LIMITS OF UTILIZATION OF WORKS AS ILLUSTRATIONS FOR TEACHING

• May 3, 2022
• Maichael Bessada

1.         Article 10(2) of the Berne Convention, [1]   which provides the basis for the exception analyzed here, poses two conditions that limit the field of application of the exception.  Utilization is permitted “to the extent justified by the purpose” and “provided such utilization is compatible with fair practice”.

Behind these requirements lies an implicit desire to safeguard the legitimate interests of the beneficiaries whose work has been used.  In actual fact, these two requirements end up by limiting the quantity used to a fragment, within the necessary limits for the purposes of the illustration.

In practice, however, owing to the nature of the work, it is sometimes necessary to reproduce a work as a whole for the needs of illustration.  This is the case for example with photographs or with a short poem a few lines long.  Consequently, some authors consider that with borderline cases of this kind, the exception should be interpreted in such a way as to allow the utilization of the work as a whole (see Ricketson and Ginsburg, The International Law of Copyright).

2.         The Arab countries have incorporated the limits imposed by Article 10(2) of the Berne Convention in their laws in various ways:

–        A number of laws require the two conditions mentioned in Article 10(2) of the Berne Convention (Djibouti, Egypt);

–        Others make do with one of the two, as they probably feel that the two conditions are synonymous.  For example, Algeria, Jordan, and the United Arab Emirates specify that utilization shall be permitted “to the extent justified by the purpose”, while Sudanese law allows the utilization of “short extracts”.

–        Some countries do not mention either condition (Tunisia, Bahrain, Morocco).  As far as Bahrain and Morocco are concerned, however, the law clearly stipulates that the exception allows utilizations by way of “illustration”, thus implying a judicious choice of the relevant passages for teaching needs rather than an appropriation of the work as a whole.

–        Sometimes, certain laws are even more restrictive than the Berne Convention.  For example, Egyptian law permits the reproduction of “short extracts”, provided that such reproduction remains within reasonable limits and does not go beyond the goal set.  This threefold requirement seems stringent.  It could even go beyond the requirements of the Berne Convention, reducing the scope of the exception.

3.      REFERENCE TO THE SOURCE AND THE NAME OF THE AUTHOR

This condition, which is taken from the Berne Convention (Article 10(3)), can be found in all of the laws studied except, as it appears, that of Tunisia.

4.            OTHER CONDITIONS NOT REQUIRED BY ARTICLE 10(2) OF THE BERNE CONVENTION

         It will be noted that certain laws stipulate other conditions which are not contained in the Berne Convention:

–        The work utilized must have already been published lawfully (Bahrain and Morocco).

–        Other laws focus on the impact of utilization on the exploitation of the works in question.

–        For example, certain laws mention that the work cannot be used for purposes of commercial exploitation (Jordan, Qatar, Sudan, and United Arab Emirates)

–        With others, such as the law of Qatar, for the exception to be valid the utilization must not conflict with a normal exploitation of the work or unreasonably prejudice the legitimate interests of the author.  Moreover, Saudi Arabia requires assurances that the utilization permitted by the exception will not affect the exploitation of the work.

–        Lastly, the law of the United Arab Emirates stipulates as a prior condition for the application of the exception that no license for reproduction has been obtained in accordance with the provisions of the law.

5.      RELEVANT LEGISLATIVE PROVISIONS

ALGERIA

Article 43:

            The utilization of a literary or artistic work by way of illustration in publications, sound or audiovisual broadcasts, or recordings for teaching or vocational training is permitted, to the extent justified by the purpose.

With such utilization, the source and name of the author must be indicated, in accordance with fair practice.

BAHRAIN

Article 21:

(a)        It shall be permissible without the author’s consent and without payment of compensation to do the following, provided that the source and author’s name are mentioned if they are indicated in the source:

(b)        Use of a certain literary or artistic work, which is legally published, in publications, wireless broadcasts, and audiovisual recordings as illustrations for teaching, by non-profit educational institutions.

DJIBOUTI

Article 41:  Notwithstanding the provisions of Article 23 b, the following utilizations of a protected work, either in the original language or in translation, are lawful without the author’s permission.

1.       With regard to a work that has been lawfully published:

…….

(c) Utilizing the work as illustrations for teaching through the publication of broadcasts or sound or visual recordings, to the extent justified by the purpose, or communicating for teaching needs the broadcast work for school, educational, university, or vocational training purposes, provided such utilization is compatible with fair practice and that the source and name of the author of the work used are mentioned in the publication, broadcast or recording.

EGYPT

Article 171:  Without prejudice to the moral rights of the author under this Law, the author may not, after the publication of the work, prevent third parties from carrying out any of the following acts:

…

(6)     Reproduction of short extracts from a work for teaching purposes, by way of illustration and explanation, in a written form or through audio, visual or audiovisual recording, provided that such reproduction is within reasonable limits and does not go beyond the desired purpose, and provided that the name of the author and the title of the work is mentioned on each copy whenever possible and practical.

IRAQ

Article 14

(2)     It is permitted to do the following in scholarly, history, literature, science, and art books:

(a)     Copying of short extracts from the published works.

(b)     Copying of works being published in planning, relieving or photographing arts, provided that copying shall be confined with what is necessary for explanation of the written.  In all cases, the sources being copied and the names of the authors must be clearly mentioned.

JORDAN

Article 17:  It is permitted to use the published works without the authorization of the author in the following cases

(c)     Use of the work by way of illustration in publications, broadcasts, or sound and audiovisual recordings, for instructional, educational, or religious purposes, or for vocational training, to the extent justified by those purposes; such use shall not, however, entail the realization of any material gain, and the work and the name of its author shall be mentioned.

LIBYA

Article 17:  It is lawful, in schoolbooks and works of literature, history, science or art:

(b)     to reproduce works published previously in the field of graphic and plastic arts or photography, provided that such publications or reproductions are limited to what is necessary for illustrating the text.

          The sources and names of the authors must be mentioned clearly in all cases.

MOROCCO

Article 15:  Notwithstanding the provisions of Article 10…, it is permitted, without the author’s authorization and without payment of remuneration, provided that the source is indicated and that the author’s name is included in the reference to the source:

(a)    to use a lawfully published work for teaching purposes by way of illustration, in writings, or sound or visual broadcasts or recordings;

OMAN

Article (20):  Subject to the moral copyrights stipulated under this Law, the following uses of works shall be lawful even without the consent of the author, provided that the source and the name of the author are mentioned if listed in the work, and provided that free use is not allowed if the use conflicts with a normal exploitation of the work, performance, or phonogram or unreasonably prejudices the legitimate interests of the author, performer or producer of phonograms:

(2)     Use of the work in meetings within the family or through an educational institution for clarification during face-to-face educational or teaching purposes, within the limits justified by such purpose, provided that this is done with no direct or indirect compensation.

QATAR

Article 18:  The following uses of a protected work are permitted without the author’s authorization:

• Using the work by way of illustration for teaching, through publications, broadcasts, sound or visual recordings, films, or by any other means, to the extent justified by the purpose, provided that the use is non-profit making and the source and the name of the author are indicated. 

          The uses provided for in the two preceding items shall not conflict with a normal exploitation of the work or unreasonably prejudice the legitimate interests of the author;

SAUDI ARABIA

Article 15:  The following uses of the copyrighted work, in its original language or in translation, are lawful without obtaining the permission of the copyright owner.  These forms of use are: 

…

(3)     Using the work by way of clarification for educational purposes, within the limits justified by the intended objective, or making a copy or two for public libraries or non-commercial documentation centers on the following conditions:

( )      Shall not be commercial or for profit.

( )      Copying shall be restricted to the requirements of activities.

( )      Shall not impair the material benefit of the work.

( )      The work is out of print or is lost or damaged.

(9)     Copying short quotations from published works, drawings, pictures, designs, or maps in school books prepared for educational curricula or in books of history, literature, and art, provided that copying is within the limits of necessity and that the title of the work and the name of the author are mentioned.     

SUDAN

Article 14 (3):  In connection with the publication of school textbooks or books prepared for educational purposes or books of history, literature, or art, it shall be allowed:

(a)     to make short quotations from works already published;

(b)     to reproduce any published drawing, photograph, design, inscription, or map, provided that such reproduction is restricted to what is necessary for the purpose of illustrating the written text;

(c)     in cases (a) and (b), the title of the work reproduced and the name of its author shall be mentioned.

Article 14 (6):  Educational institutions shall be authorized to reproduce short works, articles, or short parts of a published work as well as to incorporate them in school broadcasts or sound recordings for the non-commercial purpose of illustrating the teaching process.

SYRIA

Article 37:

         The following shall be considered as lawful:

(1)     For a work that has been lawfully published:

(c)     utilization of the work by way of illustration for teaching, in publications, broadcasts or sound or visual recordings, provided such utilization is compatible with fair practice.

TUNISIA

Article 10 new:

         The following utilization of protected works that have been made available to the public shall be deemed lawful, without the author’s authorization and without compensation…

…

(b)     utilization of the work by way of illustration for teaching in printed matter, performances including drama or sound or visual recordings.

UNITED ARAB EMIRATES

Article 22:  Without prejudice to the literary rights of the author stipulated in this Law, the author after the publication of his work must not prohibit a third person from performing one of the following acts:

…

• Reproduction of written, sound, or audiovisual short excerpts for cultural, religious, educational, or vocational training purposes, provided that copying is within the reasonable limits of its purpose and that the name of the author and the title of the work are mentioned wherever possible and that the copying authority does not aim at a direct or indirect profit and that license for copying was unobtainable in accordance with the provisions of this Law.

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[1] – study on limitations and exceptions for copyright for educational purposes in the Arab countries, world  intellectual  property  organization, geneva, standing committee on copyright and related rights, Nineteenth Session, Geneva, December 14 to 18, 2009, prepared by Victor Nabhan(President, International Literary and Artistic Association (ALAI)), SCCR/19/6, Section I, page 20