Members of the World Intellectual Property Organization have completed work on a draft treaty on copyright exceptions for the blind and visually impaired and agreed to move to a diplomatic conference in Morocco in June. But the text contains many areas displaying the difficulty in easing cross-border access to materials for blind people while protecting copyright holders’ interests.

“This is the most important treaty in the history of WIPO,” an Indian delegate speaking on behalf of the Asian Group told fellow members at the close of a three-day negotiating session late Saturday night. For the first time, it will not be for rights, but rather for humanitarian reasons, he said.

An informal session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) was held from 18-20 April. The diplomatic conference (top-level political negotiation) will be held in Marrakesh, Morocco from 17-28 June.

The new draft treaty is available here [pdf]. A version for the blind and visually impaired is available here [pdf].

There is also a chair’s report [pdf] and draft report [pdf] of the preparatory committee for the diplomatic conference.

WIPO Director General Francis Gurry opened the day with words of strong encouragement for delegates to achieve some breakthroughs. It is unclear if these were achieved but members from all sides stated their commitment to finishing a meaningful treaty in Marrakesh.

The treaty is aimed at creating a copyright exception for accessible formats of reading material, though proponents of the blind have hoped it could extend to audible formats as well. The latest draft of the treaty is now 22 pages long, and contains dozens of brackets (more than 80 by one count).

Because of the large amount of unfinished work for the two week conference in June, members were exhorted to clean up the expanding text and keep the real beneficiaries in mind.

Some governments made suggestions on ways to use all available time in Morocco. Brazil proposed that in Marrakesh there could be simultaneous tracks to negotiate different aspects of the treaty. India proposed that the negotiations could carry through the weekend without a break during the two weeks. The US seconded the idea of dual tracks and suggested working lunches. Some members and the session chair said it is expected that informal consultations will take place in the two months from now until Marrakesh.

The Text

The draft treaty text reflects efforts by various sides to set up an instrument that would genuinely allow copyrighted works in a certain format to flow across borders in a controlled fashion for the benefit of a specific set of people.

In the draft treaty text there is a preamble, a general clause, definitions, an explanation of beneficiaries, and chapters on national laws on limitations and exceptions, cross-border exchange of accessible format copies, technological protection measures, and other issues, including annexes with many additional proposals.

The general clause states that “Nothing in this treaty shall derogate from any obligations that Contracting Parties have to each other under any other treaties, nor shall it prejudice any rights that a Contracting Party has under any other treaties.” But this was not sufficient comfort for some members, who have continued to add new proposals throughout the text reinforcing copyright protections in other treaties.

Perhaps the most discussed section was Article D on cross-border exchange, which also has numerous proposed notes in the treaty annex, under a “Respect for copyright provision.”

Michele Woods of the WIPO Copyright Division, started the last day with an update on work up to that point. Discussions had focussed on Article D of the draft treaty, on cross-border transfer provisions, which included discussion about commercial availability in countries, she said.

In that discussion, she said, it was raised that it is necessary to provide insurances and guarantees to countries which will be generally speaking exporters of accessible format works. This was seen in two contexts:

1) in terms of potentially providing those guarantees and insurances as an alternative to a commercial availability clause in Article D

2) to look at standalone provisions to address what has been called the “Berne gap” the situation where some countries that are likely to be recipient countries may not be members of the Berne Convention, the WIPO Copyright Treaty or the TRIPS agreement. The view is that there is a need to make sure that some guaranties are available in these countries if they are receiving accessible format files. It is not clear how many or which countries are not members of any of these treaties, but the concern is that if there is any, it not be able to become a transhipment point.

A large number of proposals about the Berne gap were reduced down to a few. An essential question throughout the text is whether to restate the so-called 3-step test found in various forms in other treaties. The 3-step sets a limit on the use of limitations and exceptions, making them harder to use by restricting distribution or making available of works, in this case accessible format copies. The steps essentially limit use to special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interest of the author.

Proponents see a need to ensure those limits are in place for their protection. Opponents argue that there is no universally accepted version of the 3-step test and that its inclusion here could have the effect of chilling use of this treaty by the intended beneficiaries.

Another area of contention has been attempts to restrict the treaty to works in accessible format that are not commercially available to beneficiaries in a market. Some proposals would put the responsibility on the organisations or users to ensure there is no violation of this principle.

There also is an effort to institute a procedure for checking on the use of the system, and possibly establishing a form of dispute settlement mechanism, which WIPO does not currently have, other than for internet domain name disputes. Proposals would require that the WIPO International Bureau collect data on cross-border exchange of accessible format copies.