Quotation Sebastián López Maza Lecturer Universidad Autónoma of Madrid Session I: Freedom of speech

1.- General considerations. - Quotation is a limit to copyright. - It is one of the oldest limitations to copyright. BC: 1885 Conference, but restricted to educational and scientific publications. - This exception has been included in all the national laws (e.g.: art. 51 UrhG, L a CPI, 70.1 Italian Law…). Rome Revision Conference: expressly included and in a general way.

- From the moment a work is disclosed, it is destined to be quoted. - Authors cannot prevent this use. - It is not only referred to protected works, but also to works fallen into the public domain. Although the work is in the public domain, we have to repect the requirements of quotation exception anyway. - It is also a limit to freedom of speech.

2.- Requirements for its application. Article 32.1 LPI, «It shall be lawful to include in one’s own work fragments of the works of others, whether of written, sound or audiovisual character, and also to include isolated works of photographic or figurative art character, provided that the works concerned have already been disclosed and that they are included by way of quotation or for analysis, comment or critical assessment. Such use may only be made for teaching or research purposes and to the extent justified by the purpose of the inclusion, and the source and the name of the author of the work shall be stated».

Disclosure of the quoted work. - “Disclosure”: a wider concept than “publication”. Distribution + public communication. - Respect of the moral right of disclosure. If anyone makes an undisclosed work accessible to the public, he or she would infringe the moral right of the author. The extent of the quotation must not exceed what is justified by the purpose. - No more than necessary may be quoted in order to support or illustrate the ideas expressed by the person making the quotation.

- Quantitative and qualitative point of view. From the quantitative point of view, the Spanish Law does not establish quotations to be short. From the qualitative point of view, the quotation must be in the background. Length of quotation. - Spanish Law: only fragments from literary, sound or audiovisual works, and the whole work, but isolated, regarding to photographic or art works. If a part of an artistic works is quoted, it could infringe the right of integrity. * Court of Appeal of Madrid (Section 13ª), of 26 February 2007.

Teaching and research purposes. - This requirement limits the application of the exception. - Who makes research? And teaching? - E-learning is included but we have to keep in mind that quotation is not a privileged exception (art LPI ). Right holders that use technological measures to protect their works can forbit the making of quotations not only in online environtment, but also in offline one. * Court of Appeal of Barcelona (Section 15ª), on 3 May Interesting Judgments about this requirement: * Court of Appeal of Asturias (Section 7ª), on 28 February * Court of Appeal of Madrid (Section 14ª), on 23 December 2003.

- New uses in the digital environment. Linking: the following requirements are not met: * Using a fragment of the work. * Teaching or research purposes. * Supreme Court of Spain, on 3 April The use of fragments of musical works (sound samples), videos (clip trailers) or literary works in webpages, with the aim of selling the product. There are not teaching or search purposes, but the inclusion is made looking for profit.

To indicate the source and the author’s name. - This requirements is based on two reasons: * To do not infringe the right of paternity. * To allow readers to recognize the quoted author and to reach the original source. - Especial cases: * It is not necessary to indicate the author when is impossible to do so, because it does not appear in the work or he or she is unknown. * If the work is anonymous, it must be only quoted the source. * If the author uses a pseudonym, it has to be stated.

- If the source and the name of the author are not stated: plagiarism. * Judgment of the Court of Appeal of Cantabria on 20 April What happen if I quote historical or artistic data? If you copy the original form in which such data have been expressed, they have to indicate the source.

3.- Non-stated requirements. - The kinds of work that may be quoted. - Quotations may be made in the course of a lecture, performance or broadcast, as in a material form such as a book or article. - Lucrative aims: they are not allow because otherwise would go against the three-step test. * Judgment of the Court of Appeal of Madrid (Section 28ª). * Judgment of he Court of Appeal of Sevilla (Section 6ª).

-The way of making the quotation: the quoted part (quotation marks, using italics…) must be distinguished from the part of the author that quotes. * Judgment of the Court of Appeal of Valencia (Section 9), on 3 January * Judgment of the Court of Appeal of Madrid (Section 25ª), on 3 June 2003.

4.- Conclussions. If we do a literal interpretation of the law, the application of the quotation exception will take place in very few cases. To allow quotations without profit aims respecting right holders in Internet? To state a remuneration right for the author here?

Thank you very much for your attention!