November 27, 2012 Communications Daily - A 2013 treaty conference on copyright exceptions for the visually impaired moved a step closer at the meeting of the World Intellectual Property Organization Standing Committee on Copyright and Related Rights (SCCR) that ended Friday. Details continued to be debated. But the committee approved a "draft text of an international instrument/treaty on limitations and exceptions for visually impaired persons/persons with print disabilities" and recommended that an extraordinary General Assembly Dec. 17-18 decide "whether to convene a diplomatic conference in 2013 to adopt a legal instrument/treaty."

"The convening of the extraordinary session is a serious commitment by the member states," said Michele Woods, director of the WIPO Copyright Law Division. The debate about the nature of the instrument was clearly moving into the direction of a full-fledged treaty, he told us. "A joint recommendation seems less likely now." Several delegations have changed their positions on a treaty over time, with the European Union, which had been favoring soft instruments or voluntary solutions, being the latest addition.

Justin Hughes, head of the U.S. delegation at the SCCR meeting, said during the closing session: "We believe that a book famine exists and that we can go here a substantial way part of the way, not all way, to address it." The World Blind Union (WBU) has described a "book famine" in which "only some 7 percent of published books are ever made accessible in formats such as Braille, audio and large print in the richest countries, and less than 1 percent in poorer ones." Hughes said the delegation would take the "working document home ... work diligently to explain it in Washington, seek support for it in our capital and we are hopeful of bring back a favorable decision in December." But Hughes said there's still "considerable work that we have to do to conclude this."

The U.S. delegation did not give a final nod to a treaty, several non-governmental organizations noted. "The USA delegation still has not pronounced the word 'treaty' at these negotiations," said a WBU news release. "It is now the only major negotiator not to do so." Maryanne Diamond, leader of the WBU delegation, said during the closing session: "The USA has had time decide its position on a treaty -- it is now high time it made its support clear." James Love, director of the activist organization Knowledge Ecology
International, criticized the U.S. for not committing itself to a treaty: "We are disappointed that the U.S. after all these years and still now after they got all their red lines wiped out of the draft text cannot say that there will be a treaty."

The new draft text developed last week eliminates a provision on the relationship between the limitations and contract clauses. Developing countries had wanted to declare null and void contracts that would override the limitations, but developed countries wanted to avoid such linking. Also gone are attempts to include deaf people as beneficiaries in the contract, or extend the scope to audiovisual works in more general terms. Controversial issues that remain include the question of whether there's a responsibility for either exporters or importers of accessible books to determine if the work came from a legal copy. According to the cross-border paragraph, accessible format copies shall be made available to authorized entities in other member countries or, given certain conditions, directly to beneficiaries in the other member country.

Dan Pescod, who leads WBU's European campaign for the treaty, still worries about a push for "complicated rules and restrictions on us in the remaining text-based negotiations," he said. Pescod is afraid that's still on the agenda of the European Union, he said. "We must not allow that to happen, or the treaty will be of little or no use to the people it is supposed to be for: blind, partially sighted and print disabled people."

Concerns remain, but the EU was "politically committed to address the need of blind and visually impaired people in an effective and balanced instrument, including a treaty, in a such a manner that it does not affect the existing copyright system," said an EC official who negotiates for the EU. Some EU observers, like former member of the European Parliament David Hammerstein, who represents the Trans-Atlantic Consumer Dialogue, warned about what they considered the lukewarm position of the EU. Hammerstein said "the main difference now is 'commercial availability' whereas the exception cannot be used if an 'accessible work' exists somewhere." Even if the technical, software or price demands were completely out of reach of the vast majority of blind persons, recognized agencies could then not go forward to provide copies.

Woods was optimistic about the chance for a 2013. "While there always is the possibility that a treaty conference could fail, there is a lot of good will to come out of the diplomatic conference with a positive result for the blind and visually impaired," he said. "One of the important things would be to allow enough time during the conference to have a thorough discussion and come to agreement over remaining open issues." -- Monika Ermert