Global Network on Copyright Users’ Rights: Model Flexible Copyright Exception

The Global Network on Copyright Users’s Rights is a group of copyright experts from around the world assembled to generate policy options and expert guidance on the protection of users’ rights through flexible limitations and exceptions in national copyright laws, including to enable copyright laws to accommodate new uses and technologies that develop over time. This objective was outlined in the Washington Declaration on Intellectual Property and the Public Interest, drafted at the inaugural Global Congress on Intellectual Property and the Public Interest at American University Washington College of Law in August 2011. The Washington Declaration called for “discussion of employing ‘open-ended’ limitations in national copyright legislation, in addition to specific exceptions.” The Users’ Rights Network was created to answer that call.

The Primary Documents released here were drafted through a year-long consultative process with the Network’s founding members (below) — a broad group of copyright scholars and experts from across the spectrum of legal systems.

The Model Flexible Copyright Exception is designed to be adaptable in general form to most copyright laws – including those in common and civil law systems. The model could be included in a copyright law as a stand alone catch all exception. Or it could be added to an existing closed list of limitations and exceptions.

The model has two main parts. The core of the proposal is a general balancing test that could be added as a general clause to any existing list of limitations and exceptions. That provision states:

In addition to uses specifically authorized by law, any use that promotes general economic, social and cultural objectives is not infringing  if its character and extent is appropriate to its purposes and does not unduly prejudice the legitimate interests of the copyright owner, taking account of the legitimate interests of creators, users, third parties and the public.

The second part of the model provides a more specific set of balancing factors that could be adopted in addition to the general clause to give additional guidance in its interpretation and implementation.

Appendix I identifies a long list of Presumptively Lawful Uses created through a survey of limitations and exceptions included in many copyright laws around the world. It is noteworthy that no copyright law with a closed list of limitations and exceptions that we have reviewed include protection for every one of the purposes listed – an argument in itself for including a flexible exception in every copyright law. This list could be used to guide the interpretation of the general clause — indicating to users as well as courts and enforcement officials the kinds of uses that should be considered presumptively lawful under the general clause.

Appendix II provides examples of flexible exceptions from existing copyright laws or proposals from around the world. These examples of general clauses that provide flexibility in limitations and exceptions influenced the Network in its work. The examples may give policy-makers another starting point for considering the crafting of their own flexible exception clause.

Appendix III provides some short responses to frequently asked questions about flexible copyright exceptions.

The network has also engaged in subsequent research, analysis and technical assistance — some of the products of which are posted in the Additional Resources section below the Primary Documents.

 

 

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JOIN OR CONTACT THE GLOBAL EXPERT NETWORK ON COPYRIGHT USERS’ RIGHTS

The Users’s Rights Network will continue to provide guidance and information to advocates and government officials in countries undergoing copyright reform.

JOIN: If you are a copyright expert or advocate interested in being part of the network, please fill out this very short form.

CONTACT: If you are an advocate or government official interested in receiving technical assistance form the network, email your inquiries to pijip@wcl.american.edu

GLOBAL EXPERT NETWORK ON COPYRIGHT USERS’ RIGHTS FOUNDING MEMBERS

Lionel Bentley Christophe Geiger Pranesh  Prakash Ronan Deazley Carolyn Botero Dick Kawooya Hong Xue Pedro Mizukami Pedro Paranagua Daniel Gervais Denis Barbosa

Michael Geist Michael Birnhack Niva Elkin Caroline Ncube Lucie Guibault Bernt Hugenholtz Steph Von Gompel Fred Von Lohmann Martin Senftleben Michael Carroll Peter Jaszi

Sean Flynn Henning Ruse-Khan Rebecca Giblin Ellen Broad Lila Bailey Robert Burrell Alberto Cerda Gwen Hinze Meredith Jacob Ariel Katz Howard Knopf

Kaya Koeklue Ahmed Abdel Latif Oliver Metzger Sylvie Nerisson Mike Palmedo Matt Sag Pam Samuelson Alan Rocha de Souza Jennifer Urban Kimberlee Weatherall Peter Yu