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    In UN Talks On Treaty For The Blind, Concern About Heavy Focus On Rightholders’ Interests

    Published on 20 April 2013 @ 9:21 am

    By , Intellectual Property Watch

    The treaty currently being discussed at the World Intellectual Property Organization is of prime importance for blind and visually impaired people who are expecting that negotiators will engineer a treaty that is workable in the real world, they say. But too much focus on the right holders concerns might endanger the utility of such a treaty, according to the representative of a blind persons’ organisation.

    Dan Pescod, who leads the World Blind Union’s European campaign for the treaty, described for Intellectual Property Watch the main concerns of blind and print disabled people as delegates are trying to find solutions to address obvious and tenacious differences (IPW, WIPO, 19 April 2013). The aim of this three-day meeting is to make enough progress to move to a high-level diplomatic conference in Marrakesh, Morocco in June.

    Not surprisingly, the issue of commercial availability rates high on the list of concerns. Several articles of the draft treaty text include a request for “authorised entities” before making available a book in accessible format, to check if that particular book is not already commercially available at reasonable conditions on the local market.

    In the text, the issue of commercial availability appears in Article C (National law limitations and exceptions on accessible format copies) and in Article D (Cross-border exchange of accessible format copies) and subsequently in Article E (Importation of accessible format copies).

    The World Blind Union (WBU) accepts the need for a clause on commercial availability in Article C that will allow countries which already have such a clause in their national law to keep it, Pescod said. “What we have a big issue with, and reject, is a clause for commercial availability in articles D and E,” he said.

    Commercial Availability Seen As Unworkable

    “That won’t work practically for us,” he said. For example, if a blind persons’ organisation in the United Kingdom made a book accessible, such as Harry Potter, in audio format, and if a blind person in India wants to order that audio book from that organisation, “according to the current checks that are being proposed on commercial availability in the context of cross-border exchange,” the organisation would have to check if that particular book is commercially available in India, in that particular format, at a reasonable price before it can be sent to that Indian blind person.

    This organisation would also have to do this check for every book requested from it and for each format, “That’s unworkable!” he said.

    Taking another example, Pescod cited Bookshare, an online library for people with print disabilities. Bookshare have an online portal where an individual who is a member and is print disabled can find a book and download it in an accessible format. “Imagine somebody in India goes to the site, wants a book in audio format,” he said, then “another person that wants the book in large print, and yet another person who wants a different book.” Each time they click on Bookshare to download that book, which they are entitled to do under the Bookshare system,” the system would have to be clever enough to automatically know whether those books are commercially available in India, in those formats, before it can accept the download from the user,” he said. “How on earth would that work?” he asked.

    Realistically, he said, how could the Bookshare system “know what is on the market and how would they judge what a reasonable price is?” Reasonable price is among the criteria of commercial availability in the present draft treaty.

    It could be argued in all probability that this book would not be available in India because very few books in special format are available in that country so “you could make an assumption ” that the books from the UK organisations would not be commercially available in India and that organisation could be tempted to overlook its obligation, he said, “but in reality, the blind people organisations that I have spoken to would not want to take the risk” of being sued if commercial availability is enshrined in the law.

    Theoretically, some bigger organisations would have more resources to do some checks than smaller organisations, but they still do not have enough resources to do that, he said. In developing countries the issue is even more crucial, he said, citing a small organisation in Argentina that “would want to send books to Panama for example.” This organisation does not have any resources to check the commercial availability,” so if this is a requirement of the treaty, it will not be able to send those books.

    “What you really have are clauses which have been put in (the treaty) to reassure publishers so that nothing terrible will happen to their books and undermine their market,” Pescod said. “They never really sold to this market. They worry about a market which they have never bothered with and they suddenly are interested in this market.”

    Special format copies are mostly provided by organisations for the blind, according to Pescod, which act as their own publishers, sometimes with a copyright exception, although publishers in rich countries are starting to develop books that are more accessible, he said. “We want them to do that.”

    “We don’t want to use a treaty if we can avoid it,” said Pescod. “We would rather have books in the mainstream market that everybody can use.”

    If books are on the market, visually impaired and blind people would just buy them, he said. In some developing countries, there is such poverty that nobody can buy a book, whether they are visually impaired or not, he said. That, however, is a poverty issue, although the WBU recognises that this is a big issue, he said. In particular in the education sector, where blind people cannot have access to special format text books.

    Right of Translation

    “We did not come to WIPO seeking a right of translation,” he said, and it was not in the original WBU proposal. “However, we understand that they are certain countries and India is a good example where they have such massive diversity of languages” that it is a big issue for them as well as some African countries. “We are happy for there to be a permission for translation within this treaty.”

    Technological Protection Measures

    Technological protection measures (TPMs) are used by rights holders to prevent people from taking their content without authorisation. “We don’t have an ideological opposition on TPMs in themselves.” However, “we want to make sure that TPMs don’t block legitimate access to books for blind people. That is our only concern,” he said, adding, “TPMs can do that at the moment.”

    Some blind people have ordered books on an online platform and downloaded the books into their computer to read and when they clicked on it, they found that the reading out loud function of the book, which would allow them to hear the book through a screen reading software is disabled because of a TPM on the book, he explained. “It’s like downloading a blank book.”

    If a book is obtained through an exception, there should not be TPM to block access to content, he said, adding that mostly this was not done intentionally but exists for a variety of reasons, including the option being disabled by default.

    The WBU would like some wording in the treaty that would request that TPMs do not block access to blind people, for “legal reassurance,” on any book that comes under the exception created by the treaty. Taking the same example of a UK organisation sending a book to India, he said that if the UK organisation knows there is a TPM, they would need to remove it and have the technology to do it but if the treaty does not allow them to take this action, they would be infringing the law if they sent the book to India.

    A Treaty Focussed on a Small Set of Users

    This treaty is literally an exception, Pescod said, in the sense that in WIPO among the treaties that have been negotiated this one is about access for users. The main concern of the WBU is that the focus of most of the discussion is around how to reassure rights holders and relatively little is focused on ensuring access, he said.

    “We are not against right holders,” he said adding that their interest is already addressed in copyright treaties. The treaty being drafted this week is “only after all interpreting a flexibility already allowed in copyright treaties,” he said. “It is easy to forget that this needs to work for people on the ground,” he said.

    “We want to get to Marrakesh and get a treaty, but if we get a treaty that does not work that’s worse than getting nothing,” he concluded.

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

     

    Comments

    1. Test Of Political Flexibility In Final Lap For WIPO Treaty For The Blind Next Week | Intellectual Property Watch says:

      [...] According to the World Blind Union, some key concerns have to be resolved so that the treaty can work on the ground, “which is the only criteria for judging the treaty.” Dan Pescod, who leads the World Blind Union’s European campaign for the treaty told Intellectual Property Watch that the WBU concerns remain unchanged (IPW, WIPO, 20 April 2013). [...]


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

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    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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