The idea of developing a set of minimum permitted uses was originally conceived by some members of the expert group that had drafted the “Declaration for a balanced Interpretation of the Three-Step Test in Copyright Law”. This Declaration, published in 2008, aimed at offering recommendations for a more flexible interpretation of the three-step test in copyright law to achieve more balance between all the interests involved. The initiative received broad international recognition. However, its impact on politics, jurisprudence and legislation remained limited. The Instrument goes one step further: Rather than stating mere recommendations, it includes concrete provisions to form an international treaty establishing a core of minimum permitted uses of works.
An international agreement on permitted uses in copyright law – based on the Instrument – would have many positive effects. Firstly, by obliging prospective contracting parties to adopt minimum permitted uses, the agreement would foster a balance of interests in copyright law. Secondly, it would generate a certain international harmonization of permitted uses. Thirdly, the existence of an international obligation to adopt minimum permitted uses might facilitate cooperation amongst countries who wish to assert their common interests in international negotiations on an equal footing with groups of countries that impose higher standards of protection. Such cooperation would enable individual states to resist attempts at coercion, on condition that they were all parties to the agreement. The Berne Convention – along with the WCT and WPPT – does not prevent members from committing to an international agreement that provides for further limitations and exceptions as long as the latter are compatible with the three-step test. Following the Declaration, the Instrument interprets the three-step test in line with the Berne Convention, and so member states are free to implement it collectively in a way that suits their domestic needs.
The Instrument is composed of three parts. Part A contains five groups of permitted uses categorized by purpose: I. Freedom of expression and information; II. Social, political and cultural objectives; III. Use of software; IV. Uses with minimal significance; and V. Free circulation. Part B defines general principles aimed at guiding Contracting Parties in the implementation of the Instrument in their national legal frameworks. Crucially, while Contracting Parties are obliged to implement effectively the permitted uses laid down in the Instrument, they are free to determine the method of implementation, whether by explicitly enumerating permitted uses, creating general clauses or basing them on a fair use or fair dealing legislation. Also, Contracting Parties are free to permit further uses of copyright-protected works, should their domestic needs require such national legislation. Part C deals with competition law as an external limit to copyright and is based on the idea that competition law and copyright law are complementary legal fields both pursuing the objective of increasing the market offer of creative works. In particular, the Instrument clarifies that copyright cannot be exempted per se from the general rules of competition law (Part C.I.). Finally, Explanatory Notes form an integral part of the Instrument.
The Instrument was published in IIC 52, 62–67 (2021). The publication of the instrument was complemented by an editorial outlining the project (IIC 52, 1-5 (2021))
English version: International Instrument on Permitted Uses in Copyright Law
Spanish version: Instrumento Internacional Sobre Usos Permitidos en la Ley De Derechos de Autor
Portuguese version: Instrumento internacional sobre usos permitidos na lei de direitos autorais
The Instrument’s Explanatory Notes are available in English on SSRN.