Resolving legislative ambiguities in reprographic reproduction and copyright management: a comparative study and policy recommendations for the U.S., Georgia, and Russia

I. Introduction

Copyright management and reprographic reproduction rights are essential to ensuring fair access to and protection of creative works in educational, artistic, and commercial contexts. Yet, legislative ambiguities in these areas pose significant challenges for policymakers, rights holders, and users. This study explores the legal frameworks governing reprographic reproduction across three distinct jurisdictions –Georgia, Russia, and the United States. By examining the gaps within Georgian and Russian laws, such as unclear definitions and rigid applications, and contrasting them with the more flexible U.S. "Fair Use" doctrine, the analysis seeks to identify improvements that could enhance copyright management practices in Georgia and Russia. This comparative approach underscores the need for clearer definitions and adaptable regulations that safeguard the economic rights of copyright holders while accommodating educational and non-profit uses.

II. Gap Related to Reprographic Reproduction in Georgia's Law on Copyright and Related Rights

Individuals and legal entities are required to obtain the appropriate permission from the rights holder or the collective management organization and to pay the corresponding copyright royalty.

Article 22 of the law sets the limits for the extent of quotation. Specifically, it establishes that when quoting, the author and source must be cited, and in certain cases, the quotation is allowed only to the extent necessary for the intended purpose. For the purposes of this analysis, it is important to examine and interpret subparagraph "g" of the above-mentioned provision. According to this subparagraph, educational institutions are permitted to carry out the reprographic reproduction of articles, other short works, or excerpts from written works for educational purposes without paying royalties to the author.

An analysis of all the above points reveals the following circumstances:

• The legislator prohibited users from reproducing an entire work through reprographic means without paying a copyright royalty;
• They allowed the use of short excerpts from a work without the author’s permission or payment of royalties. In doing so, the legislator aimed to establish the "minimum" and "maximum" standards within which both the rights holder and the collective management organization would be authorized to protect copyright during reprographic reproduction in the course of their activities.

Despite the established standards, there are certain contentious issues that hinder the protection of the copyright holder's economic rights in the context of reprographic reproduction. Specifically:

• What does the term "short excerpt" used in subparagraph “g” of Article 22 mean?
• What volume of the work is considered a "short excerpt"?

Although the legislator set maximum standards for the use of a work, prohibiting its reprographic reproduction without the payment of royalties, and also established a minimum standard within which users are exempt from paying royalties, the scope of authority for both the author/copyright holder and the association remains undefined. This ambiguity affects the protection of copyright, the issuance of licensing agreements, and the collection of royalties in cases of reprographic reproduction.

The main flaw in the law lies in the fact that the term "short excerpt" is extremely vague. The legislator did not provide a definition for it in Article 4 (titled "Definitions of Terms Used in the Law"), [1] leaving it entirely open to interpretation.

Based on the entire text of the law, as well as its objectives, it is very challenging to define what the legislator meant by the term "short excerpt." To provide a comprehensive interpretation, it is essential to consider international treaties, existing international practices, and the experience of foreign collective management organizations on this issue.

III. Practical Issues Arising from Legislative Gaps in the Activities of the Collective Management Organization

Since the late 18th century, copyright has been managed collectively [2, p. 11]. It can be said that France is considered the founding country of the collective management organization [3, p. 98]. The first collective management organization, established in 1777, protected the copyright of authors of literary and artistic works in the theater sector. Similar organizations primarily manage copyright in the music industry. The first organization of this type was founded in France in 1850 [4, p. 11], and today, they exist in almost every country.

A collective management organization for property rights is established voluntarily by the copyright holders themselves [1]. Based on the contract concluded between the rights holder and the organization, the latter is authorized to manage the economic rights of the author or other copyright holders, collect royalties, and enforce copyright on their behalf. If any person, who is considered a user under the law, intends to use a copyrighted work, such as a musical piece, they must obtain the appropriate license or permission directly from the rights holder or the collective management organization and pay the required royalty [4].

A collective management organization is an independent, private entity that provides users with all the necessary information related to the use of copyrighted works. It also ensures that the scope of use covered by the license obtained by the user adequately reflects the usage rights for the work [4].

In Georgia, only the Georgian Copyright Association is authorized to manage copyrights on a collective basis for authors and other copyright holders. The "Association" was established and operates based on Georgia's Law on Copyright and Related Rights, as well as its own statutes [5]. Specifically, it has been granted the status of a collective management organization for property rights by the Ministry of Justice of Georgia. The "Association" is a non-commercial legal entity created to realize and protect the common interests of copyright holders or their heirs/successors who have joined the association for collaborative activities [5].

Since 2006, the "Association" has been a full member of the International Confederation of Societies of Authors and Composers (CISAC); since 2009, it has been an associate member of the International Federation of Reproduction Rights Organisations (IFRRO); and since 2010, it has been a member of the International Bureau of Societies Administering the Recording and Mechanical Reproduction Rights (BIEM).

Based on international agreements concluded with similar associations in over 150 countries, the "Association" is the sole organization in Georgia authorized to manage not only the interests of Georgian rights holders but also those of over three million foreign authors and other copyright holders. It is empowered to issue licenses, collect royalties, and distribute them in accordance with established regulations.

As noted in the previous paragraph, the Georgian Copyright Association, as the collective management organization for property rights, is the sole institution of its kind in Georgia that protects and manages the copyrights of both Georgian and foreign rights holders. For the topic under consideration, it is important to examine the "Association's" activities concerning reprographic reproduction.

Based on contracts concluded with rights holders and similar organizations, the "Association" is authorized to manage, administer, and protect the economic copyright interests of authors and other copyright holders in cases of reprographic reproduction.

To implement this authority and, above all, to protect copyright, the "Association" has developed a tariff rate for the reprographic reproduction of copyrighted works using photocopiers or other technical means in paper format [6].

According to this tariff, when schools, higher education institutions, scientific institutions, and libraries reproduce fragments of books, sheet music, or visual works for educational purposes through reprographic means, 0.3% of the income generated from this service must be paid as a copyright royalty, but not less than 35 GEL per month for each reprographic device. If the same action is carried out by third parties for the same purpose, 0.3% of the income generated from the service must also be paid as a copyright royalty, but not less than 25 GEL per month for each reprographic device [6].

Accordingly, relying solely on the law's "vague" provisions to protect copyright during reprographic reproduction and to establish a royalty calculation method based on the set tariff is not sufficient for the "Association" to fully carry out its activities and establish effective relationships with users engaging in reprographic reproduction.

If the "Association" establishes relationships with educational institutions based on the tariff set for reprographic reproduction, it will be challenging to fulfill the rights and obligations outlined in the licensing agreement. Specifically, it will be impossible for both the "Association" and the user to accurately determine the exact list and volume of works that have been reproduced by the user through reprographic means. Additionally, it will be difficult to precisely determine the amount of revenue generated from the reprographic reproduction service, from which the user is required to pay 0.3% as a copyright royalty.

The main issue lies in the ambiguity of the term "short excerpt." Since neither the law nor the tariffs established by the "Association" define what volume qualifies as a "short excerpt," it becomes impossible to establish a harmonious relationship between the collective management organization and entities using reprographic reproduction. On the one hand, it would be unfair and unlawful for the "Association" to regulate the reproduction of works of any volume under its jurisdiction without clear guidelines. However, if this relationship remains unresolved, the economic rights of the copyright holders are violated, leaving them without their due royalties. On the other hand, it is crucial to define exceptions where the user is exempt from paying royalties, ensuring that the copyright of authors and other rights holders is protected accordingly.

In conclusion, the ambiguity of the term "short excerpt" makes it difficult to define the scope of the "Association's" authority regarding the reprographic reproduction of copyrighted works – specifically, the volume and limits for which it should issue licensing agreements with users engaged in reprographic reproduction, such as educational institutions. This, in turn, complicates the collection and distribution of royalties. Ultimately, the "Association" is unable to fully exercise the rights delegated to it by law and by the authors or other copyright holders. As a result, it fails to fulfill its legal obligations, directly infringing upon the legitimate interests of the rights holders.

IV. Ways to Eliminate the Ambiguity in the Definition of Terms Related to Reprographic Reproduction

a. Definition of the Term

a.1. The "Three-Step" Test

Fair use, as well as exceptions and limitations for copyright holders, establish specific cases where the reproduction of their works is permissible. If the use of a work can be considered fair or falls within the established limitations and exceptions, it does not constitute a violation of rights. Such systems allow users to reproduce an entire work or a portion of it through reprographic means, even if the rights holder has not granted permission or has prohibited such actions. Ultimately, these types of exceptions and limitations, which are included in various international treaties, are known as the "Three-Step" Test [7].

The "Three-Step" Test was first introduced in the Berne Convention in 1997 [8, p. 1]. This test serves as a central element at the international level for regulating exceptions to copyright. The "Three-Step" Test is the most significant and comprehensive basis for granting privileges for the use of works at the national level. It allows legislators to address domestic social, cultural, and economic interests [9].

According to Articles 9, 10, and 10bis of the Convention, authors of literary and artistic works protected under the Convention have the exclusive right to authorize the reproduction of their works. However, signatory countries may establish certain cases where the reproduction of a work is permitted without the author’s permission, provided that such use does not harm the normal exploitation of the work and does not unjustifiably prejudice the author’s legitimate interests. Specifically, Sam Ricketson, in his book The Three-Step Test, Deemed Quantities, Libraries, and Closed Exceptions, explained that Article 9, Paragraph 1 of the Convention explicitly prohibits the reprographic reproduction of periodicals, short stories, and all other types of works, whether literary, scientific, or artistic. Paragraph 2 of the same article allows individuals to reproduce works without the author’s prior permission for matters relating to current economic, political, and religious events. Article 10 permits the quotation of short excerpts from newspapers and periodicals, while signatory countries are allowed to determine the extent to which literary and artistic works may be quoted for educational or scientific purposes. Article 10bis enables signatory countries to define, within their legislation, the limits of short excerpts for which the reproduction of a work is allowed without the author’s permission for informational purposes [10].

It should also be noted that the "Three-Step" Test derives from Article 9, Paragraph 2 of the Convention and must be considered cumulatively with the aforementioned exceptions. By going through each stage of this method, it is determined whether the author’s or copyright holder's legally defined economic rights have been violated during reprographic reproduction.

The "Three-Step" Test consists of three stages:

1. Reproduction is allowed only in certain special cases.
2. Reprographic reproduction does not harm the normal exploitation of the work.
3. It does not unjustifiably prejudice the legitimate interests of the author.

According to existing interpretations, the first step is the primary criterion of the test [8, p. 2-3], while the other two serve as additional criteria, collectively forming the "Three-Step" Test.

It should also be noted that the "Three-Step" Test was incorporated into international treaties adopted after the Berne Convention, and its scope of application has expanded, although its core objective has remained unchanged. As mentioned earlier, exceptions similar to those in the Berne Convention were included in subsequent international agreements such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the WIPO Copyright Treaty (WCT). These types of exceptions may also be incorporated into domestic legislation.

For a general overview, it is interesting to compare the exceptions provided by the Berne Convention and those outlined in the TRIPS Agreement.

The "Three-Step" Test in the Berne Convention applies only to the reprographic reproduction of copyrighted works, whereas the exceptions and limitations set forth in Article 13 of the TRIPS Agreement apply to any use of a work, regardless of form. Additionally, it is noteworthy that the Berne Convention considers only the economic interests of the author/creator of the work, while the TRIPS Agreement, by using the term "rights holder," protects the economic interests of the company that acquired the copyright from the author/creator [7].

a.2. Overview of Each Step of the "Three-Step" Test

As previously noted, the "Three-Step" Test consists of three stages:

1. Reproduction is allowed in certain special cases.
2. Reprographic reproduction does not harm the normal exploitation of the work.
3. It does not unjustifiably prejudice the legitimate interests of the author.

Defined Special Cases

First, it is important to interpret the term "special." This term was first officially defined by an international tribunal. In his article, Towards a New Core International Copyright Norm: The Reverse Three-step Test, Daniel Gervais notes that this definition politely dismissed Ricketson’s approach to the term and instead emphasized the Oxford Dictionary’s interpretation. According to the Oxford Dictionary, the term "special" can be defined in two ways: 1. An individual or limited statement or purpose; detailed; precise; specific; of an unusual or high degree; extraordinary. 2. Differing in some detail [11, p. 14-15].

To satisfy the first stage of the test, more than a clear definition is required. Additionally, it is necessary to note that exceptions or limitations must be confined to their scope of use or a specific area of application. In other words, exceptions and limitations must be narrowed down both quantitatively and qualitatively [11, p. 15].

Based on these definitions, similar to the author of the article, we can assume that the term "special" refers to a limited scope of use or a specific area of application. The term was ultimately clarified at the 1967 Stockholm Conference, where it was noted that if reproduction is considered a violation of the normal exploitation of a copyrighted work, then reproduction rights will not be permissible. However, if reproduction is deemed consistent with the normal use of the work, then the next stages of the "Three-Step" Test can be assessed.

As we have seen, the term "special" implies a limited scope of use, which in turn means that the reproduction of a work must align with its normal use. Otherwise, it would constitute a violation of copyright.

a.3. Reprographic Reproduction Does Not Harm the Normal Exploitation of the Work

At this stage, it is important to define the term "exploitation." Daniel Gervais, in his article Towards a New Core International Copyright Norm: The Reverse Three-step Test, noted that its definition is quite broad, referring to the copyright holder's attempt to obtain or maximize the value of their rights through any use of the work. During the 1968 revision of the Berne Convention in Stockholm, it was established that this stage applies to any type of exploitation that may have or could acquire economic or practical significance for the author or copyright holder [11, p. 16]. Accordingly, it is clear that the term "exploitation" is directly linked to the acquisition of the economic value of the right, which represents both an imperative and normative concept. It encompasses any use that has or may acquire significant economic or practical importance [8, p. 3].

Based on this definition, we can conclude that the exploitation of a copyrighted work is impermissible if it holds significant economic or other value for the author or copyright holder. Exceptions that undermine the commercial market significance of the work and conflict with the author’s or copyright holder’s rights are not allowed [8, p. 16-17].

a.4. Reprographic Reproduction Unjustifiably Prejudices the Author’s Legitimate Interests

The third step most clearly emphasizes the necessity of maintaining a balance between the rights of copyright holders and the interests of users. The author’s legitimate interests, of course, refer to those protected by law. As for "unjustifiable harm," defining this requires careful consideration, as harm can sometimes be deemed justified. It is crucial to determine such circumstances because this ensures a balance between the interests of copyright holders and users. Justifiable harm may be recognized when there is a public interest that limits the rights of the author or copyright holder as defined by law [11, p. 17-18].

Based on the interpretation of each stage of the "Three-Step" Test, we can conclude that if the exploitation (use) of a work occurs under normal conditions, does not conflict with the commercial or other significant interests of the author or copyright holder, and the harm caused by its use can be deemed justified, the use of the copyrighted work is permissible without the rights holder's consent and without the payment of royalties.

As we can see, this method allows for the determination of whether copyright has been violated in each specific case using clearly defined standards. These criteria are not tied to any specific time or era. Consequently, the test can be applied in the future, regardless of technological developments, as the "Three-Step" Test is based on general and essential aspects of intellectual property law that ensure the protection of works from any form of infringement.

All three components of the "Three-Step" Test should be considered a comprehensive, overarching assessment that takes into account all potential risks arising from excessive copyright protection, which could threaten other universally recognized human rights [7].

4. "Three-Step Test" vs. "Fair Use" & "Fair Dealing"

The application of the "Three-Step Test" is characteristic of countries following the continental European legal system. In contrast, common law countries focus on the application of "Fair Use" or "Fair Dealing" [16]. For the purposes of this discussion, it is worthwhile to briefly examine these methods.

a. Fair Use

Fair Use is governed by U.S. copyright law (U.S. Copyright Act, §107) [13] and establishes limitations and exceptions to the exclusive rights of authors and other copyright holders [13]. It is important to note that sections §107-118 of the U.S. Copyright Act define various circumstances under which the reproduction rights of a copyright holder are limited. Among these, the most significant is the doctrine of Fair Use, which has been shaped by numerous court decisions and years of practice in its current form [14].

Section §107 of the U.S. Copyright Act defines various instances in which reproduction is considered fair use, such as for purposes of commentary, criticism, funding, research, or education [14]. This provision establishes four main criteria for determining whether the use of a work constitutes fair use: a) the purpose and character of the use, including whether it is of a commercial nature or is for non-profit educational purposes; b) the nature of the copyrighted work; c) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and d) the effect of the use upon the potential market for or value of the copyrighted work [14]. It should also be noted that in the court decision Field v. Google, 412 F. Supp. 2d 1106 (D. Nev. 2006), a 'fifth criterion' for fair use was established – 'whether the infringer acted with good faith intent [16, p. 1].

On the other hand, Russia's approach to reprographic reproduction rights is governed by Part IV of the Civil Code of the Russian Federation, which became effective on January 1, 2008. This legal framework defines "reprographic reproduction" as the facsimile reproduction in one or more copies, regardless of the dimensions and form thereof, of originals or copies of written or other graphic works by means of photocopying or with the aid of other technical means different from publishing. Notably, this definition excludes the storage or reproduction of copies in electronic or optical form, or in any other machine-readable form [17].

In comparison to the U.S. "Fair Use" doctrine, which offers flexibility for educational and non-profit uses, Russia's system is more rigid, requiring users to navigate fixed licensing requirements. This structured yet inflexible model presents challenges in balancing copyright protection with practical access, especially in academic and educational contexts.

b. Fear Dealing

Fair Dealing provides various mechanisms for defending against copyright infringement [15]. The UK Copyright, Designs and Patents Act (CDPA), specifically Part 28, defines the concept of fair dealing in relation to education. Specifically, if a work is used for research or private study, it does not constitute copyright infringement, provided that the use is non-commercial [16, p. 1].

Unlike the U.S. "Fair Use" doctrine, "Fair Dealing" applies only to actions that fall within specific, predefined categories. As a result, it is not as flexible as the American model [16, p. 1].

As we can see, the two models discussed ("Fair Use" and "Fair Dealing") differ significantly from the "Three-Step" Test. It is this latter framework that the Georgian legislator opted for, drawing on the experience of countries with continental European law. Article 18, Paragraph 9 of Georgia's Law on Copyright and Related Rights defines the "Three-Step" Test.

Conclusion

The legislative ambiguities surrounding reprographic reproduction and copyright management in Georgia create significant challenges for both rights holders and users. The undefined scope of what constitutes a "short excerpt" in Georgia’s copyright law limits the effectiveness of collective management organizations (CMOs) in administering licenses, calculating royalties, and protecting authors' economic rights. Without clear guidelines, CMOs struggle to enforce agreements and ensure fair compensation, thereby jeopardizing the economic interests of copyright holders.

Comparatively, the U.S. "Fair Use" doctrine provides a structured approach that accommodates specific instances of use while protecting the copyright holder's rights. This study's comparative analysis highlights how adopting elements of the U.S. framework could clarify Georgia’s legislative gaps, improving the clarity and enforceability of copyright management practices.

In conclusion, addressing these ambiguities through legislative reform and adopting clearer definitions would strengthen Georgia's copyright management system. By incorporating international best practices, such as the structured flexibility seen in the U.S. system, Georgia can enhance its copyright enforcement mechanisms and better protect the rights of authors and CMOs.