Tobias Schonwetter, discusses the fallacies of 'international copyright' and how the '3 step test' lies at the heart of understanding how to support access to knowledge.
Although admittedly for very diverse reasons, I assume that the readers of this column are united in the aim to facilitate access to creative material and to reduce restrictions in this regard. And without a doubt, a number of valuable ideas have been brought forward in recent years. Yet, the legal framework against which such ideas have to be tested is regrettably often overlooked or, even worse, deliberately ignored: copyright law. If at all addressed in a discussion, the most benign term I have come across for this area of law from a non-lawyer has been 'exotic' even though, of course, lawbreaking ideas are a priori foredoomed regardless of how coherent they might sound at first.
Against this backdrop it does not come as a surprise that the most prominent and widespread initiatives in this context were penned by persons with some sort of legal background, such as Stanford law professor Lawrence Lessig of Creative Commons. Knowing the law simply remains the best way to efficiently deal with its impacts.
Do not get me wrong here though. All this does by no means mean that our current copyright laws are all but fair, just and especially up-to-date. However, it is desirable to either play by the rules we have or to fight specifically for a change of the law.
Though this is not the place for a general introduction to copyright law it seems to be advisable to point out some key elements here. Most importantly, there is no such thing as 'international copyright' that will automatically protect a work throughout the entire world. Protection against unauthorized use in a particular country depends essentially on the national laws of that country. Yet, over the past 200 years, a significant harmonisation of the countries' copyright laws has taken place, especially through the conclusion of bi- and multilateral treaties (including Free Trade Agreements). Those treaties usually contain minimum standards for the protection of copyrighted works. As a result, copyright protection comes into being in most countries automatically after a somewhat original idea has been expressed or manifested. Moreover, the majority of copyrighted works are in principle protected for at least 50 years after the author's death. However, numerous countries have extended the term of protection well beyond 50 years; for example, the protection term for selected works in Mexico is now life of the author plus 100 years!
At the same time, the international agreements contain a number of flexibilities, especially copyright limitations and exceptions, in order to strike a fair balance between the often competing interests of authors/right-holders and users. The utilisation of these flexibilities is one of the most promising ways for achieving the initially mentioned goal of a rather unrestricted access to creative material. Yet, almost all of the relevant copyright treaties contain, in turn, an important restriction in this regard called the 'three-step test'.
According to the test, limitations and exceptions in national copyright laws are only allowed (1) in certain special cases, (2) that do not conflict with the normal exploitation of the work, and (3) that do not unreasonably prejudice the legitimate interests of the author/right-holder. It is exactly this international treaty obligation that is too often not sufficiently taken into account when a new idea is proposed to facilitate better access to material.
The often repeated call for an (unlimited/general) 'private use' exception is a good example in this regard. In the analog world, private copying was tedious as well as costly and usually resulted in a significant degradation in the quality of copies. A real conflict with the normal exploitation of a work was not to be feared and, consequently, lawmakers around the world were rather lenient when it came to the issue of introducing 'private use' exceptions into their copyright laws.
However, digital technologies have enabled private users to make unlimited and perfect copies in no time, that can now be globally distributed via the internet. In addition, Digital Rights Management systems created new ways for copyright holders to exploit their works, especially as a growing number of works can now be marketed directly to the end user. Against this backdrop, a general exception for any private copying could potentially conflict with the copyright holders' market opportunities and therefore violate the second prong of the international three-step test.
You ask what the answer to all this is? Well, we either need to lobby for a change of the three-step test or - perhaps more promising- for a liberal interpretation of the test's requirements. At this stage, however, I think raising awareness that there is such a test is the most important thing.
In the future, some of the aforementioned as well as other legal problems will be discussed here. As numerous issues are still controversially discussed it is inevitable that my personal view will become apparent time and again. Thus, I am looking forward to a lively discussion.
Please feel free to post comments to this article, or e-mail Tobias at tschonwe@law.uct.ac.za
tags: other 3-step-test international-copyright copyright digital-rights-management policy-law
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