A treaty to improve access to copyrighted materials for the visually impaired was recently introduced at World Intellectual Property Organization (WIPO) by Brazil, Ecuador, and Paraguay. The treaty received no direct objections, however, different opinions were expressed as to how to treat the proposal and other limitations and exceptions in the future.
For many this seems like a Deja-Vu from 1982 when WIPO and UNESCO considered possibilities of using exceptions under the Berne Convention to expand access to copyrighted work for visually and auditory impaired persons. The debates are similar with respect to the issues discussed and parties involved in the negotiations. The only difference seems to be the current emphasis on the international transfer of works.
The Treaty
The treaty aims at providing flexibilities in copyright laws that are needed to ensure full and equal access to information for persons who are visually impaired or otherwise disabled in terms of reading copyrighted works, in order to enable them to effectively participate in society on an equal basis.
The World Health Organization (WHO) indicates that there are more than 161 million visually impaired persons around the world. More than 90% live in developing countries. According to World Blind Union (WBU) and KEI’s report it is estimated that at most 5% of published materials are globally available for visually impaired persons. Furthermore, it is reported that this figure is significantly lower in developing countries due to global copyright restrictions regulating the import and export of copyrighted works. However, there may be other factors contributing to the scarcity of formatted materials, for example, a lack of available resources in developing countries to produce and distribute formatted materials could be one factor.
In order to address the shortage of materials, the proposed treaty permits non-profit organizations to produce accessible formats of copyrighted works without the authorization of the right holder. The produced materials can be distributed by any means, for the benefit of the visually impaired persons. The treaty, by making possible for libraries and service organisations to share content, allows cross-border import and export and has provisions regarding “notice to rights owners and remuneration for commercial reproduction”, “a database on availability of works”, and on “orphan works”.
Views Regarding the Treaty
The proposed treaty is supported by a large number of civil society NGOs, the World Blind Union, the National Federation of the Blind in the US, the International DAISY Consortium, Recording for the Blind & Dyslexic (RFB&D), Bookshare.Org, and groups representing persons with reading disabilities all around the world. Furthermore, developing countries supported advancing work on the proposal.
The treaty was opposed by many developed countries. According to James Love, Director of Knowledge Ecology International, the developed countries’ resistance to the treaty stems from the lobbying of a large group of publishers. The publishers oppose the treaty since they see it as a “paradigm shift, where the treaty would protect consumer interests, rather than expanding the rights of copyright owners”.
Although the treaty was distributed last fall, Germany, representing Group B (developed countries), stated that “deliberations regarding any instrument would be premature” as they are still in the fact finding and evaluation stage.
According to the statement provided by the USA, providing accessible formats of copyrighted material to the visually impaired is a challenging task and includes addressing a set of complex and intersecting factors, including application of copyright and disability laws and economical factors.
Canada supported a participant-based solution allowing multiple approaches for domestic production of accessible formats, which would include exceptions or compulsory licences. Canada stated that this would not refrain international exchange of accessible materials for visually impaired, however further discussions are necessary to address the issues regarding international transfer. It seems that Canada may be trying to block an agreement to discuss the treaty proposal at the next SCCR. Some Canadian authors, such as Cory Doctorow, have requested Canada to change its position and support such discussions.