Should There Be A Right To Copyright Exceptions?

from the something-in-the-air dept

Last month I wrote about how the Netherlands is looking to introduce new flexibilities into its copyright laws, based on some interesting research on copyright exceptions. There must be something in the air, because a wide range of other groups are contemplating exactly the same approach.

For example, the main document of the UK government's consultation on copyright (pdf) devotes no less than 65 pages to the area, proposing exceptions for private copying, preservation by libraries and archives, research and private study, text and data mining, parody, news reporting, and use by the disabled, among others.

On the other side of the globe, during the Melbourne round of the secret TPP negotiations, a group of high-powered tech companies have been urging the inclusion of copyright exceptions as part of that treaty. As Sean Flynn explains:

the Computers and Communications Industry Association (CCIA) -- representing tech companies like Google, Facebook, E-Bay and Yahoo -- has been circulating a new proposal for adding copyright limitations and exceptions to "permit the smooth functioning of the Internet." It is incredibly well researched and supported and includes some good ideas. My favorite among them is a proposal for mandatory flexible limitations and exceptions to copyright in every system:

"Such exceptions and limitations shall permit the utilization of works and other subject-matter to the extent justified by the purpose of free expression (including commentary, criticism, and news reporting), participation in the cultural life of the community, transformative use, teaching, research, scholarship, personal use, and the functioning of, and innovation in, the digital environment, provided that such utilization is consistent with fair practice."
Finally, and perhaps most surprisingly, the French copyright enforcement body, HADOPI, has released a detailed questionnaire on copyright exceptions (pdf in French) as part of its research into the subject. Here's the introduction explaining the thinking behind the move:
Exceptions to copyright and neighboring rights represent the search for a balance between the need to respect copyright and neighboring rights and that of allowing the use of works with areas of freedom for the benefit of users.

This balance seems challenged today. Indeed, the development of new technologies, leading to new uses of works, (internet, social networks, streaming, cloud, scanning ...) and blurring the line between private and public, calls into question a law developed in part for a completely different context, and insufficiently adapted to these new uses.

This challenge is twofold. First, from a legal viewpoint, the current texts on exceptions do not take into account these technical developments and current uses of works in a fully satisfactory manner. This results in an increasing reliance on rights other than intellectual property, in particular Community law, in order to circumvent imperfections (competition law, human rights ...). Secondly, in terms of use, the ease with which a work may be appropriated and transmitted seems to render meaningless the concept of exceptions and raises the question of their suitability for the current context.

It therefore seemed useful to Hadopi to undertake this project to take stock of the issues and, where appropriate, make recommendations to address shortcomings of the present system and attempt to define a more satisfactory balance representing a new consensus. This new balance would not be limited to amending and supplementing the exceptions to copyright and neighboring rights, it could aim to establish a "right to exception" or a "right of exception", including the development of an independent legal doctrine, enforceable before judges and on a par with intellectual property law.
That's pretty bold, and extremely welcome coming from this particular organization, which hitherto has seemed to be more aligned with the maximalist view of copyright. If even HADOPI can see the need for not just copyright exceptions, but a generalized right to exceptions, maybe there is hope after all.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: copyright, exceptions, fair use


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  1. identicon
    Anonymous Coward, 23 Mar 2012 @ 7:30am

    Re: This is odd

    Or in light of the growing public outrage over the draconian laws, negotiated in secret and illegally bought by the special interest groups, the governments may be providing lip service to the idea of balance in order to quell this outrage. Afterall, these are POLITICIANS and their constituents are pissed. Look carefully at the language put forth in these announcements...

    "First, from a legal viewpoint, the current texts on exceptions do not take into account these technical developments and current uses of works in a fully satisfactory manner. This results in an increasing reliance on rights other than intellectual property, in particular Community law, in order to circumvent imperfections (competition law, human rights ...)."

    They could easily be justifying the need for MORE draconian laws so it doesn't rely on other rights.

    "Secondly, in terms of use, the ease with which a work may be appropriated and transmitted seems to render meaningless the concept of exceptions and raises the question of their suitability for the current context."

    They could also secretly mean that if they are meaningless, then we don't really need them anymore do we?

    "It therefore seemed useful to Hadopi to undertake this project to take stock of the issues..."

    READ: Yeah we realize you are pissed and we'll agree to LOOK at it to pacify you until you go back to sleep.

    "...and, where appropriate, make recommendations to address shortcomings of the present system and attempt to define a more satisfactory balance representing a new consensus."

    READ: We'll decide what's appropriate and we'll make recommendations but not actually do anything unless it supports our agenda so that you calm down and go back to sleep.

    "This new balance would not be limited to amending and supplementing the exceptions to copyright and neighboring rights, it could aim to establish a "right to exception" or a "right of exception", including the development of an independent legal doctrine, enforceable before judges and on a par with intellectual property law."

    We COULD create a balance by adding a "right to exception" but we aren't going to say that we INTEND to do this since we are just saying this so that you will calm down and go back to sleep. Instead this is just a sweet dream for you to have when you do in fact go back to sleep.

    Words are cheap. Actions speak volumes. And given their previous actions, I think this sort of interpretation is more realistic. I hope they prove me wrong. Show me don't tell me.

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