As mentioned in our piece, State of Play: Treaty for the Blind negotiations at the World Intellectual Property Organization, the February 2013 special session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) reached agreement on a cluster of provisions on the Treaty’s treatment of the copyright three-step test that resulted in the ARTICLE(S) section contained in SCCR/25/2/Rev. This new ARTICLE(S) section comprises of three sections: 1) Implementation provisions, 2) Respect for copyright provisions and the 3) Development provision.
The February 2013 special session devoted nearly 5 days of its work to achieving consensus. At this meeting, the European Union, the United States of America 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. However, it appears that the film and publishing industries are fighting a rearguard action to unravel this fine balance specifically. This has spurred the US State Department to send a démarche to its embassies and missions around the world instructing its diplomats to encourage opposition to references in the Treaty that contained the phrase “fair practices, dealings or uses” on the grounds that this language will be extraneous to the Treaty. By bringing the full force of its diplomatic corps to bear, the United States is carrying the water of the film industry to influence WIPO member countries to strike the reference in the treaty to “fair practices, dealings or uses”.
Please see the language of the ARTICLE(S) section contained in SCCR/25/2 Rev:
Implementation provisionsMember 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. [Emphasis added]
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.