Time Ticking For WIPO Delegates On Copyright Exceptions Treaty

A new text has been the subject of negotiation today by a committee seeking to finalise a draft treaty providing exceptions and limitations to copyrights so that blind and visually impaired people have facilitated access to special format books. Delegates are seeking to find language through agreed statements as a way out of prickly issues.

An informal session of the WIPO Standing Committee on Copyright and Related Rights (SCCR), meeting from 18-20 April is trying to provide a cleaner text for adoption at a final, top-level negotiation in Morocco in June. Negotiations are continuing into the evening.

The treaty would be the first international treaty on limitations and exceptions to copyright, which has raised concern of copyright industry lobbyists who have showed up to this week’s meeting in force.

Delegates worked all day yesterday in informal meetings and this morning provided revised text [pdf] which shows some changes, in particular in Article C (National law limitations and exceptions on accessible format copies).

A primary area of contention in the treaty discussions is a set of clauses relating to commercial availability, seen by some as a result of a push to protect publishers’ interests. Commercial availability clauses, which appear in particular in Article C and D, provide a kind of limitation to the exceptions to be provided by the treaty.

The commercial availability clause in Article C4 of the draft text [pdf] from which delegates started working at the beginning of the session read “A Member State/Contracting Party may confine limitations or exceptions under this Article to published works which, in the particular accessible format, cannot be obtained commercially under reasonable terms for beneficiary persons in that market.” This section was entirely bracketed.

The same text is now without brackets in Article C4 of the latest version, but additional language has been added: “Any Contracting Party availing itself of this possibility shall so declare in a notification deposited with the Director General of WIPO at the time of ratification of, acceptance or accession to this Treaty or at any time thereafter.”

According to Michele Woods, director of the WIPO Copyright Law Division Culture and Creative Industries Sector, presenting the result of the first day of discussions, the first sentence of Article C4 is a permission to provide exceptions and limitations in situations when works are not commercially available but this is not a mandatory provision. However, those members who have this provision in their national law or decide to implement it in the future would be permitted to do so, she said.

Commercial availability clauses request that prior to the making available of an accessible format of a book, commercial availability of this particular book on the national market at reasonable conditions, such as price, should be checked.

The second sentence of Article C4, which is a new text, answers a transparency concern by making sure other member states are notified when provisions on commercial availability are changing, one way or the other, in a member country, by providing notification to WIPO through a declaration, she added.

According to sources, this rephrasing of Article C4 answers to some concerns of countries which already have commercial availability clauses in their legislation, such as the United Kingdom, which would be unable to sign or ratify a treaty without such a clause. That might have even prevented the European Union to sign it, according to a source.

Article C4 also has an “agreed statement” in a footnote stipulating that Article C4 is without prejudice to Article D and E. The footnote is bracketed showing work in progress, Woods said.

Article D (Cross-border exchange of accessible format copies) is what really could be considered as the core of the drafting exercise as it concerns on the one hand the main purpose of the treaty and on the other, the most contentious issue. The article was under discussion this afternoon as, according to a source, an agreed statement might be a way out of entrenched position.

Article E (Importation of accessible format copies) is also directly related to the subject.

According to Woods, the rights of translation, also in Article C (B), and still bracketed, was discussed with questions and different positions on what languages would be the subject of the right of translation, on which criteria to chose them, such as official languages recognised by national constitutions, languages used for educational purposes, languages that are not available commercially, or if all languages should be eligible.

Article F (Obligations concerning technological measures) was also discussed yesterday with still two alternatives inherited from the text that was adopted at the last informal meeting in February, with which delegates worked from yesterday (IPW, WIPO, 23 February 2013). Footnotes were however added to this paragraph, with one option to delete Article F and “possibly drafting an agreed statement on technological measures.”

An annex to the current draft text contains a note on Article F. This note is a proposal from the United States stating:

“It is understood that a Contracting Party may adopt such effective and necessary measures [only where] [provided that] [on the condition that] the actual or likely adverse impact of the Contracting Party’s law protecting technological measures on the beneficiary person’s lawful use of the work is established by credible evidence in a transparent legislative or administrative proceeding.”

The brackets refer to text that is not agreed and the note was being discussed by member states, according to sources.