A/HRC/28/57 Significant reforms would be required for the Berne Appendix to serve its intended purpose of ensuring access to copyrighted materials in all languages, at affordable prices. 27 71. Depending on the country and specific context, exceptions and limitations may carry an obligation to make payments to authors and/or rights holders or may allow use without compensation. Recognizing that diversity of practice, the Berne Convention requires compensation in the context of statutory licensing arrangements for broadcasting and music recordings, but expressly permits uncompensated exceptions and limitations in other areas, such as quotation or parody. 72. Each approach has merits. While the right to protection of authorship might be interpreted to require fair remuneration in every case, there are many contexts in which unpaid uses are important to preserve and most appropriate, especially in developing countries.28 Examples include exceptions for non-commercial libraries, school theatre performances at which no admission is charged, non-commercial artistic endeavours and initiatives making works accessible to people with limited capacity to pay. There are also situations in which operating the necessary administrative apparatus to ensure compliance of required payments in all cases may be more trouble than it is worth, especially should the payment due to the author be very small, and/or where exceptions be rarely used. A lack of compensation does not by itself render an exception or limitation inconsistent with the right to protection of authorship, providing that exceptions and limitations are thoughtfully designed to balance human rights interests in cultural participation with protection of authorship. 73. A few countries have a more expansive and flexible exception or limitation, commonly referred to as “fair use”. Such provisions authorize courts to adapt copyright law to permit additional unlicensed uses that comply with general standards of fairness to creators and copyright holders. For example, the fair use doctrine in the United States encompasses protection for parody and certain educational uses. It has also been interpreted to permit a search engine to return thumbnail-sized images as part of its search results and to protect technology manufacturers from liability where consumers record a television show to watch later. Most States do not have such broad and flexible exceptions and limitations; instead each specific type of allowable use is listed in the statute. While enumerated provisions may provide greater clarity regarding permitted uses, they may also fail to be sufficiently comprehensive and adaptable to new contexts. B. International cooperation on exceptions and limitations 74. International copyright treaties generally treat copyright protections as mandatory, while treating exceptions and limitations as optional, with very few exceptions. For example, article 10 of the Berne Convention and most national laws specify that it shall not be considered infringement to make a reasonable quotation from a previously published work, for example in the context of research reports, newspaper reporting or literary criticism. Additionally, the recent WIPO Marrakesh Treaty requires signatory States to enact copyright exceptions and limitations in favour of visually impaired readers. 75. The standard for judging whether a particular exception or limitation is permissible under international copyright law is not articulated with precision. The Berne Convention preserves national discretion to legally permit even outright copying in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably 27 28 Okediji, ICTSD, p. 19. Ibid., p. 19. 15