Opening intervention of TransAtlantic Consumer Dialogue at WIPO Diplomatic Conference for Visually Impaired Persons in Marrakesh
“Balance” is one of the words most commonly used during the discussions of a Treaty for the Visually Impaired. Many delegates at this diplomatic conference speak of achieving “balance” between the needs of millions of blind and other print disabled persons and the rights of copyright holders. But this Treaty is not about balance but instead about correcting the enormous, immoral and historic imbalance between blind persons who are deprived access to culture and education and a publishing industry that already has many laws that protect it, between most sighted persons who can access millions of books and the visually impaired who have been deprived of many of the benefits of the information technology revolution.
This Treaty must be about repairing injustice instead of creating new restrictive global copyright enforcement laws through the backdoor, about eliminating blatant human rights discrimination instead of a biased imposition on the poor global South of technical protection measures, commercial availability clauses and anti-fair use “three step test” amendments. It is true: some entertainment industry lobbyists are trying to cynically use the visually impaired Treaty as a vehicle for building strong barriers against any future global copyright reform. If not, why are there so many movie industry and other audio-visual industry lobbyists present here today?
To the contrary, establishing new global norms for copyright exceptions for the visually impaired is an attempt at injecting a doses of common sense into the copyright system, an old regime that is very ill-adapted to the digital age. It is a way of even helping to legitimize a system that has an increasingly low level of social acceptance.
Over the past few months we have heard from industry representatives that allowing blind persons to have easy access reading material on a non-profit basis could “severely weaken international copyright law”. Even some EU and US representatives have been carried away by this neurotic paranoia of potential piracy that has never been substantiated by any empirical evidence.
The shameful double-standards of the EU and the US is specially stunning. While the US and most EU member states have clear, simple and easy to use national exceptions to copyright for the visually impaired, both the EU and the US refuse to accept the extension of these rules to the rest of the world. If a set of laws have worked fairly well in the US and European, why are they not valid globally? Instead, both the EU and the US want to add multiple layers of restrictive complications that go far beyoond their own laws into an international law for the visually impaired. The US doesn´t want to hear of “fair use” or “fair practices” in the Treaty while both terms are prevalent in the US legal copyright system. While there are no commercial availability clauses neither in the US nor in most of the EU, both want to enshrine this very complicated rule into the global Visually Impaired Treaty.
There has also been a clear democratic deficit and lack of transparency on the part of the EU in this discussion. The EU´s tough negotiating positions against many of the Word Blind Union´s proposals are in stark contrast to the positions and declarations of Europe´s democratic representatives in the European Parliament that have repeatedly supported a robust, uncomplicated and human rights oriented Treaty for the Visually Impaired. Unfortunately, until today the disgraceful and obstructive negotiating postures of the EU have been forged behind the closed doors of the EU Council where the narrow industrial interests of a few have taken priority over the common good of many.
This conference will only be successful if it is strongly supported and considered useful by its beneficiaries, millions of visually impaired represented by the World Blind Union. Any other result would be totally irrational. Failure is not an option.
David Hammerstein, TACD