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 2004-2007
(45 Recommendations)
Book famine
7%
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)
Open questions (selection)
• Three-Step Test
• Pre-Existing Limitations
• Technological Measures
Three-Step Test
Ceiling?
Or Window to Open Sky?
Three-step test
‘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 family
Article 9(2) BC
Article 13 TRIPS
Article 10 WCT
Agreed Statement on 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.’
Impact on Marrakesh Treaty?
fully compliant
limitations
limitations going
beyond the threestep test
room for copyright
limitations under 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
Marrakesh Treaty
• disability in
general
• specific kind of
disability
• work in different
forms
• work in the form of
text, notation
• cross-border not
regulated
• cross-border
regulated
Implementation strategy
Keeping scope
of pre-existing
provision as is
Adding Marrakesh
features as specific
use privileges
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.
The problem
country differences
concept of
‘beneficiary
persons’
concept of
‘accessible
format copies’
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?
Stepwise approach feasible?
law of destination
country if known by
exporting entity
otherwise
Marrakesh Treaty
definitions as a
safe harbour
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…
Policy options
obligatory
key escrow
right to
hack
request to
copyright
owner
The end. Thank you!
For publications, search for
‘senftleben’ on www.ssrn.com.
contact: m.r.f.senftleben@vu.nl