International Comity ... Or Triple Error?

Professor Blomqvist

has simply received the next commentary yesteryear Professor Jørgen Blomqvist (University of Copenhagen) on a draft slice of European Union legislation that requires no introduction – the proposed Directive on copyright inwards the Digital Single Market – and, to a greater extent than specifically, its provisions on out-of-commerce works.

Here’s the thoughtful analysis yesteryear Professor Blomqvist:

“The proposed European Directive on copyright inwards the Digital Single Market provides inwards its Article 7(5) that the provisions on usage of out-of-commerce industrial plant yesteryear cultural heritage institutions “shall non apply to the industrial plant or other subject-matter of 3rd seat down nationals except where points (a) too (b) of paragraph iv apply”. The ii said items laid upwards points of attachment to position the representative collective administration organisation from which licenses should survive sought for the use, referred to inwards paragraph (1), ie the digitization, distribution, communication to the populace or making available of out-of-commerce industrial plant or other dependent plain thing permanently inwards the collection of a cultural heritage institution. Such usage is proposed to survive covered yesteryear an extended collective license (ECL) system. The points of attachment are, respectively, the seat down of get-go publication or get-go broadcast too the seat down of headquarters or habitual residence for producers.

It is rather unclear what is meant yesteryear maxim that those items ‘apply’. The declaration inwards item (26) of the Preamble, however, give argue to assume that it is supposed to hateful that the ECL volition exclusively apply inwards cases where the move or other protected dependent plain thing “belongs to” the European Union too does non taste protection nether the otherwise applicable international treaties, such equally Berne, Rome, TRIPS, WCT or WPPT.

Item (26) of the draft Directive Preamble farther clarifies that this narrowing downwards of the range of application of the ECL is motivated yesteryear “international comity”. In reality, it entails a decrease of the protection of industrial plant too other protected dependent plain thing of European Union origin. They volition survive dependent plain to a licence scheme that does non apply to industrial plant too other such dependent plain thing from 3rd countries. This raises 3 interesting questions: is it necessary; is it correctly done; too it is permitted at all?

Is it necessary?

The get-go interrogation may survive discussed at length, too I shall non decease into details. I would simply cite that inwards my thought the proposed provisions appear to survive drafted inwards a reasonably precise too narrow way. They bargain with out-of-commerce industrial plant too other protected dependent plain thing too should unremarkably non collide with whatever ongoing normal exploitation. Possible hereafter exploitation of hitherto unexploited works, etc may survive safeguarded yesteryear the rightsowners yesteryear prohibiting the usage nether the provisions inwards Article 7(1)(c). Finally, an ECL is likely the gentlest possible agency of establishing a limitation or exception to copyright too related rights: the protected dependent plain thing volition exclusively survive used without permission nether conditions, which a meaning role of other rightsowners, or their appropriately appointed representatives, have got considered acceptable. Accordingly, inwards my view, the proposed ECL it is non apparently incompatible with the three-step-test of TRIPS Article 13, WCT Article 10 too WPPT Article 16, too it is non obvious why it has been considered necessary to boundary the international range of application.

Is it correctly done?

Be that equally it may, the agency inwards which international comity has been safeguarded raises questions, too. According to Article 7(4) too (5) of the draft Directive, equally paraphrased inwards paragraph 26 of its Preamble, the ECL mechanisms “should non apply to industrial plant or other subject-matter that are get-go published or, inwards the absence of publication, get-go broadcast inwards a 3rd seat down or, inwards the instance of cinematographic or audiovisual works, to industrial plant the producer of which has his headquarters or habitual residence inwards a 3rd country. Those mechanisms should also non apply to industrial plant or other subject-matter of 3rd seat down nationals except when they are get-go published or, inwards the absence of publication, get-go broadcast inwards the territory of a Member State or, inwards the instance of cinematographic or audiovisual works, to industrial plant of which the producer’s headquarters or habitual residence is inwards a Member State.”

International rules governing which works, performances, phonograms too broadcasts are protected tend to survive complicated, too this endeavour to regulate them all inwards a articulation provision seems to add together analytical complexity, rather than simplify things.

Let us get-go yell upwards the multilateral “interface” to which these rules should fit: nether Article 5(1) of the Berne Convention, the obligations to grant national handling too minimum rights nether the convention applies “in countries of the Union other than the seat down of origin”. Congruently, nether paragraph (3) of that Article “[p]rotection inwards the seat down of source is governed yesteryear domestic law” (and thus non dependent plain to the requirements of the Convention). The concept of ‘country of origin’ is defined inwards paragraph (4). The seat down of source is the seat down of get-go publication and, if the move is simultaneously published inwards several countries, the seat down granting the shortest term of protection. For unpublished works, the seat down of source is the seat down inwards which the writer is a national, or, where the cinema producer has his headquarters or habitual residence, or, where a move of architecture is erected or around other artistic move is incorporated inwards a edifice or other structure. In accordance with Articles 1(4) too 3 of the WCT, these provisions also apply inwards relation to that Treaty too they also apply nether TRIPS according to its Articles 1(3) too 9(1).

The Rome Convention may also come upwards into play inwards this context. While the minimum rights nether that Convention are to a greater extent than express than those nether the Berne Convention, it silent grants a full general right of reproduction for producers of phonograms (Article 10) and, for performers, a right of reproduction of unauthorized fixations equally good equally reproduction for other purposes than those for which fixation was permitted or otherwise lawfully made (Article 7(1)(c)). The ECL provision deals, inter alia, with the reproduction for purposes of making recorded performances available to the public, too thus it is at to the lowest degree to around extent covered yesteryear the rights of the Convention. As regards broadcasting organizations, they are, to a greater extent than or less similar the performers, granted rights of reproduction of unauthorized fixations too of reproduction of lawful, but unauthorized, fixations for purposes different from those for which the fixation was permitted (Article 13(c)).

Furthermore, the making available of recordings too recorded performances is covered yesteryear exclusive rights for both performers too producers of phonograms which are covered yesteryear Articles 10 too fourteen of the WPPT. In addition, full general rights of reproduction are granted for both performers (Article 7) too producers of phonograms (Article 11). In price of beneficiaries of protection, WPPT refers to national of other Contracting Parties (Article 3(1)), but defines those yesteryear reference to the criteria established nether the Rome Convention (Article 3(2)). Influenza A virus subtype H5N1 similar model is used inwards Article 1(3) of the TRIPS Agreement, which grants rights of reproduction for performers too producers of phonograms inwards Article 14(1) too (2) and, albeit optionally, for broadcasters inwards Article 14(3).

The Rome Convention does non operate with a concept of ‘country of origin’ too hence does non contain points of attachment corresponding to Article 5(4) of the Berne Convention. Instead, nosotros need to await for such criteria regulating the obligation to grant the minimum rights nether the Rome Convention. In this respect, the points of attachment inwards Article 2(1) are clearly non relevant. They dot the criteria that apply when identifying which marking of protection nether national police pull that is to survive granted for unusual performances, phonograms too broadcasts inwards the cases where the Convention requires national treatment. Additional points of attachment are contained inwards Articles iv through half-dozen which, for performers, producers too broadcasting organizations, respectively, flora inwards which cases national handling is to survive granted.  Since the Convention contains no criteria establishing the same equally regards the minimum rights, it would seem that the criteria for national handling should survive applied mutatis mutandis also inwards relation to those rights. Actually, the limitation to national handling seems to survive a drafting slip, non to the lowest degree inwards thought of the General Report of the Conference (Records of the Rome Conference, page 41ff) which discusses those criteria inwards relation to the protection nether the Convention inwards full general too non exclusively inwards relation to the rules on national treatment. Otherwise, at that spot would survive no criteria for the application of the minimum rights at all, or the criteria would differ from those applicable to the national treatment, too such results would survive highly unlikely.

The rules nether Articles iv through 8 of the Rome Convention are rather complex, but looking away from details that are less relevant inwards this context nosotros may province that:

performances are protected if they took house inwards a Convention seat down or if they have got been recorded on a protected phonogram or simultaneously broadcast inwards a protected broadcast (Article 4);
phonograms are protected if the producer is a national of a Convention country; if it was get-go fixed inwards a Convention country; or if it was get-go or simultaneously published inwards such a seat down (Article 5); and
broadcasts are protected if the broadcaster’s headquarters are situated inwards a Convention country; or the broadcast was transmitted from a transmitter situated inwards a Convention seat down (Article 6).
(For farther details on the points of attachment, run across my Primer on International Copyright too Related Rights, page 31ff.)

Overall, these points of attachment nether Berne too Rome seem much to a greater extent than sophisticated too detailed that the corresponding provisions inwards Article 7(5) of the draft Directive. Paraphrasing Article 7(5), the draft Directive does non apply to industrial plant or other subject-matter of 3rd seat down nationals, unless such non-audiovisual works  or phonograms were get-go published or, if unpublished, get-go broadcast inwards a Member State, or unless such audiovisual industrial plant are produced yesteryear producers having headquarters or habitual residence inwards a Member State. Even without analyzing all modalities inwards details, nosotros tin strength out run across that if the intention is that the Directive should check the points of attachment of the international Conventions too Treaties, equally is suggested yesteryear the reference to ‘international comity’, it errs to both sides.

It is besides generous inwards that it would exempt from the ECL, for example, an unpublished phonogram featuring a performer who is a third-country national too which is produced yesteryear a third-country headquartered too domiciled producer, provided the recording took house inwards a Union country. Under Rome too the WPPT, the Union seat down would non survive obliged to grant minimum rights for such a recording.

It is besides restrictive inwards that it makes dependent plain to the ECL a recording made inwards a 3rd seat down yesteryear a Union national performer too a third-country producer, get-go published inwards a 3rd country. Likewise, it would dependent plain to the ECL an unpublished architectural work, erected inwards a seat down of the Union, too created yesteryear a non-union author. In both these cases, the recording or move enjoys protection nether the international Conventions too Treaties too they should have got been exempted equally covered yesteryear minimum rights nether international instruments.

Apart from that, the provision is also puzzling inwards that, similar the preceding parts of Article 7, it addresses the protection of industrial plant too other dependent plain matter, but it fails to address whatever safeguarding of the rights of third-country broadcasters.

Would it survive permitted at all?

Let us at i time for sake of the declaration assume that the marking of protection nether the proposed ECL would survive below the conventional minimum rights. Then the province of affairs would survive that, with termination for the nationals of Member States too for others encompassed yesteryear the points of attachment linking to those states, an international organisation had been made betwixt the Member States of the European Union regarding their protection, non exclusively inwards their abode seat down (country of origin), but also inwards other countries of the EU. This understanding would flora across the Union a minimum marking of protection below the marking of the Berne too Rome Conventions.

Such ‘special agreements’ are dealt with inwards Berne Article xx too Rome Article 22. According to those provisions, countries of the Union/Contracting States may move into into special agreements alongside themselves, but exclusively inwards so far equally such agreements grant to authors or other beneficiaries to a greater extent than extensive rights than those granted nether the Conventions, or otherwise contain no provisions reverse to the Conventions. (For to a greater extent than give-and-take of those Articles, run across Primer on International Copyright too Related Rights, page 20f.)

The proposed Article 7(5) of the draft Directive would hateful that, for example, a 3rd seat down national get-go publishing his move or phonogram inwards a Member State would endure substandard protection non exclusively inwards that especial state, but also inwards all other European Union Member States. That is clearly forbidden yesteryear Berne Article xx too Rome Article 22, because the European Union equally such is not, too nether the convention acts inwards strength cannot become, political party to those Conventions.

Here, of course, i may hash out whether the European Union inwards relation to the WCT, the WPPT too the TRIPS Agreement could survive considered a unmarried country, because the European Union is admitted equally political party to those agreements inwards its ain right, but that would non remedy the problems nether the Berne too Rome Conventions.

It seems that a similar occupation exists inwards relation to Article 1(2) of the Orphan Works Directive equally well. Obviously, it may non survive a occupation at all, if the limitations too exceptions inwards interrogation are compatible with the three-step-test, but what so is the purpose of exempting third-country industrial plant too other dependent plain matter?”