WIPO Blind Treaty Text Shapes Up On Last Day; More Drafting In April

A week of arduous negotiations and doubts at the World Intellectual Property Organization about progress on a text to become a treaty for the benefit of visually impaired people was concluded positively yesterday with a sigh of relief by most delegations, and observers. A new text was issued and even though most deemed that crucial issues were addressed, some are outstanding and delegates will meet again in April to continue their drafting efforts.

The special session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) met from 18-22 February in the run-up to a diplomatic conference decided by an extraordinary General Assembly in December. The diplomatic conference, a highest-level treaty negotiation, will be held in Morocco from 17-28 June. Delegates were expected to bridge remaining gaps and produce and updated version of the text for consideration of the diplomatic conference.

The new text [pdf] follows two updated versions of the original text [pdf] ((IPW, WIPO, 19 February 2013, and IPW, WIPO, 21 February 2013) in which main changes were mostly the addition of footnotes.

In the 22 February version, some substantive changes can be noted. A General Clause has been added after the preamble to state that nothing in the treaty “shall derogate from any obligations that Contracting Parties have to each other under any other treaties, not shall it prejudice any rights that a Contracting Party has under any other treaties.”

Article B-bis on the nature and scope of obligations, present in all previous versions this week, has been deleted. The same fate was bestowed on Article E-bis, which listed two alternatives relating to conditions to granting exceptions and limitations on the grounds of the so-called three-step test. Article I on the interpretation of the three-step test has also been deleted.

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

Developed countries had a keen interest in having a reference to the three-step test in the treaty text so as to protect the interests of their publishing industries, but developing countries were reluctant to include it for fear it would weaken the treaty and diminish its scope. This issue has been bitterly debated between the two sides but at the end of the day, what has been described by sources as compromise language appeared in the new text.

The conditions of the three-step test now stand in the implementation provisions under the title “Respect for copyright provision”. This provision lists the treaties which contains reference to the three-step test and the language used in each of them: the Berne Convention for the Protection of Literary and Artistic Works, the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the WIPO Copyright Treaty.

Some concern was expressed by Knowledge Ecology International, who told Intellectual Property Watch that the language of a footnote (footnote 10 in Article 10.2) in the WIPO Copyright Treaty was missing from the language appearing in the provision. A developing country source said that from a legal point of view, the reference to Article 10.2 of the WIPO Copyright Treaty in the “respect for copyright provision” of the new draft treaty text encompasses the footnote included in the article. Footnote 10, whose language is not reproduced in the provision, refers to limitation and exceptions in the digital environment.

Countries to Reconvene in April to Continue Drafting

The draft conclusions [pdf] of the special session were approved with two amendments. One amendment is the addition of the reference to an appendix document. The appendix document will gather all the footnotes, which have been added to the text along the week, and which were to be deleted from the text should no agreement be found on them by Friday 22 February.

It was also asked that the language of paragraph 3 (b) of the draft conclusions be amended so as to refer to the treaty in broad terms and not describe it with a specific name (a treaty to facilitate access to published works by visually impaired persons and persons with print disabilities).

Although all delegations that took the floor lauded the positive last day of the meeting after a very difficult first few days, they also agreed that more work was needed to ready the draft treaty text for final negotiations.

Member states decided to convene an additional informal session of the SCCR to take place on 18-19 April and a special session of the SCCR to take place on 20 April to be followed by a meeting of the preparatory committee of the diplomatic conference.

The preparatory committee that was planned for the 18-22 February special session was swiftly held after the adoption of the draft conclusions in the evening of the 22 February.

Some Remaining Issues

Remaining issues, according to several developing countries delegates, are mainly found in Article D on cross-border exchange of accessible format copies. The cross-border exchange of accessible format copies is at the heart of what the treaty was intended to facilitate. Among issues to be addressed is commercial availability, in which authorised entities should made sure that prior to the making available or distribution of the accessible format copies, no commercially available copies in accessible format are on the market, under reasonable terms.

All delegations that took the floor at the closing of the session expressed relief and said that after a difficult week, progress was accomplished to the price of long evenings of discussion and compromises being made.

However, some said, and in particular developed countries, that more work needs to be done on the text. Group B developed countries said significant progress was made and some breakthrough achieved on difficult issues but that some still needed to be solved. The European Union delegate said the EU would continue to work to achieve an appropriate solution without prejudicing the rights of authors in what remains “a long road to travel in a short time.”

The World Blind Union thanked delegates for their “sincere efforts” on behalf of the visually impaired and blind community, and said they understood that some issues were very complicated and technical but the spirit of the week “gives us great hope.”