On May 10, 2013, a very revealing freedom of information request was made available from the UK Intellectual Property Office (IPO). The request had been filed on April 14, 2013 by the journalist Glyn Moody, for:
Emails, letters and any other written communications from the last six months, between the Publishers Association or representatives of UK publishers, and the Intellectual Property Office, on the subject of the WIPO treaty for the blind (formally, the “Treaty to facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities”.)
On May 10, 2012 the IPO released 28 pages of partly redacted correspondence. (available here) The original request and the IPO justification for the redactions are available here: https://www.whatdotheyknow.com/request/wipo_treaty_for_the_blind
What do the emails show?
In one case, the publishers asked to recommend a person with “outside expertise” for the UK delegation to WIPO.
In another exchange, the publishers share a link to an article by Professor Ruth Okediji, a negotiator for Nigeria, explaining why they object to references to fair use in the treaty text.
The publishers pushed the UK delegation repeatedly to fight for a restriction for exceptions in cases where there is “commercial availability” of works, in one case highlighting the text in the new Canada law.
One of the IPO documents has the heading “Why WIPO Should Not Introduce Fair Use Into the Instrument for Print Disabilities.” Another is subtitled, “How commercial availability can work for all.”
Overall, the emails deal extensively with publisher opposition to fair use (fair use is mentioned 40 times), and promotion of commercial availability and requests that the treaty include restrictive three-step test language (even while asserting that other treaties and agreements already mandate the three step test for all copyright exceptions). The emails also demonstrate the close cooperation and communication between the IPO and the publishers in the negotiations.
After reviewing the correspondence, Barbara Stratton said “The correspondence shows just how high is the level of engagement by the UK publishers with UK civil servants and ministers on the VIP Treaty (and presumably also on copyright issues generally) and how they see the VIP Treaty setting a precedent with regard to the WIPO discussions on norms for exceptions and limitations for libraries, etc.”
The exchanges would have been more revealing if the IPO had not redacted the names and titles of the individuals receiving and sending the emails.
40 references to fair use
25 references to three step test
16 references to commercial availability
The original PDF from the IPO was not searchable. The searchable PDF file was provided by John Miller, here: