Copyright and open norms in seven jurisdictions: Benefits, challenges & policy recommendations.

Abstract

This report explores the adoption, use and impact of open norms, as introduced in seven jurisdictions. In particular, the project’s aim was to understand the following: (a) motivations for the adoption of an open norm; (b) how a country has transitioned to an open norm; (c) the benefits and challenges of adopting an open norm; (d) impact on technology, education, research and library sector as relevant; (e) interpretation of open norms by the judiciary; and (f) adoption and use of an open norm, during the COVID-19 pandemic. To achieve this, the countries were divided into two categories (mixed and civil legal systems) before presenting them in alphabetical order within the report. As such, under mixed/hybrid legal systems, Canada, Israel, Singapore and Sri Lanka are explored whilst Japan and South Korea are considered as examples of civil jurisdictions. The report commences with an assessment of the USA’s fair use doctrine before moving on to the other 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.