International Copyright Norms
International copyright treaties foster global norms that improve protection and access to copyrighted works. They recognize the importance of creativity and culture in society, promote investment in high-quality books and journals and make international trade in copyrighted works more predictable—all of which facilitates global distribution and wider access to copyrighted works.
Unlike free trade agreements or general trade policies, which deal with a broad range of international commerce issues from labor to environmental concerns, copyright treaties focus solely on copyright issues. Copyright-specific issues can include defining rights, explaining how to apply rights in certain contexts and establishing exceptions or limitations on the enforcement of copyright protections to promote specific objectives.
The World Intellectual Property Organization (WIPO) administers a number of intellectual property treaties and resources for patents, trademarks and copyrights. WIPO also coordinates efforts to establish new multilateral copyright treaties (agreements among multiple countries), as well as other agreements that increase the compatibility and predictability of copyright protections across the globe.
The U.S. is a member of WIPO and actively participates in its Standing Committee on Copyright and Related Rights (SCCR), which discusses and drafts proposed copyright agreements for consideration by all WIPO members. The International Publishers Association (IPA), of which AAP is a member, is allowed to observe SCCR meetings so that publishers, as key rights holders, can provide guidance on new copyright agreement proposals to the U.S. government and other WIPO stakeholders. AAP staff have also participated directly on behalf of AAP as observers in SCCR meetings, as well as in WIPO General Assemblies where proposed agreements are formally considered for adoption by WIPO member states.
Foundational Copyright Treaties
The U.S. is a member of three foundational copyright treaties: the Berne Convention, the WCT (WIPO Copyright Treaty) and the WPPT (WIPO Performances and Phonograms Treaty). Although these treaties were established decades ago, they still hold considerable influence over how copyright is handled around the world. The first two are of particular importance to the publishing industry.
Any nation that signs the “Berne Convention for the Protection of Literary and Artistic Works” (Berne Convention) multilateral treaty is required to recognize the copyright of authors and rights holders from other signatory nations in the same way that it recognizes works produced or owned by rights holders in their own country. All signatories agree to a strong baseline of copyright protection that is automatically applied without the need for creators to formally register their works. This treaty also established the global norm for creating exceptions and limitations to copyright in national laws—known as the “three-step test.” The treaty was initiated in 1886 and last updated in 1979; the U.S. joined the Berne Convention in 1988.
Three-Step Test (Article 9(2) of Berne)
“It shall be a matter for legislation in the [signatory] countries…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.”
Publishers, as owners of literary works, value the norms set by Berne. Creating an international norm for treating the authors, publishers and other copyright owners of other countries the same as they are treated in one’s local country increases confidence that fundamental copyright protections will be provided. This in turn has helped to encourage distribution of copyrighted works around the world.
The Berne three-step test has guided the creation of numerous exceptions and limitations in national laws. Other, broader, iterations of the test have been used in several WIPO copyright treaties and in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). TRIPS is an international agreement administered by the World Trade Organization (WTO), which establishes minimum standards for many forms of intellectual property law (patent, trademark, copyright) applied to nationals of WTO members.
The three-step test also guided the publishing community’s work with disabilities groups to craft the U.S. Chafee Amendment, a narrow, but extremely useful, exception to U.S. copyright protection that allows for literary works to be reproduced and distributed in accessible formats for the visually impaired.
Concluded in 1996, the “WIPO Copyright Treaty” (WCT) deals with the protection of works and the rights of their authors in the digital environment. The WCT requires compliance with Berne and adds new categories of protected works—namely, computer programs and compilations of data or other material (“databases”). The WCT also establishes updated norms for (i) the right of distribution; (ii) the rental right; and (iii) the right of communication to the public (including “making [the work] available to the public”). For more information on the making available right, which covers acts that permit the public to access works from a place and time of their choosing, see AAP’s comments to the Copyright Office on this topic.
The WCT also expanded the application of the three-step test beyond the reproduction right for literary and artistic works (addressed in Berne) to include all rights and types of copyrighted works. The U.S. ratified the WCT in 1999 and became obligated to enforce its provisions in 2002, when enough countries had ratified the treaty for it to enter into force.
Together with provisions obligating WCT signatories to protect copyright owners’ use of technological measures and rights management information, the treaty’s norms recognize the growth of digital transmission of copyrighted works and help to ensure copyright’s ability to evolve and embrace digital change.
Indeed, as publishers now embrace digital innovations from e-books to online learning platforms to digital articles, the norms set by the WCT have become critical to modern production and trade of published works. The rights of distribution and communication are particularly essential for online access to e-books and online subscription services. They are also vital for protecting the livelihoods of authors and publishers against websites and peer-to-peer networks that try to make infringing copies of published works available online.
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Recently Adopted Copyright Treaties
The World Intellectual Property Organization has recently adopted two new copyright treaties. In June 2012, WIPO members voted in favor of adopting the Beijing Treaty on Audiovisual Performances, which provides copyright rights to performers (e.g., film and television actors). A year later, WIPO members voted in favor of adopting the Marrakesh Treaty, which has particular relevance to publishers.
The “Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled” (Marrakesh Treaty) was adopted by WIPO member states in 2013. Once it enters into force, the treaty requires signatory countries to implement exceptions to copyright protection in their national laws to allow (i) the reproduction, distribution and making available of books and other published works in accessible formats; and (ii) cross-border exchange of accessible formats of copyrighted works between authorized organizations that serve the visually impaired community.
The U.S. voted in favor of adopting the treaty at WIPO in 2013, but has not yet gained Senate approval to ratify the treaty. To date, eight of the minimum 20 countries necessary for the treaty to enter into force have ratified it.
The U.S. Chafee Amendment, a copyright exception which allows reproduction and distribution of books in accessible-format copies for people with print disabilities, served as a model for the technical provisions of the Marrakesh Treaty. AAP played a key role in advising the U.S. negotiating delegation and other stakeholders about the efficacy of this framework based on the publishing industry’s application of the Chafee Amendment in the U.S.
AAP and our member publishers are also working with WIPO’s Accessible Books Consortium, a separate but essential part of the Marrakesh Treaty implementation strategy. A key consortium goal is to identify best practices and technological advances that can help publishers around the world create “inherently accessible” e-books—that is, e-books that have built-in accessibility features and therefore wouldn’t be subject to a copyright exception that allows other users to create and distribute accessible-format copies for people with print disabilities.
Publishers recognize that it will take time for inherently-accessible e-books to become broadly and readily available in mainstream markets. Publishers therefore support the ratification of the Marrakesh Treaty in the U.S. and abroad, given the important role that its exceptions to copyright play in promoting access where accessible books are not yet commercially available.
In Progress Copyright Agreements
In addition to the existing treaties, WIPO’s Standing Committee on Copyright and Related Rights (SCCR) is discussing the potential for a new treaty on broadcast rights, as well as two new international agreements on exceptions and limitations to copyright protection. Publishers are particularly concerned about these exceptions and limitations proposals.
Limitations and Exceptions for Libraries and Archives
Key issues under discussion for library and archive exceptions to copyright include mandatory exceptions for e-lending, cross-border lending, orphan works, contract clauses that limit uses of copyrighted works, circumvention of technical protection measures and translation, among others (document SCCR/29/4). Many of these issues are already addressed in national laws or would be inappropriate for mandated exceptions where the local copyright framework supports an existing market for certain uses, such as e-lending in the U.S.
The U.S. supports research and discussion about these issues through WIPO, but not a one-size-fits-all international agreement. Publishers agree with this approach and the U.S. recognition in its principles document submitted to WIPO (document SCCR 26/8) that:
“Rightsholders have a critical role in ensuring sustainable access to copyrighted works in developed and developing countries. Where rapidly changing technology requires flexible solutions, Member States should encourage collaborative and innovative solutions among all stakeholders.”
WIPO has commissioned research into the prevalence of national exceptions and limitations for libraries and archives, including a recent update of a previous study on “Copyright Limitations and Exceptions for Libraries and Archives” (document SCCR/29/3). The updated study showed that 153 of the 187 WIPO member countries have at least one library or archives exception in their current law. Many developing countries, however, are seeking more than just the creation of exceptions; these countries want to see harmonization throughout the international community. While harmonization of copyright protections can encourage distribution and global markets for copyrighted works, there is concern that harmonized exceptions would restrict the important balance and experimentation between protections and exceptions in national laws.
Limitations and Exceptions for Educational and Research Institutions and for Persons with Other Disabilities
Key issues under discussion around copyright exceptions for educational institutions and persons with disabilities other than print impairment are: the scope of the three-step test and broad exceptions for non-profit educational use of copyrighted works, first sale, translations and other transformations, student copying where materials are prohibitively expensive, distance learning, free public access (open access) to government-funded research articles after 12 months and circumvention of technological protection measures, among others (document SCCR/26/4).
As with the Libraries and Archives effort, the U.S. supports research and discussion about educational exceptions through WIPO, but not a one-size-fits-all international agreement. Publishers agree with this approach and the U.S. recognition in its principles document submitted to WIPO (document SCCR/27/8) that:
“The copyright system as a whole is an engine of scholarly research and publication. It plays a critical role in developing and disseminating works of authorship used in education, and in promoting educational, teaching and research objectives. An appropriate balance of rights and exceptions and limitations, consistent with international law, sustains the missions and activities of educational, teaching and research institutions.”
In particular, publishers appreciate the U.S. delegation’s position that an important way to improve global education, for those with or without disabilities, is to “promote access to educational and research materials by supporting the commercial market for these resources, and the use of innovative licensing models, to maximize the availability of high-quality copyrighted works.”
Still, many developing nations have put forward suggested language for a one-size-fits-all treaty that may allow for use of entire copyrighted works for undefined “educational” purposes. While publishers depend in part on exceptions, such as fair use for quotation and incorporation of copyrighted works into new works to enrich educational materials, publishers support the fundamental principle that compensation should be paid to copyright owners to incentivize future creativity. The exclusive rights afforded by copyright laws enable authors, publishers and other creators to collect appropriate compensation for their works to ensure continued availability of high-quality books, journals and learning resources.
Overbroad exceptions undermine these incentives and protections. Thus, publishers believe that any national exceptions should adhere to the three-step test, requiring that the exception, even if for non-profit educational purposes, is limited to special cases (i.e., where a real-world need for an exception is demonstrated), does not conflict with the normal exploitation of the work (i.e., does not replace books in the commercial market), and does not unreasonably prejudice the legitimate interests of the author (i.e., does not undermine incentives to create and distribute books or other creative works).
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