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

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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.

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  1. […] 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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