Tuesday, November 27, 2012

Getting Close to a Treaty!

The latest session of the Standing Committee on Copyright and Related Rights (SCCR) at the World Intellectual Property Organization (WIPO) just concluded last week. The session was pretty successful, in that the Committee called for an extraordinary general assembly meeting in December with the aim of calling a diplomatic conference to finalize the Treaty for the Visually Impaired in June 2013. There is a draft of the treaty that was finished on Friday, November 23, and many issues have been settled over the last year or two of negotiations.  The rest of this post looks at this draft treaty in its current form.

Expert Advisors Review the Treaty for the WBU


I’ve been here in Geneva the last few days, meeting with the World Blind Union immediately after the SCCR session. The WBU convened a small meeting of experts to take a close look at the treaty draft from an operational and technical standpoint. They wanted a fresh perspective on the treaty text from the point of view of the people (authorized entities like Bookshare and its peers) that would be taking advantage of the treaty to do more to help people with print disabilities access the information they need for education, employment, health and everything else needed for full inclusion in society. This draft represents the latest state of the negotiations at WIPO. Content contained in square brackets in the draft is still being negotiated, and the remaining content is assumed to be agreed (at least, we certainly hope so!). The technical advisers reviewed the treaty specifically to look at how authorized entities and consumers with print disabilities would be able to operate if the treaty passed in its current form (with all bracketed material omitted) or with some of the bracketed additions included. We did not look at this as legal experts, but rather as organizations that are dedicated to serving people with disabilities. Here are our recommendations to WBU, to inform the next round(s) of negotiation based on the 11/23 draft.

Problems with the Treaty as is

If the Treaty were passed as is, with all bracketed materials dropped, we see only two painful omissions. The first issue is that the treaty would not permit direct access by consumers to international authorized entities. The only way you could import and export books would be directly between organizations, not people. Everyone who is not disabled globally can directly access Amazon.com and order books. We think that it is essential that the Treaty allow for direct provision (known in the tech field as B2C, or business to consumer) of accessible materials, especially for consumers in developing countries who lack access to local authorized entities with the capacity to meet their accessibility needs. The second item is because Article G on contracts was dropped from the treaty completely this week (earlier drafts had said that contracts wouldn’t be able to overrule accessibility). Being silent on the big issue of circumvention would lead to a world where accessibility could be prohibited by contract. This is especially a problem as the world moves to electronic books, which have license agreements (contracts, that are rarely looked at by consumers) that almost always prohibit making them accessible. We believe that this means that circumvention needs to be addressed in the Treaty to ensure that access does not become a dead letter in an increasingly digital world, where people with disabilities get locked out of ebook content by contractual and technical means. Therefore, we recommend that the WBU strongly advocate for:
  • the inclusion of Article D(2)B, allowing authorized entities to export accessible content directly to people with qualifying disabilities in other countries,
  • that the bracketed text in Article E read [them] and not [authorized entities], permitting the importation of accessible content by people with qualifying disabilities from authorized entities in other countries, and
  • Article F, Alternative A, is an effective way of permitting accessibility work to proceed. Alternative B qualifies this issue so much as to make it ineffective. 
 If the Treaty passed with these three fixes, we think that it would be an effective treaty that would meet the social goals of the WBU to greatly improve access to reading for people with print disabilities. 

Commercial Availability 

With respect to the bracketed materials in the current draft, here are our concerns with bracketed clauses that might end up being in a treaty. First, the concept of commercial availability is a real concern. Since many of our organizations operate as libraries, we note that commercial availability of a book rarely impacts the availability of that book on the shelves of a library. Why should people with disabilities be denied library services because the book might be available for sale in an accessible format? Libraries exist to serve those who do not always want to buy books, either because they cannot afford to buy the books because of their economic status (a real concern for people with disabilities generally, and especially in developing countries) or because they need to look at many books perhaps only once or twice and don’t want to buy them (for example, for doing research or school reports) . Many library users are active book purchasers, and we want to encourage blind people who can afford accessible books to purchase them, without denying them access to a library for that content. As experts in this field, we feel strongly that publishers should ensure that their ebooks are universally designed, so that people with disabilities can purchase and use ebooks obtained through mainstream channels. But, we don’t think people with print disabilities should be denied access to library services just because the book is for sale. We don’t think the commerciality issue belongs in the treaty. One of the bracketed sections on commerciality makes the exporting authorized entity responsible for knowing the state of specific book distribution in the country where the disabled person lives. This undercuts one of the major goals of the Treaty, which is to encourage authorized entities in richer countries to actively assist beneficiaries in other countries. If this was in the Treaty, it would make the treaty useless because these organizations would find this burden a strong disincentive to helping users in other countries. Please note that we are not objecting to the clause in the Treaty at the bottom of Article D charging us to be responsible for not exporting accessible materials if we know (or would have reasonable grounds to know) that such materials would be used by people who do not qualify under the Treaty.

Information Point at WIPO 

Article J needs to be watched, to ensure it doesn’t become a back-door method of control used to exclude authorized entities that would otherwise meet the requirements of the treaty. If it indeed is simply a place where any authorized entity (broadly interpreted) can reasonably get added to a resource list, it might be helpful.

The Three Step Test 

As our organizations that are not copyright mavens, we don’t particularly care about the three step test one way or the other, as long as it doesn’t get in the way of utilizing the provisions in the treaty. We put this in the following way:
  • If the treaty says something like: all of these provisions are considered to meet the three step test as presented, we don’t have a problem. We have been assuming that an exception to help the blind and disabled has to be a great example of a provision that meets the three step test.
  • If the treaty says, all of the treaty provisions need to be respected, but by themselves are not good enough, they need to be subjected to an additional three step process beyond meeting the requirements of the treaty, then we’re concerned that it’s a back-door way to undo the substance of the treaty. 
Articles D4, alternatives A or B, as well as Article Ebis, alternatives A and B, all seem to introduce the three step test in a way that seems to throw the entire treaty into question to us. And, we don’t understand some of the other three step mentions and if they might also have similar problems. That’s a matter for the legal experts to take a look at for the World Blind Union.

Conclusion

There are other issues in the bracketed sections that may be worthy of attention, but the ones we mention above are the ones that struck us as being important to note. As the one American person at the meeting, I also noted the subtitle of the World Blind Union's press release on the latest negotiations: “Talks in the balance: EU backs treaty leaving USA isolated." The USA seems to be holding out against calling this instrument a treaty, something for which we and many leading US disability organizations have been advocating. We hope that the World Blind Union is successful in convincing the USA to join with the rest of the world in backing this work as a treaty, and that they are able to convince the WIPO negotiators to drop the problematic bracketed sections for good from the treaty! If they can, I'm sure we'll end up with a treaty that truly helps people who are blind or have print disabilities globally, while safeguarding the interests of authors and publishers.   

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