(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).
