Centre for Internet and Society

WIPO Standing Committee on Copyright and Related Rights (SCCR) 26th Session- Consolidated Notes (Part 1 of 3)

nehaa — 2014-03-20T04:49:55Z

From December 16 to 20, 2013, the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO) met for the 26th Session. This blog post (Part 1 of 3) summarizes Days 1 and 2 of the proceedings of the 26th SCCR, based on my notes of the session and WIPO's transcripts.

Many thanks to Varun Baliga for putting this together, and to Alexandra Bhattacharya of the Third World Network for her notes and inputs.

26th SCCR – Consolidated Notes of the Proceedings

Day 1
There are three salient issues outlined as part of the agenda – i) work towards a treaty for the protection of broadcasting organizations, ii) exceptions and limitations for libraries and archives and for iii) educational and research institutions and for persons with other disabilities. [1] The number of days to be spent deliberating on each issue was also outlined – two days each on the first two issues and one day on the last issue i.e. exceptions and limitations for educational and research institutions.

The Chair of the SCCR was elected to be Mr. Martin Moscoso, head of copyright for Peru and Chair of the Drafting Group for the Marrakeech Treaty.

Opening Statements by Regional Coordinators
Trinidad and Tobago
The representative commenced his speech by pledging the commitment of the Latin American and Caribbean group of states to work on limitations and exceptions for libraries and archives, educational and research institutions and for persons with other disabilities. It emphasized the need for coherence between the activities of this group and the Millennium Development Goals of the UN and the Development Agenda of WIPO. Effecting the vision articulated by the agenda of this SCCR will help bring about this coherence. Finally, he added that the Group wished to discuss the broadcasting treaty on the basis of the mandate offered by the 2007 General Assembly. This mandate was to pursue a “signal-based approach” to the drafting process of any new treaty.

Poland
On behalf of the Central European and Baltic states, the representative reaffirmed the group’s support for establishing standards for the protection of broadcasting organizations in the form of a binding treaty. To this end, the Group put forth its proposal for a Diplomatic Conference in 2015 to the end of negotiating and implementing such a treaty. Finally, best practices were also emphasized and, pertinently, the Group indicated that it understood that the digitalized and globalized business and information economy of the contemporary necessitated a licensing of rights that was adequately reflective of its needs.

Japan
On behalf of Group B, Japan emphasized the importance the Group placed on text based discussions to the developing treaty mechanism for the protection of broadcasting organizations. It noted that any further understanding or future negotiations must rest on a common understanding of critical foundational issues such as definitions, scope of application of the instruments and the spectrum of rights or protections to be granted. Finally, an offer to share experience for the optimum functioning of limitations and exceptions was made. It was the opinion of Group B that the extant copyright framework enabled the limitations and exceptions to play out both in the digital and analogue world.

Bangladesh
On behalf of the Pacific Group, Bangladesh underscored the importance of situating all countries’ concerns and deliberations on the bedrock of the social and economic development needs of the Pacific Group nations. It identified the responsibility of countries to ensure that the limitations and exceptions were articulated in a manner that copyrighted works were made available to individuals in need. Thus, its vision was for an inclusive and comprehensive framework that catered to the needs of all stakeholders, particularly the most vulnerable and needy. To this end, it saw new international legal instruments as the means.

Russia
The Russian representative supported the 2015 Diplomatic Conference time frame and emphasized the value of transparency throughout the course of the proceedings.

Algeria
On behalf of the African Group, the signal-based approach was affirmed as the basis for any treaty. The needs of the developing countries were also given special importance. While the exchange if best practices and experience is helpful, the Group does not see it as a substitute for tangible, binding treaty provisions.

European Union
Representative called for the provisions of the Marrakeesh Treaty to be implemented. The existing treaty framework was understood to be sufficient for the full realization of the limitations and exceptions in the various realms envisaged by the outlined agenda. It was necessary, it opined, for copyright to continue to remain a key incentive for creative processes. In light of this, no further international legal instruments were necessary. Finally, the licensing of rights was also within the scope of this body.

Protection by Broadcasting Organizations
The working document for the treaty for the protection of broadcasting organizations[2] was declared to be the basis for any future text-based deliberation.

Proposal by Japan – SCCR/26/6[3]
The Representative outlined the purpose behind the proposal at the very outset as a step forward from the common understanding regarding the privacy of the broadcasting towards establishing the contours of the scope of application. The proposal was for the introduction of Article 6bis that included two things – first, that signal transmitted over computer networks be included within the aegis of the treaty with an exception carved out for on demand transmission signal and second, flexibility for states in deciding to afford protection for transmission signals over networks by the broadcasting organizations; in other words, the idea of national treatment in the realm of transmission signals.

While welcoming the Japanese proposal, the US Representative noted that the text was still open to changes. Given limited time for deliberations on this, he culled out three points of focus that would aid a streamlined approach to the text: beneficiaries of protection, objects of protection and the scope of the rights.

The EU had two questions directed at the Japanese proposal: whether the two alternatives proposed by Japan (simultaneous and unchanged transmission) have a different or same meaning and whether the nature of the protection is an entirely optional one or at least partially mandatory? Japan later clarified that if the former alternative had webcasting as subject to the protection of the treaty and the latter used the scope of application of this treaty.

Iran highlighted the issue of conflict of treaty protections with the legitimate interests of other stakeholders and urged that this conflict situation should never arise. Further, it added that the definition of broadcasting should not be an anachronistic one and should adapt to the needs of today’s broadcasting organizations and should, in no way, hinder free access to knowledge and information by society.

Venezuela adopted a diametrically opposite stance to most other countries on the issue. It was not of the opinion that broadcasting organizations are entities worthy of rights protection. It stated that the treaty seemed to be more for the benefit of multi-national organizations rather than member states and its citizens.

Day 2
The Chair outlined the agenda of the meeting as comments on Articles 6 and 7 which is to do with the scope of the treaty and beneficiaries respectively. Further, it was also put forth that the session would attempt to resolve and break common ground on the various discussions had in the regional groups in the previous day. Finally, deliberations would be focussed on Article 5 followed by Article 9.

The Japanese delegate outlined the conclusions of his groups’ deliberations. They want both beneficiaries and broadcasting to be included within the scope of the treaty. The country is of the view that all obligations should be made optional rather than obligatory. There is also general consensus, subject to final wording and definition of on demand, for an exceptions to be culled out for on demand transmission. Belarus expressed its wish for the scope of the treaty to be extended to both broadcasting and cablecasting organizations. It states in no uncertain terms that the signal should be protected. The proposal was to use the terminology broadcasting organizations and rights holding organization. Signals transmitted over satellite must also be protected in the model envisaged by this Group. Its application to the internet was also affirmed; pertinent, since this is a sticking point between the views of the nations and that of important third party stakeholders to this deliberative process. It did mention a clear caveat that these rights should, in no way, affect the rights of the author of the work or that of the users. Responding, in some sense directly to the words of the Venezuelan delegate’s comments the previous day, the Belarusian delegate stressed that his Group does support the idea of conferring rights on broadcasting organizations.

India reminded the nations present that the 2007 mandate, on the basis of which this meeting was being conducted, was for work towards a treaty for the protection of broadcasting and cablecasting organizations using a signal-based approach. A question was raised as to whether the current discussion transcended the limits of this mandate. Chair noted this observation and asked for the views of other states’ on the matter of mandate. The response of the delegate from Trinidad and Tobago on behalf of the group of Latin American and Caribbean states was non-committal in his answer as he briefed the chair about the difference of opinion on this matter within his group.

Moving on to the scope of the application of this treaty and the beneficiaries, it was the view of the CEBS Group, as articulated by the Polish delegate, that the protection afforded by the treaty should be effective, contemporary and technology neutral, else its purpose would be defeated by its obsoleteness. It reiterated that the transmission via the internet must also be included within the scope of the treaty, because that is a major route of circumvention that could be used to undermine the raison d’etre of the treaty. It was also of the opinion that the difference of opinion on webcasting could be overcome using the opt-in system envisaged by the Japanese proposal. CEBS was also of the firm view that, notwithstanding any foundational disagreements, those on demand transmissions that are based on multiple transmissions at the same time should be included within the scope of the protection. On behalf of the African Group, Senegal concerned about questions of mandate. It said that the strict, textual or broad, liberal interpretation of the words of 2007 mandate should be a sine qua non to any further deliberations. The Chair noted this concern and said that the floor was open to this issue as well. The EU stated that simulcasting should be the basic minimum and obligatory minimum, of any protection. It stated that it was open to discussing the extension of the protections to other transmission as its saw merit in such extension. Finally, it clarified that since current discussions were on transmissions and the scope of protection they were well within the 2007 mandate – protection of broadcasting and cablecasting organizations in the traditional sense.

The Chair then turned over the floor for comments by individual countries. Senegal commenced by posing a question to Belarus on the nature of reservations that it envisaged in light of its proposal to protect transmissions, no matter what its nature. Belarus responded that the protection definitely extends to transmissions over the internet but that does not preclude a discussion on deferred retransmissions. Reservations should ideally be outlined be provided for in the treaty itself. However, they can also be in the form of national legislation but it made it clear that such a stance would be a compromise for its Group and would be considered only if nations thought it necessary.

The floor was yielded to Canada. It noted that it is encouraged by the deliberations it had witnessed so far surrounding the various proposals received. It emphasized the value of the optional approach envisioned by Japan, as it embodied the critical component of successful negotiations – the embracing and incorporation of difference of opinion. Russia underscored its support for the unified approach of Belarus. Russia also wished to implement the kind of model that was in the Audiovisual Treaty and the Marrakeech Treaty. It wanted a reservation in the treaty itself that would establish a minimum standard of protection for cablecasting organizations as per national legislation. This would balance out the views of those in favour of an optional system against those who prefer an entirely mandatory one. Mexico welcomes the Japanese proposal and seemed to be generally in favour of it. Australia outlined three distinct issues. It was in favour of protection of transmission over the internet and saw simulcasting as a minimum obligatory protection. Its support for the Japanese proposal would depend on the definition of on demand services. Finally, Australia underlined that this entire discussion should be careful in how it understood the idea of traditional broadcasters and cablecasters. Keen to introduce an air of pragmatism to talk about the 2007 mandate, Kenya pointed out that the concept of transmission has undergone a change since 2007 and since the mandate was one that was conferred by the countries present at this discussion, there was no need to be very rigid about it. It wanted a technology neutral approach. Kenya was also keen on clarity on whether this international treaty was meant to build in existing international protections or was intended to be a stand-alone replacement for any protections that may exist for certain or all countries. It welcomes the flexibility that the Japanese proposal offered. The discussion veered in the direction of mandate yet again as India noted that any change to the mandate must be done by the GA alone. Else, the reinterpretation could be in such a manner as to allow for a treaty to emerge under the rubric of this mandate with countries reserving the freedom to enter into another treaty on the same matter in the future. It spelled out that it was crucial to remain within the confines of the GA mandate through the course of these proceedings.

The US delegate opined that the proceedings were completely in conformity with the mandate of the 2007 General Assembly. It reiterated its 2007 desire to have a clear common definition of a broadcasting and cablecasting organization. Notwithstanding that, simply because of a different mode of transmission, internet and webcasting do not fall outside the ambit of protection. As far as the signal based approach is concerned, the US interpreted that to mean the signal itself and nothing to do with the content – an issue the nations are grappling with at present.

Further, the delegate suggested a refocus on the prime problem facing broadcasters i.e. signal piracy. The suggestion is to give the broadcasters control of the retransmission. This would avoid protection for the content being broadcast and would not fall into the trap of post-fixation rights. An argument was also made for retransmission over any medium in a technologically neutral system. Such retransmission would be limited to simultaneous or near simultaneous (a term that needs definition) only to the extent necessary where the delay is meet technical requirements of delivery or to account for time differences. This would also include prebroadcast signal. There are clear advantages to this approach, as noted by the delegate

Short and simple.
Avoids a proliferation of superfluous rights.
Dos not overlap with the rights in content and does not create additional, unnecessarily layers of protection and authorization.
Affirms and codifies the kind of protection that broadcasters require to fortify against signal piracy.
Greater range of rights that could also be codified at the domestic level.
Could avoid the need for any defined term whatsoever.
The potential impact on consumer or private use also covered.

Japan adopted a self-confessed cautious approach to obligatory protection for transmission across computer networks due to the absence of a unified domestic viewpoint on the matter. South Africa was also of the opinion that the protection should not go beyond broadcasters and cablecasters. Colombia, however, was of the opinion that the protection should cover both traditional and non-traditional signals due to the advance in technology in the future that the treaty must anticipate. A broad and flexible approach was therefore preferred by this delegate. India expressed a desire to introduce an alternative.

Afternoon Session

Inclusion of transmission over the internet within the scope of the treaty
Whether or not simulcasting is within the mandate of this meeting
Inclusion of transmission of original programming by webcasting in the treaty
Deferred and unchanged transmission of broadcasting programmes within transmission over the internet

These four topics have witnessed some form of input or discussion thus far.

Comments on Article 9
Article 9 relates to protection of broadcasting organization and embodies two alternatives – A and B. Alternative A provides for a short list of exclusive rights, a limited right to authorize including retransmission of signal to the public by any means. Alternative B provides for a broader list of exclusive rights, including post-fixation rights and the exclusive right of fix and right of retransmission by any means and making available to the public.

In response to the US proposal articulated earlier, India put forth an alternative.

On the table for comments at this juncture are the US Proposal, the Indian alternative and the alternatives A and B to Article 9.

The EU stated that its position would fall closer to Alternative B than A. It was important for the EU to have broad rights of retransmission of broadcasts on all platforms. Retransmissions should be both simultaneous and based on fixations. They also wanted fixed broadcasts – the right of retransmission where the recipient pf the transmission chooses the place and the time of such transmission – to be included within the treaty. With respect to performance of broadcast signals ij places accessible to the public, the EU stressed that it should be limited to places accessible to the public on payment of an entrance fee as envisioned by the Rome Convention. Protection for prebroadcast signals was also sought, thereby covering a comprehensive list of protections.

The EU wanted to know whether the near to simultaneous transmission would be included within the US proposal. It thought the US proposal was based on a single right and was narrow vis-à-vis the EU one, but it expressed a willingness to engage. On the Indian proposal, the EU wished to enquire whether computer retransmissions would be protected against, given its ease.

Ecuador stated that it wished to add “and cablecasting” to India’s proposal Article 9(1)(i) after the mention of traditional broadcasters. India indicated that this addition was agreeable.

Japan mentioned that Alternative B was preferable to it since it had flexibility built into it thereby allowing for better harmonization and incorporation in the domestic law. Further, it stated that signal piracy had three major classifications – unauthorized access or useof prebroadcast signal, programming carrying signals and fixed broadcast. Finally, it clarified that simultaneous and near simultaneous transmission are protected under the Japanese proposal.

South Africa had two quick comments – that it was interested in the US proposal and preferred Alternative B. The EU also noted with interest the Indian proposal and expressed keen interested to engage with the same.

Both Senegal and Poland affirmed their preference for Alternative B in the deliberations on Article 9.

Iran steps in and articulates the stance that India has taken in a cogent manner. It noted the concern that if the content owner does not grant the right to broadcast over a computer or internet, then piracy could result in the absence of protection for the broadcasting organization. It is important to understand that a broadcasting organization is the owner of the signal. Therefore, if the broadcasting organization is not allowed to rebroadcast or retransmit over certain networks due to the contract then this would defeat the purpose of the treaty. Critically, this point is to do with the need for affirming the right of the broadcaster to prevent his own signal from getting used elsewhere without authorization.

India then went to make two critical clarifications on definitions. Broadcast means the transmission of a set of electronically generated signals by wireless and carrying a specific programme for conception of the general public and it should not include the transmission of signals over computer networks. Broadcasting organization means the legal entity taking the interior of packaging, assembling, scheduling of the programme and converting of the signals with the authorization of the owner of the copyright and related rights for broadcast for the reception of the public. Article 5 of the Indian proposal was distributed to all members and comments were invited. The meeting was adjourned to give time to the regional coordinators.

[1]. http://www.wipo.int/edocs/mdocs/copyright/en/sccr_26/sccr_26_1_prov.pdf

[2]. http://www.wipo.int/edocs/mdocs/copyright/en/sccr_24/sccr_24_10_corr.pdf

[3]. http://www.wipo.int/edocs/mdocs/copyright/en/sccr_26/sccr_26_6.pdf

Meeting Documents for the 26th SCCR are available at this link.

Videos/Webcast of the 26th SCCR can be seen here.
CIS Statement on Limitations and Exceptions for Education, Teaching and Research Institutions and Persons with Other Disabilities here.
CIS Statement on the proposed treaty for Limitations and Exceptions for Libraries and Archives here.

For more details visit https://cis-india.org/a2k/blogs/wipo-sccr-consolidated-26-session-consolidated-notes-part-1

NGO Profile: Knowledge Ecology International

puneeth — 2014-03-11T16:10:57Z

As CIS’ observer in Geneva, I will be profiling NGOs and other prominent actors at the WIPO. In the first in a series of blogs, I profile the work of Knowledge Ecology International (KEI) at the various International Organisations in Geneva.

Knowledge Ecology International (KEI) is an NGO that searches for better outcomes, including new solutions, to the management of knowledge resources. KEI is focused on social justice, particularly for the most vulnerable populations, including low-income persons and marginalized groups.[1]

KEI has a strong presence in Geneva and their works revolves around the International Organisations that are located here. Their Geneva office is run by Thiru Balasubramaniam, who previously worked with the WHO.

International Organisations in Geneva

KEI is active in the World Intellectual Property Organization (WIPO), the World Health Organisation (WHO) and the World Trade Organization (WTO) in Geneva. At the WHO KEI is represented at the World Health Assembly and the WHO Executive Board. KEI was alsoan active participant at the Intergovernmental Committee on Public Health, Innovation and Intellectual Property (IGWG), which existed from 2006-08.

At the WTO, KEI is engaged in work around TRIPS council meetings- this includes technical assistance to Members and research and analysis of the outcomes of these meetings (the TRIPS Council unlike the WIPO is not open to Observers). KEI along with other NGO’s are also looking towards a possible Treaty on the Supply of Global Public Goods.

Work around WIPO

KEI is active at the following WIPO Committees: the General Assembly, the Standing Committee on the Law of Patents (SCP), the Standing Committee on Copyright and Related Rights (SCCR), the Committee on Development and Intellectual Property (CDIP). Their work in these areas is outlined below:

KEI has been actively involved in the Development Agenda at the WIPO from the beginning. They have actively participated in shaping discussions related to the transfer of technology and access to knowledge (A2K). Jamie Love, the Director of KEI was commissioned by the WIPO to author a paper on Alternatives to the Patent System. KEI had also mooted the idea for a Global Conference on Open Collaborative Research in 2003. The idea had widespread support from the scientific community, which saw fruition with the organization of the conference in January, 2014.

KEI was instrumental in the conception and passage of the Treaty for the Visually Impaired (TVI) at the WIPO. They are currently engaged in work surrounding the Broadcast Treaty and Limitations & Exceptions for Libraries and Archives. KEI’s stance[3] on the former is that the proponents of the Treaty have not made a strong enough case in favour of the Treaty and that it could potentially impede access to knowledge and create barriers to the enjoyment of the internet. On the latter, they believe that the Berne appendix must be revisited to recraft it to strengthen the education exception and that the Tunis Model Law on Copyright for Developing Countries (1976) should also be used as a way for developing countries to serve their education and libraries needs.

Publication

KEI’s publications and Research Notes can be accessed here. In addition, they run two Listserves on IP-Health and A2K which can be accessed here.

I would like to thank Thiru Balasubramaniam, KEI’s representative in Geneva for agreeing to do the interview which was the primary source of this blog.

[1]. See http://www.keionline.org/about

[2]. The proposal can be accessed here: http://keionline.org/sites/default/files/kei_wto_agreement_on_public_goods.pdf

[3].Interview with Thiru Balasubramaniam on file with the author.

For more details visit https://cis-india.org/a2k/blogs/ngo-profile-knowledge-ecology-international

CIS Statement on Limitations and Exceptions for Education, Teaching and Research Institutions and Persons with Other Disabilities

nehaa — 2013-12-30T06:17:50Z

Nehaa Chaudhari on behalf of the Centre for Internet and Society (CIS) made this statement at the WIPO-SCCR on December 20, 2013.

The Centre for Internet and Society believes in the universal access to knowledge/education for all, without the barriers of time, distance and costs. We believe that information and communication technologies provide us with the opportunities to achieve this universality for ALL learners, both, through formal and informal institutions and learning environments, in both, digital and non digital formats.

The adoption of limitations and exceptions for education and research is particularly significant from the perspective of developing and least developed nations, where prices of books and other learning material are high not just in absolute terms, but where consumers often have to commit higher proportions of their income to have access to these materials.

We are in agreement with some of the delegations before us, among others with Ecuador, Kenya and the African Group in our belief that the present international legal framework, does not sufficiently address the opportunities presented by these information and communication technologies. The compulsory licensing provisions in the Berne Appendix are complex, narrow, unworkable and of little value to developing nations.

We believe, therefore, Mr. Chair, that there is a need to adopt open ended exceptions for education, teaching and research compatible with the digital environment. In our opinion, Mister Chair, a narrow construction and application of the three step test to these limitations and exceptions would not be the ideal way forward especially for developing and least developed countries. We believe Mr. Chair, that these limitations and exceptions should be those that harmonize national practices; prescribe an international standard, facilitate a cross border exchange of books and other learning material.

Thank you, Mister Chair.

For more details visit https://cis-india.org/a2k/blogs/cis-statement-limitations-and-exceptions-education-training-research-institutions-persons-with-other-disabilities

WIPO Broadcast Treaty- SCCR 26 : Proposals Introduced

nehaa — 2013-12-30T15:48:59Z

India and the United States introduced proposals for discussion at the ongoing session of the SCCR.

At the ongoing session of the 26th SCCR, India and the United States have introduced proposals for discussion:

India introduced this proposal for Article 5 (Definitions)
India introduced this proposal for Article 6 (Scope of Application)
Japan introduced this proposal as Article 6 bis
India introduced this proposal for Article 7 (Beneficiaries of Protection)
India introduced this proposal for Article 9 (Protection for Broadcasting Organizations)
The United States introduced a Proposal for Discussion for Article 9 (Protection for Broadcasting Organizations). The delegation was keen to clarify that this was not a “US Proposal”; but merely a “Proposal for Discussion”

For more details visit https://cis-india.org/a2k/blogs/wipo-broadcast-treaty-sccr-proposals-introduced

CIS Comments to the Ministry of Human Resource Development on the Proposed WIPO Treaty for the Protection of Broadcasting Organizations

nehaa — 2013-12-07T07:57:50Z

As a follow up to a stakeholder meeting called by the MHRD on the WIPO Broadcast Treaty, CIS provided written comments on the Working Document for a Treaty on the Protection of Broadcasting Organizations adopted by the Standing Committee on Copyright and Related Rights (SCCR) at its twenty-fourth session, Geneva, July 16 to 25, 2012.

On the November 27, 2013, the Ministry of Human Resource Development, Government of India conducted a Stakeholders Meeting on the proposed WIPO treaty on the Protection of Broadcasting Organizations at New Delhi. Nehaa Chaudhari represented CIS and commented inter alia on the need for a Broadcast Treaty, the necessity to confine the treaty to a signals based approach, the term of protection for broadcasting organizations, and the protection of the general public interest. At this meeting, with representation from the government, academia, industry bodies and civil society, there was a general consensus on the adoption of a treaty that would most further India’s national interest, and on the treaty being limited to a signals based approach, in consonance with the 2007 mandate of the WIPO General Assembly.

In furtherance of the feedback process initiated at the aforesaid meeting, CIS presents this detailed clause-by-clause submission in response to the proposed WIPO Broadcast Treaty. This submission was prepared by Nehaa Chaudhari, on behalf of CIS.

Many thanks to Pranesh Prakash, Snehashish Ghosh and Bhairav Acharya for their inputs and discussions, and to Varun Baliga for his research.

Please click (here) for CIS’ comments. For the Working Document referred to in the Submissions, please "click here".

For more details visit https://cis-india.org/a2k/blogs/comments-to-hrd-ministry-on-wipo-treaty-for-protection-of-broadcasting-organizations

WIPO reaches agreement on treaty for blind

praskrishna — 2013-07-01T09:59:29Z

Officials at the World Intellectual Property Organisation have reached an agreement to provide wider access to books for the visually impaired in different countries, a long-pending demand of the World Blind Union and activist groups.

The article by Pankaj Mishra was published in Livemint on June 26, 2013. Sunil Abraham is quoted.

If officially approved, the treaty will help distribution of specially formatted books for the blind and visually impaired in different countries by removing copyright law hurdles. For instance, US-based Bookshare, which is an online library for people with sight disabilities, has about 200,000 books in its collection, but only about 75,000 of them can be distributed in the UK because of copyright restrictions.

According to the Intellectual Property Watch website that track international policy on the subject, the agreement was reached over the weekend in Marrakesh, Morocco, where a conference to facilitate access to published books for people with sight disabilities is being held.

“The text, which has not been presented to the conference plenary, nor adopted yet, also addresses the issue known as ‘the Berne gap’, which refers to countries which are not part of international treaties governing copyright, such as the Berne Convention for the Protection of Literary and Artistic Works, the World Trade Organization Agreement on Trade-Related Intellectual Property Rights (TRIPS), and the WIPO Copyright Treaty,” the website said in a report on 24 June.

According to the World Health Organisation (WHO), India has 63 million visually impaired people, of whom about 8 million are blind.

Experts such as Sunil Abraham of the Centre for Internet and Society said Indian negotiators played a crucial role in pushing for these amendments.

“India’s copyright law after the latest amendment has a very robust exception for the disabled. It is disability neutral and works neutral. We must applaud the Indian negotiators for exporting Indian best practice to global copyright policy. India continues to be a leader in WIPO when it comes to protecting the public interest and facilitating access to knowledge,” said Abraham.

The treaty, which promotes sharing the books in any format for the blind or visually impaired, is expected to alleviate the “book famine” experienced by many of the WHO-estimated 300 million people suffering from such disability in the world, Intellectual Property Watch said.

“The treaty however is both disability specific, i.e. the visually impaired, and works specific, mostly targeted at ending the book famine,” Abraham said.

For more details visit https://cis-india.org/news/livemint-pankaj-mishra-june-26-2013-wipo-reaches-agreement-on-treaty-for-blind

‘Miracle at Marrakesh’ to help visually impaired read

praskrishna — 2013-07-02T10:07:28Z

The treaty will make access to books for the visually impaired, blind and print disabled easier.

The article by Ramya Kannan was published in the Hindu on June 30, 2013. Pranesh Prakash is quoted.

On Friday, in the same city that established the World Trade Organisation nearly two decades ago, another significant treaty was born. In Marrakesh, Morocco, international negotiators signed a treaty that will make access to books for the visually impaired, blind and print disabled easier.

After a week of intense debate among the negotiators (facilitated by the World Intellectual Property Organisation), the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled emerged.

It will address the ‘book famine’ for the visually impaired by “requiring its contracting parties to adopt national law provisions that permit the reproduction, distribution and making available of published works in accessible formats through limitations and exceptions to the rights of copyright right holders.” Very simply, it allows the waiver of copyright restrictions in order for books to be available in formats such as formats such as Braille, large print text and audio books.

Pranesh Prakash of the Centre for Internet and Society, in his closing remarks said: “It is historic that today WIPO and its members have collectively recognised in a treaty that copyright isn't just an ‘engine of free expression’ but can pose a significant barrier to access to knowledge.”

To recognise that copyright should not frustrate access for some groups of people and thereby to free books from that ‘constraint’ is of immeasurable significance for people otherwise unable to access books in the conventional format.

The treaty also provides assurances to authors and publishers that that system will not expose their published works to misuse or distribution to anyone other than the intended beneficiaries. “There are no winners and no losers, this is a treaty for everyone,” said Moroccan Minister of Communications Mustapha Khalfi, going on to describe it as the “Miracle in Marrakesh.”

There are an estimated 285 million blind and partially-sighted people in the world, of which the largest percentage lives in India. Only 1 to 7 per cent of all books published are available in formats accessible to them. India’s key campaigner for the treaty, the late Rahul Cherian of Inclusive Planet was full of beans when he spoke to The Hindu in December last year, anticipating the possibility of a treaty half a year later.

“It is a breakthrough!” he said excitedly as he broke the news, “The Extraordinary General Assembly of the World Intellectual Property Organisation has referred the Treaty for Visually Impaired Persons to a diplomatic conference in June of 2013.”

For more details visit https://cis-india.org/news/the-hindu-ramya-kannan-june-30-2013-miracle-at-marrakesh-to-help-visually-impaired-read

CIS's Closing Statement at Marrakesh on the Treaty for the Blind

pranesh — 2013-07-03T12:01:25Z

Pranesh Prakash read out an abridged version of this statement as his closing remarks in Marrakesh, where the WIPO Treaty for the Blind (the "Marrakesh Treaty") has been successfully concluded. The Marrakesh Treaty aims to facilitate access to published works by blind persons, persons with visual impairment, and other print disabled persons, by requiring mandatory exceptions in copyright law to enable conversions of books into accessible formats, and by enabling cross-border transfer of accessible format books.

Thank you, Mr. President.

I am truly humbled to be here today representing the Centre for Internet and Society, an Indian civil society organization. If I may assume the privilege of speaking on behalf of my blind colleagues at CIS who led much of our work on this treaty, and the many blindness organizations we have been working with over the past five years who haven't the means of being here today, I would like to thank you and all the delegates here for this important achievement. And especially, I would like to thank the World Blind Union and Knowledge Ecology International who renewed focus on this issue more than 2 decades after WIPO and UNESCO first called attention to this problem and created a "Working Group on Access by the Visually and Auditory Handicapped to Material Reproducing Works Produced by Copyright".

While doing so, I would like to remember my friend Rahul Cherian — a young, physically impaired lawyer from India — who co-founded Inclusive Planet, was a fellow with the Centre for Internet and Society, and was a legal adviser to the World Blind Union. He worked hard on this treaty for many years, but very unfortunately did not live long enough to see it becoming a reality. His presence here is missed, but I would like to think that by concluding this treaty, all the distinguished delegations here managed to honour his memory and work.

I am grateful to all the distinguished delegations here for successfully concluding a reasonably workable treaty, but especially those — such as Brazil, India, Ecuador, Nigeria, Uruguay, Egypt, South Africa, Switzerland, and numerous others — who realized they were negotiating with blind people's lives, and regarded this treaty as a means of ensuring basic human rights and dignity of the visually impaired and the print disabled, instead of regarding it merely as "copyright flexibility" to be first denied and then grudgingly conceded. The current imbalance in terms of global royalty flows and in terms of the bargaining strength of richer countries within WIPO — many of who strongly opposed the access this treaty seeks to facilitate right till the very end — is for me a stark reminder of colonialism, and I see the conclusion of this treaty as a tiny victory against it.

It is historic that today WIPO and its members have collectively recognized in a treaty that copyright isn't just an "engine of free expression" but can pose a significant barrier to access to knowledge. Today we recognize that blind writers are currently curtailed more by copyright law than protected by it. Today we recognize that copyright not only may be curtailed in some circumstances, but that it must be curtailed in some circumstances, even beyond the few that have been listed in the Berne Convention. One of the original framers of the Berne Convention, Swiss jurist and president, Numa Droz, recognized this in 1884 when he emphasized that "limits to absolute protection are rightly set by the public interest". And as Debabrata Saha, India's delegate to WIPO during the adoption of the WIPO Development Agenda noted, "intellectual property rights have to be viewed not as a self contained and distinct domain, but rather as an effective policy instrument for wide ranging socio-economic and technological development. The primary objective of this instrument is to maximize public welfare."

When copyright doesn't serve public welfare, states must intervene, and the law must change to promote human rights, the freedom of expression and to receive and impart information, and to protect authors and consumers. Importantly, markets alone cannot be relied upon to achieve a just allocation of informational resources, as we have seen clearly from the book famine that the blind are experiencing. Marrakesh was the city in which, as Debabrata Saha noted, "the damage [of] TRIPS [was] wrought on developing countries". Now it has redeemed itself through this treaty.

This treaty is an important step in recognizing that exceptions and limitations are as important a part of the international copyright acquis as the granting of rights to copyright holders. This is an important step towards fulfilling the WIPO Development Agenda. This is an important step towards fulfilling the UN Convention on the Rights of Persons with Disabilities. This is an important step towards fulfilling Article 27 of the Universal Declaration of Human Rights, Article 15 of the International Covenant on Economic Social and Cultural Rights and Article 30 of the UN Convention on Persons with Disabilities, all of which affirm the right of everyone — including the differently-abled — to take part in cultural life of the community.

While this treaty is an important part of overcoming the book famine that the blind have faced, the fact remains that there is far more that needs to be done to bridge the access gap faced by persons with disabilities, including the print disabled.

We need to ensure that globally we tackle societal and economic discrimination against the print disabled, as does the important issue of their education. This treaty is a small but important cog in a much larger wheel through which we hope to achieve justice and equity. And finally, blind people can stop being forced to wear an eye-patch and being pirates to get access to the right to read.

I also thank the WIPO Secretariat, Director General Francis Gurry, Ambassador Trevor Clark, Michelle Woods, and the WIPO staff for pushing transparency and inclusiveness of civil society organizations in these deliberations, in stark contrast to the way many bilateral and plurilateral treaties such as Anti-Counterfeiting Trade Agreement, the India-EU Free Trade Agreement, and the Trans-Pacific Partnership Agreement have been, and are being, conducted. I hope we see even more transparency, and especially non-governmental participation in this area in the future.

I call upon all countries, and especially book-exporting countries like the USA, UK, France, Portugal, and Spain to ratify this treaty immediately, and would encourage various rightholders organizations, and the MPAA who have in the past campaigned against this treaty and now welcome this treaty, to show their support for it by publicly working to get all countries to ratify this treaty and letting us all know about it.

I congratulate you all for the "Miracle of Marrakesh", which shows, as my late colleague Rahul Cherian said, "when people are demanding their basic rights, no power in the world is strong enough to stop them getting what they want".

For more details visit https://cis-india.org/a2k/blogs/cis-closing-statement-marrakesh-treaty-for-the-blind

Primer on the Treaty for the Visually Impaired

pranesh — 2013-06-25T08:47:18Z

In this primer, Pranesh Prakash and Puneeth Nagaraj explain what effects a WIPO Treaty for the Visually Impaired can have and who's opposing it.

A Primer on the provisions of the TVI and ongoing negotiations

The Treaty on Limitations and Exceptions for Visually Impaired Persons/Persons with Print Disabilities (“TVI” for short) is a landmark international instrument in recognizing the crucial link between copyright limitation and greater access to visually impaired persons / persons with print disabilities (“VIPs” for short). Below is a summary of the provisions of the Treaty and the benefit it will bring to VIPs, and the kinds of speed-bumps that rich countries are trying to place to make this treaty ineffective for the blind, the majority of whom live in poor countries.

1. Exceptions in Domestic Copyright Law

Currently, in most countries, only the owner of copyright to a particular book has the right to convert it into an “accessible format” (e.g. Braille, audio book, DAISY book, etc.). This treaty aims to create an exception to this rule by allowing print disabled persons, their representatives and non-profit ‘authorized entities’ the ability to convert books for the benefit of VIPs without seeking permission. The treaty would leave it up to each country whether their law will require such conversions to be paid or not since there is no uniformity on this question among countries that have national exceptions.

Opposition: The United States, European Union, France, Australia, Canada, and the publishing lobby have asked for multiple conditions for creation of accessible formats. They wish to confine this exception to non-profits, prevent translations, and ensure that books that are “commercially available” can be excluded, and require that countries who wish to use this exception have to comply with an onerous test called the “three step test”. Internationally, rights holders have zero formalities for gaining copyright (which, by international treaty, does not even have to be registered). But the rights holders want to ensure as many bureaucratic hurdles are put to exceptions as possible.

2. Cross-border Transfer of Accessible Works

One of the main purpose main purpose of the TVI is to increase the cross-boundary exchange of copyrighted works in accessible formats. According to the World Health Organisation, 87% of the visually impaired live in underdeveloped countries. Bangladesh and Swaziland, for instance, spend very little money on converting books, while in the USA, millions of dollars are spent both by the government and by charities. If this treaty is passed the way the World Blind Union and other pro-disability NGOs are asking, a blind girl from Bangladesh would be able register with a US-based site like Bookshare.org, after proving she’s blind, and just download the book she needs in a format that is accessible to her.

Opposition: The European Union and United States want make this non-mandatory. They also wish to restrict the ability of the Bangladeshi blind girl from accessing these books by allowing trade only between non-profit ‘authorized entities’. Unfortunately, many developing world countries (like Swaziland) don’t have any authorized entities to speak of, leaving blind people there stranded. For a treaty to be effective, individuals must be granted the right to import books as well. The European Union also wishes for a ‘commercial availability’ clause, meaning that if a book is ‘commercially available’ in the receiving country, then the authorized entity can’t export. In Europe itself there are almost no countries (with the UK being an exception) that have such a requirement when it comes to domestic conversions, but the EU still wants to ensure that as a requirement for poor countries. It is very difficult for an authorized entity located in the USA to determine in each and every case whether an accessible format of the book is ‘commercially available’ in the hundreds of countries they will receive requests from. Importantly, even a book priced exorbitantly or available only for those with expensive iPads may be considered ‘commercially available’, even if it is practically out of reach of the blind in the receiving country. This clause must go if the treaty is to be meaningful.

3. Digital locks

If digital locks (often called “Digital Rights/Restrictions Management” or DRMs) are used, then technologically, the blind can be restricted from enjoying a work which they have a legal right to access. For instance, Amazon has limited — at the behest of the Authors’ Guild of America — the ability of blind people to get their Kindle e-book readers to read aloud a book, and did so using digital locks. The TVI proposes that countries be required to ensure that the blind have effective access to books, even if they have digital locks.

Opposition: The United States and the publishing lobby is the biggest opponent of this provision. They have a system under which the blind are not required to automatically be granted the right to ‘circumvent’ the digital lock to make a book accessible even if they have bought an e-book, but have to granted permission to do so every three years by the government. The most recent three-yearly review found that the blind groups did not make out a strong enough case to justify granting them an exception, but thankfully this determination was overruled by the US Librarian of Congress. Thus the TVI must ensure that publishers cannot technologically impose restrictions on a book for the blind that they can’t do legally.

4. Translation

Another hot-button issue is the right to translation. Given that the biggest exporters of books, due to their colonial legacy, are USA, UK, France, and Spain, it is imperative that the blind in developing countries have access to these books in languages that they can understand. Very unfortunately, most of these languages are not profitable-enough markets for publishers to publish accessible translated books. Given this, it is necessary for charities to be able to make translations of accessible works specifically for the blind.

Opposition: The European Union and the publishing lobby is strongly opposing this, claiming that this will result in the blind having better access than the sighted. This is a false claim. A sighted student might have access to a translated book (made without an exception), but the blind student might not. For this has no merit as it ignores the social consequences of disability. This provision will merely bring the visually impaired to the same level as the rest of the population and not give them some illusory advantage.

For more details visit https://cis-india.org/a2k/blogs/primer-on-tvi

CIS Intervention on the Treaty for the Visually Impaired at SCCR/SS/GE/2/13

pranesh — 2013-04-25T11:57:02Z

The informal session and special session of the Standing Committee on Copyright and Related Rights was organised by WIPO in Geneva from April 18 to April 20, 2013. Pranesh Prakash participated in the session and spoke about the rights of the visually impaired. An abridged version of this was read out during the meeting on Saturday, April 20, 2013, at 22:15 due to time restrictions.

Thank you, Mr. Chair. I represent the Centre for Internet and Society, a policy research organization based in India. India, as everyone who has been attending these SCCR meetings since 2008 would know, has the world's largest population of blind and visually impaired persons. Two of my colleagues at CIS — Nirmita Narasimhan and Anandhi Viswanathan — are blind, and another one of my CIS colleagues who passed away recently (and whose tireless efforts were remembered here at WIPO recently with a minute of silence) — Rahul Cherian — spent many years working extensively on policy issues related to persons with disabilities, and in particular worked here in WIPO as part of Inclusive Planet, and with the World Blind Union. Hence, this issue is not an abstract one for us, but a very real one.

I commend the delegates here for taking some steps forward during this meeting. However, very disappointingly, with those few steps forward, we have seen a few things we had taken as settled being opened up again, and many steps being taken backward. The already-onerous requirements and procedures laid down in this treaty are seen by a few countries as not being onerous enough. Blind people, it is believed, might 'wrongly' take advantage of these provisions. Worse yet, there is a fear that sighted persons might take advantage of these provisions relating to the blind.

The absurdity of these fears somehow seems to have escaped the notice of many involved in these discussions. There is nothing in these provisions that would convert infringement by sighted people — even if 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. Those delegations who are unrelenting on these issues seem to living in a bizarre world where sighted infringers deviously use exceptions granted in an international copyright treaty to engage in piracy; a bizarre world where scanners and the Internet have not been invented. And by refusing to acknowledge these ground realities, they are merely forcing the blind into wearing eye-patches and being 'pirates'.

In particular, I would like to deplore the stand taken by the European Union, being represented here by the European Commission, whose actions run contrary to the call made in May 2011 by the European Parliament to "to address the ‘book famine’ experienced by visually impaired and print-disabled people". This is despite the European Parliament having reminded "the Commission and Member States of their obligations under the UN Convention on the Rights of Persons with Disabilities to take all appropriate measures to ensure that people with disabilities enjoy access to cultural materials in accessible formats, and to ensure that laws protecting IPR do not constitute an unreasonable or discriminatory barrier to access by people with disabilities to cultural materials". 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.

The United States' and EU's stand on technological protection measures, if accepted, would mean that publishers will technologically be able to prevent the blind from enjoying accessible works, even when they can't do so legally on the basis of copyright law. The European Union's stand on all issues has been extraordinarily harmful, and seems to have an aim to make this treaty as unwieldy and unworkable as possible. They seem to regard the Berne Appendix as their model in this regard: an international agreement that exists on paper for the benefit of developing countries, but because of its bureaucratic processes is little used, and is widely regarded as a failure.

Here is what it boils down to: when 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 rights of the visually impaired are being buried under unnecessary and complicated requirements and bureaucratic practices. This injustice must stop: the delegates here have the power to do so. And if the EU does not wish to be viewed as villains by all persons with print disabilities and all persons with conscience, it should stop trying to make this an ineffectual treaty. Many have quipped that this is fast becoming "A Treaty for Rightholders Against Persons with Visual Impairments and Print Disabilities" or alternatively "A Treaty for Morally Impaired Persons and Persons with Ethical Disabilities". That is an international shame.

Having colonized much of the world into using English, French, and Spanish, these European countries along with the USA are now in a position to be both culturally dominant and to refuse to sign up to this treaty if it helps blind persons outside of the EU and the USA who seek access to texts in these languages. These remnants of colonialism must be stamped out.

For more details visit https://cis-india.org/a2k/blogs/cis-intervention-eu-blocking-wipo-treaty-for-blind

Comments to the MHRD on WIPO Broadcast Treaty (March 2013)

pranesh — 2013-04-23T06:39:36Z

The Centre for Internet and Society would like to make the following comments on the draft legal text of SCCR/24/10 (Working Document for a Treaty on the Protection of Broadcasting Organizations) at the stakeholders meeting to be held on March 21, 2013.

Article 1 – Preamble: The draft legal text of SCCR/24/10 (“Treaty”) in the Preamble should in clear terms capture the intent of the WIPO General Assembly as to the object of the Treaty. The SCCR reiterated the General Assembly’s mandate for a signal based approach treaty for the protection of broadcasting and cablecasting organizations. In this regard, the SCCR in its report to the 50th Session of the WIPO General Assembly (Oct. 1-9, 2012) noted:

“The Committee reaffirmed its commitment to continue work on a signal based approach, consistent with the 2007 General Assembly mandate, towards developing an international treaty to update the protection of broadcasting and cablecasting organizations in the traditional sense. The Committee also agreed to recommend to the WIPO General Assembly that the Committee continue its work toward a text that will enable a decision on whether to convene a diplomatic conference in 2014.” [emphasis added]

Therefore it is submitted that the Preamble should at the very outset establish that the Treaty aims at
- protection of a related right and a signal based approach is adopted to protect such a related right
- protection of the broadcasting and cablecasting organizations in the traditional sense.
Article 2 – General Principles: It is submitted that the Development Agenda under TRIPS should be declared as general principle under the Treaty where as a balance must be struck between the rights of the broadcasting organizations and the larger public interest.
Article 5 – Definitions: The Treaty in its current form proposes alternatives to the definitions. On a general observation, it is submitted that the alternatives are unsatisfactory and waivers from the WIPO General Assembly mandate to adopt a signal based approach.

In precise terms, the definition section attributes a broad definition to the “broadcast” and fails to define the means of broadcast. The alternative to 5(b) does reintroduce the phrase, “general public” instead of “public”, as anything lesser would not constitute a broadcast as it was in the Article 5 of the March, 2007 draft non-paper, but fails to adopt a signal based approach by adding the words, “and specific program”.

Similarly definition of “retransmission” under the Alternative A for Article 5 clause (d) uses the words, “transmission by any means” which is again in conflict with the signal based approach.

Apart from the instances mentions above there are many other inconsistencies in the definition section and therefore it is submitted that none of the alternatives to the definition section can be implements within the mandate of the General Assembly.
Article 6 – Scope of Application: We agree with the Alternative A of Article 6, insofar as the alternative to clause 1 is adopted.
Article 9 – Protection for Broadcasting Organizations: In reference to Alternative A for Article 9 it is submitted that the public performance of broadcast signals should not be covered. In many countries, especially lower-income countries, shared viewing of televisions and shared listening to radio are culturally established and it should not be equated with signal theft, which should be the primary focus of this Treaty. Further, free-to-air TV and radio channels and state-sponsored TV and radio channels depend on advertisements and other forms of income, not subscriber payments. Given this, there is no reason why public performance, the wrongfulness of which is very business-model dependent, should be included in this treaty.

We strongly suggest that Alternative B to Article 9 should struck down as it is in contravention of the mandate of the WIPO General Assembly to adopt a signal based approach for the development of the text of the Treaty. There cannot be any fixation or post fixation rights be given to the broadcasting organization if a signal based approach is adopted for the Treaty.
Article 10 – Limitations and Exception: The limitations and exceptions should be mandatory as well, as not balancing limitations and exceptions with the rights granted to the broadcasters would be violating the spirit of the WIPO Development Agenda.

Further, it will also in contravention of Article 3 of the Treaty in its current form. The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expression recognizes the principles of equitable access and openness and balance. It also mandates implementation of “measures aimed at enhancing diversity of the media, including through public service broadcasting.

It is also reiterated that, reasons for providing exceptions for over broadcast rights are not the same as those for copyright. For instance, a country may wish to make exceptions to signal protection for cases such as broadcast of a national sport, as India has done with the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act. This might well afoul of the three-step test proposed in Article 7(2), especially as it says “provide for the same or further limitations or exceptions...”.

Furthermore, a country may wish to limit the application of broadcasters rights for national broadcasters (whose programming is paid for by taxpayers, and thus should be available to them), but may not be able to do so under the provisions of Article 7(2). Thus, Article 10(2) should be deleted, and Article 10(1) should be expanded to include issues of national interest and for free-to-air broadcast signals.
Article 11 – Term of Protection: As submitted earlier by CIS, it is reiterated that no term of protection should be provided. As was noted by the US government in its response to the draft non-paper, it is questionable “whether a 20-year term of protection is consistent with a signal-based approach”. The Brazilian delegation also states: “Article 13 [of the previous draft treaty] should be deleted. A twenty-year term of protection is unnecessary. The agreed “signal-based” approach to the Treaty implies that the objected of protection is the signal, and therefore duration of protection must be linked with the ephemeral life of the signal itself.” Thus, a term is only needed if we stray away from a signal-based approach. As we do not wish to do so, there should be no term of protection.
Article 12 – Protection of Encryption and Rights Management Information: From our previous submission on this issue we reiterate that, No separate right to prevent unauthorized “decryption” should be granted, since signal-theft is already a crime. For instance, this provision would also cover decrypting an unauthorized retransmission without authorization from the retransmitter. This provides the unauthorized retransmitter rights, even though s/he has no right to retransmit. This leads to an absurd situation.

As stated by the Brazilian government with respect to the April 2007 non-paper:
“[Article 10 of the draft non-paper and Article 9 of the non-paper] is inconsistent with a “signal-based approach”. It creates unwarranted obstacles to technological development, to access to legitimate uses, flexibilities and exceptions and to access to the public domain. It does not focus on securing effective protection against an illicit act, but rather creates new exclusive rights so that they cover areas unrelated with the objective of the treaty, such as control by holder of industrial production of goods, the development and use of encryption technologies, and private uses. The prohibition of mere decryption of encrypted signals, without there having been unauthorized broadcasting activity, is abusive.”

If even the provision is to be retained, it should not grant the broadcasters any rights over and above that which is otherwise granted by the law, thus the following line is over-broad: “that are not authorized by the broadcasting organizations concerned or are not permitted by law.”

For more details visit https://cis-india.org/a2k/blogs/comments-on-wipo-broadcast-treaty

WIPO to Convene a Diplomatic Conference in Morocco to Finalise TVI

Rahul Cherian — 2012-12-24T06:18:58Z

In a landmark development, on December 18, 2012, the Extraordinary General Assembly of the World Intellectual Property Organisation agreed to convene a diplomatic conference, likely to be in Morocco, in June of next year to finalise the Treaty for Visually Impaired Persons/Persons with Print Disabilities.

This comes about five years after a team of about ten of us sat down in the offices of Knowledge Ecology International in Washington D.C. to draft the first cut of the Treaty.

Even as late as December 17, it was uncertain as to whether the outcome would be positive, particularly as the United States was fixated on the word "instrument" and not "treaty". At one point during the EGA it was rumored that the US and the EU were insisting on a "kill switch" in the decision document of the Extraordinary General Assembly. Essentially the US and the EU were apparently pushing for wording in the decision text stating that if the text of the Treaty was not fully agreed by the end of the upcoming WIPO Standing Committee on Copyright and Related Rights in February, then the diplomatic conference was off. Luckily none of this type of wording was reflected in the decision of the EGA. The EU was insisting on a non-binding instrument as opposed to a treaty till November this year when they finally capitulated due to the extensive pressure applied internally by blind groups such as the European Blind Union and the Royal National Institute of Blind People in the United Kingdom.

However, it is not smooth sailing from here on since there are still some very critical issues to be resolved in the text of the Treaty. Possibly the most critical issue from the perspective of blind groups is the outstanding issue of commercial availability. The European Union and the United States insist that the Treaty should apply only when works in accessible formats such as Braille or Daisy are not commercially available. The contentious provision in the Treaty in relation to export of accessible format copies is the following: "The Member State/Contracting Party may limit said distribution or making available of published works which, in the applicable accessible format, cannot be otherwise obtained within a reasonable time and at a reasonable price, in the country of importation." There is also a similar clause with respect to national exceptions as well.

The problem that we have with this clause is that it places the burden on exporting organizations to determine, prior to export, whether a work is available in an accessible format in the importing country within a "reasonable time" and "reasonable price". In reality, this will be impossible for organizations to verify this position with any degree of certainty without spending substantial amounts of money or dedicating significant resources for this. As a result the organizations will not export accessible format copies because they are nervous about copyright violation thereby meaning that the treaty will not be used in reality. Obviously from our perspective there is no point in having a treaty which cannot be used to benefit the millions of persons with visual impairment.

Another outstanding issue that is crucial to us is that a beneficiary (such as a visually impaired person) in one country should be able to import accessible format copies directly from organizations abroad. The European Union does not want to permit this and insists that export and import should only be between organizations. The position of the European Union will be counterproductive because it will add too much burden on organizations in developing countries to serve their disabled populations.

We get the opportunity to fix these issues during the next session of the Standing Committee meeting in February 2013. If required there could another session called to sort out text related issues before the diplomatic conference in June.

Ultimately, the success or failure of the Treaty will boil down to whether the US and the EU actually end up ratifying the Treaty. After all, they have the largest collections of material in accessible formats which we need to import into India. The Hathi Trust in the United States has approximately 10 million books in accessible formats which will be invaluable for the visually impaired community in India. Given the recent rejection of the United States of the United Nations Convention on the Rights of Persons with Disabilities it remains to be seen what the future holds.

Rahul Cherian is the legal advisor to the World Blind Union on the Treaty and is the founder of the Inclusive Planet Centre for Disability Law and Policy

For more details visit https://cis-india.org/accessibility/blog/wipo-to-convene-conference-to-finalise-tvi-next-year

WIPO To Negotiate Treaty For The Blind In June; ‘Still Some Distance To Travel’

praskrishna — 2012-12-21T11:50:04Z

In a swift 15 minute session this morning delegates at the World Intellectual Property Organization extraordinary assembly agreed to convene a high-level meeting in Morocco in June to finalise a treaty on international exceptions to copyrights on books in special formats for visually impaired people.

This article by Catherine Saez was published in Intellectual Property Watch on December 18, 2012. Rahul Cherian is quoted.

After long informal discussions yesterday with the assembly chair, Ambassador Uglješa Zvekić of Serbia, the decision document [pdf] was issued this morning.

WIPO Director General Francis Gurry said, “It is a great decision. Of course we are all aware that there is still some distance to travel before we have a treaty, but this decision, I think, places us one further step along the road and in a very good position to be able to deliver the objective, namely a very positive outcome of this exercise, with a good treaty that improves the situation of visually impaired persons and the print disabled.”

The General Assembly decided that a diplomatic conference should be convened in June 2013, in Morocco, with a mandate to negotiate and conclude a treaty.

Furthermore, the WIPO Standing Committee on Copyright and Related Rights (SCCR) will meet in a special session for five days in February to expedite further text-based work on the draft treaty, document SCCR/25/2 [pdf] “in order to reach sufficient level of agreement on the text.”

The assembly also directs "the Preparatory Committee to meet at the end of the February SCCR meeting to decide, if needed whether additional work is required with the objective of holding a successful Conference in June 2013," the decision says. It also states that the preparatory committee will invite observers.

The assembly decision has five paragraphs. With respect to paragraph 4 of the decision (on the special work session in February), Zvekić said, “we agreed to state for the record that in this paragraph, the phrase ‘additional work’ means additional work by either the SCCR or the preparatory committee, so that the preparatory committee can decide that either itself, the SCCR, or both may have additional work to do in order to prepare a revised text for the diplomatic conference.”

Document SCCR/25/2, which contains the draft articles as approved by the last SCCR session in November, "will constitute the substantive articles of the Basic Proposal for the Diplomatic Conference," the decision says, “with the understanding that any Member State and the special delegation of the European Union may make proposals at the Diplomatic Conference.”

The assembly also established a preparatory committee, which met at the close of the assembly this morning to work on modalities of the diplomatic conference, such as the draft rules of procedure, the list of states and organisations to be invited, and the agenda, dates, venue and other organisational questions.

Blue Sky with Some Clouds

The new consensus on a diplomatic conference and on a legally binding treaty to create exceptions and limitations to copyright for the benefit of visually impaired people cannot eclipse the fact that the draft text still reflects profound divisions between countries.

In February, delegates will have to tackle remaining issues, such as the inclusion of the three step test and commercial availability, on which they currently are at a standstill. Both inclusions are favoured by developed countries, in an effort to protect their right holders.

Yesterday morning, the delegation of Barbados said the treaty should be effective, and “while acknowledging the importance of safeguards,” it is important that “provisions in the text would not unduly restrict authorised entities from making accessible formats available under national law exceptions.”

“Provisions should not render the text nugatory through exposing authorised entities to possible liability and making their work administratively burdensome,” the delegate said.

In a press release [doc] issued today by the World Blind Union (WBU), Maryanne Diamond, leader of the WBU Right To Read campaign, said, "The decision of the WIPO Extraordinary General Assembly today is a very significant milestone on the road to a treaty. It means governments have kept the work on track to agree a binding and effective treaty in 2013, which if completed would allow blind people to access many thousands more books."

"The work is far from over, though. We urge all parties to now negotiate a simple, binding and effective treaty. A good treaty will really help us to end the book famine in which only some one to seven percent of books are ever made accessible to us," the release said.

Rahul Cherian, from Indian WBU member Inclusive Planet, also said in the release that "the objective of this treaty must be that of helping blind and print disabled people to get accessible format books, especially in developing countries. To achieve this goal, it must be workable and simply worded so that blind and print disabled people and their organisations can use it to really make a difference."

Currently in many countries, copyright law prevents charities from making accessible copies of books, and from sending them to others in countries speaking the same language, the release said. "The WIPO treaty sought by the World Blind Union would remove these copyright barriers and open up a new world of reading to blind people."

For more details visit https://cis-india.org/news/ip-watch-catherine-saez-december-18-2012-wipo-to-negotiate-treaty-for-the-blind-in-june

International treaty to make books accessible to the blind

praskrishna — 2012-12-21T11:36:11Z

It would make it legal to send accessible books across borders.

The article by Ramya Kannan was published in the Hindu on December 20, 2012. Rahul Cherian is quoted.

In a move that is likely to take more books closer to some 285 million people in the world, the Extraordinary General Assembly of the World Intellectual Property Organisation (WIPO) has referred the Treaty for Visually Impaired Persons to a diplomatic conference in June of 2013.

The treaty would allow specialist organisations to make accessible copies of books in all signatory countries; make it legal to send accessible books across national borders and make more books available for the blind.

There are an estimated 285 million blind and partially-sighted people in the world, of which the largest percentage lives in India. Like everyone else, blind people need books for education, pleasure and inclusion in society, but unlike others, these books are not accessible to them.

Books have to be converted into ‘accessible formats’ — audio, Braille, or large print — for the visually impaired. However, the fact is that about only 1 to 7 per cent of all books published are available in these formats.

“In many countries, the copyright laws prevent making accessible copies of the books, or importing them from nations where it is available,” said Rahul Cherian Jacob, who heads the Inclusive Planet Centre for Disability Law and Policy. He helped in drafting the Treaty and is the legal adviser to the World Blind Union on the Treaty.

Some developed nations have huge budgets that would allow them to make books in accessible formats. For instance, the U.S. had about $400 million a year to spend on making such books, while countries like India have very little funds available for the purpose, he said. Even if these books were available in the U.S., they were not accessible in India, because of import restrictions.

Sam Taraporevala, Director of the Xavier’s Resource Centre for the Visually Challenged and vice president and chairman policy formulation, Daisy Forum of India, said this could not have come at a better time for India. It was in last June that the amendment to the Copyright Act was passed, making a special exception to make accessible books.

G.R. Raghavender, Registrar, Copyrights, told The Hindu, “While the WIPO treaty looks at the blind and print-disabled, in June, Parliament introduced wider exceptions for physically disabled. Authorised entities will be allowed to produce accessible versions of books on a not-for-profit-basis without seeking for special permissions.”

However, even with this, owing to import restrictions, books already available in accessible formats in other countries could not be brought into India. They would have to be reprinted, Mr. Jacob noted.

"This is the real benefit of the treaty if it kicks in," Dr. Taraporevala said. Books could be sent across nations without restrictions, and this would mean a significant increase in the number of books available.

"However, what we do need to move towards a scenario where publishers will attempt to move towards equal opportunity publishing. The ideal scenario will be to make available every book that is published in accessible formats. Hopefully if all goes well, there will be something on the ground by the end of next year," he said.

The Cabinet should give the nod for India signing and ratifying the international treaty for it to come into force. However, given the overwhelming positive reception to the recent amendment to the Copyright Act, getting approval would not be an issue, rights activists said.

For more details visit https://cis-india.org/news/the-hindu-ramya-kannan-december-20-2012-international-treaty-to-make-books-accessible-to-the-blind

Disability groups in India welcome progress on treaty for blind persons

praskrishna — 2012-12-31T01:40:07Z

Four years of struggle for a global treaty for the benefit of blind persons is finally bearing fruit. Member states of the World Intellectual Property Organisation have agreed to conclude a treaty for visually-impaired and print disabled persons by June 2013.

Madhavi Rajadhyaksha's article published in the Times of India on December 20, 2012 quotes Nirmita Narasimhan and Rahul Cherian.

Print disabled persons are a group which includes those who are blind, visually-impaired, orthopaedically challenged or those living with hearing problems or learning disability. They have traditionally lacked access to an array of books , films and research material simply because they aren't available in formats which are accessible to them. For instance, blind persons have been denied access to books and films which aren't available in Braille.

The international treaty that is underway would ensure free exchange of work suitable to print impaired persons across borders. In other words, a book in Braille available in the United Kingdom could be freely imported by India for the benefit of visually-impaired persons here.

The treaty is particularly a huge boon for developing countries like India, many of which cannot afford the huge costs of translating works into print-friendly formats or importing them from more developed nations. There are roughly 285 million blind and partially sighted people in the world with the largest pool in India.

The desperate need for such a treaty is evident from the fact that only seven per cent of published books are made accessible to persons with disabilities. This estimate of the World Blind Union is largely for richer countries, with less than one per cent of work available to those in poorer countries.

Organizations like the Indian Right to Read Alliance which has been pushing for the treaty welcomed the June deadline. "This is an incredible development, and after a four year struggle we are looking forward to the treaty being concluded next year. This Treaty will revolutionize access to reading materials for persons with print disabilities around the world and we in India will hugely benefit from being able to import books in accessible formats from countries with large libraries such as the United Kingdom and the United States," said Rahul Cherian Jacob of the Inclusive Planet Centre for Disability Law and Policy, who is the legal advisor to the World Blind Union.

Sam Taraporevala, Director of the Xavier's Resource Centre for the Visually Challenged was elated by this development. "There is a library in the United States which has 10 million books in accessible digital formats which will be accessible to us once this treaty is passed. This is huge boost to our blind and visually impaired students who want to get into the field of research."

The treaty could transform the lives of million of people around the world, believes Nirmita Narasimhan, policy director, Centre for Internet and Society, a Bangalore based NGO which has played a crucial role in WIPO negotiations. She pointed out that breaking the barriers would make the Internet and accessible information and communications technologies more meaningful by expanding their potential for use.

For more details visit https://cis-india.org/news/times-of-india-city-mumbai-madhavi-rajadhyaksha-december-20-2012-disability-groups-in-india-welcome-progress-on-treaty-for-blind-persons