Copyright: Towards a recognition of users’ rights at WIPO?

Last week (December 14th-18th), the World Intellectual Property Organization’s standing committee on copyright and related rights (SCCR) was considering, among other things¹For the full agenda, see http://keionline.org/node/721, a proposal by Brazil, Ecuador and Paraguay for an international treaty aimed at increasing the accessibility of books for blind people. The SCCR eventually decided to initiate “focused, open-ended consultations” regarding exceptions and limitations for print-disabled persons, and will then consider whether it is ready to move forward with a treaty.

Because the public interest objective of granting persons with reading disabilities access to books is so compelling, over 50 countries already have included specific limited exceptions in their legislation. In the European Union, the EU Copyright Directive (EUCD) allow Member States to implement limited exceptions “for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability” (article 5.3.b).

At the moment, WIPO treaties only provide a general framework for exceptions to copyright – the so-called Three-Step test. For the first time, the proposed treaty would impose a specific exception to all signatories in order to favor the rights of the public. This issue needs to be addressed: millions of visually impaired people in Latin America, Asia and Africa suffer a chronic shortage of accessible reading material. In developing countries, less than 0.5% of published works are available in formats that reading disabled persons can read. Even in richer countries, 3% to 5% of published works are available in the main languages (English, Spanish, German, French) but the legal uncertainty of copyright laws severly restricts the import and export of these works across borders. As expert studies have shown, current international law limits the access to knowledge and forces very costly, unnecessary duplication of accessible formats.

Whereas recent modifications of international copyright law sought to further expand the exclusive rights of copyright owners²See for instance, the 1996 WIPO Treaty, transposed in the EU by the 2001 EUCD directive, the proposed treaty – backed by the World Blind Union – would give rights to the users of copyrighted works by encouraging the production and the cross-border sharing of accessible books between reading disabled people’s organizations around the world. By pooling their resources, these organizations would be able to increase the number of books digitized into an open format accessible to visually impaired persons³the Daisy format which includes features like narration and digitized Braille, see http://www.daisy.org/ (see the background paper by Brazil, Ecuador and Paraguay on WIPO Treaty for improved access for blind, visually impaired and other reading disabled persons).

Despite an intense campaign of US lobbies (U.S. Chamber of Commerce, the Motion Picture Association of America and the Recording Industry of America, also strong proponents of the dangerous ACTA agreement), the United States finally decided to adopt a pragmatic approach by agreeing to discuss the proposal, while also requiring that alternatives to a WIPO treaty be explored. On December 15th, the US delegation stated that:

However, the European Union is not in favor of applying worldwide limitations and exceptions on copyright for the visually impaired. Surprisingly, the EU – represented by the European Commission before WIPO – even opposed the creation of a working group to work on the matter. Despite the fact that it is clear that national or EU policies alone cannot solve this problem of access to culture for the blind, the European Commission is arguing in favor of national solutions and promises to monitor the situation within the EU. The EU sucessfully introduced an amendment to the SCCR’s conclusions that deleted the reference to a possible future treaty providing a framework for copyright limitations and exceptions for persons with print disabilities. Such a position only seems to reflect a dogmatic vision of copyright too often displayed in the European Union.