DATE: August 30, 1996
prepared by the Chairman of the Committees of Experts
on a Possible Protocol to the Berne Convention
and on a Possible Instrument for the Protection of the Rights of Performers and Producers of Phonograms
12.01 Provisions on limitations of and exceptions to the rights of authors in literary and artistic works are laid down in Article 12.
12.02 Paragraph (1) permits Contracting Parties to provide for limitations of or exceptions to the rights granted to authors in this Treaty, subject to conditions that are identical to those of Article 9(2) of the Berne Convention. The provision includes a three-step test. Any limitations or exceptions must be confined to certain special cases. No limitations or exceptions may ever conflict with normal exploitation of the protected subject matter. Finally, any limitations or exceptions may never unreasonably prejudice the legitimate interests of the author.
12.03 Paragraph (2) introduces an obligation for Contracting Parties to apply these same conditions to any limitations that they would make to the rights provided for in the Berne Convention. This provision limits the permissible scope of limitations under the Berne Convention. By virtue of Article 9(2) of the Berne Convention, these conditions already apply to the right of reproduction.
12.04 The conditions of Article 9(2) of the Berne Convention concerning the right of reproduction have been incorporated in Article 13 of the TRIPS Agreement as general principles governing limitations of and exceptions to rights.
12.05 Interpretation of the provisions of Article 12 should follow the established interpretation of Article 9(2) of the Berne Convention. In the Report on the Work of the Main Committee I of the Stockholm Conference (1967), the following explanation was given (page 1145, paragraph 85): "If it is considered that reproduction conflicts with the normal exploitation of the work, reproduction is not permitted at all. If it is considered that reproduction does not conflict with the normal exploitation of the work, the next step would be to consider whether it does not unreasonably prejudice the legitimate interests of the author. Only if such is not the case would it be possible in certain special cases to introduce a compulsory license, or to provide for use without payment. A practical example might be photocopying for various purposes. If it consists of producing a very large number of copies, it may not be permitted, as it conflicts with a normal exploitation of the work. If it implies a rather large number of copies for use in industrial undertakings, it may not unreasonably prejudice the legitimate interests of the author, provided that, according to national legislation, an equitable remuneration is paid. If a small number of copies is made, photocopying may be permitted without payment, particularly for individual or scientific use."
12.06 In the context of the provisions on limitations and exceptions in the proposed Treaty, there is reason to make a reference to the so-called "minor reservations". In Brussels (1948) and in Stockholm (1967) this issue was touched upon. The Report on the Work of the Main Committee I of the Stockholm Conference states the following (page 1166, paragraph 209): "In the General Report of the Brussels Conference, the Rapporteur was instructed to refer explicitly, in connection with Article 11, to the possibility of what it had been agreed to call 'the minor reservations' of national legislation. Some delegates had referred to the exceptions permitted in respect of religious ceremonies, performances by military bands and the requirements ofeducation and popularization. The exceptions also apply to Articles 11bis, 11ter, 13 and 14. The Rapporteur ended by saying that these allusions were given lightly without invalidating the principle of the right (cf. Documents de la Conférence de Bruxelles, page 100)."
12.07 The proposed provisions of Article 12 are applicable to any limitations. No limitations, not even limitations that belong to the category of minor reservations, may exceed the limits set by the three-step test.
12.08 It bears mention that this Article is not intended to prevent Contracting Parties from applying limitations and exceptions traditionally considered acceptable under the Berne Convention. It is, however, clear that not all limitations currently included in the various national legislations would correspond to the conditions now being proposed. In the digital environment, formally "minor reservations" may in reality undermine important aspects of protection. Even minor reservations must be considered using sense and reason. The purpose of the protection must be kept in mind.
12.09 When a high level of protection is proposed, there is reason to balance such protection against other important values in society. Among these values are the interests of education, scientific research, the need of the general public for information to be available in libraries and the interests of persons with a handicap that prevents them from using ordinary sources of information.
12.10 No proposals on limitations were submitted by Governments for the February 1996 session of the Committees of Experts.
[End of Notes on Article 12]
Limitations and Exceptions
(1) Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty only in certain special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.
(2) Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for therein to certain special cases which do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.
[End of Article 12]