While country delegates at the World Intellectual Property Organization are working to find consensus on a text to become a treaty for the benefit of blind and visually impaired people, industry and non-governmental organisations are pushing their agendas. 

A special session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) is taking place from 18-22 February to try to clean up a text before it is transmitted to a diplomatic conference in June, in Marrakesh, Morocco, expected to agree on a treaty.

Two of the central remaining issues as of mid-week were: establishing limits on the scope of the limitations and exceptions to copyright law that the treaty is aiming to create in order to facilitate access to books and information for the blind and visually impaired; and enabling the cross-border exchange of books.

Early yesterday, when the plenary reconvened after a difficult day of negotiations on the text, (IPW, WIPO, 20 February 2013) non-governmental organisations were invited to give comments. In their remarks, private-sector representatives favoured concepts that are regarded by developing countries, particularly the African Group, as diminishing the usefulness of the treaty were they to be included in the text.

At the heart of the publishers’ concerns is the concept of commercial availability, in which entities authorised through the terms of the treaty have to 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.

The other issue is how, or whether, the concept of the so-called three-step test should be included in the text of the treaty. The three-step test comes from Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works. It provides limits 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.”

The three-step test must not become “an additional filter through which any exception that is developed here has to pass” – Library Copyright Alliance

The International Group of Scientific, Technical and Medical Publishers (STM) said that WIPO members were expected to create an enabling legal framework that “will empower rather than threaten the ability of rights holders to serve the market of visually impaired persons.”

The three-step test is important because “the international exchange of entire copyright-protected works in digital formats which are so flexible that not only visually impaired people can have access to the content but everybody else as well is a white space in the international copyright framework,” the representative of the International Publishers Association said.

Concerning the issue of commercial availability, he said it was not an extraneous issue but a core issue as, “commercial products are already and will increasingly become the primary direct source of accessible books for persons with print disabilities not only in developed countries … but in developing countries as well.”

The International Federation of Reproduction Rights Organizations said it is indispensable that the exceptions in the treaty be subject to the three-step since some of the WIPO members have not ratified other copyright treaties. “Exceptions in favour of print-disabled persons should be made subject to copies not being commercially available which is particularly important with respect to the cross-border transfer of accessible format copies.”

For the Motion Picture Association representative, “bringing extraneous issues about or abusing the process to redefine basic copyright principles is unnecessary and unfair to both creative sectors relying on copyrights as an incentive to create and finance new works as well as VIP [visually impaired persons] who deserve a successful outcome in Marrakesh.”

The three-step test, he said, is not a new obligation but “a practical device that flows from pragmatism and is based on compromise … it sets limits on the scope of exceptions.”

The three-step test is “a practical device that flows from pragmatism and is based on compromise” – Motion Picture Association, speaking on a treaty about cross-border books for the blind.

“Countries that ratify and implement this instrument, where necessary, will create new exceptions in their laws,” he said. Those exceptions are defined by the three-step test, which “does not exist in a vacuum and is not some horrible device that is imposed on people.” It functions now at the international and national levels, the MPA representative said, and although is it not invoked often, “when applied works well and provides solutions.”

Blind Persons Stress Access Above All

The World Blind Union said that the vast majority of blind and visually impaired people “live in poverty and have limited access to education.”

“This is a serious issue,” he said, and “the idea of being able to have materials in an accessible format will not only provide leisure reading but the real core of education and with it the opportunity for a full and normal productive life.”

“We are not copyright experts and do not have particular views on the three-step test, or fair dealings, or fair use, except to the degree that whatever language is agreed facilitates the practical implementation of a system that allows the maximum access to materials by blind and visually impaired people throughout the world,” he said.

The National Federation of the Blind based in the United States said “we don’t wish any particular feelings towards us, pity or anything else, what we seek is opportunity, opportunity to vast amount of information that you, as sighted individuals, have every day,” calling delegates to work on core issues.

Libraries Have Faith in Market, Authors Want Support

The Library Copyright Alliance from the US said that with respect to commercial availability “surprisingly it seems that we, the libraries, have a greater faith in the operation of the market than our friends in the publishing industry.”

According to the library group, if works are truly commercially available on reasonable terms and prices, publishers will always be the primary source for people with print disabilities who will only turn to authorised entities if the works are not commercially available. It is important, he said, that the three-step test does not become “an additional filter through which any exception that is developed here has to pass.”

The representative of the British Copyright Council also providing comments on behalf of the International Authors Forum, herself an author, asked WIPO delegates to “remember that there are writers in every one of your countries, both sighted and visually impaired.”

“We want to be as widely accessible as possible,” she said, and “we would like every one of the 280 million that we have heard of to be able to access our works and to take both pleasure and instruction from them.” However, she said, authors want to be “sufficiently supported so we can go on providing you with all the works that you need ”

James Love of Knowledge Ecology International told Intellectual Property Watch later that “so far the US and the European Union have been acting as though they were working for the Motion Picture Association of America and other publishers.”

“The notion by some that Hollywood owns the White House on copyright issues is hard to reject here,” he added.

“That the MPAA and other entertainment companies are so heavily engaged here is surprising, because the White House already demanded that audiovisual works be excluded from the agreement,” Love said.

KEI published a paper titled ” Why do US and EU trade negotiators hate the Berne Copyright Limitations and Exceptions?”