Making Copyright Whole: A Principled Approach to Copyright Exceptions and Limitations

41 Pages Posted: 2 May 2011

See all articles by Daniel J. Gervais

Daniel J. Gervais

Vanderbilt University - Law School

Date Written: 2008


This Article suggests a pat h to develop a principled conceptualization for copyright of limitations and exceptions at the international level. The paper argues that, normatively, copyright has always sought to reflect a balance between protection and access. It demonstrates that this balance was present to the minds of the negotiators of the 1886 Berne Convention for the Protection of Literary and Artistic Works and may have been somewhat overlooked in revisions of the Convention. It was ultimately replaced by a three-step test designed to restrict the ability of individual legislators to create limitations and exceptions. The article also considers the conflicts between copyright and rights such as the right to privacy, human rights principles of free expression and cultural diversity, the right to information, the right to education, and the nascent right to development, all of which imply striking a balance in intellectual property protection. The article begins with a historical look at the public interest foundations of the Berne Convention and its revisions until 1971. The article then proceeds to a conceptualization of limitations and exceptions in order to show the policy linkages of each type of exception and proposes a set of principles for limitations and exceptions. The article also examines the meaning and impact of the three-step test because it would be pointless, not theoretically, but from a policy perspective, to ignore the application of the test in suggesting international principles for limitations and exceptions.

Suggested Citation

Gervais, Daniel J., Making Copyright Whole: A Principled Approach to Copyright Exceptions and Limitations (2008). University of Ottawa Law & Technology Journal, Vol. 5, Nos. 1&2, 2008. Available at SSRN:

Daniel J. Gervais (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615 322 2615 (Phone)

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