October 19 WIPO negotiations on copyright exceptions for disabilities

After three days, the WIPO intersessional negotiations on copyright exceptions for persons with disabilities adjourned. On July 26, 2012, the SCCR negotiating text (SCCR 24/9) was 26 pages long, with 4051 words, and included 56 brackets, and 20 alternatives. The Final document on Friday (copy here) evening was 26 pages, with 47 brackets, and 22 alternatives.

Compare this to the November 4, 2011 version of SCCR/22/16, , "Proposal on an international instrument on limitations and exceptions for persons with print disabilities - Document prepared by the Chair," which was 9 pages long, and included no brackets and no alternatives, or the June 22, 2011, SCCR/22/15 Rev.1, "Proposal on an international instrument on limitations and exceptions for persons with print disabilities, document presented by Argentina, Australia, Brazil, Chile, Colombia, Ecuador, the European Union and its Member States, Mexico, Norway, Paraguay, the Russian Federation, the United States of America and Uruguay," which was 8 pages, with one bracket.

The reaction to the slow progress on the text was one of disappointment, but short of total despair. Among the factors contributing to the difficulty of simplifying the text were the expanded number of countries taking a serious interest in the negotiations, which one delegate said "made the negotiations more complex," and three fundamental differences in negotiating objectives.

1. Going big or small on beneficiaries, media and rights

The United States, backed by the European Union, seeks to limit the beneficiaries, formats, media and rights in the agreement. For example, the United States is aggressively opposing inclusion of translation rights, because these would exceed rights for non-blind persons in many countries, including the United States. The United States is also focused on excluding deaf persons or covering any audiovisual works, seeking to limit the scope of the exception as closely as possible to the US Chafee amendment -- which is an important legal instrument to expand access to copyrighted works in the United States, but by no means the only one. While the European Union is largely focused on protecting its publishers of books, journals and other text formats, and United States is more concerned about the film and television industries, and sets out as a giant red line anything that would extend the extensions to audiovisual works, even though the actual impact of such an exception on the entertainment industry would be zero in economic terms. Officially the RIAA and the MPAA both support a treaty. Unofficially they will try to kill it if the exceptions including audiovisual works .

A number of developing countries, including India and Ecuador, have focused the attention of the delegates on the related rights and audiovisual issue, emphasizing the need to clear performer rights in audio books, but also to adapt new multimedia educational tools to persons with disabilities. To better appreciate what is at stake, consider these two examples of distance education course. Harvard's ECON E-1600 Economics of Business, Lecture 1, which includes extensive use of powerpoint slides, and GOVT E-1062 Theories of Citizenship, Lecture 1, which makes extensive use of a blackboard. Both courses are audiovisual presentations, and both could be made more accessible to persons who are blind. Many education experts believe these type of Internet delivered education and training courses will become more important, in order to expand access to high quality education content, and to address the need for high productivity in the education sector.

The exclusion of persons who are deaf is a personal disappointment. My mother has been deaf nearly half her life, and she has benefited from new technologies to expand her access to audiovisual works. The lack of participation by deaf groups in the treaty negotiations over the past two years is a factor in their present exclusion. The U.S. delegation has made no serious effort to engage deaf groups on this issue, and neither Senator Leahy nor Senator Harkin have shown interest in the exclusion of deaf persons.

Many of the issues about which rights or beneficiaries are included could be resolved more easily if the text created minimum exceptions with a clear path for countries to be more generous to persons with disabilities. This would make it easier for countries like India to avoid taking a step backwards in its fulfillment of the rights set out in the UN Convention for the rights of persons with disabilities.

2. Unnecessary Fighting over the 3-step test.

There are highly technical and diverse views about the current application of the 3-step test to copyright exceptions, and an increasingly convoluted landscape of legal obligations on these issues. You have the Berne treaty, which was fairly limited, and which had the 3-step test side by side with more robust exceptions or liberal standards for many uses, including for the quotation right, education, news of the data, broadcasting, music compositions, etc. The WTO TRIPS agreement applies a 3-step test in some rights, but even then not in all cases, such as where the Berne provides alternative standards, and the TRIPS 3-step test is also balanced by Articles 1, 6,7,8, 40, and 44.2, and the LDC transition provisions. (The language in Article 6 of the TRIPS could be particularly important as a basis of exports of works). The language in newer treaties (WCT, WPPT, Beijing) and bilateral and regional trade agreements are often nuanced, sometimes have agreed upon statements, and have their own context and consequences relevant to dispute resolution or remedies. The EU is bound and determined to have a big negotiation over 3-step language in this treaty. This is huge mistake, and forces consumer groups to back push back with language such as the proposed Article I, or a set of new agreed upon statements. The 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.

And, if anyone tells you the 3-step test issue is a settled issue in international copyright, say fine -- then why do publishers want to add new text on this "settled" issue in this agreement?

3. Turning the Treaty for the Blind into ACTA or SOPA.

The European Union primarily, but with some backing from the US government, is holding blind people's access hostage in and effort to introduce new global enforcement norms for copyright. If you look at most copyright exceptions in most countries, the system works as follows. If the exception applies, an activity is not considered infringement. If you do something that is not protected by the exception, you are infringing, and all sorts of bad things can happen, depending upon your national laws for infringement, which include both criminal and civil sanctions. That is how the US exceptions work for blind persons, and that's how nearly all national exceptions work for blind persons. But here at WIPO, the EU wants page after page of detailed regulation of anyone who uses an exception. The expanding verbiage of the agreement is almost entirely about introducing ACTA and SOPA like enforcement provisions into this agreement.


Can WIPO get this done by December?

Earlier this year, the roadmap for the treaty for the blind looked very feasible. The apparent lack of progress this week was a shock to many, and an indication that WIPO may fail to reach agreement on a diplomatic conference in December. If so, this will be almost entirely due to a series of strategic failures by David Kappos, beginning in 2010, when Kappos turned the USPTO against quick progress on a treaty. By the end of 2009, when Susan Crawford and Andrew Mclaughlin in the White House and Arti Rai in USPTO backed a treaty, the U.S. aligned itself with treaty supporters, and isolated the European Union. The European Union was then ready to engage with treaty negotiations. But when Crawford and Rai left the administration, Kappos delegated the US leadership on this issue to Justin Hughes, who began guerilla warfare against treaty proponents -- trying to promote the WIPO "Stakeholder platform" negotiations with publishers, or a non-binding recommendation as the end game of the negotiations, engaging in surprisingly aggressive efforts to influence both NGO positions and alignments (trying to divide WBU and US blind groups, blind groups from KEI, asking DAISY Confortium to undermine WBU, etc), but also bullying some national negotiators -- at one time openly bragging that he had banned an African delegate from the negotiations. Part of the USPTO approach was to push negotiations into such deep secrecy that many important stakeholders and national delegations were either out of the loop or alienated from the process. At one point "secret" intersessional negotiations were so damned secret that the USPTO could not get the SCCR to accept a last minute paper as an alternative negotiating text. Eventually, as a series of highly strategic moves failed to bear fruit, the SCCR returned to the fundamentals of a treaty negotiations, but with the clock running out -- and are certainly running out on the first term of the Obama Administration.

That said, there is still a path to getting a December agreement on a 2013 diplomatic conference. The US and the Africa and Asian negotiators can compromise on some issues related to rights and beneficiaries, with a text creating minimum exceptions, but clearly permiting countries to do more if they want to -- Just as the TRIPS or Berne sets minimum rights, but allows more extensive rights.

As regards the 3-step test, the EU should reevaluate the benefits of having a big time brawl over this issue in a treaty for blind persons. What's the point of making this the forum for that fight? Look for language that protects the 3 step test where it exists, but don't fight over where it applies.

As regards the EU's ACTA/SOPA agenda for this agreement --- delegates will at some point have to move away from the highly regulatory approach found in the current text, to something closer to what the EU had endorsed in SCCR/22/15 Rev.1, a little more than year go, with some accommodations for the concerns of the Africa and Asia group. If the EU wants a treaty -- this will not be difficult to manage. But that raises the larger question, who really wants a treaty? The EU is sending hardine copyright people to the negotiations, and not bringing its human rights or disabilities persons. The EU acts as though they want to kill the treaty, but don't want the blame for doing so, or see it as an opportunity for a "win" for publishers promoting ACTA type norms.

In the USA, USPTO head David Kappos has chosen a treaty opponent as his lead negotiator. With Michelle Woods gone from the US Copyright Office (to WIPO, where she is staffing the negotiation), Maria Pallente seems to have turned to the right and is more aligned with publishers. USTR has always been a problem on these negotiations, and State is more concerned with the MPPA's completely non-existent economic stake in this negotiation than the human rights of millions of visually impaired blind people -- 90 percent of whom live in developing countries.

At this point, with the US Congress generally indifferent to the plight of blind people living outside of the United States, the nearly dysfunctional leadership of USPTO, and the firm grip of the publishers on the EU negotiators, it is important to raise the profile of the issue, particularly in news media.

What does the text look like?

There is a copy of the most recent version of the text below. I have pulled out a few sections to illustrate how the negotiations are going, and I'll add more later.

Definition of work

July 26 - 3 brackets

"work"
means a literary and artistic [or scientific] work within the meaning of the Berne Convention, [in the form of text, notation and/or related illustrations], whether published or otherwise made publicly available [in any media].

October 17 – 5 brackets

"work" [“the expression of literary and artistic works”]
means [a] literary and artistic work[s] within the meaning of Article 2.1 of the Berne Convention, [in the form of text, notation and/or related illustrations], whether published or otherwise made publicly available [in any media].

October 19 - 2 brackets

"work"
means literary and artistic works within the meaning of Article 2.1 of the Berne Convention, [in the form of text, notation and/or related illustrations], whether published or otherwise made publicly available [in any media].


"authorized entity"

July 26 - 8 brackets

"authorized entity":

means a governmental entity; a [non-profit] educational or teaching institution; [libraries;] or a non-profit organization, including non-governmental organizations and entities authorized or enabled by the governments [pursuant to national law in conformity with this [instrument/treaty]] that addresses the needs on a non-profit basis of beneficiary persons as one of its [primary] activities or institutional obligations, including providing them with services relating to education instructional training, adaptive reading or information access needs, in accordance with national law; and

[establishes and follows] [may maintain] rules and procedures
i) to establish that the persons it serves are beneficiary persons;
ii) to limit to beneficiary persons and/or authorized entities its distribution and making available of accessible format copies;
iii) to discourage the reproduction, distribution and making available of unauthorized copies [including by informing authorized entities and beneficiary persons that any abuse will lead to stopping the supply of accessible format copies]; and
iv) to maintain reasonable care in, and records of, its handling of copies of works, while respecting the privacy of beneficiary persons in accordance with Article H; in the case of an authorized entity that serves a rural or small population and does not distribute accessible format copies in electronic form for whom record keeping would constitute an undue burden such record keeping may be appropriately adjusted.

October 17 – 11 brackets

"authorized entity":

means a governmental entity; a [non-profit] educational, [or] teaching[,] [or library] institution; [libraries/public libraries;] or a non-profit organization, including non-governmental organizations and entities authorized or enabled by the governments; that addresses the needs on a non-profit basis of beneficiary persons as one of its [institutional obligations/missions or] [primary/legitimate] activities], including providing them with services relating to education instructional training, adaptive reading or information access needs, in accordance with national law; and

[establishes and follows] [may maintain] [its own] rules and procedures
i) to establish that the persons it serves are beneficiary persons;
ii) to limit to beneficiary persons and/or authorized entities its distribution and making available of accessible format copies;
iii) to discourage the reproduction, distribution and making available of unauthorized copies [including by informing authorized entities and beneficiary persons that any abuse will lead to stopping the supply of accessible format copies]; and
iv) to maintain reasonable care in, and records of, its handling of copies of works, while respecting the privacy of beneficiary persons in accordance with Article H; in the case of an authorized entity that serves a rural or small population and does not distribute accessible format copies in electronic form for whom record keeping would constitute an undue burden such record keeping may be appropriately adjusted.

October 19, 10 brackets, and 2 ?

"authorized entity":

[Authorized entity means an entity that is authorized or recognized by the government to provide education, instructional training, adaptive reading or information access to beneficiary persons on a non-profit basis. It also includes a government institution or non-profit organization that provides the same services to beneficiary persons as one of its primary activities or institutional obligations.]

[establishes and follows] [may maintain] its own rules and procedures
i) to establish that the persons it serves are beneficiary persons;
ii) to limit to beneficiary persons and/or authorized entities its distribution and making available of accessible format copies;
iii) to discourage the reproduction, distribution and making available of unauthorized copies [including by informing authorized entities and beneficiary persons that any abuse will lead to stopping the supply of accessible format copies]; and
iv) to maintain reasonable care in, and records of, its handling of copies of works, while respecting the privacy of beneficiary persons in accordance with Article H; in the case of an authorized entity that serves a rural or small population and does not distribute accessible format copies in electronic form for whom record keeping would constitute an undue burden such record keeping may be appropriately adjusted.
[v) An authorized entity carrying out cross-border exchanges of accessible format copies establishes and follows rules and procedures which enable the provision of anonymous and aggregated data relating to such exchanges for the evaluation, when appropriate, of their volume and periodicity.] [This provision shall not apply to developing and least developed countries, nor to governmental authorized entities, libraries or educational institutions.]]

In the case of an authorized entity that engages only in activities under Article[s] [C] [C and E], [as regards physical copies] items iii to v? iv to v? shall be discretionary.


ARTICLE B - BENEFICIARY PERSONS

July 26 - 2 brackets

ARTICLE B
BENEFICIARY PERSONS

A beneficiary person is a person who

(a) is blind;

(b) has a visual impairment or a perceptual or reading disability [or any other print disability], which [cannot be/is not] improved by the use of corrective lenses to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability; or

(c) is unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading,

regardless of any other disabilities.

October 19 - no brackets

ARTICLE B
BENEFICIARY PERSONS

A beneficiary person is a person who

(a) is blind

(b) has a visual impairment or a perceptual or reading disability which cannot be improved to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability; or1

(c) is otherwise unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading,

regardless of any other disabilities.


ARTICLE C - NATIONAL LAW LIMITATIONS AND EXCEPTIONS ON ACCESSIBLE FORMAT COPIES

July 26, 6 brackets.

ARTICLE C
NATIONAL LAW LIMITATIONS AND EXCEPTIONS ON ACCESSIBLE FORMAT COPIES

1. A Member State/Contracting Party should/shall provide in its national copyright law for an exception or limitation to the right of reproduction, the right of distribution, [the right of public performance], [the right of translation] and the right of making available to the public, [as defined in Article 8 of the WCT ] to facilitate the availability of works in accessible format copies for beneficiary persons as defined herein. The limitation or exception provided in national law should permit changes needed to make the work accessible in the alternative format.

2. A Member State/Contracting Party may fulfill Article C (1) by providing an exception or limitation in its national copyright law such that:

(A) Authorized entities shall be permitted without the authorization of the copyright rights holder to make an accessible format copy of a work, obtain from another authorized entity a work in accessible format, and supply those copies to a beneficiary person by any means, including by non-commercial lending or by electronic communication by wire or wireless means, and undertake any intermediate steps to achieve those objectives, when all of the following conditions are met:

1. the authorized entity wishing to undertake said activity has lawful access to that work or a copy of that work;
2. the work is converted to an accessible format copy, which may include any means needed to navigate information in the accessible format, but does not introduce changes other than those needed to make the work accessible to the beneficiary person;
3. copies of the work in the accessible format are supplied exclusively to be used by beneficiary persons; and
4. the activity is undertaken on a non-profit basis; and

(B) a beneficiary person or someone acting on his or her behalf may make an accessible format copy of a work for the personal use of the beneficiary person where the beneficiary person has lawful access to that work or a copy of that work.

[It is understood that a primary caretaker of a beneficiary person may assist that beneficiary person to undertake the activities...insert additional text]
3. A Member State/Contracting Party may fulfill Article C(1) by providing any other exception or limitation in its national copyright law that is limited to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.

[A Member State/Contracting Party may fulfill Article C(1) by providing any other limitation or exception in its national copyright law pursuant to Article Ebis.]

4. The Member State/Contracting Party may limit said exceptions or limitations to published works which, in the applicable special format, cannot be obtained within a reasonable time and at a reasonable price.

[A Member State/Contracting Party may confine limitations or exceptions under this Article to published works which, in the particular accessible format, cannot be obtained commercially under reasonable terms, including at prices that take account of the needs and incomes of beneficiary persons in that market.]

5. It shall be a matter for national law to determine whether exceptions or limitations referred to in this Article are subject to remuneration.

October 19 - 4 brackets, 2 alternatives

ARTICLE C
NATIONAL LAW LIMITATIONS AND EXCEPTIONS ON ACCESSIBLE FORMAT COPIES

1. A Member State/Contracting Party should/shall provide in its national copyright law for an exception or limitation to the right of reproduction, the right of distribution, the [right of public performance], [the right of translation], and the right of making available to the public as defined in the WIPO Copyright Treaty, to facilitate the availability of works in accessible format copies for beneficiary persons as defined herein. The limitation or exception provided in national law should permit changes needed to make the work accessible in the alternative format.

2. A Member State/Contracting Party may fulfill Article C (1) for all rights provided therein by providing an exception or limitation in its national copyright law such that:

(A) Authorized entities shall be permitted without the authorization of the copyright rights holder to make an accessible format copy of a work, obtain from another authorized entity a work in accessible format, and supply those copies to a beneficiary person by any means, including by non-commercial lending or by electronic communication by wire or wireless means, and undertake any intermediate steps to achieve those objectives, when all of the following conditions are met:

1. the authorized entity wishing to undertake said activity has lawful access to that work or a copy of that work;
2. the work is converted to an accessible format copy, which may include any means needed to navigate information in the accessible format, but does not introduce changes other than those needed to make the work accessible to the beneficiary person;
3. copies of the work in the accessible format are supplied exclusively to be used by beneficiary persons; and
4. the activity is undertaken on a non-profit basis; and

(B) A beneficiary person, or someone acting on his or her behalf including a primary caretaker or caregiver, may make an accessible format copy of a work for the personal use of the beneficiary person or otherwise may assist the beneficiary person to make and use accessible format copies where the beneficiary person has lawful access to that work or a copy of that work.

3. Alternative A: A Member State/Contracting Party may fulfill Article C(1) by providing any other exception or limitation in its national copyright law that is limited to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.

Alternative B: [A Member State/Contracting Party may fulfill Article C(1) by providing any other limitation or exception in its national copyright law pursuant to Article Ebis.]

4. The Member State/Contracting Party may limit said exceptions or limitations to published works which, in the applicable special format, cannot be obtained within a reasonable time and at a reasonable price.

[A Member State/Contracting Party may confine limitations or exceptions under this Article to published works which, in the particular accessible format, cannot be obtained commercially under reasonable terms, including at prices that take account of the needs and incomes of beneficiary persons in that market.]

5. It shall be a matter for national law to determine whether exceptions or limitations referred to in this Article are subject to remuneration.

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