To What Extent Can Global IP Rules Be Responsive To Public Interest Demands? The Case Of The Treaty For The Visually Impaired

By Ahmed Abdel Latif and Pedro Roffe, ICTSD

[Updated] To what extent can global intellectual property rules address in an effective manner the needs of the most vulnerable members of society? This is the key question with which member states of the World Intellectual Property Organization (WIPO) are faced as they prepare to meet next week for a diplomatic conference, in Marrakesh, that should result in the adoption of a treaty to facilitate access to copyrighted works by visually impaired persons and persons with print disabilities.

The Potential of a Win-Win Outcome

The treaty in question offers the possibility of a win-win outcome for all countries and stakeholders involved. It would signal, among others, the continued relevance of multilateralism. For WIPO, it would be an important achievement after the adoption of the Beijing treaty on audio-visual performances last year. It would also show that member countries can set aside their usual differences and address in earnest public interest problems of a recognized humanitarian nature. It would formally acknowledge for the first time, the inextricable relationship between the protection of intellectual property rules and human rights.

The Risks Posed by Unreasonable Demands

As the diplomatic conference unfolds the prospect for such a win/win scenario seems, however, compromised. Powerful lobbies and special interests are hardening their stances on some of the key provisions of the future instrument regarding issues like technological protection measures, commercial availability, the three step test, and cross-border exchanges of accessible format copies. If heeded, such demands could considerably weaken the effectiveness of the future treaty and its ability to address in a practical manner the needs of visually impaired persons for accessible format copies of copyrighted works. It is not unusual that attempts at striking a fair balance between effective protection and the larger public interest end up including cumbersome conditions that make their utilization difficult if not almost impossible. The example of the Berne Appendix (1971), with respect to access to educational material, remains a compelling one and should not be repeated.

What is the Measure of Success at Marrakesh? 

Against this background, the question of what is the measure for success at Marrakesh becomes a pressing one. WIPO member states should be wary of yielding to demands from special interests that could defeat the very aim of the treaty being considered, particularly in terms of the system of cross border exchange of accessible format copies it aims to put in place.

One concrete proposal to give comfort to all negotiating parties would be to include in the instrument a ‘review’ provision – in the vein of the TRIPS Agreement (article 71.1) – which would result in a review of the instrument in light of the experience gained in its implementation or in the light of any relevant new developments. Contrasting with the TRIPS experiment in this regard, the present case would be considerably more focused and compelling. [Note: TRIPS is the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights)

Ultimately, there should be less concern about the extent to which an international treaty on limitations and exceptions for visually impaired persons would constitute a ‘precedent’ in international copyright law. The central concern should be on reaching an agreement that effectively addresses the needs of visually impaired persons without unreasonable conditions and cumbersome procedures that would make the treaty functionally ineffective. This should be the sole measure of success of Marrakesh.

Lessons from Past WIPO Diplomatic Conferences

A diplomatic conference requires good faith engagement in negotiations but it doesn’t guarantee the conclusion, or entry into force of a treaty. In several instances, past WIPO diplomatic conferences failed to produce a treaty due to disagreements between member states and not necessarily along North-South cleavages. For example, at the 1991 Hague patent harmonization conference, the first–to-invent and the first-to-file system was at the centre of the dispute. At the 2000 conference on audiovisual performances, disagreement was on one single provision – dealing with the transfer of rights- prevented the adoption of the treaty. It took 12 more years to reach a consensus on this issue and the treaty was ultimately adopted at the Beijing diplomatic conference last year. Going back further in time, a major initiative to readjust the Paris Convention on Industrial Property to the needs of emerging economies failed to realize its objectives after six unsuccessful sessions.

The lesson for all those engaged in modernizing IP regimes is that failure in such diplomatic negotiations is a real possibility and should be avoided. At the same time, success should not be achieved at any cost, including by yielding to demands that might compromise the integrity and effectiveness of the future instrument.

An Important Opportunity that Should Be Seized

If the international copyright system does not get it “right” on this issue, its credibility might be seriously compromised. It would also be difficult, in practice, to move forward on any other front in WIPO’s copyright agenda, particularly the call to update the system to the imperatives of the new digital environment. This is an important and unique opportunity for the international intellectual property system to give a glaring demonstration of balance and inclusiveness.

Ahmed Abdel Latif and Pedro Roffe, are respectively, Senior Programme Manager and Senior Associate, Programme on Innovation, Technology and Intellectual Property at the International Centre for Trade and Sustainable Development (ICTSD).