Visually Impaired Instrument Sees Progress at WIPO Copyright Ctte

25 July 2012

Following ten days of intense negotiations, members of the World Intellectual Property Organization (WIPO) agreed to further advance discussions on a new legal instrument for copyright exceptions and limitations for the visually impaired and reading disabled. The WIPO copyright body also considered various proposals for a new instrument on exceptions and limitations for education and research, and adopted a working document containing proposals and comments towards an instrument on exceptions and limitations for libraries and archives.

The twenty-fourth session of the Standing Committee on Copyright and Related Rights (SCCR) met from 16-25 July in Geneva, Switzerland. The final conclusions of the meeting were not available as Bridges went to press Wednesday evening.

Talks on scope, definitions for visually impaired instrument

Text-based discussions for an international instrument on exceptions and limitations for visually-impaired persons and persons with other reading disabilities took centre stage during the ten-day talks, with countries once again butting heads over whether the instrument should be a binding one, like a treaty, or a soft law instrument in the form of guidelines or recommendations.

At the meeting, several developing countries called for a binding treaty, with the African Group in particular saying that such an outcome would allow "visually impaired persons, and people with physical disabilities, in Africa and indeed all over the fully exercise the right of access to information, education and knowledge."

Venezuela, for its part, said that a treaty is "the only way [WIPO] can be considered more human, more social, and inclusive."

The call for a treaty was echoed also by Australia, yet many other developed countries conspicuously left the word "treaty" out of their respective statements.

The EU said that it considers "that the way to make further progress on this file is to continue working on a solid text that enhances the availability of works in accessible format to visually impaired persons, while being mindful of the need to have effective protection of the rights of creators."

In that regard, David Hammerstein, the senior advisor on intellectual property for the Transatlantic Consumer Dialogue in Brussels, said putting roadblocks for a treaty would "be a democratic travesty" for the EU, given that  the European Parliament had expressed its support for the conclusion of a binding agreement in February.

During the discussions, differences also emerged over the definition of the term "work," which is necessary to ascertain what would fall under the instrument's scope.

Most members agreed to use the definition provided in the Berne Convention for the Protection of Literary and Artistic Works, which includes books but also other forms of literary, scientific, and artistic expression such as painting, architecture, and sculpture.

Some delegations - notably Argentina and the US - expressed support for a more limited reference to works "in the form of text, notation and/or related illustrations" on the premise that not everything in the Berne Convention "would actually ever be the target of efforts to make accessible format copies."

India, however, said that it did not understand why countries wished to restrict the definition.

"It means Article Two of the Berne Convention is not applicable to the blind. Are they not able to access those works mentioned there?"

Members also disagreed over the term "authorized entity," which defines who will be allowed to make, obtain, and supply accessible format copies of works. The EU proposed that an authorized entity be a governmental agency or non-profit organization that has "as one of its primary missions or activities to assist beneficiary persons by providing them with services relating to education, training, adaptive reading, or information access needs."

Developing countries said that a reference to primary missions "would exclude many existing institutions that can effectively assist beneficiary persons to have access to works."

Nigeria, Iran, and India proposed a more flexible definition referring to "a governmental or non-governmental entity, an organization, educational or teaching institution, including organizations enabled by governments that address the needs of persons with visual impairments/print disabilities."

Tuesday's draft conclusions said that discussions on the issue will continue "in the 25th session of the SCCR with a view to making a recommendation to the WIPO General Assembly in an extraordinary session for the convening of a Diplomatic Conference in 2013 to adopt an international instrument on limitations and exceptions for visually impaired persons/persons with print disabilities." However, this issue was also not yet decided upon as Bridges went to press.

Civil society groups, such as Knowledge Ecology International, note that this move appears to be geared at delaying a decision on a treaty until after the US presidential elections take place in November.

In a video earlier this week, Chris Friend from the World Blind Union urged US President Barack Obama to "use the influence of his office" to take a decisive stand on the issue.

"If we wait another year, another million books will be produced that will not be accessible to us," Friend added.

Exceptions and limitations for education and research

The SCCR also discussed a compilation of different text proposals for a new instrument on exceptions and limitations for educational, teaching, and research institutions. The document included a previous proposal from the African Group and two new proposals - one from Brazil and the other from Ecuador, Peru, and Uruguay.

Developed countries voiced a preference for a more flexible regime, leaving members free to decide which exceptions and limitations to use, as is already the case in the EU.

In EU law, "all exceptions have an optional character and allow for a degree of flexibility which is particularly important in view of the different legal systems and traditions of the 27 member states," explained the EU delegation.

Such a "patchwork system" in which some member states have certain limitations and exceptions, while others do not, "means that for purposes of education and research, those of us who are teachers like myself are never quite sure what we can access, what we cannot access," Nigerian delegate and copyright academic Ruth Okediji said.

"It is important to have a harmonized minimum mandatory approach," Okediji concluded.

Broadcasting organisations, libraries and archives

The SCCR also continued discussions on the protection of broadcasting organisations on a "signal-based approach," in which the instrument would only target the unauthorised interception and redistribution of broadcast signals. At stake is whether a recommendation will be made to the WIPO General Assembly to possibly convene a diplomatic conference.

Several developing countries and NGOs are concerned that extra protection for broadcasting organisations would add another layer of rights in addition to copyright protection and would go beyond a signal-based approach to include webcasting.

During informal negotiations, the SCCR chair prepared a single document showing all proposals on the table, which was adopted by members as a working document that incorporated all country comments.

WIPO members also formally adopted a working document - based on a proposal by the African Group - containing comments and textual suggestions towards an instrument on exceptions and limitations for libraries and archives. Substantive discussions on the topic have been postponed to the next session of the SCCR.

The WIPO General Assembly will meet on 1-9 October, while the next SCCR session is slated for November.

ICTSD reporting; "EU stalls treaty talks to allow copyright waiver for print disabilities," THE HINDU, 24 July 2012.

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