Hopes of the visually impaired community were rewarded in December when the World Intellectual Property Organization delegates agreed on a high level meeting anticipated to agree on a treaty providing exceptions to copyright facilitating access to books in special formats for blind and visually impaired people. However some outstanding issues remain and delegates will try to find consensus next week.

A special session of the Standing Committee on Copyright and Related Rights (SCCR) is taking place from 18-22 February. During that session, delegates are expected to work on the draft text [pdf] that was approved by the committee at the 25th session of the SCCR from 19-23 November.

Although giving cause for hope, the draft treaty text, which is to become an international instrument providing limitations and exceptions for visually impaired persons and persons with print disabilities, is not yet ready for the diplomatic conference scheduled to take place in Morocco from 17-28 June, according to many delegates.

“The meeting next week will include a combination of in-depth discussions on key remaining issues and the cleaning of the draft text,” Michele Woods, director, Copyright Law Division, Culture and Creative Industries Sector at WIPO told Intellectual Property Watch.

The limitations and exceptions to copyright are meant to facilitate access to copyrighted works for visually impaired persons, and in particular improve the international availability of special formats by allowing the exchange of these formats across borders.

According to WIPO, which conducted a survey [pdf] in 2006, “fewer than 60 countries have limitations and exceptions clauses written into their copyright laws that make special provision for VIPs, for example for Braille, large print or digitized audio versions of copyrighted texts.”

The fact that these exceptions, when in place, do not cover the import and the export of works converted into accessible formats imposes a requirement that organisations in each country negotiate licences with right-holders to exchange special formats across borders, or produce their own material.

Outstanding Issues to Clear

According to sources, some outstanding issues need to be cleared between countries so that the international instrument can have a clearer path to success (IPW, WIPO, 18 December 2012). In particular, the issue of commercial availability requiring 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, are concerned that this provision would create a burden on already resource-constrained institutions, such as charities, and could eventually prevent imports of books. Developing countries also worry about the concept of “reasonable price” in relation to commercial availability.

Another issue is the inclusion and the interpretation of the three-step test in the draft treaty text. The European Union has been intent to keep the terms of the three-step test in the draft text, according to some sources.

The so-called three step test comes from Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works. It provides exceptions to the right of reproduction, stating that reproductions should not “conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.”

Consensus on a Treaty, Developed Countries Ask For Balance

For a long time the European Union and the United States were reluctant to agree to a binding legal instrument and had expressed their preference for a soft instrument but the European Union at the last session of the SCCR in November said it now supported a treaty.

A European Commission source told Intellectual Property Watch that “the EU and its member states are supportive of a treaty to improve access to books for visually impaired persons.”

“At the same time,” said the source, “they consider that a number of important issues are still open and need to be solved before the diplomatic conference in June.”

“The EU and its member states will work constructively at the extraordinary SCCR next week in order to find solutions that ensure a balance between the needs of visually impaired persons and the interests of the right holders,” the source added. The European Commission negotiates on behalf of the European Union at WIPO.

The United States also said at the last session that the United States was supportive of a legally binding instrument (IPW, WIPO, 17 December 2012).

On 22 February, following the special session of the SCCR, a half day is expected to be spent on the Preparatory Committee of the Diplomatic Conference to Conclude a Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities. According to WIPO, the main item on the preparatory committee’s agenda [pdf] will be the ratification of the work of the special session of the SCCR so that the updated version of the text can be substituted as the working text for the diplomatic conference.

World Blind Union, Publishers, Separate Concerns

Jens Bammel, secretary general of the International Publishers Association (IPA), told Intellectual Property Watch that IPA is looking forward to the special discussions next week.

“In order to achieve outcomes, member states will need to retain their focus: improving access to literary works,” he said. “At the same time, they must look at what is happening in reality and what is the clear trend for the future: the greatest providers of access for persons with print disability, and the ones with the highest impact, at the lowest cost and with strongest growth potential, are publishers themselves.”

For the World Blind Union (WBU), the goal of the week is that delegates agree on a “simple and effective text for the people this treaty is intended for: blind and print disabled people.”

“That sounds obvious,” Dan Pescod, who leads WBU’s European campaign for the treaty, told Intellectual Property Watch, “but we fear that in the name of ‘protecting’ publishers or ensuring ‘balance’ between our interests and theirs, or ‘incentivising’ publishers in some way, the negotiators will agree to a treaty that is too complex to understand and bureaucratic to put into practice to be used to serve the disabled people it is for.”

“This treaty, unlike the many others in international law, is not for rights holders. It’s for disabled people. It will not harm rights holders,” Pescod said, adding, “WBU is in no way against rights holders.”

“We remind everyone that rights holders have all manner of existing protections in copyright law, and these will stay in place after our treaty is agreed. If someone – blind or not –  infringes copyright law, then they are liable to face the legal consequences,” he said.

This special session is the last scheduled meeting of the SCCR before the June diplomatic conference, according to WIPO. A diplomatic conference is a UN term for the highest level treaty negotiation.