Building an Index on Copyright User Rights

Third Global Congress,Cape Town, December 2013

Introduction

• Index will provide a measure for comparing as many countries as possible over as wide a time period as possible – Object: to have a measurement of change over time relative to

other countries• Results to be based on questionnaires answered by in-

country copyright experts (we hope to draw on the network of experts at the Global Congress)

• Can include measurements of the content of law (“on the books”) and perceptions of the law in practice

• Can have on meta index that can be broken into smaller pieces.

Raw Score

Sub-Weight

Overall Weight

Limitations and exceptionsSpecific 0 to X 0.6 } 0.33

General 0 to X 0.4

Limits to the strength of rights conferred 0 to X 1.0 0.33

Limits to enforcement and penalties 0 to X 1.0 0.33

Components

Proposed Index has three components that each affect copyright user rights. Researchers can use the index as a whole or focus on one of the parts.

Component on Limitations and Exceptions, Part 1: Specific L&Es

For areas where countries often have limitations and exceptions, i.e. – libraries, personal use, etc.

• Does your country have exceptions for ______?• What specific rights are covered?

– Reproduction– Performance– Display– Sale– Import– Export– Derivative works– Transmit by radio or video

Component on Limitations and Exceptions, Part 1: Specific L&Es

For areas where countries often have limitations and exceptions, i.e. – libraries, personal use, etc.

• Who can take advantage of them? (Questionnaire to include checkboxes)

• Is remuneration required?• When were they implemented? (provide law and year in

force)• Have judicial decisions affected how they are used in

practice? (provide ruling and year)• Have regulations affected how they are used in practice?

(provide regulation and year)

Component on Limitations and Exceptions, Part 1: Specific L&Es

1. Research, incl. reverse engineering 2. Use for educational purposes: – in the class room– production of course packs– for home study– translation– digital uses

4. Library and archival uses:– for institutional memory– for patron use

5. Orphan works

Component on Limitations and Exceptions, Part 1: Specific L&Es

6. Temporary or ephemeral copies?– Right to browse– Indexing/ search

7. Transformative uses (UGC)8. Parody, satire, pastiche9. Adaptations10. Quotation11. Personal/private uses12. Translation

Component on Limitations and Exceptions, Part 2: General Exceptions

In addition to itemized lists of limitations and exceptions, we will seek input on general exceptions often found in national copyright law. Two draft questions:

• Does your law include a general open and flexible exception that can be applied in cases not strictly covered by express limitations and exceptions – e.g. a general balancing test between users and owners interests?

• Does your law include the international “three-step test” as an additional factor that must be met to make use of general limitations and exceptions?

Limits to Strength of Rights Conferred

For each of the following, please answer “Yes” or “No,” and if “Yes,” enter the name of the relevant law and the year in which it was enacted.• Has your country entered a trade agreement with

TRIPS-Plus copyright requirements?– If yes, have the requirements of the trade

agreements been implemented? • Can user rights be overridden by contracts or licenses?

• Are fixation or other formalities necessary for

enforcement?

Limits to Enforcement & Penalties

For each of the following, please answer “Yes” or “No,” and if “Yes,” enter the name of the relevant law and the year in which it was enacted.• What is the maximum penalty for non-commercial

infringement greater than X (an amount based on local incomes)?

• Can criminal sanctions be applied to noncommercial uses?

• Can circumventing TPMs be a cause of action separate from infringement?

Limits to Enforcement & Penalties

In addition to information about law on the books, we also want to include information about the law in practice.• On a scale of 1 to 5, how difficult is it for

rightholders to enforce their copyrights for the following?– Software– Books– Film– Music