@WavesBlog

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.

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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

Public Companies and Competition Law: The Launching of an ICN Project

E. Fox, here.

See also here.

Obbligo di accesso aperto per pubblicazioni relative a ricerche finanziate con fondi pubblici

P. Galimberti, qui.

Art. 4 del Decreto Legge 8 agosto 2013, n. 91 Disposizioni urgenti per la tutela, la valorizzazione e il rilancio dei beni e delle attivita' culturali e del turismo. (13G00135) (GU n.186 del 9-8-2013 ) qui.

Startups and Regulation

J. Fingleton, here.

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).

OFT welcomes Amazon’s decision to end price parity policy

OFT.gov.uk, here.

Hollywood Studios Win Massive Hotfile Lawsuit

Hollywoodreporter.com, here.

Que veinte años no es nada...

M. Flores Bernés, aquì.

A Spotify for Physical Objects Wants to Drown Out 3D-Printing Piracy

Motherboard.vice.com, here.

Wednesday, August 28, 2013

A Brief History of Disruptive Innovation

Project-disco.org, Part I and Part II.

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)

Amici Submit Brief in Support of Ambry Genetics and Gene by Gene

Patentdocs.org, here.

Indian government refutes Novartis' allegations of 'discriminatory' patent practices

Economictimes.indiatimes.com, here.

Hadopi : des mesures anti-piratage et pro-filtrage en janvier 2014

Numerama.com, ici.

IT Professionals welcome passing of Patents Bill in New Zealand

Iitp.org.nz, here.
New clause 10A on computer programs here.

Kartellrecht und Marktmanipulation

D. Zimmer, hier.

Tuesday, August 27, 2013

Amazon kündigt an, Preisparität nicht mehr durchzusetzen

Bundeskartellamt.de, hier.

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).

Uralkali CEO arrested in Belarus amid potash dispute

CBC.ca, here.

OFT reviews Waze's acquisition by Google

OFT.co.uk, here.

Google Books Fair Use Trial: Briefs available

Here ( HT @ARLpolicy).

Ding Ding, Seconds Out For Round Two Of The Microsoft v. Motorola Mobility Patent Fight

Forbes.com, here.

Données personnelles : mieux vaut pirater un ebook que l'acheter

ActuaLitte.com, ici.

Monday, August 26, 2013

Pay TV operators in fresh tussle with DStv over airing of EPL games in Kenya

Nation.co.ke, here.

Amsterdam Museum is scanning and selling Van Gogh replicas

FutureofCopyright.com, here.

Re-Thinking the Role of Intellectual Property

F. Gurry, here. Video of the Melbourne Lecture here.

The Treaty of Marrakesh explained

Worldblindunion.org, here. Compare with IFFRO's own analysis, here

Thus Spoke the Creative Commons Board of Directors

Afro-ip.blogspot.com, here.

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

Kommunale Stromversorger oder Müllunternehmen: Am Ende zahlt der Bürger die Rechnung

FAZ.net, hier.