Centre for Internet & Society

At the close of this week’s negotiating session for an international treaty on copyright exceptions for blind and visually impaired persons, some governments, including upcoming host Morocco, expressed disappointment in the outcome of a three-day drafting session, as it left so much for the diplomatic conference. But most said they are optimistic that solutions can be found.

The article by William New was published in Intellectual Property Watch on April 22, 2013. CIS is quoted.

An informal session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) was held from 18-20 April. The diplomatic conference (top-level political negotiation) will be held in Marrakesh, Morocco from 17-28 June. The session concluded a draft treaty text with numerous areas lacking agreement (IPW, WIPO, 22 April 2013).

A delegate from Morocco said at the meeting closing that he had “mixed feelings” about the outcome of the three days and was “somewhat disappointed” by the inability to remove brackets in text, signifying areas of disagreement.

“Marrakesh will be the last chance” to agree on this treaty, he warned. “There will be no room for mistakes. In Marrakesh, we will be in front of the entire international community.” Even with pressure from creators and artists, the membership must persist with this “humanitarian gesture,” he said, adding, “We must conclude, in Marrakesh, a treaty.”

A delegate from Honduras, speaking on behalf of the Group of Latin American and Caribbean countries (GRULAC), cited concern about a “backward trend” occurring in the talks, increasing the risk of failure in Morocco.

The Egyptian delegate said the results “make us worried” for Marrakesh, as new proposals are still coming up at this late stage. “We are going with many difficulties,” he said, stressing the importance of the humanitarian side “rather than the cost and gain criterion.”

But Algeria, on behalf of the African Group, praised the treaty as “an excellent basis for Marrakesh.” Nigeria, which was active on the part of the African Group, also restated the commitment to accomplish a treaty that will be “meaningful to those who need it,” as well as to creators. “The interests are competing but not irreconcilable,” the delegate said.

The United States said the aim is to have a treaty that will lead to a solution for the blind while protecting the “world’s authors.” But there are “simply too many brackets and too many options for us to be comfortable,” he said, so everyone should be prepared to show flexibility.

Rights Holders’ Concern for Protection

Rights holders such as publishers whose works will be exported have sought to explain their concern about a treaty whose purpose would be to allow copyrighted content to circulate freely. Among their concerns is that the accessible formats may be usable by sighted readers and may make it back upstream to developed country markets. They also are viewing the approximately 280 million blind and visually impaired persons worldwide as a potential market.

The International Publishers Association said they are fully committed to a treaty that will address the problem and work on the ground, and that the only accusations of bad faith have come from NGOs, not member states. The international publishers’ community wants access for visually impaired persons, “not only on paper but in reality,” he said.

A representative of the Association of American Publishers told Intellectual Property Watch that negotiators were close to a consensus document two years ago but that industry concerns had gradually increased its complexity. He said publishers “have never opposed this treaty,” and that nothing is stopping nations from adopting limitations and exceptions at the national level. More than 50 countries already have some form of limitations and exceptions, he said, while others consider that it would “politically useful” to have a treaty saying that adoption of such limitations and exceptions is an international norm.

Publishers also understand the need for flexibility for countries to adopt such provisions in suitable ways to their national systems. But in order to agree, publishers wanted it clear that such provisions adhere to international laws, including the 3-step test, which places strict conditions on the use of the limitations and exceptions. Also, this instrument must include a mechanism for accountability, a process for dealing with an authorised entity that is not complying.

“The objectives of this treaty can be attained within the established international framework,” he said.

In creating the first-ever treaty on exceptions to copyright, representatives of a range of rights holders sought to ensure that it will not harm to their existing system. In the hallways of WIPO, they expressed concern that this treaty not set a precedent of exceptions that would erode copyright. Concern over precedent led lobbyists to come not only from the publishing industry but also the film industry.

A representative of the International Video Federation implied that even if a deal is struck on a treaty, governments won’t ratify it if they do not like what it says. The treaty “needs incentives for as many ratifications as possible,” he said, and addressing commercial availability is one way to offer an incentive.

Any instrument needs to provide as much certainty as possible, he added. Fair use and fair practices are not a familiar notion in international copyright law and should not be mentioned in this treaty, he said, adding that members are “absolutely free” to do what they want on fair use.

A Motion Picture Association representative said at closing that the industry has “unambiguous support” for the treaty, but that it rejects what it sees as “attempts to roll back” other treaties. “Attempts to hijack” the treaty talks “cannot be tolerated,” he said.

A Knowledge Ecology International (KEI) representative responded that this was “hypocritical” of the MPA as it has “hijacked the political process to turn this into some kind of ACTA exercise,” referring to the controversial Anti-Counterfeiting Trade Agreement negotiated a couple of years ago.

NGO Concerns about Lost Focus

As described by the World Blind Union (WBU), which contributed to the initial treaty concept, the new treaty is expected to: “Allow specialist organisations to make accessible copies of books in all signatory countries; Make it legal to send accessible books across national borders; Still respect copyright law: it is not an attack on publishers!; Make more books available for blind people.”

But the WBU raised alarm at the close of this week’s session. Fred Schroeder, first vice president of the WBU, said in the statement, “The purpose of this treaty is to ensure access to books for blind people and help end the ‘book famine’ we face. WBU is alarmed that some of the negotiators have focused their efforts almost exclusively on crafting language around copyright protections that have nothing to do with the ability of authorized entities to produce books for the blind and visually impaired.”

“The shift away from a treaty for the blind to a treaty focussed on rights holder protections has taken up precious negotiating time which should be directed at ensuring a treaty that makes it possible for materials to be shared internationally,” he said. “For example, the negotiators have spent considerable time talking about the concept of commercial availability when, in practice, there is no reason why an authorized entity would spend its limited resources to duplicate works in formats that already exist.” A WBU representative noted in the plenary meeting earlier that the treaty is about exceptions and does not require restating details of existing treaties and rights but rather just could make reference.

An Indian delegate asked, “Is this a WIPO treaty on access to published works for [visually impaired persons], or a WIPO treaty on the protection of the 3-step test?” He said the treaty is critical for India, which has 40 percent of the world’s blind and visually impaired people. The treaty would give the important cross-border access to accessible format books and work as a stimulus for Indian publishers to publish in those formats as well.

Jonathan Band, a Washington, DC attorney speaking on behalf of the Library Copyright Alliance, told negotiators that there are now possibly 10 references to the 3-step test in the draft text, and only one indirect reference to the principle of fair use and fair dealing. But those latter principles are found in some 45 national laws, making it a widely adopted norm, he said. Overall, the treaty has become far too complicated for countries to use, and has strayed from the original idea of having a simple template and structure.

A representative of the Center for Internet and Society (CIS) in India, said: “There is nothing in these provisions that would convert infringement by sighted people under the pretence of this treaty magically into lawful acts. And, indeed, there are multifarious ways of infringing copyright without such resort to this treaty. Yet, these very same onerous requirements (such as the “commercial availability” requirement) and bureaucratic processes will unrealistically increase transaction costs for the visually impaired and render infructuous the very purpose of this treaty.

The CIS representative cast particular blame on the European Union for going against the demands of the European Parliament to address the ‘book famine’ of the blind and visually impaired, and to live up to international obligations on disabilities. “The EU, and a few countries of Group B, including the United States, have been slowly bleeding this treaty to death through over-legislation and bureaucracy.”

“Here is what it boils down to,” he continued. “[W]hen it comes to the economic rights of copyright owners, current international law insists that there be no formalities, yet when it comes to the human rights of visually impaired person to access information – a right specifically guaranteed to them under the UN Convention on the Rights of Persons with Disabilities – some delegates in this room wish to ensure as many formalities as possible.”

The representative of KEI told negotiators that for the “non-Berne” clause, they would be better off to use the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) than Berne. He said TRIPS is more balanced, recognises the first-sale doctrine (which says copyright expires after sale of the item), and has other flexibilities. KEI also said in its closing remarks that the purpose of the treaty is to help visually impaired people, and anyone outside the treaty is subject to copyright law already.

A WBU representative told negotiators that the treaty must have a practical application for solving the lack of materials for blind people, especially in developing countries. “We are here to solve a human rights problem,” he said. “Our goal is not a treaty, but rather a treaty that will solve access” to published works.

As one delegate put, members will feel pressure to do whatever it takes to conclude a treaty because whoever stands in the way of this effort for blind people “will be branded as a villain.”