
 o
f p
ub
lis
he
d 
m
us
ic
al

w
or
ks
 in
 c
er
em
on
ie
s 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

R
ep
ro
du
ct
io
n 
fo
r j
ud
ic
ia
l a
nd
 a
dm
in
-

is
tr
at
iv
e 
pr
oc
ee
di
ng
s 

Ju
di
ci
al
 a
nd

ad
m
in
is
tra
tiv
e 
Ju
di
ci
al
 a
nd

ad
m
in
is
tra
tiv
e 
Ju
di
ci
al
 a
nd

ad
m
in
is
tra
tiv
e 
Ju
di
ci
al
 

Ju
di
ci
al
 a
nd

ad
m
in
is
tra
tiv
e 
Ju
di
ci
al
 a
nd

ad
m
in
is
tra
tiv
e 
Ju
di
ci
al
 a
nd

ad
m
in
is
tra
tiv
e 

R
ep
ro
du
ct
io
n 
or
 b
ro
ad
ca
st
 o
f p
er
m
a-

ne
nt
ly
 lo
ca
te
d,
 p
ub
lic
ly
 a
cc
es
si
bl
e

w
or
ks
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

R
ep
ro
du
ct
io
n 
of
 p
ub
lic
 p
ho
to
gr
ap
hi
c

an
d 
ar
tis
tic
 w
or
ks
 fo
r c
at
al
og
s 

N
o 

N
o 

N
o 

N
o 

N
o 

N
o 

N
o 

R
ep
ro
du
ct
io
n 
of
 p
ub
lis
he
d 
w
or
ks
 fo
r

th
e 
bl
in
d 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

R
ep
ro
du
ct
io
n 
of
 p
ub
lis
he
d 
w
or
ks
 b
y

lib
ra
ri
es
 a
nd
 a
rc
hi
ve
s 
fo
r p
re
se
rv
at
io
n

an
d 
le
nd
in
g;
 b
y 
ed
uc
at
io
na
l i
ns
tit
u -

tio
ns
 fo
r c
la
ss
ro
om
 u
se
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 



Fair Use and Beyond 487 

TA
B
L
E
 2

F
re
e-
us
e 
C
op
yr
ig
ht
 L
im
it
at
io
ns
 a
nd
 E
xc
ep
ti
on
s 
in
 th
e 
C
IS
 N
at
io
ns

A
rm
en
ia
 

A
ze
rb
ai
ja
n 

B
el
ar
us
 

G
eo
rg
ia
 

K
az
ak
hs
ta
n 

K
yr
gy
zs
ta
n 

M
ol
do
va
 

E
xp
or
t f
or
 p
er
so
na
l u
se
 

N
o 

N
o 

N
o 

N
o 

Y
es
 

N
o 

Y
es
 

R
ep
ro
du
ct
io
n 
of
 c
om
pu
te
r p
ro
gr
am
s

an
d 
da
ta
ba
se
s 
fo
r s
pe
ci
fi e
d 
pu
rp
os
es
 
C
om
pu
te
r

pr
og
ra
m
s 
an
d

da
ta
ba
se
s 

C
om
pu
te
r

pr
og
ra
m
s 
an
d

da
ta
ba
se
s 

C
om
pu
te
r

pr
og
ra
m
s 

C
om
pu
te
r

pr
og
ra
m
s 
an
d

da
ta
ba
se
s 

C
om
pu
te
r

pr
og
ra
m
s 
an
d

da
ta
ba
se
s 

C
om
pu
te
r

pr
og
ra
m
s 
an
d

da
ta
ba
se
s 

C
om
pu
te
r

pr
og
ra
m
s 

Pe
rs
on
al
 u
se
, s
ub
je
ct
 to
 p
ay
m
en
t

[R
om
e 
15
(1
)]
 

Y
es
; p
ay
m
en
t 

te
rm
s 
no
t

sp
ec
ifi
ed
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

U
se
 in
 re
po
rt
in
g 
cu
rr
en
t e
ve
nt
s 
[R
om
e

15
(1
)]
 

Q
ue
st
io
na
bl
e 
Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

E
ph
em
er
al
 fi
 xa
tio
n 
by
 b
ro
ad
ca
st
in
g 

or
ga
ni
za
tio
ns
 [R
om
e 
15
(1
)]
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

U
se
 fo
r 
te
ac
hi
ng
 a
nd
 s
ci
en
tifi
 c 
re
-

se
ar
ch
 [R
om
e 
15
(1
)]
 

U
se
 fo
r t
ea
ch
-

in
g 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Q
uo
ta
tio
n 
fo
r i
nf
or
m
at
io
na
l p
ur
po
se
s 
Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

U
se
 in
 a
cc
or
da
nc
e 
w
ith
 o
th
er
 li
m
ita
-

tio
ns
 a
nd
 e
xc
ep
tio
ns
 [R
om
e 
15
(2
)]
 

Y
es
 

Y
es
 

Y
es
 

N
o 

Y
es
 

Y
es
 

Y
es
 



 488 College & Research Libraries November 2004 

TA
B
L
E
 2

F
re
e-
us
e 
C
op
yr
ig
ht
 L
im
it
at
io
ns
 a
nd
 E
xc
ep
ti
on
s 
in
 th
e 
C
IS
 N
at
io
ns

R
us
si
a 

Ta
ji
ki
st
an
 

Tu
rk
m
en
is
ta
n 

U
kr
ai
ne
 

U
zb
ek
is
ta
n 

O
ffi
ci
al
 te
xt
s 
an
d 
th
ei
r t
ra
ns
la
tio
ns

[B
er
ne
 2
(4
)]
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

N
ew
s 
of
 th
e 
da
y 
an
d 
fa
ct
ua
l i
nf
or
m
a-

tio
n 
[B
er
ne
 2
(8
)]
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

R
ep
ro
du
ct
io
n 
an
d 
br
oa
dc
as
t b
y

th
e 
pr
es
s 
of
 p
ol
iti
ca
l a
nd
/o
r l
eg
al

sp
ee
ch
es
 [B
er
ne
 2
bi
s(
1)
] 

Pu
bl
ic
 p
ol
iti
ca
l

sp
ee
ch
es
 

Pu
bl
ic
 s
pe
ec
he
s 

Pu
bl
ic
 p
ol
iti
ca
l a
nd

le
ga
l s
pe
ec
he
s 

Pu
bl
ic
 s
pe
ec
he
s 

Pu
bl
ic
 p
ol
iti
ca
l

sp
ee
ch
es
 

Q
uo
ta
tio
n 
fr
om
 p
ub
lis
he
d 
w
or
ks

[B
er
ne
 1
0(
1)
] 

Sc
ie
nt
ifi
 c,
 re
se
ar
ch
, 

po
le
m
ic
al
, c
ri
tic
al
,

in
fo
rm
at
io
na
l u
se
 

Sc
ie
nt
ifi
 c,
 re
se
ar
ch
, 

po
le
m
ic
al
, c
ri
tic
al
,

in
fo
rm
at
io
na
l u
se
 

Sc
ie
nt
ifi
 c,
 re
se
ar
ch
, 

po
le
m
ic
al
, c
ri
tic
al
,

in
fo
rm
at
io
na
l u
se
 

Sc
ie
nt
ifi
 c,
 p
ol
em
i-

ca
l, 
cr
iti
ca
l, 
in
fo
rm
a-

tio
na
l u
se
 

Sc
ie
nt
ifi
 c,
 re
se
ar
ch
, 

cr
iti
ca
l, 
in
fo
rm
a-

tio
na
l u
se
 

U
se
 o
f p
ub
lis
he
d 
w
or
ks
 in
 te
ac
hi
ng

[B
er
ne
 1
0(
2)
] 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

R
ep
ro
du
ct
io
n 
an
d 
us
e 
by
 th
e 
pr
es
s 
of

ne
w
s 
an
d 
pe
ri
od
ic
al
 a
rt
ic
le
s 
on
 c
ur
-

re
nt
 to
pi
cs
 [B
er
ne
 1
0b
is
(1
)]
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

R
ep
ro
du
ct
io
n 
an
d 
us
e 
by
 th
e 
pr
es
s

of
 p
ub
lic
 s
pe
ec
he
s,
 a
dd
re
ss
es
, e
tc
.

[B
en
re
 2
bi
s(
2)
] 

N
o 

Y
es
 

N
o 

Y
es
 

N
o 

In
ci
de
nt
al
 re
pr
od
uc
tio
n 
an
d 
us
e

in
 re
po
rt
in
g 
cu
rr
en
t e
ve
nt
s 
[B
er
ne

10
bi
s(
2)
] 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

E
ph
em
er
al
 re
co
rd
in
g 
by
 b
ro
ad
ca
st
-

in
g 
or
ga
ni
za
tio
ns
; p
re
se
rv
at
io
n 
as
 

do
cu
m
en
ta
tio
n 
[B
er
ne
 1
1b
is
(3
)]
 

Y
es
 

Y
es
 

Y
es
 

N
o 

Y
es
 



Fair Use and Beyond 489 

TA
B
L
E
 2

F
re
e-
us
e 
C
op
yr
ig
ht
 L
im
it
at
io
ns
 a
nd
 E
xc
ep
ti
on
s 
in
 th
e 
C
IS
 N
at
io
ns

R
ep
ro
du
ct
io
n 
of
 p
ub
lis
he
d 
w
or
ks
 fo
r

pe
rs
on
al
 u
se
; p
ay
m
en
t f
or
 a
ud
io
vi
-

su
al
 w
or
ks
 a
nd
 s
ou
nd
 re
co
rd
in
gs
 

R
us
si
a 

Y
es
 

Ta
ji
ki
st
an
 

Y
es
 

Tu
rk
m
en
is
ta
n 

Y
es
 

U
kr
ai
ne
 

Y
es
 

U
zb
ek
is
ta
n 

Y
es
 

Pe
rf
or
m
an
ce
 o
f p
ub
lis
he
d 
m
us
ic
al

w
or
ks
 in
 c
er
em
on
ie
s 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

R
ep
ro
du
ct
io
n 
fo
r j
ud
ic
ia
l a
nd
 a
d-

m
in
is
tr
at
iv
e 
pr
oc
ee
di
ng
s 

Ju
di
ci
al
 

Ju
di
ci
al
 

Ju
di
ci
al
 

Ju
di
ci
al
 a
nd
 a
dm
in
-

is
tr
at
iv
e 

Ju
di
ci
al
 a
nd
 a
dm
in
-

is
tr
at
iv
e 

R
ep
ro
du
ct
io
n 
or
 b
ro
ad
ca
st
 o
f p
er
m
a-

ne
nt
ly
 lo
ca
te
d,
 p
ub
lic
ly
 a
cc
es
si
bl
e

w
or
ks
 

Y
es
 

Y
es
 

Y
es
 

N
o 

Y
es
 

R
ep
ro
du
ct
io
n 
of
 p
ub
lic
 p
ho
to
gr
ap
hi
c

an
d 
ar
tis
tic
 w
or
ks
 fo
r c
at
al
og
s 

N
o 

N
o 

N
o 

Y
es
 

N
o 

R
ep
ro
du
ct
io
n 
of
 p
ub
lis
he
d 
w
or
ks
 fo
r

th
e 
bl
in
d 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

R
ep
ro
du
ct
io
n 
of
 p
ub
lis
he
d 
w
or
ks
 b
y

lib
ra
ri
es
 a
nd
 a
rc
hi
ve
s 
fo
r p
re
se
rv
a-

tio
n 
an
d 
le
nd
in
g;
 b
y 
ed
uc
at
io
na
l

in
st
itu
tio
ns
 fo
r c
la
ss
ro
om
 u
se
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

E
xp
or
t f
or
 p
er
so
na
l u
se
 

N
o 

N
o 

N
o 

N
o 

N
o 

R
ep
ro
du
ct
io
n 
of
 c
om
pu
te
r p
ro
gr
am
s

an
d 
da
ta
ba
se
s 
fo
r s
pe
ci
fi e
d 
pu
rp
os
es
 
C
om
pu
te
r p
ro
gr
am
s

an
d 
da
ta
ba
se
s 

C
om
pu
te
r p
ro
gr
am
s

an
d 
da
ta
ba
se
s 

C
om
pu
te
r p
ro
gr
am
s

an
d 
da
ta
ba
se
s 

C
om
pu
te
r p
ro
gr
am
s

an
d 
da
ta
ba
se
s 

C
om
pu
te
r p
ro
gr
am
s

an
d 
da
ta
ba
se
s;
 te
rm
s

no
t s
pe
ci
fie
d 

Pe
rs
on
al
 u
se
, s
ub
je
ct
 to
 p
ay
m
en
t

[R
om
e 
15
(1
)]
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 



      

      

    

   
   

     

        

     
     

 

     

     

    

    
     

     
      

      

 490 College & Research Libraries 

TA
B
L
E
 2

F
re
e-
us
e 
C
op
yr
ig
ht
 L
im
it
at
io
ns
 a
nd
 E
xc
ep
ti
on
s 
in
 th
e 
C
IS
 N
at
io
ns

R
us
si
a 

Ta
ji
ki
st
an
 

Tu
rk
m
en
is
ta
n 

U
kr
ai
ne
 

U
zb
ek
is
ta
n 

U
se
 in
 re
po
rt
in
g 
cu
rr
en
t e
ve
nt
s

[R
om
e 
15
(1
)]

E
ph
em
er
al
 fi
 xa
tio
n 
by
 b
ro
ad
ca
st
in
g 

or
ga
ni
za
tio
ns
 [R
om
e 
15
(1
)]
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Q
ue
st
io
na
bl
e

N
o 

Y
es
 

Y
es
 

U
se
 fo
r 
te
ac
hi
ng
 a
nd
 s
ci
en
tifi
 c 

re
se
ar
ch
 [R
om
e 
15
(1
)]
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Q
uo
ta
tio
n 
fo
r i
nf
or
m
at
io
na
l p
ur
po
se
s 
Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

U
se
 in
 a
cc
or
da
nc
e 
w
ith
 o
th
er
 li
m
ita
-

tio
ns
 a
nd
 e
xc
ep
tio
ns
 [R
om
e 
15
(2
)]
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

Y
es
 

November 2004 

the personal use of the members of the 
family circle; in most cases, the provi-
sion specifies that only one copy may be 
reproduced; 
• stipulation that such reproduction 

does not apply to architectural works in 
the form of buildings or other similar 
works; databases or substantial portions 
thereof; computer programs, except as 
allowed in a separate article dealing with 
reproduction of computer programs; 
reprographic reproduction of original 
books in full or of musical notation and, 
in some of the laws, of works of fine art; 
• stipulation, in some laws through a 

separate article, that for reproduction of 
an audiovisual work or sound recording, 
the author or copyright holder is entitled 
to remuneration; 
• stipulation, in some laws through 

a separate article, that remuneration for 
reproduction of an audiovisual work or 
sound recording is to be paid by the man-
ufacturers or importers of the equipment 
(audio and video recorders and other 
equipment) and of the recording mate-
rial (sound and video tapes, casse es for 
sound or video recording, optical discs, 
compact discs, and other media) used for 
such reproduction; this is known as the 
private copying levy.34 

All of the CIS laws contain these ele-
ments, with minor variations. The Russian 
provision (Article 18) is the most typical. 
Azerbaijan (Article 17), Belarus (Article 
18), Kazakhstan (Article 18), Kyrgyzstan 
(Article 18), and Moldova (Article 20) 
specify that only one copy may be repro-
duced. The laws of Azerbaijan, Georgia 
(Article 21), and Turkmenistan (Article 
1082) include works of fine art in the list 
of exceptions. Tajikistan (Article 19) and 
Uzbekistan (Article 27) incorporate the 
Berne language in their provisions, stating 
that reproduction is allowed without con-
sent of author (or other copyright holder) 
or remuneration, when there is no conflict 



      
    

      
     

      
    

      

       
     

     
     

     
     

     
       

    
      

     
     

     
     
     

     
      

   

      
     

     
   

     

    

     

 

      
      
      

    
       

       

      
        

       

     
     
     

       

     
   

      
     

     

     
     

with the normal exploitation of the work 
and when the lawful interests of the 
author are not compromised. Ukraine’s 
provision (Article 25) expands the defini-
tion of personal use in the family circle to 
“exclusively for personal purposes or for a 
regular family and for close acquaintances 
of the family.” The Armenian (Article 14) 
provision makes no mention of payment 
for use of audiovisual works or sound 
recordings. The Moldovan provision adds 
that it does not apply to unlawful repro-
duction of works publicly displayed in the 
interactive environment. It also permits 
the temporary reproduction of works to 
enable the process of electronic transmis-
sion or display, subject to the condition 
that the work is deleted automatically to 
prevent any other viewing or use for any 
other purpose. 

Some of the laws contain a separate 
article for personal use involving re-
production of audiovisual works and 
sound recordings. They are: Kazakhstan 
(Article 26), Kyrgyzstan (Article 26), 
Russia (Article 26), Tajikistan (Article 
39), Turkmenistan (Article 1083), and 
Ukraine (Article 42). All the laws except 
Armenia’s include the provision concern-
ing the private copyright levy on au-
diovisual works and sound recordings: 
Azerbaijan (Article 17), Belarus (Article 
18), Georgia (Article 21), Kazakhstan 
(Article 26), Kyrgyzstan (Article 26), 
Moldova (Article 20(3)), Russia (Article 
26), Tajikistan (Article 39), Turkmenistan 
(Article 1084), Ukraine (Article 42), and 
Uzbekistan (Article 27). 

Musical Performances of a Ceremonial 
Nature 
In 1933, the International Office of the 
Berne Union recognized as a common 
provision in many national laws the 
“unauthorized public performance of 
works in particular circumstances,” such 
as religious worship, concerts given by 

Fair Use and Beyond 491 

military bands, charitable performances, 
or concerts celebrating public festivals 
or holidays. This is considered a minor 
exception, not the subject of specific 
provisions in the Berne Convention, but 
referred to in reports of both the Brussels 
and Stockholm Conferences.35 

It is significant that all of the CIS laws 
contain a provision to this effect. Several 
ideas are embodied in the various ver-
sions of this provision across the CIS 
laws: that the musical work is lawfully 
disclosed; that the performance is during 
official, religious, or ritual ceremonies, 
and in most of the laws, funerals are 
specified; that the extent is justified by the 
nature of the ceremony; and that the use 
can be made without the consent of the 
author or other copyright holder and/or 
without remuneration. It is not specified 
that the performances must be organized 
by the state.36 

In many cases, this provision is includ-
ed in the provision for “free use of works” 
or “use of a work without the consent of 
the author and without remuneration,” 
or in a separate article on “free public 
performance” or “public performance of 
musical works during ceremonies.” The 
laws of Armenia (Article 13), Moldova 
(Article 22[d]), and Ukraine (Article 21[8]) 
require mention of the author ’s name 
and source of the work. The laws of 
Azerbaijan (Article 21), Georgia (Article 
25), Kazakhstan (Article 22), Kyrgyzstan 
(Article 22), Russia (Article 22), Tajikistan 
(Article 21[2]), Turkmenistan (Article 
1089), and Uzbekistan (Article 31) do not 
specify whether the author and the source 
should be mentioned. Belarus (Article 19) 
specifies that indication of author and 
source are not required. Neither Arme-
nia nor Belarus includes funerals in the 
list of types of performances, but this is 
probably not a relevant omission because 
funerals are generally considered to be 
ritual ceremonies. 

http:state.36
http:Conferences.35


 

   

     
    

      
          

       
         

      
      

        
     
      

     
      

    
      

     
      

       
     

      
     

    

       
    

     
   

     

    
      

      
      

       

    
     

   
    

      

    

 

       
      

      
     
     

      
    

    
      

 492 College & Research Libraries 

Use of Material for Court and 
Administrative Proceedings 
A relatively straightforward exception 
found in all of the CIS laws, with minor 
variations, allows for reproduction of a 
work without the author’s or other copy-
right holder’s consent and without pay-
ment of remuneration for the purposes 
of judicial or administrative proceedings, 
to the extent justified by the purpose of 
the use. Some laws require indication of 
name of the author or the source of the 
borrowing. 

In some cases, this constitutes a sepa-
rate article in the laws; in others, it is a 
provision in the article dealing with “free 
use of works” or “use of a work without 
consent of the author and without pay-
ment of remuneration.” Such a provision 
is found in the laws of Armenia (Article 
13), Azerbaijan (Article 22), Belarus (Ar-
ticle 19), Georgia (Article 26), Kazakhstan 
(Article 23), Kyrgyzstan (Article 23), Mol-
dova (Article 22[e]), Russia (Article 23), 
Tajikistan (Article 21[3]), Turkmenistan 
(Article 1090), Ukraine (Article 21[7]), and 
Uzbekistan (Article 32). Belarus, Moldova, 
and Ukraine require indication of the 
author’s name and the source of the bor-
rowing. Georgia, Russia, Tajikistan, and 
Turkmenistan apply this provision only to 
judicial proceedings; their provisions do 
not include administrative proceedings. 

Works in Public Places 
Another limitation common to all of the 
CIS laws is one that allows for repro-
duction, broadcasting, or public cable 
transmission, without the consent of the 
author or payment of remuneration, of 
architectural works, photographic works, 
or works of fine art permanently located 
in a publicly accessible location, except 
where the image of the work is the main 
object of the reproduction, broadcast, or 
transmission or when the image is being 
used for commercial purposes. 

November 2004 

The provisions are formulated uni-
formly across the laws, with the exception 
of Ukraine’s. In some laws, they constitute 
a separate article; in others, they ap-
pear within a larger provision. They are 
found in the laws of Armenia (Article 16), 
Azerbaijan (Article 20), Belarus (Article 
19), Georgia (Article 24), Kazakhstan 
(Article 21), Kyrgyzstan (Article 21), Mol-
dova (Article 22[f]), Russia (Article 21), 
Tajikistan (Article 21[1], Turkmenistan 
(Article 1088), and Uzbekistan (Article 
30). Ukraine does not have a provision 
of this type. 

Reproduction of Works for Illustrated 
Catalogs 
A lesser-known provision that appears 
only in the law of Ukraine allows repro-
duction in exhibition or sales catalogs of 
photographs of artistic works exhibited 
to the public.37 This provision is distinct 
from the limitation involving reproduc-
tion of works of art in public places. 
Article 21(5) of the Ukrainian law permits 
the reproduction in catalogs of the works 
displayed at exhibitions, auctions, fairs, 
and collections that are open for public 
access. 

Reproduction of Works in Braille 
All of the CIS laws contain a provision 
that allows for the reproduction in Braille 
or by other special means appropriate 
for the blind, without gainful intent, 
of a lawfully disclosed work, with the 
exception of works created specifically 
for such means of reproduction. The re-
production is authorized without consent 
of the author and without payment of 
remuneration but requires indication of 
the name of the author and the source of 
the borrowing. In most cases, the provi-
sion forms part of a larger article on “free 
use of works” or “use of a work without 
consent of the author and without pay-
ment of remuneration.” 

http:public.37


    

    
    

    

     

     

    
      

     

       

    
    

       

      
    

   

     

    

     
     

      

    

   
     

    

      

     

      

    
     

      

    
    

    

   
    

     
    

    
    

Such provisions are found in the laws 
of Armenia (Article 13), Azerbaijan (Ar-
ticle 19[6]), Belarus (Article 19), Georgia 
(Article 23[f]), Kazakhstan (Article 19[6]), 
Kyrgyzstan (Article 19[6]), Moldova (Ar-
ticle 22[c]), Russia (Article 19[6]), Tajiki-
stan (Article 20[6]), Turkmenistan (Article 
1087[f ]), Ukraine (Article 21[6]), and 
Uzbekistan (Article 28). The Ukrainian 
law contains a brief formulation for “is-
suance of works for the blind, published 
in Braille characters.” 

Reproduction by Libraries, Archives, and 
Educational Institutions 
This is the key provision underlying 
library and archival reproduction of ma-
terial for users, for internal preservation 
and replacement purposes, and for repro-
duction for library lending. It also is the 
provision behind educational copying for 
classroom use. In this respect, there might 
appear to be an overlap with provisions 
modeled on Berne Article 10(2) involving 
reproduction for purposes of illustration 
in teaching. The difference is that this pro-
vision allows for reproduction of copies 
for students, whereas Berne Article 10(2) 
governs use of a work as a classroom il-
lustration only. 

As it concerns educational institutions, 
the provision governs reproduction of 
works for the classroom, but not includ-
ing use in broadcasts or sound and visual 
recordings for illustrative use as allowed 
by Berne Article 10(2). Because it concerns 
reproduction by libraries and archives 
of material for users, it includes within 
its scope scientific research (not merely 
education/teaching) and even personal 
use in some laws. All of the CIS laws con-
tain this provision, and in all of the laws 
except those of Tajikistan and Ukraine, 
it constitutes a separate article; the Tajik 
law includes it in the article on “use of a 
work without consent of the author and 
without payment of remuneration but 

Fair Use and Beyond 493 

with indication of author and source.” 
The Ukrainian law divides the content 
of this provision into two articles, one on 
libraries and archives and the other on 
educational institutions. 

Several elements in this provision 
are common to all the laws, with some 
variation: 
• The reproduction is permitted 

without consent of author (or other 
copyright holder) and without payment 
of remuneration, but with mandatory 
indication of the name of the author (or 
other copyright holder), the work in some 
cases, and the source of the borrowing. 
• The reproduction must be without 

commercial motive (gainful intent). 
• The reproduction is limited to one 

copy. 
• The reproduction is from lawfully 

published or disclosed works. 
• Libraries and archives may repro-

duce works for the purpose of preserva-
tion or replacement of lost, damaged, 
or destroyed copies, or copies that have 
become unusable. 
• Libraries and archives may repro-

duce works to provide copies to other 
libraries that have for any reason lost the 
work from their collections. 
• Libraries and archives may re-

produce works to provide copies upon 
request to individuals for study, educa-
tional, or research purposes (in some laws 
also for personal use); individual articles 
and short works lawfully published 
in collections, newspapers, and other 
periodical publications; or brief extracts 
from lawfully published wri en works 
(some laws explicitly exclude computer 
programs). 
• Educational institutions may re-

produce, for classroom use, individual 
articles and short works lawfully pub-
lished in collections, newspapers, and 
other periodical publications or (brief) 
excerpts from lawfully published writ-



      

     
      

  

  
    
      

    

   

      

     
      

    

       

    
      

    
     

    

    

    

      
    

  

     

     

     
       

  

      
     

    

    
     
     

 494 College & Research Libraries 

ten works (some laws explicitly exclude 
computer programs). 
• The provision is qualified in some 

laws by a provision that reproduction is 
permi ed when there is no license for 
reproduction issued by the organization 
administering the property rights by col-
lective management or when there are 
no restrictions on the part of collective 
management organizations concerning 
the terms and conditions for such repro-
duction. 

It is clear that this provision was in-
tended originally for reprographic repro-
duction of wri en works. The provision in 
the Armenian law (Article 15) is entitled 
“Use of a work by means of reprographic 
reproduction.” 

Azerbaijan, Russia (Article 20), and 
Uzbekistan (Article 29) add that indica-
tion also must be made of the work used 
in the reproduction. Kazakhstan (Article 
20), Kyrgyzstan (Article 20), Russia, Ta-
jikistan (Article 20[7]), Turkmenistan 
(Article 1086), Ukraine, and Uzbekistan 
(Article 29) add that the work reproduced 
may be with or without illustrations. The 
Azerbaijan provision adds the phrase that 
the reproduction may only be “to the 
extent necessary.” Ukraine adds a phrase 
with respect to educational institutions 
that the extent of the reproduction must 
be justified by the purpose and adds a 
phrase with respect to both libraries and 
archives and educational institutions that 
the reproduction must be isolated and not 
systematic. Moldova indicates that the 
reproduction must be isolated and “to 
the extent justified by the intended pur-
pose.” Azerbaijan, Georgia, and Moldova 
include personal use as a justification for 
reproduction by libraries and archives 
for users. 

Azerbaijan, Georgia (Article 22), and 
Moldova explicitly exclude computer pro-
grams from this provision, and Ukraine 
(Article 22) explicitly excludes computer 

November 2004 

programs and databases. In any case, all 
of the laws (as discussed below) have 
special provisions for the reproduction 
of computer programs. Belarus (Article 
20) does not provide for reproduction by 
libraries and archives to provide copies 
to other libraries that have for any reason 
lost the work from their collections. The 
laws of Moldova, Ukraine, and Tajikistan 
add a phrase indicating that reproduc-
tion for other libraries and archives may 
be performed only if such reproduction 
is not possible by other means. Ukraine 
(Article 22) specifies that this provision 
applies only to libraries and archives, the 
activity of which is not aimed directly or 
indirectly at profit. Georgia has a similar 
qualification against either direct or in-
direct profit. 

Azerbaijan (Article 18), Moldova (Ar-
ticle 21), and Ukraine (Articles 22 and 23) 
include a clause to the effect that repro-
duction is permi ed only when there is 
no license for reproduction issued by the 
organization administering the property 
rights by collective management (or when 
there are no restrictions in the part of 
collective management organizations 
concerning the terms and conditions for 
such reproduction). 

Export of Works for Personal Use 
Two of the CIS laws, those of Kazakhstan 
(Article 27) and Moldova (Article 22(2)), 
contain a provision allowing for export 
of a work by an individual for personal 
use without consent of the author or 
other copyright holder or payment of 
remuneration. The Kazakh provision also 
includes a stipulation that such export of 
a work must not prejudice the national 
interests of the Republic of Kazakhstan. 
This provision is undoubtedly meant to 
address the restrictions set by nonvolun-
tary licenses against cross-border circula-
tion of copyrighted works produced in 
one country under a nonvoluntary license 



      
     

   

   
     

     

       
      
    

     

      
     

    

    

     

       

      
     

     
       

       
    

    
      

     
     

      
       

    
     

     

    
     

     
        

      
     

      
     

    
       

       
    

      
        

      
         

    
      

      
      

   
    

     
   

    
       

into a country that does not provide for 
such licenses, as a trade issue. Because 
nonvoluntary licenses are effective only in 
the country that establishes them, rights 
for products containing copyrighted 
works are protected through the system 
of nonvoluntary licenses. Kazakhstan 
and Moldova are unique in specifying 
the possibility for exporting works for 
personal use. 

Computer Programs and Databases 
All of the CIS laws except Uzbekistan’s in-
clude a provision stipulating the terms by 
which computer programs and databases 
may be reproduced, modified, studied, or 
tested and by which computer programs 
may be decompiled. In some of the laws, 
these are included in two separate articles. 
Several elements are included in these 
provisions, which are contained with 
some variation across the CIS laws: 
• The use is permissible without 

consent of the author or other copyright 
holder and without payment of remu-
neration. 
• The use is made from a lawfully ac-

quired computer program or database. 
• The reproduction or modification is 

to enable functionality or interoperability, 
including correction of mistakes; for archi-
val purposes; or for replacement of a com-
puter program or database that has become 
lost, damaged/destroyed, or unusable. 
• The purpose for study or testing of 

a computer program is to determine the 
ideas and principles that form the basis 
of any element of the program; in some 
laws, this is subject to the condition that 
inspecting, studying, or modifying the 
functionality of a program is done in 
order to enable an action such as loading, 
display, functionality, transfer, or saving 
the program. 
• The purpose for decompilation of a 

computer program is to enable interoper-
ability with another computer program. 

Fair Use and Beyond 495 

• Some laws specify that reproduc-
tion is restricted to one copy. 
• Some laws specify that reproduc-

tion or modification is to the extent 
justified by the use of the program or 
database. 
• Some laws add that modifications 

may be made only if not otherwise stipu-
lated in agreement with the author. 
• Further conditions apply for de-

compilation as stipulated in the indi-
vidual laws. 

This provision is contained in the 
laws of Armenia (Article 18), Azerbaijan 
(Article 24), Belarus (Article 21), Georgia 
(Articles 28 and 29), Kazakhstan (Article 
24), Kyrgyzstan (Article 25), Moldova 
(Article 23), Russia (Article 25), Tajikistan 
(Article 24), Turkmenistan (Articles 1092 
and 1093), and Ukraine (Article 24). 

Only Armenia, Moldova, and Ukraine 
include the terms on study or testing of 
a computer program. The provision of 
Belarus deals only with reproduction 
of computer programs for archival or 
replacement purposes or modification of 
computer programs for interoperability; 
it does not include databases and the 
aspects of study or testing, or of decom-
pilation. Moldova’s 2002 amendment 
eliminated databases from the scope of 
Article 23, as well as permission to copy 
and save to the computer ’s memory 
and to retain a copy of a program for 
archival purposes. Azerbaijan, Georgia 
(Article 28), and Moldova stipulate that 
modifications may be made only when 
not otherwise stipulated in an agreement 
with the author. 

Georgia (Article 29) and Turkmenistan 
(Article 1093) contain a separate article 
concerning decompilation of computer 
programs. The Georgian law includes an 
additional provision (Article 30) allowing 
for free use of a database without consent 
of the author or other copyright holder 
when it is necessary for investigation of 



       

       
     

       

    

      
     

   

      

      

      

          
    

     

    

     

    
     
      

    

       
     

       

     
    

    

    

      
     

    

     
       

     

     

     

 496 College & Research Libraries 

the database and its normal use. Free use 
is restricted to those parts of a database 
that the user has lawful rights to use. Uz-
bekistan (Article 34) has not developed a 
full provision of this type. Article 34 states 
simply that the right of an individual in 
lawful possession of a copy of a computer 
program or database to reproduce or 
modify the program or database for per-
sonal use is determined by law. 

CIS Exceptions to Copyright Included 
in the Rome Convention 
It is worthwhile to add here that the 
International Convention for the Protec-
tion of Performers, Producers of Phono-
grams, and Broadcasting Organizations, 
known as the Rome Convention, which 
dates from 1961 and governs neighbor-
ing rights, also includes limitations 
and exceptions that serve as models for 
national laws and should be considered 
within the context of this discussion of 
free-use limitations and exceptions. As of 
January 2004, six CIS nations were mem-
bers of the Rome Convention: Armenia, 
Belarus, Kyrgyzstan, Moldova, Russia, 
and Ukraine. 

Article 15(1) contains four exceptions 
to the protection provided by the conven-
tion, in some respects echoing provisions 
in Berne: 
• private use; 
• use of short excerpts in connection 

with the reporting of current events; 
• ephemeral fixation by a broadcast-

ing organization by means of its own 
facilities and for its own broadcasts; and 
• use solely for the purposes of teach-

ing or scientific research. 
These provisions are not qualified in 

any more detail and have been interpret-
ed in more than one way. It is clear that the 
exception relating to current-events re-
porting resembles Article 10bis(1) of Berne 
and the exception regarding ephemeral 
recordings resembles Article 11bis(3) of 

November 2004 

Berne, but the private-use exception does 
not derive from a Berne provision. It has 
been suggested that the fourth exception 
goes far beyond the scope of Article 10(2) 
of Berne, which, as mentioned, does not 
include the idea of scientific research.38 

In addition, Article 15(2) of the Rome 
Convention allows member states to 
adopt in national legislation the same 
kinds of limitations with respect to neigh-
boring rights as it provides for copyright 
in literary and artistic works. However, 
compulsory licenses “may be provided 
for only to the extent to which they are 
compatible with this Convention.” 

It is interesting that most of the CIS 
nations, regardless of whether they are 
parties to the Rome Convention, contain 
the exceptions outlined in Articles 15(1) 
and 15(2) of the Rome Convention, with 
some variation. In addition, they all add 
a clause allowing for use in quotation that 
is not explicit in the Rome Convention. 
There are several elements to the provi-
sions across the laws: 
• personal use of works, subject to 

payment of remuneration (some laws 
specify payment for phonograms, and 
others specify payment for other works 
covered under neighboring rights as 
well); 
• use of excerpts (in some laws re-

stricted to short excerpts) for reporting 
of current events, without consent of the 
right-holder and without payment of 
remuneration; 
• ephemeral recordings by a broad-

casting organization using its own equip-
ment and for the purposes of its own 
broadcasts (this is generally a separate 
provision and is discussed above); 
• use of a work for the exclusive pur-

poses of teaching or scientific research, 
without consent of the right-holder and 
without payment of remuneration; 
• quotation of excerpts (in some laws 

restricted to short excerpts) for informa-

http:research.38


    

     
     

      

    

     

     

    

      

     

    

   
     

   

    
      

      

     

     

   
      

      

     

      
     

     
   
        

     

    
       

    

     

       

      
     

    
     

       
     

     
      

     
     

tional purposes, without consent of the 
right-holder and without payment of 
remuneration; 
• use of literary, scientific, or artistic 

works in accordance with other limita-
tions and exceptions in the respective 
laws, without consent of the right-holder 
and without payment of remuneration; 
• further stipulation that the limita-

tions to neighboring rights provided for in 
the provision do not prejudice either the 
normal exploitation of the phonogram, 
performance, or program, or the normal 
exploitation of the literary, scientific, or 
artistic work incorporated into it, and 
not prejudice the lawful interests of the 
right-holder or the author. 

Such provisions generally are found in 
articles dealing with “limitations to the 
rights of performers, producers of sound 
recordings, and broadcasting or cable 
distribution organizations,” or “free use 
of the objects of neighboring rights.” They 
are in the laws of Armenia (Article 36), 
Azerbaijan (Articles 36 and 38), Belarus 
(Articles 36 and 37), Georgia (Articles 
51 and 53), Kazakhstan (Article 41), Kyr-
gyzstan (Article 42), Moldova (Articles 
30 and 32), Russia (Article 42), Tajikistan 
(Article 41), Turkmenistan (Articles 1120 
and 1122), Ukraine (Article 42), and Uz-
bekistan (Article 60). 

Azerbaijan, Georgia, Moldova, and 
Turkmenistan qualify the use for teaching 
as being that of illustration in teaching. 
Kazakhstan, Kyrgyzstan, Russia, Tajiki-
stan, and Uzbekistan use the term “short 
excerpts” instead of “excerpts” with re-
spect to use for quotation and reporting 
of current events. Georgia uses the term 
“short excerpts” instead of “excerpts” 
with respect to use for illustration in 
teaching and in scientific research and the 
reporting of current events. Azerbaijan, 
Moldova, and Turkmenistan use the term 
“short excerpts” with respect to use for 
quotation, illustration in teaching, and the 

Fair Use and Beyond 497 

reporting of current events. Azerbaijan, 
Georgia, Moldova, and Turkmenistan 
include a list of justified purposes for 
the use of quotation derived from Berne 
Article 10(1): scientific, research, polemi-
cal, critical, and informational use to the 
extent justified by the purpose of the 
quotation. 

The Armenian provision is called a 
“limitation of the rights of a performer, 
producer of the first fixation of perfor-
mances or audiovisual recordings, and of 
a broadcasting organization.” It is shorter 
and constructed differently, stipulating 
that Articles 13, 14, and 17 of the law 
(governing free use of works, personal 
use of works, and free use of ephemeral 
recordings by a broadcasting organiza-
tion) may be applied to the objects of 
neighboring rights without consent of 
the right-holder and without payment of 
remuneration, subject to the conditions of 
the three-step test. 

Ukraine constructs this provision in a 
similar manner, stipulating that Articles 
21 through 25 of the law (the provisions 
for free use of literary, scientific, and ar-
tistic works) may be applied to the objects 
of neighboring rights without consent of 
the right-holder and without payment of 
remuneration. Several conditions apply: 
that the reproduction is solely for the 
purpose of teaching or scientific research; 
that the use does not extend to materials 
exported from Ukraine; that right-holders 
retain the right to equitable remunera-
tion for multiple copies of a work; and 
that the moral rights of right-holders 
are respected. Personal use is allowed 
without consent but is subject to payment 
of remuneration to the right-holder. The 
provision stipulates the conditions of the 
three-step test. 

Summary and Conclusions 
It seems appropriate to highlight the 
practical effects of the limitations and 



     

      

     
       

      
       

      
 

     
     

    
       

      
      

 
    

    

    
     

    
      

     

        
    

    

    

     
       

      

      
      

      
       

       
     

       
    

      
     

        
        

    
     

       
     

     
      

    
        

     
     

      
     

        
       

     
      

        
       

    
      

    
    

    
    

    
    
     

      
       

      
      

 498 College & Research Libraries 

exceptions discussed in this analysis in 
order to understand how U.S. librarians 
can use the above information in every-
day situations. This article has focused on 
provisions in CIS laws governing the use 
of copyrighted material within the territo-
ries of CIS nations. CIS nations apply their 
national laws to U.S. works being utilized 
on their territory in the same manner that 
they apply their laws to domestic works. 
The free-use provisions thus apply as they 
do to those nations’ domestic works. Al-
though some differences exist among CIS 
laws, the following general summary may 
serve to aid in synthesizing the informa-
tion presented above. 

Six limitations and exceptions dis-
cussed above exist for the purpose of free-
dom of information, including free use of 
official texts; they were largely created for 
the benefit of the press and broadcasting 
media and, more broadly, to benefit the 
public. A closely related exception con-
cerning preservation of ephemeral broad-
cast recordings more narrowly benefits 
the press and broadcasting media. These 
limitations and exceptions all originate 
in the Berne Convention as mandatory or 
optional provisions for implementation in 
national laws. They all have been adopted 
in some form in the CIS. 
• None of the CIS nations extends 

protection to official texts of a legislative, 
administrative, or legal nature. Nonethe-
less, it is important to note that not all 
government-produced works are of a 
legislative, administrative, or legal nature 
and that many different types of official 
publications are still protected in the CIS 
nations, such as government manuals, 
textbooks, reference works, and so on. 
• None of the CIS nations extends 

protection to “news of the day.” This limi-
tation, created for the benefit of the press, 
allows for freedom in news reporting so 
that information can circulate in the news 
media. Nonetheless, it is important to note 

November 2004 

that original journalistic articles, insofar 
as they are original works, even when 
based on the same facts, are protected and 
do not fall under this limitation. 
• Like news of the day, political 

speeches and speeches delivered during 
legal proceedings are treated in the Berne 
Convention as meriting exceptional treat-
ment justified by freedom of information. 
CIS nations approach this limitation dif-
ferently, but in all nations it applies solely 
to reproduction for the benefit of the press 
and broadcasting media. Azerbaijan, Geor-
gia, and Turkmenistan allow free repro-
duction by the press of publicly delivered 
political speeches and speeches delivered 
during court proceedings. Other nations 
apply this limitation only to publicly 
delivered political speeches, addresses, 
and so on., but not to speeches delivered 
during legal proceedings. Still other na-
tions (Belarus, Moldova, Tajikistan, and 
Ukraine) allow for reproduction by the 
press of publicly delivered speeches, ad-
dresses, and so on that are not necessarily 
political in content, while not allowing for 
the same concerning speeches delivered 
during legal proceedings. It is sufficient 
to note that this category of works is of-
fered special treatment; details need to be 
reviewed in the laws themselves. 
• All the CIS nations grant an ex-

ception allowing for reproduction and 
broadcasting of newspaper and periodical 
articles on current events. Notwithstand-
ing minor differences in the definition of 
“current events,” the exception, again, 
facilitates circulation of news information 
for the benefit of the press and the larger 
benefit of the public. 
• Three nations—Belarus, Tajikistan, 

and Ukraine—grant an exception permit-
ting reproduction and broadcasting by 
the press of publicly delivered speeches, 
addresses, and so forth on any subject. 
Moldova restricts this category to public 
speeches, addresses, and so forth on cur-



       
       

        
        

       
         

     

      

     
    

     

    

        
     

     
       

     
        

    
     

      
    

      
     

       
      

    

      
    

     

      
   

    

       

      
       

      

     
     

   
       

     

     

     
     

      

      
    

      
      

      

    

     

    
      

rent topics. Therefore, a public lecture on 
the current status of women in the work-
place, for example, could be used in the 
media to the extent justified by the purpose 
in Belarus, Tajikistan, or Ukraine, but it 
could not be used in the other CIS nations 
if not deemed “political” in content. 
• For the purpose of reporting cur-

rent events, all the CIS nations except 
Moldova allow for incidental reproduc-
tion of literary or artistic works seen or 
heard incidentally in the reporting of 
current events. For example, background 
music heard during a news interview 
or a copyrighted painting visible in the 
background of a televised public speech 
may be broadcast without infringing 
copyright. 
• All of the CIS nations except Ukraine 

allow broadcasting organizations to make 
short-term, or ephemeral, recordings of 
broadcast works, and all of those except 
Moldova permit retention of such record-
ings in official archives when they are of 
an exceptional documentary character. 

Two of the exceptions discussed in 
this study cast a wider benefit in making 
information available in accordance with 
fair practice and for use in teaching. Both 
are important to the missions of academic 
and research libraries and educational 
institutions. 
• All of the CIS nations allow for 

quotation of works that are published 
or lawfully made available to the public 
within the limits of fair practice, for speci-
fied purposes (for the most part scientific, 
research, polemical, critical, and informa-
tional), providing that the source and the 
name of the author are identified. This 
provision makes possible the advance-
ment of education and culture through 
scholarly writing, publishing, and criti-
cism. The most important distinction in 
this provision concerns the requirement 
that the work already be published or 
made publicly available: unpublished 

Fair Use and Beyond 499 

works do not fall under this exception. It 
is not permissible under this provision to 
quote from an unpublished diary or any 
unpublished archival document that is 
still copyrighted. 
• All of the CIS nations except Mol-

dova allow for use of works that are 
published or lawfully made available to 
the public for the purpose of illustration 
in teaching, providing that the source and 
the name of the author are indicated. This 
provision concerns display or reproduc-
tion of published works in a teaching 
situation. Like the previous exception, it 
does not cover unpublished material. It 
does not cover reproduction of works for 
personal use, study, or research outside 
the classroom, such as for home assign-
ments. It bears an ambiguous relationship 
to a further exception involving reproduc-
tion for classroom use, discussed below. 

The remaining free-use exceptions 
found in CIS laws do not originate in 
the Berne Convention but, rather, are 
adopted in CIS national laws as a com-
mon practice. They can be categorized 
as exceptions that benefit individuals or 
society without harming the moral or 
economic rights of the author. Exceptions 
for the benefit of libraries and educational 
institutions are included here. 
• All of the CIS nations allow for 

reproduction of published or lawfully 
disclosed work for personal use or for 
use of members of the family; usually 
this means one copy. It does not include 
certain types of material such as com-
puter programs and databases, but some 
nations have separate provisions for 
personal use of computer programs and 
databases. This exception does not cover 
personal use of unpublished or undis-
closed material. Furthermore, the use of 
audiovisual works and sound recordings 
for personal use in all countries except 
Armenia requires remuneration to hold-
ers of copyright and neighboring rights. 



       
     

      
       

     
       

      
       

    

       

        

    
    

      

       

    

      
     

       
     

      
     
      

    

      

    
     

       

      
        

       
       

    
    

     
      

    
     

     
     

      

      
   

    

    
     

        
        

      
     

     
       

        
      

 
      

     
     

       
  

 500 College & Research Libraries 

• All the CIS nations contain an ex-
ception allowing performance of a law-
fully disclosed musical work for official, 
religious, or ritual ceremonies such as state 
events and funerals. Unpublished musical 
works are not covered by this exception. 
• All the CIS laws allow for reproduc-

tion of a work for judicial proceedings; all 
except Georgia, Russia, Tajikistan, and 
Turkmenistan also allow for such use for 
administrative proceedings. 
• All the CIS laws except Ukraine’s 

allow for the reproduction or broadcast-
ing of architectural works, photographic 
works, and works of fine art that are per-
manently located in a public location, as 
an incidental use due to the immobility of 
these structures. This provision does not 
cover situations when the main purpose 
of the use is to reproduce or broadcast the 
image of such works or when the image 
is being used commercially. 
• Ukraine has a unique exception 

allowing reproduction in exhibition or 
sales catalogs of photographs or artistic 
works open to the public. 
• All the CIS laws contain an excep-

tion for reproduction of published or law-
fully disclosed works for the blind, such 
as in Braille, providing the author and the 
source are indicated. This exception does 
not cover unpublished or undisclosed 
works. 
• All the CIS laws contain an excep-

tion for libraries and archives permi ing 
reproduction of one copy of a lawfully 
published or disclosed work for purposes 
of preservation or replacement, in most 
cases for other libraries as well; or to 
provide copies of individual articles, short 
works, or brief excerpts of a published 
work to individuals upon request for 
study, educational, or research use, and, in 
some cases, personal use. This exception 
also permits educational institutions to 
reproduce, for classroom use, individual 
articles, short works, and brief excerpts of 

November 2004 

lawfully published works. This exception 
does not cover unpublished or undis-
closed material; it involves only the right 
of reproduction. None of the CIS laws yet 
clearly deals with use of digital material 
in this context, but the absence of any ex-
ception for the right of public display or 
distribution indicates that they deal with 
digital preservation and lending in a way 
similar to the United States, allowing for 
digital reproduction, but not public dis-
play or distribution of the digital works. 
• Kazakhstan and Moldova allow for 

export of a work by an individual to anoth-
er country for personal use. This somewhat 
unusual provision is a way of protecting 
individuals from restrictions involving 
cross-border circulation of copyrighted 
works—sound recordings and films, for 
example—if they are traveling with lawful 
personal copies of such works. 
• All the CIS laws except Uzbekistan’s 

allow for some form of reproduction, 
modification, study, or testing of com-
puter programs and databases and for de-
compilation of computer programs. This 
exception exists mainly for the purpose of 
enabling functionality or interoperability, 
archiving, or replacement. Only Armenia, 
Moldova, and Ukraine allow for study or 
testing of computer programs. Belarus 
and Moldova do not include databases 
within the scope of this provision. 

Most of the CIS nations include in their 
national laws the four exceptions set out in 
the Rome Convention governing the rights 
of performers, producers of phonograms, 
and broadcast organizations, whether or 
not they are adherents to this convention. 
They also allow for use in quotation, an 
exception not stated in the Rome Conven-
tion. From a practical standpoint, these 
exceptions are relevant to librarians only 
when they are handling audiovisual 
works, sound recordings, broadcasts, and 
other nonprint formats that are the objects 
of neighboring rights. 



        
      

      
    

    
       

      
         

        
     

       
      
    

    

     

    
      

      

    

    
     

     

      

    

      
     

    
      

        
       

       
       

     
       

      
       

        
       

      
    

       
    

     
      

      
         

     
        

     
     

    
       

        
       

       
      

       
         
      

        
         

       
       

      
        

     
      

• Nearly all of the CIS nations grant 
clear exceptions for personal or private 
use, subject to remuneration; use in cur-
rent-events reporting; ephemeral fixation 
of broadcasts by broadcasting organiza-
tions; use in teaching or scientific research; 
and quotation of excerpts. Thus, for exam-
ple, in most of these nations it is possible 
to play excerpts of a sound recording in 
reporting current events without payment 
of remuneration, but personal use of the 
sound recording requires payment to the 
author of the sound recording. 
• All the CIS nations except Georgia 

include an open-ended clause allowing 
for further use of objects of neighboring 
rights in accordance with other limitations 
and exceptions specified in the copyright 
laws. 

Several conclusions may be drawn 
from this analysis of the current copy-
right laws of the CIS nations. It is clear 
that these twelve nations fully recognize 
the social importance of limitations and 
exceptions to copyright for the library and 
educational communities, as well as for 
organizations and individuals engaged in 
free and culturally productive exchange 
of information and ideas. From the range 
of possible limitations and exceptions in 
the Berne Convention and from among 
those commonly present in copyright 
laws worldwide, the CIS nations have 
adopted generous exceptions to the rights 
of authors and copyright holders. Even 
though copyright laws in the CIS nations, 
as in most nations, are subject to frequent 
amendment, this snapshot illustrates the 
statutory basis for copyright limitations 
and exceptions in those nations today. 

The numerous exceptions to the rights 
of authors and copyright holders closely 
follow the language and structure of the 
Berne Convention, and the laws include 
many additional exceptions, reflecting a 
common approach to broad limitations 
to copyright. In this respect, it can be said 

Fair Use and Beyond 501 

that the laws are closely modeled a er 
Berne, and where the Berne provisions 
leave off, the CIS laws closely follow one 
another. Questions of application and 
enforcement of the statutes are, of course, 
a different ma er and for a separate dis-
cussion, as are questions of infringement 
of intellectual property law. 

U.S. librarians need to be aware of how 
U.S. materials may used abroad out of 
concern for authors whose works are used 
by foreign library users and who may 
approach them with questions about in-
ternational copyright with this in mind. In 
working with foreign colleagues, or with 
anyone who uses U.S. material in foreign 
countries, it is useful to know the limits 
of library, educational, and other uses of 
foreign material in those countries. This 
becomes particularly important as librar-
ies create more original digital content and 
educational institutions adopt scholarly 
publishing models based on electronic 
delivery, which facilitates easy use abroad. 
Furthermore, and not of least importance, 
there is a need to have a basic comparative 
understanding of free- and fair-use provi-
sions in order to be conversant about the 
continued role of copyright limitations 
and exceptions in the digital age. 

The dimensions of recent develop-
ments in copyright are vast. The digital 
age, which started off as one of increased 
access to information, in some respects has 
become one of increasing restriction, as the 
laws that brought copyright principles into 
the information age are now being used 
to limit the use of works. It is important 
to remember that technology has always 
been a force for change in copyright law, 
but also to be mindful, in the continuum of 
change, not to lose sight of the responsibil-
ity that lawmakers and librarians share as 
curators of the intellectual and creative en-
deavors of nations to ensure that the free 
exchange of knowledge and information 
remains a feature of modern civilization. 



        
       
       

      
      

    

 
 
 

            

 
              

 

 

 
                

 

 

              

             

 

 

 

 

 
 

               

 

 

 

 502 College & Research Libraries November 2004 

It is heartening to see that the copyright societies that acknowledge the value and 
laws of the CIS nations reflect a commit- power of knowledge, learning, and the 
ment to the humanistic ideals inherent in free exchange of information. 

Notes 

1. Folsom v Marsh, 9 F. Cas. 342, 348 (C.C.D. Mass. 1841). 
2. Lawrence v Dana, 15 F. Cas. 26 (C.C.D. Mass. 1869). 
3. The “Gentleman’s Agreement” is reprinted in Leon E. Seltzer, Exemptions and Fair Use in 

Copyright, appendix E (Cambridge, Mass.: Harvard Univ. Pr., 1978), 192–93. 
4. See, for example, Gerald Dworkin, “Exceptions to Copyright Exclusivity: Is Fair Use 

Consistent with Article 9.2 Berne and the New International Order,” chapter 66 in International 
Intellectual Property Law & Policy, ed. Hugh C. Hansen (Yonkers, N.Y.: Juris Pub.; London, Sweet 
& Maxwell, 2000), 66–6. 

5. The current copyright laws of the CIS nations are as follows: 
• Law of the Republic of Armenia on Copyright and Neighboring Rights No. HO-28, adopted 

on Dec. 8, 1999 (dated Jan. 12, 2000); with Amendment No. HO-269, adopted on Dec. 4, 2001 
(dated Dec. 24, 2001); Amendment No. 416-N, adopted on Sept. 25, 2002 (dated Oct. 21, 2002); 
and Amendment No. HO-449-N, adopted on Nov. 20, 2002 (dated Nov. 28, 2002). 
• Law of the Republic of Azerbaijan on Copyright and Neighboring Rights No. 115-1G, 

dated June 5, 1996. 
• Law of the Republic of Belarus on Copyright and Neighboring Rights, No. 194-3, dated 

Aug. 11, 1998. 
• Law of Georgia on Author’s and Neighboring Rights No. 2112-IIc, dated June 22, 1999; as 

amended by the Law of Georgia on Introduction of Additions to the Law of Georgia on Copyright 
and Neighboring Rights No. 2388-Ic, dated Sept. 9, 1999; and the Law of Georgia on Introduction 
of Amendments to the Law of Georgia on Copyright and Neighboring Rights No. 651-Ic, dated 
Dec. 5, 2000. 
• Law of the Republic of Kazakhstan on Copyright and Neighboring Rights No. 6-1, dated 

June 10, 1996. 
• Law of the Republic of Kyrgyzstan on Copyright and Neighboring Rights, dated Jan. 14, 

1998; as amended by the Law of the Republic of Kyrgyzstan on Introduction of Amendments 
and Additions to the Law of the Republic of Kyrgyzstan on Copyright and Neighboring Rights 
No. 120, dated Nov. 6, 1999. 
• Law of the Republic of Moldova on Copyright and Neighboring Rights No. 293-XIII, dated 

Nov. 23, 1994; as amended by the Law on Amendments and Additions to the Law on Copyright 
and Neighboring Rights No. 29-XIV, dated May 28, 1998; the Law on Introduction of Additions 
to the Law on Copyright and Neighboring Rights No. 1207-XIV, dated July 28, 2000; and the Law 
on Introduction of Amendments and Additions to the Law on Copyright and Neighboring Rights 
No. 293-XIII of Nov. 23, 1994, No. 1268-XV, dated July 25, 2002. 
• Law of the Russian Federation on Copyright and Neighboring Rights No. 5351-1, dated 

July 9, 1993, as amended by Federal Law No. 110-FZ, on the Introduction of Amendments and 
Additions to the Code of Criminal Procedure of the RSFSR, the Code of the RSFSR on Adminis-
trative Offenses and the Law of the Russian Federation on Copyright and Neighboring Rights, 
dated July 19, 1995. 
• Law of the Republic of Tajikistan on Copyright and Neighboring Rights No. 726, dated 

Nov. 13, 1998. 
• Turkmenistan Civil Code of Saparmurat Turkmenbashi, Part 4, Sections 1–5, adopted July 

17, 1998. The text used as the basis for this analysis was Turkmenistan Civil Code of Saparmurat 
Turkmenbashi, edited and translated by William E. Butler (The Hague: Kluwer Law International; 
London: Simmonds & Hill, 1999). 
• Law of Ukraine on Copyright and Neighboring Rights No. 3792-12, dated Dec. 23, 1993; 

as amended by the Law of Ukraine No. 75/95-VR of Feb. 28, 1995; Law No. 998-XIV of July 16, 
1999; Law No. 2627-III of July 11, 2001; and Law of Ukraine on Introduction of Amendments to 
the Law of Ukraine on Copyright and Neighboring Rights No. 2627-III, dated July 11, 2001, which 
constitutes a major revision, with new wording, and replaces the previous law. 
• Law of the Republic of Uzbekistan on Copyright and Neighboring Rights No. 272-I, dated 

Aug. 30, 1996; as amended by Law No. 175-II, dated Dec. 15, 2000. 
6. For an understanding of the main issues surrounding copyright for Slavic, East European, 

and Eurasian materials in the United States and a method for approaching questions related to 
copyright, see Janice T. Pilch, “Understanding Copyright Law for Slavic, East European, and 
Eurasian Materials,” Slavic and East European Information Resources 4, no. 1 (2003): 75–101; ———, 



  

 

 
 

 
 

 

 

  
             

  

 
 

  

             
 

 
  

 
 

 

 
 

 

 

 

 
 
 
 

 

Fair Use and Beyond 503 

“International Copyright for Digital Collections of Russian Material: U.S. and U.K Law and Prac-
tice,” Solanus: International Journal for Russian & East European Bibliographic, Library & Publishing 
Studies 17 (2003): 24–49. A three-part series of articles by this author on the laws of the CIS nations 
is forthcoming in the journal Slavic and East European Information Resources, beginning with “Cur-
rent Copyright Legislation of the CIS Nations and Its Relevance for U.S. Library Collections: The 
Laws of Russia, Ukraine, Belarus, and Moldova,” Slavic and East European Information Resources 
5, no. 1–2 (2004): 81–122. 

7. World Intellectual Property Organization, WIPO Glossary of Terms of the Law of Copyright 
and Neighboring Rights (Geneva: World Intellectual Property Organization, 1980), 125. 

8. The WIPO Guide to the Berne Convention for the Protection of Literary and Artistic Works (Paris 
Act, 1971) explains that the concept of fair practice was introduced at the Stockholm Revision of 
Berne in 1967. “It implies an objective appreciation of what is normally considered admissible. 
The fairness or otherwise of what is done is ultimately a ma er for the courts, who will no doubt 
consider such questions as the size of the extract in proportion both to the work from which it 
was taken and that in which it is used, and, particularly the extent to which, if any, the new work, 
by competing with the old, cuts in upon its sales, circulation, etc.” World Intellectual Property 
Organization, Guide to the Berne Convention for the Protection of Literary and Artistic Works (Paris 
Act, 1971)(Geneva: World Intellectual Property Organization, 1978), 58–59. 

9. House Commi ee Report on the 1976 Copyright Bill (House Commi ee on the Judiciary, 
House Report No. 94-1476, to accompany S. 22, 94th Cong., 2d Sess., Sept. 3, 1976), 66. 

10. Tyler G. Newby, “What’s Fair Here Is Not Fair Everywhere: Does the American Fair Use 
Doctrine Violate International Copyright Law?” Stanford Law Review 51 (July 1999): 1637. 

11. William C. Walker Jr., “Fair Use: The Adjustable Tool for Maintaining Copyright Equilib-
rium,” Louisiana Law Review 43, no. 3 (Jan. 1983): 735–57. 

12. Lloyd L. Weinreb, “Fair Use,” Fordham Law Review 67, no. 4 (Mar. 1999): 1298–99 (footnote 
omi ed). The fourteen categorical exemptions to which reference is made have increased to fi een 
since the publication of Professor Weinreb’s article. 

13. Eric Allen Engle, “When Is Fair Use Fair? A Comparison of E.U. and U.S. Intellectual 
Property Law,” Transnational Lawyer 15 (spring 2002): 225. 

14. WIPO Glossary of Terms, 147. 
15. Stephen M. Stewart, International Copyright and Neighboring Rights, 2d ed. (London: But-

terworths, 1989), 79–81. 
16. Paul Goldstein, International Copyright: Principles, Law and Practice (Oxford: Oxford Univ. 

Pr., 2001), 292–315. 
17. J. A. L. Sterling, World Copyright Law: Protection of Authors’ Works, Performances, Phonograms, 

Films, Video, Broadcasts and Published Editions in National, International and Regional Law (London: 
Sweet & Maxwell, 1998), 351–54. 

18. Ibid., 358. 
19. World Intellectual Property Organization, Standing Commi ee on Copyright and Related 

Rights, Ninth Session, WIPO Study on Limitations and Exceptions of Copyright and Related Rights in 
the Digital Environment, prepared by Sam Ricketson, SCCR/9/7 (Geneva: 2003), 3–4. 

20. WIPO, Guide to the Berne Convention for the Protection of Literary and Artistic Works, 20. 
21. Ibid., 23. WIPO defines news of the day as: “[m]ere information on recent events or facts 

by the press, broadcasting or other appropriate means. It is not a work eligible for copyright 
protection.” WIPO Glossary of Terms of the Law of Copyright and Neighboring Rights, 169. 

22. Ricketson, WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the 
Digital Environment, 10–11. 

23. WIPO, Guide to the Berne Convention for the Protection of Literary and Artistic Works, 24. 
24. Ricketson, WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the 

Digital Environment, 13. 
25. An author’s page is defined as a unit of measure of the volume of a work upon its publica-

tion. It generally consists of 40,000 printed signs (le ers, punctuation marks, numerals, etc., and 
also spaces between words). An author’s page amounts roughly to 700 lines of a wri en work 
or 3,000 cubic centimeters of a graphic work. See Dreptul de Autor şi Drepturile Conexe: Culegere 
(Chişinău, 1997), 110, 254. 

26. Ricketson, WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the 
Digital Environment, 13–14. 

27. WIPO, Guide to the Berne Convention for the Protection of Literary and Artistic Works, 59. 
28. Ibid., 59. 
29. Ibid., 60. 
30. Ricketson, WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the 

Digital Environment, 15. 
31. WIPO, Guide to the Berne Convention for the Protection of Literary and Artistic Works, 60. 



 
  

 

 

 

 

 
 

 504 College & Research Libraries November 2004 

32. Ibid., 73. 
33. There is a terminological distinction between personal use and private use. Personal use 

is generally understood to be the making of a single reproduction or a transformation of the 
work, such as a translation, adaptation, or arrangement, for the exclusive use of the individual 
making the copy. Private use has a broader scope, involving the making of a reproduction or a 
transformation of a work, in a single copy or several copies, that may serve not only the exclusive 
use of the individual making the copy but also be shared by a specific group of persons, such 
as family members and close friends, and used by a legal entity; such copies must not be made 
available to the public. Both personal and private uses generally fall under the category of free 
uses. See WIPO Glossary of Terms of the Law of Copyright and Neighboring Rights, 185, 198. See also 
Delia Lipszyc, Copyright and Neighboring Rights (Paris, Unesco, 1999), 226–27. 

34. The private copying levy is common in national copyright laws as a way of protecting the 
economic interests of copyright holders (authors, publishers, producers of sound recordings and 
audiovisual works, performing artists, etc.). The levy is not directly linked to specific copyright 
holders or to those making private copies but, rather, is incorporated into a system involving a 
general fund for copyright holders. The responsibility for payment lies not with the individuals 
making private copies but, instead, with the manufacturers and importers of equipment and 
materials used for the purpose of reproduction. Professor Lipszyc elucidates: “This payment, 
then, is not for the actual use but for the possibility that such equipment offers of making copies.” 
Lipszyc, Copyright and Neighboring Rights, 245–48. 

35. Ricketson, WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the 
Digital Environment, 34–7. 

36. Professor Lipszyc writes that this exception is recognized in some laws with respect to 
free use of musical works by musical bodies belonging to the state. See Lipszyc, Copyright and 
Neighboring Rights, 241. 

The CIS laws, on the other hand, do not include any specification that the music must be 
performed by state-affiliated bodies. 

37. Reference to this limitation is made in Lipszyc, Copyright and Neighboring Rights, 241. 
38. Ricketson, WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the 

Digital Environment, 45.