In a major breakthrough on the WIPO negotiations on copyright exceptions for persons with disabilities, at around 1pm today, a non-paper “resulting from informal discussions among Argentina, Brazil, Ecuador, the European Union and its Member States, Mexico, Paraguay and the United States of America” was distributed at the WIPO SCCR 22.
A copy of the document is available here:
The seven page paper presents an agreement on many of the most thorny issues in the agreement, among some but not all countries. For example, the Africa group did not sponsor the non-paper, and nor did any government from Asia.
I will quickly point out some comments on the text
1. There is no agreement about the status. It could be a recommendation, an “instrument” or a treaty. That has to be resolved later, and is the hot topic of the negotiations right now.
2. The term “print disabilities” is used frequently, but not defined. It is not entirely clear if the text covers works “born digital.” In Article B, beneficiary persons refers to “printed works.” KEI believes publishers wanted the term print disability precisely because they would argue it did not apply to e-books, and the entertainment industry wanted the term print disability because they did not want it apply to captioning of films for persons who are deaf. It is not clear how limiting this will be, as publishing increasingly moves to works born digital, including many, like Kindle E-Books, that are not accessible because of the inaccessible menus and disabling of text to speech.
In this regard, note that text covering person who were deaf was eliminated from an earlier version of the text.
3. The definition of “Beneficiary persons” makes references to persons who are “unable, through physical disability, to hold or manipulate” a book. The DAISy consortium is concerned that some disabilities are considered “diseases” rather than “physical disabilities,” such as a severe allergic reaction to paper.
4. The term authorized entity contains two restrictive and potentially problematic paragraphs that during the informal negotiations KEI and the WBU recommended be eliminated:
An authorized entity has the trust of both persons with print disabilities and copyright rights holders. It is understood that to obtain the trust of rightholders and beneficiary persons, it is not necessary to require the prior permission of said rightholders or beneficiary persons.
If an authorized entity is a nation-wide network of organizations, then all organizations, institutions, and entities that participate in the network must adhere to these characteristics.
fn 1. Member States/Contracting parties should encourage rightholders and beneficiary parties to cooperate and participate in authorized entities.
Here are some issues:
- What does it mean to say “An authorized entity has the trust of . . . copyright rights holders” when “it is not necessary to require the prior permission of said right holders”? And, when the definition of an authorized entity says “It is understood that to obtain the trust of rightholders . . . ” what exactly is implied? Is there an obligation “to obtain the trust of rightholders”?
- Many developing country organizations and negotiators are concerned about efforts to create unrealistically high expectations about the administrative burdens on those distributing works.
- How will these provisions restrict the role of teachers, health works, parents, employers, first responders and others who are in practice involved ithe distribution of works?
5. Articles F on technological protection measures is somewhat more limited than was proposed by the WBU, but seemed acceptable to most parties.
6. Article G on contracts simply says countries are free to do whatever they want.
7. There is a short Article H on privacy, something that some countries had at one point wanted to eliminate.
8. The role of for-profit entities is set out in footnote 2, which ways “It is understood that cooperation or partnerships with other organisations, including for profit organisations, shall be permitted.” This is more limited than the proposal by the WBU. As a practical matter, the role of for-profit entities will be important to the extent that such entities are involving the digitalization of orphaned works.
9. The text eliminated some of the parts of the WBU proposal on subjects such as standards, which were not central the copyright issues, but that may have had practical benefits in terms of expanding access.
10. The provisions on cross border exchanges of works are only implemented in Article D. Article D, which seems to focus on the right to export by an “authorized entity.” Article E on the importation of works allows beneficiary persons or authorized entities to import. The asymmetry is designed to have more limited rights to export works. According to the USPTO, the text would not permit a blind individual to share an accessible copy a blind individual in another country.
11. The relationship between the text and other flexibilities in national intellectual property laws is possibly problematic if Article D(3) is considered a limitation on the use of flexiabilities that are not subject to the three step test. There are several exceptions in the Berne convention that are not subject to the three step test, and there are also exceptions in the TRIPS agreement on exhaustion of rights (Article 6), control of anticompetitive practices (Article 40) and the limitations on remedies (Article 44) which are not subject to the three step test. This could be fixed if the text added something along the lines of, “and/or and without prejudice to other exceptions to the exclusive rights of authors that are otherwise permitted by the Berne Convention or the TRIPS Agreement.”
In this regard, note also that the preamble makes references to “the importance and flexibility of the three-step test for limitations and exceptions established in Article 9(2) of the Berne Convention and other international instruments” and does not acknowledge other important flexabilities.
12. In Article E, regarding imports, there is no reference to “or someone acting on his or her behalf,” as is found in Article D(2)(B).
13. In Article A, on the definition of “reasonable price for developing counties,” compare what the WBU proposed to the non-paper:
- WBU text: “prices that are affordable, taking into account disparities of incomes for persons who are visually impaired. “
- Non-Paper: “prices that are affordable in that market, taking into account the humanitarian needs of persons with print disabilities.”