14 - Compulsory Licensing – Subject Areas

Summary

This chapter examines a selection of the main subject areas in which compulsory licensing is used, particularly approaches to orphan works, and licences for mass digitisation projects. For each subject area considered, any effect of international copyright law (particularly the tree-step test), examples from individual jurisdictions and implications for the copyright public domain are considered. There are a wide variety of national approaches to orphan works problems. We find merit in the US Copyright Office’s ‘liability’ approach, particularly if it can be supplemented by a licensing scheme. EU proposals, and legislation, for mass digitisation are considered, and the implications of Soulier and Doke for such schemes. The chapter also discusses compulsory licensing in relation to education and translation (including special provisions applicable only to developing countries), cultural institutions, works unavailable to the public and some other categories. The Berne ‘Paris Appendix’ exceptional provisions for developing countries are criticised. Despite the constraints of international copyright law, countries are finding creative ways to extend the ambit of compulsory licensing without yet coming into collision with these constraints.