I’m about to deliver this intervention at the WIPO SCCR 36 meeting, as a general statement on limitations and exceptions. We are given 2 minutes.
KEI has three points
1. The 1971 Berne Annex, which deals with access for developing countries, is widely considered a failure, and it can and should be reformed and made relevant to the digital age.
2. The 1976 Tunis model law, which is a soft norm, could be also updated, perhaps using the modalities of the original negotiation, which was member state driven, but undertaken by experts nominated by member states.
3. But also, it may be useful to have a serious discussion about how different parties think the 3 step test is or should be interpreted, before driving versions of this test, often somewhat different from earlier formulations, into the fabric of international agreements.
I also call attention to the preparatory work for the 1967 revisions, specifically, Records of the Stockholm Conference, 1967, Vol 1, page 112.
In discussing the 3-step test, when the test was first introduced in the Berne Convention, the Study Group stated the 3-step test did not apply to the particular exceptions in the Convention, where an existing standard for an exception already existed, citing specifically the Article 10 exceptions for quotations and Illustrations for teaching as well as 10bis, 11bis paragraph 3, and the exception in Article 13 for compulsory licenses.
KEI also notes the 3 step test also does not exist in the Rome Convention.
At some point, you need to trust democratic institutions to fashion and modify exceptions, to address national preferences, and the changes in technologies, business models and outcomes, over time.
See: The Berne Convention revisions for limitations and exceptions to copyright
2012:1 KEI Research Note