Thursday, July 20, 2006

What is wrong with Article 14?

by Manon Ress
What is wrong with proposed broadcasting/cablecasting/webcasting treaty Article 14 Limitations and Exceptions?

According to Professor Okediji, in most international instruments, limitations and exceptions are addressed first in a preamble form where the balance between private and public rights are stated (WPPT, TRIPS). Then, one finds a general clause (TRIPS Art 13 & 30, WPPT Art 16(2) and WCT Art 10 (1)), then some specific limitations and exceptions for particular use (Rome Art 15 (1), Berne Art 10bus)...and a clause that addresses compulsory licenses (TRIPS art 31, Rome 15 (2). Finally, you may have a permissive clause that allow a state to define circumstances for certain uses (Rome Art 13 (d)).

The provision on limitations and exceptions in the draft treaty as it stands is, as noted by many observers including UNESCO's paper by Dr. Akester very narrow. It mostly establishes a conventional general clause that corresponds to the three step test. That's it. Talk about limited limitations!

Would US laws like 17 U.S.C. 114 (b) Scope of exclusive rights in sound recording or 118 noncommercial educational broadcasting compulsory license have to change? And what about 119 Limitations on exclusive rights: Secondary transmissions of superstations and network stations for private home viewing?

How will the elimination of the "grandfathering clause" (Alternative T of L&E until last draft) affect how contracting parties have had some limitations and exceptions concerning retransmissions?

What US laws will have to change and how?

Does anyone know?


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