Are copyright-permitted uses “exceptions”, “limitations” or “user rights”? The special case of Article 17 CDSM Directive
by Tito Rendas
In law, terminology matters a great deal. In the specific case of copyright, it matters because the words we use to refer to permitted uses of protected works – uses like private copying, quotation or parody – may have important practical consequences. With this forthcoming article, I hope to clarify the legal nature of permitted uses in copyright law. For that purpose, I shall tackle two sources of terminological disagreement.
The first relates to the nature of the rules that lay down permitted uses, specifically whether they should be considered “exceptions” or “limitations”. According to conventional wisdom, this terminological choice may affect the way we interpret these provisions: it is said that “exceptions” must be interpreted in a strict manner, whereas “limitations” tolerate broad readings. After concluding that the rules setting forth permitted uses are better described as “exceptions”, I make clear that this qualification should not be taken as carrying a preference for their narrow interpretation or as admitting their hierarchically inferior status in relation to exclusive rights. Despite being exceptions, nothing prevents these rules from being construed extensively.
I then move on to examining the nature of the entitlements conferred by copyright exceptions. I submit that, in general, these entitlements are not rights properly-so-called, since they are not paired with a correlative duty. Instead, we should refer to them as “privileges” or “freedoms”.
In some cases, however, the prerogatives enjoyed by users may be appropriately qualified as “rights”. I argue that the safeguards contained in Article 17 CDSM Directive create one such case. Whereas Article 17(7) puts online content-sharing service providers under a duty not to prevent uses that are covered by exceptions, Article 17(9) gives the beneficiaries of exceptions access to truly offensive means of reaction, instead of mere means of defense. Read together, these safeguards confer actual rights upon users.
[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]