|From left to right, USPTO Director David Kappos, President Obama, Pablo Lecuona of Tiflolibros and Melanie Brunson of the ACB|
I am at the 25th meeting of the Standing Committee on Copyright and Related Rights (SCCR 25), where the UN’s specialized agency for intellectual property, known as the World Intellectual Property Organization, or WIPO for short, has just completed its first day of negotiations on a new copyright treaty for persons with disabilities. Not the first day of negotiations ever, but the first of five critical days that will determine if WIPO calls for a diplomatic conference in 2013, and what provisions that treaty will include.
On November 19, the Obama Administration became ever more isolated in its opposition to a treaty, as the European Union announced “The EU and its Member States are now also in the position to negotiate the conclusion of an instrument, including a binding treaty.” The first day negotiations were held in secret, but the United States briefed publishers extensively about the results throughout the day, and held two separate briefings for non-industry NGOs, one by the entire US delegation for blind groups and “print” publishers, and a separate one for KEI conducted by the State Department — in order to establish for the record that KEI is not entirely excluded from the Obama Administration’s briefings. (I’m not making this up).
WIPO began the day by agreeing to work from the attached working document, which reflected earlier informal negotiations, to meet in secret for the day, but to release the results by Tuesday morning. Last evening WIPO released an electronic copy of the November 19 version of the negotiating text, which is attached below.
Notice that in the new version of the text, the United States continues to insist that the agreement is described as an instrument/treaty, effectively maintaining its formal opposition to an agreement that this will be a treaty rather than something softer. Most of the people here hope to eliminate this ambiguity by Friday.
The new Article G on Contracts was discussed in detail. The Obama Administration was determined to block the following text, which has now disappeared from the new text:
[Contracts that override the exercise of the provisions herein specified shall be null and void.]
What has remained are three weaker alternatives, which the Obama Administration continues to try to weaken or eliminate:
RELATIONSHIP WITH CONTRACTS
[Nothing herein shall prevent Member States/Contracting Parties from addressing the relationship of contract law and statutory exceptions and limitations for beneficiary persons.]
[Nothing here shall prevent the Member States/Contracting Parties from treating the limitations or exceptions provided to beneficiary persons under this instrument/Treaty as immune from private contracts and such contractual provisions entered into in violation of provisions of this instrument/Treaty are null and void.]
[Member States/Contracting Parties may establish in their national legislation that any contract which contains clauses contrary to the limitations or exceptions provided for the beneficiary persons under this instrument/Treaty those clauses may be considered null in accordance their national law.]
The Obama Administration also sought to weaken Article F, concerns technological measures that lock up works. The morning text has 4 brackets and two alternatives for paragraph 2. The evening text had no brackets, but two alternatives, plus “should/shall” and “should/shall/may” choices within those alternatives. The Obama Administration is trying to weaken this provision as much as possible, but recognizes the United States has consistently granted exceptions in our own copyright law to overcome TPMs in order to make works accessible for persons who are blind or have other disabilities, including a decision published on October 26, 2012 by the U.S. Register of Copyrights:
The Register determined that the statutory factors of Section 1201(a)(1)(C) strongly favor an exempted class to address the adverse effects that were established in the record. The designated class is not merely a matter of convenience, but is instead intended to enable individuals who are blind or visually impaired to have meaningful access to the same content that individuals without such impairments are able to perceive. As proponents explained, their desire is simply to be able to access lawfully acquired content. In short, the exemption is designed to permit effective access to a rapidly growing array of ebook content by a population that would otherwise go without. Federal Register Notice Containing Librarian’s Determination and Final Rule Page 65263, Federal Register / Vol. 77, No. 208 / Friday, October 26, 2012
The November 19 version of the TPM language reads as follows:
OBLIGATIONS CONCERNING TECHNOLOGICAL MEASURES
1. Member States/Contracting Party should/shall ensure that beneficiaries of the exception provided by Article C are not prevented from enjoying the exception in the exception where technological protection measures have been applied to a work.
2. A Member State/Contracting Party may fulfill Article F(1) by permitting, under its national copyright law, circumvention of technological protection measures for the purposes of, and to the extent necessary for benefiting from an Article C exception. Member States/Contracting Parties may encourage rightholders to take adequate, effective and readily accessible voluntary measures to ensure the exercise of limitations and exceptions by beneficiaries.
Where the national law of a Member State/Contracting Party provides adequate legal protection and effective legal remedies against the circumvention of technological measures, a Member State/Contracting Party should/shall/may adopt effective and necessary measures to ensure that a beneficiary person may enjoy limitations and exceptions provided in that Member State’s/Contracting Party’s national law, in accordance with this instrument/Treaty, where technological measures have been applied to a work and the beneficiary person has legal access to that work, in circumstances such as where appropriate and effective measures have not been taken by rights holders in relation to that work to enable the beneficiary person to enjoy the limitations and exceptions under that Member State/Contracting Party’s national law.