[A2k] KEI intervention on copyright exceptions at SCCR 36

Thiru Balasubramaniam thiru at keionline.org
Wed May 30 07:16:47 PDT 2018


KEI intervention on copyright exceptions at SCCR 36

Posted on May 30, 2018 by James Love

I’m about to deliver this intervention at the WIPO SCCR 36 meeting, as a
general statement on limitations and exceptions. We are given 2 minutes.

KEI has three points

1. The 1971 Berne Annex, which deals with access for developing countries,
is widely considered a failure, and it be reformed and made relevant to the
digital age.

2. The 1976 Tunis model law, which is a soft norm, could be updated…. using
the modalities of the original negotition, which was member state driven,
but undertaken by experts nominated by member states.

3. But also, it may be useful to have a serious discussion about how
different parties think the 3 step test is or should be interpreted, before
driving versions of this test, often somewhat different from earlier
formulations, into the fabric of international agreements.

I also call attention to the preparatory work for the 1967 revisions,
specifically, Records of the Stockholm Conference, 1967, Vol 1, page 112.

In discussing the 3-step test, when the test was first introduced in the
Berne Convention, the Study Group stated the 3-step test did not apply to
the particular exceptions in the Convention, where an existing standard for
an exception already existed, citing specifically the Article 10 exceptions
for quotations and Illustrations for teaching as well as 10bis, 11bis
paragraph 3, and the exception in Article 13 for compulsory licenses.

KEI also notes the 3 step test also does not exist in the Rome Convention.


At some point, you need to trust democratic institutioins to fashion and
modify exceptions, to address national preferences, and the changes in
technologies, business models and outcomes, over time.

See: The Berne Convention revisions for limitations and exceptions to
2012:1 KEI Research Note

Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International
41 22 791 6727
thiru at keionline.org

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