[A2k] Statement of the CSC at SCCR 26, on copyright exceptions for Education in the Berne Convention and the Three-Step Test (20/12/13)

Thiru Balasubramaniam thiru at keionline.org
Fri Dec 20 04:30:48 PST 2013

This statement was delivered by Susan Isiko Strba on Friday, 20 December


*Statement of the CSC at SCCR 26, on copyright exceptions for Education in
the Berne Convention  and the Three-Step Test (20/12/13)*

*Specific exceptions, the three-step test and purpose of the Copyright

In 1886, when the Berne Convention was first adopted, there was a
permissive exception for "extracting portions" from works "for use in
publications destined for educational or scientific purposes.”

In several successive revisions of the Berne Convention, the exact wording
of exceptions relevant to education have evolved. In 1948, “The right to
include excerpts of literary or artistic works in educational or scientific
publications” was “a matter for legislation in the countries of the Union,
and for special arrangements existing or to be concluded between them.” The
standard for the exception was “so far as” the use of the excepts were
“justified by its purpose.”

In 1967, there was a major revision of the Berne, which included for the
first time, a new exception for teaching and education, and a mandatory
exception to the right of quotation right.

The records of the 1967 revision Conference, (which was attended by many
represented here mainly under the umbrella of Group B),  show that
exceptions for “certain special purposes,” including Article 10 of the
Berne, as well as other “particular” exceptions, would have their own
standards, separate from the 3-step test, under article 9.2 (or later
article 13 of TRIPS Agreement).

The 3-step test was designed to address other types of exceptions, that did
not have a specific mention in the Berne.

Under article 10.2 of the Berne Convention, literary or artistic works may
be used “by way of illustration in publications, broadcasts or sound or
visual recordings for teaching, provided such utilization is compatible
with fair practice,” and “to the extent justified by the purpose.”

A determination of  “fair practice” or uses that are justified by the
purpose depends on the context, and is defined by the realities of each
country. (In other words,) these concepts are evolutive, taking into
account current developments and new needs.

These exceptions are not, should not and must not be restricted by the
3-step test.  Doing so would amount to subjecting the whole copyright
system to the whims and wishes of the right holders (not authors), such as
publishing and other companies, whom the three-step test currently protects
under the TRIPS Agreement. Doing this is losing sight of the principle
objective of the copyright system, which is to promote education, science
and useful arts for the public interest.

Mr Chair, the social and developmental cost of an uneducated citizenry, who
are found in the majority of countries represented here, are higher than
the economic loss for a few individuals or companies whose rights have been
regulated so as to allow the majority of the population to “enjoy the
fruits of scientific progress”.

Thank you.

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