TWN Info Service on Intellectual Property Issues (Jun13/11)
27 June 2013
Third World Network

WIPO: Treaty concluded for visually impaired to access published works
Published in SUNS #7614 dated 27 June 2013

Marrakesh, 26 Jun (K. M. Gopakumar) -- Major breakthrough negotiations on an International Treaty for Visually Impaired Persons/Persons with Print Disability concluded late night on 25 June.

The Treaty creates a legal obligation on the part of the Contracting Party to provide an exception or limitation in its national copyrights law on the right of reproduction, the right of distribution, and the right of making available to the public, to facilitate availability of the works in accessible format copies.

The Treaty covers persons with blindness, visual impairment, reading disability or any other physical disability which prevents them from holding or manipulating a book or to focus or move their eyes in the normal speed.

The informal negotiations on the final night resolved the major contentious issues related to the requirement of commercial availability, the Berne Gap (countries that are not Parties to the Berne Declaration for the Protection of Literary and Artistic Works) and the three-step test, individual right to import an accessible format copy of a work, technology protection measures (TPM), the right to translation, cooperation to facilitate cross-border exchange and concerns of least developed countries (see SUNS #7611 dated 24 June 2013).

The major achievement of the negotiations is in three areas: First, negotiators decided to drop the commercial availability test requirement in the importing country for the cross-border exchange of an accessible format copy of the work. Secondly, the right of importation is extended to individuals, hence, any beneficiary person can import the work directly from an authorised entity from another country. Thirdly, there is an obligation on the part of Contracting Parties to take appropriate measures to prevent content providers from digitally locking the work to prevent its conversion to an accessible format copy.

COMMERCIAL AVAILABILITY

Dropping of the commercial availability test is expected to facilitate the transfer of accessible format copies from developed countries to developing countries and to fill a knowledge gap that exists among the blind, visually impaired and persons living with print disability. Out of the three options from the negotiating text, the first option emerged as the preferred option (see SUNS #7611 dated 24 June 2013).

During the negotiations, it became untenable for the European Union (EU) to continue its demand on the insertion of commercial availability.

One observer cited two reasons for the EU's late flexibility, which resulted in the dropping of the commercial availability. First, globally, the commercial availability requirement is mentioned in the national laws of around six countries including the United Kingdom and Canada. According to this observer, except for the UK, no other EU Member State has a commercial availability requirement in their national law. Secondly, the European Parliament resolution, which provides the negotiating mandate for the European Commission to negotiate the treaty, does not mention the commercial availability requirement.

Article D of the draft negotiation text (Article 5 in the concluded text) now creates an obligation on the Contracting Parties to facilitate the cross-border exchange of an accessible format copy of the work.

Article 5.1 reads: "A Contracting Party shall provide that if an accessible format copy of a work is made under an exception or limitation or pursuant to operation of law, that accessible format copy may be distributed or made available to a beneficiary person or an authorized entity in another Contracting Party by an authorized entity".

The footnoted agreed statement concerning Article D (1) states, "It is further understood that nothing in this Treaty reduces or extends the scope of exclusive rights under any other treaty".

Under Article D (2), a Contracting Party may fulfill Article D (1) by providing an exception or limitation in its national copyright law by giving effect to: "(A) Authorized entities shall be permitted without the authorization of the right holder to distribute or make available for the exclusive use of beneficiary persons accessible format copies to an entity or organization in another Contracting Party that is an authorized entity. (B) Authorized entities shall be permitted, pursuant to Article A, to distribute or make available accessible format copies to a beneficiary person in another Contracting Party without the authorization of the right holder."

Further, Article D (3), i. e. Article 5.3 in the concluded text, states: "A Contracting Party may fulfill Article D (1) by providing other limitations or exceptions in its national copyright law pursuant to Article D (4) and Articles 10 and 11 viz. General Principles on Implementation and General Obligations on Exceptions and Limitations."

Article D (4), known as the Berne Gap provision and which aims to discipline countries that are not parties to the Berne Convention through the three-step test, reads:

"(1) When an Authorized Entity in a Contracting Party receives accessible format copies pursuant to Article [D(1)] and that Contracting Party does not have obligations under Article 9 of the Berne Convention, it will ensure consistent with its own legal system and practices that the accessible format copies are only reproduced, distributed or made available for the benefit of beneficiary persons in that/its jurisdiction.

"(2) The distribution and making available of accessible format copies by an Authorized Entity pursuant to Article [D(1)] shall be limited to that jurisdiction unless the contracting party is a Member of the WIPO Copyright Treaty or otherwise limits exceptions and limitations implementing this Treaty to the right of distribution and the right of making available to certain special cases which do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.

"(3) Nothing in this Article affects the determination of what constitutes an act of distribution or an act of making available."

The footnoted agreed statement on Article D (2) (4) mentioned in Article D (1) states: "It is understood that nothing in this Treaty creates any obligations for a Contracting Party to ratify or accede to the WCT (WIPO Copyright Treaty) or to comply with any of its provisions and nothing in this Treaty prejudices any rights, exceptions and limitations contained in the WCT."

Article D (4) (2) extends the three-step test to export purposes, which is viewed as a "Berne-plus" requirement.

This is viewed as a major concession given to developed countries. However, one observer pointed out that the extension of the three-step test to export purposes is subject to interpretation, citing the agreed statement to Article D (4) (2): "It is understood that nothing in this Treaty requires or implies a Contracting party to adopt or apply the three step test beyond its obligations under this instrument or under other international Treaties".

Another view is that the three-step test for export may not have an adverse impact on the cross-border exchange of accessible format copies of works. On the other hand, a much more cautious observer remarked: "Let's wait and watch".

DIRECT DISTRIBUTION

Negotiations resulted in the removal of the bracket on the word "them" and permits importation of the accessible format copy of the work by an individual beneficiary person or the person acting on behalf of the beneficiary person.

Article E (Article 6 of the concluded text) reads: "To the extent that national law of a Contracting Party would permit a beneficiary person, someone acting on his or her behalf, or an authorized entity, to make an accessible format copy of a work, the national law of that Contracting Party shall also permit them to import an accessible format copy for the benefit of beneficiary persons, without the authorization of the right holder".

The accompanying statement states: "It is understood that the Contracting Parties have the same flexibilities set out in Article C when implementing their obligations under Article E".

According to a delegate from the GRULAC (Group of Latin America and the Caribbean) region, certain developed countries attempted to insert the commercial availability test in Article E after agreeing to drop it from Article D.

TECHNOLOGY PROTECTION MEASURES (TPM)

The negotiations led to a consensus on the agreed statement, which now explicitly allows the circumvention of TPM applied by the Authorized Entities to facilitate access in accordance with national law. The agreed statement proposed by the United States initially contained language which created confusion regarding the freedom for an importing country to circumvent TPM applied by Authorized Entities.

Article F (Article 7 in the concluded text) states: "A Contracting Party shall take appropriate measures, as necessary, to ensure that when it provides adequate legal protection and effective legal remedies against the circumvention of effective technological measures, this legal protection does not prevent Beneficiary Persons from enjoying the limitations and exceptions established in this Treaty."

The footnoted agreed statement reads: "It is understood that Authorized Entities, in various circumstances, choose to apply technological measures, in the creation, distribution and making available of accessible format copies and nothing herein disturbs such practices when in accordance with the national law."

COOPERATION TO FACILITATE CROSS-BORDER EXCHANGE

Initially, there were proposals from both the EU and the US to include mandatory monitoring of activities by the International Bureau of WIPO which shall administer the Treaty. However, many developing countries and civil society organisations including the World Blind Union argued that creating such a requirement would affect the efficient functioning of the Treaty. Hence, the preference was for voluntary efforts.

The US delegation proposed an amendment to Article J (Article 9 in the concluded text) even after its adoption at the informal session of the Main Committee that negotiated the main provisions of the Treaty. The issue was raised again yesterday (25 June) which resulted in Paragraph J (2). At the same time, developing countries insisted on the incorporation of technical assistance provisions in Article J to facilitate the implementation of the Treaty in an effective way.

This was opposed by developed countries. However, the concerns raised by developing countries are reflected in Article J (4).

Article J states: "1. Contracting Parties shall endeavor to foster the cross-border exchange of accessible format copies by encouraging the voluntary sharing of information to assist authorized entities in identifying one another. The International Bureau shall establish an information access point for this purpose.

"2. Contracting parties undertake to assist their authorized entities engaged in activities under Article D to make information available regarding their practices pursuant to Article (A), both through the sharing of information among authorized entities, as well as through making available information on their policies and practices, including related to cross-border exchange of such formats, to interested parties and members of the public as appropriate.

"3. The International Bureau is invited to share information, where available, about the functioning of the Treaty.

"4. Contracting Parties recognize the importance of international cooperation and its promotion, in support of national efforts for realization of the purpose and objectives of this Treaty."

The footnoted agreed statement states: "It is understood that Article [J] does not imply mandatory registration for authorized entities nor does it constitute a precondition for authorized entities to engage in activities recognized under this Treaty; but it provides for a possibility for sharing information to facilitate the cross-border exchange of accessible format copies".

RIGHT TO TRANSLATION

Another important issue was the incorporation of translation right as part of Article C (Article 4 of the concluded text).

A consensus was reached to remove the words "the right of translation" from Article C (1) and to insert an agreed statement on Article C (3), which states: "It is understood that this paragraph neither reduces nor extends the scope of applicability of limitations and exceptions permitted under the Berne Convention, as regards the right of translation, with respect to visually impaired/print disabled persons".

LDC CONCERNS

Another issue was regarding the concerns of Least Developed Countries (LDCs) to incorporate the extension of the implementation transition period under Article 66.1 of the World Trade Organisation's TRIPS Agreement. Under the new extension, LDCs need not implement the TRIPS Agreement till 2021.

Article 12 of the adopted text addresses this issue: "Contracting Parties recognize that a Contracting Party may implement in its national law other copyright exceptions and limitations for the benefit of beneficiary persons than are provided by this Treaty having regard to that Contracting Party's economic situation, and its social and cultural needs, in conformity with that Contracting Party's international rights and obligations, and in the case of a least-developed country taking into account its special needs and its particular international rights and obligations and flexibilities thereof."

While celebrating the Treaty, several activists and negotiators point to two potential shortcomings of the Treaty.

First, the Treaty has no provisions to prevent the misuse of contractual provisions by the right holders who may impose conditions that explicitly prevent the conversion of the work into an accessible format copy. The use of contractual restrictions is one of the common tools used by copyright holders to prevent or limit users from making use of the limitations and exceptions on copyright. A draft article in this regard was deleted prior to the Diplomatic Conference during the negotiations at the WIPO Standing Committee on Copyrights (SCCR).

However, another negotiator points out that nothing in the Treaty prevents a Contracting Party by restricting such misuse of contractual provisions. Further, he also states that under the treaty there is a positive international legal obligation on the part of the contracting party to facilitate the conversion of accessible format copy, cross-border exchange of accessible format copy to individuals and authorized entity in another country and to allow importation of accessible format copy. Hence, non-prevention of misuse of contractual provisions would amount to violation of treaty obligation.

Second, the Treaty is silent on whether an Authorized Entity can make an accessible format copy of a work exclusively for export purposes even if the accessible format copy is commercially available in the country of export. Considering the technological gap existing between developed and developing countries, such a provision would have facilitated conversion of works into an accessible format copy as per the requirement of a developing country context by the Authorized Entities based in developed countries.

This concern was raised by the delegate of Ecuador many times during the informal negotiations at the Main Committee. Unfortunately, it failed to be captured in the final text.

The informal negotiations coordinated by the Facilitator (Martin Moscoso, Director of the Copyright Office of Peru) on the contentious issues got resolved around 9 pm on 25 June.

The outcome of the negotiations were then reported to the informal meeting of the Main Committee around 11 pm which decided to forward the consolidated text for the consideration of the Formal Session of the Main Committee.

The Formal Session of the Main Committee adopted the main provisions of the Treaty Text and referred to the Drafting Committee to check the language and drafting consistency.

The Treaty will be placed before the consideration of the plenary meeting of the Diplomatic Conference on 27 June for adoption.