88 brackets in text, plus 17 “Alternative” versions of text.
8 references to: “do not conflict with the normal exploitation of the work,” plus 3 additional references the “three-step test.”
11 references to technological protection measures
4 references to provisions that would limit exceptions when there was commercial availability of a work in an accessible format.
Things to keep in mind:
MPAA –> USA insisted that deaf people be excluded from treaty.
MPAA –> USA insisted that audiovisual works be excluded, including videos combining audio, text and figures used for education or training.
Publishers –> USA insisted that TPMs trump exceptions unless blind people can provide “credible evidence ” of “the actual or likely adverse impact” of the TPM in a “legislative or administrative proceeding.”
Publishers –> USA and EU blocked language saying governments could determine that terms in contracts that undermine exceptions are invalid.
References in the text to the 3-step test in the WCT edited out the footnote to an agreed upon statement that expanded use of exceptions for consumers.
Negotiators deliberately misquoted the TRIPS 3-step test, because the EU did not like the way the original was worded.
How important is complexity?
As noted by CIS-India in its intervention, for right holders, bureaucratic requirements are kept low:
Berne Convention 5(2)
The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work.
But for exceptions, US and EU have tried to make things complicated.
- 1971 Appendix to Berne for Developing countries was complex, and ineffective
- 2003 WTO agreement on rules for exporting medicines under a compulsory license considered complex and ineffective.
This is looking like a very complex agreement.