Intellectual Property

Article 10 of the Berne Convention and the Three Step Test (Part 3)

In my last post, I examined the interface between Articles 9(2) and 10 of the Berne Convention. In that post, I concluded with the view that Article 10 is distinct from and not subject to the requirements of Article 9(2) of the Berne Convention. I also raised a question about the impact of Article 13 of the TRIPS Agreement on Article 10 of the Berne Convention. I intend to address this question in this and subsequent posts.

Both Article 9(2) of the Berne Convention and Article 13 of the TRIPS Agreement contain the three step test. There are however differences in the scope of the test in both provisions. I will reproduce the text of both Articles to highlight the differences.

Article 9(2) of the Berne Convention provides that:

“It shall be a matter for legislation in the countries of the Union to permit the reproduction of such 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.”

While Article 13 of the TRIPS Agreement provides that:

“Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.”

There are some notable similarities and differences in these two provisions. Both provisions contain essentially the same three steps. However, while Article 9(2) of the Berne Convention only applies to literary and artistic works (as Article 9(1) indicates), Article 13 of the TRIPS Agreement is not limited in its scope to literary and artistic works. In addition, while Article 9(2) of the Berne Convention only applies to the right of reproduction, Article 13 of the TRIPS Agreement applies to all types of exclusive rights including the right of reproduction. Furthermore, while Article 9(2) of the Berne Convention refers to the legitimate interests of the author, Article 13 of the TRIPS Agreement refers to the legitimate interests  of the right holder. A cursory reading of Article 13 of the TRIPS Agreement appears to suggest that all limitations and exceptions to all exclusive rights now need to meet the requirements of the three step test.

What does this mean for Article 10 of the Berne Convention? Is it now mandatory for any country that intends to implement an exception pursuant to either Articles 10(1) or 10(2) of the Berne Convention to comply with Article 13 of the TRIPS Agreement? I will be addressing this question in the coming weeks. In my next post, I will focus on the interface between Article 10(1) of the Berne Convention and Article 13 of the TRIPS Agreement.

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