Comments on Michael Geist's presentation made at the APEC Workshop on Santiago de Chile in 2012.

The Introduction to the Commentary points out that the limitations and exceptions foreseen in the Treaty – as also proved by the WIPO-Unesco Model Provisions adopted in 1982 (under the chairmanship of the author of the Commentary ) – may also be applied (and, in many countries, are applied) on the basis of the existing copyright treaties in accordance with the three-step test. The Treaty is historical, but not because it would be the first treaty to make the application of such limitations and exceptions possible. It is historical from the viewpoint of persons with visually impairment since it expresses full solidarity of the international community by offering an adequate legal and organizational framework for international cooperation to ensure more efficient availability of accessible format copies. It is also historical in a broader sense since it – together with the Beijing Treaty on Audiovisual Performances (BTAP) adopted a year earlier – seems to have put an end to a quite troubled period (more or less the last decade) in the international copyright relations by contributing to a well-balanced international regulation of copyright and, at the same time, rejecting a badly informed campaign against certain indispensable elements of the existing copyright norms (in particular the three-step test and TPM protection). The Introduction also discusses the reasons for which the Marrakesh Treaty has rightly be characterized as exceptional and unique and for which it cannot be regarded as a model for any treaties on other limitations and exceptions (not needed because those limitations and exceptions may be duly applied on the basis of the existing international norms). Namely, that it is a special-format treaty, a treaty on special-format copies for the visually impaired. The Commentary contains detailed paragraph-by-paragraph comments and an Annex added to it offering a thorough analysis of the key issues of the three-step test (of which a summary is included in the comment to Article 11 of the Treaty on the test).

The paper has been presented as a keynote speech at the ALAI Congress organized in Kyoto, Japan, from October 16 to 18. It analyses how the rights provided in the WIPO "Internet Treaties" - in particular, the rights of reproduction, distribution and makig available to the public - are applicable in the "cloud" environement. It also reviews the relevant case law (rulings of both national courts and of the CJEU) concerning both those services which began functioning already before the "conceptualization" of the "Cloud" (such as "virtual video recorders," social networks, UGC platforms, etc.) and the "cloud-native" services (such as "cyberlockers" and cloud-based distribution systems) along with case law concerning hosting services (since cloud services, in general, are qualified as such). The paper also discusses the application of exceptions and limitation and the question of exhaustion of rights in the "Cloud," as well as the role of DRM systems in support of legal cloud-based services.

Certain documents published by the European Commission have referred to the possibility of preparing a "European Copyright Code" and establishing a "unitary copyright title." The paper (a partly modified and updated version of the paper presented at the 2012 Forham IP Conference) discusses the reasons for which the idea of such a "Code" does not seem to be timely (in particular, not in the form presented by the Wittem Group) and for which the creation of a separate "European title" is both unncessary and unjustified. The paper contains detailed comments on the so-called "European Copyright Code" published by the Wittem Group pointing out that (i) it would result in a decrease of the level of copyright protection which would not be the interest of the EU and its Member States; (ii) some of the draft provisions suggested in it are not in accordance the existing acquis and certain international norms; and (iii) some of them would not necessarily lead to harmonization but rather to disharmonization.

The three-step test has proved to be a well-functioning means for balancing of interests in the field of copyright and related rights by offering sufficient flexibility and, at the same time, determining the limits thereof to be respected in order to guarantee sustainable creation and production of works and objects of related rights needed by the society. In recognition of this, the international community has found it advisable to extend its application from the exceptions to or limitations of the right of reproduction as provided in the Berne Convention to any exceptions to or limitations of any economic rights under the TRIPS Agreement, the WCT and the WPPT and quite recently also under the BTAP. In spite of this, certain theories are presented time and again aimed at limiting the scope of application of the test in an unjustified manner. One of such theories is that the specific exceptions and limitations permitted in the Berne Convention are not subject to the three-step test under Article 13 of the TRIPS Agreement and Article 10 of the WCT. The paper presents the reasons for which this assertion is wrong. This is a timely issue since such unfounded allegations have also been made in connection with the proposed WIPO instrument (now it seems to take the form of a treaty) to promote trans-border availability of accessible-format copies for the visually impaired. Due to the important cause of the visually impaired, it is indispensable to make it sure that the specific rules on the reproduction, distribution and making available of accessible-format copies are in accordance with the existing international treaties and in particular that the exceptions or limitations facilitating the availability of such copies are subject to the three-step test as required by the above-mentioned TRIPS and WCT provisions. After all, it is also an evident interest of the visually impaired that the rules to be adopted do not conflict with the normal exploitation of the works concerned – as required by the test – since such conflict would endanger availability thereof. It also would hardly be a reasonable objective to apply exceptions or limitations that, also contrary to the test, would not only reasonably but unreasonably prejudice the legitimate interest of the rightholders.