In the final stretch towards the Marrakesh Diplomatic Conference to conclude a Treaty for the Blind, Visually Impaired and other Reading Disabled Persons (17 June 2013 to 28 June 2013), it is perhaps important to take note of one important area of divergence, namely, the language contained in Article F of the Draft Text of an International Instrument/Treaty on Limitations and Exceptions for Visually Impaired Persons/Persons with Print Disabilities (SCCR/25/2 REV) which presents two alternatives with respect to technological measures.
Alternative A(1) provides robust language mandating that contracting parties to the Treaty “should/shall ensure that beneficiaries” of the Treaty are not prevented from enjoying the exception in cases where “technological protection measures have been applied to a work”.
Alternative B subordinates the exception provided for in the Treaty to digital locks that right holders place on protected works and undermine the practical implementation of a Treaty to facilitate the cross-border sharing of works to persons who are blind, visually impaired or reading disabled.
The United States of America is aggressively pushing the language of Alternative B. According to informed sources, if WIPO member countries do not agree to the language contained in Alternative B, the US could hold the Treaty for the Blind hostage and wait till the Marrakesh Diplomatic Conference to force a bad outcome. Perhaps one solution to this impasse would be to delete Article F altogether as this is a Treaty about limitations and exceptions not rights and obligations.
The language on technological protection measures could play an important role in the outcome of the treaty as poor language on the issue could result in digital technology preventing a beneficiary from fully taking advantage of the exception. For example, while e-readers are equipped with a text-to-speech function allowing a person who is blind to listen to the text, the right holder might disable the function on a particular work through use of a digital lock.
The language contained in Alternative A states the following:
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.
The language contained in Alternative B states the following:
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.