E.V. Balabanova

Permissible Restrictions to Copyright in Continentaland Anglo-American legal traditions

2019. No. 5. P. 101–120 [issue contents]
The article is devoted to the most urgent problems of the functioning of the system ofpermissible copyright restrictions in different legal orders. Based on the analysis of twolegal traditions the following conclusions can be formulated: in civil law countries theformation of a restrictive mechanism depends on such factors as the nature of the threesteptest (direct or indirect), the procedure for applying this test (cumulative or noncumulative),the combination of the main evaluation criteria (range of factors, compliancewith a specific goal, availability of the work, conscientiousness), availability of alternativetools; in common law countries the formation of such mechanism depends on theexistence of a general assessment rule (under the fair use doctrine this rule consists offour factors; under the fair dealing doctrine this rule is replaced by the fairness criterion),additional statutory and non-statutory evaluation criteria (protection of public interest,scope and nature of use, circumstances and purpose of use, the possibility of achievingthe goal in another way, etc.). The author comes to the conclusion that such factors asthe lack of a general rule or the possibility of its direct application; cumulative applicationof evaluation criteria; lack of additional criteria; closed list and excessive specificationof restrictions; limiting the number of goal and objects have a negative effect on therestrictive mechanism and its adaptability. The article also proves that the problem ofexcessive rigidity of the assessment system can be solved by the interpretation as well asusing additional criteria. The formation of a flexible restrictive mechanism simplifies theprocess of balancing private and public interests and updating the system of copyrightrestrictions. A special attention is given to the analysis of some features of legal regulationand to the problem of copyright limitations in the digital environment.
Citation: Balabanova E. (2019) Dopustimye ogranicheniya isklyuchitel'nykh prav na ob"ekty avtorskogo pravav kontinental'noy i anglo-amerikanskoy pravovykh traditsiyakh [Permissible Restrictions to Copyright in Continentaland Anglo-American legal traditions]. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 5, pp. 101-120 (in Russian)
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