Comparative L&Es in Copyright Singapore, 22 July 2016 Copyright L&Es Treaty Prof. Martin Senftleben Vrije Universiteit Amsterdam Bird & Bird, The Hague

Nightmare?

Dream come true?

Contents Status quo Nightmare Dream come true

Status Quo

Three-step test direct basis of L&Es enabling function additional control of L&Es constraining function?

Direct basis of L&Es

Article 9(2) Berne Convention right of reproduction "It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author."

For example, direct basis of… temporary acts of copying, such as browsing and caching reproductions made by libraries, museums, and archives reproductions of works permanently located in public places etc. etc… …last but not least: private copying

Article 10(1) WIPO Copyright Treaty "Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author." right of making available (Article 8 WCT) all online L&Es based directly on the three-step test

Additional control

Specific international L&Es quotations, press summaries (Art. 10(1) BC) articles on current topics (Art. 10bis(1) BC) lectures, addresses, works of the same nature delivered in public (Art. 2bis(2) BC) reporting of current events (Art. 10bis(2) BC) use for teaching (Art. 10(2) BC) visually impaired persons (Marrakesh Treaty)

Article 13 TRIPS "Members shall confine limitations or exceptions to exclusive rights 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 right holder." three-step test as a horizontal yardstick for assessing L&Es

= additional control national use privilege for teaching compliance with Article 10(2) BC compliance with Article 13 TRIPS

Article 10(2) WIPO Copyright Treaty "Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for therein to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author." confirmation of three-step test as a horizontal yardstick for assessing L&Es

How restrictive is this? Agreed Statement Concerning Art. 10 WCT "It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment."

How restrictive is this? Berne Convention allows compulsory licensing compulsory licenses concerning broadcasting, and wireless or loudspeaker communications (Art. 11bis(2) BC) three-step test offers room for compulsory licensing

Nightmare

Test deprived of its enabling function development of more specific international L&Es three-step test as an additional control mechanism even though L&Es already delineated quite precisely

= inconsistent additional scrutiny Marrakesh Treaty specific L&Es in the Treaty itself in addition, need to comply with three-step test (Article 11 MT) = inconsistent additional scrutiny

Dilemma in spite of specific L&Es limited legal certainty insufficient flexibility three-step test not used in an enabling sense

Dream come true

Cultivating the enabling function specific international L&Es as mere examples of permissible use privileges three-step test as flexible, open-ended framework

More concretely "Contracting Parties may, in their national legislation, provide for limitations and exceptions serving economic, social or cultural purposes, such as making quotations illustrating teaching reporting current events etc. etc. provided that the use does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author."

Advantages sufficient flexibility keeping pace with new developments legitimacy of the protection system sufficient legal certainty three-step test as common denominator national legislation and case law

contact: m.r.f.senftleben@vu.nl The end. Thank you! contact: m.r.f.senftleben@vu.nl