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WIPO Treaty for Improved Access for Blind, Visually Impaired and

By Lucille Simpson,2014-11-28 06:13
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WIPO Treaty for Improved Access for Blind, Visually Impaired and

    WIPO Treaty for Improved Access for Blind, Visually Impaired and other Reading Disabled Persons

Executive summary

    Many millions of EU citizens, such as blind or dyslexic people, have a disability which prevents them from reading standard sized print. They can read the same books as the rest of the EU’s citizens, but require “accessible formats” of these books, such as large print, audio or braille. However, publishers rarely make such books, and so it is mostly left to charities to do so with scarce resources. As a result, only some five per cent of published works are ever made available in accessible formats. This is a “book famine”.

    There are many ways to solve the “book famine”. The best would be for publishers to publish more accessible books. Cooperation between publishers and organisations making accessible books can also help with the transfer of digital files, licensing agreements and more. (This is the context of the EU “Memorandum of Understanding”

    thbetween rights holders and disabled people’s organisations that will be signed on 14

    September see 3.3 below).

    However, there is an ongoing and unmet need for international copyright law to be changed, so that organisations in the EU which make accessible books can legally share their collection with others in countries outside the EU, and vice-versa. That would increase the number of accessible books available to print disabled EU citizens and to people in other countries who share a language with an EU Member State.

    The World Blind Union has drafted a proposal for a World Intellectual Property Organisation (WIPO) treaty to tackle this problem. That proposal was tabled at WIPO by Brazil, Ecuador and Paraguay in May 2009. However, the EU opposed it. At WIPO in June 2010 the EU proposed a more limited and non-binding legal instrument, which met with no approval from the many disabled people’s NGOs at WIPO.

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    Now is the time for EU Member States to live up to their responsibilities under the UN Convention on the Rights of Persons with Disabilities. The way to do this is to work actively and positively with other WIPO Member States to devise a binding legal norm, based on the treaty proposal drafted by the World Blind Union and tabled at WIPO in 2009.

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1. Background

    This paper offers a short explanation of the treaty proposal made by Brazil, Ecuador and Paraguay at WIPO SCCR 18 in May 2009. It also outlines the EU’s role in both

    these international negotiations and at EU level.

    1.1 Who are “visually impaired and reading disabled persons?”

    The term visually impaired persons refers to blind or partially sighted people. According to the WHO, 161 million people worldwide are blind or visually impaired; a further 153 million have an uncorrected visual impairment. 87 per cent live in developing countries.

    Reading disabled people are all those who, due to an impairment that may be physical, sensory or other, cannot read standard print. For example, a person without sight, a person whose sight is severely impaired, a person unable to hold or manipulate books or to focus or move his or her eyes. It also applies those who have a perceptual or cognitive disability which prevents them from reading standard print.

    To be clear: the term does NOT apply to all disabled people. For instance, a person with a perceptual or cognitive disability, but who is able to read standard print, is not “reading disabled”.

    In theory, reading disabled people can read any book a non-reading disabled person can read, thanks to so-called “accessible formats”. These formats do not change the content of a work, but rather the way in which the person reading accesses it. They include large print audio, Daisy [http://www.daisy.org/] and braille.

1.2 Book famine

    In practice, even in the wealthiest markets, less than 5 percent of published books are accessible in the formats mentioned above to people who are reading disabled.

    For example, in the Netherlands, around 2000 new adapted Dutch titles a year are available to people with reading disabilities thanks to the work of specialist agency Dedicon. Yet some 40,000 titles were published in the Netherlands that year.

    This is a “book famine” depriving people of access to education, culture and entertainment.

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1.3 Sharing scarce resources

    Ideally a treaty would not be needed if publishers always published in accessible formats enabling persons with reading disabilities to buy books in the format of their choice. But until this day comes we need the treaty to enable resources to be shared worldwide. This will avoid duplication of expense and effort and provide a wider range of resources for education, life long learning and recreation to the millions of people who are currently denied this access now

    Most accessible books are made by specialist agencies using charitable money. In over 90% of cases they use copyright exceptions to produce accessible books. Their resources are scarce even in high-income developed countries.

    At present specialist agencies in different countries, but with a common language, often both transcribe the same book. They cannot avoid this needless duplication by sharing one accessible file or copy. This is because the copyright exceptions they use to make the accessible version are national in scope.

    Below are two examples of the problem the treaty proposal seeks to resolve. The first demonstrates needless duplication. In the second, the five countries mentioned have not found the resources to make accessible copies of the books held in Argentina and Spain. Due to copyright barriers they have to go without these books altogether.

Example 1.

    When Harry Potter and the Chamber of Secrets (Book 2) by J.K. Rowling was published the English speaking visually impaired organisations around the world had to produce 5 separate national braille master files and 8 separate national Daisy audio master files. Had they been able to avoid the unnecessary use of financial and production resources for this duplication they could have produced a further 4 braille titles and a further 7 Daisy audio titles for sharing around the world.

Example 2.

    Voluntary organisations in Chile, Columbia, Mexico, Nicaragua and Uruguay have only 8,517 books in alternative formats between them. However, Argentina has 63,000 books and Spain 102,000. All these countries speak Spanish.

    Imagine if reading disabled people in Argentina and Spain were able to legally share their alternative format books with their Latin American colleagues in other countries

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    thanks to a copyright exception permitting cross-border exchanges. That would immediately and radically increase the number of readable titles for reading disabled people in the five countries mentioned above.

1.4 Need for treaty

    To achieve the sharing of accessible books between reading disabled people's organisations and resolve the problems mentioned above, there is a need for international harmonization of limitations and exceptions to copyrighted works. An international treaty on copyright exceptions for reading disabled people would be an effective way to do this.

    In 1985, the Executive Committee for the Berne Convention and the Intergovernmental Committee of the Universal Copyright Convention published a report by Ms Wanda Noel, a Barrister and Solicitor from Ontario, Canada, on the topic of Problems Experienced by the Handicapped in Obtaining Access to Protected Works, as Annex II to a report of an agenda item "Copyright Problems Raised by the Access by Handicapped Persons to Protected Works." Ms Noel focused on the barriers to both

    the production and distribution of such materials. She recommended to WIPO and UNESCO "an entirely new international instrument which would permit production of special media materials and services in member states, and with the distribution of those material and services amongst member states without restriction."

    On numerous occasions the World Blind Union, the International Federation of Library Associations (IFLA) and others have asked WIPO to address the need for new global norms to expand access to works under copyright limitations and exceptions, focusing in particular on the need for sharing copies of accessible works across borders.

    Therefore, in May 2009 Brazil, Ecuador and Paraguay proposed a "WIPO Treaty for Improved Access for Blind, Visually Impaired and other Reading Disabled Persons". Please find copies in various languages at the link below:

    http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=122732

    The draft treaty that was devised would remove the copyright grey area identified by the WIPO Sullivan Study (2006) by formally allowing works made accessible under a copyright exception in one country to be shared with other countries, whilst respecting the rights of the authors and other rights holders. (The Sullivan study can be found at: http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=75696)

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1.5 WIPO Stakeholder Platform

    When the WBU treaty was proposed, rights holder organisations immediately called for the setting up of a WIPO “Stakeholder Platform” where the publishing industry and disabled people’s organisations could explore licensing-led solutions to the “book

    famine”. Rights holders maintained that this Platform should replace the treaty proposal.

    However, the proposed treaty is not anti-market and for WBU is not an alternative to the WIPO "Stakeholder Platform". The two approaches are complementary.

    The Stakeholder Platform work is indeed designed to improve both the availability of commercial versions that are accessible and to improve the flow of suitable files to be converted. It also uses licensing to achieve its goals. However, a copyright exception is always going to be needed. Exceptions are designed to solve problems that arise where commercial licensing is not effective. They come into play, for instance, where

    ; Publishers select not to produce accessible digital versions

    ; Libraries need to provide braille and tactile graphics, and descriptions in the case

    of audio works, which commercial publishers are not expected to make available.

    (Even if a commercial version has basic accessibility features, there will be the

    need to provide these tactile versions through copyright exceptions.)

2. The main aims of the treaty proposal

    This section outlines the main concepts and aims of the treaty proposal. This treaty is about enabling parity and equity to all persons who are reading disabled throughout the world being able to access published material ensuring they can participate in every part of life they choose education, employment, life long learning or just for pure pleasure and recreation

    2.1 Who are the beneficiaries?

    The beneficiaries would be reading disabled people only. (See 1.1 above) 2.2 What kinds of works does the treaty cover?

    Article 4 sets out the criteria. The work must be legally obtained, converted to an accessible format and supplied exclusively for reading disabled people

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2.3 Which exceptions and limitations are being proposed?

    The treaty would create limited exceptions to the exclusive rights of authors under copyright, in order to make an accessible format of a work, and to distribute copies to persons who have reading disabilities. The treaty would allow the cross-border export and import of accessible works that are created under such exceptions.

There is a right to circumvent technological protection measures, when this is necessary 1to render a work accessible.

    Provisions in private contracts that are contrary to the exceptions would be null and void.

    The exceptions in the treaty are split into to two categories. For activities undertaken on a non-profit basis, the exception is easier to use, and does not require payment of royalties to authors. There is also the possibility of a for-profit company using the exemptions, but only when an accessible format is "not reasonably available in an identical or largely equivalent format" from the copyright owner, and when the for-profit entity provides both notice and "adequate remuneration" to the copyright owner.

    The non-profit exception is mandatory, but countries are allowed to opt out of the for-profit exception.

    2.4. What will the treaty achieve that the Stakeholder Platform will not?

    Collaboration with rights holders is very important. However, there are many instances where specialist agencies and reading disabled people will need to make and share accessible format works themselves. Currently over 90% of accessible works are made available by specialist agencies using national copyright exceptions without publisher files.

     Notwithstanding the work of the Stakeholder Platform and other collaboration with rights holders, the treaty would, alone, provide for:

    ; The sharing of existing files/ collections (see the Latin American example, but

    note that such benefits would also help French, Portuguese, Arabic speaking and

    all other multi-national language groups).

    ; The sharing of new books/ files made accessible by exceptions rather than

    licensing (90%+ of current files are made that way by specialist agencies)

     1 For instance, where a protection measure stops a blind person from using a text-to-speech screen reader to read a legally acquired book

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    ; Legal cover to modification of works to better describe them to blind people, such

    as descriptions of images

    Importantly, the treaty ensures that reading disabled people's organisations can help themselves (while doing no harm) rather than leaving them to merely hope for help from others - help which the 5 per cent figure proves has been lacking for many years.

    Even with the best will from all parties, and great progress, nobody can sensibly argue that ALL books will be provided by ALL rights holders to ALL reading disabled people in the foreseeable future. For the many instances where the rights holder files cannot be obtained, national and international law should provide for reading disabled people's organisations to make and share accessible copies.

    2.5 Consistency with international law

    The text is consistent with obligations set out under core international treaties and conventions, such de Declaration of Human Rights, the UN Convention on the Rights of Persons with Disabilities. (See in particular Articles 21 and 30)

    http://www.un.org/disabilities/default.asp?id=150

    Article 32 of the Convention, on "International Cooperation", calls for States around the world to work together to meet the aims of the Convention. Were the WIPO treaty proposal to be adopted, it would represent a tangible example of such cooperation.

    The proposal is modest and limited in scope, and it respects the rights of rights holders. We are not proposing a “revolution”!

3. EU action in this field

3.1 Obligation to act

    The EU and its Member States have an obligation to act to solve the “book famine” by virtue of their signing of the UN Convention on the Rights of Persons with Disabilities. In particular, Article 21 of the Convention states that disabled people have the same right to access information as others. Article 30 states that intellectual property rights should not be a barrier to access to cultural materials. 2

    2 “States Parties shall take all appropriate steps, in accordance with international law, to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials. “

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3.2 EBU asks for revision to EU Copyright Directive

    In 2008 the European Commission published a Green Paper which asked for guidance on the future of EU copyright law.3 The European Blind Union explained the book

    famine and urged the Commission to harmonise and make mandatory the provision in the EU’s copyright directive (Directive 2001/29/EC) which allows for copyright exceptions for disabled people in Article 5.3(b) 4 . That would be the simplest way of

    allowing blind people’s organisations to share their accessible books across Member State borders in the EU.

3.3 European Commission says “no” but sets up a “Stakeholder Dialogue”.

In its communication “Copyright in the Knowledge Economy” COM(2009) 5325 the

    Commission acknowledged the problem faced by reading disabled people in the EU. However, mindful of industry opposition, the Commission declined to reopen the directive and strengthen the exception. Instead, in a parallel with the proposal for a Stakeholder Platform at WIPO the Commission proposed an EU Stakeholder Dialogue.

    Like its WIPO counterpart, this group brought together representatives from the publishing and rights holding industry and representatives from the blindness community (the European Blind Union).

3.4 EU opposed WBU treaty at WIPO

    hMeanwhile, at the 18 of WIPO’s twice-yearly Copyright Committee meetings (SCCR

    18), the EU implacably opposed the World Blind Union treaty proposal tabled by Brazil, Ecuador and Paraguay. This opposition continued at SCCR 19 in December 2009, until the USA formerly also opposed to the treaty- made a much softer intervention which countenanced the possibility of such a treaty at some stage. That pushed the EU Member States in attendance to rapidly consult capitals in an effort to avoid being embarrassed by the USA change of position which had made the EU’s intransigence

    seem draconian.

3 COM(2008) 466/3 GREEN PAPER Copyright in the Knowledge Economy

    http://ec.europa.eu/internal_market/copyright/docs/copyright-infso/greenpaper_en.pdf

     4 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:NOT

     5 http://ec.europa.eu/internal_market/copyright/docs/copyright-infso/20091019_532_en.pdf

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In May 2010, WIPO held two days of “open-ended consultations” on the issue of access

    6During this for reading disabled people and the protection of audiovisual performances. session, the USA tabled a proposal to address the import/export of accessible format books. The USA proposal would be non-binding and would not cover all the issues in the WBU treaty proposal. The EU made no proposal of its own at these “consultations”.

    3.5. EU proposed non-binding WIPO instrument which includes a publisher veto

    In June 2010, at SCCR 20, the EU tabled its own proposal, which it had been working on for some months. See the last document, SCCR/20/12 at this link: http://www.wipo.int/meetings/en/details.jsp?meeting_id=20200

    The EU proposal if accepted- would not be binding in nature, unlike the WBU treaty. The EU proposal would also make publisher approval a prerequisite for an organisation wishing to use its provisions to send books online. It does this by requiring publisher approval of the agency (called a “Trusted Intermediary” in the proposal) wishing to use

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    The concept of a “Trusted Intermediary” arises in the EU work that the European Blind Union and publishers have been undertaking voluntarily to try to alleviate the “book

    famine”, in the “EU Stakeholder Dialogue” mentioned above. This Dialogue has given

    rise to a “Memorandum of Understanding” (MOU), in which publishers and charities agree to work together on file sharing and licensing. The MOU sets out criteria under which organisations can be accredited as “Trusted Intermediaries” in order to receive publisher licenses and files for international use.

    However, the whole point of a WIPO legal instrument on access for print disabled people, such as the one proposed by the EU, should be that it kicks in where the market

     6 http://www.wipo.int/meetings/en/details.jsp?meeting_id=20305

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    The EU proposal says

    “The work in an accessible format can only be made available online through a Trusted Intermediary established for that purpose for the Member State where the person with a print disability resides.

    "Trusted Intermediary" is an approved institution whose activities must have the consent of both, persons with a print disability and rights holders such as publishers.”

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