Great Expectations For WIPO Extraordinary General Assembly On Treaty For Blind

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An Extraordinary General Assembly will take place tomorrow at the World Intellectual Property Organization to decide on convening a high-level meeting in 2013 to agree on a treaty on exceptions and limitations to copyright for visually impaired people, enabling them to have a better access to works in special formats.

The 42nd WIPO General Assembly (and the 22nd Extraordinary) session is taking place from 17-18 December. The Assembly will evaluate the draft text on limitations and exceptions for visually impaired persons/persons with print disabilities and decide whether to convene a diplomatic conference in 2013.

The decision on the diplomatic conference is expected to be taken on Monday, according to sources, and delegates would then open the Preparatory Committee of the Diplomatic Conference.

According to the agenda [pdf], the preparatory committee will consider: the draft rules of procedure of the diplomatic conference, the list of states and organisations to be invited, and the agenda, dates, venue and other organisational questions.

Also on the agenda are draft administrative provisions and final clauses of the treaty to be considered by the diplomatic conference. Those are “modeled on the corresponding provisions of the Beijing Treaty on Audiovisual Performances, adopted on June 24, 2012, as the most recent and relevant expression of the will of the Member States of WIPO with respect to such provisions in international legal instruments,” according to the document.

The provisions relating to the treaty include the terms of eligibility for becoming party, obligations, signature, entry into force, effective date of becoming party, denunciation, languages, and the depositary of the treaty (WIPO Director General).

The draft treaty text is the one adopted at the 25th session of the Standing Committee on Copyright and Related Rights (SCCR) on 23 November (IPW, WIPO, 24 November 2012). The fundamental aim of the instrument was to facilitate cross-border exchange of books in special formats, currently forbidden by international copyright law.

Outstanding Issues for Negotiation

Delegates to the Assembly are not expected to discuss the text but evaluate its maturity so that a diplomatic conference can be convened to reach final agreement on a treaty. Some outstanding issues remain in the text as countries could not find agreement during the last sessions of the SCCR.

A major hurdle is the issue of commercial availability, which would request that entities authorised through the terms of the treaty make sure when importing a book in any accessible format that this particular book is not already commercially available on the national market in accessible format. Developing countries, and in particular African countries, have said that the provision would be inapplicable in Africa as it would create a burden on already resource-constrained authorised entities, like charities, and could effectively allow a publisher to prevent imports of books destined to an authorised entity.

Developing countries also worry about the concept of “reasonable price” in relation to commercial availability. Several African country sources told Intellectual Property Watch at the last session of the SCCR in November, that this language was equivocal since the term “reasonable” could be interpreted in several ways.

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. Some developing countries and in particular the African Group have been fighting this inclusion in the treaty. The text provides conditions for the exceptions to copyright to be applied, in an effort to protect the interests of right holders and authors.

The so-called three step 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 also inspired Article 13 of the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

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 treaty text, Article I states that 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.” The article is bracketed, signifying lack of agreement.

US Hesitant on Treaty, EU Said Approved it at Last Session

For a long time, the European Union and the United States were in favour of a soft instrument while developing countries insisted on having an international legally binding treaty creating exceptions and limitations to copyright in favour of visually impaired people.

The European Union presented a joint recommendation [pdf] at the 20th session of the SCCR in June 2010, and the US had a consensus instrument [pdf], both of which were not legally binding proposals.

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).

It seems the US is the only delegation not positively agreeing on a treaty (versus a softer instrument), although they did not voice opposition in the last session – they just did not mention the specific term “treaty”.

The World Blind Union said in a December press release that “The USA delegation still has not pronounced the word ‘treaty’ at these negotiations. It is now the only major negotiator not to do so.” “Historically, WIPO only deals in treaties to protect publishers’ rights. WBU is urging negotiators to afford them the same level of protection for the human rights of blind people,” the release said.

“It is a sad fact that even in this age of digital information transfer and narration software, the access visually impaired people have to publications in formats they can read is still unnecessarily restricted, in part due to outdated copyright law,” Dan Pescod, who leads WBU’s European campaign for the treaty told Intellectual Property Watch.

“The 17-18 December WIPO EGA gives the governments of the world a chance to call for a 2013 diplomatic conference to finalise a treaty for visually impaired people,” he said. “WBU urges them to seize this make or break opportunity to improve blind people’s access to information.”

If a diplomatic conference is convened, “the WIPO General Assembly is further invited to direct the SCCR to meet in special session for three days in February 2013 to undertake further text-based work on document SCCR/25/2,” states document WO/GA/42/2, which contains the draft articles.

 

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

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