When I first heard David Mann representing the World Blind Union at the information session of November 2003 SCCR, call for the “creation of international agreements which would allow the unhindered transfer of accessible material created in one country to blind and partially sighted people in another country”, I did not know that this issue had been the subject of a WIPO/UNESCO report in 1983, which had then proposed Model Provisions Concerning the Access by Handicapped Persons to the Works Protected by Copyright.” I was also not aware that in 1985, the same UNESCO/WIPO Working Group included in the conclusion of their meeting the following recommendation:
Another solution to the dual problem of production and distribution is the suggestion to formulate an entirely new international instrument which would permit production of special media materials and services in member states, and with the distribution of those material and services amongst member states without restriction […] This solution is recommended on the grounds that it would solve both production and distribution problems by providing a legal mechanism for sharing materials and services for the handicapped around the world.
Today, we are no longer arguing over the existence of what Chris Friend, the Chair of the World Blind Union Global Right to Read Campaign calls the book famine. We know that people who are blind or have some visual impairment get less than 5% of what is published in accessible formats in developed countries and less than 1% in developing countries. Apparently, the argument now is over the kind of international instrument that is needed or that would do the job. Are we talking about a convention (i.e. a treaty), a recommendation or a declaration?
These are different types of standard-setting instruments. UNESCO explains some of the differences (unlike WIPO which does not really define any instrument anywhere on its website):
First, let’s read about the well-respected Declarations:
Declarations are another means of defining norms, which are not subject to ratification. Like recommendations, they set forth universal principles to which the community of States wished to attribute the greatest possible authority and to afford the broadest possible support. Many instances might be quoted, the first being that of Universal Declaration of Human Rights, adopted on 10 December 1948 by the United Nations General Assembly. […] Apart from the distinction just indicated, there is probably no difference between a “recommendation” and a “declaration” in United Nations practice as far as strict legal principle is concerned. A “declaration” or a “recommendation” is adopted by resolution of a United Nations organ. As such it cannot be made binding upon Member States, in the sense that a treaty or convention is binding upon the parties to it, purely by the device of terming it a “declaration” rather than a “recommendation”.
By the terms of the above-mentioned Rules of Procedure, recommendations are instruments in which “the General Conference formulates principles and norms for the international regulation of any particular question and invites Member States to take whatever legislative or other steps may be required in conformity with the constitutional practice of each State and the nature of the question under consideration to apply the principles and norms aforesaid within their respective territories” (Article 1 (b)). These are therefore norms which are not subject to ratification but which Member States are invited to apply. Emanating from the Organization’s supreme governing body and hence possessing great authority, recommendations are intended to influence the development of national laws and practices. […] In this connection, the General Conference stated at ifs twelfth session that “the General Conference also feels bound to draw attention once again to the distinction to be drawn between the obligation to submit an instrument to the competent authorities, on the one band, and the ratification of a convention or the acceptance of a recommendation, on the other. Their submission to the competent authorities does not imply that conventions should necessarily be ratified or that recommendations should be accepted in their entirety. .”
Finally, the certainly more binding instrument, the Convention:
International Conventions are subject to ratification, acceptance or accession by States. They define rules with which the States undertake to comply. […] This standard-setting procedure provides for the following stages: first a preliminary study of the technical and legal aspects of the question to be regulated at the international level. This study must be submitted for prior consideration to the Executive Board, whose responsibility it is to include the proposal for international regulation in the agenda of the General Conference. […] The General Conference considers the draft texts submitted to it and, if it sees fit, adopts the instrument.
It is thus no surprise that for decades copyright industries (publishers, music and film producers) have asked (and “received”) treaties or conventions such as the WCT, the WPPT and maybe soon ACTA? I cannot find “recommendations” nor “declarations” for them.
So for now there are 24 treaties administered by WIPO (and please note only 3 joint trademark related recommendations. ) And if you think treaties or conventions only address broad general interest… check out these two not so well-known treaties administered by WIPO:
- the Nairobi Treaty on the Protection of the Olympic Symbol adopted at Nairobi on September 26, 1981
- the Treaty on the International Registration of Audiovisual Works (Film Register Treaty) done at Geneva, on April 20, 1989
At least the Olympic Committee seems to be using (enjoying?) its treaty but who has heard (and used) the Film register treaty?
Can someone really honestly explain why would people who are blind or have visual impairments want and get less than the Olympic Committee or the film register industries? The main argument is that it is easier. It’s a “low hanging fruit” and it could be done quickly.
I would like to point out that both soft and binding agreements will help, but a binding agreement with clear norms will help more. A treaty is needed because a “soft” solution is weak and ineffective. We all understand that a binding agreement is a more powerful and effective mechanism to address the problems faced by blind people and persons with other disabilities to get access to more copyrighted works. Right-owners seem to agree that binding agreements are more effective, which is why they are calling for a binding ACTA, and countless bilateral agreements which are binding in nature, rather than voluntary.
Publishers of accessible works and intermediaries serving persons with disabilities keep explaining they need a certain amount of harmonization to efficiently create global distribution systems. Without legal certainty, there will not be (there have not been!) much cross border exchange of accessible format.
Furthermore, in many national legislatures, blindness and other disabilities groups lack a powerful political lobby with the capacity and the resources to negotiate with publishers and their political supporters. For these countries, new global norms are far more likely to be accepted and implemented if they are part of a global treaty. It is after all the way chosen by the copyright industries when they decided to introduce technological protection measures US laws. They got it done at WIPO with the so-called Internet treaties!
Finally, it is difficult to imagine that a declaration or a recommendation at the WIPO General Assembly could realistically connect the decision on the legality of importing and exporting works with the details that would be associated with the implementation of such an agreement. A holistic decision, such as is envisioned by the treaty, is a much more satisfying and mature way to address the issue.
You would think that 25 years later, it would be a no-brainer, right?
There are right now 3 Joint Recommendations by the WIPO standing committee on marks:
Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks (1999)
Joint Recommendation Concerning Trademark Licenses (2000)
Joint Recommendation Concerning Provisions on the Protection of Marks, and Other Industrial Property Rights in Signs, on the Internet (20010)
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