Fair adaptations

Conference: Fair Copyright

Dates: 6-7 January 2014

Abstract:

The right to make ‘adaptations, arrangements and other alterations’ of a work (Berne Convention, Art 12) has a particular standing in copyright law. On the one side, it appears as merely declaratory of a principle which is entrenched in modern copyright—namely that actionable copying is not limited to verbatim or facsimile reproduction, but extends to substantial non-literal taking as well. On the other side, its historical evolution has shaped it as a specific and distinct right with own scope, limitations, and in some cases duration—almost a facultas specialis within the family of exclusive rights. It is mainly in this respect that courts and scholars have struggled to define the boundary between ‘reproduction’ and ‘adaptation’ over the last century and a half. This debate, which has at least peripherally also reached the European Court, is rooted on a significant implication of the legal nature of the adaptation right. While it bears the same effect of other exclusive rights, including the reproduction right, its unique formulation amounts to an enlarged scope of authorial entitlement and hence extends the contours of copyright infringement. Case law of the last decades demonstrates that rightholders can rely on the adaptation right in situations where an alleged infringement does not involve squarely an act of reproduction, or where the allegedly infringing act benefits from a statutory exemption. With new technological uses of copyright works increasingly giving rise to situations of this kind, the determination of the scope of the adaptation right, along with its limitations, becomes of topical significance.

The paper investigates the rationale and the historical background of the adaptation right in civil law and common law traditions. It shows that, in spite of the attempts to ground this right within the personality theory, the right obeys essentially to a functional and instrumentalist justification. As such, not only it is subject to a specific set of limitations, but it is inherently limited by its own purpose and function. The paper discusses its application in the current technological context, and considers how limitations and exceptions can apply taking into account international and EU legislation.

Source: Manual