[A2k] The Berne 3-step test for limitations and exceptions to copyright

[Peter Eckersley]

On Thu, May 05, 2005 at 05:45:50PM -0400, Manon Ress wrote:

> (b)  It shall be presumed that these uses constitute special cases that d=
o
> not conflict with a normal exploitation of the work and do not
> unreasonably prejudice the legitimate interests of the right holder.
>
> (c)  In determining whether applying any limitation or exception to
> exclusive rights to a particular use of a work would conflict with its
> normal exploitation or unreasonably prejudices the legitimate interests o=
f
> the right holder, the extent to which the use benefits the larger public
> interest shall be taken into account.

[Manon, can you forward this to the copyright drafting committee?]

Alan Story pointed out that the copyright aspects of the A2K draft may
not be consistent with the WTO's jurisprudence on the "Berne 3 step
test" which appeared as Article 9(2) of the Berne Convention and grew
into TRIPS Article 13.  That jurisprudence is mostly the WTO Dispute
Settlement Panel's ruling on Section 110(5) of the US Copyright Act
(although Mih=E1ly Ficsor argued that WTO rulings on TRIPs Article 30 may
be relevant too, IIRC).

Article 13 could certainly cause trouble.  One response which may be
worth considering, is to specify in detail how to change or clarify the
meaning of the test, in addition to the language quoted above which
attempts to improve its results without addressing its mechanisms.

I can think of a few ways to do this; others may be able to go further
or to point out some reason why this approach is likely to be
ineffective in the light of the Vienna Convention on the Law of Treaties
or the WTO's structure (IANAL, btw).

1.  The WTO Panel went through contortions to interpret the word
"special" in the strongest possible way [see the Panel ruling, paragraph
6.109].  The A2K treaty could pluck a definition at random out of a
dictionary and greatly liberalise article 13 of TRIPs by specifying it.
Article (c) above could be reinforced by declaring that the presence of
a strong public interest contributes to the "special"-ness of an
exception.

2.  The WTO Panel held that "normal exploitation" is not just a measure
of the /status quo ex ante/ but also has a normative dimension to it
[WTO Panel, paragraph 6.166].  The Panel read this in the light of the
Berne drafting history in a moderately restrictive way [paragraphs
6.178-183].  I wonder if A2K could unwind this by declaring that "it
hasn't been normal [through most of its history] for copyright to
greatly interfere with the public interest", and that therefore the
normative dimension the step should become "it is normal for a use to be
reserved for rights holders if and only if it does not
disproportionately interfere with the public interest".

3.  For the third branch of the test, perhaps A2K could declare that the
only legitimate interests of rights holders are those which, if
protected, will on balance promote the progress of science and the
useful arts?  This runs contrary to the finding of the Panel that
legitimate interests are a superset of economic interests [paragraph
6.227], but is entirely consistent with some of the dictionary senses
they quote, such as "justifiable" or "proper" [paragraph 6.224].

Can someone say if these adjustments are impossible because the WTO's
interpretation under Article 32 of the Vienna Convention now counts
under Article 31.3(b), and there is jurisprudence to say that 31.3(b)
trumps 31.3(c)?  Or that the A2K treaty wouldn't count under 31.3(c)?

--
Peter Eckersley
Department of Computer Science   &                  mailto:pde@cs.mu.oz.au
IP Research Institute of Australia             http://www.cs.mu.oz.au/~pde
The University of Melbourne