(Available episodes so far here).
If the country is a TRIPS member, Article 9(1) requires compliance with Articles 1-21 (other than Article 6bis on moral rights) of Berne, i.e. also with the three-step test and the minor reservation doctrine therein, regardless of whether the country concerned is a member of the Berne convention. Additionally, according the interpretation taken by the WTO Panel, Article 13 of TRIPS, a slightly modified version on the Berne three-step test, applies to all the exclusive rights protected under articles 1 to 21 of Berne, and not only to the TRIPS-specific rental right. However, Article 2(2) of TRIPS and Article 20 of Berne do not allow, it seems, for a broader application of Article 13 of TRIPS than what the Berne Convention would permit. With regard to exceptions for the benefit of the print disabled, it follows that both the Berne and the TRIPS three-step tests apply to the right of reproduction, while the TRIPS test applies to the other Berne rights which might be of relevance here, such as the right of public performance and the adaptation right.
A third layer of obligations follows from membership to the WCT. Similarly to Article 9(1) of TRIPS, article 1(4) of the WCT incorporates articles 1-21 and the Appendix to the Berne Convention. By virtue of this incorporation, the Berne three-step test applies to the reproduction right. In the agreed statement to Article 1(4) of the WCT, it is specified that the Berne reproduction right and its permitted exceptions thereof “fully apply in the digital environment, in particular to the use of works in digital form.” Basically, the agreed statement would seem to indicate that, in applying Article 9 of the Berne Convention in its domestic law, a party to the WCT should recognise digital uses both as part of the reproduction right and of their possible exclusions. The resolution, however, was adopted by a majority vote (fifty-one in favour, five against and thirty abstained), and this may raise serious doubts about its status as a binding agreement under Article 31(2)(a) of the Vienna Convention, stating that an agreement should be “between all the parties in connection with the conclusion of the treaty.”
Similarly to TRIPS, the three-step test occupies also an autonomous, prominent space within the WCT. First, Article 10 applies the test to exceptions relative to rights first granted under the WCT itself, and not already (clearly) provided under the Berne Convention, namely the rights of distribution (Article 6), rental (Article 7) and communication to the public (Article 8). Unlike Article 13 of TRIPS, here the language adopted is identical to the Berne three-step test. Second, Article 10(2) states that the three-step test also applies to all rights protected under Berne. The exact scope of this provision is not very clear, though. The main question here is whether the WCT introduces the parties’ obligation, when applying the Berne Convention, to subject the already permissible exceptions to the three-step test. It would follow that, for instance, the implied exceptions to the public performance right under the minor reservation doctrine should additionally be subject the WCT three-step test. However, the second paragraph of the agreed statement to article 10, adopted by consensus, would seem to firmly exclude this possibility, as it states that it is understood that Article 10(2) “neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention.”
Some commentators consider less clear the interpretation of the first paragraph of the agreed statement. It embraces two different situations, notably limitations and exceptions already existing in national legislations “which have been considered acceptable under the Berne Convention” and new, different exemptions that become relevant because of the digital environment. With regard to exceptions already existing and considered Berne-acceptable, it is agreed that the WCT three-step test permits contracting parties to carry them forward and to “appropriately extend” them into the digital environment. The rather enigmatic language of this part of the agreed statement was first suggested by the US representative, apparently seeking reassurance on behalf of “librarians, educators, and on-line service providers in the United States” that the US doctrine of fair use would “apply on the Internet and elsewhere.” The second sentence of the first paragraph refers to new exceptions and limitations “appropriate in the digital environment,” i.e. beyond existing ones “stretched” to digital uses, which have already been covered by the first paragraph of the agreed statement.
Some commentators consider less clear the interpretation of the first paragraph of the agreed statement. It embraces two different situations, notably limitations and exceptions already existing in national legislations “which have been considered acceptable under the Berne Convention” and new, different exemptions that become relevant because of the digital environment. With regard to exceptions already existing and considered Berne-acceptable, it is agreed that the WCT three-step test permits contracting parties to carry them forward and to “appropriately extend” them into the digital environment. The rather enigmatic language of this part of the agreed statement was first suggested by the US representative, apparently seeking reassurance on behalf of “librarians, educators, and on-line service providers in the United States” that the US doctrine of fair use would “apply on the Internet and elsewhere.” The second sentence of the first paragraph refers to new exceptions and limitations “appropriate in the digital environment,” i.e. beyond existing ones “stretched” to digital uses, which have already been covered by the first paragraph of the agreed statement.
(To be continued, hopefully soon. ACW).
