On March 2, 2011, Michel Barnier, the EC Commissioner for Internal Market and Services, wrote to Dan Pescod of the European Blind Union, to defend the European Commission decision to back a soft alternative to a treaty at WIPO. (More context, including the text of all of the proposals at WIPO, here. A bitmapped image of the Barnier letter is available here. For the full exchange between the EBU and the EC, see the EBU website news section: http://www.euroblind.org/news/nr/317 .)
According to Michel Barnier:
“A new treaty is only legally binding on those countries that sign up to it and all more recent WIPO treaties have a considerably lower rate of ratification (from 25 to 88 countries). On the other hand, as explained in the WIPO plenary at the last Standing Committee, a Joint Recommendation would be binding on all Berne Convention members as it would constitute an authoritative interpretation of the Berne Convention. The approval of a Joint Recommendation would be less complicated than a Treaty and could be achieved in considerably shorter time.”
KEI comment: According to Barnier’s logic, the EU should not be pursuing any new treaties on any copyright issue or intellectual property issues. Why then, is the EU pressing for a WIPO treaty for broadcasting organizations, or the ACTA agreement? Why did the EU press for the 1996 WIPO WCT and WPPT digital copyright treaties, and then not sign them for many years? Why does the EU press for binding IP chapters in trade agreements with Canada, India and other countries, which only involve at best a single country outside of the EU?
A Joint Recommendation would be an “authoritative interpretation of the Berne Convention,” but not of the TRIPS agreement, and it would be authoritative only in the areas where it actually says something. If you enter into a negotiation on something that requires everyone to agree, strategically, you end up with something that may be very weak, or even harmful to consumers — given the capture of some national delegations by publishers.
Barnier also said:
“Furthermore, the EU Joint Recommendation allows for the export to a destination country where there is no exception in place in its copyright law. The fact that we propose to use the services of Trusted Intermediaries is to guarantee right holders that their work arrives at the special destination and will not be access to the public at large without due authorisation or appropriate renumeration to authors.”
It is one thing to allow an export, and another to have lawful use in the country of import. The EU proposal seems to have addressed this by limiting the exports to entities that sign voluntary licenses with the copyright owners, and have both the trust and the permission of the right owners. Specifically, the EU has proposed the following text:
“Trusted Intermediary” is an approved institution whose activities must have the consent of both, persons with a print disability and rights holders such as publishers. Trusted Intermediaries facilitate the production of works in accessible formats, and/or their cross border transfer in a controlled manner.
Trusted Intermediaries should fulfill the following conditions:
- they operate on a not-for-profit basis;
- they register the persons with a print disability they serve;
- they provide specialized services relating to training, education, or adaptive reading or information access needs of persons with a print disability;
- they maintain policies and procedures to establish the bona fide nature of persons with print disabilities that they serve;
- they maintain policies and procedures to ensure full and complete compliance with copyright and data protection laws.
If the Trusted Intermediary is a nation-wide network of organizations, all organizations which are members of this network must fulfill all of the above-mentioned conditions.
The EU proposal also states:
Member States may ensure that the rights holders receive an adequate remuneration for the use of their works covered by the exception. This claim may be exercised through a collective management society.
The recommendation is not of application to the extent that there are sufficient and adequate market solutions for persons with a print disability.
The WIPO guidelines for a trusted intermediary are on the web here: http://www.visionip.org/stakeholders/en/trusted_intermediaries.html
According to the WIPO guidelines, “Remuneration will be decided by the rightsholder or its designated representative.” The WIPO guidelines, and the contracts that have been proposed in the context of the WIPO stakeholder platform and the EU Stakeholder diaglogue are considered complex, restrictive, burdensome, and to create signficificant financial liabilities for the entities that sign and use the contracts. So far, most leading libraries for the blind have refused to sign, and the World Blind Union (WBU) recently suspended its particiaption in the WIPO Stakeholder Platform negotiations. (More on the WBU decision here).
As far as we know, the concept of trusted intermediaries, as described in the WIPO guidelines and in the EU proposal, has not been implemented in European countries. Instead, European countries, like the United States, Canada, Australia, and many other countries, provide for statutory rights to use copyrighted works without permission or supervision from copyright holders. Most countries, including the United States and many European countries, do not require remuneration for such uses. In many countries, the exceptions exist regardless of competing market offering. Also, there is no international barrier to the import or export of works created under copyright exceptions. The problems are poor global state practice on imports and exports, which is a situation that the proposed WIPO treaty is supposed to remedy. Taken together, Barnier is proposing sweeping changes in national and international norms as regards the role of copyright owners in granting consent to make accessible works, and, according to the WIPO guidelines for trusted intermediaries, the right to demand remuneration.
The Barnier/EU proposal also does not include any role for commercial entities in making works available under exceptions. The WBU treaty proposal provides for a limited exception for commercial entities, that is only available in the absence of market offerings. The possibility of an exception for for-profit entities will be very important in determining global access to orphaned copyrighted works, such as those covered by the Google Book settlement.
Barnier concludes his letter with the following statement:
“Finally, I remain convinced that with open and constructive discussions which include all stakeholders and take into consideration the possibilities already offered by international law; a suitable solution will be found. Negotiations in WIPO can also surely allow for the modification of certain accompanying measures or procedures which may seem too complex or cumbersome.”
It is worth noting that Barnier’s letter concludes with these four words: “too complex or cumbersome.” The current negotiation over the rights of persons with disabilities can be compared to two earlier negotiations to protect consumer rights in intellectual property agreements. The 1971 amendments to the the Berne Convention created an Appendix for Special Provisions Regarding Developing Countries. This complex text is now widely seen as a failure, and a cynical response to a legitimate demands by developing countries for greater access to copyrighted works. Likewise, at the WTO, the Decision of the General Council of 30 August 2003, on the Implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement and public health, is also widely seen as a failure, and a cynical response to legitimate demands by developing countries for greater access to patented medicines. Barnier is in fact following an old, well known, and discredited strategy, of putting forth a limited, restrictive and ultimately unworkable “solution” to an important problem of access.