@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.