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Copyright and Open Norms in Seven Jurisdictions: Benefits, Challenges & Policy Recommendations

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INTRODUCTION

Adopting a desk-based literature review, as well as discussion with national experts from the relevant jurisdictions, this report explores the adoption, use and impact of open norms, as introduced in seven jurisdictions. 

Applying various criteria for measuring success and through an analysis of the law as well as engagement with National Experts of the relevant countries, the authors demonstrate that introducing an open norm has several benefits. These include, for example, allowing a country’s creative, educational and research sectors to progress effectively, and benefit from developments in technology in a timely manner. In particular, the report highlights the benefits experienced by countries such as Canada, Israel, Singapore and Japan, whilst the benefits of the USA’s long-standing fair use doctrine have also been captured. Where there have been challenges, these have not been due to the introduction of an open norm per se, but, rather due to failings in drafting the legislation (Sri Lanka) or how it has been approached by the judiciary (South Korea). As such, it must be emphasised that the challenges faced by Sri Lanka and South Korea emerged not due to any incompatibility of open norms with a hybrid or civil law system, but rather due to the reasons as outlined above. These are clear lessons that can be learnt by countries wishing to adopt an open norm in the future. As highlighted in the conclusions, challenges associated with legal transplants can be mitigated by varying different strategies including producing guidelines, opinions from legal authorities and paving the way for further regulations as seen in countries such as Israel and South Korea.

Accordingly, the authors recommend the adoption of open norms in other countries around the world, including in European countries. As discussed in detail in this report, there is much to gain and little to lose by adopting open norms in copyright law. Rather than waiting for long periods for a piece of legislation to be introduced that addresses a single issue, open norms present the opportunity for countries to progress their education, research, creative and technological sectors in a timely fashion.

KEY TAKEAWAYS

1. It is not always necessary to transplant an open norm or fair use provision into one’s jurisdiction, if an existing provision can be broadened and successfully applied, as reflected in Canada. However, for this to be effected, a liberal approach by the judiciary is needed in order to lead to more openness.

2. Complementing an open norm with ex-ante intervention and guidelines by a government illustrates how an open norm can be interpreted and managed well as reflected in Israel. Of notable significance in Israel, is the ability for a Minister to make regulations prescribing conditions as to when a use shall be deemed a fair use. In addition, opinions from legal authorities are also used for seeking clarity. Supplemented by a rich body of case law, this approach is considered a success in Israel.

3. An open norm does not have to be encompassed in one single section of a statute. Singapore demonstrates how a successful open norm can be drafted in multiple sections. Complemented by clear examples and guidance, Singapore’s approach is hailed for providing greater clarity and certainty.

4. Introducing an open norm, in a country, does not mean that it has to be modelled on fair use principles. Japan’s approach demonstrates the introduction of a new type of open norm which focuses on “purpose” more so than any other country. Although generally seen as flexible, the open norm is restrained by the over-arching purpose-limitation of the provisions. While it has been well received in Japan, particularly amongst businesses, this model is so far specific to Japan and may not necessarily suit all national situations elsewhere.

5. Clear language is of great importance when drafting an open norm. If not done correctly, it can lead to the open norm being undermined, as seen in Sri Lanka. This is important to bear in mind for a country seeking to introduce an open norm. In Sri Lanka, the open norm is subject to an exhaustive list of provisions/guidance on acts of fair use. Therefore, although an open norm exists in Sri Lanka, practically it cannot be used effectively, as it is restricted heavily by an exhaustive list of provisions.

6. If a provision such as a quotation exception has been used successfully for several years by the judiciary of a country in a flexible manner, then introducing an open norm could be a challenge as seen in South Korea. Whilst South Korea has the option of using the quotation or the fair use exception since its introduction in 2012, the choice has led to uncertainty and confusion in the country with the judiciary taking a very conservative approach to the use of the fair use exception. However, to mitigate this challenge, the Korean Copyright Commission published fair use guidelines in 2020 to enhance the legal certainty of fair use. Furthermore, the introduction of a specialist court for copyright cases and quasi-binding guidelines drawn up by various parties including judges, scholars and other stakeholders is currently being developed, which will no doubt be beneficial in the future.

VIDEO EXPLAINER


Author(s)

Dinusha specialises in copyright law, copyright policy and the challenges to IP law as a result of new and emerging technologies. She has conducted extensive independent and funded research and has led a number of research projects, funded by the European Commission, EU Intellectual Property Office, AHRC, ESRC on copyright and new technologies and has published widely in the area of copyright law.

Benjamin is a PhD student under the supervision of Prof. Dinusha Mendis and Prof. Maurizio Borghi (University of Turin, Italy). Prior to joining Bournemouth University he was Head of Intellectual Property at the British Library and participated in a 2 year European Commission funded project called Future TDM looking at the barriers to further uptake in Europe of data analytics and AI technologies.

Dukki Hong’s research focuses on copyright law and emerging technologies in the creative and entertainment industries, particularly in relation to video game laws and copyright aspects of Korean pop culture development (known as K-culture or Hallyu).