EU and US push WIPO negotiations against human rights, for restrictions on exceptions

WIPO is spending five days in a special session to work on the text for a treaty on copyright exceptions for persons who are blind or have other disabilities.

KEI has obtained a copy of the latest version as of Friday morning, which is attached below.

The first four days have been consumed with highly technical but important debates of the international rules for copyright exceptions. The US and the EU are demanding that all sorts of language be put into the treaty referring to a three step test to restrict the use of exceptions.

The US and the EU want a system of exceptions that (1) are limited to certain special cases, (2) do not conflict with a normal exploitation of the work, and (3) do not unreasonably prejudice the legitimate interests of the right holder. Similar but not identical requirements are found in several other agreements, including the Berne Convention, the TRIPS Agreement and the 1996 WIPO Copyright Treaty (WCT), as well as in countless bilateral and region trade agreements involving the US or the EU. However, while various versions of the 3-step test exist in these agreements, and they are all different from each other, there are lots of important gaps and exceptions to when the 3 step test applies. For example, only one of the many Berne Convention exceptions is now subject to the three step test. And in the WTO TRIPS Agreement, Articles 6, 40, 44, 45 and 66 of the TRIPS Agreement are not subject to the TRIPS agreement, and the implementation of these is subject to a broader context that includes Articles 1, 7 and 8, and Article 9 of the TRIPS incorporates Article 1-21 of the Berne Convention and its Appendix, thus covering all of the exceptions to exclusive rights provided in many Articles of the the Berne Convention and its Annex. Indeed, one could write several books on what is not covered by the Berne or WTO three step test. (For more on this topic, see: Why do US and EU trade negotiators hate the Berne Copyright Limitations and Exceptions?, http://www.keionline.org/node/1655).

In the negotiations this week the delegates decided to both make reference to and also recite the three different versions of the three step test, including language from the Berne Convention, the TRIPS Agreement and the WCT. However, the recitals of the 3-step language in the WCT do not include the agreed upon statement in footnote 10, which was one of the major concessions that developing countries obtained in the 1996 negotiation. Nor the does the Berne 3-step recital note that even for reproduction, the 3-step test does not apply if the use is part of another "particular" exception. Nor does the recital of the TRIPS language mention the broader and more limited context of Article 13 in the TRIPS Agreement, which has some 73 Articles, several of which operate without the Article 13 three step test.

The end result of the work so far is a highly prejudicial and misleading set of recitals which elevate the three step test beyond its current reach.

Making matters worse, last night the delegates deleted Article I dealing with the interpreted the three step test. After Article I was deleted, USPTO negotiator Justin Hughes told industry lobbyists that he was very pleased to have eliminated any reference to human rights in the treaty. The EU also wanted it out.

The deleted text is given below:

THE DELETED ARTICLE I

INTERPRETATION OF THE THREE-STEP TEST

[The three-step test should be interpreted in a manner that respects the legitimate interests of
third parties, including:
a)interests deriving from human rights and fundamental freedoms;
b)interests in competition, notably on secondary markets; and
c) other public interests, notably in scientific progress and cultural, educational, social,
or economic development.]

Missing Footnote 10 to the 1996 WCT three step test:

10 Agreed statement concerning Article 10: It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment.

It is also understood that Article 10(2) neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention.

Berne exceptions are part of TRIPS, through Article 9, Relation to the Berne Convention

1. Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom.

2. Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.

Exceptions to the reproduction right (the 3-step test) in the Berne Convention

The three step test made its debut in the Berne in 1967, as Article 9(2), for exceptions to the new right of reproduction.

1967 Article 9
(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.
(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.

Some right-holder lobby groups argue the 3-step test was binding on all other Berne exceptions. Others say the application of the 3-step test is a general provision that can be used in cases where a particular exception is not provided. The following is from the preparatory work for the 1967 revisions:

Account must be taken of the other provisions in the Convention. This implies that the provisions already existing in certain special purposes (Articles 10, 10bis and 11bis, paragraph (3)) must be regarded as rules exercising limits on the questions with which they deal. Thus, the special conditions, whose presence these exceptions imply, must always be respected. . . . Furthermore . . . It follows, therefore, from this reservation that the new provision places no restriction on the right granted to countries of the Union, under Article 13, to institute a compulsory license to the right to record musical works. Records of the Stockholm Conference, 1967, Vol 1, page 112

See also footnotes 1 and 2 on page 112 of the Records of the Stockholm Conference, 1967, Volume 1.

fn1. The exceptions most frequently recognized in domestic law seem to relate to the following works or methods of use: (1) public speeches; (2) quotations; (3) school books and chrestomathies; (4) newspaper articles; (5) reporting current events; (6) ephemeral recordings; (7) private use; (8) reproduction by photocopying in libraries; (9) reproduction in special characters for the use of the blind; (10) sound recordings of literary works for the use of the blind; (11) texts of songs; (12) sculpures on permanent display in public places, etc; (13) artistic works used as a background in films and television programmes; (14) reproduction in the interests of public saftey. The present text of the Convention contains provisions relating to exceptions (1) to (6) (it is proposed, below, to delete exception (4)).

fn2. The Study Group remarked that another solution to the problem under discusion would be, of course, to indicate the exceptions in the text of the Convention by means of a list intended to be restrictive. However, after a lenghty discussion, the Study Group came to the conclusion that this solution not be adopted. On the one hand, a list of this kind -- event if it were to be limited to the main exceptions -- would be very long and would in fact considerly restrict the authors' rights. At the present time, most countries recognize only some of the exceptions permitted by certain of these rules of exceptions indicated above -- these vary from one country to another -- or else they grant remuneration to the authors for the use permitted by certain of these rules of exception, as in the case of the Nordic countries. There is every reason to fear that the introduction of a list of this kind would encourage the adoption of all of the exceptions allowed and abolish the right of remuneration. On the other hand, a list, however long, would be inadequate, because it could never cover all of the special cases existing in national legislation.

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