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Info Service on Intellectual Property Issues (Jun13/10) WIPO: Hectic, contentious negotiations on treaty for visually impaired Marrakesh, 25 June, (K M GopaKumar) – Hectic negotiations are in progress at the Diplomatic Conference to find a solution to contentious issues on the Treaty to Facilitate Access to Published Worksby Visually Impaired Persons and Persons with Print Disabilities (Treaty). The Diplomatic Conference under the World Intellectual Property Organization (WIPO), which started on 18 June, is expected to present the final text at the plenary on 27 June. Eight days of formal and informal negotiations did not succeed in finding consensus on contentious issues onthe “commercial availability” test requirement under Article D (3) and Technological Protection Measures (TPM) provisions in Article F on individual rights to import the work in accessible format copy and the right to translation. (see SUNS#7611 dated 24 June). After late night informal negotiations by the facilitator, Martin Moscoso, Director of the Copyright Office of Peru, the WIPO Secretariat circulated an informal consolidated text on 25 June. The Secretariat also released another document containing a list of outstanding issues and a list of resolved issues. The list of outstanding shows 11 issues that are still unresolved. However, the informal consolidated text shows that there are still brackets in issues shown in the list as resolved. [The facilitator is entrusted with the task of bringing together various interested parties and to produce a consensus text for the consideration of the Main Committee.] The informal consolidated draft that was circulated shows that there is little progress on the above-mentioned contentious issues. However, there is consensus on other issues. The informal text, after incorporating administrative provisions and final clauses, now contains 22 Articles. Commercial Availability The informal text shows three options on commercial availability in Article 5 (Article D in the Draft Text VIP/DC/3 REV). The proposed commercial availability clause is in Article D 3 provides freedom to the exporting country to limit the cross border exchange of accessible format copy of a work if it is available in the importing country. In other words, the commercial availability clause can be used to limit the obligation under Article D to facilitate cross border exchange of work in accessible format. Under the Treaty, persons living with visual impairment and reading disability would be able to gain access to works in accessible format, which currently already exists in developed countries. However, the European Union is the main group pushing for the inclusion of the commercial availability clause. The informal text shows three options. Option 1 proposes dropping the commercial availability requirement all together from Article D. Option 2 proposes a commercial availability requirement with a rebuttable presumption that the request from an authorized entity for an accessible format copy constitutes the lack of commercial availability in that contracting party. Option 2 reads: “[In special circumstancesthe flexibilities][The flexibility] in Article [C(4)] shall apply mutatis mutandis to the distribution and making available of accessible format copies under Article [D] with the following additional conditions: a)Whenever an Authorized Entity receives a request from an authorized entity in another Contracting Party for an accessible format copy of a work, such request shall be [presumed] sufficient evidence that the work in the particular accessible format cannot be obtained commercially under reasonable terms for beneficiary persons it serves in that market.” The footnoted proposed agreed statement concerning Article [D3a] reads: It is understood that the [presumption/conclusion] in paragraph a) can be rebutted only by clear and substantial evidence to the contrary consistent with the Contracting Party’s legal system and practice. “b) Nothing in this article shall imply or require that a Contracting Party imposes in its law or otherwise that an Authorized Entity that receives a request for an accessible format copy of a work has a duty to investigate whether the work in the particular accessible format cannot be obtained commercially under reasonable terms for beneficiary persons in that market.” The footnoted Agreed Statement concerning Article [D3a and b] reads: “For the purpose of this Article, it is understood that reasonable terms in the receiving country include inter alia timely access, price and the practical ability to use the particular accessible format copy. This whole proposal is in brackets: “[Agreed statement concerning Article [D3]: It is understood that the requirements of commercial availability under reasonable terms referred in Article [C(4)], when applied for purposes of Article [D], will be subject and evaluated according the conditions of the receiving country.]” Option 3 proposes an irrefutable presumption on the lack of commercial availability on the basis of the request from the authorized entity from the importing country. It reads: “Whenever an Authorized Entity in a Contracting Party/Member State requests a copy of an accessible format copy, such request shall constitute sufficient evidence that the work requested is not commercially available in the importing country for beneficiary persons.” Technological Protection Measures (TPM) Regarding TPM the 25 June consolidated text shows an agreement in the draft text, however, there is no consensus on the agreed statement, which is still within square brackets. Article F reads: “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 concerning Article […] reads: “[it is understood that Authorized Entities, in various circumstances, choose to apply technological measures, in accordance with national law, in the creation, distribution and making available of accessible format copies and nothing herein requires or implies that those uses of technological measures should be circumvented.]”. This Agreed statement proposed by the United States implies that developed countries like the US may put a legal obligation on the Authorized Entities to digitally lock the accessible format copy of the work and this may restrict the freedom to unlock the digital lock in the importing country. Even though the first sentence of the agreed statement provides the freedom to unlock as per the provisions of the national law, the second sentence creates confusion about that freedom. Individual Right to Import Accessible Format Copies The consolidated text shows no consensus on the right of individuals to import the accessible format copy of a work without going through an Authorized Entity. Limiting the right of importation to Authorized Entities would restrict the benefit of the Treaty to a small number of people by creating unnecessary procedural requirements. Further, it indirectly imposes restrictions on the enjoyment of exhaustion of rights available to individuals. In many WIPO Member States under the international exhaustion doctrine, individuals can legally import introduced copies from any jurisdiction without any restrictions. Article F reads: “To the extent that national law of a Contracting Partywould permit abeneficiary 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 thatContracting Partyshall also permit [them/authorized entities] to import an accessible format copy for the benefit of beneficiary persons,without the authorization of the right holder”. The Agreed Statement reads: “it is understood that Authorized Entities, in various circumstances, choose to apply technological measures, in accordance with national law, in the creation, distribution and making available of accessible format copies and nothing herein requires or implies that those uses of technological measures should be circumvented”. This Agreed statement creates a confusion regarding the right guaranteed under Article F if TPM is introduced by an Authorized Entity. Apart form Article F there is text in square brackets in Article D, which reads: “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”. Right to Translation There is also no consensus on the right to translate. Certain WIPO Member States’ copyright law currently provides for the right to translation for visually impaired persons. For instance, the copyright law of Japan provides for the right of translation and adaptation for the purposes of visually impaired persons. The current language in the consolidated text on the right of translation is in square brackets. “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”. The footnoted proposed agreed statement on the right of translation is in brackets and reads: “It is understood that this Article/paragraph neither reduces nor extends the scope of applicability of the limitations and exceptions permitted under the Berne Convention.] Further, the consolidated text provides the following three options: Option (1): no provision. Option (2): self-standing agreed statement. Chile and the US’s proposal reads: [It is understood that this paragraph neither reduces nor extends the scope of applicability of the limitations and exceptions permitted under the Berne Convention, including to the right of translation.] Option (3): provision.
Informal negotiations coordinated by the facilitator outside the main venue are at a hectic pace at the time of writing.
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