TWN Info Service on Intellectual Property Issues (Jun13/08)
25 June 2013
Third World Network

Dear friends and colleagues,

The final lap of the intergovernmental negotiations on the Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities is taking place on 18 to 28 June in Marrakesh.

The Diplomatic Conference under the auspices of the World Intellectual Property Organisation (WIPO) is expected to end with a signature ceremony on the last day. The negotiations began in 2008 based on a joint proposal by Brazil, Ecuador and Paraguay.

However, the report from TWN first published in SUNS #7611 reveals continuing deep differences among the negotiating governments.

With best wishes,
Third World Network

WIPO: Access to published works for the visually impaired

Marrakesh, 21 Jun (K. M. Gopakumar) -- The concluding negotiations on the Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities are faced with unresolved issues.

The Diplomatic Conference for this new treaty formally started on 18 June in Marrakesh, and is expected to conclude on 28 June with a signature ceremony.

The negotiations began in 2008 based on a joint proposal by Brazil, Ecuador and Paraguay. The treaty aims to provide literary and artistic works 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 visual impairment/print disabilities (accessible format).

This treaty is expected to end what the World Blind Union (WBU) terms "book famine". According to WBU, only 7% of published books are ever accessible in formats such as Braille, audio and large print in developed countries and less than 1% in developing and least developed countries (LDCs).

The proposed treaty creates an exception to copyright protection in order to facilitate the conversion into accessible format and cross-border exchanges of accessible format without the permission of the copyright holder to meet the needs of blind, visually impaired or people with reading disabilities.

Negotiations during the last five years brought consensus on the nature of the document and broad approach to the issue, but there is lack of consensus on a range of issues translating these provisions into legal obligations.

Generally speaking, major differences of opinion are over four areas.

[The draft text of the treaty contains the preamble and eight Articles, and these articles are: Definitions (A), Beneficiary Persons (B), National Law Limitations and Exceptions on Accessible Format Copies (C), Cross Border Exchange of Accessible Format Copies (D), Importation of Accessible Format Copies (E), Obligations Concerning Technological Measures (F), Respect for Privacy (H), and Cooperation to Facilitate Cross Border Exchange (J). See http://www.wipo.int/edocs/mdocs/diplconf/en/vip_dc/vip_dc_3_rev.pdf]

The first two days of ongoing negotiations focused on two issues viz. commercial availability test requirement under Article D (3) and technological protection measures (TPM) provisions in Article F. Even though there is advancement in the negotiations, Member Sates are yet to arrive at an agreed language.

Article D of the draft treaty contains provisions to facilitate the cross border exchange of the copies of the work in accessible format without the authorisation of the copyright holder. Considering the technological divide, it is an important provision to facilitate the transfer of works in accessible format from developed countries to developing countries.

However, there is no consensus whether such cross border exchange should be confined between authorised entities among the Member States or whether such exchange can take place between the authorised entity and beneficiary persons. Further, there is no consensus on Article D (3), which imposes a "commercial availability" test as a condition to facilitate the cross border exchange of works in accessible format.

The current draft text contains the following three proposals in square brackets:

Alternative A: [The Member State/Contracting Party may limit said distribution or making available of published works which, in the applicable accessible format, cannot be otherwise obtained within a reasonable time and at a reasonable price, in the country of importation.]

Alternative B: [A Member State/Contracting Party should/shall[/may] prohibit said distribution or making available to published works where the exporting authorized entity, prior to making available or distribution, knew or should have known that a copy in the particular accessible format could have been obtained through the distribution channels customary to the beneficiary persons, [under reasonable terms, including] at prices that take account of the needs and incomes of beneficiary persons in the country of importation [, as well as the cost of producing and distributing the work].]

Alternative C: [A Member State/Contracting Party [should/shall/may] limit distribution and making available under this Article in cases where the exporting authorized entity, prior to the distribution or making available, [knew/knew or should have known/knew or had reason to believe] that the work, in the particular accessible format, could be obtained commercially under reasonable terms for beneficiary persons in the receiving country.]

These draft provisions provide discretion to the member country of the treaty to restrict the export of the work in accessible format to another member country citing "commercial availability". In other words, it imposes a burden of proof on the authorised entity in the exporting country to show that the work in accessible format is not commercially available under reasonable terms in the importing country.

According to the WBU, "Attachment to this requirement appears driven by the publisher lobby, rather than by a focus on increasing access to books for blind people. Though publishers usually do not sell accessible books to blind people, they still want the reassurance that should they start to do so, there is no way the treaty could allow ‘competition' with a book they are selling in an accessible format".

The WBU fears that the commercial availability test undermines the practical use of Article D mainly for the following reasons. First, creating the bureaucracy of checking something that would be difficult, if not impossible, to verify fully. Second, creating the "chilling effect" that comes from blind organisations fearing that they would be sued, even if they DID try to check "commercial availability", were they to fail to "spot" a commercially available accessible book in the country to which they wanted to send a book using the treaty.

Nearly nine hours of negotiations failed to arrive at an agreed language on Article D (3). It is learned that the initial negotiation started with strong demands from developing countries to drop the commercial availability requirement. However, the current approach is to recognise the discretion to limit the distribution but do not impose any burden on the authorised entities to prove the lack of commercial availability in the importing country. Finally, two days of negotiations resulted in the formulation of the four alternative draft text on Article D (3).

A developing country delegate informed the author that there are three proposals on the table: First, the deletion of the commercial availability test altogether, then the proposal from the Africa Group and an informal proposal initially proposed by India.

The fourth draft text circulated at 7.30 pm on 19 June shows four options.

Option 1 is for "No provisions about the commercial availability in the text of Article D."

Option 2 states: "The Member State/Contracting Party may limit distribution and making available under this Article in cases where the work, in the particular accessible format, can be obtained commercially under reasonable terms for beneficiary persons in the receiving country".

The EU's proposed statement reads: "It is understood that reasonable terms also take into account the needs and income of beneficiary persons in the receiving country and whether works, in the particular accessible format, can be obtained through the distribution channels customary to beneficiary persons in that country. Furthermore, it is understood that this Article does not imply (that national law should impose) any duty on the exporting authorized entity to investigate whether the work in the particular accessible format can be obtained under reasonable terms for beneficiary persons in the receiving country or any action that will delay the distribution or making available of the accessible format copy to beneficiary persons."

The US's proposed agreed statement reads: "It is understood that the criteria for reasonable terms will be a matter for national determination consistent with that Contracting Party's existing international obligations. Furthermore, it is understood that this paragraph neither requires nor implies (that national law should impose) a duty on the exporting Authorized Entity to investigate, whether the work in the particular accessible format can be obtained commercially in the receiving country and that national law pursuant to this paragraph should not prevent effective and timely access to works for beneficiary persons".

Option 3 proposed by the African Group proposes an additional paragraph to Para D (3) which reads: "Whenever an Authorized Entity in a Contracting Party/Member State requests a copy of an accessible format copy, such requests shall constitute sufficient evidence that the work requested is not commercially available in the importing country for beneficiary persons".

Option 4 is an informal proposal combining the first paragraph of Option 1 and of Option 3 with a set of "friendly amendments". This proposal shifts the burden of assessing whether the work in accessible format is commercially available or not, to the Authorized Entity in the importing country from the Authorized Entity in the exporting country.

Further, the proposal clearly states that, "whenever an Authorized Entity in a Contracting Party/Member State requests a copy of an accessible format such requests shall constitute sufficient evidence that the particular accessible format of the work requested is not commercially available in the importing country for beneficiary persons ...".

This proposal was initially proposed by India; however, India withdrew the proposal primarily due to the increasing number of "friendly" amendments to its proposal. Hence, it now remains as Option 4, as an informal proposal.

Another important issue is with regard to the TPM contained in Article F. According to the WBU, in the absence of an explicit exception to TPM, organisations such as itself would encounter problems: "... without such a provision, lawful and important use of the treaty provisions could be prevented simply by adding a ‘digital padlock'/TPM to a digital work. If there were no mention of TPM in the treaty, then the breaking of such a ‘padlock', even if only specifically to use the treaty provisions in a legitimate fashion, could be deemed illegal".

However, there is no agreed language on Article F. The current draft text contains two alternative texts A and B.

Alternative A reads:

"1. Member States/Contracting Parties 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."

Alternative B reads:

"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."

However, there is a US proposal contained in the Annex as a note to Article F that reads: "Proposed addition from US: It is understood that a Contracting Party may adopt such effective and necessary measures [only where] [provided that] [on the condition that] the actual or likely adverse impact of the Contracting Party's law protecting technological measures on the beneficiary person's lawful use of the work is established by credible evidence in a transparent legislative or administrative proceeding."

According to a delegate from the African Group, the negotiations are currently focusing on an Australian proposal. This proposal currently enjoys wide support from Member States, including Switzerland, Argentina, Ecuador, Canada, Chile, Brazil, Holy See, Japan, India, the African Group, Guatemala, Bangladesh, China, Kenya, South Africa and Morocco.

An observer noted that the overwhelming support including from Group B countries like Japan, Switzerland etc isolates the US position, which insists on a more stringent wording.

The Australian proposal reads: "A Member State/Contracting Party shall ensure effective and necessary measures in accordance with that Member State/Contracting Party's national copyright law regarding technological protection measures such that beneficiary persons are not prevented from enjoying limitations and exceptions under this instrument/Treaty."

The other important unresolved issues are the following:

First, the application of Article D on Cross Border Exchange of Accessible Format Copies and Article E on Importation of Accessible Format Copies to individual users mentioned as "beneficiary user".

Article B of the draft treaty defines a beneficiary user as a "person who (a) is blind; (b) has a visual impairment or a perceptual or reading disability which cannot be improved to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability; or (c) is otherwise unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading, regardless of any other disabilities."

The exceptions created under draft Articles D and E are restricted to only the Authorized Entity which is defined under the treaty as "an entity that is authorized or recognized by the government to provide education, instructional training, adaptive reading or information access to beneficiary persons on a non-profit basis. It also includes a government institution or non-profit organization that provides the same services to beneficiary persons as one of its primary activities or institutional obligations. ... establishes and follows its own practices, i) to establish that the persons it serves are beneficiary persons; ii) to limit to beneficiary persons and/or authorized entities its distribution and making available of accessible format copies; iii) to discourage the reproduction, distribution and making available of unauthorized copies; and iv) to maintain due care in, and records of, its handling of copies of works, while respecting the privacy of beneficiary persons in accordance with Article H."

The restriction of the application of Articles D and E to only an Authorized Entity is a restriction on the utility of the treaty.

Secondly, the inclusion of the right to translation within the scope of exception provided under Article C. Draft Article C 1(B) states that, "Member States/Contracting Parties may also provide an exception for the right of public performance [and the right of translation] to facilitate access to the work for beneficiary persons as defined herein."

Many developing countries feel that it is important to include the right to include translation (currently in brackets), otherwise the utility of the treaty would be minimal. The negotiations on this issue did not result in an agreement to remove the square brackets.

Thirdly, there is also difference of opinion on Article J which proposes cooperation to facilitate cross border exchange. There is no agreed language.

There are two options in square brackets:

[To foster the cross-border exchange of accessible format copies, Member States/Contracting Parties shall endeavor to facilitate 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.]

[The International Bureau shall collect, where available, anonymous and aggregated data relating to the cross-border exchange of accessible format copies for the evaluation of the functioning of this instrument/Treaty.]

Apart from the abovementioned bracketed texts, there is an alternative proposal contained in the Annex of the draft treaty. This text contains detailed procedural requirements that civil society organisations fear would affect the working of the treaty even though such measures are voluntary.

Fourthly, there is no consensus on the application of a three-step test to Article D, a proposal contained in Article D (4) and the annex to the treaty. This three-step test confines limitations or exceptions to exclusive rights, to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.

Hence, the application of the three-step test permits the cross border exchange of the work in accessible format only in certain special cases that do not conflict with the normal exploitation of the work [/accessible format copies] and do not unreasonably prejudice the legitimate interest of the author. This makes the actual use of Article D, i. e. the cross border exchange of the work, subject to additional burden.

The proposal for the application of the three-step test to this treaty is widely believed to accommodate the interest of the Motion Picture Association (MPA).

The negotiations on this issue on 20 June remained inconclusive. The informal negotiations in the Main Committee were suspended at 6 pm to convene another informal consultation known as "informal informal" to come out with consensus text among the interested parties on mainly three contentious issues viz. commercial availability, TPMs and the three-step test.

However, the midnight sitting of the informal consultation was confined to the issue of commercial availability and could not make any progress to reach a consensus, mainly due to the adamant stand of the EU.

While deadlock remains on the contentious issues, the Main Committee resumed negotiations on 21 June on an agreed statement to include audio books within the definition of work.