WIPO Negotiations on Visually Impaired Instrument Show Slow Progress

24 October 2012

Negotiations aimed at improving access to copyrighted material for the visually impaired and print disabled continued making progress toward developing a final legal instrument last week. However, the discussions, which were mostly held on an informal level, were also marred by persistent disagreements between World Intellectual Property Organization (WIPO) members.

The goal of the 17-19 October intersessional meeting of WIPO's Standing Committee on Copyright and Related Rights (SCCR) was to whittle down an already heavy text fraught with brackets in order to possibly convene a diplomatic conference - the highest level of WIPO negotiations - on a potential treaty next year. The meeting comes on the heels of the WIPO Assemblies' recent approval of a work plan to intensify negotiations "with a view to conclude or advance substantially the text-based work" before the next SCCR. (See Bridges Weekly 10 October 2012)

At the outset of last week's meeting, WIPO Director-General Francis Gurry urged delegates to work with "a sense of urgency" and conclude negotiations in order to have a diplomatic conference in 2013.

While the latest text shows agreement in some areas - such as the definition of an ‘accessible format copy' and exceptions and limitations in national copyright law - other topics remain unresolved. Importantly, member states - namely Brazil, India, the EU, Nigeria, and the US - will work on ironing out language relating to the nature and scope of WIPO member obligations under the proposed instrument prior to the next meeting of the SCCR.

As it stands, the current text has not clarified yet whether the instrument would be a legally binding treaty or if it will take the form of a softer option, such as a joint recommendation. Current difficulties, however, appear to indicate that concluding a treaty is still the ultimate goal of negotiators.

"Negotiations went fairly well," Nigerian Ambassador Umunna H. Orjiako told Bridges. He added that, though Nigeria "encourage[s] good faith negotiations from all member states... any outcome that does not yield an unencumbered, qualitative, and meaningful treaty for our teeming blind community, is not in good faith, and will not be acceptable."

Authorised entity, ‘three step test' among major disagreements

One issue that resurfaced from the last SCCR was that of "authorised entity," which defines who will be allowed to make, obtain, and supply accessible format copies of works. (See Bridges Weekly 25 July 2012) Members were unable to reach a compromise on this topic, particularly regarding which authorised entities would be able to carry out cross-border exchanges and how those would be monitored.

Another big source of contention was that of ‘the three-step test', a provision which sets limits to the exceptions and limitations of a copyright holder's rights. The concept dates back to the Berne Convention for the Protection of Literary and Artistic Works and is also included in the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and in the more recent Beijing Audiovisual Performances Treaty.

In a statement, a group of industry organisations argued that the instrument should reaffirm the three step test, rather than try to "change its interpretation" as some delegations are allegedly trying to do, according to Alan Adler from the Association of American Publishers.

"Negotiators should take all of the aggressive 3-step language out of the agreement, replacing it with a simple statement that the treaty is without prejudice to other obligations countries may have under other copyright to trade agreements," James Love from Knowledge Ecology International - a Washington-based NGO - said.

No agreement was reached at this intersessional meeting on the issue.

WIPO members deviating from original goal, civil society says

Civil society groups following the WIPO talks have argued that some of the provisions currently being discussed might ultimately limit access for blind persons, rather than facilitating it. Some of the restrictive provisions being tabled by the EU, for instance, appear to be "holding blind people's access hostage" in order to introduce new copyright enforcement norms, David Hammerstein, the senior advisor on intellectual property for the Transatlantic Consumer Dialogue in Brussels, and KEI's Love said.

For instance, Hammerstein noted that one particular proposal by the EU would impede developing country organisations from accessing digital material, giving them access only to paper formats. Another proposal, Hammerstein said, would "prohibit any exception to copyright if the formatted text (for example an e-book) was ‘commercially available' somewhere in the world, regardless of the affordability or the accessibility of the product in a poor country."

A number of civil society groups also voiced their disappointment with the fact that negotiations were mostly held in informal negotiating groups, which civil society was not allowed to attend. The exclusion, Hammerstein argued, showed an "outrageous and a clear lack of democratic transparency."

Next steps

Delegates will continue their text-based work at the next session of the SCCR from 19-23 November. An extraordinary session of the WIPO General Assembly will be held in December to evaluate the text and make a decision on whether to convene a diplomatic conference in 2013.

ICTSD reporting; "WIPO Members Inch Toward Visually Impaired Treaty," IP WATCH, 19 October 2012.

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