(Available episodes so far here).
Short of incorporating a stand-alone three-step test into the final language of the Marrakesh Treaty, the “general clause” of Article 1 should be read as preponderantly referring to the non-derogation of the obligations concerning the three-step test that contracting parties have to each other under any other treaties. Furthermore, Article 11, under the heading “General Obligations on Limitations and Exceptions,” states that contracting parties, “in adopting measures necessary to ensure the application of this Treaty,” need to comply with their extant obligations concerning the application of the various iterations of the three-step test under Berne, TRIPS, and the WCT.
At the close of the intense Marrakesh negotiations, a carefully achieved compromise emerged also on the “Berne Gap” issue. Under Article 5(4)(a), when an authorized entity of a non-Berne country receives accessible format copies from another country, it will ensure that those copies “are only reproduced, distributed or made available for the benefit of beneficiary persons in that Contracting Party’s jurisdiction.” In other words, a non-Berne country is not under any obligation to apply the three-step test as long as the relevant copyright activities (reproduction, distribution, and making available) are for the benefit of visually impaired persons of its own jurisdiction. In this respect, the final wording of this provision is less strict than proposals to bridge the Berne Gap by incorporating into national legislation the Berne version of the three-step test in connection with the cross-border receipt of accessible format copies, without distinction as to the country of the beneficiary person.
Article 5(4)(b) envisages a slightly different solution with regard to non-WCT countries. An authorized entity in a country which is not party to the WCT is under the obligation to confine the distribution and the making available of accessible format copies to that jurisdiction, unless the contracting party “limits (sic) limitations and exceptions implementing this Treaty to the right of distribution and the right of making available to the public 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 rightholder.” As such, Article 5(4)(b) of the Marrakesh Treaty contains a specific obligation directed at contracting parties that are not party to the WCT, in the shape of a condition for letting authorized entities in those countries export accessible format copies to other contracting parties. In this specific case, non-WCT countries need to implement the Marrakesh Treaty by providing for limitations and exceptions in the national copyright law that apply the instrument-specific three-step test to the right of distribution and to the right of making available to the public. Thus, the Marrakesh-specific three-step test would apply, it seems, not only to exporting activities, but also to domestic acts of distribution and making available.
The first of the two agreed statements concerning Article 5(4)(b) isolates the Marrakesh-specific obligation to adopt the three-step test from obligations under other international instruments. Moreover, it clarifies that Article 5(4)(b) should not be seen as a “Trojan horse” expanding the application of the three-step test beyond the area of exceptions and limitations for the print disabled covered by the Treaty. The second agreed statement clarifies that the Marrakesh Treaty does not create any obligation “to ratify or accede to the WCT or to comply with any of its provisions.” At the same time, the Marrakesh Treaty does not prejudice “any rights limitations and exceptions contained in the WCT.”
In sum, the Marrakesh negotiators have avoided inserting into the new copyright treaty a full-fledged three-step test, to apply on top of the already existing obligations under other binding instruments. After the Marrakesh Treaty, it is possible to refer to the precedent of a treaty in international copyright law without its own version of a comprehensive three-step test. More importantly, the point has been made that the respect of the contracting parties’ obligations under the existing copyright treaties and conventions is compatible with an international legal instrument introducing clear, manageable mandatory exceptions and limitations in the interest of the general public. The only, minor extension of the three-step test concerns non-WCT countries in connection with the export of accessible format copies to other contracting parties. As seen above, the Marrakesh-specific three-step test is likely to apply on acts of distribution and making available without distinction as to the destination of the copies in accessible formats.
(To be continued)
Short of incorporating a stand-alone three-step test into the final language of the Marrakesh Treaty, the “general clause” of Article 1 should be read as preponderantly referring to the non-derogation of the obligations concerning the three-step test that contracting parties have to each other under any other treaties. Furthermore, Article 11, under the heading “General Obligations on Limitations and Exceptions,” states that contracting parties, “in adopting measures necessary to ensure the application of this Treaty,” need to comply with their extant obligations concerning the application of the various iterations of the three-step test under Berne, TRIPS, and the WCT.
At the close of the intense Marrakesh negotiations, a carefully achieved compromise emerged also on the “Berne Gap” issue. Under Article 5(4)(a), when an authorized entity of a non-Berne country receives accessible format copies from another country, it will ensure that those copies “are only reproduced, distributed or made available for the benefit of beneficiary persons in that Contracting Party’s jurisdiction.” In other words, a non-Berne country is not under any obligation to apply the three-step test as long as the relevant copyright activities (reproduction, distribution, and making available) are for the benefit of visually impaired persons of its own jurisdiction. In this respect, the final wording of this provision is less strict than proposals to bridge the Berne Gap by incorporating into national legislation the Berne version of the three-step test in connection with the cross-border receipt of accessible format copies, without distinction as to the country of the beneficiary person.
Article 5(4)(b) envisages a slightly different solution with regard to non-WCT countries. An authorized entity in a country which is not party to the WCT is under the obligation to confine the distribution and the making available of accessible format copies to that jurisdiction, unless the contracting party “limits (sic) limitations and exceptions implementing this Treaty to the right of distribution and the right of making available to the public 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 rightholder.” As such, Article 5(4)(b) of the Marrakesh Treaty contains a specific obligation directed at contracting parties that are not party to the WCT, in the shape of a condition for letting authorized entities in those countries export accessible format copies to other contracting parties. In this specific case, non-WCT countries need to implement the Marrakesh Treaty by providing for limitations and exceptions in the national copyright law that apply the instrument-specific three-step test to the right of distribution and to the right of making available to the public. Thus, the Marrakesh-specific three-step test would apply, it seems, not only to exporting activities, but also to domestic acts of distribution and making available.
The first of the two agreed statements concerning Article 5(4)(b) isolates the Marrakesh-specific obligation to adopt the three-step test from obligations under other international instruments. Moreover, it clarifies that Article 5(4)(b) should not be seen as a “Trojan horse” expanding the application of the three-step test beyond the area of exceptions and limitations for the print disabled covered by the Treaty. The second agreed statement clarifies that the Marrakesh Treaty does not create any obligation “to ratify or accede to the WCT or to comply with any of its provisions.” At the same time, the Marrakesh Treaty does not prejudice “any rights limitations and exceptions contained in the WCT.”
In sum, the Marrakesh negotiators have avoided inserting into the new copyright treaty a full-fledged three-step test, to apply on top of the already existing obligations under other binding instruments. After the Marrakesh Treaty, it is possible to refer to the precedent of a treaty in international copyright law without its own version of a comprehensive three-step test. More importantly, the point has been made that the respect of the contracting parties’ obligations under the existing copyright treaties and conventions is compatible with an international legal instrument introducing clear, manageable mandatory exceptions and limitations in the interest of the general public. The only, minor extension of the three-step test concerns non-WCT countries in connection with the export of accessible format copies to other contracting parties. As seen above, the Marrakesh-specific three-step test is likely to apply on acts of distribution and making available without distinction as to the destination of the copies in accessible formats.
(To be continued)
