International agreements, national fair use legislation and copyright royalty collection agents

Julien Hofman
Department of Commercial Law, University of Cape Town

presented by Tobias Schonwetter

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     Last modified: September 19, 2006
     Presentation date: 10/31/2006 4:00 PM in NT Manchester
     (View Schedule)

Abstract
Article 10 of the WIPO Copyright Treat allows for national legislation to limit the rights of copyright holders 'in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author'. This gives the impression that countries are free to take account of their own circumstances and needs in how they allow such exceptions.

TRIPS and the national copyright royalty collection agents have changed this position. The agents appear to be setting their own uniform standard as to what is fair use and TRIPS has put in place international enforcement measures that can be invoked against countries that take a more generous view of the limits of fair use.

It seems inappropriate that private organisations should take over such an important function, one that the WIPO Copyright Treaty gives to national governments. This, however, seems unavoidable under the present legal arrangement. The paper will look at alternatives to this situation. In particular it will suggest an international agreement to lay down in detail what is legitimate fair use. Such terms could be required in the licences under which copyright information is provided in digital form.