This was read today at SCCR 28, by Anelise Rose, who works with KEI, on behalf of TACD.
Jamie
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TACD Intervention on US paper SCCR/26/8,
On the first topic, the ADOPTION OF NATIONAL EXCEPTIONS,
We note that in oral comments, the US made reference to the copyright 3-step test, but did not say when or how that test applies, in the context of copyright exceptions. Here it is important to note that the Berne Convention 3-step test applies to authors, and not right holders in general, and it only applies to one exception in the Berne Convention. The Berne Convention has several other copyright exceptions, such as for education, quotations, and recorded music, to mention a few, which are not subject to the 3-step test. We note that the Appendix to the Berne, for developing countries, is also not subject to the 3-step test. Further, exceptions relating to the first sale doctrine, the control of anticompetitive practices, or limitations on remedies for infringement are not subject to the 3 step test.
For the topic EXCEPTIONS AND LIMITATIONS IN A DIGITAL ENVIRONMENT, the principles should be elaborated to include a statement that technological locks on information and contracts for licenses associated with digitally formatted works should not undermine exceptions, or unduly restrict access to works.
For the last topic, “OTHER GENERAL PRINCIPLES,” it would be helpful to include language that addressed the need to control anti-competitive practice, including excessive pricing, and to note that the first sale doctrine, sometimes referred to as the exhaustion of rights, an important exception to exclusive rights, and very relevant to libraries.
TACD suggests an additional principle, titled, protection of “space for exceptions,” and it should include a statement that Member States be asked to avoid entering into trade agreements that reduce the flexibility for library copyright exceptions.