International Copyright Exceptions: Is US Policy About to Change?

For a number of years now, the World Intellectual Property Organisation has been discussing ways to make the international copyright framework more useful to developing countries. One aspect pushed by copyright critics and some developing countries is the concept of international minimum copyright exceptions. Whilst there are a very select few in existing treaties, the long list of optional exceptions in the EU Copyright Directive show why it is even harder to specify them.

Many countries therefore eye the notion of an international treaty on minimum exceptions with suspicion. Do we really need more than minimum levels of protection? Isn’t the so-called three-step-test, a general formula originating in the Berne Convention using three criteria, enough?

To date a large number of countries, including most industrialised nations, appeared in agreement that no such minimum exceptions are necessary or desirable. There was clear resistance to the concept. The test of their resolve came just before Christmas, when the WIPO Standing Committee on Copyright and Related Rights (SCCR) debated a possible treaty on minimum exceptions for persons with print disability.

At the meeting, the US delegation read out a statement outlining the new position of the US administration. For the first time, the US broke ranks with the European Union and others, and stated that it did not agree with those who believe “that any international consensus on substantive limitations and exceptions to copyright law would weaken international copyright law.” The statement suggests specific steps to facilitate the international exchange of “special formats” for print disabled. According to the statement the US is also “prepared to … establish further international consensus on specific exceptions and limitations for persons with print disabilities that should be part of national copyright laws. The statement is very carefully worded, and many observers are still trying to decipher whether it actually means that the US is now open to an international treaty on minimum exceptions. If so, then the publishing community has lost an important ally in the battle for copyright.

Is this the first glimpse of a substantial policy shift under the Obama administration? In Abu Dhabi we hope to learn more from the US publishers and lawyers to understand what the new US position may actually mean for all of us.
- Jens Bammel, Secretary General, International Publishers Association


When Exceptions Become the Rule:
The Future of Copyright, Exceptions and the Public Interest

Education, research, preservation and access to works for the visually impaired and other disabled persons are crucial public policy areas.

Publishers posit that the public interest in these areas is best served by encouraging the creation of new publications and innovative information services targeted at the beneficiaries of these policy areas. Sound copyright protection, in other words, accelerates the achievement of public policy goals and contributes to the delivery of targets in education and research. Without works, there would be nothing to access in the first place.

The opposite view is forcefully advanced by users and non-governmental organisations representing libraries, visually impaired and other constituencies: Non-commercial uses should, as a rule, be privileged and exempt from copyright protection for the greater good.

The calls go even further: Exceptions should trump not only exclusive rights of copyright, but Digital Rights Management (DRM), contracts and even national borders. In other words, Exceptions should rule, at least where important public policy goals are at stake.

These and other long-term copyright policy issues are at stake in the current WIPO negotiations surrounding copyright exceptions, access for visually impaired and the so-called “development” agenda.

But what is the proper role of exceptions? Can there be rights without exceptions? Should exceptions become the rule, at least in areas of “non-commercial” uses of copyrighted works? Exceptions are traditionally a defence, not an active right to demand content. Can they morph from defensive shields to swords? Can they have wings and travel beyond borders? Will this be a step forward or backward for creators and publishers?

IPA, with its illustrious Copyright Symposium held every four years, is the ideal forum to debate and gain insight into how the public interest will best be served through the evolving copyright system, and its exceptions.
 - Carlo Scollo Lavizzari, Legal Counsel, STM