Interview with David Hammerstein regarding negotiations on WIPO treaty for persons who are blind or have other disabilities

David Hammerstein is a former Member of the European Parliament from Spain. He now works for the Trans-Atlantic Consumer Dialogue (TACD). Among other things, he is an advocate for a new WIPO copyright treaty for persons who are blind or have other disabilities. The following is an interview with David, carried out from March 3 to March 6 by email.

David Hammerstein at SCCR 19
David Hammerstein talking with a European negotiator at WIPO SCCR 19, December 15, 2009.

Question 1. Has the European Union taken a position on the proposal for a WIPO Treaty for the blind?

Answer 1. Yes. The European Union does not support the proposal for a WIPO Treaty for the Blind but instead supports a voluntary joint recommendation. The EU also stresses the utility of stakeholder agreements between rights holders and NGOs that represent visually impaired persons. Over 100 members of the European Parliament have signed a letter in support of the Treaty but Internal Market Commissioner Michel Barnier has responded that voluntary measures and “soft law” are better ways to end the “book famine” suffered by millions of visually impaired persons. It is surprising given that Commissioner Barnier at the same time is a staunch defender of legally binding treaties for copyright enforcement such as ACTA and for other strong legal measures on an EU level for IPR violations. Nevertheless, when it comes to creating an international flexibility of copyright to help one the the most disadvantaged groups of the world, he insists that no legal changes are needed. What Mr. Barnier is doing reflects more idealogical motives that any concrete economic interest. As a result, he is placing in doubt the credibility of our rigid copyright system that can’t even respond creatively to a solvable humanitarian cultural crisis.

Question 2. How does the position taken by the European Union compare to the positions taken by the Publishers or the disabilities groups?

Answer 2. The position of the EU is practically the same as that of the publishers and other right-holders. While playing lip-service the needs of disabilities groups, the European Commission´s main concern is not to give in on considering any international legal instrument for an exception and limitation of copyright. It is a matter of principle and not a pragmatic choice for the EC department led by a French Sarkoyist Commissioner. The publishers have lobbied the European Parliament heavily against the treaty, betraying their commitment in this regard with blind persons organizations. The European Commission pats the bind persons NGOs on the back but then follow the publishers’ agenda.

Question 3. How does the European Commission respond to the argument that the UN Convention on the rights of disabilities, including in particular Articles 21 and 30, obligates governments to change laws to provide more equal access to copyrighted works?

Answer 3. The EC ignores the UN Convention on the rights of persons with disabilities, which it has signed. They simply and cynically say voluntary measures are more effective with no solid arguments. The Fundamental Rights Commissioner Redding should give her opinion on this.

Question 4. Governments are run by people. Who are the officials in the European Commission that are really driving policy, in your opinion?

Answer 4. Of course they are people! The EC Officials are high level European civil servants with a great degree of political loyalty to their Commissioner and Director General, and an even greater degree of vulnerability to industrial lobbies that are omnipresent in the ambiance of European Commission services. The EC must also respond to the opinions of EU member states that meet periodically in “working groups” to establish the common position of the EU in international institutions such as WIPO. On the Treaty for the Visually Impaired it is mainly the large EU countries that have formulated concrete opinions on this subject. Thus, the culture ministries of France, Spain, Germany and UK, along with the rotating presidency (now Hungary) play the most important role in influencing how European Commission officials drive day to day policy initiatives. EC official often tell you one thing privately and something else entirely publicly.

Question 5. So, you see the European Commission position as being largely driven by member states, rather than by the views, values and preferences of European Commission officials, such as Michel Barnier, the EC Commissioner for Internal Market and Services who recently 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?

Answer 5. The EC position is driven by EU member states in an opaque, non-transparent intergovernmental process of semi-secret meetings where public opinion often never finds out which country supports, for example, the Treaty for the Visually Impaired, and which countries oppose it. This lack of transparency makes it much easier for industry, in this case publishers and rights-holders, to kidnap the political agenda. It is also very convenient for one country to blame another for being the “hard-liner”. What we do know is that France is the most adamant in opposing the Treaty, with Barnier being the French representative in the European Commission. It seems that some countries such as the UK and Scandinavian countries have a much more flexible attitude toward the treaty.

Question 6. Are you aware of any lobbying by the United States government on this treaty? For example, has the United States government coordinated its efforts with the European Union, or meet with European groups representing blind persons? And what is the message regarding the treaty from the United States government?

Answer 6. The US Government is lobbying heavily in Europe against a legally binding treaty. Justin Hughes has been in a number of European countries, including Spain and UK, speaking with blind persons groups about why a voluntary agreement or recommendation is a better solution. He even has spoken with a number of foundations looking for extra financing for the “stakeholders platform” agreement. This is very much in line with the European Commissions stance and actions.

Question 7. Thank you. Is there anything else you would like to say about the negotiation on the WIPO treaty for persons who are blind and have other disabilities?

Answer 7. It is difficult to counter the arguments of the industry-EU-US coalition against the Treaty because they simply present no arguments. Privately they all admit that their opposition is due to ideological reasons, due to the precedent of approving an exception to copyright, than any serious defense of threatened right-holder rights. All they claim lamely and without any proof that if they give in on this issue, others will demand new, more radical exceptions. Really, this unethical coalition remote-controlled by dozens of well paid lobyists has not put forward one solid economic or legal reason to oppose this treaty. In effect, they are just crudely using the world´s blind and visually impaired as human shields against any common sensical change in international copyright law. Sadly, they are giving a vivid example of what WIPO Director General Francis Gurry recently called the “classical copyright world´s sorry luddite resistance instead of enlightened engagement”. It is hard to believe they can be so rigid, insensitive and short-sighted. Let´s hope they change course before June´s WIPO special session on this issue.

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