Copyright Limitations and Contracts: An Analysis of the Contractual Overidability of Limitations on Copyright
Kluwer Law, 2002
ISBN 9041198679, £69
Dr Charles Oppenheim
This 375 page hardback book has the look and feel of a doctoral dissertation, though it is not clear whether it is one or not. It considers the thorny issue of whether a contract for the provision of (especially electronic) information can over-ride any exceptions to copyright embodied in the law of a country. It comprises five chapters: a short introduction, then lengthy chapters on copyright limitations, freedom of contract and on the intersection of the two. It concludes with a brief conclusion chapter. It is supported by an extensive bibliography, but a poor index.
2. Philosophical and Analytical Approach
The approach taken is largely philosophical and analytical, rather than practical. It is clear this is a book aimed more at academics, researchers and students than managers who have to wrestle with contractual clauses. Practising lawyers will, I fear, also find the extensive theoretical discussions somewhat unhelpful. Thus, for example, the book provides no evidence of the use of the interoperability exception to software copyright by other developers, so it is difficult to judge how important an exception it is. Similarly, the author provides no advice on how to negotiate appropriate wording in contracts. In particular, there is currently controversy between a large number of libraries in the UK and the Newspaper Licensing Agency regarding the NLA's refusal to allow a clause in its contract to the effect that nothing in the NLA contract prevents a bona fide user from enjoying exceptions to copyright provided for in UK law. It would be helpful to know if the Courts would consider such behaviour by a copyright owner unreasonable.
3. Sound Arguments
The text, despite the density of arguments, is always well-written and interesting. The summary at the end is a masterpiece of summing up as well. In short, the author believes that in some EU jurisdictions, contracts that reduce or eliminate exceptions would be rejected by Courts, whilst in others, and in the USA, they would not normally be so rejected. This in turn emphasises the still significant differences in the law of copyright in EU Member States, despite all efforts at harmonisation. The author concludes, and I agree, that the EU should make laws that make any contractual term that over-rides certain statutory limitations to copyright null and void. She concludes:
'It is not yet too late for the legislator t intervene. Let us hope that legislative action is taken before it is!'
4. Minor Problems
The most important criticism of this work, which is clearly the product of intensive and lengthy research and thought, is that it is so limited in its coverage of countries. Its primary focus, for reasons that are not clear, is on France, Netherlands, Germany and the USA. This raises a glaring loophole in the analysis; both Belgian and Irish Copyright laws have clauses that prohibit the imposition of contractual clauses that reduce exceptions or limitations to copyright that the law provides for. The author makes a passing reference to the Belgian law (with an incorrect page number to it in the index!) and no reference at all to the Irish law. It strikes me as bizarre that one can write a lengthy treatise on this fascinating topic without detailed consideration of the two countries that have actually addressed it in legislation.
There are a few minor mistakes. Embarrassingly, the alleged standard wording (referred to on page 200) in the front of books published by Kluwer does not, in fact, appear in the front of this particular Kluwer book! The repeated (and sexist?) use of 'her' when referring to organisations is curious, when the word 'its' is both natural and non-sexist.
The book can be recommended to all academic lawyers involved in copyright, and students and researchers in the field. I would strongly urge the author to consider a shorter, more practical version for practising lawyers and for legislators, most of whom would not be inclined to work their way through the closely argued text of this book. Any future edition or version, though, must address the issues raised by the Irish and Belgian laws in detail, as they might provide precisely the model wording that the author so evidently desires.
This is a Book Review published on 4 July 2003.
Citation: Oppenheim, C, 'Copyright Limitations and Contracts: An Analysis of the Contractual Overidability of Limitations on Copyright', by Lucie Gabalt, Book Review, The Journal of Information, Law and Technology (JILT) 2003 (1) <http://elj.warwick.ac.uk/jilt/03-1/oppenheim3.html>. New Citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2003_1/oppenheim3/>.