(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).
