[A2k] new study: Conceiving an International Instrument on Limitations and Exceptions to Copyright, by P. Bernt Hugenholtz and Ruth L. Okediji

[Vera Franz]

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Conceiving an International Instrument on Limitations and Exceptions to
Copyright
by Bernt Hugenholtz and Ruth Okediji
A new study by P. Bernt Hugenholtz and Ruth L. Okediji examines policy opti=
ons
and modalities for framing a new international instrument on limitations an=
d
exceptions to copyright. The authors, considering the current international
copyright acquis as their general starting point, evaluate options for the
design of such an instrument, including questions of political sustainabili=
ty
and institutional home. The study is online at <www.ivir.nl/publicaties/hug=
enholtz/finalreport2008.pdf[1]>.
See below for the Executive Summary.
P. Bernt Hugenholtz is Professor of Intellectual Property Law & Director of
the Institute for Information Law (IViR), University of Amsterdam. Ruth L.
Okediji is William L. Prosser Professor of Law & Solly Robins Distinguished
Research Fellow, University of Minnesota Law School.
The study was supported by the Open Society Institute.
*
CONCEIVING AN INTERNATIONAL INSTRUMENT ON
LIMITATIONS AND EXCEPTIONS TO COPYRIGHT
P. Bernt Hugenholtz & Ruth L. Okediji
EXECUTIVE SUMMARY
The task of developing a global approach to limitations and exceptions (=E2=
=80=9CL&E=E2=80=99s=E2=80=9D)
is
one of the major challenges facing the international copyright system today=
.
As mechanisms
of access, L&E=E2=80=99s contribute to the dissemination of knowledge, whic=
h in turn
is essential for
a variety of human activities and values, including liberty, the exercise o=
f
political power, and
economic, social and personal advancement. Appropriately designed L&E=E2=80=
=99s may
alleviate the
needs of people around the world who still lack access to books and other
educational
materials, and also open up rapid advances in information and communication
technologies
that are fundamentally transforming the processes of production, disseminat=
ion
and storage of
information. As new technologies challenge copyright=E2=80=99s internal bal=
ance, and
as the costs of
globalization heighten the vital need for innovation and knowledge dissemin=
ation,
a
multilateral instrument that can effectively harness various national
practices with regard to
L&E=E2=80=99s, and that can provide a framework for dynamic evaluation of h=
ow global
copyright
norms can be most effectively translated into a credible system that
appropriately values
author and user rights, is a necessity. This paper examines policy options =
and
modalities for
framing an international instrument on limitations and exceptions to copyri=
ght
within the
treaty obligations of the current international copyright system. We consid=
er
this
international copyright acquis as our general starting point, and evaluate
options for the
design of such an instrument, including questions of political sustainabili=
ty
and institutional
home.
Part I analyzes the structure of limitations and exceptions under the Berne
Convention
and sketches the rationale for a multilateral approach to the question of
limitations and
exceptions. In part II we explore flexibilities inside the international co=
pyright
acquis,
review the three-step test and assess its import for the validity of a
proposed international
instrument on L&E=E2=80=99s, particularly given the expansion of the test i=
n the
TRIPS Agreement
and the interpretive jurisprudence of the WTO dispute panels. Here we obser=
ve
that since the
conventional minimum rights are incomplete and imprecisely defined, while
remaining
largely immune to the application of the three-step test, contracting State=
s
are left with
considerable flexibilities. Following a discussion of the limitations
permitted under the
Berne Convention, we then turn to the =E2=80=9Cthree-step test=E2=80=9D tha=
t governs L&E=E2=80=99s
to the right of
reproduction (BC) and other minimum rights in the TRIPS and WCT. As is
demonstrated,
this obstacle to limitations and exceptions is, perhaps, less insurmountabl=
e
than is often
believed. Limitations and exceptions that (1) are not overly broad, (2) do =
not
rob right holders
of a real or potential source of income that is substantive, and (3) do not=
 do
disproportional
harm to the right holders, will pass the test. The test does not prescribe =
a
template for any
preferred system of national limitations and exceptions. The test most like=
ly
permits both
discrete European-style limitations and broader fair-use-style exemptions, =
or
possibly a
combination of both.
In effect, despite over a century of international norm setting in the fiel=
d
of copyright,
L&E=E2=80=99s have largely remained =E2=80=9Cunregulated space.=E2=80=9D No=
thing in the
international acquis would
prevent parties to the Berne Union, the WCT or the WTO from entering into a
special
agreement listing in an exhaustive or enumerative manner those copyright
limitations that are
permitted within the confines of the three-step test. One could imagine suc=
h
an instrument as
containing a preamble and a number of provisions, divided into several chap=
ters,
e.g.: (1)
Exclusions from protection (excluding, for instance, facts, ideas, laws and
government
works); (2) Limits to economic rights (permitting, for instance, exhaustion
and various nonpublic
acts of communication); and (3) Limitations and exceptions proper (enumerat=
ing
both
mandatory and optional L&E=E2=80=99s). Only the norms listed in the latter =
part
would have to
comply with the three-step test. This could be guaranteed by including a
general provision
obligating contracting States to subject any transpositions of the L&E=E2=
=80=99s
listed in the
instrument to the three-step test. A preamble might then offer guidance to =
the
contracting
States in interpreting the test.
In part III we discuss the benefits and costs of alternative frameworks for=
 a
possible
international instrument. The framework of human rights bears some promise =
for
an
instrument on limitations based, in particular, on core fundamental freedom=
s,
such as
freedom of speech and right to privacy. The framework of competition law ma=
y
provide the
context for international norms on compulsory licensing concerning, for
instance, software
interoperability. The framework of consumer law has obvious potential for
protecting
consumers against unfair terms in standard licensing agreements, and might
contain norms
that make private copying freedoms =E2=80=98click-wrap resistant=E2=80=99. =
However, none
of these regimes
has the capacity to encompass the entire spectrum of L&E=E2=80=99s associat=
ed with
the mature
copyright system. Neither of these legal domains would approach the balance
sought by an
international codification of L&E=E2=80=99s in the same way, with the same =
broad
scope or with the
same outcome. We therefore believe that such an instrument should preferabl=
y
be framed in
copyright law. Nevertheless, these alternative regimes do deserve to be
seriously explored,
since there are clear strategic advantages to be gained from so-called
=E2=80=9Cregime shifting=E2=80=9D.
Finally, in part IV we set out in preliminary fashion the basic contours of=
 a
multilateral instrument on L&E=E2=80=99s. Considerations of feasibility, po=
litical
sustainability, and
normative priorities, among others, are briefly explored and then situated
along a continuum
of possible modalities for such an instrument. We then offer some prelimina=
ry
recommendations on the way forward.
A new international instrument on L&E=E2=80=99s offers a unique opportunity=
 to
coordinate,
harmonize and balance the heightened (and new) standards of protection set =
forth
in the
successive Berne Convention Revisions, the TRIPS Agreement and the WIPO
Internet
Treaties. International harmonization of L&E=E2=80=99s present in national =
copyright
laws would
diminish the reliance on national courts for the interpretation of
multilateral accords,
therefore augmenting the benefits of substantive rights harmonization. A
global approach to
L&E=E2=80=99s would further help: i) to facilitate transborder trade, both =
online
and in traditional
media, by eliminating inconsistency and uncertainty and encouraging uniform=
ity
of standards
of protection and transparency; ii) to alleviate institutional weakness of
States who need
diffusion most (DC=E2=80=99s and LDC=E2=80=99s); iii) to counteract the rec=
ent shift to
bilateralism and
regionalism in international copyright policymaking and; iv) to constrain
unilateral ratcheting
up of global standards. A new international instrument with a broad members=
hip
offers an
opportunity to eliminate anticompetitive effects associated with differing
levels of protection
across national jurisdictions while also consolidating recent gains in
integrating public
interest goals in the international copyright system.
The minimum goals of an international approach to L&E=E2=80=99s would inclu=
de: i)
elimination of barriers to trade, particularly in regard to activities of
information service
providers; ii) facilitation of access to tangible information products; iii=
)
promotion of
innovation and competition; iv) support of mechanisms to promote/reinforce
fundamental
freedoms; and v) provision of consistency and stability in the internationa=
l
copyright
framework by the explicit promotion of the normative balance necessary to
support
knowledge diffusion. Ideally, an international instrument on L&E=E2=80=99s =
must: a)
be flexible; b)
leave some room for cultural autonomy of national states, allowing diverse
local solutions;
and c) be judicially manageable.
We believe that to restore balance to the international copyright regime, a
multilateral
solution =E2=80=93 as opposed to bilateral approaches =E2=80=93 is necessar=
y. But at the
same time regional
experimentation allowing for incremental development of L&E=E2=80=99s among
like-minded
countries should also be encouraged. We also note that since L&E=E2=80=99s =
are
inherently a
component of any claim for enforcement, there may exist interesting
opportunities to include
within the scope of the instrument linkages to enforcement concerns that
occupy most
developed countries.
Finally, we recommend a global instrument on L&E=E2=80=99s to be cast, at l=
east
initially, in
soft law. Soft law agreements are easier to negotiate and adapt to future
circumstances as the
need arises. Moreover the norms of a soft law instrument might in the cours=
e
of time evolve
into a hard law treaty. We believe that a joint initiative between WIPO and
the WTO could be
an ideal and appropriate expression of a soft law modality with real impact
for collective
action on an international instrument on L&E=E2=80=99s.


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=3D=3D=3DReferences:=3D=3D=3D
  1. http://www.ivir.nl/publicaties/hugenholtz/finalreport2008.pdf