TACD letter to WIPO SCCR 17 delegates on WBU proposal

The following letter was distributed to WIPO SCCR 17 delegates on November 3, 2008.

TACD support of World Blind Union proposal for a WIPO treaty for blind, visually impaired and other reading disabled persons.

November 3rd, 2008

Dear WIPO SCCR Delegates:

The Transatlantic Consumer Dialogue is a forum of US and EU consumer organisations which develops and agrees joint consumer policy recommendations to the US government and European Union to promote the consumer interest in EU and US policy making. At present, TACD’s membership includes 26 US. and 48 European consumers organizations.

TACD strongly supports the October 28, 2008 proposal by the World Blind Union (WBU) to the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) for a “WIPO Treaty for Improved Access for Blind, Visually Impaired and other Reading Disabled Persons.”

Since 2003, the WBU has petitioned the WIPO SCCR for action to address their need for global harmonization of limitations and exceptions for the blind, and to ensure that accessible formats of copyrighted works that are created under such limitations and exceptions can be exported and imported, in order to facilitate the global distribution of accessible works over the Internet.

In the WIPO SCCR, the delegations from Chile, Brazil, Uruguay and Nicaragua have all proposed work on limitations and exceptions, asking that priority be given to vulnerable populations.

In February 2007, WIPO published a report by Judith Sullivan, titled, “Study on Copyright Limitations and Exceptions for the Visually Impaired.” This 233 page report provided a strong basis for norm setting at WIPO to address the concerns of visually impaired and other reading disabled populations.

In a resolution adopted July 2008, TACD has asked the U.S. and members of the European Union to support work within the SCCR to address the needs of the visually impaired. That resolution read in part:

Except from Resolution on WIPO Negotiations on Copyright Limitations and Exceptions, with Special Reference to the Needs of Visually Impaired Persons and Access to Orphan works. TACD DOC No. IP 05-08, JULY 2008.

The World Blind Union (WBU) has on several occasions petitioned and provided comments to WIPO asking the SCCR to address the need for norm setting in the area of minimum L&E, in order to improve their access to protected works. As detailed in their several submissions and comments to the SCCR, and discussed at length in WIPO’s February 2007, 227 page “Study on Copyright Limitations and Exceptions for the Visually Impaired” (SCCR/15/17), the products and services that are needed by the visually impaired are most effectively provided globally, across national borders. As WIPO’s 2007 study noted, “copyright legislation is territorial in nature… Where activity is undertaken across jurisdictions, it is usually, therefore, extremely difficult to determine with certainty what parts of that activity are lawful and what parts are not.” The World Blind Union reports and WIPO confirms the extreme complexity and legal uncertainty of navigating different national copyright regimes, in order to publish works and services for the visually impaired in one country that are used in another country. The WBU has called for global norm setting to create the type of harmonization and legal certainty needed in the area of minimum L&E, in order to facilitate investment in services that are essential for expanded access to protected works for visually impaired persons.. .

What is true for the visually impaired is true for others groups and industries – namely that there are areas where cross-border publishing and innovative services cannot fully develop without greater harmonization and legal certainty regarding minimum L&E. However, the case for early action for the visually impaired is particularly clear, given the extensive research already undertaken in this sector, and the fact that it involves a highly vulnerable population.

An agreement on minimum L&E for visually impaired persons will present challenges, but with a modicum of good will by the EC and the US, it should be achievable. One benefit of early action to address the concerns of the visually impaired is that it may provide a concrete model for addressing other areas where there are compelling benefits of harmonization of minimum L&E. But in any event, it should move forward now.

TACD specifically calls upon the EC and US to meet with representative of TACD and World Blind Union to discuss this issue, and to propose, by the WIPO General Assembly in September 2008, a concrete proposal for addressing norm setting for the minimum L&E needed to expand investments in publishing and services for visually impaired persons. This proposal should anticipate a draft treaty on minimum L&E for the visually impaired be presented in the November 2008 SCCR meeting, and discussed further in the 2009 SCCR meetings, with a goal of scheduling a diplomatic conference in early 2010.

The topic of copyright limitations and exceptions is an agenda item for the program of the 17th SCCR meeting on November 3-7, 2008 in Geneva.

As noted in the TACD resolution and as explained in several WBU submissions to the WIPO SCCR and in the 2007 WIPO Sullivan report (SCCR/15/7), national laws on limitations and exceptions for disabled populations lack harmonization and are often out-of-date as they related to modern information technologies. Digital copies of copyrighted works can now be transmitted over the Internet and distributed to disabled populations in formats that support indexed and searchable access to works using audio, refreshable Braille and large type readers. Some national laws do not address the new publishing platforms that are important to the disability community, and the current legal environment does not allow for the export and import of works across borders. This has the consequence of severely restricting access to copyrighted works for 37 million blind persons, 124 million persons of low vision, and millions more with other disabilities. The WHO estimates that 90 percent of visually impaired persons live in developing countries, with almost no access to copyrighted works.

The WBU is deeply involved in efforts to obtain voluntary licenses for access to such works, yet the reality is that only a tiny fraction of copyrighted works licensed for use in available accessible formats. Using limitations and exceptions to copyrights, some countries have created some important collections of works in accessible formats, but cannot export those works to countries that lack such collections.

The WBU has provided the SCCR with a concrete proposal to address their concerns. It deserves to be considered by the SCCR and discussed.

While the SCCR of course is not obligated to embrace the exact proposal that has been presented by the WBU, it does have an obligation to address their core concerns. How can the disabled community realistically achieve “full and equal” access to works?

TACD urges the SCCR to respond to the WBU with the urgency and seriousness that the issue demands. The first step is to agree to discuss the WBU proposal, and a priority proposal in the context of a larger work program on copyright limitations and exceptions.

Sincerely,

Anne-Catherine Lorrain

TACD Intellectual Property Working Group

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See notes and pictures from WIPO SCCR 17 on KEI blog.