After a long week of discussions, delegates at the World Intellectual Property Organization last night adopted a working draft text that could become a treaty or other instrument providing copyright exceptions for visually impaired people, and agreed to send the text to the WIPO extraordinary General Assembly next month.
Country delegates and visually impaired representatives hailed a constructive atmosphere and progress achieved this week, but a number of delegations highlighted the fact that much more work will be needed to reach final agreement on remaining outstanding issues.
Several succeeding updated texts were released during the week. On the last day of the 25th session of the Standing Committee on Copyright and Related Rights (SCCR), held from 19-23 November, the last iteration of the text  [pdf] was issued.
This text was adopted as a working document. It will be transmitted for evaluation to the 17-18 December General Assembly, which will decide whether to convene a diplomatic conference in 2013, according to the draft conclusions  [pdf] of the meeting.
According to several sources, if a diplomatic conference is convened, additional work on the text would be needed between the extraordinary General Assembly and the diplomatic conference. Closing statements at the SCCR were the occasion for delegations to confirm their positions.
Developed Countries Satisfied; EU Firm on Treaty and Creators’ Rights
Group B developed countries said countries had worked towards “an appropriate and balanced solution that takes into account the specific needs of visually impaired persons, while also protecting the rights of creators.”
The objective is clear, the European Union said at the close of the SCCR meeting, in a repetition of their opening statement: “To ensure that visually impaired and print disabled persons anywhere in the world have the same access to books as any other persons.” The EU, the delegate added, remains politically “committed to addressing the specific needs of the visually impaired and print disabled persons in an effective and balanced instrument, including a treaty.”
“We believe we all have gained common ground and understanding,” the EU delegate said, “However, we need to gain more.” The EU remains concerned that discussions on some points seem to relate to larger issues unconnected with the needs of the visually impaired, the delegate said.
The United States said it is pleased with the results of this SCCR meeting. “It has been two years of meetings that have shown tremendous good will among a bunch of people of very strong wills,” the delegate said. After declaring “we made tremendous progress this week,” the delegate added that “tremendous work” was still to be done. “We will be taking this working document home and I assure you that everyone on the US delegation will be working diligently to explain it in Washington, to seek support for it in our capital, and we are very hopeful of bringing back a favourable decision in December,” he said.
Developing Countries, Between Contentment and Concern
Sri Lanka, on behalf of the Asian Group, said the deliberations on the drafting of the text have “been undertaken in a spirit of good faith.” China, however, noted that a great deal of work still needs to be done for the possible holding of the diplomatic conference.
Egypt, on behalf of the African Group, said the group had shown flexibility during the negotiations, and expects its partners “to express flexibility on the key issues that remain unresolved and are of key importance to the group.” The African Group, the delegate said, “aspires to reach a meaningful treaty for VIP [visually impaired persons], especially to serve the cultural needs and priorities of the seven million visually impaired persons in Africa.”
Africa is home to many least developed countries, a Nigerian delegate said. “It is important to Nigeria that this process results in something that is workable, that is simple, that delivers, and meets the needs of the visually impaired,” the delegate said. “It is important to us that we do not create or agree to a multilateral system that creates a second class citizenry.”
NGOs Celebrate for Now; Difficult Issues Still on Agenda
Beyond the apparent collective glee, outstanding issues remain to be solved, according to some sources, in particular, the issue of commercial availability. In the current version of the text, the authorised entities would have to make sure that accessible format of works are not already accessible to visually impaired people on the national market.
For example, in Article D on cross-border exchange of accessible format copies, which is the main reason the instrument was discussed in the first place, there is language in the alternative A of the third paragraph of the article, which says 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.” This paragraph is bracketed.
Several African country sources told Intellectual Property Watch this language was equivocal since the term “reasonable” could be interpreted in several ways. Another issue is the fact that most entities that would be considered as authorised entities under the treaty are non-profit associations, which do not have the means to undertake such research. The disposition would be completely inapplicable in Africa and in many developing countries, they said, and could effectively allow a publisher to prevent imports of books destined to an authorised entity.
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 ).
“We need a practical, workable and meaningful text,” said the World Blind Union (WBU) representative. “A lot of work has happened on some wording, some theory, but we need something on the ground that works,” the WBU delegate said. She said she did not hear the US delegate commit to a treaty, while “almost every member state” has acknowledged their support for a treaty to solve the problem, she said. “So I would urge those who have not to move towards this as the only solution,” she added, calling on delegates “to keep the momentum up.”
Knowledge Ecology International (KEI) said the US got “pretty much all the red lines met in the first two days of the negotiations.” “They wiped out contracts,” he said, “they eliminated audiovisual works” and “kept deaf people out of the treaty,” joining voices with the World Blind Union. The KEI delegate also said he hoped that in the process of elaborating the treaty, “WIPO does not destroy or restrict national access and flexibility for people with disabilities.”
Broadcasting, Exceptions for Libraries to Come Later
The week’s session gave priority to the discussions on the draft text of the treaty/instrument for the blind with the three first days devoted to drafting, and then some. But the committee also addressed the protection of broadcasting organisations, limitations and exceptions for libraries and archives, and limitations and exceptions for educational and research institutions and persons with other disabilities.
On broadcasting, the SCCR decided, according to the conclusions of the meeting, that a three-day inter-sessional meeting would be organised during the first half of 2013. This meeting will allow delegates to work on a text “that will enable a decision on whether to convene a diplomatic conference in 2014.”
On limitations and exceptions for libraries and archives, the committee agreed to continue its text-based work during the next session of the SCCR “towards an appropriate international instrument or instruments.” The committee also will work on the structure of the document and decide at the next session whether to hold a three-day inter-sessional meeting in the second half of 2013, according to the conclusions.
Paragraph 9 of the conclusions was changed and a line referring to specific topics on which to focus during the potential inter-sessional meeting was deleted.
On limitations and exceptions for educational and research institutions and persons with other disabilities, the committee will continue text-based work “towards an appropriate international legal instrument or instruments” and to consider the possible reorganisation of the document, according to the conclusions.
On 22 November, during discussions on the document  [pdf] on this agenda item, a number of developing country delegations asked that the document be reorganised and their comments, currently included in the document under each heading, be moved from the text to an annex to the document. During the closing session of the SCCR on 23 November, several delegations confirmed their interest in this reorganisation, such as the African Group, Brazil – on behalf of the Development Agenda Group and in its national capacity – Ecuador, Argentina, Nigeria, and Algeria. India also supported this reorganisation.
The same request was made from developing country to move their comments to an annex in the working document  [pdf] on exceptions and limitations for libraries and archives.
Other changes were made to the draft conclusions, in particular on limitations and exceptions for the visually impaired persons/persons with print disabilities, where a sentence was added, proposed by the United States, after Venezuela expressed concern about what might happen if the General Assembly did not decide to convene a diplomatic conference. The sentence reads:
“Should the General Assembly decide not to convene a diplomatic conference in 2013, the SCCR recommends that it be directed by the General Assembly to continue negotiation of the text and to reallocate its time in the next SCCRs to give priority to that work.”
The next session of the SCCR will take place in July 2013 and, according to the conclusions of the session, “two days will be devoted to the agenda item on the protection of broadcasting organizations and two days will be devoted to the agenda item on limitations and exceptions for libraries and archives.”
NGOs issued a press release after the conclusion of the meeting, available here .