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My Take on the WIPO Marrakesh Treaty/14/END

(Previous episodes here).
Thus, for instance, the compatibility, under the second prong of the three-step test, of the commercial availability of accessible format copies with the enjoyment of limitations and exceptions for the print disabled has not been questioned in US copyright law, where the so called “Chafee Amendment” does not require authorized entities to check for the commercial availability of accessible format copies prior to making copies.
Nevertheless, countries are in principle free to enact limitations and exceptions in their national copyright legislation that are located well below the “upper” limit indicated by the test. The 2006 Sullivan Study noted in this respect that exceptions for the benefit of the visually impaired in some national copyright laws included a requirement that the work to be used had not been published already “in a special format” or “in an accessible format."
When national legislators insist on the absence of commercial availability, there i…

My Take on the WIPO Marrakesh Treaty/13

(Available episodes so far here).

Furthermore, as mentioned above, the three-step test formed the dense background against which the domestic and the cross-border contours of the mandatory exemptions for the benefit of the print disabled were negotiated at the WIPO. Particularly illustrative in this respect is the issue of commercial availability, which negotiators could solve only in the very last hours of the Marrakesh diplomatic conference.

Briefly put, the question was whether it was appropriate to impose the lack of commercial offers of accessible/special format works as a condition of the applicability of the limitations and exceptions established by the Treaty. In other words, whether it was necessary to check for commercial availability of publisher offerings with accessibility features able to meet the needs of the print disabled, before invoking the exemptions covered by the new international instrument.

During the treaty negotiations, the World Blind Union and other stake…

My Take on the WIPO Marrakesh Treaty/12

(Available episodes so far here).

Short of incorporating a stand-alone three-step test into the final language of the Marrakesh Treaty, the “general clause” of Article 1 should be read as preponderantly referring to the non-derogation of the obligations concerning the three-step test that contracting parties have to each other under any other treaties. Furthermore, Article 11, under the heading “General Obligations on Limitations and Exceptions,” states that contracting parties, “in adopting measures necessary to ensure the application of this Treaty,” need to comply with their extant obligations concerning the application of the various iterations of the three-step test under Berne, TRIPS, and the WCT.

At the close of the intense Marrakesh negotiations, a carefully achieved compromise emerged also on the “Berne Gap” issue. Under Article 5(4)(a), when an authorized entity of a non-Berne country receives accessible format copies from another country, it will ensure that those copies…

My Take on the WIPO Marrakesh Treaty/11

(Available episodes so far here).

The 1996 WIPO Performances and Phonograms Treaty, and the Beijing Audiovisual Performances Treaty, concluded in 2012, also include instrument-specific three-step tests. As to the more recent Treaty, Article 13(2) states that contracting parties, in providing in their national legislations limitations or exceptions with regard to the protection of performers, “shall confine” them “to certain special cases which do not conflict with a normal exploitation of the performance and do not unreasonably prejudice the legitimate interests of the performer.” An agreed statement concerning Article 13 of the Beijing Treaty adds that the WCT agreed statement concerning Art.10, considered at length above, “is applicable mutatis mutandis also to Article 13.”

Having regard to its importance and its historically laden complexity, it comes as little surprise that the three-step test soon became one of the most debated issues in the course of the years-long negotiations…

My Take on the WIPO Marrakesh Treaty/10

(Available episodes so far here).
Against the background of the existing treaties and conventions, it would be difficult to read in the first paragraph of the agreed statement a general permission (“carte blanche”) given to member states to justify basically any exception and limitation that becomes relevant because of the digital environment, despite the boundaries set by existing obligations, and in particular by the three-step test. On the other hand, this part of the agreed statement carries more weight than a mere rhetoric argument readily embraced by some in the heat of discussions and negotiations involving exceptions and limitations. More appropriately, the agreement indicates, it seems, that the overall application of the WCT three-step, also in line with the Treaty’s Preamble stressing the need to maintain a balance in copyright law, should not hamper the protection of the interest of the general public in the digital environment.In this respect, the Marrakesh Treaty’s prom…

My Take on the WIPO Marrakesh Treaty/9

(Available episodes so far here).
If the country is a TRIPS member, Article 9(1) requires compliance with Articles 1-21 (other than Article 6bis on moral rights) of Berne, i.e. also with the three-step test and the minor reservation doctrine therein, regardless of whether the country concerned is a member of the Berne convention. Additionally, according the interpretation taken by the WTO Panel, Article 13 of TRIPS, a slightly modified version on the Berne three-step test, applies to all the exclusive rights protected under articles 1 to 21 of Berne, and not only to the TRIPS-specific rental right. However, Article 2(2) of TRIPS and Article 20 of Berne do not allow, it seems, for a broader application of Article 13 of TRIPS than what the Berne Convention would permit. With regard to exceptions for the benefit of the print disabled, it follows that both the Berne and the TRIPS three-step tests apply to the right of reproduction, while the TRIPS test applies to the other Berne rights w…

My Take on the WIPO Marrakesh Treaty/8

(Available episodes so far here).
One main objection to the Treaty, though, is that it fails to significantly improve the present situation, as imbalanced as it might be, because States could have already unilaterally enacted the same limitations and exceptions mandated by the Treaty, if only they had wished to. This might be true to some extent, but one should not underestimate the chilling effect on the enactment of national exceptions and limitations introduced by the overarching yet difficult to interpret three-step test. TRIPS obligations in particular have been energetically invoked in the past by different stakeholders arguing that specific exceptions and limitations in domestic laws would have been inconsistent with the three-step test. Against this unsettled background, the Marrakesh Treaty can be seen as an effective confidence building measure in respect to what a country can – at least - do for the benefit of the print disabled, and reliantly remain within the limits tra…

My Take on the WIPO Marrakesh Treaty/7

(Available episodes so far here)

If the international copyright acquis does not prevent parties to the Berne Union, the WCT or  TRIPS from entering into special agreements mandating three-step test compliant copyright limitations, it should also be noted that the international copyright framework does very little to promote in any significant way counter-weighting initiatives to the dominant minimum rights approach.

Quite on the contrary, the protection gap between the rights granted to authors and the interests of the general public has not stopped widening, especially since copyright and other intellectual property rights have gained increasing importance and bargaining weight at the numerous tables where international trade issues are negotiated. Admittedly, non-economic interests such as providing improved access to works for the benefit of the vulnerable societal group of print disabled persons are not likely to attract much consideration in the various international fora domina…

My take on the WIPO Marrakesh Treaty/6

(Available episodes so far here).

Whilst it can be disputed whether the new WIPO Treaty is consistent with the history and spirit of the established legal framework, there is no actual provision preventing countries per se from entering into international agreements establishing maximum protection levels in the field of copyright law.

To see this, it should first be recalled that specific provisions enshrined in various treaties and conventions in the field, notably the Berne Convention, the Rome Convention, the TRIPS Agreement, the WCT, the WPPT, and the Beijing Treaty on Audiovisual Performances, contribute to the establishment of a rather complex international copyright system, at whose root lies the principle of national treatment, i.e. the non-discrimination rule in favour of foreign nationals from contracting states. According to this rule, the level of protection accorded to foreign works should not be lower than the protection granted to country of origin works. Put different…

My Take on the WIPO Marrakesh Treaty/5

(Previous episodes here).

From its early beginnings, WBU’s 2000 policy action on the international norm-setting stage had two pragmatic objectives. First, WBU was firmly of the opinion that the copyright regime of exceptions and limitations for the visually impaired of the world needed improvement, because access to published works was notoriously inadequate, and previous experience had shown that this important objective could not be left to the goodwill of national legislators alone. Second, the international copyright framework needed to be framed in such as a way as to allow for the import and export of works in accessible formats, thus creating a “global lending library” benefiting in particular those visually impaired persons living in economically weak countries.

According to a number of delegations and experts, however, the fulfillment of the WBU’s clearly formulated policy objectives would have run counter to existing, established principles of international copyright protec…

My Take on the WIPO Marrakesh Treaty/4

(Available episodes so far here).

Discussions at the international level revived in 2000, when the WBU General Assembly in Melbourne adopted a resolution on copyright and access to information in alternate format. In particular, the General Assembly decided to call on the WIPO to “co-operate in the formulation of detailed national and international legislation which will afford full and equitable access by blind and partially sighted people to all copyright-protected material.” By the time the WBU, together with the International Federation of Library Associations (IFLA, Section of Libraries of the Blind), renewed contacts with WIPO in 2000, the organization’s ambitious policy agenda for the benefit of the visually impaired was largely set. In the following years, WBU intensified its presence at the WIPO Standing Committee for Copyright and Related Rights (SCCR), which in the meanwhile had started working on the topic of exceptions and limitations. At the Twelfth Session of the SCCR …

My Take on the WIPO Marrakesh Treaty/3

(Available episodes so far here).

In earlier times, a few national legislators already recognized the necessity of specific public policy intervention for the benefit of the print disabled. In 1964, the Sweden/BIRPI Study Group formed in preparation for the Stockholm Conference of Revision of the Berne Convention identified “reproduction in special characters for the use of the blind” and “sound recordings of literary forks for the use of the blind” amongst the exceptions provided for in some national legislations. At the international level, Brazil was the first country to raise the matter of the copyright status of visually impaired persons at the 1977 joint UNESCO/WIPO sessions, thereby proposing to set up a working group whose task would have been “to study suitable ways and means of facilitating the free flow of books and publications designed for the visually impaired.” The Committees decided to appoint the World Council for the Welfare of the Blind (WCWB - which later, togeth…

My Take on the WIPO Marrakesh Treaty/2

(Post n.1 here).

Paradoxically, perhaps, the question of an adequate protection of the rights to read of people with print disabilities became particularly pressing with the advent of the digital society.

For the general reading population, the pervasive deployment of information and communication technologies makes available many innovative and exciting ways in which copyright material can be enjoyed. The same technology has also pushed doors of opportunity open to provide new solutions to meet the needs of print disabled people. For instance, a visually impaired person can now take a traditional printed text and convert it to an accessible format by using main stream and increasingly affordable technology like Optical Character Recognition (OCR) software, scanning devices, screen readers or an electronic (refreshable) Braille display. Moreover, e-books hold the promise of providing greatly increased accessibility for print disabled persons compared to the analogue media. As it alre…

My take on the WIPO Marrakesh Treaty/1

Hundreds of millions of people worldwide encounter severe distress in trying to access the written word in their education and private life. Only by employing appropriate technologies, such as for instance the method first developed by Louis Braille in 1829, written works can to be made accessible to people who suffer from print disabilities. The creation of accessible versions of copyrighted works and their distribution to the beneficiary persons, however, normally require the consent of the respective rightholders. 
Whilst international treaties and conventions in the area of intellectual property generally permit exceptions and limitations to the rights of the IP holder to be provided, their nature and scope have been largely left to national legislators to determine. By 1982, only seven member States of the World Intellectual Property Organisation (WIPO) enacted provisions in that respect, and twenty-five years later exceptions and limitations for the benefit of print disabled pe…

Copyright and the Digital Economy

Submission by the Australian Digital Alliance and Australian Libraries Copyright Committee in response to the Australian Law Reform Commission’s Discussion Paper, here.