The provisions on "fair practices, fair dealings and free uses" in the draft Treaty on promoting availability of accessible-format copies for the visually impaired
Those who try to promote such a provision wrongly imply that the fair use system is not in accordance with (the correct interpretation of) the three-step test and suggest that the international norms be adapted to allow fair use also where it is allegedly in conflict with the (correct interpretation of the) test. There is no well-founded reason to allege that a well-established fair use or fair dealing/fair practice system would not be in accordance with the three-step test. The introduction of fair use (or fair dealing) in a country without relevant legal tradition and well-established case law may create conflicts with the three-step test. Such a provision would create a triple danger: (i) This kind of provision – according to which fair dealing/fair practice and fair use systems may be used to implement the exceptions foreseen in the would-be instrument/treaty – has never been necessary for the applicability of these systems where they are based on appropriate tradition and duly developed case law; at the same time, it would create a potential danger since it might suggest that now such systems may and should be introduced also in countries without such tradition and case law and, as a result, it could lead to conflicts with the international norms, in particular those on the three-step test. (ii)This potential danger would be aggravated and made more probable by the fact that those who insist on the inclusion of such a provision do so on the basis of the badly founded theory that a fair use or fair dealing/fair practice system would offer “more flexibility” and would make more and broader exceptions possible than what is allowed under the three-step test. (iii) Such a provision with the danger of undermining the adequate balance of interests guaranteed by the three-step test might have an impact on the application of other exceptions too; first, it might be presented as a standard for any new norm-setting activity in WIPO; and, second, it might be claimed that the “new interpretation” reflected in the proposed provision could and should serve also for the interpretation and application of any other exceptions allowed by the existing international norms.