Following Professor Crews’ presentation of his updated report on limitations and exceptions (L&E) for libraries and archives, today more member states, IGOs and NGOs engaged again in an interesting Q&A. After years in this committee, I have rarely witnessed such enthusiasm and interest among all the SCCR participants about a report. It clearly showed that this committee of (mostly) copyright experts who, for years, has been dealing with a broadcasting treaty–without much passion except for the EU delegation and the casters of course– can really engaged in a passionate and interesting dialogue.
Here is KEI intervention with a question on the 3 step test in relation to L&E, the issue of Berne revisions and a timely question on a Spanish tax on news snippets followed by Professor Crews answers.
Professor Crews, thank you for providing us again this year with an extremely interesting and relevant report on existing copyright limitations and exceptions for libraries and archives.
We have three questions.
Question 1. Do you agree with Professor Sam Ricketson, who in 2008 told the SCCR 17 that the copyright 3-step test contained in the WTO TRIPS Agreement does not apply to specific limitations and exceptions to remedies for infringement, in Part III of the TRIPS?
Question 2. From the 19th Century, until 1971, the Berne Convention periodically revised its standards for copyright exceptions, creating new exceptions and changing the standards for others, making some mandatory and some optional. After colonialism ended in Africa and Asia, this practice of periodically revising the Berne language on exceptions ended. Do you think that the periodic revision of standards for exceptions is more useful than a static definition of what the standards should be? And, did they get the mix of mandatory, optional, right?
Question 3, There is apparently a Spanish tax on snippets from news organizations, and Germany has reportedly considered something similar. Berne has two mandatory exceptions, news of the day, and quotations. Does the Spanish tax violate those mandatory exceptions?
>> KENNETH CREWS: Well, thank you very much. I am going to say that you have raised some very important points. I would like to respond to them and I will respond to them in substance. I think it would not be helpful for me to really answer to the specifics and say that proposed Spanish rule is appropriate or not appropriate. That would just not be right for me to do. And also our colleague Sam Ricketson he is not here to defend himself. I am not going to respond specifically to what he may have said but I will respond to the point.
And the point being that does the three help test apply to remedies? Does it apply to other matters. And this is one of the difficulties with the three-step test. I think the short answer is is that it does not apply to the remedies. It does not apply to other kinds of matters. That it really is on its own terms applicable to the limitations and exceptions and then tracing that language which I’m doing from memory. So if we were to go through the language directly we could get this more precise. But thinking through the language of the terms of the different — different provisions of Berne, the three-step test is about limitations and exceptions and it is raised in the context of the following on the discussion of the rights of the owners and therefore, I think it is really about that. And not about all of the other possible elements of the legal system that could be construed as a right. So I believe that that’s the short answer to that question.
Your second one about the revisions over the first century of the existence of the Berne Convention my short answer to that point, too, is if somewhere in there you are suggesting that it might be good to revisit Berne, my response is I think it might be good to revisit Berne. But I think I need to leave it at that. Because that’s a bigger subject than we are convened here today to discuss. And if we move to that subject it will probably stop us from getting to all the other things that are within our reach. So conceptually I think the answer is yes. But pragmatically I think I’m not going to take that any further.
And so similarly the issue if there is a more general question about the point about snippets of news in some European laws and regulating that, that poses a very interesting issue that again we — we are certainly not going to be able to resolve here. But it is the issue about the interrelationship of copyright with other areas of the law. Some of you may have attended the lunchtime session about interrelationship of copyright with competition law. So we can solve the copyright issue but then we still have this competition problem to resolve. I think that’s what’s going on in the news example. We could solve by — in a copyright framework the snippets of news but then maybe the law in question is a tax law and that’s different. That’s a different legal system. And we have gotten to this already in our discussions here in this meeting. And that is the relationship with licenses. So it is possible for a country to say that if news of the day is without copyright protection, a consistent with the Berne Convention, a country could say and there will be no other legal method licensing or otherwise that will hinder this objective that we have accomplished of keeping the news free of legal restraint. So but I think that that’s going to be up to each country in their domestic law and to a certain extent I hope that WIPO is interested in taking up this issue, especially on the licensing relationship but I don’t know if it is ready to pick up the issue beyond that. Others here will have to speak to that. I hope that helps in the meantime. Thank you.