The topic of copyright limitations and exceptions attracts extensive jurisprudence and academic commentary. However, the terms ‘limitations’ and ‘exceptions’ remain undefined in international copyright law. The World Intellectual Property Organization (WIPO) has offered three conflicting definitions for these terms. First, the 1980 WIPO Glossary suggests the terms are synonymous. Second, a 1999 WIPO Workshop describes ‘limitations’ as permitted-but-paid uses of a protected work, and ‘exceptions’ are free uses. Third, a 2003 WIPO Study says ‘limitations’ exclude certain subject matter from copyright protection, and ‘exceptions’ provide defendants with immunity from copyright infringement. The diversity of definitions reduces legal clarity. Amid this confusion, a former Director and Assistant Director General of the Copyright Division at WIPO suggests it is best for commentators to “avoid” using the terms altogether when describing international copyright unless they enter a “debate about the categorization, justification and ideological background of exceptions and limitations”.

Article 13 TRIPS of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement set a major international test for permissible copyright limitations and exceptions. The drafting history for this provision suggests a subtly different set of definitions so far overlooked by WIPO. As early as 1958, the US Copyright Office recognised that legislatures could exclude permitted acts from the scope of copyright statutes either by narrowly defining the scope of exclusive rights using a ‘limitation’ (such as restricting the exclusive right of communication to ‘the public’, indicating that it is always lawful to communicate to private entities); or the legislature broadly defines exclusive rights (a general communication right) and subsequently provides an ‘exception’ that excludes a potential group of users from liability (perhaps a carve-out for private performances). The US Copyright Office saw two differences between limitations and exceptions: i) a formal difference and ii) a potential normative difference.

Copyright legal theorists know the formal difference between limitations and exceptions, but most agree that the US Copyright Office distinctions do not matter in practice. This leads people to think that limitations and exceptions are synonymous terms. However, almost 250 years ago, Jeremy Bentham explored the philosophical and normative differences between limitations and exceptions. Copyright legal theorists have so far overlooked the contributions of Bentham and his progeny.

Bentham’s theory suggests there is a right time for a legislature to use either a limitation or exception. Legislatures should use limitations to prevent the positive scope of a prohibition from exceeding its justificatory basis. Examples of copyright limitations include the idea/expression dichotomy and the permitted act of criticism. In contrast, a legislature should use exceptions to accommodate competing policies that trump copyright, such as the US bars and grills exceptions to public performance rights. Attending to this framework can enrich many aspects of copyright practice, including i) the improved readability of copyright statutes, ii) an improved legal theory of the relationship between copyright and contract law, and iii) a radical reinterpretation of Article 13 TRIPS that may provide more flexibility in enacting national limitations to copyright law.