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 traced by the three-step test.

The Preamble to the Treaty emphatically mentions the importance and the flexibility of the test. The Articles make several references to the three-step test, both explicitly and implicitly, in particular where the need to adhere to existing treaty obligations is reaffirmed. The individual contracting party’s international obligations, as well as available flexibilities thereof, determine the scope of applicability of limitations and exceptions permitted in that specific country. The new exception for the benefit of the visually impaired had to find its way into a historically overgrown space, covered by minimum exclusive rights, few specific and many more vague exceptions, and versions of the three-step test with sometimes diverging scopes of application. 

The categories of rights likely to be involved in the complex analysis necessary to ensure compliance with other conventions and treaties in the field of copyright are indicated  by the Marrakesh Treaty itself. Article 4(1)(a) states that “Contracting Parties shall provide in their national copyright laws for a limitation or exception to the right of reproduction, the right of distribution, and the right of making available to the public as provided by the WIPO Copyright Treaty (WCT).” The mandatory (“shall”) maxima to copyright protection for the benefit of print disabled persons explicitly applies to three of the most significant rights which have progressively gained recognition in the course of the evolution of international copyright law. With regard to other relevant rights, the Treaty is less explicit. As to a possible species of the adaptation right (as far as it is not already covered by the reproduction right), the same Article 4(1)(a) states that “The limitation or exception provided in national law should permit changes needed to make the work accessible in the alternative format” (emphasis added). Article 4(1)(b) adds that “Contracting Parties may also provide a limitation or exception to the right of public performance to facilitate access to works for beneficiary persons” (emphasis added)

In a WIPO Study dedicated generally to “Limitations and exceptions of Copyright and related rights in the digital environment,” prepared by Sam Ricketson, and presented to the SCCR in 2003, the author compiled a very useful, detailed list of questions that countries should ask themselves in matters of treaty compliance.

If the country is a member of the Berne Convention, the question should be asked whether the limitation or exception for the print disabled is covered by one of the existing Berne provisions. Of relevance in this respect is in particular Art. 9(2), that applies to the reproduction right, and, impliedly, to the distribution of copies so made. Apart from the general exception to the reproduction right, there are a number of “implied” exceptions to other rights specifically provided in the Convention, such as the right of public performance, meaning that the activities in question are not in conflict with Berne obligations based on the so called minor reservation doctrine. Moreover, the Appendix to the Paris Act allows developing countries, under rather complex conditions, to issue compulsory licences, among others, for translating published foreign works into languages of general use in their territories, and publishing them in printed or other analogous form, for teaching, scholarship or research purposes.