A Copyright Limitations Treaty Based on the Marrakesh Model: Nightmare or Dream Come True?

Abstract

With the adoption of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled in 2013, the international copyright community has shown its willingness to take further steps in the harmonization of limitations and exceptions in the field of copyright. However, the Marrakesh Treaty is only the tip of the iceberg. Its preparation and negotiation took place against the background of a much broader debate over the introduction of so-called “ceilings” in international copyright law: binding rules that set a maximum level of permissible protection. While the Marrakesh Treaty entered into force on September 30, 2016, the bigger project of regulating the ceilings of copyright protection in an international instrument is still pending. Hence, the question arises whether the results of the small step of adopting the Marrakesh Treaty are encouraging enough to take the giant leap of discussing ceilings of copyright protection and establishing a general Copyright Limitations Treaty. To answer this question, the following analysis will first shed light on the peculiar configuration of the Marrakesh Treaty. The Treaty combines both very specific and very open rules on L&Es for blind and print-disabled persons with the abstract criteria of the “three-step test” known from Article 9(2) BC, Article 13 TRIPS and Article 10 WCT. As a result of this treaty architecture, the objective of offering maximum legal certainty in respect of use privileges for blind, visually impaired and print-disabled persons is compromised. The Marrakesh Treaty can lead to a nightmare scenario in which neither the goal of legal certainty nor the advantage of flexibility is realized. However, the Marrakesh Treaty also demonstrates how international norms could be structured to arrive at a sufficiently flexible and sustainable treaty framework for the regulation of limitations and exceptions at the national level. Certain features of the Treaty can serve as a source of inspiration for the development of a dream scenario.