Flexibilities under TRIPS

TRIPS provides for exceptions and limitations that may be included in national IP legislation. These exceptions may take two forms: (a) fair use or fair dealing and (b) statutory or compulsory licenses. Fair use refers to use of material without the copyright owner's permission that would not amount to an infringement—for example, using extracts of a book in teaching materials. The statutory or compulsory license approach envisages a specific scenario where a work may be freely reproduced after payment of a fixed royalty—for example, publishing a textbook not otherwise available in a country.

The Berne Convention, TRIPS and WIPO Copyright Treaty (WCT) stipulate that limitations or exceptions to copyright shall be confined to certain special cases; that they shall not come in conflict with normal exploitation of the copyright work and that they shall not unreasonably prejudice the legitimate interests of the copyright holder. This is known as the 'three-step test'. Each step makes it more difficult to grant limitations or exceptions to copyright. Historically, the three-step test was inserted into the Berne Convention only in relation to reproduction rights. However, TRIPS widened it to be applicable to all exclusive rights granted by the Berne Convention and TRIPS (Ryan 1999).

TRIPS provides only general parameters for exceptions. For example, Article 10(2) states:

It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided that such utilization is compatible with fair practice.

Thus, the question of what constitutes 'utilization… [of works] for teaching' is to be determined by national legislation, or by bilateral agreements between Union members. Article 10(2) sets the outer limits without stipulating quantitative limitations for instance. It is up to each country to interpret the provision to enable it to formulate essential exceptions for educational uses of material.

Since Article 9(2) of the Berne Convention and Article 13 of TRIPS allow nation states to determine the extent of the exceptions and limitations to copyright, policymakers must make optimal use of this available flexibility, keeping in mind the wider public policy consideration of making information and technology available to the public. This is particularly useful for educational materials which, with recent and ongoing revolutionary ICT changes, can be produced and accessed in a variety of modes. In many Asia Pacific countries where availability of educational infrastructure and educational materials of a high standard is a problem, distance learning and digital content are useful alternatives. However, as a recent study indicates, 'among the most important obstacles to realizing the potential of digital technology in education are provisions of copyright law concerning the educational use of content, as well as the business and institutional structures shaped by that law' (Fischer 2006). Librarians and educationists argue that governments should use the greatest flexibilities available within the TRIPS agreement to ensure that national copyright laws make adequate provisions for educational use of information (Wong 2004).

In determining optimal use of exceptions and limitations for greater access, policymakers should undertake exhaustive surveys of the best global practices on copyright exceptions and limitations for use as models in the drafting of national copyright policies and laws. With respect to software for example, one good practice is to reserve the right to allow reverse engineering for the purposes of studying the software's functionality and for research and development. Moreover, policymakers should be well versed in the debates surrounding emerging practices in IP protection that have a huge impact on technological development and innovation, such as software patents and digital rights management (DRM) (see boxed article, next page).