Egypt questions EU on the applicability of the three-step test to Article 10.2 of the Berne Convention

The first day of the 24th session of the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) has gone into full swing with a textual proposal tabled by Ecuador, Peru and Uruguay on limitations and exceptions for educational and research institutions, and a textual proposal submitted by Brazil on L&Es for educational and research institutions.

The live stream audio capture of these proceedings can be found here: http://www.streamtext.net/player?Event=WIPO

In its afternoon intervention, the European Union noted that "the Berne Convention in our view provides for specific exceptions to allow use, users of copyright works for the purpose of quotation and teaching. Article 10 of the Berne Convention." In describing its copyright framework in relation to L&Es for educational and research institutions, the EU stressed, "our framework also ensures that the application of these exceptions for within the framework of the three-step test".

In response, the delegation of Egypt posed the following question to the European Union. In its intervention, the Egyptian delegate noted that his country did not view that the three-step test contained in Article 9.2 of the Berne Convention on "Right of Reproduction, Possible Exceptions" applied to Article 10.2 of the Berne Convention on "Certain Free Uses of Works, Illustrations for teaching".

Article 9.2 of the Berne Convention states,

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.

Article 10.2 of the Berne Convention states,

It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.

The question posed by Egypt on the applicability of the three-step test to Article 10.2 of the Berne Convention is reproduced here from the WIPO live stream.

EGYPT: Thank you, Mr. Chairman. We just wanted to thank the EU for sharing its experience with us on this issue. And its views regarding education, exceptions and limitations, that do exist under the Berne Convention.

We just would like, wanted to take this opportunity to perhaps request clarification regarding one particular statement, which is that all exceptions and limitations fall, or its application fall under the three-step test. In this regard, we wanted to clarify how the EU interprets article 10.2 in this regard, because as we see the three-step test which is captured in article 9.2, there is no legal connection in this regard between 9.2, which captured the step test, having it of course in direct relation to the right of reproduction, and to article 10.2, which gives wide exception for, that would permit utilization of literary artistic works, by way of illustration in publications, broadcast, or sound or visual recordings for teaching.

In this regard we wanted to request EU clarification on this point, please. Thank you.

The European Union responded to Egypt's question by articulating an extremely aggressive and broad interpretation of the applicability of the three-step test to all copyright limitations and exceptions. In its response, the EU stated,

EUROPEAN UNION: Yes, thank you, Chair. We didn't take the floor, because we believed that it is not the role of the EU to discuss the interpretation of the Berne Convention in this forum.

We just would like to remind Member States that the three step test under article 13 of TRIPS, Article 10 of the WCT and Article 16 of WPPT anyway applies to all exceptions and limitations.

Furthermore, in accordance with all these obligations to respect the three-step test, EU legislation makes all exceptions and limitations under the InfoSoc directive subject to the three step test. We cannot go beyond that.