REPROGRAPHIC REPRODUCTIONS OF WORKS FOR TESTING, TEACHING AND RESEARCH

• May 3, 2022
• Maichael Bessada

A.        ANALYSIS [1]

Out of the 17 countries studied, 12 make provisions for exceptions permitting educational establishments or research centers to reproduce copies of works, at the request of researchers or students, for purposes of teaching or research.  Some countries also allow educational establishments to reproduce excerpts from works for exam questions.

The countries are as follows:

–        Algeria (Article 45)

–        Bahrain (Article 21(c) and 22(b))

–        Djibouti (Article 41(d))

–        Egypt (Article 171(7) and (8))

–        Jordan (Article 20)

–        Lebanon (Article 25(2))

–        Morocco (Article 15(b))

–        Oman (Article 20)

–        Qatar (Article 18(2))

–        Syria (Article 37(5))

–        Tunisia (Article 10 (c)) new and 12 (2) new

–        United Arab Emirates (Article 22(4)(b) and 22(8))

Preliminary remark:  The Berne Convention does not make direct provision for this exception.  However, one could claim that the justification can be found in Article 9(2) of the Berne Convention, according to which:

“It shall be a matter 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”.

The following questions will be taken up:

1.       The right in question

2.       Works likely to give rise to the exception

3.       Purpose of the exception

4.       Beneficiaries of the exception

5.       Conditions for exercising the exception.

1.       THE RIGHT IN QUESTION: THE RIGHT TO REPRODUCTION

The majority of laws refer to reproduction by reprographic processes, that is, reproduction by photocopying.  This is the case with the laws of Bahrain, Djibouti, Jordan, Lebanon, Morocco, Oman, Qatar, and Syria.  The provisions of these laws rule out digital copies.

Other laws, however, refer to reproduction as such, without limiting it to photocopying.  This is the case with the laws of the following countries: Algeria, Egypt, Qatar, Tunisia, and the United Arab Emirates.  Given that in these laws reproduction is broadly defined and is not limited to reprographic processes alone, digital copying remains an option in these countries.

As far as the latter countries are concerned, the question to be asked is whether digital copies can be transmitted to a research student by e-mail.  That is not sure.  Transmission via e-mail is an activity that would come under the right to make available to the public or the right to communicate to the public, which goes beyond the framework of mere reproduction. Given that exceptions are generally interpreted restrictively, we can only conclude that even for countries where laws allow digital copying under the exception of reproduction, it does not appear that this exception would cover the making available of the digital copy by e-mail. As a result, this could significantly limit the scope of the exception in practice.

• WORKS LIKELY TO GIVE RISE TO THE EXCEPTION

The majority of laws refer to articles from summaries or periodicals, short extracts from a work or succinct works.  This is the case with the laws of the following countries: Algeria, Bahrain, Djibouti, Egypt, Jordan, Lebanon, Morocco, Oman, Qatar, and Tunisia.

Three comments are in order.

2.1.   First of all, it will be noted that, except for press articles or so-called “succinct” works, the various laws do not allow reproduction in full of work.  There is a very good reason for this because these exceptions are to be seen in conjunction with Article 9(2) of the Berne Convention, which only authorizes reproductions within very strict limits.

This remark also holds true for Syria, even though the Syrian law does not, at first sight, seem to impose a limit on the size of the text reproduced.  In fact, the Syrian law permits the reproduction of works, without however referring to articles, short works, or extracts from works.  Nevertheless, the point should be made that according to this law, the exception is only permissible if the reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.  In practice, this comes down to limiting the scope of the reproduction allowed.

2.2.   The second observation pertains to the nature of works that are likely to give rise to reproduction.  For these countries, this can only concern written works or works available through graphic editions such as a musical score, a photograph, a drawing, etc.  Thus, certain countries allow the exception to be extended to illustrations accompanying written works (Algeria) and artistic works (Djibouti).  Most simply refer to works.

This limitation concerning written works stems from both the wording of the various laws and from the fact that in some cases, the reproduction in question must consist of a reprographic reproduction, thereby inevitably excluding certain categories of works.  For example, the exception would not apply to reproductions of short extracts from audiovisual or musical works recorded in phonograms.

2.3    Finally, most of the laws stipulate that the exception must concern articles or extracts that have been “legally published” or made “lawfully available to the public”.

• PURPOSE OF THE EXCEPTION

The laws examined all state clearly that this exception is designed to allow photocopying for educational purposes and/or for purposes of research or private study.  Some countries also permit reproduction in conjunction with testing.

• BENEFICIARIES

The laws examined are designed to allow educational institutions and the libraries attached thereto to engage in reproduction for the benefit of the students or researchers who use them.  However, some of the laws also extend the benefit of the exception to non-commercial documentation and archive centers, such as any public library, when such institutions make copies to meet the needs of users.

• CONDITIONS FOR EXERCISING THE EXCEPTION

5.1.    Conditions designed to ensure that photocopying practices do not conflict with a normal exploitation of the work

This concern is expressed in various ways, through a body of restrictions, some of which are cumulative.  Among the main restrictions, the following conditions should be mentioned:

(1)     Some laws stipulate that photocopies must be made intermittently and separately rather than systematically.  This is the case with the Algerian law: “the act of reproduction constitutes an isolated act occurring, if it is repeated, on separate, unrelated occasions”.  The same holds true for the Tunisian law, which authorizes the reproduction “of isolated articles lawfully published in a newspaper or periodical, of short extracts from a lawfully published work or short work.”

(2)     This approach may be found with different wording in other laws (Bahrain, Egypt, Morocco, Oman, Qatar, Tunisia, and the United Arab Emirates).

(3)     In addition to this condition, a great many laws stipulate that the extent of the reproduction must not exceed that justified by the purpose (Bahrain, Djibouti, Jordan, Lebanon, Morocco, Oman, Qatar, Syria, and Tunisia).

(4)     Other laws go as far as incorporating the conditions of Article 9(2) of the Berne Convention in the body of the law.  For example, the laws of Djibouti, Jordan, Oman, and Syria stipulate that reproduction should not conflict with a normal exploitation of the work and must not unreasonably prejudice the legitimate interests of the author.

(5)     Finally, some laws specify that reproduction may not be made for gain, profit, or commercial purposes, either directly or indirectly (Oman, Qatar, and Tunisia).

5.2.    Conditions linking the exercise of the exception to the lack of any management body operating in this field

For example, some laws make the exercise of the exception contingent upon the lack of any licenses granted by a collective management body (Algeria, Bahrain, Qatar, Oman, and United Arab Emirates).

5.3.    Conditions designed to respect moral rights

A number of laws require an indication of the source and name of the author if his name appears thereon (Egypt, Lebanon, Oman, Qatar, and Tunisia).

B.     RELEVANT LEGAL PROVISIONS

ALGERIA

Article 45:  Libraries and centralized archives may reproduce a work in the form of an article, another succinct work, or a short extract of writing other than a computer program, with or without illustrations, published in a collection of works or in an issue of a newspaper or periodical, where the reproduction is designed to satisfy the request of a natural person, provided that:

–        the copy made is used solely for the purpose of study, scholarship, or private research;

–        the act of reproduction is an isolated case occurring, if repeated, on separate and unrelated occasions;

–        there is no collective license available for reproduction by the national office for copyright and related rights.

BAHRAIN

Article 21:  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:

…

(c)     photocopying reproduction of an article or short extracts of work or a short work, if they are legally published, for purposes of educational activities inside non-profit-making educational institutions, whether directly or indirectly, provided that the reproduction is only once or in different cases and to the extent necessary for the realization of such purposes.

Article 22:  It shall be permissible without the author’s consent and without payment of compensation to produce a single copy of the work by photocopying facilities by an archive house or library that does not seek to make profits, whether directly or indirectly, in either of the following two cases:

…

(b)     reproduction shall be for a published article or brief extracts of work or a short work if the concerned archive house or library estimates that the purpose of reproduction is to meet the requirements of a natural person for his use in a study or research work for a non-commercial purpose, provided that the reproduction is made once or in different cases and is not available for collective licensing, subject to which such reproduction shall be available. 

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, shall be lawful without the author’s permission:

(d)     the reproduction, by public libraries, non-commercial documentation centers, scientific institutions, and educational establishments, of literary, artistic, or scientific works which have already been lawfully made available to the public, provided such reproduction and the number of copies is limited to the needs of their activities, do not conflict with the normal exploitation of the work and do not unreasonably prejudice the interests of the author.

EGYPT

Article 171(7):  Reproduction, if necessary for teaching purposes in educational institutes, of an article, a short work, or extracts therefrom, provided that:

–        reproduction is made once or on different separate occasions;

–        the name of the author and the title of the work is mentioned on each copy

171(8):  Making a single copy of the work, through the intermediary of documentation and archiving center or through a bookshop not aiming at making any direct or indirect profit, and provided that:

–        where the reproduced work is a published article, a short work, or an extract of work, the aim of reproduction is to satisfy the needs of a natural person, the copy will be used only for study or research purposes, and a single copy is made or at different occasions;

–        where the reproduction is made with the aim of preserving the original copy or, when necessary, replacing a lost, destroyed, or invalid copy and it was impossible to obtain such a substitute copy under reasonable conditions.

JORDAN

Article 20:  It shall be permissible for public libraries, non-commercial documentation centers, educational institutes, and scientific and cultural establishments to reproduce any work by a photographic process or otherwise without the authorization of the author, provided that the reproduction and the number of copies are limited to the needs of the establishment, and that the reproduction is not prejudicial to the rights of the author of the work and does not conflict with the normal exploitation of the work.

LEBANON

Article 26:  The reprographic reproduction or making of copies of articles published in newspapers or summaries or short extracts of works shall be lawful, without the author’s permission and without compensation, provided that the act of reproduction is for teaching purposes and is to the extent justified by the purpose.  The name of the author(s) as well as that of the publisher must be mentioned in each utilization of a copy of the article or work if such names appear in the original work.

MOROCCO

Article 15(b):  It shall be permissible without the author’s permission and without payment of compensation to do the following, provided that the source and author’s name are indicated if such name appears in the source:

…

(b) To reproduce by reprographic means for teaching or testing within educational establishments whose activities are not directly or indirectly for commercial gain, to the extent necessary for the realization of such purposes, isolated articles lawfully published in a newspaper or periodical, short extracts from a lawfully published work or a lawfully published short work.

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, provided that free use shall not be allowed if the use conflicts with the normal exploitation of the work, performance, or phonogram or unreasonably prejudices the legitimate interests of the author, performer or producer of phonograms:

            …

(3)        reproduction, to the extent justified by the purpose and without the purpose of direct or indirect financial gain, of a single copy by reprographic means of protected works by public libraries, non-commercial documentation centers, educational establishments, and scientific and cultural institutions, provided that such reproduction is:

(a)        for a published article or short work whereas the purpose of reproduction is to meet the need of a natural person for use in a study or research and provided that reproduction shall be for one time, or at varying intervals.  Reproduction shall also be considered if repeated, on separate and unrelated occasions, and there is no collective license available under which such reproduction can be made;

QATAR

Article 21(1):  Reproduction is allowed for teaching purposes in educational institutions, the activities of which do not serve direct or indirect commercial gain, of articles, short works or extracts of works, to the extent justified by the purpose provided that:

(a)        the act of reproduction is an isolated one occurring, if repeated, on separate and unrelated occasions;

(b)        there is no collective license available for reproduction by a competent authority in the collective management of rights of which the educational institution is or should be aware;

(c)     the name of the author and the title of the work is indicated as far as practicable on all copies.

SYRIA

Article 37(5):  The reproduction by reprographic or similar means of a literary, scientific, or artistic work, lawfully made available to the public, by a public library or non-commercial archive service, or by an educational institution, provided that the part reproduced and the number of copies is limited to the needs of the reproducing institutions and that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

TUNISIA

Article 10 new:  The utilization indicated below of protected works that have been made available to the public shall be lawful without the author’s permission and without payment of compensation, subject to the provisions of Article 37 of this Law:

(c)     the reproduction, for teaching or testing in educational establishments, in a non-commercial, non-profit-making aim and to the extent justified by the purpose, of isolated articles lawfully published in a newspaper or periodical, lawfully published short extracts of work or short work, on the following conditions:

1)      full indication of the source and the author’s name, whenever the work is utilized;

2)      Utilization of the work for non-commercial or profit-making purposes (Article 12 (new), paragraph 2).

Public libraries, non-commercial archive centers and services, and the libraries of educational and training establishments may also, without the author’s permission and without payment of compensation, reproduce an article or short extract from a written work, other than a computer program, published in a collection of works or in an issue of a newspaper or periodical, if the purpose of the reproduction is to respond to a request from a natural person for the purpose of research and teaching.

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 may not prohibit a third person from performing one of the following acts:

(4)     Taking a sole copy of the work with an acknowledgment of records houses or archives, libraries, or documentation centers that do not seek direct or indirect profit in the following two cases:

…

(b)     The purpose for copying must be in reply to an application by a natural person to use it for research or study, provided that it is granted for one time or for interrupted periods of time, provided that obtaining a license became impossible 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 37