(Available episodes so far here).
Against the background of the existing treaties and
conventions, it would be difficult to read in the first
paragraph of the agreed statement a general permission (“carte blanche”) given
to member states to justify basically any exception and limitation that becomes
relevant because of the digital environment, despite the boundaries set by existing
obligations, and in particular by the three-step test. On the other hand, this part of the agreed statement carries more weight than a
mere rhetoric argument readily embraced by some in the heat of discussions and negotiations
involving exceptions and limitations. More appropriately, the agreement indicates,
it seems, that the overall application of the WCT three-step, also in line with
the Treaty’s Preamble stressing the need to maintain a balance in copyright law,
should not hamper the protection of the interest of the general public in the
digital environment. In this respect, the Marrakesh Treaty’s prominent reference in the Preamble to
the flexibility of the test would seem to echo the WCT contracting parties’ concern
as expressed in the agreed statement.
The alleged origin of the first sentence of the first paragraph of the agreed statement sheds some light on exceptions and
limitations to be “considered acceptable under the Berne Convention.” As
mentioned above, the US proposal targeted in particular the domestic fair use
doctrine, seeking reassurance about its unfettered expansion into the digital
environment. While a broad exemption similar to the US fair use provision is capable
of application in a way that covers uses made possible by new technologies, exemptions drafted following the
stricter European continental style are much more likely to struggle with
technological – digital – advances, and therefore need to be replaced much
more frequently. It is not immediately clear, however, which exceptions and
limitations are likely to be "new" in the meaning of the agreed statement. In fact, to the extent that the
more recent exemptions have been grandfathered by already existing ones, they should
not be regarded as genuinely new, such as when exemptions and limitations for the
benefit of the print disabled are amended in order to allow for digital uses of
accessible materials. Similarly, an exemption covering analytical techniques used
in scientific research, a type of “data mining,” expands into the digital
domain research activities already carried out in the analogue world. At any
rate, the first paragraph of the agreed statement indicates that the member
States do not regard the WCT three-step test as an obstacle to the protection
of the interest of the general public in the digital environment both by way of exceptions and
limitations “which have been considered acceptable under the Berne Convention” and new ones.
(To be continued).
