Transformation of copyright limitations in the digital age

Abstract

In the article, the author analyzes the current state of the Institute of free use and its transformation by changes in social relations and public demand for reforming the system of copyright limitations and exceptions. The author comes to the conclusion that the request to expand the scope of free use is due to the emergence of a number of practices that are perceived as “legitimate” in society, but violate the provisions of current legislation. Such practices include the use of orphan works and the creation and use of fan works. At the same time, the author identifies three factors as prerequisites for this public request, firstly, it is simplification of the information processing (technological prerequisite), secondly, technology leads to a social request to use copyright objects in a certain way (social prerequisite ), thirdly, the inability to make such use due to the current legal regulation (legal prerequisite). After analyzing the impact of this request, the author concludes that there is a tendency to deviate from the traditional form of a list of restrictions on a closed type and the establishment of open restrictions. This tendency is manifested, firstly, in attempts to reconcile the provisions of the three-step test and the doctrine of fair use, and, secondly, in Russian law in expanding the practice of prohibiting abuse of rights and broad interpretation by courts of existing narrow restrictions by the admissibility of citation of not only the text, but any legally published work. The author notes that the desire to expand the practice of applying an open system of restrictions of exclusive rights is due to its flexibility. Such a system allows courts to adopt legal regulations to fast-changing public relations. Meanwhile, the establishment of restrictions of the exclusive right under the open model carries the risk of legal uncertainty. To solve this problem, the author proposes to use open restrictions of exclusive rights, along with the establishment of special restrictions. This will increase legal certainty in established areas of free use and retain the possibility of adapting the institution of free use to new challenges.