Test Of Political Flexibility In Final Lap For WIPO Treaty For The Blind 14/06/2013 by Catherine Saez, Intellectual Property Watch 3 Comments Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)Starting next week, Marrakesh, Morocco, will be the site of a two-week high level conference expected to yield a treaty facilitating the international access to books for blind and visually impaired people. Stakes are high, not only for the beneficiaries, but also for the industry worried that the copyright system might be endangered by the new treaty, introducing limitations to copyright. [Update: a tentative timetable for the two-week negotiations has been circulated, available here (pdf).] Developed countries have tried to retain in the draft treaty text clauses that would protect this copyright system, while some developing countries have pushed for lesser attention to right holders. The World Intellectual Property Organization “Diplomatic Conference to Conclude a Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities” will take place from 17-30 June in Marrakesh. If the tone is optimistic from all stakeholders and diplomats engaged in the treaty negotiation, it does not belie some concerns on key issues that could not be solved during the meetings leading to the conference (IPW, WIPO, 22 April 2013). The treaty is expected to provide a regime of exceptions and limitations to international copyright law for the benefit of blind and visually impaired people. Delegates will work from a draft treaty text [pdf], which includes modifications agreed on by the informal session of the WIPO Standing Committee on Copyright and Related Rights (SCCR), held from 18-20 April. The treaty, which aims to facilitate the international sharing across borders of accessible format copies of books for blind or print disabled people, is expected to alleviate the “book famine” experienced by many of the estimated (World Health Organization) 300 million people suffering from such disability in the world. According to WIPO, “A WIPO survey in 2006 found that fewer than 60 countries have limitations and exceptions clauses in their copyright laws that make special provision for visually impaired persons, for example, for Braille, large print or digitized audio versions of copyrighted texts.” “Furthermore,” WIPO says in its dedicated webpage, “because copyright law is ‘territorial’, these exemptions usually do not cover the import or export of works converted into accessible formats, even between countries with similar rules. Organizations in each country must negotiate licenses with the rightholders to exchange special formats across borders, or produce their own materials, a costly undertaking that severely limits access by visually impaired persons to printed works of all kinds.” The treaty was first proposed by Brazil, Ecuador and Paraguay, in May 2009 (IPW, WIPO, 29 May 2009). Remaining Issues in the Draft Treaty Text Among issues remaining to be agreed upon in the draft treaty text, two are outstanding. One of them is the issue of commercial availability. This appears in the third paragraph of Article D (Cross-border exchange of accessible format copies). In the draft text, there are still three alternative wordings for this clause, which seeks to insure that special format books available under the exception created by the treaty are not already commercially available on the local market at a reasonable price. This clause has been opposed by some developing countries, in particular by the African Group, and supported by developed countries such as the European Union. Developing countries have said that this would unnecessarily burden already resource-constrained institutions, such as charities, and could eventually have a reverse effect than the one sought by the treaty. They also voiced concerns about the concept of “reasonable price” in relation to commercial availability. The other outstanding issue is the so-called three-step test. The language of the three-step test originally comes from Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works. It provides exceptions to the right of reproduction, stating that, “It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.” It also appears in the World Trade Organization Agreement on Trade-Related Intellectual Property Rights (TRIPS), in Article 13 (Limitations and Exceptions). The references to the three-step test currently appear in Article D.4 alternative A. It also appears in what was called a “cluster package,” which stands under an unspecified article titled “Article/s” (page 18). Under the heading “Respect for copyright provision” of this cluster package, stands a list of treaties including the test: the Berne Convention, the TRIPS, and the WIPO Copyright Treaty to which contracting parties applying the treaty should comply. Developed Countries Fear Undermining of Copyright Law Once declared settled by delegates, the issue of the three-step test has resurfaced in latest meetings. According to a developed country source, in favour of the three-step test, “a minority” of developing countries are seeking to introduce the concept of “fair use” into the treaty and put into question the international rules currently governing copyright. This could appear as a benchmark for future negotiations, the source told Intellectual Property Watch. An issue dubbed the “Berne Gap” has also been raised by developed countries. It was dubbed as the Berne Gap in reference to the first treaty introducing the notion of the three-step test, but in reality covers also the TRIPS and the WIPO Copyright Treaty. It refers to countries which are party of none of those treaties covering copyrights and how to ensure that those countries offer some guaranties if they receive accessible format work. A source from the African Group told Intellectual Property Watch that this issue of the Berne Gap should not be a pretext to reintroduce the three-step test discussion. He also said that a number of “new ideas” have been brought up by some countries, such as that the treaty should mention that it constitutes an exceptionality exception and should not establish a precedent. But he said this issue had not been discussed at all before and that this language would not be consistent with international law. It would be more important to focus on the remaining issues than bringing up new discussion elements that will create a diversion, the African Group source argued. Both delegates said they were optimistic about a favourable outcome of the diplomatic conference. “The Treaty Has to Change the Reality on the Ground” 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). Among the main issues for the WBU are the clauses on commercial availability which are deemed unworkable and could jeopardise the use of the treaty. Another is that the treaty must allow print disabled individuals, and not just authorised entities, to import accessible works directly from another country. As an example, Pescod said that Bookshare, which is a United States-based platform providing print material to visually impaired people, has a total collection of nearly 200,000 books. However, due do copyright laws and because a number of those books are made available under a US national exception, only some 75,000 of those books are available to United Kingdom users. This is a developed country example, he added, but this issue is even more crucial for developing countries where there is a lack of infrastructure to do the redistribution. Another issue is technological protection measures, which should not prevent the lawful access to works under the treaty provisions, according to the WBU. The group is also calling for the deletion of Article J (Cooperation to Facilitate Cross-Border Exchange), still under brackets, which, it says could ” become a second hurdle that entities must overcome before being allowed to use the treaty.” On the three-step test, Pescod said the debate on this issue risks undermining the whole negotiation and he voiced concern about the treaty getting “more complicated” and thus “less useable”. He suggested that the General Clause of the treaty, stating that contracting parties should not derogate from any other obligations they have to each other under any other treaties, should be sufficient to ease the concerns of some countries and right holders. Civil Society Wary of Private Interests; Industry on Guard Civil society has been arguing that private sector interests have been influencing the debate and the position of developed countries. Publishers and some other private sector actors have been worried that the treaty creates a precedent and undermine the rights of authors and creators. US-based non-governmental organisation Knowledge Ecology International, which has been a long-standing advocate of the treaty, has published a series of briefing notes on the upcoming negotiations. They also published a list of private sector entities that they say oppose the treaty. According to KEI, Business Europe, a Brussels-based corporate lobby group, sent a letter to EU Commissioners Michel Barnier and Karel De Grucht, opposing the WIPO treaty. On 21 May, some members of the European Parliament asked the European Commission to remove several conditions requested by the EU and other western countries in the treaty (IPW, WIPO, 22 May 2013). This week a representative of the European Union told Intellectual Property Watch that the EU did not have yet a publicly available position. The Motion Picture Association of America and the US National Federation of the Blind issued a joint statement on 30 May asking WIPO delegates “to get back to basics,” and in particular, “avoid addressing extraneous copyright issues not directly related to creating greater access to published works for the blind and print disabled” (IPW, WIPO, 30 May 2013). Jens Bammel, secretary general of the International Publishers Association told Intellectual Property Watch “We do consider it important that distribution, reproduction, making available of works across borders be covered by the same protection principles as they are in the treaties that deal with national treatment. A different treatment makes little sense.” “We are optimistic that there will be a treaty at the end of the diplomatic conference. We will contribute where we can to ensure that it enables persons with print disabilities to have equal access to works,” he added. The treaty has received support from a number of stakeholders, such as Europeana, Europe’s digital library, museum and archive, and academics. Brook Baker, from Northeastern University School of Law (US) wrote a paper on the “Challenges Facing a Proposed WIPO Treaty for Persons Who are Blind or Print Disabled.” Several petitions also have been launched, such as the White House petitions system “We the people” asking that the Obama administration “Side with the blind over obstructionist companies to secure a Treaty for the Blind that makes books accessible globally.” Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) Related Catherine Saez may be reached at email@example.com."Test Of Political Flexibility In Final Lap For WIPO Treaty For The Blind" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.