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No Decision On WIPO Treaty For Blind Persons Misses ‘Golden Opportunity’

by , Intellectual Property Watch 12 Comments

Member states at the World Intellectual Property Organization late Thursday night were unable to reach agreement on a draft chair’s conclusions text summarising a four-day WIPO copyright committee meeting, crashing the prospect of swift progress on improving international access to literary material for the visually impaired.

“A golden opportunity was bashed,” said Christopher Friend of Sightsavers International.

In an unusual procedure, the 21-24 June WIPO Standing Committee on Copyright and Related Rights (SCCR) had to adjourn its session without approval, specifically on three paragraphs of the draft conclusions.

This session of the SCCR was expected by many to open the way to an international agreement on copyright exceptions and limitations for the visually impaired. The meeting also addressed the protection of broadcasting organisations and the protection of audiovisual performances.

The most debated issue of this session of the SCCR was copyright exceptions and limitations, with four proposals submitted by delegations (IPW, WIPO, 22 June 2010). Brazil, Ecuador, Paraguay and Mexico suggested the adoption of an international treaty to facilitate access for the visually impaired persons (based on a World Blind Union proposal), the African Group proposal offered a broader perspective, the United States proposed a “draft consensus instrument,” and the European Union has suggested a draft joint recommendation.

This profusion of proposals was taken by participants as a sign of heightened interest in the issue and recognition of the need for exceptions and limitations for visually impaired persons, a subject already debated at length in previous SCCR sessions. Most countries have recognised the need for an international legal instrument, according to sources.

The African Group, which has long expressed interest in including broader exceptions and limitations, this week submitted a proposal including exceptions and limitations for education and research institutions, libraries, and archive centres.

A member of the African Group told Intellectual Property Watch that their proposal reflected what they had stated in previous sessions in which they had called for a holistic approach to the access problem, not limited to the visually impaired, but working towards facilitating broader access to knowledge in developing countries.

Proponents of the original proposal to move first on a treaty for reading disabled persons have argued that this does not preclude also negotiating on other limitations and exceptions afterward.

With four proposals based on different approaches to tackle, country delegates tried to find solutions to include all aspects described in the proposals. According to sources, some countries proposed to line up all proposals in a comparative exercise. The World Blind Union and Knowledge Ecology International (KEI) provided a comparative table on 23 June.

In negotiations, views diverged on which type of instrument best suits the problem of limited access to print material for the visually impaired. Brazil, Ecuador, Paraguay and Mexico, and the African Group, have asked for a treaty, while others, such as the Group B developed countries would prefer a simple recommendation of the WIPO committee.

A member of the US delegation told Intellectual Property Watch that the United States thought the fastest way to produce changes was to adopt a joint recommendation, but that its position was without prejudice to a prospective treaty.

Advocates for the visually impaired strongly favour a legally binding instrument with a firm timeframe.

“Trusted” Intermediaries

The EU and US proposals contain the concept of trusted intermediaries, entities that would need the approval of the right holders and visually impaired representatives to be able to import or export special format copies of works, according to the EU and US proposals. A Group B member told Intellectual Property Watch that the issue of cross-border shipments and the trusted intermediary were considered as key points.

Treaty advocates raised concern that this obligation to link the trusted intermediary requirement to the ability to import or export special format copies could limit the scope of copyright limitations and exceptions,

According to a member of the International Publishers Association, the international lawful exchange of digital copies is at the heart of the publishers’ business. The idea that works will arrive first under a copyright exemption before the authors and publishers enter the export market “is without precedent,” he told Intellectual Property Watch. This is rushing ahead of the market, he said.

But special format copies are not comparable to a regular edition of a work, said David Hammerstein of the Transatlantic Consumer Dialogue, as audio versions are fast mechanical computerised voice almost unusable to untrained ears. “This is a flexing of muscles of publishers,” he said, “who want to show their dominant position.”

Late Night Disappointment

Although the session started at a high pace and the spirit of participants seemed geared toward finding a workable agreement, the last day came as a dissonant note.

The difficulty appeared to arise in aggregating the contents of the four proposals on the table. Veteran Chair Jukka Liedes of Finland submitted some draft conclusions that were discussed well into the night without success. Liedes also presided over efforts earlier in the decade to negotiate a treaty on broadcasters’ rights which collapsed in 2007.

At the heart of the lengthiest discussions this week was paragraph 19 of the conclusions on exceptions and limitations. The paragraph requested the WIPO secretariat to prepare a comparative table of the four proposals and organise informal consultations in Geneva. It also stated that exceptions and limitations for visually impaired persons as well as for educational and research institutions, libraries and archives would be pursued following a global and inclusive agenda.

A number of countries took the floor to ask modifications to the paragraph, with the US submitting a first proposed change, later followed by a second one. None met a consensus and the African Group then introduced yet another proposed change that failed to satisfy the assembly. Concerns arising from the tentative documents were based on the fact that the comparative table should not be analytical, that there should be a differentiation in importance and in maturity between the visually impaired access issue and the other issues, while the African Group insisted that a holistic approach encompassing all issues was necessary.

Committee “Disgrace”

“The African Group should not hold blind people hostage to any other agenda,” KEI President James Love told Intellectual Property Watch afterward. “There were endless opportunities to establish a work program on education. Linking everything to disabilities was strategically, politically and morally wrong.”

“This is a disgrace for a United Nations meeting of this calibre to end like this,” said Christopher Friend of Sightsavers International. Without conclusions, everything is frozen, he said, adding, “We will have to start from scratch in November.”

Blind delegations came from around the world for a session most of them thought would be decisive, he said. The bright hope that was lit by the engagement of member states the first two days the issue was discussed was destroyed.

On 22 June, a string of non-governmental organisations presented their statements to the delegates. Among them were the World Blind Union (WBU) as well as many national blind federations, the Transatlantic Consumer Dialogue, the Association of American Publishers, the Electronic Frontier Foundation, and the Electronic Information for Libraries. Over 70 NGOs registered for this session of the SCCR, with approximately 50 taking the floor, according to WIPO.

The 50 interventions reflected a wide array of positions echoing discussions between WIPO member countries delegations, while informal corridor talks between delegates grew in intensity as the end of the session approached.

The chair called the meeting to an end in the face of the impossible conciliation of views on paragraph 19, but also on paragraphs 3 and 4 on the protection of broadcasting organisations.

The next meeting of the SCCR is scheduled to take place from 8-12 November.

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

Creative Commons License"No Decision On WIPO Treaty For Blind Persons Misses ‘Golden Opportunity’" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.

Comments

  1. Blind people are now like Africans… treated with disdain at the altar of profits… and it is Group B the rich countries who do not want to allow flexibilities… at a national level this discrimination will be liable for prosecution… the fuddy duddy human rights discourse can do little to address this… perhaps time to move on from fud dud and really protect and enshrine rights… actions taken by states that inhibit realisation of the rights of the differently abled should be banned… but then again… money goes before the vulnerable…

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  2. If the Treaty backers had offered IP interests a compromise such as limiting a first stage implementation to digital Braille files (which can also be read by DAISY players and screen readers) maybe there would have been a chance…

    Defining a qualified individual — as did the WBU / Brazil proposed WIPO 18_5 Treaty at Article 15 — who would be entitled to FREE copyrighted materials as one that would represent 1 out of every 6 or 7 persons on the planet hardly conforms with the TRIPS Article 13 ‘certain special cases’…

    … and maybe as much as ‘greed’ on the part of IP interests there was an over-reach on the part of Treaty backers.

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  3. There is always room for compromise. The point is how to judge this and what is the starting point? Given adequate protections for IPRs, have the dominant players in the industry addressed these ‘niche’ markets in a way that would obviate the need for a treaty? Or is it like compulsory licenses for ARVs? They will only concede on show of force? Some insight is needed that the interests of the ‘market’ do not necessarily coincide wiht the public interest. The move by the treaty backers is fully cognaisant of the fact that at national level in many developing countries (with lack of resources) a certain special could be made out. But like with so much in IP, what is legal is rendered illegal. Asking for flexibility is useful. But the point of departure must be clear. Incremental debasement is the name of the game with group B – just look at the Doha Declaration and read the analysis of Carlos Correa… if that is the case in life and death matters what do you think will happen in cases of access to knowledge?

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  4. When at least an initial Agreement or Treaty variation on the WIPO 18_5 proposal can be reduced to one page it very well may pass… The US Copyright Office Consensus Instrument came pretty d-mn close.

    I hear that Geneva is lovely in November.

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  5. In (an)intervention dated 24 June 2010, Turkey (a member of Group B), made (an) unequivocal, nuanced statement before the 20th session of the WIPO … SCCR of why a WIPO treaty for reading disabled persons is the most effective global solution to solve the problems of reading disabled persons in accessing protected works.”

    http://keionline.org/node/881

    As regards the comment in Turkey’s Intervention ” …there is a need for a practical and efficient solution…” a case could be made for an initial Treaty solution if it could be ‘efficiently’ contained on one page; such can be done if based on certain country’s existing copyright law and some of the ‘efforts’ mentioned in Turkey’s statement… Very practical.

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  6. The recent WIPO SCCR/20 Session ended without any resolution as to the Brazil group WIPO SCCR 18_5 Treaty or any accepted recommendations.

    The following is a one page alternative that might be sponsored by a WIPO Member or Members next session. The idea is that one has to start SOMEWHERE and the Brazil/WBU et al wanted it all in one heaping serving.

    As I am not an attorney, I borrow only from existing legal verbiage; in this instance a combination of the Copyright Law of Japan and the US Consensus Instrument offering at WIPO 20_10.

    To whit following any whereas-type Preamble:

    *********************

    (From the Copyright Law of Japan as amended through June, 2009 (CLEA Translation); Reproduction, etc. for the visually handicapped, etc.; Article 37.)

    Article 1

    (1) It shall be permissible to reproduce in braille a work already made public.

    (2) It shall be permissible to record on a memory, or to make the public transmission (excluding the broadcasting or wire diffusion, and including the making transmittable in the case of the interactive transmission) of, a work already made public, by means of a braille processing system using a computer.

    (and from US Consensus Instrument WIPO SCCR 20_10)

    Article 2

    Article 2a

    The exportation of special format copies for persons with print disabilities:

    Members should provide that the following shall be permitted without the authorization of the owner of copyright: The exportation to another Member of any Braille format copy of a published work.

    Article 2b

    The importation of special format copies for persons with print disabilities:

    Members should provide that the following shall be permitted without the authorization of the owner of copyright: The importation from another Member of any Braille format copy of a published work.

    **************
    That’s it. Game. Set. Match. No discussion of formats, eligible disability class, Trusted Intermediaries, individual WIPO Member country copyright regulations existing, proposed, or otherwise, etc. and — at least for now — no requirement for a new bureaucratic infrastructure.

    After all, who else will bother to use an ASCII Braille file? To read a Braille file requires special software and/or output devices; and Braille BRF (Duxbury) or ABT (Braille2000) files can be accessed by DAISY devices and screen readers…

    In using the wording of the US Consensus Instrument words have definitely been omitted but none have been added; the language from the Japan Copyright Section 37 is completely in tact.

    BTW I particularly note the declaration by Australia in WIPO SCCR 19_15:

    “…the treaty would benefit from being simpler and clearer in its objective and scope.” Australia

    I would would also note that as regards the declaration of New Zealand at 84. in WIPO SCCR 19_15, the ‘certain special case’ of the TRIPS Article 13 3-step test becomes Braille-itself rather than a definition of an eligible disability class.

    Thank you. JEM

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  7. The following is from WIPO SCCR 20_4 “Second Analytical Document on Limitations and Exceptions” as prepared by the WIPO Secretariat

    (quote) 12. As to who may undertake the acts, in about half of the countries with exceptions, there does not appear to be any limitation as to who may undertake the permitted activity under the exceptions. However, for some countries, there is a restriction as to who may make some types of accessible formats, usually formats other than Braille. These differences have presumably been devised to better control the making of the more sensitive types of accessible formats.

    As per ‘Sensitive’ types of formats, Mr. Allan Adler, VP Govt. and Legal Affairs, AAP, cautioned in his DEC 2009 US Copyright Office reply memo as to the WIPO SCCR 18_5 proposed Treaty that the proposed Treaty format definition would include:

    (quote) “specialized formats” that closely resemble or embrace standard technologies
    used by individuals without any disabilities, rather than special equipment that is not generally available to the
    public and “exclusively for use” by persons with print disabilities. (end quote)

    I believe my suggestions at 6. above also reflect the above comments. Thank you.

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  8. From the WIPO SCCR Secretariat’s 20_13 Draft Report issued 6 AUG 2010:

    187. The Delegation of Chile supported an international treaty as a necessary tool to help people with reading disabilities. Such instrument … should be a simple and effective instrument which could be fully applied in all countries without any bureaucratic obstacles that could hold up its application… With respect to the United States of America’s proposal, the Delegation pointed out that the preamble did not fit with what had been described in the Sullivan study which showed that less than half of the Member States had limitations and exceptions for visually impaired persons… The (Chile) Delegation (also) sought clarification regarding possible obstacles that might be involved in using trusted intermediaries for the implementation of limitations and exceptions, particularly in developing countries.

    I believe my Treay proposal at 6. above anticiapated the comments of the WIPO Delegation from Chile. Thank you. JEM

    Reply

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