Why a binding treaty for the visually impaired at WIPO?

The right to read for disabled people:Does the EU support a treaty for blind and other reading disabled people?
Session: Why a binding treaty for the visually impaired at WIPO?
May 4th, 2010 – European Parliament, Brussels

Good morning Ladies and Gentlemen,

My name is Bárbara Martin and I am the Director of the Technical Office of European Affairs of ONCE, the Spanish National Organization of the Blind.

First of all, on behalf of the entire organisation, I would like to thank the European Blind Union (EBU) and Transatlantic Consumer Dialogue for allowing us to explain why we are so concerned about a binding treaty for the visually impaired at WIPO is needed. But before that, and very briefly, let me introduce ONCE to you:

The Spanish National Organisation of the Blind is a Public Corporation with a social nature founded 72 years ago. Its mission is to improve the quality of life of blind and partially sighted people and to facilitate their full integration into society. In doing so ONCE provides services like access to education, access to employment, social integration and access to leisure and culture. None of them
would be possible without one of the pillars of accessibility: access to information.

Without delay, I will try to answer the question contained in this session’s title. The answer to the whole question can be very simple:

• to enable blind and partially sighted people to read a greater number of books adapted to their disabilities,

• To enable them to choose among a larger amount of titles in comparison with what they have at their disposal at present (around 5%).

But, really, I consider that it is important to try to answer the first part of the question: “Why a binding treaty”, and not another type of instrument?

For the same reason as all the activities that require a high level of harmonisation have been or are being regulated at international level by instruments that force those who sign them to actually implement what they sign.

For the same reason that justifies the existence of a UN Convention on the Rights of Persons with Disabilities, an EU Directive on Copyright, a WIPO Treaty on Copyright, and so many other instruments.

Indeed, there are also many examples of other instruments which, without having legal connections, are more or less binding depending on the executive will of the countries that support them. These soft law instruments, such as joint recommendations, declarations, etc., are “binding” because they show the will and good faith of the participants to carry out some kind of joint action. Oddly enough, soft law is being applied in most cases, in two contexts where its non-fulfilment does not mean a direct loss of prestige or cooperation at international level, namely environment and human rights.

It is also true that documents of great importance, such as the Universal Declaration of Human Rights itself, were born as recommendations, and that custom and practice finally made them “almost” compulsory documents. Anyhow, this declaration has needed at least three conventions (or treaties) and various protocols to try to effectively protect the rights of women, children and people with disabilities ?precisely the most defenceless and disadvantaged groups?. All these regulations are binding, legally binding, in the countries that have signed and/or ratified them, and even so, their application is far from being complete. If this is the case with treaties and conventions, what can we expect from soft law solutions, that do not imply any commitment?

Those who need to safeguard their legitimate business rights know it perfectly: where there is a treaty, there is no need for any other soft solution.

The treaty put forward by various Latin American countries at WIPO is being rejected to a certain level by the group of more developed countries (concretely the so-called “B Group”), and, to say the least, this is unusual. It is neither the fact or the idea that people with print disabilities could have access to a greater number of adapted books thanks to sharing scarce resources, nor their legitimate rights that are being rejected. What is totally rejected is the fact that the solution should be regulated through a treaty. Then, if there is a real will to find a solution to this need, the question is: why find a half-way solution?

The advantages of a treaty are, in theory, the same for all proponents, not specifically for this treaty, but for all the treaties administered at present by WIPO and for the ones that are being processed.

1. The 1ª advantage is its permanence in time, which means a final solution to a problem that, otherwise, would not only keep on existing but also, would surely become gradually deeper, in view of the annual growth of the number of publications.

However, this permanence is an obstacle for countries opposed to the treaty, as they view it as finally giving up control over the rights they own.

They forget that this treaty would not hold jurisdiction over accessible works made available to all citizens within the existing business circles, that is over accessible works created and marketed by the publishing companies themselves. It is also necessary to add the fear of misuse of the authorisations granted by the treaty by the institutions providing services to people with reading disabilities (or their users). In other words, fear of indiscriminate and uncontrolled “piracy”.

As if it were not the case already or, as if it were going to get worse as a consequence of the treaty.

As if those who commit illicit acts against intellectual property were to need a treaty to start their activities.

2. The 2ª advantage is the homogenisation of the exception that already allows many institutions in many countries of the world to produce adapted versions of works published for people unable to read them otherwise.

This would allow creating the necessary international framework that would enable all countries to have the opportunity to create contents that they could exchange among themselves, legally produced materials that they could share with other users outside their territory.

However, many countries view this as interfering with their laws on copyright and intellectual property, and their autonomy as a state when deciding who can or cannot benefit from an exception. This is true for this treaty and for any other treaty signed by their governments to defend the interests of legal rights holders. Oddly enough, however, this homogenisation is seen as an “essential requisite” to favour electronic trade in Europe and in the rest of the world.

Some people do not even find the treaty necessary; they do not think that the possibility to share adapted books would change essentially the number of works that could be accessible to a person with reading disabilities. In effect, this will not be the final solution to the problem; it is not going to turn this 5% into 95 or 100% overnight.

The situation is as it is just because institutions such as the one I am representing here today have limited resources, and they will never be able to make accessible the more than 100.000 books published in Spain every year.

But the draft treaty will indeed be able to prevent that a book already adapted by ONCE in Spain, should be produced also in some other 20 Spanish speaking countries. It is a simple calculation: if, instead of everybody producing the same accessible book (a frequent case with most widely read books), each one would produce a different one; every country would have 20 books instead of one.

This solution is not only valid for countries sharing the same language, it will also clearly benefit users interested in reading books in other languages (which is no small thing), and the institutions that provide them this service.

If the production of one book in one of the official languages of the country is already very costly, book production in other languages multiplies it by five (or ten!), and the result is never as good as the book adapted in its country of origin.

4 Users’ demand does exist, it is not an assumption based on the possible benefits of the treaty. ONCE periodically receives requests for books in Spanish from users in France, the UK, Finland, Germany etc. And we do not receive more, or more often, because, unfortunately, we have to systematically turn them down.

It is totally clear that ONCE cannot produce the 5% of books published in Spain (around 5,000 titles per year), plus a significant number of books in French, English, Finnish or German.

A soft law solution will never increase this percentage the way a treaty would. Joint recommendations, declarations, etc., promote fragmentation, when what we need is harmonization.

A non binding instrument would allow sharing adapted books between Spain, the Latin American countries that promoted the treaty and, with luck, some others. Or maybe not, depending on agreements and clauses signed, following this recommendation, at national level, between institutions that provide this service and representatives of rights owners.

Finally, it is necessary to insist on 3 elements that would make this treaty a different one.

• The first one is that it might be the first treaty related to intellectual property that focuses on users of protected works and their rights to access them.

• The second one is that it might be also the 1º treaty to deal directly and effectively with the commitment of the EU and its 27 Member States of signing and ratifying the UN Convention on the Rights of Persons with Disabilities.

• And the third one is that the beneficiaries of the treaty themselves would implement it and make it a reality as soon as it comes into effect.

It is not a treaty based on suppositions, on a demand that would come as a consequence of the treaty itself.

The need for the proposed solution is real, it does exist, And it existed long before it was put forward.

Thank you very much for your attention.

Madrid 29 April 2010