WIPO Draft Treaty for Visually Impaired in Final Stages, Though Difficult Issues Remain

25 April 2013

Members of the World Intellectual Property Organization (WIPO) have made their last adjustments to a draft treaty on copyright limitations and exceptions for the visually impaired and print disabled, officials announced last week. However, sources say, some key issues still remain unresolved, with less than two months to go before the UN body begins negotiating the final version of the treaty.

The draft text was finalised at an informal session of the organisation's Standing Committee on Copyright and Related Rights (SCCR), and will form the basis for discussion at a diplomatic conference - the highest level of negotiations at WIPO - to be held in Marrakesh from 17-28 June.

Previous discussions had settled some contested issues, such as the planned treaty's definitions of beneficiaries and of "authorised entities" - in other words, those that will be allowed to make, obtain, and supply accessible format copies of works for visually impaired and print disabled persons.

However, the latest draft still contains various brackets - a fact that Morocco, which will be hosting the June conference, highlighted during last week's meetings. Egypt and the Group of Latin American and Caribbean countries (GRULAC) echoed this concern.

Other countries, however, reportedly took a more optimistic stance. "I am very happy," Indian delegate G.R. Raghavender said during the negotiations.

"This time the theme of access to publications for visually impaired people has been prioritised over discussions on the three-step test," Raghavender explained, referring to a provision that sets the boundaries for exceptions and limitations on copyrighted material.

No consensus on cross-border exchange, commercial availability

One of the major unresolved issues on the table involves the modalities of a cross-border exchange mechanism, which would regulate the international flow of accessible format copies across signatory countries.

Copyright holders - particularly publishers - fear that excessive flexibility within the mechanism would result in accessible format copies being used by readers and then re-sold to developed country markets, thus putting at risk their existing business models.

WIPO members also sparred over the issue of "commercial availability" clauses, which require authorised entities to make sure that there are no commercially available copies of the accessible works in the market prior to importing them.

"The negotiators have spent considerable time talking about the concept of commercial availability when, in practice, there is no reason why an authorised entity would spend its limited resources to duplicate works in formats that already exist," the World Blind Union (WBU) commented during the session.

Three-step-test sparks debate

Delegates also reopened the issue of the three-step test during last week's discussions, which had previously appeared closed. The concept dates back to the Berne Convention for the Protection of Literary and Artistic Works and is included in WTO's Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) and the more recent Beijing Audiovisual Performances Treaty.

The three-step test has been controversial in international negotiations and in national legislations. At the February session of the SCCR, members appeared to have reached a compromise on the issue with a provision that establishes the responsibility for contracting parties not to derogate from their existing obligations; specific references to the sections in other copyright-related treaties that refer to the three-step test were included. (See Bridges Weekly 27 February 2013) As of last week, the issue remained unresolved.

The debate also brought up a larger question of how this new treaty would apply to members that are not signatories of other agreements such as the Berne Convention, TRIPS, or the WIPO Copyright Treaty.

Stakeholders react

In a Huffington Post piece, James Love of Knowledge Ecology International (KEI) criticised the Obama Administration for allegedly yielding to the demands of the Motion Picture Association of America (MPAA) to "include changes that further restrict the use of exceptions, and which impose new risks for non-profit libraries for the blind that use the treaty."

Chris Dodd, CEO of the MPAA, rebutted the accusation. "Some groups have sought to use this meaningful treaty as a vehicle to weaken copyright and ultimately undermine the global marketplace WIPO is charged with strengthening," Dodd said.

Meanwhile, Fredrick Schroeder, First Vice President of the WBU, has urged negotiators to redirect their efforts towards tackling the "book famine," rather than using a "document that gives exceptions to reaffirm already existing copyright holders' protection."

ICTSD reporting; "WIPO Members Send Draft Treaty For The Blind To Marrakesh," IP WATCH, 22 April 2013; "Disney, Viacom and Other MPAA Members Join Book Publishers to Weaken a Treaty for the Blind," HUFFINGTON POST, 23 April 2013.

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