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International Copyright: Marrakesh and the Future of Users’ Rights Exceptions

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Global Governance of Intellectual Property in the 21st Century

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Abstract

The 2013 adoption by the World Intellectual Property Organisation (WIPO) of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled (‘Marrakesh’) represents a transformational moment in international copyright law. Marrakesh, a treaty devoted entirely to ensuring uniform rights for a set of users of copyrighted materials, challenges previously held notions that international copyright treaties must deal exclusively with rights holders’ rights. But does Marrakesh mark a historic shift for international copyright? This chapter demonstrates that copyright has always been linked to technological change and the real challenge since the inception of the Berne Convention has not been technological change but changes to the underlying legal structures of business. The rise of corporate business globally precipitated the inclusion of moral rights in copyright and in Berne but this has not heretofore been recognised. The current pressure on business to innovate has created further global pressures on information flow and hence on copyright. What is historic about Marrakesh is its shift to a user perspective. From this perspective, extending international copyright protection to users beyond those to whom Marrakesh applies (for instance, to libraries and archives) is demonstrated to provide benefits in the public interest to all copyright stakeholders: economic rights holders, authors, and users of information.

The author would like to thank Western law student Tierney GB Deluzio for research assistance, and the reviewers of this chapter for thoughtful comments.

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Notes

  1. 1.

    Rickertson notes: “[d]espite relatively limited membership, the geographical sweep of the new [Berne] Union was considerable when account is taken of the colonial possessions of France, Germany, Italy, Belgium, Spain and the U.K.” (Rickertson 1987, pp. 79–80). The other four signatories were Haiti, Liberia, Switzerland and Tunisia. Of Rickertson’s “big six”, all but Germany signed the Paris Convention (Germany joined only in 1903) but the US had also signed by 1887. The earlier International Telegraph Convention, with more signed members (20) than either the Berne Convention or Paris Convention had, drew only from continental Europe (physical barriers to connecting telegraph wires further). The postal treaty garnered 21 members, including the “big six” and US.

  2. 2.

    It is interesting to note that the Canadian statute is, in English, the Copyright Act of Canada RSC 1985 c C42 and, in French, Loi sur le Droit d’Auteur (both authoritative).

  3. 3.

    Integrated into the World Intellectual Property Organisation through the Agreement between the United Nations and the World Intellectual Property Organisation (1974) (‘Agreement between UN and WIPO’).

  4. 4.

    Which Shae Fitzpatrick, for instance, repeatedly terms a “landmark” (Fitzpatrick 2014).

  5. 5.

    General elections must be held on the third Monday of October in the fourth calendar year following polling day for the last general election, in this case 19 October 2015. Although when it rose, the House was scheduled to return 21 September 2015, the House did not sit in September because the writ of election cannot be issued later than 36 days before polling day (Canada Elections Act 2000 sections 56.1(2), 57(1.2)(c)).

  6. 6.

    The Berne Union continues but is administered in the broader context of WIPO.

  7. 7.

    A Protocol incorporating the Agreement was signed by Kurt Waldheim, Secretary-General of the United Nations, and Arpad Bogsch, Director General of the World Intellectual Property Organisation, on 21 January 1975.

  8. 8.

    Pat Choate specifically identifies “two US corporate CEOs, John R. Opel of IBM and Edmund T. Pratt Jr. of Pfizer pharmaceuticals” as the progenitors of TRIPS (Choate 2005, 16).

  9. 9.

    In CCH Canadian v Law Society of Upper Canada [2004] 1 S.C.R. 339, [23] (‘CCH v LSUC’), Canada’s Supreme Court unanimously defines the public interest in copyright: “promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator” (see further background on this concept in Wilkinson 2004; Owen 2012).

  10. 10.

    “Doctrine” in the sense connoted by the Oxford English Dictionary definition 2(b) of “doctrine” as: “That which is taught or laid down as true concerning a particular subject or department of knowledge…; a belief, theoretical opinion; a dogma, tenet”.

  11. 11.

    Drassinower, for example, conceives of all members of society as either current or future creators (Drassinower 2003).

  12. 12.

    In his 1912 commentary on the new comprehensive Copyright Act (1911), E.J. MacGillivray does not seem to contemplate employers not focused on information industries becoming owners of copyrights in their employees’ works: he focuses on an overall “author and principal designer” of a work who employed others to accomplished parts of the work and would, under the new s 5, remain the author of the work (MacGillivray 1912, pp. 10–11). At 57, footnote (g), he cites to earlier decisions about employment, including Hildesheimer v. Dunn (1891) 64 L.T. 452, Walter v. Lane [1900] A.C. 539, Sweet v. Benning (1855) 16 C.B. 459 and James Nisbet v. The Golf Agency (1907) 23 T.L.R. 370.

  13. 13.

    This enactment was explicitly intended to align the British approach to copyright with the Berne Convention as it stood after the Berlin Revision of 1908 (see MacGillivray 1912, p. 4). By then the US had included copyright in its Constitution but was an information-importing nation and did not join the Berne Convention. Indeed, works by foreigners manufactured in the US were not protected in copyright there until 1891 and the US did not extend protection to foreign works until 1954.

  14. 14.

    Wilkinson voices the suspicion that the rigidities of the industrial mechanisms for dissemination of information (e.g. the need for presses) masked the entrance of the new corporate players (since individuals had previously occupied similar roles) and blurred the increase in the number of types of players. With the new technologies of the twenty-first century again enabling individuals, the corporate interests are themselves bringing their dominance (and separation from individual interests) into sharp relief (Wilkinson forthcoming).

  15. 15.

    Note that, in the original French, the term “moral rights” does not carry the connotation of “ethical” that “moral” does in English: it simply connotes a relationship to an individual.

  16. 16.

    Attempts to theorise moral rights protection in ways consistent with the original conception of the copyright monopolies have proven largely unsatisfactory (see Wilkinson 2006; Wilkinson and Gerolami 2009).

  17. 17.

    Since, before then, all businesses had been comprised only of individuals.

  18. 18.

    Note also article 4[2] of the first twentieth century revision to the Berne Convention, the Berlin Revision (1908), when the legal personality of the corporation was firmly entrenched in law, abolished the requirement of formalities for copyright: “The enjoyment and exercise of such rights are not subject to any formalities.” With this change, the net worth of copyright interests, if held by corporations automatically for all works created by their employees, would automatically be enhanced beyond what such interests could have been worth when registration of copyright was required. The British 1911 enactment capitalised on this possibility.

  19. 19.

    As the US did not join the Berne Convention for over a century after its inception (joining in 1989), the addition of moral rights to the Berne Convention was irrelevant to American international obligations until then.

  20. 20.

    It is this revision of the Berne Convention that immediately followed upon the Berlin Revision (which had precipitated the 1911 British omnibus copyright statute, discussed above) definitively transferring most copyrights initially arising in an employment situation to the employer.

  21. 21.

    There were 33 signatories to the Rome Revision, including all but Haiti and Liberia, of the original ten signatories to the Berne Convention.

  22. 22.

    When the text of the Berne Convention became a starting point for agreement about copyright in the context of modern international trade, in the 1990s, the US omitted insistence upon deletion of moral rights from NAFTA but did insist on the omission of article 6bis from TRIPS. Instantiation of moral rights in American law is extremely limited, see, for example Visual Artists’ Rights Act (1990) 17 U.S.C. section 106A.

  23. 23.

    One possible explanation for the American anti-moral rights attitude is that until very recently the American trade-mark regime functioned such that the societal needs that led elsewhere to moral rights protections within copyright have been met in the American content by trademark (Wilkinson and Gerolami 2009, p. 9). This may change with the US decision disallowing trademark infringement actions in what was determined essentially a copyright context (see Dastar Corporation v. Twentieth Century Fox (2003) 539 U.S. 23).

  24. 24.

    In the Copyright Act of Canada, for example, while section 13(4) makes it very clear that copyright right interests can be bought and sold, it is also clear that “moral rights” cannot be bought and sold (section 14.1(2)).

  25. 25.

    This is not to say, however, that the moral rights cannot have an economic impact in the broader context. Indeed, moral rights may have a place in international trade agreements, as may other rights, to ensure that the rights of economic rightsholders in copyright are properly balanced (creating a three-dimensional balance) by the rights of authors, and also by those of users.

  26. 26.

    On the other hand, they are recognised as part of NAFTA between the Government of Canada, the Government of Mexico and the Government of the United States.

  27. 27.

    Kenneth Crews prepared a report on the state of copyright exceptions for libraries and archives in the legislation of the countries of the world. His Study on Copyright Limitations and Exceptions for Libraries and Archives was released by WIPO as part of SCCR 17 (2008) (See also Crews’ update filed as part of SCCR 29 (2014); Crews 2008a; Crews 2008b, pp. 17–19; Crews 2014).

  28. 28.

    Under article 17, Marrakesh remained open for signature for 1 year after its adoption on 27 June 2013.

  29. 29.

    See above, n 5. Some commentators have opined that this failed result was expected by the very government that introduced the legislation (see e.g. Macek 2015; CBC News 2015).

  30. 30.

    The three steps require a country defending a provision in its own copyright legislation to show that the exception or limitation is (1) a special case, (2) a case which does not conflict with the rightsholders’ normal exploitation of the work, and (3) a case which does not unreasonably prejudice the legitimate interests of the rightsholders. If the country being challenged cannot successfully defend its copyright provision in the relevant international trade tribunals, it will need to remove the provision from its law or face trade sanctions (sanctions that may be taken with respect to economic sectors other than copyright-related industries) from other states belonging to the relevant trade agreement.

  31. 31.

    This interpretation of users’ rights as equating to limitations and exceptions stems from the language of Canada’s Chief Justice in CCH v LSUC [48].

  32. 32.

    Crossan and Apaydin (2010), p. 1160: “Since 1981, the number of publications in the fields of Business, Finance Economics, and Management … grew at an average 14 per cent per year from around 50 in 1981 to more than 1000 per year in 2008” (citations omitted). See also Government (2015a) stating: “The Government’s support is making it easier for businesses to pursue the innovation that is so vital to Canada’s economy”. See also Department of Management Studies (2012).

  33. 33.

    The role of innovation as an outcome is identified as both necessary and sufficient.

  34. 34.

    The Canadian Library Association (CLA) has also frequently sought and received status as an attending NGO.

  35. 35.

    In light of the rising involvement of international trade regimes in copyright, CLM itself acknowledges it overlooked WIPO between 1996 and 2003 (IFLA 2003).

  36. 36.

    There has been another “users’ rights”- related item on SCCR agendas which is most recently noted as “Legal Instrument for Educational, Teaching and Research Institutions and Persons with Other Disabilities [i.e. other than dealt with in Marrakesh]. This agenda item does not appear to have attracted the energy of NGOs in close to the same numbers as the items on “broadcasting” and “libraries and archives” have. Nor is there the same textual basis for discussion in the SCCR record concerning the education item as for the other two (“broadcasting” and “libraries and archives”). Finally, the reports from the sessions support the fact that the “education” item is much less talked about.

  37. 37.

    In its full document, the IFLA also addressed legal deposit, interlibrary loan and document supply, education and classroom teaching, provisions for persons with disabilities, orphan works, contracts and statutory exceptions, and limitations on liability (see IFLA 2009).

  38. 38.

    Another initiative that was progressing at SCCR 23 was the possibility of a treaty for copyright exceptions for the visually impaired—eventually Marrakesh.

  39. 39.

    This author, together with Victoria Owen and Paul Whitney, represented CLA at this meeting, acting in concert with the IFLA delegation. By 2011, IFLA, joined by other like-minded organisations, had developed a document that took the form of “treaty-language” that it hoped eventually could form the basis for consideration by the nation-state members of SCCR for inclusion in a draft treaty—which, in turn, SCCR would then recommend to its parent organisation, WIPO, for international adoption. The other organisations joining were Electronic Information for Libraries, International Council on Archives and Innovarte (see IFLA et al. 2012).

  40. 40.

    In many ways these proposals echoed principles and language also present in the TLIB document. The US presented a set of Principles for discussion—an approach more distant from that advocated by IFLA and its NGO allies.

  41. 41.

    The “Conclusions” document is a formal element of the record of an SCCR meeting, and its contents have to be agreed upon by all the state representatives (see SCCR 2013b).

  42. 42.

    The author was again privileged to attend (with the IFLA delegation) and presented the CLA intervention.

  43. 43.

    Even the Draft Report of SCCR 27 prepared by the Secretariat proved contentious at SCCR 28 and was not adopted until the end of that session (see SCCR 2014a, [294]).

  44. 44.

    That Draft Report (SCCR 2014d) itself is reported in the “Summary of the Chair” from the 30th Session as having been approved by the Committee (see SCCR 2015a, item 5) SCCR 31 itself, 7-11 December 2015, showed no improved results over SCCR 30 (see SCCR 2015b).

  45. 45.

    Limitations and exceptions for libraries and archives remains an agenda item for SCCR 32, scheduled for 9-13 May 2013 (see SCCR 2016).

  46. 46.

    Virtually every nation-state made an opening statement about the value of libraries to the nation at the start of discussions on limitations and exceptions for libraries and archives at SCCR 23.

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  1. Faculty of Law, Western University, London, ON, Canada, N6A 3K7

    Margaret Ann Wilkinson

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    Mark Perry

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Wilkinson, M.A. (2016). International Copyright: Marrakesh and the Future of Users’ Rights Exceptions. In: Perry, M. (eds) Global Governance of Intellectual Property in the 21st Century. Springer, Cham. https://doi.org/10.1007/978-3-319-31177-7_7

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