[A2k] WTO TRIPS Council: South Africa’s submission on The WTO TRIPS Agreement and the Copyright Three-Step Test

Thiru Balasubramaniam thiru at keionline.org
Wed Jan 29 08:19:45 PST 2020


https://www.keionline.org/32208


WTO TRIPS Council: South Africa’s submission on The WTO TRIPS Agreement and
the Copyright Three-Step Test
Posted on January 29, 2020 by Thiru

On Friday, 24 January 2020, South Africa submitted a paper to the World
Trade Organization (WTO) TRIPS Council entitled, Intellectual Property and
the Public Interest: The WTO TRIPS Agreement and the Copyright Three-Step
Test” This submission (document IP/C/W/663
<http://www.keionline.org/wp-content/uploads/W663.pdf>), will be discussed
at the next meeting of the TRIPS Council on 6 February 2020 to 7 February
2020.

The main objective of this proposal is to “address the relationship between
the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS Agreement) and copyright, as it relates
to the three-step test on limitations and exceptions to copyright, with a
view to clarifying the flexibilities to which Members are entitled, and, in
particular, in fulfilling the principles and objectives of the TRIPS
Agreement as set out in Article 7 and Article 8 of the Agreement.”

South Africa observed that WTO rules anchored in a balanced interpretation
of the copyright three-step test would not undermine WTO members’ policies
to “promote access to knowledge, culture and development, protect human
rights, and otherwise promote the public interest” (Source: IP/C/W/663).
Paragraph 2 of the submission states:

A balanced interpretation of the copyright three-step test, contained in
Article 13 of the TRIPS Agreement, and predicated upon Article 9(2) of the
Berne Convention for the Protection of Literary and Artistic Works would
ensure that WTO rules do not undermine Members’ policies to promote access
to knowledge, culture and development, protect human rights and otherwise
promote the public interest, including through appropriate limitations and
exceptions to copyright and related rights (IP/C/W/663, Paragraph 2).

The South African submission flags the policy tension that has emerged in
the applicability of the copyright three-step test in the WTO arena. In
particular, the proposal makes reference to the WTO panel ruling on the US
– Section 110(5) Copyright Act case (WT/DS160/R) case which “found that the
three-step test requests three separate, independent and cumulative tests
for copyright limitations and exceptions.” South Africa highlights that in
relation to the US – Section 110(5) Copyright Act case, there is
disagreement with this interpretation among the academic community and is
reflected in state practice. The South African proposal zeroes in on this
ambiguity by posing the question to the WTO membership: “Does the
three-step test constitute an indivisible whole to the extent that each of
the three steps are to be considered together and as a whole in a
comprehensive overall assessment?” The proposal intimates that a cumulative
interpretation of the copyright right three-step test entails that a
failure to satisfy any step would engender non-compliance with the
three-step test.

Although the relationship between the TRIPS Agreement and the three-step
test for limitations and exceptions to copyright has not been the subject
of in-depth scrutiny at the WTO, the Panel established to consider the US –
Section 110(5) Copyright Act case (WT/DS160/R) does provide some
interpretation of Article 13 of the TRIPS Agreement in relation to Articles
11bis(1)(iii) and 11(1)(ii) of the Berne Convention (1971). The panel found
that the three-step test requests three separate, independent and
cumulative tests for copyright limitations and exceptions. There is
disagreement with this interpretation among academic scholars and as is
reflected in state practice. It would be useful to address the relationship
between the TRIPS Agreement and the three-step test for limitations and
exceptions to copyright in order to further clarify the flexibilities
afforded to Members to fulfil their obligations in implementing the
objectives and principles of the TRIPS Agreement (IP/C/W/663, Paragraph 8) .

The South African proposal holds “fair use and fair dealing exceptions per
se are not in conflict” with the copyright three-step test.

The limitations that Members may provide pursuant to the provisions of the
Berne Convention that have been incorporated into the TRIPS Agreement
consist of so-called ‘free use’ (i.e. the use of a protected work is
without an obligation to request authorization or the payment of
remuneration) and ‘non-exclusive licences’ (use without authorization but
with the obligation to pay equitable compensation). Outside of specific
free uses, common law jurisdictions also recognize the notion of ‘fair use’
or ‘fair dealing’, which covers various free uses under international law.
The use of privileges at a national level are generally based on the
international copyright acquis. There are many examples of national
exceptions and limitations resting on the international three step test as
can be found in the copyright laws of parties to the Berne Convention,
including for example reproduction for research or teaching purposes;
privileges of libraries, archives or exemption of reproduction required for
administrative, parliamentary or judicial proceedings. It should be
emphasized that fair use and fair dealing exceptions per se are not in
conflict with the international three step test, including under the more
specific approach that the TRIPS Agreement takes to the three-step test
under Article 13 (IP/C/W/663, Paragraph 9).

In advance of the TRIPS Council meeting (6 February 2020 – 7 February
2020), South Africa invited WTO members to address the following questions:

1. Does the three-step test constitute an indivisible whole to the extent
that each of the three steps are to be considered together and as a whole
in a comprehensive overall assessment?

2. What approaches have Members taken to reflect limitations and exceptions
in their IP laws?


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


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