[Guest post] Interpreting Article 17 of the Berne Convention: An unexplored emergency provision in international copyright law?

The IPKat has received and is pleased to host this guest contribution by Lokesh Vyas (upcoming doctoral candidate at Sciences Po, Paris), exploring the potential of Article 17 of the Berne Convention. Here’s what Lokesh writes:

Interpreting Article 17 of the Berne Convention: An unexplored emergency provision in international copyright law?

by Lokesh Vyas

When COVID-19 happened, the discussion on whether intellectual property (IP) is a barrier to access to knowledge and health abounded. Sean Flynn, Erica Nkrumah, and Luca Schirru, however, raised an intriguing question – “whether the international treaty architecture permits more immediate administrative action to extend exceptions in an emergency.” Answering this, they claimed that Article 17 of the Berne Convention, which is popularly interpreted to authorize censorship of copyright work (e.g. see here, here, here), is a provision with such potential. 

The lure of the Lost Path

© Anne Burgess: Geograph Britain and Ireland

In this post, I extend their argument and dispute the popular understanding of Article 17 using general and supplementary rules of interpretation. These rules, which are customary international law, are set out in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT). Notably, the components of Article 31 don’t require a hierarchical reading focusing on each element. 

Article 17 states: 

The provisions of this Convention cannot in any way affect the right of the Government of each country of the Union to permit, to control, or to prohibit, by legislation or regulation, the circulation, presentation, or exhibition of any work or production in regard to which the competent authority may find it necessary to exercise that right. [emphasis added]

From a simple reading, it seems that the provision’s scope extends beyond a state’s ability to censor, which is the current dominant understanding of the provision. Instead, it acknowledges the sovereign right of countries to permit (and not just control or prohibit!) circulation/presentation/exhibition of copyright works in case of need. Here, the word “permit” can inhere both positive and negative values. That is: in case of necessity, a state can permit the act of censorship (thereby controlling the circulation/presentation/exhibition of a work) and it can also permit the circulation/presentation/exhibition of a work through a compulsory license. Strangely, the popular understanding focuses on the former meaning and invisibilizes the latter. Another aspect that categorizes it as an emergency provision is its flexibility in implementation through both legislative and regulatory means (unlike Article 9 of the Berne Convention). This adaptability allows for administrative actions to be taken swiftly when faced with a necessity to remove copyright barriers to access knowledge.

Article 31 of VCLT: General Tools of Interpretation

Article 31 prescribes the use of ordinary meaning in light of its context, object, and purpose for interpretation. For the context and its further corroboration, it requires reliance on a.) subsequent agreement, b.) subsequent practice, and c.) the relevant rules of international law.

Firstly, the ordinary meaning should focus on every word of the provision without assigning any arbitrary importance to some words while discounting the same from others. In this regard, Article 17's meaning should be understood as placing equal weight on the words “to permit” along with the words “control or prohibit”, showing the presence of both negative and positive values underlying the state’s authority under the provision.

Secondly, the proposed ordinary meaning is to be read alongside the object and purpose of the treaty i.e., the Berne Convention. While it is arguable that the Berne Convention mainly provides protection of the author’s rights, it is notable that copyright has always been regarded as non-absolute and limited to the interests of the public. This can be observed from several Articles of the Convention, notably Articles 9 and 10, which provide “Possible Exceptions to Reproduction Rights” to the public and authorize “Certain Free Uses of Works”, respectively. The legislative history of the convention further confirms all this, especially the discussion on the German Proposal of 1884 regarding the creation of reciprocal rights for the public with respect to access to scientific and educational material. 

This understanding of considering the public interest as the center of copyright, which is often described as a fair balance between the author’s rights and public interest has both contemporary and historical backing. Presently, the WIPO Copyright Treaty in its preamble describes the Berne Convention as reflecting such a balance. Historically, the official negotiations of the Berne Convention show that public interest, especially access to science and education were regarded as “universal interests” to which copyright was an exception.

Thirdly, for the purpose of context and its corroboration, the focus should be placed on subsequent agreement, subsequent practice, and relevant international law. A relevant subsequent agreement here can be any agreement that came after the advent of the Berne Convention and adhered to the Berne Convention with respect to the proposed ordinary meaning. Such an agreement can be the TRIPS agreement whose Article 73 permits member countries to take action in emergency situations regardless of their obligations. As Shirin Syed has argued, pandemics such as COVID-19 could be regarded as “emergencies in international relations” under this provision.

Censored Kat

A relevant subsequent practice for this interpretation can be any practice in the application of the treaty that has remained unopposed. This can include the provisions in copyright laws of countries that can arguably be used for public emergencies. Some examples of these countries are Indonesia (Article 84 of Law of the Republic of Indonesia No. 28 of 2014), the Dominican Republic (Article 48 of Law No. 65-00 on Aug. 21, 2000), Cuba (Article 37 of Ley n. 14 de 28 de diciembre de 1977 de Derecho de Autor), Mexico (Article 147 of Mexico’s Ley Federal del Derecho de Autor, publicada en el Diario Oficial de la Federación el 24 de diciembre de 1996), and Vietnam (art. 7(3) of Law on Intellectual Property (No. 50/2005/QH11). 

For “any relevant international law,” reliance can be placed on Article 25(1) of the U.N. Responsibility of States for Internationally Wrongful Acts, 2001 which permits states to invoke “Necessity” when it is “the only way for the State to safeguard an essential interest against a grave and imminent peril” and “does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole.” Covid-19 can arguably be counted as one such necessity.

Article 32 VCLT: Supplementary Tools of Interpretation:

To confirm the interpretation reached through Article 31, Article 32 prescribes reliance on the preparatory work of the treaty i.e., the Berne Convention. The Berne Convention has been revised multiple times after 1886, and every revision constitutes the preparatory work for this interpretation. The most relevant preparatory work for Article 17 would be the Stockholm Revision Conference, 1967. In that Revision Conference, the UK proposed the deletion of the words “to permit” in Article 17 claiming that it would suggest that States “had an inherent power to override the author's rights” unnecessarily expanding the scope of the provision. Germany also endorsed this view. South Africa, however, opposed it arguing that the provision acknowledges “the sovereign right of governments to legislate when the interests of the people demanded it, in its own territory.”

Owing to this opposition, the required unanimity never came and the provision remained intact with the words “to permit”. The upshot here is that while the Committee referred to Article 17 “mainly to censorship”, and noted that “countries … should not be permitted to introduce any … compulsory license … basis of art. 17,” it also accepted without opposition that questions of the public policy would always be a matter of national legislation. This way, it can be argued that even if the provision cannot be used to grant the compulsory license in general, countries can potentially invoke it for extreme cases of public policy like COVID-19.

Implications and conclusion

With an image of copyright as ‘property’ in current legal consciousness, provisions like Article 17 can help us keep a check on copyright's relational role and social function regarding knowledge and cultural production. With the proposed interpretation (which admittedly requires more grounding and elaboration), states are (arguably) able to grant authorization for necessary uses of copyrighted works during a pandemic. For example, a national government could potentially use its authority to declare that a copyright exception, originally intended for the uses of teaching/research materials in physical places, should also extend to digital environments during a lockdown.