On Friday, 24 January 2020, South Africa submitted a paper to the World Trade Organization (WTO) TRIPS Council entitled, Intellectual Property and the Public Interest: The WTO TRIPS Agreement and the Copyright Three-Step Test” This submission (document IP/C/W/663), will be discussed at the next meeting of the TRIPS Council on 6 February 2020 to 7 February 2020.
The main objective of this proposal is to “address the relationship between the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and copyright, as it relates to the three-step test on limitations and exceptions to copyright, with a view to clarifying the flexibilities to which Members are entitled, and, in particular, in fulfilling the principles and objectives of the TRIPS Agreement as set out in Article 7 and Article 8 of the Agreement.”
South Africa observed that WTO rules anchored in a balanced interpretation of the copyright three-step test would not undermine WTO members’ policies to “promote access to knowledge, culture and development, protect human rights, and otherwise promote the public interest” (Source: IP/C/W/663). Paragraph 2 of the submission states:
A balanced interpretation of the copyright three-step test, contained in Article 13 of the TRIPS Agreement, and predicated upon Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works would ensure that WTO rules do not undermine Members’ policies to promote access to knowledge, culture and development, protect human rights and otherwise promote the public interest, including through appropriate limitations and exceptions to copyright and related rights (IP/C/W/663, Paragraph 2).
The South African submission flags the policy tension that has emerged in the applicability of the copyright three-step test in the WTO arena. In particular, the proposal makes reference to the WTO panel ruling on the US – Section 110(5) Copyright Act case (WT/DS160/R) case which “found that the three-step test requests three separate, independent and cumulative tests for copyright limitations and exceptions.” South Africa highlights that in relation to the US – Section 110(5) Copyright Act case, there is disagreement with this interpretation among the academic community and is reflected in state practice. The South African proposal zeroes in on this ambiguity by posing the question to the WTO membership: “Does the three-step test constitute an indivisible whole to the extent that each of the three steps are to be considered together and as a whole in a comprehensive overall assessment?” The proposal intimates that a cumulative interpretation of the copyright right three-step test entails that a failure to satisfy any step would engender non-compliance with the three-step test.
Although the relationship between the TRIPS Agreement and the three-step test for limitations and exceptions to copyright has not been the subject of in-depth scrutiny at the WTO, the Panel established to consider the US – Section 110(5) Copyright Act case (WT/DS160/R) does provide some interpretation of Article 13 of the TRIPS Agreement in relation to Articles 11bis(1)(iii) and 11(1)(ii) of the Berne Convention (1971). The panel found that the three-step test requests three separate, independent and cumulative tests for copyright limitations and exceptions. There is disagreement with this interpretation among academic scholars and as is reflected in state practice. It would be useful to address the relationship between the TRIPS Agreement and the three-step test for limitations and exceptions to copyright in order to further clarify the flexibilities afforded to Members to fulfil their obligations in implementing the objectives and principles of the TRIPS Agreement (IP/C/W/663, Paragraph 8) .
The South African proposal holds “fair use and fair dealing exceptions per se are not in conflict” with the copyright three-step test.
The limitations that Members may provide pursuant to the provisions of the Berne Convention that have been incorporated into the TRIPS Agreement consist of so-called ‘free use’ (i.e. the use of a protected work is without an obligation to request authorization or the payment of remuneration) and ‘non-exclusive licences’ (use without authorization but with the obligation to pay equitable compensation). Outside of specific free uses, common law jurisdictions also recognize the notion of ‘fair use’ or ‘fair dealing’, which covers various free uses under international law. The use of privileges at a national level are generally based on the international copyright acquis. There are many examples of national exceptions and limitations resting on the international three step test as can be found in the copyright laws of parties to the Berne Convention, including for example reproduction for research or teaching purposes; privileges of libraries, archives or exemption of reproduction required for administrative, parliamentary or judicial proceedings. It should be emphasized that fair use and fair dealing exceptions per se are not in conflict with the international three step test, including under the more specific approach that the TRIPS Agreement takes to the three-step test under Article 13 (IP/C/W/663, Paragraph 9).
In advance of the TRIPS Council meeting (6 February 2020 – 7 February 2020), South Africa invited WTO members to address the following questions:
1. Does the three-step test constitute an indivisible whole to the extent that each of the three steps are to be considered together and as a whole in a comprehensive overall assessment?
2. What approaches have Members taken to reflect limitations and exceptions in their IP laws?