Limitations and exceptions form an integral part of copyright law’s basic entitlement structure. While copyright law is ordinarily thought to consist primarily of exclusive rights, the regime’s various limitations and exceptions from liability (for copyright infringement) form an integral part of its functioning and serve to balance copyright’s grant of a private benefit (to authors/ creators) with the broader public interest. Properly crafted limitations and exceptions are of pivotal importance to mediating copyright law’s promise of providing creators with an incentive to produce new works and its devotion to affording the public access to these works, once brought into existence. They also shape a host of copyright law’s additional ideals in promoting democracy and cultural progress in ways that the system’s framework of exclusive rights cannot deliver on its own.
While the basic exclusive rights structure has been the subject of extensive international and comparative law discussion, including in the formation of international treaties (e.g., the Berne Convention and the TRIPS Agreement), copyright’s limitations and exceptions have thus far evaded such systematic analytical investigation from an international and comparative perspec- tive. Indeed, the World Intellectual Property Organization (WIPO) recently considered pro- posals to move forward on a comprehensive treaty to harmonize countries’ limitations and exceptions across the world through the creation of minimum standards. Owing to objections from rights holders and WIPO member states, the proposal was eventually shelved, with the organization deciding to focus on individual areas of limitations (e.g., exceptions for the visually impaired contained in the Marrakesh Treaty).