WIPO Copyright Body Fails to Agree on Instrument For Visually Impaired

30 June 2010

Talks in the World Intellectual Property Organization’s copyright committee broke down without agreement last Thursday, dashing hopes that member governments would soon be able to agree on how to loosen international copyright rules in order to ease access to print material for the blind and visually impaired.

Minutes before midnight on 24 June, WIPO’s Standing Committee on Copyright and Related Rights (SCCR) had to adjourn its four-day session without agreement on the draft conclusions put together by the chair, Jukka Liedes (Finland).

Once again exceptions and limitations to copyright protection – particularly to ease access to copyright-protected works for the visually impaired -- were the most significant issue discussed during the committee’s session.

Visually impaired people have in recent years complained about the low number of books available to them in accessible formats, even in the richest countries. This “book famine” has been exacerbated by the fact that copyright exceptions are national in scope, with the consequence that one book might be transcribed into Braille (or made available in other accessible formats, such as text-to-speech) on several separate occasions by specialised organizations in different countries, even if those countries share a common language.

In May 2009, Brazil, Ecuador, and Paraguay (later joined by Mexico) tabled a treaty proposal aimed at improving access by visually impaired persons to works under copyright protection (WIPO document SCCR/18/5). Based on a text prepared by the World Blind Union (WBU), the proposed treaty set out a range of conditions under which it would be permissible to make copyrighted works accessible to the visually impaired without the authorisation of the copyright owner. These conditions included requirements for copies to be supplied only to visually impaired people, on a non-profit basis. Blind people would be authorised to make copies of, say, a text-to-speech rendering of a book, but only for personal use. For-profit copies were authorised, provided notice and remuneration were given to the copyright holders.

At the current session, the four countries submitted a timetable for adopting the treaty, with negotiations through 2011 culminating in a diplomatic conference in spring 2012 to finalise an accord (WIPO document SCCR/20/9).

The United States responded by proposing a draft ‘consensus instrument’ (WIPO document SCCR/20/10) – unlike a treaty, this would be non-binding -- establishing guidelines for the exportation of special format copies for persons with print disabilities. As per its terms, WIPO members would be able to export physical Braille versions of published works made under exceptions to domestic law without authorisation from the copyright holder. Copies in other kinds of special formats would only be allowed to be exported to ‘trusted intermediaries’ -- a government agency or non-profit body dedicated to helping people with print disabilities that has the trust of both the reading impaired and copyright rights holders.

Trusted intermediaries also figured in a new proposal from the European Union for a ‘Draft Joint Recommendation’ instead of a treaty (WIPO document SCCR/20/12). Like the US proposal, it focused on the cross-border trade of works in accessible formats produced under copyrights exceptions. It too would require the import or export of such products to occur exclusively through trusted intermediaries.

At the opposite end of the spectrum in terms of the scope of limitations and exceptions sought was the African group. During past sessions of the SCCR, many African countries, while supporting an international treaty to address the needs of persons with print disabilities, had also expressed preference for a broader approach to copyright limitations and exceptions that would also address the needs of educational institutions and libraries.

Reflecting this preference, the African group presented at this session a proposal for a comprehensive treaty on exceptions and limitations for the disabled, as well as educational and research institutions, libraries and archive centers (WIPO document SCCR/20/11).

The African proposal was welcomed by organisations representing the library community such as the International Federation of Library Associations (IFLA) and Electronic Information for Libraries (eIFL). eIFL stated its support for the “holistic approach put forward by the African Group” and for “provisions that enable libraries .. to use works for education, research or private study… as many national laws don’t cater for such uses by libraries, and many more lack provisions for virtual learning environments.”

Both library groups, recognisng the urgency of addressing the situation facing persons with print disabilities, applauded the timetable proposal from Brazil, Ecuador, Mexico and Paraguay to adopt a treaty by 2012.

The World Blind Union (WBU) endorsed the notion of a timetable for adopting an international treaty instrument on limitations and exceptions to copyright protection for the blind and visually impaired, and suggested that it would be useful for member governments to develop a single proposal starting from the four drafts already on the table.

Knowledge Ecology International (KEI), a non-governmental organisation that favours a binding instrument, expressed strong support for the timetable submitted by Brazil, Ecuador, Mexico and Paraguay.

A different view came from the International Federation of Reproduction Rights Organization (IFFRO), a copyright rights holders’ group, which encouraged the adoption of a moderate approach as proposed by the US or the EU, arguing it offered prospects for quicker, more concrete results.

More generally, the meeting’s deliberations reflected significant fault lines between developing countries that want a treaty for improved access to copyrighted works by persons with print disabilities, and developed countries such as the US and EU, which prefer a non-binding instrument, at least at the moment.

The role of ‘trusted intermediaries’, central to the US and the EU proposals, remains contentious, with treaty backers concerned that giving major roles to such intermediaries could limit the scope of copyright limitations and exceptions for persons with print disabilities.

Despite these differences, countries seemed to agree on the need to work towards an agreement that took into consideration the four proposals. In the end, however, they proved unable to agree on the chair’s conclusions summarising the committee’s deliberations and suggesting a way forward.

The main point of disagreement centred on the wording of a request asking the WIPO secretariat to prepare a comparative table of the four proposals, as well as to organise informal consultations in Geneva to advance work towards an international consensus regarding copyright limitations and exceptions for persons with print disabilities. The suggestion for a comparative table came from Brazil, Ecuador, Paraguay, and Mexico; it received support from the WBU, KEI and some other groups as a means of helping WIPO members find a compromise.

As phrased, the draft conclusions stated that exceptions and limitations for persons with other disabilities, as well as for educational and research institutions, libraries and archives would be explored.
The US favored inserting language recognising the ‘maturity’ of considering limitations and exceptions for persons with print disabilities. However, the African group called for wording recognising ‘the need to concurrently address all the issues with a view to achieving progress on all of them’ – or in other words, that their concerns about educational institutions and libraries should be dealt with at the same time. Ultimately, the differences proved irreconcilable.

During its session, the SCCR also addressed two other longstanding issues on its agenda: the protection of audio-visual performances and the protection of broadcasting organizations. A number of countries called for renewed momentum to advance international discussions on the protection of performers in the audiovisual industry.

Discussion on all of these issues will continue at the copyright committee’s next session, from 8-12 November. It is likely that countries will meet informally before then to try to reach an agreement on how to proceed with limitations and exceptions concerning people with print disabilities.

ICTSD reporting.

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