A/HRC/28/57 prejudice the legitimate interests of the author (art. 9, para. 2). The TRIPS Agreement uses similar language, but replaces the “interests of the author” with the “interests of the rights holder” (art. 13). Commonly referred to as the “three-step test,” those two provisions are widely understood to set boundaries on States’ ability to enact copyright exceptions and limitations.29 Yet, considerable disagreement and uncertainty remains about how to interpret and apply the standard, leaving many countries hesitant to innovate.30 76. Given the importance of copyright exceptions and limitations for the right to science and culture, several avenues of international cooperation merit further exploration. Some analysts propose that international copyright law should recognize a core list of minimum required exceptions and limitations, incorporating those currently recognized by most States, such as quotations and citations, personal use, reproduction by libraries and archives for storage and replacement, copying and adaptation of computer code for interoperability, parody and others.31 Others suggest that a flexible fair-use provision be internationally adopted, explicitly giving countries permission and guidelines to develop additional exceptions and limitations as yet unforeseen.32 Many developing countries would like WIPO to build on its initiative for the Marrakesh Treaty, by considering a treaty on exceptions and limitations to copyright for libraries and archives and/or exceptions and limitations for education. Strongly supported by library advocacy organizations, that suggestion has met with resistance from developed countries. 33 C. Promoting cultural participation through open licensing 77. In addition to copyright exceptions and limitations, open licensing has emerged as another essential copyright tool for expanding cultural participation. Open licences do not replace copyright, but are based upon it. In that contractual practice, authors or other rights holders agree to waive many of the exclusive rights they hold under copyright law, enabling others to use the work more freely. Contracts replace an “all rights reserved” by a “some rights reserved” approach, employing standardized licenses where no compensation is sought by the copyright owner. The result is an agile, low-overhead copyright-management regime, benefiting both copyright owners and licensees. 78. The most widely used open licences are the Creative Commons licences. It is estimated that, by 2015, those licenses will have been attached to more than 1 billion creative works, including photos, websites, music, government databases, UNESCO publications, journal articles and educational textbooks.34 Creative Commons is working to make its open licences interoperable with open licences offered by other organizations, such as the Free Art License and the GNU General Public License widely used for opensource software. The idea behind those efforts is to create a “cultural commons,” in which everyone can access, share and recombine cultural works. 29 30 31 32 33 34 16 See Daniel J. Gervais, “Making Copyright Whole: A Principled Approach to Copyright Exceptions and Limitations”, University of Ottawa Law and Technology Journal, vol. 5, No. 1 (2008). See Christophe Geiger et al., “Declaration: A Balanced Interpretation of the “Three-Step Test” in Copyright Law”. Available form https://www.jipitec.eu/issues/jipitec-1-2-2010/2621/DeclarationBalanced-Interpretation-Of-The-Three-Step-Test.pdf. Okediji, ICTSD, p. 22–24. See, generally, Okediji, “International Fair Use”. Catherine Saez, “Hopes Dampened for Copyright Exceptions for Libraries/Archives at WIPO”, Intellectual Property Watch, 5 May 2014. Available from www.ip-watch.org/2014/05/05/hopesdampened-for-copyright-exceptions-for-librariesarchives-at-wipo/. For more information, see “State of the Commons”. Available from https://stateof.creativecommons.org/report/ (accessed on 4 December 2014).