I plan to write up a more detailed analysis of the WIPO open ended consultation on the treaty for persons who are blind or have other disabilities. I did want to make a few quick notes, however.
Brazil, Ecuador, Paraguay and Mexico proposed a schedule of work on the treaty, which would end with a diplomatic conference in early 2012. The details of the proposal had been widely shared verbally for several weeks, and did not come as surprise. Their written submission was given the World Blind Union and other NGOs on Wed. A copy is available here.
We finally saw, for the first time, the US proposal for a resolution on the import and export of works, via “trusted intermediaries.” The proposal is available here. This proposal was described to me in some general detail at April 8-9 in New York, at a meeting in Fordham University — not by the US government, but by several lawyers working for publishers and trade associations, a some academics, who clearly had lots of detailed information. The US proposal is basically the proposal supported by publishers. It is a small step, not a big one, and in important ways, it would appear to narrow the freedom that currently exists in global norms on the import an export of works. Is the US proposal complementary to a treaty — or an effort to kill the treaty? Mexico asked the US if the resolution and the treaty could be combined into a single work program. The US did not respond. Later, in a private meeting of developed countries, the USPTO criticized Turkey, which has spoken favorably about the possibility of a binding treaty — a position that is almost identical to the one the US has taken in public forums. The difference between what the US is saying publicly — that they are open to a treaty — does not appear to be consistent with the private lobbying of the USPTO on this issue.
The only member of the EU to speak at the May 27 meeting was the UK, and they surprised everyone by saying that the new government was open to a binding treaty. The UK and Turkey received applause after speaking.
There was no public opposition by any country to a binding treaty. I don’t recall countries from Asia or Africa speaking at the meeting. Privately the African Group was quite warm to the disabilities groups attending the meeting, and they promised they would support early action the treaty, but they will ask that WIPO agree to work on other issues, including education and libraries, as part of a larger limitations and exceptions agenda.
The US proposal will received some detailed analysis in the next few days. Brazil read a fairly detailed critique after lunch, and a number of blindness groups, NGOs and countries offered critical comments on certain aspects of the proposal, which had not been vetted before by the World Blind Union or other NGOs working on access to knowledge issues. The US apparently briefed three persons from the US based ACB, NFB and AFB about the proposal a few weeks ago, on the grounds that they not discuss the contents with anyone else. None of the persons briefed by USPTO were attending the WIPO negotiations this week. The blind persons who did attend the meeting this week, all but one of whom were from outside the United States, had to respond to the proposal in real time, without much ability to read and study it. During the lunch it was possible to discuss the proposal, and some groups spoke in the afternoon. Blindness groups could have better responded to the substance of the agreement if the US had circulated the proposal on Wednesday, as did the Latin American groups that called for a schedule of work on the treaty.
The technical details of the US proposal are important, and KEI and others will provide some detailed analysis. One thing that came out very clear was that the “trusted intermediaries” concept is going to be quite difficult for developing countries that rely upon schools, health workers, parents and other to make works accessible to persons. Another set of issues concerns the lack of explanation as to how a country without an exception can import from one that does have an exception. There is a controversy over the US proposals on royalty payments, standards for affordability, and the many missing elements on topics such as restrictive contracts or overcoming technical measures. The US did not respond to technical questions on exhaustion from Italy, or on ACTA border provisions, from KEI. Many countries and NGOs said the US proposal might be slightly faster to adopt, but be pretty ineffective in the implementation stage, as it was a non-binding recommendation. 25 years ago WIPO and UNESCO published a recommendation for a model law, that in some ways went further than the US proposal, and that accomplished very little.
Two key phrases that came out of the meeting were: “a treaty is a big word,” and this is about respect. So far, the US is thinking small, and not showing much respect.