American University Washington, 10 June 2014 Marrakesh Treaty – Ceiling or Window to Open Sky? Prof. Dr. Martin Senftleben VU University Amsterdam Bird & Bird, The Hague

Marrakesh Treaty concluded in Marrakesh on 27 June 2013 –signed by almost 70 countries –including the EU –‘Miracle of Marrakesh’ broader picture –UN Convention on the Rights of Persons with Disabilities 2007/2008 –WIPO Development Agenda (45 Recommendations)

7% Book famine

Marrakesh Treaty first international treaty dealing specifically with a copyright limitation but not the first international treaty regulating copyright limitations –other mandatory limitations in older treaties –idea/expression dichotomy (Art. 2 WCT) –exclusion of news of the day (Art. 2(8) BC) –right of quotation (Art. 10(1) BC)

Three-Step Test Pre-Existing Limitations Technological Measures Open questions (selection)

Three-Step Test

Ceiling?

Or Window to Open Sky?

‘It shall be a matter for legislation in the countries of the Union to permit the reproduction of [literary and artistic] 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.’ (Art. 9(2) BC) =so-called ‘three-step test’ Three-step test

Article 9(2) BC Article 13 TRIPS Article 10 WCT Three-step test family

‘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.’ Agreed Statement on Art. 10 WCT

room for copyright limitations under the three-step test fully compliant limitations limitations going beyond the three- step test Impact on Marrakesh Treaty?

certain special case –quantitative: specific group of beneficiaries –qualitative: freedom of information conflict with a normal exploitation –substitute for regular copies? –potential market of sufficient importance? unreasonable prejudice –proportionality test –payment of remuneration

Safeguards in the Treaty itself commercial availability exception –Art. 4(4) MT remuneration option –Art. 4(5) MT references to three-step test –Art. 5(4)(b) MT –Art. 11 MT and references in Arts. 4(3) and 5(3)

Pre-Existing Limitations

Starting point for implementation implementation without prejudice to potential other limitations –Art. 12(2) MT also relevant: freedom of adopting other limitations for beneficiary persons –Art. 12(1) MT three-step test offers considerable room for alternative and additional limitations

Pre-existing national limitation for example Art. 5(3)(b) EU Information Society Directive –Member States may provide for exceptions or limitations to the rights of reproduction and communication to the public, including making available, with regard to ‘uses, for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability;…’

Interplay with the Marrakesh Treaty EU provision disability in general work in different forms cross-border not regulated Marrakesh Treaty specific kind of disability work in the form of text, notation cross-border regulated

Keeping scope of pre-existing provision as is Adding Marrakesh features as specific use privileges Implementation strategy

For instance… Art. 5(3)(b) EU Information Society Directive ‘uses, for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability…’, including –making/importing/disseminating special format copies for Marrakesh beneficiaries; –exporting copies for Marrakesh beneficiaries in other countries.

concept of ‘beneficiary persons’ concept of ‘accessible format copies’ The problem country differences

Cross-border exchange ‘Contracting Parties shall provide that if an accessible format copy is made under a limitation or exception or pursuant to operation of law, that accessible format copy may be distributed or made available by an authorized entity to a beneficiary person or an authorized entity in another Contracting Party.’ (Art. 5(1) Marrakesh Treaty)

Which law is decisive? the law of the country of origin –exportation of copies not covered by more restrictive standard in destination country? the law of the country of destination –need to check foreign law an obstacle to activities of authorized entities? the Marrakesh Treaty –international standard binding origin and destination country, thus common ground?

law of destination country if known by exporting entity otherwise Marrakesh Treaty definitions as a safe harbour Stepwise approach feasible?

Proviso in Treaty itself ‘…provided that prior to the distribution or making available the originating authorized entity did not know or have reasonable grounds to know that the accessible format copy would be used for other than beneficiary persons.’ (Art. 5(2) Marrakesh Treaty) no reasonable ground to know that destination country would not follow Marrakesh definitions

Technological measures

Surmounting technical barriers ‘Contracting Parties shall take appropriate measures, as necessary, to ensure that when they provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures, this legal protection does not prevent beneficiary persons from enjoying the limitations and exceptions provided for in this Treaty.’ (Art. 7 Marrakesh Treaty)

But what if…

obligatory key escrow right to hack request to copyright owner Policy options

The end. Thank you! For publications, search for ‘senftleben’ on contact: