Edited by Irene Calboli and Edward Lee
Chapter 24: The Marrakesh Treaty and the targeted uses of copyright exhaustion
The Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled, concluded by the WIPO Diplomatic Conference in Marrakesh in 2013 (the “Treaty”), states in Article 5(5) that “[n]othing in this Treaty shall be used to address the issue of exhaustion of rights.”1 This chapter analyzes whether, notwithstanding Article 5(5), the exhaustion principle could play a role in the implementation of the Treaty or whether, even if not directly playing a role in the implementation, the principle could assist in creating a regime that would be consistent with the Treaty’s goals. The chapter does not claim that the exhaustion principle is necessarily the most suitable tool for implementing the Treaty;2 the purpose of the chapter is to offer an analysis to those policy-makers and legislators who are considering the application of the exhaustion principle in the context of the Treaty. The relevance of the exhaustion principle for the implementation of the Marrakesh Treaty is not readily apparent from the text of the Treaty, which treats the exhaustion principle in the same manner as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).3 However, according to the recollections of the Treaty negotiators, the reasons for treating the principle in the Treaty in the same manner as in the TRIPS Agreement were not identical. The reason for the limited “agree to disagree” treatment of the exhaustion principle in the TRIPS Agreement was that the negotiators could not agree on which type of exhaustion principle should govern—the principle of national exhaustion or of international exhaustion—and for which rights.4 Even at the time the Marrakesh Treaty was negotiated, countries were no closer to an agreement on a particular type of exhaustion principle, and it therefore made sense to leave the principle out of the Treaty. While the Marrakesh Treaty negotiators realized that opening the exhaustion principle debate would be fruitless, the Treaty negotiators, or at least some of them, also doubted that the exhaustion principle had any place in the Treaty because the principle did not seem to relate to the Treaty’s content and subsequent implementation.5
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