It is still not clear whether a diplomatic conference will be convened or not to put the final touches on and to sign a Treaty. Negotiations continue today. The main difference now is “commercial availability” whereas the exception cannot be used if an “accessible work” exists somewhere. This means that blind organizations could not make formatted copies in their countries if any kind of accessible format is available on the market, even if the technical, software or price demands are completely out of reach of the vast majority of blind persons. In most EU countries and the US the “commercial availability” condition does not exist in national exceptions to copyright. This is clearly a case of legislation laundering, bringing in restrictions on copyright exceptions through the back door of international negotiations when it would be impossible to change national legislation. This over-regulation would create legal uncertainty (blind groups would not know when there is “availability”), administrative burdens and would, ultimately severely limit the ability of producing affordable, flexible and technically viable accessible formats for millions of visually impaired – especially in the global South. This could be called “access chill”.
Commercial availability and the inclusion of “the three step test” in the articles of the Treaty are the two main “red lines” for some EU states like France, Singapore, Japan and a few others.
The EU has not come clean in supporting an effective and agile Treaty. The EU is the main block stopping the convening of a diplomatic conference with their radical copyright enforcement positions that they want to include in the Treaty to serve as a precedent for FTAs, future EU law and future international exceptions. The Publishers´ lobby is the main group behind everything the EU is doing. The EU in 3 years has never made even one proposal that makes visually impaired access easier.
Today, Friday November 23rd, is the moment of truth at WIPO. This evening a diplomatic conference should be convened in 2013 that finally signs the WIPO copyright exception Treaty for the Visually Impaired and other Print Disabled Persons. Anything less will be considered a failure by all.