The global harmonization of user rights: approaches towards an international instrument

Creative Commons Copyright Platform Working Group on User Rights’ Position Paper

Introduction

User rights are a key part of copyright systems. In shaping these mechanisms, jurisdictions should aim at protecting the public interest and at balancing the rights of creators with the fundamental rights of freedom of expression and information, the right to access and use works, learning and research activities and general access to culture. As they are an integral part of copyright, this paper will adopt the term “user rights” despite the acknowledgment that they are traditionally referred to as “exceptions and limitations”. The term “exceptions and limitations” will rather be used in referring to the specific user rights systems usually adopted in civil law countries.

Despite being an essential part of copyright, user rights still vary considerably between jurisdictions. There is a growing need for a global harmonization of user rights, especially due to the expanding online and trans-border use of copyrighted works.

The sole global harmonization of broad user rights that currently exists is the “three step test” established in the Berne Convention for the Protection of Literary and Artistic Works, which uses the traditional “exceptions and limitations” terminology. It provides three requirements in assessing whether the use of a copyrighted work is to be considered legitimate: user rights must apply only in (i) certain special cases, (ii) which do not conflict with a normal exploitation of the work, and (iii) which do not unreasonably prejudice the legitimate interests of the rights holders.

Despite its importance, the three step test is still insufficient in achieving the balance of interests and values an instrument for the global harmonization of user rights should aim for. The test leaves room for various interpretations and is inadequate in ensuring a minimum threshold for user rights. A more general reflection is needed to identify tools and ways to create a globally harmonized copyright ecosystem.

A new instrument, which sets global rules protecting user rights, is therefore needed. In shaping this instrument, it is necessary to take into account the existing systems of user rights at the national level. Currently, open-ended fair use and fair dealing approaches are frequent in common law countries, while civil law countries tend to adopt approaches which list specific exceptions and limitations; a number of countries also adopt hybrid approaches which merge elements of the previous systems. In attempting to create a global instrument for exceptions and limitations, one should try to learn from the qualities and deficiencies of each of these approaches, so as to shape rules most capable of protecting user rights.

Fair use and fair dealing

Fair use and fair dealing are affirmative defenses that provide users with the right to use copyright-protected works without permission or payment. A core feature of the fair use and fair dealing approaches, which are found primarily in common law countries with legal systems descending from the United Kingdom, is their application to any work, and a wide range of uses, by any user. Examples of purposes for which use may be fair may be provided; in some cases the purposes are limited to an exhaustive list. Both fair use and fair dealing purposes may include criticism, teaching, research, satire, and news reporting. Fair use and fair dealing doctrines may also provide factors to consider when determining whether a use is fair, though in some jurisdictions these factors are established through case law. In either case, factors commonly include the purpose of the use (including whether the use is transformative), the nature of the work, the amount or proportion of the work used, and the effect of the use on the potential market for the original.

Pros and cons

Fair use and fair dealing are typically general exceptions available for all types of users and applicable to all types of works. They can therefore cover a wide variety of activities, and a range of purposes. This flexible model is applied case by case through assessing a set of criteria enshrined either in law or in case law. This means fair use and fair dealing can be reasonably easily adapted to technological advances and to innovative uses of protected works, which is important as copyright affects a range of creative endeavors. Fair use and fair dealing are also often fairly similar across jurisdictions, making them harmonizable through smaller changes rather than major overhauls.

However, the flexibility and broad nature of fair use and fair dealing can make them difficult to interpret and apply, especially for individuals without legal experience or recourse to professional advice; this can be intimidating and lead to hesitation to rely on these provisions. Additionally, an individual’s assessment of the criteria for fair use or fair dealing, and even their conclusion that the exception is likely to apply, does not provide legal certainty and any use can be challenged by the copyright owner.

Statutory exceptions and limitations

In civil law systems, exceptions and limitations to copyright are the main legal instruments to balance the author’s right with the public’s fundamental right to access culture and knowledge.

Exceptions allow, under certain conditions, the use of the work freely without requesting previous authorisation or paying remuneration to the rights holder, who cannot oppose the use. Limitations, on the other hand, allow, under certain conditions and modalities, the use of the work subject to the payment of fair compensation to the right holders. Therefore, in this case, the exclusive right is transformed into a mere right to remuneration.

Pros and cons

Statutory exceptions and limitations offer users legal certainty to carry out their activities, effectively allowing all stakeholders to know what is or is not permitted by the law in advance. Exceptions and limitations leave less scope for interpretation than fair use and fair dealing, as they usually explicitly regulate the scope and modalities of application. In this regard, the positivity of exceptions and limitations is in providing legal clarity.

​​ The negative aspects of this kind of system are its rigidity and the fact that it complicates the encompassing of innovative uses. Since interpretation by analogy is not allowed, it may be hard to justify new uses under exceptions and limitations established in a different environment. Thus, if new needs arise, e.g., as a result of technological developments, it is not always easy to bring them within the scope of the exceptions and limitations.

Another negative aspect is the difficulty in applying exceptions and limitations in common law countries. As the legal system of these countries is characterized by case law, which is developed by judges through decisions of courts and similar tribunals, there may be some uncertainty even with very specific exceptions and limitations due to the possibility of interpretation by the courts.

Hybrid experiences

Besides the traditional approaches described above, a hybrid approach which combines the open endedness of fair use with statutory exceptions and limitations is also possible. The countries that adopt this hybrid approach may use both fair use or fair dealing as well as additional specific exceptions and limitations, such as exceptions for libraries, archives, and museums, criticism, comment, news reporting, teaching, scholarship, and research.

Several countries of common law tradition have codified more specific exceptions and limitations in their copyright acts in addition to fair use or fair dealing, while courts in some civil law countries have considered uses beyond those statutorily established as legal, as long as they fulfill certain criteria.

Pros and cons

The hybrid approaches may ensure the legal certainty of certain uses of copyrighted works by establishing statutory exceptions and limitations, while also allowing for the flexibility typical of the fair use and fair dealing approaches, which is especially important in a context of evolving technology. However, they can raise more uncertainty by increasing the variety of different models in use, causing a lack of clarity and consistency across jurisdictions, which is especially worrisome for cross-border uses.

The need for a for a global instrument

User rights in copyright, including systems of fair use and fair dealing, systems of statutory exceptions and limitations, and hybrid systems, are fundamental to freedom of expression and information. These user rights serve copyright’s public interest aims by balancing creators’ and copyright owners’ rights with those uses that benefit the broad public. In the modern interconnected world, it is necessary to harmonize the system of user rights worldwide to guarantee the effectiveness of their application and permit their exercise, such as in the fields of research, education and access to knowledge.

The European experience in creating an international instrument for user rights can serve as a reference in developing a global instrument for user rights. The Directive 2001/29/CE on copyright and related rights in the Information Society introduced a series of optional exceptions and limitations besides the only mandatory exception for the digital technical copy (e.g. cache copy). Then, the Directive 2019/790/EU on copyright and related rights in the single digital market introduced mandatory exceptions in specific areas that all the Member States must implement, with some room for discretion.

It is important to emphasize that in both cases the instrument used was a Directive, which is a legislative act that sets out the goals that all European Union countries must achieve, but leaves the choice of how to reach these goals to the Member States. Therefore, the Directive, by leaving a margin of flexibility to the Member States, makes the harmonization process less fluid and complete. In this sense, it should be noted that the Directive 2001/29/CE failed to achieve a complete harmonization by providing member states the option of implementing a series of non-mandatory exceptions and limitations. Even the mandatory exceptions and limitations set forth by the 2019 Copyright Directive were implemented in different manners by the European Union Member States. In fact, the national flexibility reduced the harmonization hoped for, making it clear that there is still a long way to go to accomplish a harmonized European ecosystem of exceptions and limitations.

The European experience teaches us that a global instrument for the international harmonization of user rights will have to deal with the challenges of the national implementation of such rights. A global mandatory minimum threshold for user rights must be followed by their effective protection at the national level.

User rights have been part of the agenda of the SCCR (WIPO Standing Committee for Copyright and Related Rights), for at least 15 years.
During the SCCR42 (that took place in Geneva from May 9th to 13th, 2022), the African Group proposed a Draft Work Program to ensure the preservation activities of libraries, archives, and museums, including the cross-border uses of preserved materials and uses by people with disabilities (SCCR/42/4). The African Group proposal provided important suggestions to achieve a global harmonization. Therefore, the Committee approved two actions, encouraging Member States to continue negotiating the proposal at the next SCCR in 2023. The approved actions provide that the Secretariat should invite experts presenting the problem of choice of law for cross-border uses of copyrighted works (with a case-study approach), at the next SCCR meeting; and implement inclusive and transparent consultation processes when developing tool kits which help Members craft laws and policies in supporting education, research, preservation of cultural heritage and cultural participation.
This is only a small step forward, but it shows that a global harmonization is strongly required from different regions of the world and has to become a common objective. The approved actions from SCCR42 also show possible paths to achieve this harmonization, through inclusive and transparent consultation processes and expert input.

At the global level, what is needed from the existing intellectual property organizations is a clear guidance on effective and consistent mandatory user rights, requiring all jurisdictions to implement them in similar enough fashion that uncertainty is removed for the increasing numbers of individuals working and creating across borders, and so that fundamental rights including freedom of expression and information, learning and research activities, and access to culture are supported by national and international copyright legislation. This will help to restore the balance between rights holders’ interests and the public interest at a global scale.

List of Contributors

This policy position paper is the product of one of the four global working groups established in 2021 by the Creative Commons Copyright Platform, a global network of copyright advocates and practitioners, engaging with an emerging set of challenges affecting the open ecosystem.

André Houang — CC Brazil

Deborah De Angelis — CC Italy

Jennifer Zerkee — Simon Fraser University

Laura Sinigaglia -CC Italy