[CCWG-ACCT] Speaking of our Adviser recommendations

Sun Jun 7 17:30:08 UTC 2015

Highest courts have held fair use is the breathing space that allows IPR laws to exist without conflicting with freedom of expression guarantees.  So fair use is unquestionably rooted in free expression, which certainly is a well accepted human right (UNDHR Art. 19).  Albeit like every right, there are some differences between jurisdictions in how the concept is put in practice - hence the 3-step test, attempting to harmonize that some extent.

Thanks,
Robin

On Jun 2, 2015, at 12:12 PM, Metalitz, Steven wrote:

> I realize I am coming in late to this conversation but I believe Becky is correct.  Of perhaps more relevance, there is no “fair use right” in the international norms applicable to copyright law.  There are obligations to recognize certain exclusive rights in national laws, and permission (but no obligation) for those national laws to recognize exception and limitations to those rights, within the boundaries of the 3-step test that Jorge refers to and that Becky quotes.
>  
> Steve Metalitz    
>  
> From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Jorge.Cancio at bakom.admin.ch
> Sent: Tuesday, June 02, 2015 3:03 PM
> To: Becky.Burr at neustar.biz; robin at ipjustice.org; Bruce.Tonkin at melbourneit.com.au; accountability-cross-community at icann.org
> Subject: Re: [CCWG-ACCT] Speaking of our Adviser recommendations
>  
> That's a very good point, really, but explanations on this could be very lengthy. Traditionally, the three-step-test has been seen as a sort of limit to fair use provisions (US and similar jurisdictions) as well as for specific exceptions and limitations (civil law countries) - as a ceiling to such provisions (which was only agreed in the 1960's if my recollection is right). However, there are differing interpretations which see the test also as a more "empowering" provision, also enabling new interpretations of existing limitations in light of societal change...
> 
> Jorge
> 
> 
> 
> -----Ursprüngliche Nachricht-----
> Von: Burr, Becky [mailto:Becky.Burr at neustar.biz] 
> Gesendet: Dienstag, 2. Juni 2015 20:58
> An: Cancio Jorge BAKOM; robin at ipjustice.org; Bruce.Tonkin at melbourneit.com.au; accountability-cross-community at icann.org
> Betreff: Re: AW: [CCWG-ACCT] Speaking of our Adviser recommendations
> 
> Thanks Jorge, very helpful. But that test acts as a limitation on fair use exceptions doesn't it? "Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder."
> 
> 
> 
> J. Beckwith Burr
> Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
> 1775 Pennsylvania Avenue NW, Washington, DC 20006
> Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr at neustar.biz / www.neustar.biz
> 
> 
> 
> 
> 
> 
> On 6/2/15, 2:47 PM, "Jorge.Cancio at bakom.admin.ch"
> <Jorge.Cancio at bakom.admin.ch> wrote:
> 
> >Well, you don't have an internationally agreed standard of fair use, 
> >but you have the three-step-test (Berne Convention, TRIPS...)
> >
> >Regards
> >
> >Jorge
> >
> >-----Ursprüngliche Nachricht-----
> >Von: accountability-cross-community-bounces at icann.org
> >[mailto:accountability-cross-community-bounces at icann.org] Im Auftrag 
> >von Burr, Becky
> >Gesendet: Dienstag, 2. Juni 2015 20:17
> >An: Robin Gross; Bruce Tonkin; accountability-cross-community at icann.org
> >Community
> >Betreff: Re: [CCWG-ACCT] Speaking of our Adviser recommendations
> >
> >We are addressing expression (mission, commitments, core values) and 
> >due process (commitments and core values)
> >
> >Is there an internationally recognized human right of fair use and how 
> >broad is it?
> >
> >Privacy is my primary day job. To the extent there is an 
> >internationally recognized right to privacy, I believe it is stated in 
> >the International Convention on Human Rights and the International 
> >Covenant on Civil and Political rights as follows: "No one shall be 
> >subjected to arbitrary or unlawful interference with his privacy, 
> >family, home or correspondence, nor to unlawful attacks on his honour 
> >and reputation.² Sovereign governments determine what is unlawful in 
> >their jurisdiction, and I¹m not sure ICANN is in a position to 
> >interpret and apply all of the privacy laws around the world. 
> >Presumably, ICANN¹s role would be to avoid arbitrary interference with 
> >privacy rights? I don¹t think ICANN is entitled to be arbitrary about 
> >most anything
> >
> >
> >J. Beckwith Burr
> >Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
> >1775 Pennsylvania Avenue NW, Washington, DC 20006
> >Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / 
> >becky.burr at neustar.biz / www.neustar.biz
> >
> >
> >
> >
> >
> >
> >On 6/1/15, 10:17 PM, "Robin Gross" <robin at ipjustice.org> wrote:
> >
> >>Thanks, Bruce. I do believe that is the right approach and suggest 
> >>that we focus on the following Internet users' fundamental freedoms:
> >>1. Freedom of expression including fair use rights 2. Privacy rights 
> >>3. Due process rights
> >>
> >>Thank you,
> >>Robin
> >>
> >>On Jun 1, 2015, at 7:12 PM, Bruce Tonkin wrote:
> >>
> >>> Hello Avri,
> >>> 
> >>> 
> >>>>> Just wanted to say how impressed I was to hear several of our 
> >>>>>advisers pointing out that the work we had done to date had not 
> >>>>>emphasized Human Rights in our principles. And that it was 
> >>>>>important we did so.
> >>> 
> >>> Perhaps it could be more explicit in our core values?
> >>> 
> >>> I assume you are not talking so much about the right to food and 
> >>>shelter, or no-one should be a slave etc (part from perhaps the 
> >>>volunteers at ICANN that might feel that way at times :-)) - but 
> >>>more specifically you are talking about the right to freedom of speech etc.
> >>>ie it would be useful to pull out the sections of the Universal 
> >>>Declaration of Human Rights that are relevant to ICANN's narrow mission.
> >>> 
> >>> Regards,
> >>> Bruce Tonkin
> >>> 
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