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Limitations and Exceptions

Artificial Intelligence, Blog

The Great Flip: Can Opt-Outs be a Permitted Exception? Part II

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By Lokesh Vyas and Yogesh Badwal. This post was originally published on Spicy IP. In the previous part, we examined whether the opt-out mechanism, as claimed in Gen-AI litigations, constitutes a prohibited formality for the “enjoyment and exercise” of authors’ rights under Article 5(2) of the Berne Convention. And we argued no. In this post, we address the second question: Can opting out be permitted as an exception under the three-step test outlined in Article 9(2)? If you haven’t seen the previous post, some context is helpful. (Or, you can skip this part) As we mentioned in the last post, “Many generative AI models are trained on vast datasets (which can also be copyrighted works) scraped from the internet, often without the explicit consent of content creators, raising legal, ethical, and normative questions. To address this, some AI developers have created and claimed “opt-out mechanisms,” allowing copyright holders or creators to ask that their works not be used in training (e.g., OpenAI’s Policy FAQs).  Opt out under the Copyright Exception A  question arises here: What are the other ways opt-out mechanisms can be justified if the states want to make a mechanism like that? One may say that opt-outs can be valid under the Berne Convention if an exception (e.g., an AI training exception with an inbuilt opt-out possibility) passes the three-step test. And this way, opt-outs can be regarded as a legitimate limit on holders’ exclusive rights. For reference, the three-step test was created in the 1967 revision conference, later followed in Article 13 of TRIPS and Article 10 of WCT. The test creates a room for the nations to make certain exceptions and limitations. Article 9(2) authorises the member countries “to permit the reproduction” of copyright works in 1.) “certain special cases, provided that such reproduction 2.) does not conflict with a normal exploitation of the work and 3.) does not unreasonably prejudice the legitimate interests of the author”.  Although we don’t delve into the test, how opting out can be a part of an exception can be understood from an example. For instance, as Ginsburg exemplifies, if a country states that authors lose their translation rights unless they explicitly reserve or opt out of them, it would violate Article 5(2) because such rights under Berne must apply automatically, without formalities. This actually happened with Turkey in 1931, whose application for membership was rejected due to the condition of deposit for translation rights in its domestic law. (See Ricketson and Ginsburg’s commentary, paragraph 17.18.)  But if an exception (like allowing radio retransmissions in bars) already complies with Berne’s provisions and applies equally to all authors, then letting authors opt out of that exception would give them more rights than Berne requires. And this should be permissible.  Notably, introducing an exception, such as for AI training, must first pass the three-step test. Opt out can be built therein. However, remember that every exception presupposes a prima facie infringement. Within that frame, the opt-out offers the author a chance not to lose. Thus, it creates an inadvertent expansion of her rights beyond the convention.  Additionally, opt-out can fare well with the three-step test due to the factor of “equitable remuneration to authors.” As Gompel notes in his piece, “…‘opt out’ eases compliance with the three-step test because it mitigates some of the adverse effects of the proposed copyright exception. That is, it enables authors to retain exclusivity by opting out of the compensation scheme.”  Another question also exists: Did Berne contain particular provisions that directly allowed an opt-out arrangement? Well, the answer is Yes. Does opting out equal the right to reserve under Article 10bis? Not really. Setting aside the debate over formality and the three-step test, the Berne Convention contains an opt-out-style provision, albeit limited, where authors must explicitly reserve their rights to avoid specific uses of their work. Relevant here is Article 10bis of the Convention, which allows member countries to create exceptions for the reproduction of works published in newspapers on, among other topics, current economic, political, or religious issues. However, it also allows the authors to ‘expressly reserve’ their work from reproduction. Indian Copyright Act, 1957 also contains a similar provision in Section 52(1)(m). Interestingly, the right to reserve exploitation has been part of the Berne Convention since its earliest draft. It first appeared in Article 7 alongside the provision on formalities, which was numbered Article 2 in the draft. Article 7 became Article 9(2) in 1908, when formalities were prohibited and the no-formality rule entered the Berne Convention.  This historical pairing raises a strong presumption: opting out of a specific mode of exploitation cannot automatically be deemed a prohibited formality. Ginsburg confirms this, citing the 1908 Berlin Conference, which clarified that the reservation/opt-out clause (then Article 9(2)) was not considered a formality. But can this special setting (created in Article 10bis(1)) be used to open the door for general opt-out AI exception measures by countries? We doubt it. As the negotiation history of the 1967 revision conference suggests, Article 10bis(1) is a lex specialis, i.e., a narrow and specific exception (See page 1134 of Negotiations, Vol. II). This means that it may derogate from the general no-formalities rule, but it cannot serve as a model for broader declaratory measures.  Conclusion The upshot is that opt-outs may be de facto formalities. However, not all formalities are prohibited under the Berne Convention. The convention enables countries to make some formalities on “the extent of protection.” Three key points emerge from this discussion: One, opting out may not be a formality that prevents the enjoyment and exercise of rights, as Gompel and Sentfeln confirm, and Ginsburg argues otherwise. Two, it can be a part of an AI training exception if such an exception can pass the three-step test. When applying this test, opting out would support the factor of equitable remuneration. Three, Article 10(bis) on the right to reserve cannot be read expansively. While it can be used to justify the three-step test as Sentfleben does, it might not be extended generally. Okay. That’s it from our end. À bientôt’ Primary Sources:-

Artificial Intelligence, Blog

The Great Flip: Is Opt Out a Prohibited Formality under the Berne Convention? Part I

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By Lokesh Vyas and Yogesh Badwal. This post was originally published on Spicy IP. Bonjour, Lately, we’ve been cogitating on this curious concept called the “opt-out”, which has been cropping up with increasing frequency in generative AI litigation, including in India. The EU and the UK are taking the idea seriously and considering giving it statutory teeth. On the surface, it is sold as a middle path, a small price to pay for “balance” in the system. However, at least prima facie, it seems like a legal absurdity that fractures its modern foundational logic, where authors receive default copyright without any conditions. The opt-out model, the argument goes, reintroduces formality through the back door, a de facto formality of sorts. This shifts the burden onto authors and rights holders to actively monitor or manage their works to avoid unintended inclusion in the AI training. There have been questions about whether such an opt-out scheme is compatible with the Berne Convention, which prohibits the same under Article 5(2), e.g., here, here, and here.  Given the complex nature of this issue and the fact that many such discussions happen behind paywalls, making them inaccessible to the public, we thought it would be beneficial to share our ideas on this topic and invite further reflection. This two-part post mainly focuses on the legality of opting out without addressing its implementability and applicability, which raises several questions (e.g., as discussed recently in Martin Sentfleben’s post). In short, we probe whether opt-outs violate the Berne Convention—the first international copyright law treaty binding on all members of the TRIPS and WCT.  We answer it through two questions and discuss each one separately. First, is opt-out a prohibited formality for the “enjoyment and exercise” of authors’ rights under Article 5(2) of the Berne Convention? Two, can it be permitted as an exception under the three-step test under Article 9(2)? We answer the first question in the negative and the second in the positive. Additionally, we also examine whether Berne already has a provision that can allow this without looking at the details.  This post addresses the first question. What Makes Opts Outs So Amusing – The Flip? Many generative AI models are trained on vast datasets, which can also include copyrighted works scraped from the internet without the explicit consent of content creators, raising legal, ethical, and normative concerns. To address this, some AI developers have created and claimed “opt-out mechanisms,” allowing copyright holders or creators to ask that their works not be used in training (e.g., OpenAI’s Policy FAQs).  Herein lies the catch: it requires authors and copyright holders to explicitly say “No” to training by adding a robots.txt tag to their website with specific directives that disallow web crawlers from accessing their content. (E.g., see this OpenFuture’s guide here) Thus, instead of creators being protected by default, they are supposed to opt out to prevent exploitation. One could say that this flips the logic of copyright on its head–from a presumption of protection to a presumption of permission. But that’s not so simple.  Notably, opting out is not a novel argument. In fact, it can be dated back at least to the 1960s in the Nordic countries’ model of “Extended Collective Licensing” (ECL), which mandates collective licensing while preserving the author’s right to opt out. Other notable academic literature on opt-out can be found here, here, here, and here, dating back over two decades. Swaraj also covered this issue a decade ago. In particular, we must acknowledge the scholarship of Jane Ginsburg, Martin Sentfleben, and Stef van Gompel, who have significantly influenced our thinking on the topic. Two Key Questions: Opt out as a Formality and opt out under a permitted Exception Formality Argument first.  Here, the argument goes that the opt-out is a prohibited formality under Article 5(2) and should not be allowed. However, we doubt it. Let’s parse the provision first. Which states: “(2) The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed.” (Authors’ emphasis) For context, the provision pertains to “Rights Guaranteed outside the Country of Origin” for both national and foreign authors. And the question of no-formality pertains particularly to foreign authors. In other words, by removing formality requirements in the country where protection is claimed, the provision enabled authors to automatically receive protection without needing to satisfy foreign formalities. This matters because while countries can impose conditions on their own nationals, it’s generally assumed that they will not treat their own authors worse than foreign ones. The post follows this presumption: if a country cannot burden foreign authors, it’s unlikely to impose stricter terms on its own people. Although the removal of formalities had been discussed in the international copyright law context as early as the 1858 Brussels Conference, an important event in the development of international copyright law, it was not implemented until 1908. This change addressed practical difficulties, including identifying the “country of origin” when a work was published in multiple countries, and the challenges courts faced in enforcing rights without formalities. (See International Bureau’s Monthly Magazine, January 1910) Tellingly, while a country can make formalities for its people, it cannot do so for foreign authors. It’s generally assumed that a country would not obligate its authors more than it does to foreign authors. Textual Tensions of Article 5(2) While the phrase “any formality” in the first line of the provision might suggest that all kinds of formalities—including de facto ones like opt-out mechanisms—are prohibited, that is arguably not the case. We say this because the provision is divided into two parts, and the prohibition on formalities applies only to the first part, which is germane to enjoying and exercising rights. The second part of the provision, beginning with “Consequently”, gives leeway to the states wherein they can make formalities regarding the ‘extent of protection’

Africa: Copyright & Public Interest, Blog

The South African Copyright Amendment Bill at the Constitutional Court: Notes from the Presidential Referral of the Bill (Part II)

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In Part I of this blogpost, I briefly set out the procedural history of the copyright reform process that led to the Presidential Referral of the Bill to the Constitutional Court. I also briefly explained the scope of Referral proceedings and the parties involved. In this Part, I discuss the issues raised during the hearing and what to expect going forward. Issues raised during the hearing In line with the Court’s past jurisprudence, the proceedings centred around the constitutionality of the two sets of provisions referred by the President on the basis that he referred them – the fair and equitable remuneration provisions and the new exceptions and limitations. I discuss the arguments raised regarding each set in turn. I focus here on the oral submissions – the full written submissions on record are available here. Fair and equitable remuneration (proposed sections 6A, 7A, 8A) On the fair and equitable remuneration provisions, the President remained concerned that these provisions apply retrospectively which, in his view, would constitute arbitrary deprivation of property. The President explained that although Parliament deleted the specific subsections that explicitly provided for the retrospective application of the provisions, he believed that the provisions were still applicable retrospectively. Retrospectivity, he argued, would constitute a substantial interference in the copyright owner’s enjoyment of their property (and the profits derived from it) as it would open up the possibility for windfall gains for authors notwithstanding whether their original historical assignment of copyright was unfair. Moreover, the President argued that the indiscriminate application of these provisions to all past and future assignments constituted an arbitrary deprivation of property. To prevent retrospective application, the President argued that it was necessary for the language of the provisions to explicitly state that they would apply prospectively. Underlying this argument, the President confirmed that in his view, copyright constituted a constitutionally protectable set of property interests. When questioned, the President conceded that should these provisions be read exclusively prospectively they would not be unconstitutional. The President’s initial position was supported by the Freedom Front Plus. It was also supported by the Democratic Alliance who argued that the only reasonable interpretation of these provisions was that they applied retrospectively to past and future profits derived from the exploitation of the work under copyright. On a prospective interpretation, the DA argued, the language that allows the existence of an agreement to the contrary in proposed section 6A(2) would render the provision a nullity. The DA also supported the proposition that these provisions ran the risk of arbitrarily depriving copyright owners of their property on the basis that there was a substantial interference with the right by significantly reducing its value, imposing uncertainty costs upon the entire industry and interfering with the contractual autonomy of the parties. Further, the DA argued that the lack of similar language in sections 7A and 8A was irrational – and although the President adopted this argument in his oral submissions, irrationality was not expressly part of the 2020 or 2024 Referral letter, raising the question whether the Court can consider it. NAB/SANEF/CFE aligned themselves with the arguments made by the President that these provisions had retrospective effect and ran the risk of arbitrarily changing the rights negotiated and acquired by broadcasters in the current regime, asserting that the broadcasting industry may face dire consequences as a result. Parliament, however, explained in their oral submissions that they had a clear legislative intent to ensure that the impugned provisions had prospective effect. This intent was demonstrated by the deletion of the relevant subsection from all three provisions, as acknowledged by the President, in addressing the reservations set out in his 2020 Referral letter. Recreate Action aligned with Parliament’s position on the deletion of the explicit retrospectivity provisions, and argued that there is a presumption against retrospectivity in the law. Where a provision can be read prospectively, it must be read in that manner. Recreate Action responded to the DA’s argument that a prospective reading of section 6A renders it a nullity by explaining that the non-obstante clause in that section would ensure its continued application. In any event, Recreate Action argued that even if the impugned provisions applied retrospectively, that did not in and of itself render them unconstitutional. To the extent that they were a deprivation of property, Recreate Action argued that even if copyright was incorporeal constitutional property, it required a lower threshold of justification for such deprivation, and that the deprivation only encompassed a single incident of ownership – the royalty right. Finally, Recreate Action responded to the claim of indiscriminate application as arbitrariness by explaining that the standards of ‘fairness’ and ‘equity’ in the text of these provisions act as levers to calibrate the application of these provisions to address unequal bargaining power and prevent any windfall gains.   In addition to testing these arguments, the Court raised concerns about the specificity of the President’s reservations with regard to these provisions. In particular, the Court was concerned as to whether Parliament had a meaningful opportunity to address the whole of these provisions – in other words, whether the President’s 2020 Referral letter flagged the whole of these provisions as triggering his reservations, or just the relevant subsection that explicitly provided for their retrospective application. If the Court were to find that the whole provisions were not referred to Parliament – to enable Parliament’s consideration of them prior to the Referral to the Court – this may bar the consideration of the merits. New exceptions including education and library exceptions (proposed sections 12A-D, 19B, C) I now turn to the second set of provisions that the President was concerned about – the new exceptions and limitations. The President argued that the exceptions and limitations sought to be introduced go too far and would conflict with the normal exploitation of the work and cause unreasonable prejudice to the rights holder. The President was also concerned that the fair use provision suffered from vagueness and introduced a level of uncertainty that could

Africa: Copyright & Public Interest, Blog

The South African Copyright Amendment Bill at the Constitutional Court: Notes from the Presidential Referral of the Bill (Part I)

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On 21 and 22 May 2025, the South African Constitutional Court heard the matter of Ex Parte President of the Republic of South Africa: In re Constitutionality of the Copyright Amendment Bill and the Performers’ Protection Amendment Bill. The hearing in these ‘Referral proceedings’ was significant as it was only the second time in South Africa’s history that the President triggered an exceptional constitutional mechanism to refer a Bill to the Constitutional Court for a decision on the constitutionality of certain aspects instead of signing it into law. The Court’s decision in this case will determine the fate of a long drawn-out legislative reform process aiming to transform and modernise South Africa’s apartheid-era copyright law and bring it into the constitutional era. The Court adjourned to deliberate on the matter and the judgment will be handed down in a few months. In this blog post, I briefly outline the arguments advanced by the parties and amici curiae and highlight the issues for determination by the Court. While the Performers’ Protection Amendment Bill is also at issue, I focus on the Copyright Amendment Bill [B13F-2017] (‘the Bill’) as the aspects of the Performers’ Protection Amendment Bill that are at issue are those that incorporate the Copyright Amendment Bill. The hearing focused almost exclusively on the Copyright Amendment Bill. This blog post is in two parts: Part I deals with the procedural history that led to the Presidential Referral of the Bill and sets out an overview of the referral proceedings, and Part II deals with the issues raised during the hearing and sets out the next steps. The long and winding road to the Constitutional Court For those coming to this issue afresh, South Africa has been in the process of reforming its copyright law for over a decade, if not longer. The current Copyright Act 98 of 1978 is old-order legislation, enacted prior to democracy. While the South African Constitution allows for apartheid era legislation to be saved if it can be interpreted to be consistent with the Constitution, the Copyright Act freezes pre-constitutional economic and social relationships in the creative industry and knowledge production processes. While some parts of it may be read compatibly with the Constitution, other parts of it are in need of urgent reform. As the South African Parliament has recognised in the memorandum on the objects of the Bill, the existing arrangements have had adverse impacts upon artists due to the “power imbalance, vulnerabilities and abuse taking place in the music industry”, people with disabilities, educators and researchers. In addition to addressing this, the Bill seeks to make South African copyright law consonant with “the ever evolving digital space” as the current Act is “outdated and has not been effective in a number of areas”. In doing so, the Bill clarifies in some detail the powers and functions of the Copyright Tribunal and, for the first time, regulates collective management organisations. The procedural history leading up to the Constitutional Court hearing is central to understanding why the enactment of the Bill as a whole is subject to the Court’s determination of two narrow and specific issues. I address this briefly. Parliament passed the Copyright Amendment Bill [B13B-2017] in March 2019. The President, instead of signing the Bill, triggered a constitutional mechanism to refer the Bill back to Parliament citing procedural and substantive constitutional reservations in June 2020 (‘2020 Referral letter’). At that stage, concerned about pervasive and persistent copyright discrimination being further exacerbated by the delay, Blind SA – a disability rights organisation by and for people with visual and print disabilities – launched litigation against the state for interim relief pending the conclusion of the legislative reform process. Consequently, in 2022, the Constitutional Court in Blind SA v Minister of Trade, Industry and Competition (‘Blind SA I’) held that the Copyright Act 1978 was unconstitutional to the extent that it unfairly discriminated against people with visual and print disabilities and read-in a court-crafted remedy to rectify this discrimination with a deadline of two years from the date of judgment for Parliament to enact legislation. The remedy drew heavily from the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (‘Marrakesh VIP Treaty’), on the basis that this treaty was in the process of being domesticated through copyright reform, though South Africa had not yet acceded to it.  In the meanwhile, over a period of approximately four years, Parliament considered and addressed the President’s constitutional reservations and additionally gave draft legislative effect to the Court’s judgment in Blind SA I passing the Copyright Amendment Bill [B13F-2017] in February 2024. The deadline set by the Constitutional Court in Blind SA I lapsed in September 2024, along with the court-crafted remedy, and although Parliament passed the Bill, the President did not take action in response to Parliament’s amended version.  Blind SA then urgently sought from the Constitutional Court a re-reading in of the same remedy or any other remedy that would be just and equitable following the lapsing of the remedy. Days later, the President opted for an exceptional constitutional mechanism by which he referred the Bill to the Constitutional Court (‘2024 Referral letter’) citing that two of his 2020 constitutional reservations had not been ‘fully accommodated’ by Parliament (‘the Referral proceedings’ discussed below). The Court passed an interim order in December 2024 reading in once again the remedy in Blind SA I until the final determination of the matter – which took place on 7 May 2025. In Blind SA v President of the Republic of South Africa (‘Blind SA II’), rather than further extending the Blind SA I remedy, the Court took note of the significantly advanced legislative process and the fact that the President did not have any reservations concerning the provisions regarding people with disabilities and, instead, read-in those provisions and the relevant definitions from the Bill into law, until such time as amended copyright law came into force. This ensured that

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Educational exceptions in Copyright Amendment Bill are mandated by international law and the Constitution

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By Faranaaz Veriava and Anne Marie Strohwald  The Constitutional Court [in South Africa] will on 21 and 22 May 2025 hear submissions relating to the constitutionality of the Copyright Amendment Bill that has been in the making since as far back as 2015. The National Assembly voted for the Copyright Amendment Bill in 2024 amid some intense opposition. The President, instead of signing the Bill into law, invoked his presidential prerogative in terms of section 79(5) of the Constitution and referred it to the Constitutional Court, raising reservations in respect of the constitutionality of certain aspects of the Bill, including whether the educational exceptions – that exempt activities associated with teaching and research from copyright protection – are consistent with international copyright law.  The Centre for Child Law, a public interest organisation and the Unesco Chair: Education Law in Africa, a rights-based think tank, both based at the University of Pretoria, have been admitted as the fifth amicus curiae in the matter. Interestingly, in a crowded house of eight amici that include publishers, authors, musicians and other creatives, the Centre and the Unesco Chair are the only amici that have been granted leave to make oral submissions in the court. At the core of their submissions is the assertion that while the President considers whether the Bill is compliant with international copyright treaties and whether the exception violates section 25(1), the property right clause, the President is completely silent on South Africa’s obligations in terms international human rights law and its broader constitutional obligations.  Background to the Copyright Amendment Bill referral In 2020, the President referred the Bill back to Parliament for similar reasons. In 2021, the organisation Blind SA, frustrated by the persistent impact of delays in copyright reform that prolonged a book famine wherein blind persons had access to less than 10% of available books, instituted an application to declare the 1976 Copyright Act invalid due to its failure to provide a copyright exception for persons with visual disabilities.  In 2022, the Constitutional Court in Blind SA I declared the impugned provisions, that required the permission of copyright owners – rarely provided – before their works could be reproduced in accessible formats for persons with visual and print disabilities, to be constitutionally invalid. The provision also criminalised accessible formatting without such permission. The court held that requiring the permission of the copyright owners to create accessible formats amounted to a discriminatory barrier that unfairly prevented people with visual and print disabilities from accessing copyrighted materials.  The court order suspended the declaration of invalidity for 24 months and formulated an interim remedy in the form of a reading-in of a temporary provision to the Copyright Act. The suspension period lapsed in September 2024, after being voted on in Parliament, but without being signed by the President. This necessitated that Blind SA return to the court on an urgent basis.  The Constitutional Court in Blind SA II held that the failure to enact the Bill within 24 months created a legal gap, reverting the Copyright Act to the position before Blind SA I, making people with visual and print disabilities vulnerable and having to make the impossible decision to either break the law or not have access to a books. It therefore read into the Act the carefully crafted education exception in the Bill that aims to enable accessible format shifting for persons with visual and print disabilities. This provision is not one of the educational exceptions that are the subject of the President’s current reservations and remains in place if, and until, the Bill is finally signed into law.  Educational exceptions will ease access for poor learners and students Thus, while Blind SA II is a long-awaited victory for blind people for multiple reasons, the educational exceptions are not only included in the Bill to facilitate access to learning materials for persons with print and visual disabilities, as is suggested in the President’s submissions. The educational exceptions are necessary to ensure that all learners and students, including the poorest learners and students, have access to learning materials. This category of learners and students, while including persons with print and visual disabilities, constitutes the majority of learners and students in South Africa. Copyright, therefore, exists as a barrier to access to educational materials for poor learners and students. A wide body of evidence, including from Unesco, makes clear that there is a direct correlation between educational materials and educational outcomes. Research disaggregating data on educational outcomes further highlights that educational outcomes are worse for learners and students from poorer communities lacking access to basic educational resources. For example, copyright laws preventing the making of copies of textbooks for learners and students make access to knowledge unaffordable.  The Centre and the Unesco Chair argue that the educational exceptions are necessary for South Africa to comply with international human rights law to ensure the enjoyment of three reinforcing and mutually interdependent rights: The right to education, the best interests of the child principle and the principle of equality and non-discrimination. Furthermore, section 39(1) of the Constitution mandates that international laws serve as an interpretive guide to its counterparts in the Constitution. Section 233 of the Constitution also requires that, “when interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law”.  The right to education is recognised in several international and African regional instruments, including: the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Convention on the Rights of the Child (CRC); and the African Charter on the Rights and Welfare of the Child (ACRWC) – all of which have been ratified by South Africa, thus creating obligations for South Africa as a party to these instruments. International human rights law elaborations of the right confirm that the educational exceptions are permissible. The availability of education in international human rights law refers not only to the availability of schools, but also includes the availability of resources to facilitate teaching and learning. The accessibility

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Limitations and Exceptions in the U.S. Special 301 Report 2025

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The first Special 301 Report under the Trump Administration was released last month: 2025 Special 301 Report (final).pdf. The report always gives insight into the administration’s trade priorities1. How the Trump Administration will approach intellectual property matters is a bit of a mystery with its trade policy positions in the campaign taking conflicting approaches to the issue.2 The first Trump Administration Special 301 Report suggests that copyright policy is returning to its norm at USTR, with complaints about overbroad copyright exceptions, including for the circumvention of technological protection measures, raised against many of the countries on its warning lists. Countries Named and Blamed Twenty-six countries are named on in the report, with no country being listed as a Priority Foreign Country — which is the level at which direct threats of trade retaliation are raised. But the Report keeps the threat alive, stating: “Over the coming weeks, USTR will review those developments against the benchmarks established in the Special 301 action plans for those countries”.3 If countries fail to address U.S. concerns, the USTR may take actions, including enforcement measures under Section 301 of the Trade Act or dispute settlement procedures under the WTO or other trade agreements. Eight countries are on the Priority Watch List: Argentina, Chile, China, India, Indonesia, Mexico, Russia, and Venezuela. Eighteen countries are on the Watch List: Algeria, Barbados, Belarus, Bolivia, Brazil, Bulgaria, Canada, Colombia, Ecuador, Egypt, Guatemala, Pakistan, Paraguay, Peru, Thailand, Trinidad and Tobago, Türkiye, and Vietnam.  Of the countries listed in the report, two countries on the Priority Watch List (India and Indonesia) and four countries on the Watch List (Canada, Ecuador, Thailand, and Vietnam) are subject to complaints about “overly broad exceptions”:  Priority Watch List India: The Report alleges that Section 31d of the Copyright Act, 1957, which governs statutory licensing for the broadcasting of literary and musical works, as well as sound recordings, could be interpreted to allow statutory licensing for interactive online streaming, which, according to the report, “would have severe implications for right holders who make their content available online.” The report also rebukes “overly broad exceptions for certain uses” that raise “concerns about the strength of copyright protection in India”. However, the report does not name those exceptions. Finally, it complains that India has not made sufficient amendments to its Copyright Act to to protect technological protection measures and rights management information to comply with the WIPO Internet Treaties (i.e., WCT and WPPT).4  Indonesia: The report complains of “overbroad exceptions to provisions that prohibit the circumvention of technological protection measures” and urges Indonesia to consider amendments to its copyright law.5 Watch List Canada: The Report states that stakeholders reported issues with a “broad interpretation of the fair dealing exception for the purpose of education, which was added to the copyright law in 2012, as well as the relevant case law on the subject, has significantly damaged the market for educational authors and publishers”.6 Ecuador: The Report raises “concerns raised by the U.S. Government and various stakeholders on issues related to overly broad or vaguely defined copyright exceptions and limitations”.7 Thailand: The report urges Thailand to consider reviewing its copyright law to address several issues, including what is called “overly broad exceptions to provisions that prohibit the circumvention of technological protection measures”.8 Vietnam: Concerns were raised about “overly broad exceptions to copyright” and the implementation of the WIPO Internet Treaties, “including protections against circumvention of technological protection measures and certain acts affecting rights management information”.9

Blog, Trade Agreements & IP

The Unclear Status of Copyright Exceptions and Limitations in the UK-India Free Trade Agreement 

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On May 6, 2025, the United Kingdom (UK) and India announced that they had reached agreement on a bilateral free trade deal that includes a chapter on intellectual property.However, no agreement text was released. Rather, the UK Department for Business & Trade issued a summary of the agreement’s terms, and the summary acknowledged that “work is continuing to finalise the legal text and resolve the last issues.” In other words, at this point there is just an agreement to agree, rather than a real agreement. According to the summary, the IP chapter “will support our economies through effective and balanced protection and enforcement of IP rights.” The chapter will cover copyright and related rights, designs, trademarks, geographical indications, patents, and trade secrets, as well as the enforcement of IP rights. The summary provides little detail concerning copyright and related rights. It simply states that India will also commit to engaging on aspects of copyright and related rights, addressing the interests of UK creators, rights holders, and consumers. This includes around public performance rights and artist’s resale rights, which acknowledge the importance of royalty rights. India will also conduct an internal review of their copyright terms of protection.    Further, the summary notes that the chapter “will not commit the UK to domestic legislative change, nor will it undermine the UK’s own IP system or our international positions on IP.” Significantly, the summary is silent on copyright exceptions and limitations. In 2022, a draft of the UK’s proposed text for the IP chapter was leaked. The language concerning copyright exceptions and limitations was limited to the Berne Three Step Test and other treaties: Article H.7: Limitations and Exceptions   1. Each Party may introduce limitations or exceptions in its domestic law to the rights provided for in this Section [H]. but shall confine such limitations or exceptions to certain special cases that do not conflict with a normal exploitation of covered subject matter, and do not unreasonably prejudice the legitimate interests of the right holder.   2. This Article is without prejudice to the limitations and exceptions to any rights permitted by international agreements such as the TRIPS Agreement, the Berne Convention, the Rome Convention, the WCT. or the WPPT.   ​The summary asserts that the agreement would support the economies of the UK and India through “balanced protection” of IP rights, but nothing in the summary, or the UK’s 2022 draft text, reflects balanced protection with respect to copyright. The Three Step Test, by itself, is too ambiguous to provide meaningful balance. Hopefully India insisted upon language that clarified that both parties had the flexibility to adopt more open-ended fair dealing or fair use provisions, like those recently adopted by former British colonies such as Singapore, Malaysia, and Nigeria. For example, the agreement could include language similar to Article 11.18 of the Regional Cooperation for Economic Partnership (RCEP), signed in 2020. That language provides that  3. Each Party shall endeavour to provide an appropriate balance in its copyright and related rights system, among other things by means of limitations and exceptions consistent with paragraph 1, for legitimate purposes, which may include education, research, criticism, comment, news reporting, and facilitating access to published works for persons who are blind, visually impaired, or otherwise print disabled. 4. For greater certainty, a Party may adopt or maintain limitations or exceptions to the rights referred to in paragraph 1 for fair use, as long as any such limitation or exception is confined as stated in paragraph 1. India initially participated in the RCEP negotiations, but withdrew in 2019 over issues unrelated to intellectual property.

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Why Limitations and Exceptions Still Deserve a Bigger Role at WIPO CDIP

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As WIPO’s Committee on Development and Intellectual Property (CDIP) prepares to meet for its 34th session this May, an important question is back on the table: Are we doing enough to support access to knowledge, culture, and education through copyright limitations and exceptions? These legal flexibilities—designed to enable libraries, educators, researchers, and others to use copyrighted content under certain conditions—are vital tools for development. But despite being central to WIPO’s 2007 Development Agenda, they still play a limited role in the organization’s work. WIPO’s latest reporting shows a continued emphasis on supporting IP protection and enforcement. In the Director General’s report to the CDIP, most activities are framed around helping countries strengthen their IP systems. There is a brief mention of the Standing Committee on Copyright and Related Rights (SCCR) and its ongoing discussions on the Broadcasting Treaty and exceptions for libraries and education. But these references don’t tell us much about the real developmental impacts of those discussions—or the need to ensure that any new treaties respect countries’ ability to design exceptions and flexibilities that serve the public interest. There are some positive signs. One project approved at CDIP/30 supports the use of Text and Data Mining (TDM) by African research institutions. This is the first CDIP project specifically focused on copyright limitations, and it’s a promising example of how IP flexibilities can directly benefit research and innovation. But it’s also the only one of its kind. Meanwhile, WIPO’s Flexibilities Database—which could be a key resource—still focuses almost entirely on patent law and hasn’t been updated to include copyright-related flexibilities or real-world examples of how countries are using them. So what can be done? One idea is for Member States to propose new CDIP projects that explore how copyright limitations and exceptions can support public goals—like providing access to education materials, enabling preservation in cultural heritage institutions, or facilitating scientific collaboration. Another is to ensure that norm-setting activities, such as negotiations on the Broadcasting Treaty, are carefully monitored by CDIP to assess their development impacts. These steps wouldn’t require major changes, just a commitment to make sure the tools already embedded in international IP law are better understood and more widely used. As WIPO’s work continues to evolve alongside emerging challenges like artificial intelligence, access to digital content, and global inequality, the importance of copyright flexibilities is only growing. CDIP was created to help balance the global IP system, and that balance depends on more than protection—it depends on access too. By giving limitations and exceptions the space they deserve, Member States can help WIPO truly deliver on its promise of development for all.

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A Step Forward: World Intellectual Property Organization’s Copyright Committee Inches Forward on Broadcast and Limitations

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The Forty-Sixth Session of the World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights (SCCR) concluded with modest but meaningful progress on key agenda items, including on the Broadcasting Treaty, the limitations and exceptions (L&Es) agenda and the agenda item on copyright remuneration in the digital environment. The SCCR was Chaired by Vanessa Cohen, Copyright Director of Costa Rica. Broadcasting Treaty: Refined Focus, Continued Dialogue The Committee continued its examination of the Draft WIPO Broadcasting Organizations Treaty, which has been on the SCCR’s agenda since its first meeting in 1998. After the first failure to create a basic text for the negotiation in 2006, the 2007 General Assembly mandated that the SCCR achieve “agreement on objectives, specific scope and object of protection” before a recommendation to complete the treaty in a diplomatic conference. (WO/GA/34/16). The GA has further instructed that the Broadcasting Treaty be “confined to the protection of broadcasting and cablecasting organizations in the traditional sense” and “based on a signal-based approach” (WO/GA/33/10, para 107, 2006).  The Chair’s statements for SCCR 44 and 45 aptly summarized the current consensus on the committee on the bounds of a text that could be advanced to the Diplomatic Conference: “With respect to objectives, there is common understanding … that the treaty should be narrowly focused on signal piracy, should not extend to any post-fixation activities and that it should provide member states with flexibility to implement obligations through adequate and effective legal means” and “that the object of protection (subject-matter) of the treaty is related to programme-carrying signals linked to linear transmission”. But the bounds of these concepts have been pressed by Chair’s Drafts of a treaty that continue to use exclusive rights as a baseline, including rights to fixation and to make available stored programs on the Internet. This SCCR featured more vigorous debate over the draft than at the last few SCCR meetings, with a larger number of countries offering specific comments on provisions including on national treatment and reciprocity, exceptions and limitations, the protection of signals used in making available stored programs, and the functioning of the mechanism for alternatives to exclusive rights.  Some member states, including the European Union, the Central European and Baltic States Group (CEBS) and the Group of Latin American and Caribbean Countries (GRULAC) supported moving the current text to a diplomatic conference. But the two days of deliberations showed significant concern about many of the draft text’s provisions. After the deliberations showed a lack of consensus on the document, Brazil proposed that the Broadcast Treaty be removed from the formal agenda of the SCCR and be worked on by groups of countries outside of the SCCR. Ultimately the Chair’s Summary concluded that the facilitators would create a new draft text and the item would remain on the agenda without any endorsement of a timeline toward a diplomatic conference. Opposition to the current Chair’s Text appeared to be growing. The Africa Group noted that “some members are concerned about the potential overreach of those protections, fearing that they could restrict access to broadcast or create unintended barriers to the flow of information.” The Asia Pacific Group similarly reported the views of some of its members “determination as to whether and how Intellectual Property rights should apply with respect to broadcasting is also a development to the issue that requires a delicate balance.” The Africa Group stated an additional position that “an instrument on the protection of broadcasting organizations should advance to a Diplomatic Conference jointly with an instrument on limitations and exceptions that meets the 2012 General Assembly’s mandate.”  Among the “Group B” coalition of wealthy countries, the United States continued to raise serious substantive objections, stating the view that “significant work remains to be done” on the Chair’s Draft, which “continues to exceed the GA mandate for a signal based approach to protect broadcasters in the traditional sense.” The US stated that it supports “a narrow text that is focused solely on the live signal,” including through deletion of the Chair’s Draft’s rights to fixation (Art 7) and making available stored programs (art 8).  Ultimately, while the level of engagement on the Broadcast Treaty was elevated, it does not appear the current text, especially its extensions to Internet-based transmissions and post-fixation rights to stored content, have sufficient consensus to move to a diplomatic conference. Limitations and Exceptions: A Foundation for Bridging Divergence The key issue for the limitations and exceptions agenda is reaching an agreement to begin text-based work on the 2012 GA mandate to work toward an “appropriate international legal instrument or instruments (whether model law, joint recommendation, treaty and/or other forms)” on uses by libraries, archives, museums, educational and research institutions, and persons with other disabilities (WO/GA/41/14). In SCCR 43, the Committee adopted a Work Program SCCR/43/8 REV to draft “objectives, principles, and options” for potential instruments. As noted above, the African Group will not support moving the Broadcast Treaty to a Diplomatic Conference without an instrument on L&E prepared to also be endorsed for finalization.  The Chair announced at the start of the L&E agenda that she had a meeting of “volunteer” member states the week before the SCCR to consult on ways forward. She further proposed that she could use the Chair’s position to “help put together a list of objectives and principles that could be seen as ground, a common basis” and that “could be seen as the cornerstone for a soft law instrument” that “could be an important tool used by WIPO and adopted by the General Assembly, it could provide Member States with significant guidelines and guiding principles.” She further proposed “the possibility of appointing facilitators to try and identify that common base.” All countries implicitly endorsed moving to text based work on principles and objectives for limitations and exceptions. The debate in the Committee was about where to start. Group B and CEBS endorsed starting to discuss the US proposed document – SCCR/44/5. The African Group and many developing countries opposed beginning with

Africa: Copyright & Public Interest, Blog

INTERNATIONAL CONFERENCE IN SOUTH AFRICA HIGHLIGHTS THE URGENCY OF COPYRIGHT REFORMS

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By ReCreate South Africa The cost of excluding billions of people in Africa and the Global South from access to knowledge could be huge for future generations. Knowledge-sharing in Africa is not always transactional, and the existing IP and copyright paradigms are not working well for creators or audiences on the continent. Creators are often poorly remunerated and in many cases audiences and students cannot afford access to knowledge and entertainment. Some global corporations take an extractive and exploitative approach to African creativity. Africa needs a new knowledge governance system to take into account the role of traditional and indigenous knowledge. These were the conclusions of an international conference entitled “Copyright and the Public Interest: Africa and the Global South” held last month in South Africa. The convenors were ReCreate South Africa, a coalition of creators and users of copyright material and the conference took place at the University of the Witwatersrand, Johannesburg (3 February), at the University of Cape Town Library (5 February) and at Innovation City (6 February). This conference was a follow-on from ReCreate’s inaugural conference on the “Right to Research in Africa” held at the University of Pretoria and the University of Cape Town in January 2023. Conference partnered with Program on Information Justice and Intellectual Property (PIJIP), the intergovernmental organisation, South Center, the University of Cape Town’s IP Unit, Mandela Institute, Law School and more. The conference was made possible by PIJIP and Arcadia, as well as Open Air. You can watch the full conference sessions online. IP as a tax on African Creativity: Protecting the Livelihoods of Creators In his opening input, Ben Cashdan, convener of ReCreate South Africa and former economic advisor to President Nelson Mandela, said that IP royalties are a de facto tax on Africa. “Income from IP royalties on all creativity, on all inventions around the world, topped $1 trillion in the past 24 months for the first time, and the United States gets about $130 billion of that. Africa gets a tiny fraction. Could that be because we don’t have creatives? Could that be because we don’t have actors, writers, musicians? Obviously not. The system operates in such a way that we don’t get the fruits of our labor here in this country and on this continent.” South African singer Mercy Pakela, whose music topped the charts in the 1980s, recounted how she had signed with record labels so that her music could be heard by music lovers around the world, but over 40 years later she still feels she has not received fair remuneration. Pakela said “I wish I knew then what I know now because then I did not know that it was business. I just wanted to be on stage. I thought it was just about talent.” Jack Devnarain, Chairperson of the South African Guild of Actors highlighted that many performers in Africa die poor due to the power imbalance between artists and their distributors or rights owners. He pointed a finger at those whose business models restrict the livelihoods of African performers and who are opposed to copyright reform.  “There are people, particularly the American-based organizations, the corporate giants in the Global North that are working very hard, and I’m talking about the publishers, the studios, the streamers, the broadcasters, that do not want South African actors to have a royalty earning right.” South Africa’s CAB and Why Teachers Need Fair Use The Copyright Amendment Bill (CAB), passed by Parliament in South Africa, but still awaiting the President’s signature, aims to solve the problem of exploitation of artists by introducing a right to fair royalties or equitable remuneration. The CAB also broadens access to knowledge for communities. Hence it addresses the needs of both constituencies, creators and users. The President has referred the Bill to the Constitutional Court over concerns that it may lead to arbitrary deprivation of property of rights holders. Advocate Iain Currie, lawyer for ReCreate raised questions around whether Intellectual Property is property in the traditional sense and also challenged the view that adjustments to Copyright laws in the public interest are arbitrary.  One of the main objectives of the CAB is to ensure that teachers and learners have access to educational materials, which is clearly a public interest goal. According to Dr Mugwena Maluleke, President of Education International, “there is a shocking shortage of 44 million teachers worldwide. A major catalyst for this shortage is the inability to attract and retain teachers due to inadequate conditions for providing quality teaching,” including a shortage of textbooks and learning materials. “Fair use in education is the key that unlocks the door to a world of knowledge and creativity, by allowing educators to utilize copyrighted materials in their teaching.”  Moreover “Fair copyright legislation is essential to enabling teachers to adapt and use the material and reach an increasingly diverse student body.”  Maluleke is also General Secretary of SADTU, the largest teachers union in South Africa, with a membership of over 250 000 teachers and workers.  Dr Sanya Samtani, Senior Researcher at the Mandela Institute in the Law Faculty at the University of the Witwatersrand, Johannesburg echoed these sentiments. “The Copyright Amendment Bill is an example of the state trying to regulate copyright, trying to fulfill its international obligations on copyright, and also its human rights obligations, which are constitutional and international in nature.” ‘AI for Good’ in Africa The conference considered the importance of Artificial Intelligence (AI) in solving the world’s most pressing challenges, including climate change, pandemic responses and countering misinformation. Generative AI has understandably raised alarm bells amongst creatives. Professor Vukosi Marivate, Chair of Data Science at the University of Pretoria, described a project in which broadcast TV shows in South Africa could be used to train AI models to educate local communities about primary health care in indigenous African languages. Marivate said that a power reset needs to take place between local communities and Big Tech based in the Global North. This will allow AI to be used to protect

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