Open-ended consultations on copyright limitations and exceptions for persons with print disabilities
Geneva, May 27, 2010
Mr. Chairman,
Yesterday, during the first round of the consultations, Brazil recalled the reasons why there is an urgent need for a treaty on Improved Access for Blind, Visually Impaired and other Reading Disabled Persons. As civil society representatives were not present yesterday, I will recall some of the main points Brazil holds dear in these discussions.
We argued that, because of the extremely low number of books that are available in accessible formats, even in the richest countries, there is a “book famine” depriving disabled persons of access to education, culture and entertainment.
We commented that, copyright exceptions being national in scope, specialized agencies in different countries, but with a common language, are often obliged to employ scarce resources to transcribe the same book.
For instance, voluntary organizations in Chile, Colombia, Mexico, Nicaragua and Uruguay have altogether only 8,517 books in alternative format. However, Argentina has 63,000 books and Spain 102,000. All these countries speak Spanish.
If reading disabled people in Argentina and Spain were able to legally share their alternative format books with their Latin American colleagues, that would immediately and radically increase the number of titles for reading disabled persons in the five countries mentioned above. It would also save much needed time and money to print new books in accessible format.
This result, however, can only be achieved if countries have similar provisions regarding exceptions and limitations to copyrights for disabled persons and if these provisions allow for cross-border sharing of works. Hence the urgent need for an international legally-biding instrument for the harmonization of limitations and exceptions to copyrighted works.
We also commented that the proposal for a treaty sponsored by Brazil, Ecuador, Paraguay and Mexico was drafted by the World Blind Union and thus it reflects the interests of the main beneficiaries of the improved access. Brazil is open to discuss the language of this draft as long as the final result is a treaty that will effectively improve access for persons with disabilities.
As time is pressing, we should agree on a timetable for discussion according to which we start negotiations of the proposed text treaty at the next SCCR meeting with a view of approving the mandate for the negotiation of a treaty in the September General Assembly. Our objective is to call for a Diplomatic Conference for the adoption of the treaty on September 2011. The Conference would happen at the Spring 2012
Mr. Chairman,
Turning now to the United States proposal, on behalf the co-sponsors of document SCCR/18/05, I would like to say that Brazil, Ecuador, Paraguay and Mexico welcome any contributions from delegations that will result in an effective solution to the need for improved access for blind, visually impaired and other reading disabled persons. We just received this proposal and would need further time for analysis. Our initial reaction, without compromise to additional comments we can do at a latter stage, is that it falls short of our objectives, at least in a vital element – the format – for it is not a legally biding instrument.
We would also like to point out that there are no conflicting interests at stake in this debate. In our view, it is not about finding a middle ground for consensus, the so-called “consensus solutions” the United States is proposing. It is about setting the conditions for the full enjoyment of Human Rights by all persons. In this particular case, it is about providing the visually impaired with the “right to read”. We do believe, and hope it is indeed the case, that both developed and developing countries share the common goal of finding an “effective solution” for the need for improved access. To that matter, the “consensus solution” proposed by the United States does not seem to be an “effective solution”.
For one thing, only a treaty will provide the legal certainty a matter of this consequence requires. We took the time to draft and approve treaties for the benefit of audiovisual and phonogram performers, for the benefit of producers of phonograms, for the benefit of authors and of broadcasters. In short, all intellectual property rights-holders have treaties. We had bothered than and we should definitly bother now to take the time for drafting and approve a treaty for exceptions and limitations to copyright and related rights for the benefit of the visually impaired and persons with print disabilities.
For another, as our colleagues from the civil society have so well put it a treaty is a big word. It means we take the matter seriously. That we treat the visually impaired persons with respect. Brazil, Ecuador, Paraguay, Mexico and all that who have spoken in favour of a legally binding solution are ready to show this commitment.
Another point representatives from the civil society have made abundantly clear this morning is that thought approving a treaty may take longer, its implementation is certainly more rapid and efficient. “A weaker instrument will distract us from that focus”
I would now like to address some specifics aspects of the US proposal:
First, it does not create a legal obligation for countries to have exceptions or other form of limitation in their legislations.
This creates two problems: i) If there is no exception in the country of export, then there can be no export; ii) if there is no exception in the beneficiary country there is no legal certainty to that right holder in the export country will not look for legal means to prevent such importation.
A second aspect is that, related rights are not covered, which means that audiobooks, for example, are excluded for they comprise interpretation and phonogram.
Third, the proposal discriminates against different media for accessible format. Beneficiaries can only have direct access to books in Braille. All the other media require a “trusted intermediary”. We don’t understand the reason for this distinction.
Fourth, it seams to us that articles 2 and 3 do not cover works shared by the internet. When talking about exportation of accessible material these articles seam to always require that the work be engraved in a tangible support. In our view, this only contributes to enlarge the digital gap for visually impaired persons.
Fifth, if the country of importation adopts the principle of national exhaustion of rights, the right-holder in the country of export may also prevent the import.
Sixth, the recommendation is silent on the need to circumvent technological protection measures where applicable.
Seventh, in the treaty proposal of the WBU there are a specific provision that states that “any contractual provisions contrary to the exceptions provided shall be null and void”. This provision is not present at the recommendation proposal.
Eighth, as civil society has already mentioned, there is no reference in the US proposal of what would be reasonably available for developing countries.
Against this background, Brazil, Ecuador, Mexico and Paraguay are not in a position to favor any “consensus instrument” that will fall short of the aspirations of visually impaired persons and of our own pledges to granting them the “right to read”.
We have pledged in article 21 of the United Nations Convention on the Rights of Persons with Disabilities to (quote) “Provid[e] information intended for the general public to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost”. In article 30 of this same Convention we committed ourselves to (quote) “take all appropriate steps, in accordance with international law, to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials”. These were not empty promises.
Mr. Chairman,
We have been given the opportunity to actually fulfilling such aspirations and pledges. It is our strong conviction that only a legally-biding instrument for the harmonization of limitations and exceptions to copyrighted works will stand the test of time.