WIPO Members Inch Toward Visually Impaired Treaty

After three days of mostly informal discussions and a set of succeeding draft texts of what could become a treaty for visually impaired persons, World Intellectual Property Organization members tonight closed discussions with yet another version of the text showing agreement in some areas and work still to be done.

At issue is an international instrument that would facilitate access to copyrighted reading and educational material in special formats for visually impaired persons, through a set of exceptions and limitations to copyright. WIPO delegates met for three days to advance a text prior to the next session of the Standing Committee on Copyright and Related Rights (SCCR) from 19-23 November. The members met in an inter-sessional meeting from 17-19 October.

In most articles of the new text [pdf], the final document of the inter-sessional, there are a number of brackets remaining (reflecting lack of agreement) but some articles were agreed upon, such as the definition of “accessible format copy” in Article A and sub-articles C.2 (A) and (B), on exceptions and limitations in national copyright law.

“We are not after a trophy treaty” – Christopher Friend, World Blind Union

However, some points of disagreement remain, for example, in Article Bbis, on the nature and the scope of obligations. Brazil, India, the European Union, Nigeria and the United States have agreed to work together to reach a language that can be proposed to the next SCCR meeting, according to sources.

Meeting Chair Darlington Mwape, the Zambian ambassador, said other member states were invited to submit their comments to the working group by 29 October, which in turn should submit some language to the WIPO secretariat by 12 November.

“Progress has been registered,” Mwape said, according to sources, but he added that now that the positions of member states are well known, delegations should come prepared with clear options to negotiate and close the gap at the next SCCR meeting, less than a month away.

Other sticking points are: authorised entity, cross-border exchange, and the interpretation of the three-step test for limitations and exceptions found in the Berne Convention for the Protection of Literary and Artistic Works.

Some other articles were not much discussed, the WIPO secretariat said according to sources, for lack of time or because those articles depended on other articles which needed further discussion, such as the definition of reasonable price in Article 1. Some articles still have alternative paragraphs, such as Article D on cross-border exchange of accessible format copies.

NGOs Kept at the Door of Negotiations, Felt Left in the Dark

Most of the discussions during the three days of the inter-sessional meeting were held behind closed doors, without the presence of observers. Non-governmental organisations felt they could not really follow the process.

For David Hammerstein of the Trans Atlantic Consumer Dialogue, a Brussels-based non-governmental organisation, it is an “outrageous and a clear lack of democratic transparency to maintain civil society 95 percent outside of the negotiations,” he told Intellectual Property Watch.

Allan Adler, general counsel and vice president for government affairs of the Association of American Publishers, told Intellectual Property Watch that it had been arduous to follow progress as the process has been largely held outside of hearing and it was difficult to tell from working papers.

Members of the World Blind Union said that although they had been kept outside of direct discussions, member states had consulted them regularly, and they felt they were considered a relevant party in the negotiations.

Brackets and New Text Endanger Swift Progression, NGOs Say

However, the WBU members said they felt disappointed that instead of narrowing the text, delegates seemed to have added new text and more brackets. One important point for WBU is that “authorised entity” should include all organisations that would have a right to provide reading and educational material to visually impaired persons, including small organisations in developing countries.

Hammerstein told Intellectual Property Watch that on authorised entity, the EU had proposed a two-tiered approach with one set of entities having the right to export and produce copyrighted work for visually impaired persons, and another set of entities that would not be able to distribute digital work and unable to do any cross border exchange. Most visually impaired people use digital audio format, he said.

The EU Parliament and the EU Commission both agree on the necessity of a binding treaty, he said, but the competence for negotiating such an instrument remains with the European Council, the representatives of the 27 EU governments. EU member states have not yet adopted the negotiating mandate because they want to assess the text before adopting that mandate, he said.

The real problem of this negotiation, Hammerstein added, is the fear of some countries such as EU members of establishing a precedent in copyright exceptions. “They want to establish a firewall against copyright flexibilities even if holding millions of blind people hostages” to this agenda, he said. Some “300 million people have become hostages to the global copyright war between greater flexibility and greater intellectual property rights enforcement,” he said.

Adler said the question is whether or not the working documents have grown beyond focusing on the main goal of the instrument which is to insure greater availability of protected works to visually impaired people. Some additional issues that have been put on the table might not be necessary and seem like efforts to change already agreed upon and established international instruments, he added.

For example, he said, some delegations have tried to change the interpretation of the “three-step test” in relation to this instrument, but for right holders this is not at issue as it is already well established in a number of international instruments, such as the Berne Convention, the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the newly adopted Beijing Treaty on Audiovisual Performances. He asked whether those countries are trying to solve a problem for visually impaired persons or change international law.

In closing remarks, an industry representative called on member states to pursue two objectives: increase access to books for visually impaired persons; and to ensure the instrument is in harmony and without prejudice to the international copyright framework. He said the instrument should be narrow in scope, reaffirm the three-step test, be flexible, and insure appropriate care of digital files.

Time is short, said Christopher Friend of the WBU, voicing concerns in closing remarks about the “enormous amount” of text to be cleaned up and finished before the extraordinary General Assembly in December, for which he said he had received an invitation to register.

“We are not after a trophy treaty,” he said, but want to put books and information in the hands of visually impaired persons and persons with print disabilities in the formats that are needed.