最低限度（拉丁語：De minimis），意思是「關於最小的事物」，通常在術語「de minimis non curat lex」（對屑事法律不以為意）中使用 。由於對版權作品的「最低限度」使用微不足道，因此不需要版權擁有者的同意。
最低限度是一個習慣法的概念，源於格言「de minimis non curat lex」，通常被翻譯為「對屑事法律不以為意」。某些技術上違反法律的情況被認為是瑣碎且無關緊要的，因此法院可以裁定其根本不應該將其視為違反法律。該概念適用於法律的許多分支，但是在這裡我們僅考慮其在版權法的應用。
If proved in court, de minimis can be a complete defence to a copyright infringement action. It is not simply that an infringer can get away with some things without much chance of being sued due to the high cost of litigation; rather, that if the copying is de minimis the copier is not in fact breaking the law at all.
Assume we have a photograph with a copyright-protected poster in the background. There are two copyrights involved: that of the photographer and that of the poster-designer, and both may subsist independently. In taking the photograph and uploading it to Commons, the photographer will of course be making a copy of the poster design, and without consent that will generally be an infringement and hence not allowed. The fact that the photographer has created a new copyright of their own does not prevent the poster copyright from being infringed, and that is so even if the photograph displays a high level of originality itself.
However, if the poster is entirely incidental to the overall subject-matter of the photograph, the copying may be considered de minimis (perhaps the poster takes up a small, insignificant part of the image, is entirely out of focus compared with the main subject, or is largely hidden in the background). In other words, a court would not be quick to uphold a claim of copyright infringement just because a photographer happened to include accidentally and incidentally a copyright-protected poster.
In determining whether the copying was sufficiently trivial, the court will consider all the circumstances. So, for example, if the poster forms an essential part of the overall photographic composition, or if the photograph was taken deliberately to include the poster, there is likely to be copyright infringement, and it is no defence to say that the poster was 'just in the background'. If the existence of the poster was the reason the photograph was taken in the first place, copyright infringement cannot be avoided by additionally including within the frame more of the setting or the surrounding area.
If the existence of the poster makes the image more attractive, more usable, or liable to cause more than insignificant economic damage to the copyright owner, then a de minimis defence to a copyright-infringement action will probably fail.
It may be relevant how the image is described or classified: it will be difficult to argue de minimis if the photograph is described as illustrating "an advertising poster" and is placed within the category Advertising posters.
A useful test may be to ask whether the photograph would be as good or as useful if the poster were to be masked out. If no, then it is difficult to argue that the poster is actually de minimis, even if the poster is small and is "in the background".
Variations in laws and in uses of works mean that firm rules are not possible. As a general guideline, however, a file containing copyrighted work X is less likely to satisfy de minimis the more of these it meets:
- the file is in use to illustrate X
- the file is categorised in relation to X
- X is referenced in the filename
- X is referenced in the description
- X cannot be removed from the file without making the file useless
- from other contextual clues (eg by comparison with a series of uploads by the same uploader) X is the reason for the creation of the file.
Note: de minimis consideration applies to a specific image composition. Significant cropping to focus on the copyrighted work can very easily turn a "probably OK" into a "probably not OK".
|#||Case can be considered de minimis||Description|
|1||OK Yes, definitely||Copyrighted work X is visible, but not identifiable.
|Copyrighted work X is identifiable, but is an unwanted intrusion to the image subject which unfortunately cannot easily be removed.|
|Copyrighted work X is identifiable, but is a small part of a larger work, so that the larger work cannot easily be shown without showing X. X is a part of the larger work, and its inclusion is unavoidable.
|Copyrighted work X is identifiable and an unavoidable part of the image subject, but is not essential to the subject (blacking it out would not make the file useless).
Copyrighted work X is identifiable and an unavoidable part of the subject, and is essential to the subject (e.g. blacking it out would make the file useless) but the work is shown in insufficient detail and/or with insufficient clarity, so de minimis may apply.
|Copyrighted work X is a key part of the subject (e.g. it is the reason for taking the photo). Removing it would make the derivative work radically different, but potentially still useful.
|Copyrighted work X is the central part of the subject (e.g. it is the reason for taking the photo). Removing it would make the derivative work useless.|
- Once a work has been lawfully published, its author may not prohibit: [...] 2°. reproduction and communication to the public of a work shown in a place accessible to the public where the aim of reproduction or communication to the public is not the work itself [...].
Subsection 30.7 of the Canadian Copyright Act, 1985 states:
Copyright Directive (Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society allows for de minimis exception in Art. 5(3)(i):
It is not an infringement of copyright to incidentally and not deliberately
(a) include a work or other subject-matter in another work or other subject-matter; or
(b) do any act in relation to a work or other subject-matter that is incidentally and not deliberately included in another work or other subject-matter.
- Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases: […] incidental inclusion of a work or other subject-matter in other material.
Under the generic conditions of Article 5(5):
- The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightsholder.
French case law admits an exception if the copyrighted artwork is "accessory compared to the main represented or handled subject" (CA Paris, 27 octobre 1992, Antenne 2 c/ société Spadem, « la représentation d'une œuvre située dans un lieu public n'est licite que lorsqu'elle est accessoire par rapport au sujet principal représenté ou traité »). Thus ruling #567 of March 15, 2005 of the Court of Cassation denied the right of producers of works of arts installed in a public plaza over photographs of the whole plaza:
- Because the Court has noticed that, as it was shown in the incriminated images, the works of Mr X... and Z... blended into the architectural ensemble of the Terreaux plaza, of which it was a mere element, the appeals court correctly deduced that this presentation of the litigious work was accessory to the topic depicted, which was the representation of the plaza, so that the image did not constitute a communication of the litigious work to the public.
French case law states that the said artwork must not be intentionally included as an element of the setting: its presence in the picture must be unavoidable (CA Versailles, 26 janvier 1998, Sté Movie box c/ Spadem et a.):
- It can be considered as an illicit representation of a statue by Maillol, the broadcasting of a commercial in which it appears, as it was not included in a film sequence shot in a natural setting—which would explain the brief and non-essential to the main subject, appearance of the sculpture, which is set in the Tuileries gardens, but used as an element of the setting.
The first step in assessing whether a particular use of a work is covered by s 57 is to determine the actual (primary) subject matter reproduced, distributed, or communicated to the public. The primary subject matter does not itself need to be protected by copyright.To qualify under s 57, the work must not only "fade into the background" or be of "subordinate significance" relative to the primary subject matter; rather, it must not even attain marginal or minor significance.
According to the Federal Court of Justice, this is the case
- if it could be omitted or replaced and the average observer would not notice it (or, in the alternative, the overall impression of the primary subject matter would not be at all affected); or
- if, in light of the circumstances of the case, it bears not even the slightest contextual relationship (inhaltliche Beziehung) to the primary subject matter, but rather is without any significance to it whatsoever due to its randomness and arbitrariness.
The Federal Court of Justice also provided a (non-exhaustive) list of examples where it is "regularly impossible" that the use of a work qualifies as de minimis:
- The work noticeably impacts the style or mood conveyed (erkennbar stil- oder stimmungsbildend);
- the work underscores a particular effect or statement;
- the work serves a dramaturgic purpose; or
- the work is characteristic in any other way.
Note that whether the work can be replaced with another work is relevant only to the extent that if an average observer of the primary subject matter would not notice the work in question because it can be arbitrarily replaced or omitted, this supports a finding of immateriality (see above). However, as soon as it has been established that the work is part of the overall concept (say, because it impacts the mood of the picture), it no longer matters if the work could be replaced: Section 57 does not apply.
Examples of de minimis use from court cases:
There are very few court decisions discussing the German de minimis provision and the 2014 decision by the Federal Court of Justice, which set out the tests expounded above, was the first by Germany's highest court of civil jurisprudence that revolved around s 57. In the case at issue, the Court looked at a photograph in a furniture catalogue depicting several furniture items for sale and a painting on the wall in the background (pictured here, p 3). The Court held that the publisher could not rely on s 57 for its use of the painting after the lower court found that the painting added a "markedly contrasting colour accent". The Court deemed this sufficient to rule out an immaterial use pursuant to s 57. In another decision, the Federal Court of Justice held that the use of a picture of a Spanish city as part of a high-school student's essay on that city does not qualify as de minimis.
In light of the 2014 judgement, older decisions by lower courts will need to be viewed with some caution. That being said, the use of a photograph of an individual wearing a T-shirt with a protected design on the cover page of a magazine (pictured here) was held by the Munich Higher Regional Court in 2008 to fall within the definition of use as an immaterial supplement because the design did not bear any contextual relationship to the primary subject matter due to its randomness and arbitrariness.
- The copyright in a work is not infringed by its inclusion in an incidental manner in another work.[28/2000 Sec.52(1)]
- A work shall not be regarded as included in an incidental manner in another work where it is included in a manner where the interests of the owner of the copyright are unreasonably prejudiced.[28/2000 Sec.52(3)]
According to Pascal Kamina, the Irish legislation is similar to the legislation in the United Kingdom from 1988.
- An incidental use of a work by way of including it in a photographic work, in a cinematographic work or in a sound recording, as well as the use of a such work in which the work was thus incidentally contained, is permitted; In this matter the deliberate inclusion of a musical work, including its accompanying lyrics, or of a sound recording embodying such musical work, in another work, shall not be deemed to be an incidental use.[2007-2011 Sec.22]
Copyright Act Article 30-2, amended in 2012, states:
- Article 30-2: When creating a copyrighted work of photography, sound recording or video recording, other copyrighted items that are incidental subjects of the work because they are hard to be separated from the item that is a subject of the work may be copied or translated along the work being created (only if they are minor components of the work being created). However, if, considering the kinds of the incidentally included works and the manner of the copying or translation, it unfairly is prejudicial to the interest of the copyright holders of the incidentally included works, they may not.
- a reference to the doing of an act in relation to a work or other subject-matter shall be read as including a reference to the doing of that act in relation to a substantial part of the work or other subject-matter; and
- a reference to a reproduction, adaptation or copy of a work shall be read as including a reference to a reproduction, adaptation or copy of a substantial part of the work, as the case may be.
Therefore, acts done in relation to insubstantial parts of a work or other subject-matter do not breach copyright.
Article 20a of the copyright law as of 2017 says:
- It is allowed for a film or television program to include copies of works of art or public performances and transfer the artwork to the public, as long as the copy is of secondary importance with respect to the film or television program content. This may be done with artwork that appears in the background of, or otherwise forms an insignificant portion of an image.
These are 不可以:
Section 31 of the UK Copyright, Designs and patents Act 1988, as subsequently amended in 2003, states that:
- Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film, or broadcast.
"Artistic work", as defined within the act, includes photographs.
The United States courts interpret the de minimis defence in three distinct ways:
- Where a technical violation is so trivial that the law will not impose legal consequences;
- Where the extent of copying falls below the threshold of substantial similarity (always a required element of actionable copying); and
- In connection with fair use (not relevant here, since Commons does not allow fair use images).
It is the first of these that is often of particular concern on Commons.
Crops of de minimis images
Since an image which is allowable under the de minimis principle must of necessity include some copyright material, it follows that such images cannot be cropped at will. For the case of a photograph which includes a poster, even if the photographer has a defence against infringement on the de minimis principle, that does not negate the original poster-designer's copyright. If someone takes the photograph and crops it so that only the poster remains, the de minimis defence is no longer available, as the poster design then becomes an essential part of the crop. So, the cropped version infringes and cannot be allowed on Commons.
Note that the mere fact that an image allowable under de minimis may be cropped to create one which is not allowable does not imply that the original work is not de minimis after all. Even very high resolution images, in which incidental details can be reliably recovered and magnified, should be viewed as a whole from a normal viewing distance when considering whether de minimis applies.
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