A New Berne Convention?

by Daniel Gervais on Sunday, February 5th at 10:52 PM

A proposal was reportedly  floated recently by Russia to use the G20 as a platform to revamp the Berne Convention. The Convention was last revised (on substance) in 1967, and an Appendix offering developing countries a labyrinthine path to issue compulsory licenses for translation and reproduction of books was added in 1971.  The received wisdom is that the Convention would never be revised because unanimity is required to revise the substantive part of the Convention (Berne, art. 27(3)). The generally held view is that getting the current membership (165 countries as of January 2012) to agree to anything is simply impossible.

This led to the elaboration in the 1980s and 1990s of a possible protocol to Berne (not requiring amendment), which in turn became the WIPO Copyright Treaty, signed on December 20, 1996.

The backdrop for the proposed changes are the massive use of digital content of course and indirectly a recognition, as I’ve argued elsewhere, that copyright has traditionally been ill-equipped to deal with mass uses where the licensee is the end-user not a distributor or other professional. Even more so, when that end-user becomes a creator of content in his or her own right. See here for a discussion on excludability and here for a discussion of user-generated content (UGC).

The approach raises a question which I found much more interesting, namely whether the “ships passing in the night” approach currently used to advance  international IP norms is the best way forward. I mean by this that “pro-IP” lobbies push for ACTA and other TRIPS-Plus agreements and national measures designed to elevate the level of protection while ”anti-IP” lobbies push for separate agreements, for example  on print-disabled users or libraries.

I have indicated my support for exceptions for print-disabled users. However, I also indicated that I was unsure that the “pro” and “con” discourse is misguided. A true reform should include BOTH higher and/or clearer protection of copyright where needed AND new limitations to reflect changes since 1971 and inadequacies that need to be corrected. This would be normatively balanced and politically much more palatable.

Is the Russian proposal clever? Perhaps.  Rhetorically at least.  It leaves aside the “unanimity” language, which tends to signal the quasi-impossibility of moving forward, and replaces it with a search for consensus. If unanimity is near-impossible (per the received wisdom), consensus is not, as the WTO, which essentially functions on that basis, demonstrates each and every day. So, a consensus reform of Berne? Here, this would mean, however, a real negotiation instead of the development of competing norm sets. Lobbies in this field have not won medals for the ability to compromise and negotiate.

I am not holding my breath, but definitely worth following.

 

 

 
 
 

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