ORAL STATEMENT BEFORE WIPO BY DAVID HAMMERSTEIN, TACD
Filibusterism and lack of democratic legitimacy against the right to read of the visually impaired
After years of campaigning on the part of blind persons NGOs, consumers and human rights groups, the World Intellectual Property Organization is finally having a special 3 day session on creating an exception to copyright for reading material formatted for millions of visually impaired persons. Will the international community assume its responsibility to satisfy the fundamental right to read for disabled persons?
The fight for access to reading material for the visually impaired is facing an unprecedented attempt at filibustering on the part of the EU and the US. This obstructionism of a legally binding treaty takes many forms: numerous changes in the agenda for an issue over-due for years, endless technical debates and, more importantly, now an attempt to paralyze indefinitely any move towards a legally binding international treaty until “voluntary” and “soft” solution are tried.
As well as practicing filibusterism to avoid considering a legal exception to copyright the EU and it member states have a problem of democratic legitimacy. The EU is ignoring the opinion of its democratically elected representatives, the European Parliament, who voted on May 12th of this year to support a legally binding Treaty for the Visually Impaired based on the proposal of the World Blind Union.
One has to ask the question: Who exactly do the EU member states represent here? In any open, transparent democratic debate they would have no choice but to support a legal treaty for the visually impaired. But, instead, despite all the evidence and the majority position of the MEPs, they prefer the lack of transparency, the obscurity of back room deals with content industry lobbyists.This is ethically and morally shameful.
Today at WIPO the EU representatives and EU member states suffer from lack of democratic credibility and transparency.
As far as the content of the proposals for a common framework go, why do the EU and the US want to impose incredibly restrictive, expensive and unworkable conditions for cross border exchange of books on the global South when these restricts go light years beyond their own internal laws? Why are the US and EU suggesting tortuous second class treatment for millions of visually impaired persons in the developing countries when domestic EU and US laws are far more flexible and generous? Can it be that what is good for copyright exceptions at home is not good for the rest of the world? Why do they feel blind organizations should first get the permission of rights holders to distribute works when this is not the case in most countries of the North. If no empirical evidence has been produced to show any economic harm caused by exceptions to copyright in the EU and the US, how can some EU countries possibly speak of “disproportionate harm” in the case a treaty is approved globally?
While the EU and the US still insist on “recommendations” and “stakeholder dialogues”, we all know that voluntary arrangements have never worked. While the EU and US push “hard” legal treaties for performers and broadcasters, why do they only promote “soft” law for the visually impaired?
At the end of the day this debate is not really about exceptions, it is about legally permitting the widespread movement of reading materials across borders just as they flow within most Northern countries. There is very little real danger of increased violation of copyright with a global exception. If someone violates the terms of the exception, they could face prosecution according to laws already on the books in most countries. An exception does not at all mean opening the gates to anarchy, it has not happened inside the countries where exception for the visually impaired are already in place.
Many countries of the North place all hope for the access of books on a voluntary “stakeholders process” that today is a farce. The Stakeholder process today is only a one-sided publishers and rights-holders forum because the European Blind Union and the World Blind Union are not participating in it until a global legal norm approved by WIPO. So the EU´s un-democratic proposal of focussing on the stakeholder processes both inside and outside the EU is not even viable because it is seen by blind persons groups as only a weak excuse used by the EU for not supporting the Treaty.
The latest form of Filibusterism, or endless procrastination, on the part of the EU and US has taken on the form of the so-called “2 step process”: “first we try a voluntary recommendation for a number of years and, then, if it does not work, we might consider a treaty”. In the process, “we get these bothersome NGOs and blind persons groups off our backs, we push the issue off the WIP agenda for 3 to 5 years and we gain the eternal gratitude of a few publishers in their ideological battle”. At the end of the day, this is a fight more about basic principles than concrete economic interest.
Unfortunately, today is also time to Name and Shame the outright obstructionism of countries like France and Switzerland who are dragging their feet on any pragmatic agreement on a framework text for helping access to books by the visually impaired. Spain is also calling for a period of over 5 years of testing voluntary schemes before considering a decision on a treaty. (especially surprising given they seem not to want to share their tens of thousands of formatted Spanish books for blind persons with Latin America!).
It is clear that we must choose between strict copyright or human rights. You have that choice.
David Hammerstein, TACD