WIPO Director Pleads With Countries To Advance Treaty For Visually Impaired

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Visually impaired and print-disabled persons have high expectations for the results of this week’s negotiations on copyright exceptions and limitations at the World Intellectual Property Organization, WIPO Director General Francis Gurry told the opening of a committee meeting today.

The 25th session of the WIPO Standing Committee on Copyright and Related Rights is taking place from 19-23 November. The high profile subject of this week’s meeting is a draft text of an instrument providing limitations and exceptions to copyright for blind/visually impaired persons and persons with print disabilities.

Gurry said meeting the expectations of the visually impaired community and the print disabled depends on delegates. He said he made a plea to delegates “to rise sufficiently above your national positions to see the common good that can be achieved for the international community through the conclusion of a new treaty in this area and to see the improvement that you are able to actually deliver for the visually impaired and the print disabled.”

“I cannot overemphasise the importance of the task that you have before you this week to be able to demonstrate sufficient flexibility,” he said, adding that the treaty would “be applauded and greeted with a great deal of enthusiasm all around the world.”

Also on this week’s agenda are three other working documents delegates are mandated to advance: a draft treaty text on the protection of broadcasting organisations [pdf], a working document on exceptions and limitations for libraries and archives [pdf], and a working document on limitations and exceptions for educational, teaching and research institutions and persons with other disabilities [pdf].

The schedule for the week [pdf], was presented today in plenary session and will be as follows: three days of the meeting will be devoted to the work on the visually impaired persons draft treaty text. On Thursday morning, discussions will focus on a proposed treaty for the protection of broadcasting organisations, the afternoon will be devoted to limitations and exceptions for educational and research institutions, as well as persons with other disabilities. On Friday morning, delegates will address any further work on any topic discussed during the week, and the afternoon will be dedicated to the conclusion of the meeting.

Chair Darlington Mwape of Zambia said the committee will work in a smaller configuration (regional coordinators plus five) than the plenary to advance the draft visually impaired persons treaty text in order to ensure transparency. The plenary will reconvene each morning to present the work coming from the small group discussions.

The African Group, in its opening statement, said the group “attaches great importance to the VIP negotiations.” Over 27 million people suffer from visual impairment in Africa and about 17 million in the Middle East, the Egyptian delegate said on behalf of the group. Additional progress is needed to achieve convergence, he said, and to “overcome outstanding significant issues to reach an outcome.”

Several policy questions need resolving, he said, in particular, defining the nature of the “authorised entities” and taking into account the limited resources of developing countries’ authorised entities to implement strict administrative rules and procedures or to “act as enforcement agencies.”

Authorised entities are described in the draft text [pdf] as: “Authorized entity means an entity that is authorized or recognized by the government to provide education, instructional training, adaptive reading or information access to beneficiary persons on a non-profit basis. It also includes a government institution or non-profit organization that provides the same services to beneficiary persons as one of its primary activities or institutional obligations” but the text is entirely bracketed, reflecting the absence of consensus on this definition.

Another concern of the African Group is the necessity to ensure “that the exercise of the exceptions and limitations permitted under the treaty would not be impeded or negated by other disciplines such as technological protection measures, contract law, or create [sic] new obligations regarding sovereign discretion by WIPO member states regarding how governments create other exceptions and limitations to address public interest needs nationally.”

A particular concern has been voiced in previous sessions about the interpretation in the treaty of the so-called three step test. The test stems from Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works on possible exceptions to the right of reproduction. This language has inspired Article 13 of the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) [pdf].

The Berne Convention states that exceptions and limitations should be limited to certain special cases, “provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.”

In the draft visually impaired persons treaty text, Article I says the tree-step test “should be interpreted in a manner that respects the legitimate interests of third parties,” including “[a] interest deriving from human rights and fundamental freedom, [b] interest in competition, notably on secondary markets, [c] other public interests, notably in scientific progress and cultural, educational, social or economic development.”

Concerns on the Week’s Schedule

South Africa expressed concerns on the week’s schedule and said spending three days on the visually impaired persons treaty and only half a day on the protection of broadcasting organisations for which a diplomatic conference was expected to be convened in 2014, and another half day on the limitations and exceptions for libraries and archives, educational and research institutions and for people with other disabilities, was not in conformity with the WIPO General Assembly mandate which required that all issues be treated equally.

A parallel request was voiced by the African Group, which asked that the session advance work on the other agenda items, echoed by Peru on behalf of the Group of Latin America and Caribbean Countries (GRULAC), and the Asian Group.

Group B: Respect Creators’ Rights; EU has a Go for a Treaty

Belgium, on behalf of Group B, said specific issues experienced by visually impaired persons require specific solutions but those solutions should effectively protect the rights of creators. Group B, the Belgium delegate said, is hoping for substantial progress on the protection of broadcasting organisations so that the 2013 WIPO General Assembly could envisage the possible scheduling of a diplomatic conference in 2014.

The European Union said the SCCR has a specific objective to remove barriers which prevent access for the visually impaired to books in accessible formats, including the cross-border distribution of such accessible formats. The objective for the 25th session of the SCCR, the delegate said, is to concentrate on the negotiation on the specific needs of visually impaired persons and achieve a strong convergence that will allow the advancement of the draft treaty text.

“Our goal is clear,” said the EU delegate, “we want to ensure that visually impaired people anywhere in the world have the same access to books as any other persons.” But this has to be in accordance with an effective protection of the rights of creators, he said, adding that the EU and its member states now are “in a position to negotiate the conclusion of an instrument, including a binding treaty.” There is a political commitment, he added, to find an effective and balanced solution “that does not affect the principles of the international copyright framework.”

Catherine Saez may be reached at info@ip-watch.ch.

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  1. […] Another major issue is the interpretation of the three-step test, which has been forcefully maintained in the text by the European Union, according to some sources, and fought by some countries, in particular by the African Group. The test mainly provides conditions for the exceptions to copyright to be exercised in an effort to protect the interests of the rights holders (IPW, WIPO, 19 November 2012). […]

  2. […] At the last meeting of the SCCR in November, the European Union said it was now in favour of a treaty. “Our goal is clear,” said the EU delegate, “we want to ensure that visually impaired people anywhere in the world have the same access to books as any other persons.” But this has to be in accordance with an effective protection of the rights of creators, he said, adding that the EU and its member states now are “in a position to negotiate the conclusion of an instrument, including a binding treaty.” (IPW, WIPO, 19 November 2012). […]

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