In Berne Convention, Copyright, Copyright Act, Orphan Works, TRIPS

Legal scholars Jane Ginsburg and Paul Goldstein have warned that Orphan Works legislation risks “inconsistency” with the three-step test of TRIPS art. 13 and Article 5(2) of the International Berne Copyright Convention. They’ve permitted us to quote from their Reply Comment to the Copyright Office:

“[T]he diversity of [orphan works] responses highlights the fundamental importance of precisely defining the category of “orphan” works. The broader the category, or the lower the bar to making the requisite showing of due diligence, the greater the risk of inconsistency with our international obligations to uphold authors’ exclusive rights under copyright. Compliance with Berne/TRIPs is required by more than punctilio; these rules embody an international consensus of national norms that in turn rest on long experience with balancing the rights of authors and their various beneficiaries, and the public. Thus, in urging compliance with these technical-appearing rules, we are also urging compliance with longstanding practices that have passed the test of time.”1., p. 1, OWR0107-Ginsburg-Goldstein (emphasis added)

Yesterday we quoted this from the International Federation of Reproduction Rights Organizations (IFRRO):

“Digitisation is an act of reproduction subject to the authorisation of the copyright holder… exceptions have been introduced in favour (sic) of libraries and archives that allow these institutions to reproduce works without prior consent of the rightsholders, mainly for preservation purposes. These exceptions do not cover and should not be extended to cover reproductions on a mass scale, which would clearly conflict with the normal exploitation of works and prejudice the legitimate interests of the copyrightholders, and would thus not pass the three step test of the Berne Convention and Article 5.5 of the Directive200/l29 (p.2, emphasis added).”

Are we missing something, or is the US preparing to “go it alone”?

— From The Illustrators’ Partnership of America

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