WIPO negotiations on copyright exceptions for disabilities, October 18, 2012

The October 18 version of the text is available, here. From the October 17 version, the number of brackets as gone from 65 to 61. The number of alternatives has increased from 24 to 26. Both numbers are higher than the July 26 version of the text, which had 56 brackets and 23 alternatives.


By all accounts, progress has been slow, and most countries are sticking to their positions. It seems as though the issues of contracts or TPMs may be deferred until the SCCR meeting in November. No agreement on the inclusion of audio visual works, translation rights, three step test language or trusted intermediaries, among other issues.

Here a few pictures from the venue.

Among those representing persons with disabilities were Melanie Brunson of ACB, Rahul Cherian of Inclusive Planet and Chris Friend of WBU.

Among those representing publishers and the film industry were Allan Adler of AAP, Benoît Müller of the IVF, Ted Shapiro of the MPAA and Carlo Scollo-Lavizzari (STM).

In general, relationships between the NGOs representing publishers and the disabilities communities or consumers have been cordial.

A few notes from Thursday.

Beginning Thursday, the meeting Chair, Zambian Ambassador Darlington Mwape, began to push delegates to make progress. The meetings are now entirely being held in secret, with the results published at the end of a day without country positions. The talks went until 9pm on Thursday.

KEI is now systematically excluded from USPTO briefings, and the former RIAA executive representing the U.S. Copyright office does not answer KEI questions about the negotiations. This is a step backwards from the more inclusive and open approach of the Bush Administration and contrary to what we expected from Maria Pallante.

The push for restrictive three step language is mostly coming from the European Union. Some delegates tell us the USA does not seem to have a strong position on this issue.

China was reportedly less active on the second day of negotiations.

The issue of translation rights remains pretty contentious. Apparently several countries do provide such exceptions, including countries with more than one official language. The US has expressed opposition to translation rights on the grounds that it would give blind people more rights than sighted persons, an argument that raised eyebrows among many participants who don’t feel threatened by this outcome.

Despite USPTO opposition, there is no serious effort this week to make the “instrument” something other than treaty.

Audio visual works

The television and film industry has lobbied hard in the US, Europe and this week in WIPO to be excluded from the exceptions. The USPTO, whose lead negotiator is very close to MPAA, is quite focused on this issue. But developing countries have identified related rights in general and rights in audiovisual presentations in particular as quite important. One area of concern is the emergence of new education technologies, including distance education and just-in-time learning modules that use audiovisual presentations. To the the extent that Internet delivered learning tools become more important in the future, the exclusion of audiovisual works creates a serious barrier for access to education, training and development.

In the United States, the Chafee Amendment does not provide exceptions for audiovisual works. But other parts of US law, including US fair use, or specific laws on disabilities, special education, rehabilitation or telecommunications provide other legal mechanisms to address some issues of access to works. Within the Berne Convention, the exceptions related to education have a special status, under Article 10(2).

(2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.

In the Berne Article 10(2) cases, the Berne three-step test is not applied, and instead, the standard for the exception is “to the extent justified by the purpose” and ” provided such utilization is compatible with fair practice.” The Berne 10(2) standard is more liberal than the 3-step test, which is one reason why many delegations object to the proposals by the European Commission to apply the three step test to all exceptions for blind persons.