Creative Commons Copyright Platform Working Group on User Rights’ Position Paper
The copyright system needs to be reshaped to benefit the public interest, to support socially legitimate uses and to provide solutions for multi-level conflict of interests. The interests of authors and rights holders should be balanced with the public interest, in particular access to knowledge, culture and information. Copyright laws shall, at a minimum, protect uses that foster freedom of expression and information, such as quotation, criticism, review, parody, pastiche and caricature, as well as uses that further societal and cultural goals, such as education and research, public interest activities run by libraries, archives and museums, and uses that benefit persons with disabilities. These uses form an integral part of copyright and shall be protected as rights, rather than as exceptions or limitations to copyright. Based on this understanding, this paper will refer to them as “user rights,” despite the acknowledgment they are traditionally referred to as “exceptions and limitations.”
Copyright laws are generally insufficient in protecting user rights and therefore in achieving their goal of protecting the public interest. International treaties, national laws and their interpretation by the courts tend to unduly favor rights holders over other interests inside the copyright system, such as those of users. These problems should be addressed at the national and international levels so as to ensure the copyright system protects user rights and the public interest.
Copyright laws shall be flexible to allow the protection and enforcement of user rights to promote the realization of fundamental rights
Copyright laws shall promote a neutral interpretation of available balancing tools, such as the three-step test, the conditions of which shall be considered as a whole in a comprehensive overall assessment and shall be interpreted in a manner that respects the legitimate interests of users. Permitted uses shall not be interpreted narrowly, but rather according to their objectives and purposes, on a case-by-case basis and in such a manner as to give effect to their underlying aims.
Copyright laws shall be drafted and interpreted in a way that does not affect or prohibit uses that have minimal economic significance or that do not unreasonably harm the legitimate interests of the author or rights holders.
Legitimate uses should be conceived as user rights rather than mere defenses and the exercise of these user rights shall not be subject to the rights holder’s authorization. Users should be able to enforce their rights.
Additionally, in the absence of user rights within the copyright system, courts should be able to rely on fundamental rights to legitimize the use of copyrighted works. In doing so, they should be able to apply international and national standards such as constitutional rights as limits to copyright outside the copyright system.
Lastly, user rights should be respected in both analog and digital environments. The principle of technological neutrality should be recognized by legislators and applied by the courts in copyright cases.
Copyright laws shall protect uses that serve freedom of expression and information
Copyright law strikes a balance between freedom of expression and the right to property. While the resolution of possible conflicts between these two fundamental rights has traditionally mainly been internalized through legal instruments within copyright, fundamental considerations beyond the copyright system have a greater role to play in ensuring this equilibrium.
Copyright laws shall protect uses which promote and preserve freedom of expression and information in both analog and digital environments comparably. Individuals shall have the right to use and share copyright protected materials when such use is founded on the exercise of fundamental rights. Effective user rights such as for quotation, news reporting, criticism or review, parody, pastiche or caricature, which are anchored in freedom of expression, are essential to balance the interests of both rights holders and users.
The application of a user right should enable the realization of its underpinning objective(s). Therefore, courts must consider fundamental freedoms when a user right rooted in human rights is invoked.
Copyright laws shall protect educational uses
The vast majority of copyright laws across the world are not aligned with the daily needs of the education community, particularly in a remote-teaching environment. Most of the provisions that protect educational uses of copyright protected materials are so narrow that it is not clear if they cover common activities, such as streaming a short video from a freely accessible platform during a class. Furthermore, these rules do not work the same way in every country, which creates legal uncertainty for teachers, promotes inequality among students and severely limits online activities as well as cross-border collaboration.
Copyright laws shall protect a diversity of educational uses — both digital and analog — of all types of copyrighted works and related subject matter. Educators and learners shall have the right to access and use protected materials for educational purposes in a variety of education settings, formal and informal, on premises and remotely, without technological barriers. Education rights shall be applicable according to the educational purpose of the use, and not be restricted to specific individuals and institutions conducting educational activities. It shall be permissible to use a work or other subject matter for educational purposes to the extent justified by the purpose and provided such utilization is compatible with fair practice.
Copyright laws shall protect research uses
The freedom to conduct research is essential to ensure freedom of expression and the fundamental rights to information and education. However, there is a lack of legislation permitting traditional and modern, analog and digital research methods, such as text and data mining (TDM).
New digital research methods are contributing to solving many of today’s most urgent social problems, from combating infectious diseases to monitoring hate speech and disinformation on social media. The undertaking of such research methods is contingent on the recognition and enforceability of user rights. However, few countries currently have the user rights necessary to permit TDM research.
To promote equity, validity, collaboration and other values in production of and access to research products and material, there is a need for all countries to permit any types of use, implicating both reproduction and communication rights, of any kind of work, by any user, for all research purposes.
Copyright laws shall protect the activities of galleries, libraries, archives and museums (GLAMs)
GLAMs are essential to preserve and pass on cultural heritage to new generations and play a central role in using digitization technologies to expand access to digital collections of cultural materials. Activities of preserving, collecting and promoting access to and dissemination of cultural works are not fairly and fully allowed by copyright laws in all countries. In some countries, these activities are also restricted by other laws preventing the reproduction of cultural heritage, even in the public domain.
GLAMs should be able to perform their activities across borders and should benefit from a limitation of liability for all acts carried out in good faith.
Any activities that GLAMs are allowed to conduct on their premises drawing on user rights should also be allowed online. Controlled digital lending (CDL) is a framework that provides a logical approach to the core set of fundamental user rights that all libraries need in order to be able to address inequalities. As such, it is a priority to enact these core user rights, such as for preservation, reproduction and lending. CDL itself is not a novel practice but has become more urgent and necessary in the context of a pandemic.
Copyright laws shall protect uses by persons with disabilities
Copyright law should ensure equal access to cultural works for people with disabilities and promote inclusivity, in line with the Convention on the Rights of People with Disabilities (CRPD). User rights aimed at ensuring equal access to people with disabilities should encompass a broad and non-exhaustive scope of disabilities, include all possible uses of works and be applicable to all exclusive copyright rights. The rights of reproduction and of creating derivative works in particular should be designed so as to allow works to be adapted in order to guarantee persons with disabilities’ fundamental right of access to knowledge and culture. Copyright law should avoid formality requirements, registration procedures and restrictive legislative interpretations of these user rights, which impose undue burdens or unequal treatment on people with disabilities and hinder their access to knowledge and culture. This is especially true for cross-border uses of works, for which there are currently significant requirements that hinder the activity of organizations aimed at ensuring equal access for people with disabilities globally.
Copyright laws should ensure a broad interpretation of the Marrakesh Treaty with a CRPD perspective and encourage cross-border exchange as a dynamic and direct practice between authorized entities and beneficiary persons from countries implementing the Treaty, without administrative barriers.
Copyright laws shall protect cross-border uses
International copyright law only requires national laws to protect the right to make quotations and certain user rights for the benefit of persons with disabilities that imply barriers to access to reading. Other legitimate uses that foster freedom of expression and information (such as parody, pastiche and caricature), uses by persons with other disabilities, uses for educational and research purposes, and uses by GLAMs are not harmonized at the international level. As a result, these user rights are not protected in every country and, when they are, they are subject to completely different treatments. This disparity creates barriers to cross-border sharing and use of copyrighted materials in the context of those fundamental activities.
A minimum level of international harmonization of user rights shall be achieved to secure the unhindered flow of knowledge and information across borders. In addition, copyright laws at the national, regional and international levels as well as bilateral and multilateral agreements should guarantee that, if a use of a copyrighted material is permitted under a user right or is legitimate in a jurisdiction, that use should also be permitted for the same purposes and under the same conditions in another jurisdiction.
Copyright laws shall prevent contractual overrides of user rights
Ensuring the realization of a user right’s objectives is closely intertwined with the ability to circumvent the limitation of a user right through contractual provisions. Contractual overrides represent an important challenge to the protection of freedom of expression, protection of users and the proper functioning of the copyright system in both digital and analog contexts.
Consequently, copyright laws shall prevent the ability to render the application of a user right ineffective by contract. As such, user rights, especially if anchored in fundamental rights, shall be declared mandatory, rendering contractual provisions which infringe this principle null and void. Copyright laws shall prevent contractual overrides of user rights in both digital and analog environments to preserve the careful balance struck by legislators between rights holders’ interests and those of users. The mandatory character of copyright user rights is even more relevant in a digital setting whereby a culture of ‘click-through’ contracts and other technological measures limiting the use of works can easily extend exclusive rights beyond their intended initial scope.
Copyright laws shall prevent technological overrides of user rights
As technological protection measures (TPMs) can endanger the exercise of user rights, the possibility of circumventing TPMs is essential in ensuring user rights and as such in protecting fundamental rights, such as the right to education and the right to culture.
The circumvention of TPMs should therefore be allowed whenever the use of the underlying work is legitimate, such as when this use is covered by a user right or when the work is in the public domain. The circumvention of TPMs should be authorized for the exercise of any user right, and not be restrained to only some user rights. In addition, as user rights and the public domain are essential components of copyright, rights holders should be made liable for the introduction of TPMs that hinder or prevent legitimate uses of works.
Conclusion
Currently, the vast majority of copyright laws hinder freedom of expression and freedom of information; jeopardize education, teaching and research, especially in remote and digital environments; harm the activities of galleries, libraries, archives and museums and inhibit their mission of preserving, collecting and promoting access and dissemination to cultural works; and do not enable equal access to people with disabilities.
Important changes in copyright are necessary to ensure user rights are protected and that copyright in turn achieves its goals of promoting access to culture and knowledge. A minimum level of international harmonization of user rights shall be achieved to secure unhindered flow of knowledge and information across borders. At the national level, lawmakers shall take all appropriate measures to respect, protect and fulfill these rights through rules that are technologically neutral, easy to understand and provide legal certainty to users. National copyright laws shall not subject permitted uses to excessive or unjustified additional conditions exceeding international obligations and reasonable requirements of fair practice. They shall promote the application of less specific, precisely-delineated provisions and more flexible and open-ended criteria to assess the fair balance between copyright, on the one hand, and freedom of information as well as any other legitimate public interests, such as promotion of education, science, and culture, on the other.
The user rights mentioned in this position paper do not constitute an exhaustive list. Organizations such as Creative Commons must not only push for the adoption of these rights nationally and internationally, but also envision new possible user rights that could be developed so as to ensure the right to access and use information, knowledge and culture.
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.
Ana Lazarova, Creative Commons Bulgaria
André Houang, Creative Commons Brazil
Ben Rice, Australian Digital Alliance
Brigitte Vézina, Creative Commons - Director of Policy
Deborah De Angelis, Creative Commons Italy
Diane Peters, Creative Commons US / Program on Information Justice and Intellectual Property, American University - Washington College of Law
Freyja Van Den Boom, Artist/Academic Researcher, EU
Kyle Copas, GBIF Secretariat - DK
Laura Sinigaglia, Creative Commons Italy
Max Mahmoud Wardeh, Creative Commons United Kingdom
Maxwell Beganim, Creative Commons Ghana
Program on Information Justice and Intellectual Property, American University — Washington College of Law
Rajeeb Dutta, Creative Commons India
Sabine Jacques, University of East Anglia UK
Teresa Nobre, Creative Commons Portugal / Communia
Virginia Ines Simon, Observatorio del Tratado de Marrakech en América Latina
The WG on user rights would also like to thank the CC Copyright Platform, the CC Community and others for their support and feedback.
