The System of Copyright Limitations Under the Marrakesh Treaty (2013) in Light of the TRIPS Standards: The Strengths and Weaknesses

Abstract

The system of copyright limitations, as sub-set of the copyright system, is so important to guarantee free exploitation of copyrighted materials by users. The prominent standards of these limitations, which widely adopted in international intellectual property multilateral treaties/conventions, are commonly known as three-step test/TST. Accordingly, copyright limitations (1) shall be confined to certain special case-specified and narrow in scope and reach, (2) shall not conflict with normal exploitation of the work, and (3) shall not unreasonably prejudice legitimate interest of the right holder. As one of the copyright limitation systems, the Marrakesh treaty (2013) adopted for exclusive benefits of the blind persons, VIPs and PWPD so as to facilitate access of the published works for these persons. Looking at the treaty from the TRIPS’ TST point of view, its strengths are, inter alia, overall declaration that orders a contracting party to comply with the obligations it has, if any, under the TRIPS article 13 (TST) as well as providing specific and clear conditions, under some of its provisions, that presumptively endorsed requirements of the TST. As far as weakness of the system is concerned, whether or not those provisions that already contain conditions presumed as requirements of the TRIPS’ TST needed to be tested twice against the TST, which is blurred concept by itself, is unclear. Furthermore, possibility of extending limitations to works that commercial available under reasonable terms as well as making all (or some) of limitations uncompensated, without articulation of clear pre-conditions may violate requirement(s) of the TST. Looking from intended goals perspective, however, strengths of the treaty outweigh its weaknesses.  Adoption of copyright limitations for the exclusive benefits of blind persons, VIPs and PWPD, who have starvation of published works/books, undoubtedly counted as a breakthrough. This is great global achievement as to providing innovative copyright limitations or at least clarifying already recognized limitations.

Key Terms: TRIPS Standard, Marrakesh Treaty, Copyright Limitations

DOI: 10.7176/JLPG/114-02

Publication date:October 31^st 2021