WIPO SCCR meets on copyright exceptions for disabilities: 17 October 2012

On October 17, 2012, WIPO began a three day meeting, titled: Inter-sessional Meeting on Limitations and Exceptions for Visually Impaired Persons/Persons with Print Disabilities. The meeting is one of three scheduled for the end of this year in an attempt to complete work on a treaty or some other instrument to address the need to expand access to copyrighted works for persons who are blind or have other disabilities. The second meeting is the November 19 to November 23, 2012 regular SCCR meeting, where this topic will be one of several discussed. The third meeting is an extraordinary General Assembly, to consider a proposal for a diplomatic conference in mid 2013.

Today’s meeting began with a few brief comments from WIPO DG Francis Gurry and governments, none from NGOs, followed by an adjournment of the open session, followed by closed informal discussions that finished late that afternoon. The negotiators began working on the text of SCCR/24/9, a “Working Document on an international instrument on limitations and exceptions for visually impaired persons/persons with print disabilities. By the end of the day, WIPO produced a new “WORKING TEXT October 17, 2012 6:00 PM”. (Attached).

The following are a few quick notes from the 1st day.

* Very few NGOs are attending.

* Among the industry NGOs, only the International Publishers Association (IPA, represented by Jens Bammel, the Association of American Publishers (AAP) represented by Alan Adler, and the International Association of Scientific, Technical & Medical Publishers (STM), represented by Carlo Scollo Lavizzari, were present. They distributed a “Joint Statement on the WIPO instrument on copyright limitations and exceptions for persons with print disabilities,” dated September 2012, which they had earlier distributed at the WIPO General Assembly. The joint statement was signed by 19 industry NGOs, including: CISAC, EWC, FEP, FIA,, FIAD, FIAPF, FILAIE, FIM, GESAC, ICMP, IFJ, IFPI, IFRRO, IFTA, IPA, IVF, MPA, STM, and WIN. (See attached letter). The industry statement set out six conditions for a new “instrument.”

The instrument must be:

  1. Consistent with international copyright law: It is both possible and essential that this novel and untested instrument in the copyright system be crafted in a manner consistent with the existing international copyright framework, in particular the Berne Convention, the TRIPS Agreement, the WIPO Copyright Treaty, the WIPO Performances and Phonograms Treaty and the Beijing Audiovisual Performances Treaty.
  2. Narrow in scope: The preamble and the definition section must clearly focus the instrument’s scope on increasing access to books and other textual works by persons with print disabilities.
  3. Reaffirming the three-step test: The instrument must expressly confirm the continued application of the three-step test to the operation of any exception or limitation. Any provision or statement on the relationship between technological measures and exceptions and limitations must also be subject to the test.
  4. Flexible: The instrument has to provide flexibility for Member States implementation in accordance with their legal traditions, including exceptions, limitations as well as alternative and effective measures such as voluntary access programmes and licensing. The instrument thus must uphold the freedom of contract.
  5. Conditional upon commercial unavailability: It must be ensured that solutions put in place by rightholders, whether commercial or otherwise, take precedence over copyright exceptions.
  6. Ensuring appropriate care of digital files: The instrument needs to ensure that Authorized Entities entrusted to handle digital files under an exception operate transparently, safely and with appropriate safeguards.

* The disabilities community include a delegation from the World Blind Union that included representatives from NGOs in France and the UK, the American Council of the Blind (ABC) and the National Federation of the Blind from the U.S., and Inclusive Planet from India.

* KEI, TACD and the Internet Society were the only other NGOs attending the meeting today.

* According to reports from the closed informals, A number of delegations were quite active, while others were less vocal. Without having first hand access to discussions, I can only mention some of the more active countries. From Asia, India was quite engaged, and surprisingly, so too was China. China has been active in the TRIPS Council, but until now has not been that active in the SCCR negotiations. In Africa, Nigeria, represented by Ruth Okediji, and Egypt seem be playing an important and very positive role. In South America, Brasil, Ecuador, Chile, Peru and Venezuela are active. All of the developing countries negotiating blocks are highly sympathetic to blind persons.

The United State is playing a big major role, and led by David Kappos’ USPTO, generally is aligned with the publishers in efforts to narrow the agreement and limit its benefits to persons with disabilities, and is increasingly isolated in its opposition to a decision that the nature of the “instrument” will be a treaty rather than a softer non-blinding recommendation or model law. One major objective of the US delegation is to exclude persons who are deaf. Another is to limit the exceptions to text, and exclude any audiovisual content or related rights. Both of these negotiating objectives are designed to keep the U.S. movie and television industry happy. The U.S. has also been seeking ways to support other publisher friendly provisions, even when they run counter to the robust exceptions found in U.S. law.

This SCCR meeting is the last one before the November 6, 2012 Presidential election. We have been highly critical of the USPTO for blocking progress on the treaty until after the election. If Obama loses the election, no one knows what position a Romney administration will take.

In the European Union, the European Commission and a handful of member states want to limit exceptions to cases where publishers do not have similar products on the market, even though it is not common in the EU to make such exceptions conditional upon commercial unavailability. The EU wants restrictive three step language in the agreement. It’s hard to know who the hardliners are in the EU. The EC says they are now Belgium and Sweden, and Belgium does have a large delegation here. Others think the problem is more with France and Germany. We know from the past SCCR that Austria is opposed to a treaty. Most of the EU country positions are not transparent, by design.

Both the US and the EU are seeking to limit the beneficiaries of the exceptions in various ways, and one of the tough areas in the negotiation concerns the use of the exceptions by educators, health workers, and others who will need to take appropriate measures to enable persons with disabilities to access works, on an equal basis with others.

Both the US and the EU have opposed language that would clearly enable for profit companies to use the exceptions — an issue of huge importance given the large digitization projects underway by Google and other firms.

The Central European and Baltic States have aligned themselves closely with the EU positions. Hungary is leading this group. I asked Hungary if they were concerned about the use of the exceptions by blind persons, or the precedent a treaty would set. The immediate reply was — the precedent. And that is a nutshell is the problem. For better or worse, this treaty will be a model and a precedent, and even though high income countries have robust royalty free exceptions in their backyards, they are determined to push for restrictive and in some proposals nearly unworkable procedures, in order to undermine the value of the treaty as a precedent for other treaties to expand access to knowledge goods.

According to everyone we talked to, progress today was slow, as is reflected in the new working document. If governments do not make larger efforts to remove brackets from text, it is possible WIPO will fail to approve a diplomatic conference for 2013. We hope to see more progress on Thursday, and particularly more movement from the US and the EU.

For some more background on this negotiation, see: