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

[Chris Friend]

Hi List,

I am having some trouble in routing, through the link that Vera provided,
to the full PDF document.


WBU is keen to read this and consult within its copyright group before I
come to Geneva on Sunday for the SCCRR next week and so I would very much
appreciate it if anyone, the authors or others, could Email attach an
accessible PDF or an MS Word copy of the full paper.

With many thanks for some help,

Chris.

Christopher E.B. Friend MBE FInstF
Chair, WBU Copyright and Right to Read Working Group


-----Original Message-----
From: a2k-admin@lists.essential.org [mailto:a2k-admin@lists.essential.org]
On Behalf Of Vera Franz
Sent: 07 March 2008 12:02
To: ipr&publicdomain; a2k@lists.essential.org
Subject: [A2k] new study: Conceiving an International Instrument on
Limitations and Exceptions to Copyright, by P. Bernt Hugenholtz and Ruth L.
Okediji

[ Converted text/html to text/plain ]
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 options and modalities for
framing a new international instrument on limitations and 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 sustainability and
institutional home. The study is online at
<www.ivir.nl/publicaties/hugenholtz/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 ("L&E's") is
one of the major challenges facing the international copyright system today.
As mechanisms
of access, L&E's contribute to the dissemination of knowledge, which in turn
is essential for a variety of human activities and values, including
liberty, the exercise of political power, and economic, social and personal
advancement. Appropriately designed L&E's 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, dissemination and storage of information. As new technologies
challenge copyright's internal balance, and as the costs of globalization
heighten the vital need for innovation and knowledge dissemination, a
multilateral instrument that can effectively harness various national
practices with regard to L&E's, and that can provide a framework for dynamic
evaluation of how 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 copyright
within the treaty obligations of the current international copyright system.
We consider this international copyright acquis as our general starting
point, and evaluate options for the design of such an instrument, including
questions of political sustainability 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 copyright acquis, review the three-step test and
assess its import for the validity of a proposed international instrument on
L&E's, particularly given the expansion of the test in the TRIPS Agreement
and the interpretive jurisprudence of the WTO dispute panels. Here we
observe that since the conventional minimum rights are incomplete and
imprecisely defined, while remaining largely immune to the application of
the three-step test, contracting States are left with considerable
flexibilities. Following a discussion of the limitations permitted under the
Berne Convention, we then turn to the "three-step test" that governs L&E's
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 insurmountable 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 likely 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 field
of copyright, L&E's have largely remained "unregulated space." Nothing 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 such an instrument as
containing a preamble and a number of provisions, divided into several
chapters,
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 (enumerating both mandatory and optional L&E's). 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's 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 freedoms, such as freedom of speech and right to privacy. The
framework of competition law may 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 'click-wrap resistant'. However,
none of these regimes has the capacity to encompass the entire spectrum of
L&E's associated with the mature copyright system. Neither of these legal
domains would approach the balance sought by an international codification
of L&E's in the same way, with the same broad scope or with the same
outcome. We therefore believe that such an instrument should preferably 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 "regime shifting".
Finally, in part IV we set out in preliminary fashion the basic contours of
a multilateral instrument on L&E's. Considerations of feasibility, political
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 preliminary recommendations on the way
forward.
A new international instrument on L&E's 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's 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's would further help: i) to facilitate transborder trade,
both online and in traditional media, by eliminating inconsistency and
uncertainty and encouraging uniformity of standards of protection and
transparency; ii) to alleviate institutional weakness of States who need
diffusion most (DC's and LDC's); iii) to counteract the recent 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 membership 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's would include: 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 international copyright
framework by the explicit promotion of the normative balance necessary to
support knowledge diffusion. Ideally, an international instrument on L&E's
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 - as opposed to bilateral approaches - is necessary.
But at the same time regional experimentation allowing for incremental
development of L&E's among like-minded countries should also be encouraged.
We also note that since L&E's 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's to be cast, at least
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 course 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's.


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===References:===
  1. http://www.ivir.nl/publicaties/hugenholtz/finalreport2008.pdf

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