State of Play: Treaty for the Blind negotiations at the World Intellectual Property Organization

In the final phase of negotiations leading towards the Marrakesh Diplomatic Conference to conclude a Treaty for the Blind, Visually Impaired and other Reading Disabled Persons (17 June 2013 to 28 June 2013), it is important to take stock of where things stand in respect of the current negotiations.

The objective of the most recent World Intellectual Property Organization (WIPO) Special Session of the Standing Committee on Copyright and Related Rights (SCCR) was to clean the draft text on an international instrument/treaty on limitations and exceptions for visually impaired where divergences appeared. The majority of the closed door informal sessions revolved around the Treaty's treatment of the copyright three-step test. The EU, the US and around 25 corporate lobbyists from the collecting societies, film industry and publishing industry aggressively pushed for language that would make all the copyright limitations and exceptions provided for in the treaty for the blind subject to the three-step test. They did not get their way; the resulting language, while not perfect, struck a fine balance. In particular, the EU's language, Article Ebis was deleted. However, the US did succeed in removing all human rights references in the text as Article I was deleted from the text. This piece endeavors to contextualize WIPO's resolution of the three-step test debate in the Treaty for the Blind negotiations.

At the conclusion of the Special Session of the Standing Committee on Copyright and Related Rights held in Geneva from 18 February 2013 to 22 February 2013, country delegate tentatively finalized the text of a section entitled ARTICLE(S).

Footnote 12 attached to this section stated:

[a]d referendum: these elements of the treaty are the result of the SCCR session that met from February 18 to 22, 2013. This language has been tentatively agreed by the delegations attending the session.

In particular, the implementation provisions and the development provisions in this cluster provided the appropriate balance to the recitations of the three-step test in the respect for copyright provision of the text.

The language contained in this new ARTICLE(S) section is reproduced below.

Implementation provisions

Member States/Contracting Parties undertake to adopt the measures necessary to ensure the application of this Treaty.

Nothing shall prevent parties from determining the appropriate method of implementing the provisions of this instrument/treaty within their own legal system and practice.

Contracting parties may fulfill their rights and obligations under this Treaty through, exceptions or limitations specifically for the benefit of beneficiary persons, other exceptions or limitations, or a combination thereof within their national legal traditions/systems. These may include judicial, administrative or regulatory determinations for the benefit of beneficiary persons as to fair practices, dealings or uses to meet their needs.

This instrument/Treaty is without prejudice to other exceptions and limitations for persons with disabilities provided by national law.

Respect for copyright provision

In adopting measures necessary to ensure the application of this Treaty, a Contracting Party may exercise the rights and shall comply with the obligations that that Contracting Party has under the Berne Convention for the Protection of Literary and Artistic Works, the Agreement on Trade-Related Aspects of Intellectual Property and/or the WIPO Copyright Treaty, so that:

1. in accordance with Article 9.2 of the Berne Convention for the Protection of Literary and Artistic Works, a Contracting Party may permit the reproduction of works in certain special cases provided that such reproduction does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author;

2. in accordance with Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property, Contracting Party shall confine limitation or exceptions to exclusive rights to certain special cases which do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author;

3. in accordance with Article 10.1 of the WIPO Copyright Treaty, a Contracting Party may provide for limitations of or exceptions to the rights granted to authors under the WCT in certain special cases, that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author;

4. in accordance with Article 10.2 of the WIPO Copyright Treaty, a Contracting Party shall confine, when applying the Berne Convention, any limitations of or exceptions to rights to certain special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.

Development provision

Member States/Contracting Parties recognize that a Member State/Contracting Party may implement in its national law other copyright exceptions and limitations for the benefit of beneficiary persons than are provided by this instrument/Treaty having regard to that Member State/Contracting Party’s economic situation, and its social and cultural needs, and in the case of a least-developed country taking into account its special needs, in conformity with that Member State’s/Contracting Party's international rights and obligations.

The fourth recitation in the respect for copyright provision in the ARTICLE(S) section is taken directly from Article 10.2 (Limitations and Exceptions) of the WIPO Copyright Treaty (WCT) which states:

(2) Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for therein to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.

Article 10.2 contains footnote (10) which states the following:

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.

Perhaps in their haste to finalize the text, negotiators forgot to explicitly include the language contained in footnote 10 of the WCT which aims to ensure that copyright exceptions and limitations "appropriately extent into the digital environment" and to "permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment". Although some legal scholars have noted that that a reference to Article 10.2 implicitly incorporates footnote 10.2, for the sake of elegance, perhaps WIPO negotiators may want to take a page out of the text of the Beijing Treaty on Audiovisual Performances. Footnote 9 of the Beijing Treaty contains the following language:

Agreed statement concerning Article 13: The Agreed statement concerning Article 10 (on Limitations and Exceptions) of the WIPO Copyright Treaty (WCT) is applicable mutatis mutandis also to Article 13 (on Limitations and Exceptions) of the Treaty.

Brief history of the three-step test in WIPO treaty for the blind negotiations

The European Union first introduced language on the three-step test as a standalone provision at the 23rd session of the WIPO SCCR (from 21 November 2011 to 2 December 2011). This text can be found under article Ebis of the Working Document on an International Instrument on Limitations and Exceptions For Visually Impaired Persons/Persons with Print Disabilities (SCCR/23/7) which stated:

All exceptions and limitations provided for in this instrument shall be limited to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder (European Union and its Member States).

In the EU's comments on their provision, they noted that the "should read "shall" as it refers to the three-step test which relates to existing obligations under international agreements." Under this language, the European Union sought to ensure that all copyright limitations and exceptions provided for in this instrument be subject to the three-step test. This language threatened to undermine the fine balance so carefully wrought under such instruments as the Berne Convention, the TRIPS Agreement and the WIPO Copyright Treaty (WCT).

Please see the following links for more detail on the copyright three-step test in the context of the international trade agreements and copyright agreements:

http://keionline.org/node/1655
http://keionline.org/node/1658

In response to the European Union's text on the three-step test, Venezuela introduced the following language on the interpretation of the three-step test at SCCR 23. The language of this provision was inspired by Article 6 of the Max Planck Institute’s Declaration on a balanced interpretation of the three-step test in copyright law.

The language of Article I read:

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

At SCCR 24, the language of Article Ebis read:

ARTICLE Ebis

Alternative A
[All [national implementation of] exceptions and limitations provided for in this instrument shall be limited to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.]
Alternative B
[Contracting parties/Member States, in their national [law/legislation], shall/should provide [additional/any] limitations or exceptions in conformity with this treaty/instrument [only] in certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.]

The following text is taken from a previous KEI piece from SCCR 24; this is intended to provide a snapshot of discussions on the copyright three-step test at WIPO from July 2012.

At SCCR 24, 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.

The antecedents of the ARTICLE(S) section originated from language produced at SCCR 25 in November 2012 in the "PRINCIPLES OF APPLICATION" CLUSTER PACKAGE section of document SCCR/25/2. In essence, the Special Session of the SCCR that met in February 2013 modified the language in the "PRINCIPLES OF APPLICATION" CLUSTER to form the current ARTICLE(S) section while deleting the European Union's article Ebis and Venezuela's article I.