Copyright Exceptions and Limitations for Research and Science
 








1. Basic principles: the author's right and its limitations

In many cases, research activities rely on the use of texts and other third party creations as source material. In many cases these are subject to copyright. Through copyright, the author of an intellectual creation enjoys several rights which enable him to control the use of his work. In principle, every use of a copyrighted work (I.) created by a third party requires the authorisation of the rightholder, unless the law exceptionally provides for limitations and exceptions of the copyright (II.) in favour of the user.


1.1. Copyrighted materials regarding research and science

The first step is always to identify whether material used for research activities could be subject to intellectual property rights. Traditionally covered by copyright are 'works of arts and literature', which in fact comprises a broad range of creations and forms: books, articles (e.g. scientific treatises), graphics, tables, illustrations, multimedia works, etc.1 The most fundamental (monopoly) right of the author is probably the right of reproduction of the work. Other important rights are the distribution right and the right of making available to the public.

Software will often be subject to copyright or other protection rights as well.2 This is of particular importance, because almost any modern research activity depends on the use of a computer program. In the field of software protection, the EC Computer Program Directive has contributed to a very high degree of harmonization among the EU Member States. "Software" in this sense stands for the actual program3, for example text processing programmes, calculating programs, and graphic programs, but also the operating system. It includes the source as well as the machine readable object code. The author of software holds the right of reproduction (permanent / temporary; in part / as a whole), translation, arrangement, adaptation, any form of distribution to the public, including software rental, and others.4

Databases enjoy protection by copyright law, too, if they constitute the author's own intellectual creation through the selection or arrangement of their contents. Databases in 'any form' are protected (according to the relevant EC Database Directive): scientific databases, digital encyclopaedias or collections of links; either electronic or in another support (paper, microfilm).5The copyright holder of a database has the exclusive right to carry out the reproduction (permanent / temporary; in whole / as a part), translation, adaptation, arrangement and any other alteration, any form of distribution to the public, and other acts.

Furthermore, the Database Directive has introduced a so-called "sui generis" protection regime for databases which would remain unprotected by copyright because of their lack of creativity. Accordingly, all Member States provide for a right for the maker of a database where there has been a substantial investment in the obtainment, verification or presentation of the contents of a database. Rights reserved to the "maker" of this protection form are, amongst others, the extraction, i.e. the transfer of (substantial parts of the) content to another medium and the re-utilisation, i.e. the making available to the public (substantial parts of) by the distribution of copies or in other ways.


1.2. The system of legal limitations and exceptions

Copyright (and the "sui generis" right for databases) is not granted without limitations. Even if material envisaged for use within research activities is protected, and the particular act of research conduct is restricted in principle by copyright, the utilisation can still be allowed because of copyright limitations and exceptions. In respect of research (and other activities contributing to social, cultural or individual benefits), not every form of use requires the authorisation of the right holder. Legislation in all Member States provides for such statutory limitations.

As a general overview, limitations in the Member States' copyright law which are relevant for science and research activities concern mainly:

Besides that, some materials belong to the "public domain", which means that they are not protectable as such (e.g. official documents issued by public authorities) or the term of protection has already expired. Those works can be used freely by everybody.



2. Exceptions for research in EU and Member States' legislation

There is no blanket limitation for "research as such". The basic principle is always that as an exception, certain types of use of copyrighted materials are allowed without the authorisation of the right holder, although the conditions have to be strictly observed by the user. Detailed information can be found in the Copyright Directive, Art.5. The corresponding Member States' legislation in this area differs greatly in certain aspects. This is because only one out of the more than 20 exemptions mentioned in Art. 5 of the Directive has to be implemented mandatorily.6 All further exceptions and limitations are only optional, and in some cases therefore only exist in one particular state. Moreover, certain uses allowed by limitations depend on the compensation paid to the rightholder7.


2.1. General exceptions and limitations to copyright8

In the following section, a brief overview on the most important exceptions for research and science are given:


2.1.1. Scientific use

The Copyright Directive sets out the framework in which Member States can provide that works may be used for the purpose of scientific research. Accordingly, protected works may be copied for that purpose, respectively communicated to the public or made available and distributed,9 as long as and where the source (if possible), including the author's name, is indicated. Only non-commercial research activities shall benefit from this exception.10 Research for the purpose of this provision is considered non-commercial if the actual conducting of the research is not commercial, even when it is commercially funded by third parties. However, there might be cases where the distinction is difficult to make, for example, where patents are obtained at a later date for results generated within third-party funded research.

The design of exceptions and limitations regarding the scientific use of works differs greatly between the different Member States' copyright laws. There are some very specific provisions, such as in Germany the "making available of already published works, small works and single contributions of newspapers or periodicals to small, well-defined groups for conducting research."11 Other legislations, for example in the UK, provide quite global provisions such as "fair dealing with a literary work for the purpose of research does not infringe any copyright in the work."12

Furthermore, material from Member States shows that an exception such as this should not be used broadly and on the face of it, but in consideration of the precise understanding and interpretation of the respective Member State.


2.1.2. Library and archive use

Another important exception in practice can be found in the Copyright Directive in favour of public libraries and archives which are not for economic or commercial advantage13. Those institutions may copy (and distribute) protected works regardless of the intended purpose. Again, the design of the exceptions in national copyright law differs quite widely between the Member States. Some do completely without particular exceptions and limitations (e.g. France). Others require certain conditions to be met, such as for reproductions by libraries where only parts of the work may be copied (e.g. in Austria, where for the reproduction of whole books / periodicals the author's prior consent is required, except for copies made by hand;14 in Italy, where max. 15 % of each volume or issue of a periodical may be copied for personal use in libraries), or restriction to single copies of works in their possession or works which have been sold out (Austria). As regards archive uses, in many states copies may only be made for internal purposes and are restricted to exemplars owned by the institution or enterprise.

Many States provide additional governmental regulations issued by the competent ministry which lay down the requirements in detail.


2.1.3. Quotation

An essential method of scientific work is to consider the existing results of other researchers. Therefore, it is necessary to deal with those works and include quotations which refer to the third party's research work. However, copying other parties' scientific results literally or textually without stating the source, has to be regarded as plagiarism. To avoid such conflicts, in every Member State there are provisions in the field of quotations which determine certain conditions thereof. Quotation is a good example of how the varying concept of exceptions to copyright is applied on the European as well on the national level. In general, it is up to the national legislator to provide for a quotation right. But, if the national lawmaker does so, he has to meet certain requirements, namely:

  • the quotation is for a legitimate purpose such as criticism or review; and

  • the exemption relates to a work or other subject matter which has already been lawfully available to the public; and

  • the source, including the author's name, is indicated; and

  • their use is in accordance with fair practice; and

  • to the extent necessary for the specific purpose.

Beyond these requirements prescribed on a European level, the national legislator is free to provide stricter conditions.



2.2. Limitations and exceptions as regards software protection

In contrast to the limitations to copyright in general, the regime of exemption concerning software copyright is harmonized in the EU Member States to an utmost degree. Please note that the following list of exceptions is exhaustive for software copyright. It does not contain a special limitation for research purposes. This means that the general exceptions for scientific research cannot be applied to computer programs although not all national laws say so explicitly. However, the following exceptions without special focus on research can also be of importance in the context of scientific activities:

Generally speaking, the Computer Program Directive states that the 'lawful acquirer' acts do not require authorisation by the rightholder of the program whenever a

Reverse engineering techniques such as observing, studying, and testing the functioning of the program are allowed without the authorisation of the rightholder

There is also an explicit right to make one back-up copy which is necessary for the use of the program - if the rightholder himself did not provide a back-up copy to the lawful acquirer. Such rights belonging to the rightful possessor cannot even be overridden by a contract.

A very important exception is the possibility of decompiling a program in order to make it interoperable with other programs. However, this quite complex provision is more or less only of interest to computer programmers. Therefore, we refer interested readers to our briefing paper Software Copyright and the Computer Programmer.


2.3. Exemptions to database protection

As regards research and science, statutory exceptions to database copyright protection are set out in the Database Directive as follows:

In addition, general copyright exceptions for scientific research according to the national copyright laws of the Member States apply to database protection in the same way as they apply to all other protected works.15 In the same way, the general exceptions for libraries and archives are applicable, as well as exceptions for quotations where they are not covered by the scientific research exception.

The "sui generis" right in a database is also subject to limitations: the user may always extract content without authorisation for the purposes of scientific research (or for the illustration of teaching)16, or for private purposes as regards a non-electronic database. Some Member States (e.g. Denmark, Finland, and Sweden) also provide for further (national) exemptions as regards protected databases for reproduction for archives, libraries and similar institutions.



3. Source indication

All Member States impose the obligation to acknowledge the source of a copy. Concerning the extent of necessary information that has to be provided, the copyright law differs from state to state. Whereas in some states the law explicitly requires the source and the author's name to be mentioned, in particular as regards quotations (Belgium, Germany, Spain, and others), the title of the work (Portugal, Italy), or even the publisher and translator (Italy), other Member States simply refer to "proper usage" and "sufficient acknowledgement" (UK, Ireland, and Sweden).

However, even in jurisdictions where no explicit duty exists to mention the author's name, the general moral right of recognition of authorship has to be observed. This can also result in the obligation to indicate the source.


4. Copy protection

Further restrictions to copyright exceptions arise by the application of technical protection measures. Digital content is more and more provided with tools to prevent access and the copying of materials. These technical measures are protected by the Copyright Directive and the national laws of the Member States. It is not allowed to circumvent any of these anti-copying tools knowingly or with reasonable grounds to know, even where in principle copyright provides an exception, such as for research purposes. "Cracking" the access or copy control measure would make the researcher subject to prosecution.

The Copyright Directive states that Member States have to ensure that beneficiaries of limitations and exceptions for research purposes are in a position to enforce their rights.17 This is mainly achieved by fixing individual claims to enforce the respective limitation in the national copyright laws of each state. This means that in case of a dispute, claims at first have to be brought before a court - where proceedings meanwhile can take a long time until the researcher actually benefits from the legal exemptions.


5. Applicable law

Copyright law follows the principle that the applicable (national) law basically depends on the place where the copyright relevant act occurs (so-called 'principle of territoriality'). E.g. a researcher carrying out research in the UK who utilises pieces of works of other scientists has to check British copyright laws to determine the legality of this conduct. This quite simple rule gets much more difficult where different countries are concerned in cross-boarder activities (for example, the publication of research results is distributed to other territories) or in an online environment. Generally, the researcher has to consider each of those countries' copyright laws which apply to the particular use that takes place within its borders. Therefore, one should always examine which different national legislations could possibly be touched by the research activities.




1. For further general information please refer to our Guide on copyright.

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2. Please note also our briefing paper on Software Copyright and Software Copyright and the Computer Programmer.

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3. The visible graphic structure on the monitor may also enjoy copyright protection as an artistic work, database, multimedia work, etc.

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4. Please note: if the programmer creates software within his labour contract, the usage rights lie with his employer.

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5. Please also note our briefing paper Database protection in the EU.

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6. I.e. the exception for temporary reproductions as an integral and essential part of a technological process necessary in an online environment, Art. 5 (1) Copyright Directive ('browsing', i.e. RAM copies made on the home computer and 'proxy caching' are typical examples).

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7. These claims are in some cases asserted by a collecting society.

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8. Please not that these general exceptions and limitations are not applicable to software and the "sui-generis" database protection right (cf. B. II. and B. III.).

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9. Art 5 (3) (a), (4),

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10. Rec. 42 of the Copyright Directive.

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11. § 52 a German Copyright Act ("Urheberrechtsgesetz"). For example, one could use a password protected intranet for a small research group.

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12. Section 29 Copyright, Designs and Patent Act 1988.

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13. Art 5 (2) (c), (4) Copyright Directive.

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14. § 42 (8) Austrian Copyright Act ("Urheberrechtsgesetz")

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15. Without prejudice to the special exceptions mentioned before.

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16. As long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved.

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17. In the event that the researcher has "legal access" to the protected work.

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