M. Geist, here.
Friday, September 06, 2013
Thursday, September 05, 2013
Wednesday, September 04, 2013
AU Copyright Legislation Amendment (Fair Go for Fair Use) Bill 2013
Submissions received by the Committee, here.
Tuesday, September 03, 2013
Monday, September 02, 2013
Friday, August 30, 2013
My Take on the WIPO Marrakesh Treaty/14/END
(Previous episodes here).
Thus, for instance, the compatibility, under
the second prong of the three-step test, of the commercial availability of
accessible format copies with the enjoyment of limitations and exceptions for
the print disabled has not been questioned in US copyright law, where the so called “Chafee
Amendment” does not require authorized entities to check for the commercial availability
of accessible format copies prior to making copies.
Nevertheless, countries are in principle free to enact limitations and exceptions in their national copyright legislation
that are located well below the “upper” limit indicated by the test. The 2006
Sullivan Study noted in this respect that
exceptions for the benefit of the visually impaired in some national copyright laws included a requirement that the work to be used had not been
published already “in a special format” or “in an accessible format."
When national legislators insist on the absence
of commercial availability, there is often the recognition that the mere presence of market offerings does not normally
suffice to facilitate access to works by disabled persons, though. Thus, for instance,
the recently amended Canadian Copyright Act states that the exemption under Section
32 for the benefit of “persons with perceptual disabilities” does not apply
where the work in a format specially designed to meet the needs of any person
with a perceptual disability is commercially available,
by that meaning “available on the Canadian market within a reasonable time and for a reasonable
price and may be located with reasonable
effort” (emphasis added). Also the UK proposed exception for the benefit of disabled persons,
currently under review, would apply only if accessible format copies “are not
commercially available on reasonable
terms with the authority of the copyright owner” (emphasis added).
The Marrakesh Treaty does not
contain any mandatory reference to “commercial availability”. Under Art. 4 of
the Treaty, devoted to “National Law Limitations and Exceptions Regarding
Accessible Format Copies,” paragraph 4 merely states that “a contracting Party may
confine limitations or exceptions under this Article to works which, in the
particular accessible format, cannot be obtained commercially under reasonable terms
for beneficiary persons in that market”
Moreover, an Agreed statement confirms that the commercial availability
requirement under Art.4(4) does not prejudge whether or not a limitation or
exception under Article 4 is consistent with the three-step test.
--------------------
This post concludes Waves' first Feuilleton estival Coming "soon" a paper loosely based on these posts (working title: "Marrakesh Treaty for the Print Disabled: Limitations and Exceptions in Transition)."
Thursday, August 29, 2013
My Take on the WIPO Marrakesh Treaty/13
(Available episodes so far here).
Furthermore, as mentioned above, the three-step test formed the dense background against which the domestic and the cross-border contours of the mandatory exemptions for the benefit of the print disabled were negotiated at the WIPO. Particularly illustrative in this respect is the issue of commercial availability, which negotiators could solve only in the very last hours of the Marrakesh diplomatic conference.
Briefly put, the question was whether it was appropriate to impose the lack of commercial offers of accessible/special format works as a condition of the applicability of the limitations and exceptions established by the Treaty. In other words, whether it was necessary to check for commercial availability of publisher offerings with accessibility features able to meet the needs of the print disabled, before invoking the exemptions covered by the new international instrument.
During the treaty negotiations, the World Blind Union and other stakeholders raised deep concerns especially regarding the requirement to check for commercial availability in another country, considered a serious obstacle to the fulfillment of the aim of the Treaty, that was notably “to ensure that a greater number of books and information were available to print disabled and blind people.” According to those opposing the introduction of commercial availability into the language of the treaty, the requirement would have entailed bureaucratic burden and liability risks, seriously hampering the cross-border circulation of accessible formats copies for the benefit of print disabled persons. Instead, publishers and other organizations mainly representing rightholders supported the introduction of that requirement, noting that commercial publishing and commercial products were an important aspect of providing access to persons with print disability, in developed and developing countries, and that the bureaucracy and liability burdens could be substantially reduced by spelling out simple, easy to use, and effective mechanisms. Moreover, the principle of priority for commercial works was needed in order to incentivize publishers to create accessible copies.
Apparently, one more “technical” argument made by some negotiators against the introduction of commercial availability language into the final text of the treaty for the print disabled, was that the requirement was already included in the second step of the three-step test. The reply from the publishers' side was that “(B)eside the fact that the three step test represented as essential principle of the copyright system, there was a need to have a clear statement in the text that incentivized publishers to provide accessible formats from the outset at the same time, place and price.”
The second step of the well-known test states that limitations or exceptions to exclusive rights are confined to cases which “do not conflict with a normal exploitation of the work.” The Main Committee I at the Stockholm Conference introducing the test into the Berne Convention, gave the practical example of photocopying: “If it (photocopying, SV) consists of producing a very large number of copies, it may not be permitted, as it conflicts with a normal exploitation of the work.” However, what exactly constitutes the normal exploitation of the work has not ceased being debated since the Stockholm Conference. The WTO Panel noted in this respect that “... not every use of a work, which, in principle is covered by the scope of exclusive rights and involves commercial gain, necessarily conflicts with a normal exploitation of that work. If this were the case, hardly any exception or limitation could pass the test of the second condition.” Only under an absolutist understanding of IP protection, refuted also by the WTO Panel, the potential of commercial gain should bar per se the application of limitations and exemptions.
(Last episode of Waves' Feuilleton de l'été 2013 possibly tomorrow).
Wednesday, August 28, 2013
My Take on the WIPO Marrakesh Treaty/12
(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)
Tuesday, August 27, 2013
My Take on the WIPO Marrakesh Treaty/11
(Available episodes so far here).
The 1996 WIPO Performances and Phonograms Treaty, and the Beijing Audiovisual Performances Treaty, concluded in 2012, also include instrument-specific three-step tests. As to the more recent Treaty, Article 13(2) states that contracting parties, in providing in their national legislations limitations or exceptions with regard to the protection of performers, “shall confine” them “to certain special cases which do not conflict with a normal exploitation of the performance and do not unreasonably prejudice the legitimate interests of the performer.” An agreed statement concerning Article 13 of the Beijing Treaty adds that the WCT agreed statement concerning Art.10, considered at length above, “is applicable mutatis mutandis also to Article 13.”
Having regard to its importance and its historically laden complexity, it comes as little surprise that the three-step test soon became one of the most debated issues in the course of the years-long negotiations that led to the successful adoption of the Marrakesh Treaty. In particular, there were concerns and suspicions from the opposite ends of the negotiating tables that the treaty for print disabled persons could be used either to expand or to reduce the reach of the test, with ripple effects propagating throughout the IP system. Briefly put, on the one hand discussions revolved around the three-step test’s appropriate stance; on the other hand, the domestic and the cross-border contours of the mandatory exemption for the benefit of the print disabled were negotiated against the background of the application of the test.
With regard to the first issue, much debated was especially whether the three-step test should have been inserted into the Treaty as a stand-alone provision. In this respect, the proposed broad Marrakesh three-step test, supported in particular by industry stakeholders and delegates from developed countries, would have resembled Art.5(5) of the InfoSoc Directive. Similarly to what happened in connection with the implementation of the EU Directive into a number of the member States’ legal systems, some contracting parties to the Marrakesh Treaty might have then decided to implement the obligations under the international instrument in question not only by enacting self-contained limitations and exceptions for the benefit of the print-disabled, but also by replicating, in their domestic legislation, the extensive language of the three-step test, thus infusing more complexity and uncertainty into the system. Nevertheless, one of the most influential arguments supporting the inclusion of a stand-alone three-step test, especially towards the end of the negotiations, was made in relation to an issue that came to be dubbed the “Berne Gap.” A number of countries which might have been signatories to the treaty for the print disabled, were not Berne, WCT or TRIPS parties, and therefore not bound by the therein envisioned three-step test(s), giving rise to particular concerns in connection with the cross-border exchange of accessible format copies.
In the early stages of the negotiations, Art.2(2) of the EU Draft Joint Recommendation contained the proposal for a stand-alone test. Two years later, Article Ebis of the November 23, 2012 draft text put forth a pair of basic alternative formulations (plus some variations) of the three-step test, whose most stringent incarnation would have subjected national exceptions and limitations already consistent with the Treaty to a full-blown, additional review shaped in the language of Article 13 of TRIPS (“interest of the right holder”). On this specific issue, the last draft text of the treaty adopted before Marrakesh still indicated the necessity of thorough discussions to be carried forward at the diplomatic conference.
(To be continued).
The 1996 WIPO Performances and Phonograms Treaty, and the Beijing Audiovisual Performances Treaty, concluded in 2012, also include instrument-specific three-step tests. As to the more recent Treaty, Article 13(2) states that contracting parties, in providing in their national legislations limitations or exceptions with regard to the protection of performers, “shall confine” them “to certain special cases which do not conflict with a normal exploitation of the performance and do not unreasonably prejudice the legitimate interests of the performer.” An agreed statement concerning Article 13 of the Beijing Treaty adds that the WCT agreed statement concerning Art.10, considered at length above, “is applicable mutatis mutandis also to Article 13.”
Having regard to its importance and its historically laden complexity, it comes as little surprise that the three-step test soon became one of the most debated issues in the course of the years-long negotiations that led to the successful adoption of the Marrakesh Treaty. In particular, there were concerns and suspicions from the opposite ends of the negotiating tables that the treaty for print disabled persons could be used either to expand or to reduce the reach of the test, with ripple effects propagating throughout the IP system. Briefly put, on the one hand discussions revolved around the three-step test’s appropriate stance; on the other hand, the domestic and the cross-border contours of the mandatory exemption for the benefit of the print disabled were negotiated against the background of the application of the test.
With regard to the first issue, much debated was especially whether the three-step test should have been inserted into the Treaty as a stand-alone provision. In this respect, the proposed broad Marrakesh three-step test, supported in particular by industry stakeholders and delegates from developed countries, would have resembled Art.5(5) of the InfoSoc Directive. Similarly to what happened in connection with the implementation of the EU Directive into a number of the member States’ legal systems, some contracting parties to the Marrakesh Treaty might have then decided to implement the obligations under the international instrument in question not only by enacting self-contained limitations and exceptions for the benefit of the print-disabled, but also by replicating, in their domestic legislation, the extensive language of the three-step test, thus infusing more complexity and uncertainty into the system. Nevertheless, one of the most influential arguments supporting the inclusion of a stand-alone three-step test, especially towards the end of the negotiations, was made in relation to an issue that came to be dubbed the “Berne Gap.” A number of countries which might have been signatories to the treaty for the print disabled, were not Berne, WCT or TRIPS parties, and therefore not bound by the therein envisioned three-step test(s), giving rise to particular concerns in connection with the cross-border exchange of accessible format copies.
In the early stages of the negotiations, Art.2(2) of the EU Draft Joint Recommendation contained the proposal for a stand-alone test. Two years later, Article Ebis of the November 23, 2012 draft text put forth a pair of basic alternative formulations (plus some variations) of the three-step test, whose most stringent incarnation would have subjected national exceptions and limitations already consistent with the Treaty to a full-blown, additional review shaped in the language of Article 13 of TRIPS (“interest of the right holder”). On this specific issue, the last draft text of the treaty adopted before Marrakesh still indicated the necessity of thorough discussions to be carried forward at the diplomatic conference.
(To be continued).
Monday, August 26, 2013
Do fixed patent terms distort innovation? Evidence from cancer clinical trials
E. Budish, B. Roin, H. Williams, here.
My Take on the WIPO Marrakesh Treaty/10
(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).
Sunday, August 25, 2013
Friday, August 23, 2013
My Take on the WIPO Marrakesh Treaty/9
(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).
Patents and Cumulative Innovation: Causal Evidence from the Courts
A. Galasso, M. Schankerman, here.
Thursday, August 22, 2013
Assessing Factors That Affect Patent Infringement Litigation Could Help Improve Patent Quality
US Government Accountability Office, here.
My Take on the WIPO Marrakesh Treaty/8
(Available episodes so far here).
The Preamble to the Treaty emphatically mentions the importance and the flexibility of the test. The Articles make several references to the three-step test, both explicitly and implicitly, in particular where the need to adhere to existing treaty obligations is reaffirmed. The individual contracting party’s international obligations, as well as available flexibilities thereof, determine the scope of applicability of limitations and exceptions permitted in that specific country. The new exception for the benefit of the visually impaired had to find its way into a historically overgrown space, covered by minimum exclusive rights, few specific and many more vague exceptions, and versions of the three-step test with sometimes diverging scopes of application.
The categories of rights likely to be involved in the complex analysis necessary to ensure compliance with other conventions and treaties in the field of copyright are indicated by the Marrakesh Treaty itself. Article 4(1)(a) states that “Contracting Parties shall provide in their national copyright laws for a limitation or exception to the right of reproduction, the right of distribution, and the right of making available to the public as provided by the WIPO Copyright Treaty (WCT).” The mandatory (“shall”) maxima to copyright protection for the benefit of print disabled persons explicitly applies to three of the most significant rights which have progressively gained recognition in the course of the evolution of international copyright law. With regard to other relevant rights, the Treaty is less explicit. As to a possible species of the adaptation right (as far as it is not already covered by the reproduction right), the same Article 4(1)(a) states that “The limitation or exception provided in national law should permit changes needed to make the work accessible in the alternative format” (emphasis added). Article 4(1)(b) adds that “Contracting Parties may also provide a limitation or exception to the right of public performance to facilitate access to works for beneficiary persons” (emphasis added)
In a WIPO Study dedicated generally to “Limitations and exceptions of Copyright and related rights in the digital environment,” prepared by Sam Ricketson, and presented to the SCCR in 2003, the author compiled a very useful, detailed list of questions that countries should ask themselves in matters of treaty compliance.
If the country is a member of the Berne Convention, the question should be asked whether the limitation or exception for the print disabled is covered by one of the existing Berne provisions. Of relevance in this respect is in particular Art. 9(2), that applies to the reproduction right, and, impliedly, to the distribution of copies so made. Apart from the general exception to the reproduction right, there are a number of “implied” exceptions to other rights specifically provided in the Convention, such as the right of public performance, meaning that the activities in question are not in conflict with Berne obligations based on the so called minor reservation doctrine. Moreover, the Appendix to the Paris Act allows developing countries, under rather complex conditions, to issue compulsory licences, among others, for translating published foreign works into languages of general use in their territories, and publishing them in printed or other analogous form, for teaching, scholarship or research purposes.
Wednesday, August 21, 2013
My Take on the WIPO Marrakesh Treaty/7
(Available episodes so far here)
If the international copyright acquis does not prevent parties to the Berne Union, the WCT or TRIPS from entering into special agreements mandating three-step test compliant copyright limitations, it should also be noted that the international copyright framework does very little to promote in any significant way counter-weighting initiatives to the dominant minimum rights approach.
(To be continued)
If the international copyright acquis does not prevent parties to the Berne Union, the WCT or TRIPS from entering into special agreements mandating three-step test compliant copyright limitations, it should also be noted that the international copyright framework does very little to promote in any significant way counter-weighting initiatives to the dominant minimum rights approach.
Quite on the contrary, the protection gap between the rights granted to authors and the interests of the general public has not stopped widening, especially since copyright and other intellectual property rights have gained increasing importance and bargaining weight at the numerous tables where international trade issues are negotiated. Admittedly, non-economic interests such as providing improved access to works for the benefit of the vulnerable societal group of print disabled persons are not likely to attract much consideration in the various international fora dominated by trade and economic interests.
As mentioned above, the direct beneficiaries of the previously adopted multilateral copyright conventions were foreign authors and right holders who qualified for protection under the rules of the applicable binding agreements, mirroring the combined national treatment plus minimum rights-approach. After more than one hundred years of international norm setting in the field of copyright, the time was certainly ripe to start regulating also the previously neglected space of limitations and exceptions. With the adoption of the WIPO Marrakesh Treaty, five years since the first appearance of the topic of protection maxima ("ceilings") on the agenda of the SCCR, the competing and still quite controversial user-focused approach in copyright law is now solidly anchored on the international level.
At the origin of the Marrakesh Treaty is the consensus of the international community regarding the importance of the public interest at stake, i.e “facilitating access to and use of works by persons with visual impairments or with other print disabilities.” The consensus reached captures one of the possible ways of balancing that specific public interest with the countervailing objective of copyright protection. Within the limits of the balancing concretely achieved, it reflects a globally shared value system.
As mentioned above, the direct beneficiaries of the previously adopted multilateral copyright conventions were foreign authors and right holders who qualified for protection under the rules of the applicable binding agreements, mirroring the combined national treatment plus minimum rights-approach. After more than one hundred years of international norm setting in the field of copyright, the time was certainly ripe to start regulating also the previously neglected space of limitations and exceptions. With the adoption of the WIPO Marrakesh Treaty, five years since the first appearance of the topic of protection maxima ("ceilings") on the agenda of the SCCR, the competing and still quite controversial user-focused approach in copyright law is now solidly anchored on the international level.
At the origin of the Marrakesh Treaty is the consensus of the international community regarding the importance of the public interest at stake, i.e “facilitating access to and use of works by persons with visual impairments or with other print disabilities.” The consensus reached captures one of the possible ways of balancing that specific public interest with the countervailing objective of copyright protection. Within the limits of the balancing concretely achieved, it reflects a globally shared value system.
(To be continued)
Tuesday, August 20, 2013
My take on the WIPO Marrakesh Treaty/6
(Available episodes so far here).
Whilst it can be disputed whether the new WIPO Treaty is consistent with the history and spirit of the established legal framework, there is no actual provision preventing countries per se from entering into international agreements establishing maximum protection levels in the field of copyright law.
To see this, it should first be recalled that specific provisions enshrined in various treaties and conventions in the field, notably the Berne Convention, the Rome Convention, the TRIPS Agreement, the WCT, the WPPT, and the Beijing Treaty on Audiovisual Performances, contribute to the establishment of a rather complex international copyright system, at whose root lies the principle of national treatment, i.e. the non-discrimination rule in favour of foreign nationals from contracting states. According to this rule, the level of protection accorded to foreign works should not be lower than the protection granted to country of origin works. Put differently, whatever the level of protection under domestic law, the country is obliged to offer the same level of protection to nationals of other contracting countries. From its beginning, the international copyright system also contained obligations for contracting states to grant a minimum level of protection of foreign works, the so-called minimum rights. In the original 1886 Berne Convention, these rights were limited to translation, adaptation and public representation of dramatic or dramatico-musical works, but since those early days the area of minimum protection offered by binding international instruments has constantly and significantly broadened.
For contracting parties of the Berne Convention in particular, the relations to new international instruments are governed by Art. 20, which foresees the possibility to enter into “special agreements” among themselves “in so far as such agreements grant to authors more extensive rights than those granted by the Convention, or contain other provisions not contrary to this Convention” (emphasis added). Thus, the last part of the provision prevents a group of contracting countries from entering agreements among themselves providing a lower level of protection than the conventional minimum rights, if this is contrary to the Convention. Therefore, special agreements on limitations and exceptions, which by their very nature hamper the minimum Convention rights, are permitted only if they are otherwise Berne-compliant, i.e. if they are compatible with the three-step test framework set out in Art. 9(2) for exceptions to the reproduction right, or with other Berne exceptions or limitations, such as for instance Art. 10(2) covering teaching.
Whilst it can be disputed whether the new WIPO Treaty is consistent with the history and spirit of the established legal framework, there is no actual provision preventing countries per se from entering into international agreements establishing maximum protection levels in the field of copyright law.
To see this, it should first be recalled that specific provisions enshrined in various treaties and conventions in the field, notably the Berne Convention, the Rome Convention, the TRIPS Agreement, the WCT, the WPPT, and the Beijing Treaty on Audiovisual Performances, contribute to the establishment of a rather complex international copyright system, at whose root lies the principle of national treatment, i.e. the non-discrimination rule in favour of foreign nationals from contracting states. According to this rule, the level of protection accorded to foreign works should not be lower than the protection granted to country of origin works. Put differently, whatever the level of protection under domestic law, the country is obliged to offer the same level of protection to nationals of other contracting countries. From its beginning, the international copyright system also contained obligations for contracting states to grant a minimum level of protection of foreign works, the so-called minimum rights. In the original 1886 Berne Convention, these rights were limited to translation, adaptation and public representation of dramatic or dramatico-musical works, but since those early days the area of minimum protection offered by binding international instruments has constantly and significantly broadened.
For contracting parties of the Berne Convention in particular, the relations to new international instruments are governed by Art. 20, which foresees the possibility to enter into “special agreements” among themselves “in so far as such agreements grant to authors more extensive rights than those granted by the Convention, or contain other provisions not contrary to this Convention” (emphasis added). Thus, the last part of the provision prevents a group of contracting countries from entering agreements among themselves providing a lower level of protection than the conventional minimum rights, if this is contrary to the Convention. Therefore, special agreements on limitations and exceptions, which by their very nature hamper the minimum Convention rights, are permitted only if they are otherwise Berne-compliant, i.e. if they are compatible with the three-step test framework set out in Art. 9(2) for exceptions to the reproduction right, or with other Berne exceptions or limitations, such as for instance Art. 10(2) covering teaching.
Furthermore, Art. 20 of the Berne Convention implies that contracting parties are prevented from entering agreements not affecting the minimum rights as such, but violating the principle of national treatment. The non-discrimination rule means that exceptions and limitations foreseen by a special agreement should equally apply to local and foreign works. In fact, if they applied only to foreign works, these works would be less protected than domestic works. Thus, if a country, in compliance with the newer agreement, introduced mandatory exceptions for foreign works without providing for substantially equivalent exceptions applying to domestic works, it would act “contrary to this Convention” within the meaning of Art. 20.
(To be continued)
Monday, August 19, 2013
Friday, August 16, 2013
Thursday, August 15, 2013
Wednesday, August 14, 2013
My Take on the WIPO Marrakesh Treaty/5
(Previous episodes here).
From its early beginnings, WBU’s 2000 policy action on the international norm-setting stage had two pragmatic objectives. First, WBU was firmly of the opinion that the copyright regime of exceptions and limitations for the visually impaired of the world needed improvement, because access to published works was notoriously inadequate, and previous experience had shown that this important objective could not be left to the goodwill of national legislators alone. Second, the international copyright framework needed to be framed in such as a way as to allow for the import and export of works in accessible formats, thus creating a “global lending library” benefiting in particular those visually impaired persons living in economically weak countries.
From its early beginnings, WBU’s 2000 policy action on the international norm-setting stage had two pragmatic objectives. First, WBU was firmly of the opinion that the copyright regime of exceptions and limitations for the visually impaired of the world needed improvement, because access to published works was notoriously inadequate, and previous experience had shown that this important objective could not be left to the goodwill of national legislators alone. Second, the international copyright framework needed to be framed in such as a way as to allow for the import and export of works in accessible formats, thus creating a “global lending library” benefiting in particular those visually impaired persons living in economically weak countries.
According to a number of delegations and experts, however, the fulfillment of the WBU’s clearly formulated policy objectives would have run counter to existing, established principles of international copyright protection.
At the origin of the countries’ early willingness to engage in international copyright norm-setting activities, arguably, lies the strong interest in assuring the protection abroad of their domestic authors. In fact, absent obligations at the international level, domestic authors, normally, are not protected in foreign countries. With regard to the protection of domestic print disabled persons, however, national legislation would regularly suffice, hence no clear need for international norm-setting in favour of this specific category of users. Additionally, print disabled persons travelling to developed countries would benefit from exceptions and limitations already available in those countries’ national legislations. A further argument derived from international copyright principles is that copyright obligations stemming out of treaties and conventions are traditionally limited to the protection of foreign works. Part of the solution to the “book famine” envisaged by the WBU, however, would have required international obligations directly protecting domestic users. Finally, no “one size fits all” exceptions and limitations would have been suitable, as proven in particular by the very existence of the “controlling,” yet flexible three-step test.
(To be continued, hopefully next week).
At the origin of the countries’ early willingness to engage in international copyright norm-setting activities, arguably, lies the strong interest in assuring the protection abroad of their domestic authors. In fact, absent obligations at the international level, domestic authors, normally, are not protected in foreign countries. With regard to the protection of domestic print disabled persons, however, national legislation would regularly suffice, hence no clear need for international norm-setting in favour of this specific category of users. Additionally, print disabled persons travelling to developed countries would benefit from exceptions and limitations already available in those countries’ national legislations. A further argument derived from international copyright principles is that copyright obligations stemming out of treaties and conventions are traditionally limited to the protection of foreign works. Part of the solution to the “book famine” envisaged by the WBU, however, would have required international obligations directly protecting domestic users. Finally, no “one size fits all” exceptions and limitations would have been suitable, as proven in particular by the very existence of the “controlling,” yet flexible three-step test.
(To be continued, hopefully next week).
Tuesday, August 13, 2013
My Take on the WIPO Marrakesh Treaty/4
(Available episodes so far here).
Discussions at the international level revived in 2000, when the WBU General Assembly in Melbourne adopted a resolution on copyright and access to information in alternate format. In particular, the General Assembly decided to call on the WIPO to “co-operate in the formulation of detailed national and international legislation which will afford full and equitable access by blind and partially sighted people to all copyright-protected material.” By the time the WBU, together with the International Federation of Library Associations (IFLA, Section of Libraries of the Blind), renewed contacts with WIPO in 2000, the organization’s ambitious policy agenda for the benefit of the visually impaired was largely set. In the following years, WBU intensified its presence at the WIPO Standing Committee for Copyright and Related Rights (SCCR), which in the meanwhile had started working on the topic of exceptions and limitations. At the Twelfth Session of the SCCR (SCCR 12), Chile proposed the inclusion on the agenda of an item regarding “certain limitations and exceptions,” and two years later, at SCCR 15, Judith Sullivan presented the WIPO Study on Copyright Limitations and Exceptions for the Visually Impaired. Formally, the topic of exceptions and limitations was first included on the Committee’s agenda of its Sixteenth Session.
At SCCR 18 (May, 2009), Brazil, Ecuador and Paraguay, later joined by Mexico, presented a Proposal Relating to Limitations and Exceptions: Treaty Proposed by the World Blind Union (WBU). SCCR 20 saw the introduction and preliminary discussion of three more proposals, and at SCCR 22 (June, 2011) a large consensus eventually emerged among delegates on merging three of the negotiating texts together into a “Proposal on an International Instrument on Limitations and Exceptions for Persons with Print Disabilities”. The revised draft text of “an international instrument/treaty on limitations and exceptions for visually impaired persons/persons with print disabilities,” the basic proposal for the substantive provisions of the treaty further negotiated in Marrakesh, was finally adopted at the April 2013 special session of the SCCR.
Discussions at the international level revived in 2000, when the WBU General Assembly in Melbourne adopted a resolution on copyright and access to information in alternate format. In particular, the General Assembly decided to call on the WIPO to “co-operate in the formulation of detailed national and international legislation which will afford full and equitable access by blind and partially sighted people to all copyright-protected material.” By the time the WBU, together with the International Federation of Library Associations (IFLA, Section of Libraries of the Blind), renewed contacts with WIPO in 2000, the organization’s ambitious policy agenda for the benefit of the visually impaired was largely set. In the following years, WBU intensified its presence at the WIPO Standing Committee for Copyright and Related Rights (SCCR), which in the meanwhile had started working on the topic of exceptions and limitations. At the Twelfth Session of the SCCR (SCCR 12), Chile proposed the inclusion on the agenda of an item regarding “certain limitations and exceptions,” and two years later, at SCCR 15, Judith Sullivan presented the WIPO Study on Copyright Limitations and Exceptions for the Visually Impaired. Formally, the topic of exceptions and limitations was first included on the Committee’s agenda of its Sixteenth Session.
At SCCR 18 (May, 2009), Brazil, Ecuador and Paraguay, later joined by Mexico, presented a Proposal Relating to Limitations and Exceptions: Treaty Proposed by the World Blind Union (WBU). SCCR 20 saw the introduction and preliminary discussion of three more proposals, and at SCCR 22 (June, 2011) a large consensus eventually emerged among delegates on merging three of the negotiating texts together into a “Proposal on an International Instrument on Limitations and Exceptions for Persons with Print Disabilities”. The revised draft text of “an international instrument/treaty on limitations and exceptions for visually impaired persons/persons with print disabilities,” the basic proposal for the substantive provisions of the treaty further negotiated in Marrakesh, was finally adopted at the April 2013 special session of the SCCR.
The Impact of the Acquisition and Use of Patents on the Smartphone Industry
Study prepared for WIPO, Center on Law and Information Policy (Fordham Law School), here.
Monday, August 12, 2013
My Take on the WIPO Marrakesh Treaty/3
(Available episodes so far here).
In earlier times, a few national legislators already recognized the necessity of specific public policy intervention for the benefit of the print disabled. In 1964, the Sweden/BIRPI Study Group formed in preparation for the Stockholm Conference of Revision of the Berne Convention identified “reproduction in special characters for the use of the blind” and “sound recordings of literary forks for the use of the blind” amongst the exceptions provided for in some national legislations. At the international level, Brazil was the first country to raise the matter of the copyright status of visually impaired persons at the 1977 joint UNESCO/WIPO sessions, thereby proposing to set up a working group whose task would have been “to study suitable ways and means of facilitating the free flow of books and publications designed for the visually impaired.” The Committees decided to appoint the World Council for the Welfare of the Blind (WCWB - which later, together with the International Federation of the Blind, was to form the World Blind Union) to carry out a preliminary study for the Secretariats, supplemented by a brief overview of the solutions which had already emerged in national legislations. In 1979, the WCWB Study (the1979 Study) was submitted to the two Committees, and circulated to Member States for comments. At the 1981 WIPO/UNESCO joint sessions, the delegations of Brazil and of the United States of America proposed to set up a working group, in which representatives of the WCWB and of the International Publishers Association were invited to take part in an advisory capacity.The Secretariats of UNESCO and WIPO commissioned a study to Wanda Noel, a Canadian independent expert, on the application of the Berne Convention “to material for the visually and auditory handicapped” (the1981 Study).
Noel’s analysis contained draft model provisions assisting in the formulation of national legislation for visually impaired persons, which in 1982 were largely endorsed by the Working Group on Access by the Visually and Auditory Handicapped to Material Reproducing Works Protected by Copyright, chaired by Mihály Ficsor. In particular, the working group adopted two alternative model provisions, the main difference being that Alternative A was an outright exception, permitting the reproduction “without the consent of the author and without payment of remuneration,” whereas Alternative B consisted in a compulsory licence, requiring the payment of remuneration for use. At the following WIPO/UNESCO joint meetings, the Chairman of the working group expressed concerns as regards the model provisions, stating that the “this preferential treatment is a minimum and a more reserved attitude of representatives of authors would endanger the positive image of copyright and the public support for solving the fundamental problems of copyright protection.” Some countries, in particular Australia, Austria, Israel, the Netherlands and Norway, however, were strongly in favour of Alternative B, providing for a compulsory licence. Austria and Norway in particular stressed the importance of maintenance of the “symbolic nature of remuneration.” Striking a more restrictive tone, Finland, the Netherlands, the United Kingdom and the United States of America held that “exceptions to copyright were not necessary, as negotiations on a voluntary basis between the handicapped and the representatives of authors generally produced satisfactory solutions.” In conclusion, the Committees recommended further work in this field, and the question was kept on the Committees’ respective agendas. In the following, the Secretariats drew up a preparatory document (the 1985 Study) focusing on a number of points highlighted by the Committees, with the assistance of the same expert who had drafted the 1981 analysis. The more recent study expanded on previous discussions, by drawing a line between the “production of special media materials,” addressed by means of an exception or a compulsory license in domestic copyright law, and the cross-border distribution of those materials, “prohibited because of importation provisions contained in the copyright laws of most countries.” Two solutions were suggested to the “dual problem of production and distribution:” either the removal of those provisions obstructing international exhaustion, or the formulation of an “entirely new international instrument which would permit production of special media materials and services in member states, and the distribution of those materials and services amongst member states without restrictions.” The 1985 Study concluded by recommending the formulation of the new international instrument, as “it would solve both production and distribution problems by providing a legal mechanism for sharing materials and services for the handicapped around the world.” At the 1985 WIPO and UNESCO joint Committees’ meetings, Brazil, Guinea and Portugal manifested considerable interested in an international instrument.
(Next episode: The discussions' revival at the international level in the new millenium)
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