1. The purpose of the provision of Sec. 42(e) of the Copyright Act is to prevent the necessity of obtaining the permission of the right holder when the subject matter of the right is used only coincidentally or casually and without a connection to the actual subject matter of the exploiting act and thus the right holder’s interests are not affected. 2. To be “non-essential” within the meaning of Sec. 42(e) of the Copyright Act, the accessory work must be an object that accrues even less than slight or subordinate significance. 3. A pictorial quotation that is admissible under Sec. 42(f) of the Copyright Act must recognisably serve the treatment of the copied work, for instance as evidence or as an aid to one’s own presentation. An internal connection must be created between one’s own work and the cited work. It must always be asked whether the purpose of the citation could not also have been fulfilled in a different way just as well, e.g. by obtaining the right holder’s permission to use the subject matter of protection or by presenting the right holder with their own words. Furthermore, it must also be tested whether the denial of the free use of the work fulfils an urgent social need. This does not include the mere gratification of curiosity or sensationalism.
IIC - International Review of Intellectual Property and Competition Law – Springer Journals
Published: Jun 4, 2018
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