The Right to Quote in the Audiovisual Work

When we watch a cinematographic work beyond simple contemplation and leisure, we can notice in some of them the existence of fragments of other works of different content; in other occasions, the development of part of the argumentative plot (not necessarily the script) evokes or takes us to literary works that we have read; or maybe our curiosity leads us to compare or search if what we see or hear is a part or fragment of a preexisting work.

This is a reality observed in numerous cinematographic works, collected and exemplified in research works on this topic. Is it lawful?

First, let’s acknowledge that Intellectual Property rights are part of the Human Rights, recognizing that their exercise, at least as regards economic rights, is not and cannot be claimed to be absolute. These limitations, which should not be taken as restrictions or exceptions, constitute the so-called ‘Licit Uses,’ because they do not require prior authorization by the author or the owner to use the work, upon compliance with the regulatory requirements. These Licit Uses include the right of quotation or right to quote.

Such limitations must be construed in a restrictive way, since they certainly lessen the extensive exercise that the authors have on the disposition and use of their works; their analysis must be carried out under the principle “in dubio por autoris”. Special care should be taken in the application of these limitations so that they do not end, in the course of time, in forms for circumventing the law. Nor the highest degree of strictness is advisable, because it renders useless the existence and practice of a legal limitation to the exercise of a right.

Many of the limitations to the exercise of economic rights are widely known and dealt with by the Scholars and Jurisprudence, possibly for reasons of a historical nature (they were part of the genesis of Copyright); for the importance or commercial impact that its correct application has; or, for the interest of the Government in protecting education, access to information and the promotion of culture. On the other hand, there are other limitations, such as the subject that concerns us, which application and information is frankly scarce.

Although this right of quotation is established in different legislations, its treatment is not uniform. The Berne Convention for the protection of literary and artistic works (BC), in its article 10, sets forth four indispensable requisites for the existence of the right of quotation:

The work has already been lawfully made available to the public; otherwise, it could be incurred in a criminal offense, depending on the applicable legislation.
Their making is compatible with fair practice, that is, it does not directly or notably affect the interests of the author;
Their extent does not exceed that justified by the purpose, and therefore it must be qualified as non-essential in the work itself (if it is deleted, it would alter its nature, sense or meaning);
Mention shall be made of the source, and of the name of the author.

This governing provision can be perfectly adapted to the domestic legislation of each country; for example, the Intellectual Property Law of Spain (Article 32) provides that the inclusion into a person’s work of fragments of a third party’s works is valid, provided that such works have been already disclosed and their inclusion is done by quotation, or for analysis, comment or critical judgment. Such use may only be made for teaching or research purposes, to the extent justified by the end of that incorporation, and indicating the source and the name of the author of the work used.

An analysis of the specific situation will make it possible to determine if it really falls within the limitations established in the standard. Consequently, the clarity of certain administrative decisions: “The Chamber agrees to specify that for a conduct is considered within the cases of limitation or exception to the right of exploitation of copyright or related rights is not enough that it is expressly contemplated as such in the legislation, but also must not attempt against the normal exploitation of the work or cause unjustified damage to the interests of the legitimate holder of the right. This is what is known as the three-step test. Thus, any act that fails to comply with such test or conditions cannot be classified as an act included within the limitations to copyright, and therefore must have prior authorization from the holder of the right.” Intellectual Property Chamber of the INDECOPI Court. Resolution No. 371.

The application of the three-step test of “fair use” is what will largely determine whether or not to incorporate into your work fragments of the works of others of a written, audio or audiovisual nature, as well as isolated artistic or photographic works, is a lawful act. For this reason, the construction and application of the legal requirements are still a challenge, for example, when it comes to the condition that the right of quotation be made for teaching or research purposes, as requested by some standards. Two interpretative levels could be proposed: the first, conservative and orthodox, restricts the right of quotation strictly to teaching and research; the second, would allow the use for cultural or educational activities.

In conclusion, the dynamism in the world of cinematographic productions is not matched by studies in the field of Intellectual Property rights. From the time when the author’s powers were almost absolute, to recent ones, where we want to reduce those to minor expressions, it is important to bear in mind that in this review, no position should be final, because although the extremes in all legal relationships are inadequate and harmful, in the field of Copyright they are more so.

Sources: