NGO Views On WIPO Treaty For Blind Reveal Difficulty In Reaching Accord

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Non-governmental organisations this week vehemently voiced their positions at the World Intellectual Property Organization on a text that could become a treaty increasing access to books by visually impaired people. The NGO exercise unveiled a range of stances on what the treaty should and should not do.

NGOs attending the 25th session of the Standing Committee on Copyright and Related Rights (SCCR) this week were given an opportunity to make statements during the short plenary session on 21 November.

The first three days of the 19-23 November SCCR meeting were devoted to drafting the treaty for the blind, and by afternoon of the third day, some issues were still blocking agreement. The drafting of the document is being done in informal sessions inaccessible to NGOs, which are left guessing what is happening in those sessions and become aware of the progress only when a new text is issued.

A number of organisations representing blind persons are attending the meeting and many took the floor on 21 November. Among the issues voices are authorised entities. Those would be entities that, for example, are recognised by governments “to provide education, instructional training, adaptive reading or information access” to visually impaired persons, on a non-profit basis, according to the definition in the last draft treaty/instrument text.

Some NGOs have concerns about the burden that could befall them if the treaty were to put too much responsibility on those entities, which could be asked to take measures to protect the rights of creators.

The National Federation of the Blind of the United States said the treaty “is not a matter of something that the federation would like to have,” but “something we must have.” The representative asked that government delegates keep in mind that many authorised entities are non-profits, and as such work with constrained resources and should not be burdened by many additional requirements.

The instrument needs to be balanced and acknowledge the interests of right holders, said the American Council of the Blind, but “it must also be clearly understandable and usable by the real people around the world who will work for the organisations that produce accessible format books,” the representative said.

“We believe that the rights of authors and publishers and other rights holders can be protected by a treaty that will at the same time provide a meaningful process by which authorised entities can clearly know how they need to share documents,” she said. “We have no interest in promoting piracy or protecting anyone who is guilty of it. What we have an interest in is making sure that our right to read doesn’t get pirated.”

The World Blind Union representative confirmed the high expectations of blind people around the world for the week’s discussions. One of the WBU concerns she said, is the fear of over-regulation in regards to import and export. The exporters are not in a position to know, he said, to verify who is a bona fide recipient, and to verify if a book is commercially available in a country. The responsibility, she said, “must lie with the importer.”

The representative of the Latin American Blind Union urged delegates to reach a concrete outcome and encouraged flexibility. “We need to be very careful not to introduce obstacles or excessive requirements,” as in developing countries “our organizations can’t use these tools in that case.”

Other Civil Society Voice Concerns, Warn Against Over-Regulating

According to Knowledge Ecology International, “there have been a lot of steps backwards” this week in the texts produced compared to the text issued at the end of the inter-sessional meeting of the SCCR in October. In the October text, there was still strong language on contracts, in brackets, and some good language on the interpretation of the three-step text, he told Intellectual Property Watch. The article on contract was deleted by the drafting group on 20 November.

“In order to move things along, there is a lot of pressure to give up everything except for the core things,” he said, but “if you keep making tradeoffs you end up with not much of a treaty at the end of the day,” he said, adding, “We have been losing ground in the negotiations.”

During his morning statement, Love presented five main concerns and voiced concerned about the deletion of the article on contract. Contracts are “being used to kill exceptions,” he said, so it would have been important to have a provision in the treaty on the issue, “so that exception killing contracts can be overwritten by governments.” On the three-step test, Love said that if it is already included in an international law “then why include it here?” “It is an effort to restrict the freedom of countries to write national laws to address the public interest,” he said.

David Hammerstein of the TransAtlantic Consumer Dialogue said failing to produce a text prepared for a diplomatic conference “will be seen as a failure by the opinion all around the world,” not only of civil society, but of the European Parliament and other bodies. The issue of over-regulation is surprising, he said, as in the European Union and in the United States “the issue of overregulation is a big one.”

“We don’t want to overburden companies and businesses who want to promote our economy,” Hammerstein said. So “should we overburden non-profit organizations that are exercising basically a human right?” that is, the right to read, he asked, in reference to authorised entities.

Libraries Join Voices

The International Federation of Library Associations and Institutions said libraries and archives have concerns about the definition of authorised entity, as “libraries and archives everywhere are major providers of assisting the blind and print disabled people to access to information,” the representative said. The definition in the treaty “must explicitly and definitively recognise this core responsibility of all libraries and archives,” she said. In addition, she said the treaty “must not be used to expand or privilege the reach of the three step test but should include a balancing statement affirming the public interest,” and avoid restrictive interpretations of the test.

The Library Copyright Alliance, representing three major US library associations, said they were concerned about the deletion of Article G (on relationship with contracts). “At the very least in our view the treaty should explicitly give Member States the right to decide whether they want to nullify contracts that are inconsistent with the treaty’s provisions,” they said, adding that “if a right holder by contract can prevent the making available of an accessible copy then the treaty will have accomplished very little.”

Industry Wants Three-step Test, Creators Incentive

The International Publishers Association said the publishers share the common goal with the visually impaired community to provide content at the same time, place and price. However, the IPA “cares deeply” about the three-step test, the representative said. “We need a clear statement in this text that incentivises publishers to provide accessible formats from the outset” at the same time, same place and price,” he said.

The three-step test as phrased in the draft instrument was challenged by the African Group, while having full support from the United States and the European Union.

On authorised entities, the publishers said they did not expect “terrible huge burdens” but digital files have an economic value “and all we are asking for is that there is reasonable care being taken.”

The International Federation of Reproduction Rights Organizations (IFRRO), a collective management network representing collective societies, said “exceptions in favour of the print disabled should be made subject to copies not being commercially available.” According to IFRRO, this would stimulate the publishing industry to consider more actively the print disabled as an attractive consumer group.

The concern of publishers appears to be that works could be circulated under the exception to copyright provided by the treaty while there are already accessible formats of the works made available by rights holders on the market.

The Software and Information Industry Association said many of its members “address the needs of people with disabilities during all phases of product planning development and support.” The representative said the provisions in this instrument should “not apply to printed works that are already being made available to the visually impaired community in an accessible format.” It is also important, he said, that the instrument be consistent with other international binding agreements such as the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the WIPO Copyright Treaty, so that “protection is not weakened in ways that undermine the incentives that benefit all people,” including visually impaired.

The Motion Picture Association of America (MPAA) said they are “supportive of the objectives of the VIP instrument that improves access to print materials in a manner that is consistent with the international Copyright framework.” Copyright, they said, “is also a fundamental right” and is the “driving force behind the production of new works.”

“We must be very careful not to upset the balance and disincentive creativity and investment in the content sector,” MPAA said.

For the International Federation of Film Producers Association, it is important that member states ensure that the text be limited in scope, and that the instrument is consistent with the international legal framework for copyright, and in particular that “the three step test be specifically affirmed in the substance of the text and that a standard regarding the legal protection of technical protection measures be upheld.”

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

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