There is increasing attention in international trade and copyright forums to the question of how international law should protect and promote copyright user rights. I presented the following options at this year’s Creative Commons Global Summit as examples of provisions that (at least partially) promote the organization’s mission of promoting “nothing less than realizing the full potential of the Internet — universal access to research and education, full participation in culture — to drive a new era of development, growth, and productivity.”

Existing models included in trade and other international agreements primarily serve two ends –

  1. protecting rights of countries to enact “fair use” rights, e.g. from the challenge that such exceptions could be held to violate the Berne “3-step test” as not being sufficiently tailored to “specific” cases, and
  2. affirmatively promoting user rights in copyrights systems, either through broad mandates to achieve “balance” or through mandatory exceptions for some categories of use.

The protective models normally only apply to “fair use,” without defining what elements of fair use they are protecting.

The promoting models are often highly ambiguous, leaving it possible that they could be met by any system of limitations and exceptions.

More robust models might seek to define the elements of fair use that should be protected from free step challenge, most importantly the element of fair use that the test is open to application to any work, activity and user. These elements are shared by many limitations and exceptions around the world, including in both civil law and common law systems. (For examples, see PIJIP’s Masterlist of Limitations and Exceptions Provisions in National Laws.) All countries have an interest in protecting open user rights from 3-step attack.

Better promotion clauses may seek to require sufficient openness and flexibility in limitation and exception systems to enable adaptation to new social, cultural and technological uses over time. One aspect of such promotion that is seen as increasingly important is to promote use rights for what is sometimes called the “non-expressive” or “non-consumptive” use of works. This refers to the many modern technological uses on the internet that use – but do not express or communicate works – as part of technological processes like machine learning, searching and indexing, transmitting, etc.

Below I have included a list of provisions from various agreements designed to promote copyright user rights:

Protecting Openness

US-Korea FTA

FN 11 Each Party shall confine limitations or exceptions to the rights described in paragraph 1 to certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder. For greater certainty, each Party may adopt or maintain limitations or exceptions to the rights described in paragraph 1 for fair use, as long as any such limitation or exception is confined as stated in the previous sentence.

Marrakesh Treaty, Art 10

  1. Contracting Parties may fulfill their rights and obligations under this Treaty through limitations or exceptions specifically for the benefit of beneficiary persons, other limitations or exceptions, or a combination thereof, within their national legal system and practice. These may include judicial, administrative or regulatory determinations for the benefit of beneficiary persons as to fair practices, dealings or uses to meet their needs consistent with the Contracting Parties’ rights and obligations under the Berne Convention, other international treaties, and Article 11.

Max Planck Declaration

  1. The Three-Step Test’s restriction of limitations and exceptions to exclusive rights to certain special cases does not prevent
    (a) legislatures from introducing open ended limitations and exceptions, so long as the scope of such limitations and exceptions is reasonably foreseeable; or
    (b) courts from
    – applying existing statutory limitations and exceptions to similar factual circumstances mutatis mutandis; or
    – creating further limitations or exceptions, where possible within the legal systems of which they form a part.

Bejing Treaty Art. 15, FN (TPMs)

10 Agreed statement concerning Article 15 as it relates to Article 13: It is understood that nothing in this Article prevents a Contracting Party from adopting effective and necessary measures to ensure that a beneficiary may enjoy limitations and exceptions provided in that Contracting Party’s national law, in accordance with Article 13, where technological measures have been applied to an audiovisual performance and the beneficiary has legal access to that performance, in circumstances such as where appropriate and effective measures have not been taken by rights holders in relation to that performance to enable the beneficiary to enjoy the limitations and exceptions under that Contracting Party’s national law.

Promoting Balance

TPP Art. 18.66

Each Party shall endeavour to achieve an appropriate balance in its copyright and related rights system, among other things by means of limitations or exceptions that are consistent with Article 18.65 (Limitations and Exceptions), including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled.

79 For greater certainty, a use that has commercial aspects may in appropriate circumstances be considered to have a legitimate purpose under Article 18.65 (Limitations and Exceptions).

RCEP (Leaked text)
Article 2.5(2)

[AU propose: 3. Each party shall endeavour to provide an appropriate balance in its copyright and related rights system by providing limitations and exceptions, consistent with paragraph 1, for legitimate purposes including education, research, criticism, comment, news reporting, libraries and archives and facilitating access for persons with disability.

4. For greater certainty, each Party may adopt or maintain limitations or exceptions to the rights described in paragraph 1 for fair use, as long as any such limitation or exception is confined as stated in paragraph 3]


Non-Expressive / Technological Uses


The Parties shall provide that temporary acts of reproduction which are transient or incidental, which are an integral and essential part of a technological process and the sole purpose of which is to enable (a) a transmission in a network between third parties by an intermediary, or (b) a lawful use of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right.