KEI comments to UK Consultation on limitations and exceptions for persons with print disabilities under discussion at WIPO

The proposal for a WIPO treaty for persons who are blind or have other disabilities moved forward at the last SCCR meeting in June 2011, when a wide collection of high income and Latin American countries endorsed a joint paper that could serve as a basis for a diplomatic conference. The fact that Brazil, the US and the EU were among the countries endorsing the paper was very significant.

The document SCCR/22/15 titled Consensus document on an international instrument on limitations and exceptions for persons with print disabilities was presented by Argentina, Australia, Brazil, Chile, Colombia, Ecuador, the European Union and its Member States, Mexico, Norway, Paraguay, the Russian Federation, the United States of America and Uruguay but there remains some uncertainly about the next steps.

The UK IPO office is consulting on the current draft text on limitations and exceptions for persons with print disabilities under discussion at WIPO SCCR so that "it can feed into discussions with other EU Member States."

Here are the suggested questions:

1. Does the text strike the right balance between rights holders and beneficiaries?
2. Does the text need amending? If so, what amendments would you propose?
3. Are there any aspects missing from the text?
4. Do you consider the text could form a joint recommendation or a treaty?
5. If a joint recommendation, what are your views on a possible two-step approach, ie a joint recommendation followed by returning to discussions on a treaty at a later date?

You can send your comment via email at CopyrightConsultation at preferably before Friday September 9, 2011.

Here are my comments on Questions 1, 2, 3 and 5.

We would like to thank the UK Intellectual Property Office for its timely and important request for comments regarding a possible treaty to facilitate sharing of accessible formats by people with disabilities. We agree that although further discussion on this text will be needed, this document represents real progress and that it is a very positive step toward agreement on an international instrument that would improve access for persons with print disabilities to copyrighted materials.

Our comments are in regard to document SCCR/22/15 Rev. 1 which was tabled for discussion at the June 2011 SCCR22 meeting and was sponsored by a number of member states including the USA, the EU and its 27 Member States, Brazil, Mexico, Ecuador, Paraguay, Argentina, Norway, Uruguay, Columbia, Chile, Russia and Australia. It was agreed in the conclusions to the meeting that this text, amended and renamed SCCR/22/16 Prov. 1 that would form the basis of further text based work at the next meeting of the Committee at the next meeting in the Fall 2011. The amended and renamed version is not yet available on the WIPO website and thus our comments will regard SCCR/22/15/Rev. 1 with the understanding that SCCR/22/16 will be the basis for the next discussions.

Question 1. Does the text strike the right balance between rights holders and beneficiaries?

In general yes, but there should be some amendments to ensure an improvement of not only the number of works in accessible formats available, but also the clarification and legalization of the sharing across borders of such works. We would like to point out that while there are millions of people who need accessible format, the market has proven to be still too small for publishers themselves to provide accessible works. In addition, the supposed potential risks for publishers, for example that people without disabilities will use of accessible formats, is as of yet unproven if not totally unrealistic. Publishers and right holders have not provided any evidence of infringement in jurisdictions where there is no need for permission from right owners, and where digital accessible formats are available behind a firewall for specific beneficiaries. There are new technologies and devices created everyday and establishing a clear legal international framework for creating and sharing accessible formats of works for the benefits of people with disabilities will also benefit right owners.

Question 2. Does the text need amending? If so, what amendments would you propose?

- "accessible format copy"
means a copy of a work in an alternative manner or form which gives a beneficiary person access to the work, including to permit the person to have access as feasibly and comfortably as a person without a print disability. The accessible format copy must respect the integrity of the original work and be used exclusively [by persons with print disabilities].

The last sentence should be amended to read "used exclusively by beneficiary persons as defined in Article B."

-"authorized entity"
means a governmental agency, a non-profit entity or non-profit organization that has as one of its [primary missions] to assist persons with print disabilities by providing them with services relating to education, training, adaptive reading, or information access.

The bracketed language should be amended to "objectives" since "primary missions" would be too limiting for many institutions, such as school libraries in many countries.

An authorized entity maintains procedures and policies or rules to [establish the bona fide nature of] persons [with print disabilities] that they serve.

The bracketed language should be deleted and replace with "An authorized entity maintains procedures and policies or rules to determine the beneficiary persons in accordance with Article B. An authorized entity has the trust of both persons with print disabilities and copyright rights holders. It is understood that to obtain the trust of right holders and beneficiary persons, it is not necessary to require the prior permission of said right holders or beneficiary persons.

This language is nebulous and restrictive and should be removed. It is not clear how an authorized entity will possess “trust” from persons with print disabilities as well as the right holders. Potentially, this language could be read as an obligation for an entity to obtain trust, and it is unclear how it would do so. This section should be eliminated as the language will create confusion and potentially impose a high burden on an authorized entity.

-"reasonable price for developed countries"means that the accessible format copy of the work is available at a similar or lower price than the price of the work available to persons without print disabilities in that market.

This language should be amended to take into account the disparities in incomes between persons who are visually impaired and those who do not have disabilities or impairments.

The provisions on cross-border exchange of works are contained in Articles D and E. Although Article D provides for the export of accessible format works, this provision is limited only to an “authorized entity.” Although Article E permits a beneficiary person to import works, neither Article D or E provide any permission for a beneficiary person to export accessible format works, which could prevent a person with visual impairment from sharing an accessible copy to another beneficiary person in another country.

Nothing herein shall prevent Member States/Contracting Parties from addressing the relationship of contract law and statutory exceptions and limitations for beneficiary persons.

This language should be deleted or modified in a way that would make the rest of the document meaningful. As it currently stands, this language is open to the interpretation that Member States are free to require contracts even with a statutory exception or limitation for beneficiary person, effectively rendering such exception, and the spirit of the treaty, useless. This article is unnecessary and should be removed from the text.

Question 3. Are there any aspects missing from the text?

As was pointed out by Gilles Vercken and Louis-Maris Armanet in their responses to the Association littéraire et artistique internationale (ALAI) survey presented in Dublin in June 2011 on exception for people with disabilities, the instrument would be better if it was clearly taking into account the need of people who train and educate people with disabilities. In many countries, educators or parents would not be included in the beneficiaries unless expressly included.

Additionally, missing from the definitions section is clarification of the term “print disabled’ or “print disabilities.” Although these terms are used throughout the document, failure to define this phrase implicates works that are considered “born digital,” such as e-book formats. The term, if it is to be used at all, must be defined with clarity and such a definition should acknowledge our rapidly growing technology and include works that are born digital.

The proponents of a joint recommendation pretend that it would be faster than reaching consensus for a binding treaty, but these critics of a binding instrument are in fact wasting precious time. Making the text a recommendation instead of a treaty actually slows the process down by distracting negotiators from work on the more important blinding instrument and eliminates the urgency to deal with the treaty.

A WIPO Model law was available in 1981 and the first recommendation describing a need for an international instrument by UNESCO/WIPO working group was published in 1983. Re-creating a recommendation almost 30 years later seems counter productive. Another Recommendation that does not require countries to take actions to improve domestic exceptions or liberalize export and import rules is a way to deny a much needed binding instrument for people with disabilities.

Question 5. If a joint recommendation, what are your views on a possible two-step approach, ie a joint recommendation followed by returning to discussions on a treaty at a later date?

We have seen what the soft approach, the 1983 recommendation, has provided. It amounts to little considering the technical possibilities. We still see how many resources are wasted in countless negotiations when permission is needed in each country that needs an accessible format of a work. In other words, “the first step” has already happened and it has demonstrated the need to have clear and binding rules that can be adopted and implemented by all countries. The proponent of the two-step approach may hope that it is the way to actually shrink legal options for imports and exports. It is possible to imagine that at every negotiations, the publishers will try to narrow down the scope of the treaty as much as possible which may render the work done by the committee since 2008 useless.

The next formal negotiation at the WIPO SCCR 23 will take place in November 2011, when WIPO will also discuss a possible treaty for performers and broadcasting organizations, two areas where a binding agreement is considered the goal by right-holders. There will be pressure to support a two-step approach that is seen by many as an effort to kill the treaty, and is designed to provide a public relations benefit to the countries that want to block a diplomatic conference on the treaty.

In conclusion, today the WIPO SCCR member states have a real opportunity to make a difference in the life of millions of persons who have little or no access to works. By supporting a treaty for the blind and visually impaired persons, the European Union and its member states can advocate for the rights of persons with disabilities and lead by example. The treaty will build upon the UK and other European countries legal traditions which make possible the creation and distribution of accessible versions of copyrighted works without the permission of copyright owners, to ensure that persons with disabilities have the access to knowledge necessary to support their full and effective participation in society on an equal basis with others. This access will also ensure the opportunity to develop and utilize their creative, artistic and intellectual potential, not only for their own benefit, but also for the enrichment of society.