Intellectual Property

Article 10 of the Berne Convention and the Three Step Test (Part 5)

In my last post, I examined the interface between Article 10(1) of the Berne Convention and the Three Step Test. In this post, the last in this series, I will examine the interface between Article 10(2) of the Berne Convention and the Three Step Test. In this regard, I will be drawing on a forthcoming paper that I recently wrote for the Indian Journal of Law and Technology.

Article 10(2) of the Berne Convention allows countries to permit the use of literary and artistic works for teaching purposes. However, such use must be justified by the extent of the purpose and compatible with fair practice. Article 10(2) provides a basis for countries to introduce exceptions into their copyright laws to permit the copying of books for educational purposes. A critical question is whether such exceptions need to comply with the three step test contained in Article 13 of the TRIPS Agreement. In this regard, there are three views.

One view is that Article 13 of the TRIPS Agreement applies to all limitations and exceptions including those contained in the Berne Convention. This view seems to be supported by the opinion of the WTO dispute settlement panel in US – Section 110(5) of the US Copyright Act case where the panel stated that Article 13 of the TRIPS Agreement is not confined to the exclusive rights newly introduced via the TRIPS Agreement.

A second view is that Article 10(2) of the Berne Convention is already compatible with the three step test. In a document published in 1996, WIPO took the view that, “None of the limitations and exceptions permitted by the Berne Convention should, if correctly applied, conflict with the normal exploitation of the work and none of them should, if correctly applied, prejudice unreasonably the legitimate interests of the right holder. Thus, generally and normally, there is no conflict between the Berne Convention and the TRIPS Agreement as far as exceptions and limitations to the exclusive rights are concerned.”

A third view is that Article 13 of the TRIPS Agreement does not apply to Article 10(2) of the Berne Convention. This view is supported by scholars such as Lawrence Liang who, relying on the lex specialis principle, contends that, as Article 10(2) of the Berne Convention is a specific provision, it should not be subject to the general provision in Article 13 of the TRIPS Agreement.

Personally, I doubt if the drafters of the TRIPS Agreement intended to subject all limitations and exceptions to copyright to the three step test contained in Article 13 of the TRIPS Agreement. Otherwise, is Article 6 of the TRIPS Agreement also subject to Article 13 of the TRIPS Agreement? I think a reasonable argument can therefore be made that Article 10(2) of the Berne Convention is not subject to Article 13 of the TRIPS Agreement.

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