A treaty on copyright exceptions for visually impaired persons proposed this week at the World Intellectual Property Organization met with no immediate objections, according to participants, but how to treat the proposal and other limitations and exceptions in the future has led to a sharpening divergence among governments. [Editor's Note: WIPO Director General Francis Gurry explicitly told members during the meeting that WIPO neither opposes nor advocates any solution.]

The WIPO Standing Committee on Copyright and Related Rights (SCCR) is meeting from 25-29 May. Issues on the agenda include limitations and exceptions to copyright, strengthening broadcasters’ and cablecasters’ rights and protection of audiovisual performances (IPW, WIPO, 25 May 2009).

The visually impaired treaty proposal was formally introduced this week by Brazil, Ecuador and Paraguay, and many members and nongovernmental groups made commented on it. None directly opposed the proposal, which heartened proponents, though doubts arose over developed countries’ emphasis on a softer alternative approach, according to participants.

“There will be a proper analytic discussion on [the treaty proposal]” at the next committee meeting, Chair Jukka Liedes told Intellectual Property Watch early Thursday. “That is clear.” Liedes, who has been chair of the committee for many years, was re-elected at the start of the meeting.

But developed countries and content industry representatives – as well as the WIPO secretariat [Clarification: WIPO Director General Francis Gurry explicitly told members during the meeting that WIPO neither opposes nor advocates any solution] – signalled resistance to launching into negotiations for such a treaty, suggesting that it is premature (see the Group B statement below). They showed a preference for pursuing solutions through a “stakeholder platform” process being conducted by the secretariat. This process would provide a forum for discussion about possible solutions between would-be readers, publishers and other stakeholders.

Treaty proponents argue the stakeholders approach cannot address all of the issues related to the serious shortage of printed or electronic material for visually impaired readers, especially in the developing countries. According to the World Blind Union, which originally created the treaty proposal, some 90 percent of visually impaired persons live in countries of low or moderate incomes.

Some 95 percent of books never become available to blind and partially sighted readers, who use alternative formats such as audio, braille or large print, the WBU told the committee. The majority of accessible format books are produced by specialised charitable organisations with limited resources. These organisations use copyright exceptions to produce books in the 57 countries where they exist, the group said.

Some divergence also arose over proceeding with a visually impaired treaty, instead of addressing all sorts of limitations and exceptions at the same time, a view led by the African Group. The group proposed to move on a more general framework that would encompass a broader range of exceptions and limitations. Visually impaired treaty proponents prefer to start with their treaty as a starting point to other areas. Representatives of the African Group and treaty proponents said they expected to resolve any discrepancies in the near future.

Challenging Chair’s Draft

With the differences of opinion, drafting the chair’s conclusions for the meeting has proved tricky. Liedes circulated a first draft [pdf] midday on Thursday and a second draft [pdf] later in the day. A third draft [pdf] was circulated Friday morning. According to participants, delegations had differing views of how strongly to state the support shown during the week for discussing the treaty proposal.

[Update: The third draft from Friday morning is significantly watered down to include doubts about the treaty, presumably reflecting developed country views. It adds emphasis that work on access for the visually impaired is "multifaceted." The new draft gives equal weight to the views expressed in favour of the treaty proposal and those who "wish for more time to analyse it." It then goes further to state that others expressed the view that deliberations on an instrument are "premature." Distinguishing these views appears to clarify that calling the treaty "premature" translates into direct opposition. This is the position of Group B.]

An informal meeting of regional coordinators and one or two other delegations was held Thursday evening and to be continued Friday morning. The informal meeting was aimed at finding agreement on the language of the chair’s draft conclusions.

According to one participant in the evening session, the chair was considering two possible options: a single document listing all observations or the best assessment of the chair of the week’s proceedings.

“We understand the WBU is the starting point for negotiation for a treaty on visually impaired” access, a Brazilian delegate told Intellectual Property Watch separately. “Negotiation of a treaty needs to start at some point. It is a legitimate basis for launching negotiations. The stakeholder platform is not enough; it will not lead to binding solutions.”

The majority of the Group of Latin American and Caribbean countries “are committed to broader limitations and exceptions, said Flavio Arosemena, national director of copyrights of Ecuador. But right now the main focus of the conclusions is on what happened in this week’s committee discussion on the treaty proposal.

What happened, he said, was “major support for the initiation of discussions on a possible treaty on limitations and exceptions for the visually impaired.”

Treaty Proposal and Developed Country Views

The WBU treaty proposal would permit accessible format of copyrighted works to be made without authorisation of the copyright owner, and to supply that accessible format to a visually impaired person by any means. This would only be the case for non-profit purposes. Users would be able to copy the work for personal use.

The proposed treaty also includes requirements on pricing for developing country readers, and on the ability to get around technological protection measures. It also includes provisions on the import and export of works, notice to rights owners and remuneration for commercial reproduction, a database on availability of works, and on orphan works.

Germany on behalf of the Group B developed countries welcomed the treaty proposal as a “valuable contribution” and promised to study it “with an open mind.” But, it said, “deliberations regarding any instrument would be premature.”

“The proposal states a conclusion at a time when we are immersed in fact-finding and evaluation,” Germany said. “We note that the issues are complex, and include a mix of economic, technical, business and legal issues.”

Canada told the committee that any solution should allow multiple approaches for domestic production of accessible formats, including exceptions, compulsory licences or conditional exceptions, according to participants. This would not prevent the international exchange of adapted materials, but further discussion would be needed within the committee on how to address the issue of international transfer.

On broadcasters, Canada said it favours an option from the chair’s informal paper from last November’s meeting that called for a new approach. But it maintained its position that countries should be able to continue to allow free transmission of free-over-the-air signals.

The United States gave a statement to the committee [pdf] describing its “great deal of experience” with exceptions and limitations to the exclusive rights of authors and other creators. It found that improving accessibility to copyrighted works “presents a multi-faceted and inter-related set of challenges and opportunities, including complex issues of law, technology, business and human and financial resources.”

The US said it is currently in a process of a domestic consultation on the subject and painted the issue as extremely complicated. Preliminary results from consultations show that copyright protection is one of many factors affecting content availability, there is a strong preference for content in digital format, and that such formats are not all compatible. It also heard from rights holders that digital rights management (DRM) is critical to prevent high levels of infringement, it said.

In addition, US representatives have gained insights into high costs of producing accessible copies, and that there are willing buyers and sellers of licences to create accessible content.

Publishers and other rights holders are wary of the treaty proposal and prefer to focus on the stakeholder platform approach. The International Publishers Association said in a statement that new commercial technologies are developing fast, and suggested focussing on mainstreaming visually impaired customers in product development, collaborating with visually impaired representatives through trusted intermediaries, and developing balanced legal frameworks at the national level.

The United States has come under fire from some activists at home for effectively beginning to undermine efforts for the treaty.

“The United States delegation has basically read from a script written by lobbyists for publishers, extolling the virtues of market based solutions, ignoring mountains of evidence of a ‘book famine’ and the insane legal barriers to share works,” James Love of Knowledge Ecology International wrote Thursday in the Huffington Post online.

Other Issues

On broadcasting, the committee would recommend to keep discussing the issue, following Monday’s information session (IPW, WIPO, 27 May 2009). The committee’s work would focus on broadcasting signal theft problems. The secretariat would “organise regional and national seminars followed by regional consultations on the objectives, specific scope and object of protection of a possible new instrument.”

A wide range of civil society groups representing libraries, technology industry, internet service providers, free software, digital rights and open access issued a joint statement this week restating their opposition to a broadcast treaty, as there has been no change in the situation.

On audiovisual performances, the draft chair’s conclusion said the committee recommended continuing work on the issue, which still follows from a 2000 collapse of treaty talks. The committee would request the secretariat to prepare a background document main questions and positions, and hold informal, open consultations on possible solutions.

Civil Society Perspectives

The WBU told the committee that the treaty would address cross-border problems by making possible for libraries and service organisations to share content across national borders, and would create a global copyright exception for cases where publishers do not produce accessible versions. It also would allow provision of supplemental materials, such as figure descriptions, tactile graphics, and braille versions even when the publisher is selling a fundamental accessible version.

Rights holders are not producing or marketing accessible formats of their works, the WBU said, and that the public interest can be protected “by providing a normative environment” for producing such works without harming commercial interests of rights holders.

The WBU also said the treaty proposal seeks to complement the stakeholder platform discussions which they said could achieve convergence on “a number of technical issues which have an operational impact on distribution of accessible format master digital files.”

“The WIPO VI stakeholders’ platform” is not an alternative to the treaty,” the WBU said. “Rather, the work of the platform and the treaty are complementary and a twin-track approach to securing the full solution.”

Rights holder and creator groups representing authors, composers, film, television and audiovisual producers, musicians, newspapers, books and others issued a joint position asserting that existing flexibilities in laws for limitations and exceptions are adequate and calling for any options to respect their rights.

The European Newspaper Publishers’ Association circulated a statement raising concerns about news aggregators’ activities using newspapers’ content online.

Joint and individual statements in support of the treaty proposal discussions were made by a number of civil society and industry groups. These included Intel, the Computer and Communications Industry Association, the Electronic Frontier Foundation, Knowledge Ecology International, Electronic Information for Libraries and the International Federation of Library Associations and Institutions, Library Copyright Alliance, the Center for International Environmental Law, Consumers International, IP Justice and Public Knowledge.

Pedro Paranaguá of the Centre for Technology and Society (CTS) at Fundação Getulio Vargas (FGV), School of Law in Rio de Janeiro said in a statement to the committee this week that the member governments have “legal and moral obligations to guarantee equal access to knowledge to the blind, visually impaired and other print disabled persons,” which the treaty would fulfil.

“As our studies, research and experience demonstrate,” he said, “several developing and least developed countries lack the expertise and needed knowledge for implementation, or are under strong pressure by industry lobbying not to implement meaningful exceptions and limitations provisions into their national legislations.”

FGV took the view that a general “framework instrument” on limitations and exceptions might be the best starting point, with discussions to follow on exceptions and limitations for blind, visually impaired and print disabled persons, educational purposes, including distance learning, libraries and archives, private non-commercial use, and possibly more.

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Statement of Group B

Group B: Treaty Proposal of Brazil, Ecuador and Paraguay

Thank you Chairman,

I make this statement on behalf of Group B.

Group B thanks the distinguished delegations of Brazil, Ecuador and Paraguay for their proposal. We regard the document as a valuable contribution to our deliberations about the needs of blind and visually impaired persons. Therefore we will study the proposal carefully and with an open mind. Not having had the time to reflect adequately upon the document, Group B wishes to reiterate that deliberations regarding any instrument would be premature.

The proposal states a conclusion at a time when we are immersed in fact-finding and evaluation. We note that the issues are complex, and include a mix of economic, technical, business and legal issues. The solutions are therefore equally complex.

In this regard Group B seeks to find effective, practical and timely solutions to the needs of the blind and visually impaired.