ENDitorial: An overheated debate on the rights of the visually impaired

(Dieser Artikel ist auch in deutscher Sprache verfügbar)

The agenda of the 17th Standing Committee on Copyright and Related Rights,
that took place between 3-7 November 2008 at the WIPO headquarters in
Geneva, included the following topics: the limitations and exceptions, the
protection of audiovisual performances and the protection of broadcasting
organizations. In particular, the rights of visually impaired persons were
in focus.

This article shortly presents the events of the last day, during which the
conclusions of the meeting were agreed among the Member States, based on
proposals prepared by the chairman Mr. Jukka Liedes. This article
concentrated specifically on Limitations and exceptions and the rights of
the visually impaired.

The title “Wrangling Over the Rights of the Blind” formulated by Sherwin Siy
of Public Knowledge, sums up well the discussions of the last day. The
discussions concerning the rights of the visually impaired during the
morning session were based on the following draft conclusion:

“The Committee acknowledged the special needs of visually impaired persons
and stressed the importance of dealing with without undue delay, those needs
of the blind, visually impaired, and other disabled persons. This should
include both analysis of limitations and exceptions and the possible
establishment of a stakeholders’ platform at WIPO, through which
technological, contractual and other arrangements could be facilitated to
secure access for the disabled persons to protected works.”

The formulation was close to the proposal given by IFRRO, the International
Federation of Reproduction Rights Organizations. The draft conclusion had no
reference to the proposal of World Blind Union (WBU). Both the limitations
and exceptions and the contractual arrangements (voluntary licensing)
between rights holders and visually impaired were mentioned. However, due to
the debate in the morning session, the chair prepared a new draft conclusion
during the lunch break. The new formulation was the following:

“The Committee acknowledged the special needs of visually impaired persons
and stressed the importance of dealing, expeditiously and with appropriate
deliberation, with those needs of the blind, visually impaired, and other
reading-disabled persons, including discussions at the national level on
possible ways and means facilitating and enhancing access to protected
works. This should include analysis of limitations and exceptions, including
their application to the international exchange of materials in accessible
formats. This should also include the possible establishment of a
stakeholders’ platform at WIPO, in order to facilitate arrangements to
secure access for disabled persons to protected works. The SCCR took note of
the paper presented by the WBU and many delegations expressed interest in
further analyzing it.”

Most importantly, the paper presented by WBU was mentioned and the following
two sentences were added:
“.., including discussions at the national level on possible ways and means
facilitating and enhancing access to protected works.”
and
“.., including their application to the international exchange of materials
in accessible formats.”

During the afternoon session, France, acting on behalf of the EU Member
States, suggested the word “platform” to be changed to the word “mechanism”.
Nevertheless, the word platform remained in the final conclusions. Instead,
the word “expeditiously” was changed to the phrase “without delay” and
the phrase “to secure access” to “facilitate access”. Those were still minor
things.

Then started the real debate. During the afternoon session, France required
the reference to the WBU proposal and sentences “.., including discussions
at the national level on possible ways and means facilitating and enhancing
access to protected works” and “.., including their application to the
international exchange of materials in accessible formats” to be taken off.
Nevertheless, Pakistan (on behalf of Asian Member States), and Algeria (on
behalf of African Member States), and other countries such as Brazil, pushed
the European Member states to accept many of the proposals. After chop and
change, finally the reference to international exchange was left out and the
reference to WBU proposal was slightly modified.

The final conclusions on the rights of the visually impaired were the
following:

“The Committee acknowledged the special needs of visually impaired persons
and stressed the importance of dealing, without delay and with appropriate
deliberation, with those needs of the blind, visually impaired, and other
reading disabled persons, including discussions at the national and
international level on possible ways and means facilitating and enhancing
access to protected works. This should include analysis of limitations and
exceptions. This should also include the possible establishment of a
stakeholders platform at WIPO, in order to facilitate arrangements to secure
access for disabled persons to protected works. A number of delegations
referred to a paper presented by the World Blind Union (WBU) and expressed
interest in further analyzing it.”

As a European citizen I was mostly confused about what happened during the
afternoon session. It is not clear to me why France (on behalf of the
European Member) opposed so aggressively the rights of the visually
impaired. James Love of KEI (James Love, 7 November 2008) wrote a
felicitous remark on the issue on the A2K-list:

“I will close with the comments from one delegation at the end of the
evening. The delegate, from a high income country, had been silent the
entire meeting, but is a country one expects to provide some moral
leadership. I said, ‘why didn’t you speak up? – this is a human rights
issue. She said, ‘this isn’t the human rights commission, – this is WIPO.’
She wasn’t being ironic or critical of WIPO. She thought it was natural that
the collection society would come first on this issue. That pretty much
summed things up.”

On the WIPO-websites one can find the following description with the
headline “What is WIPO”?:

“The World Intellectual Property Organization (WIPO) is a specialized agency
of the United Nations. It is dedicated to developing a balanced and
accessible international intellectual property (IP) system, which rewards
creativity, stimulates innovation and contributes to economic development
while safeguarding the public interest.”

One could think that the rights of the visually impaired could easily fit in
“a balanced and accessible (IP) system, which safeguards the public
interest”. In some discussions with more experienced SCCR attendees I was
told that the starting point is always that the economic interests of rights
holders have to be safeguarded. It is worth considering whether there really
is a profitable market for works of visually impaired? According to WBU only
5 % of written works are accessible for visually impaired. That could also
be seen an indication that the market is not profitable enough. So, if the
answer to the aforementioned question is negative, there has to be some
other reason for the resistance of EU Member States for the rights of the
visually impaired.

There is currently a Green paper from European Commission on exceptions
available for comments (deadline: 30 November 2008). The rights of
disabled people are also covered by the Directive 2001/29/EC on the
harmonisation of certain aspects of copyright and related rights in the
information society contains an exhaustive list of exceptions to copyright
protection.

The delegations debated on what was really said during the 17 SCCR Session.
It is good that the SCCR reached at least a consensus on what was discussed
during the meeting. That is a starting point for further work. It is also
good that the reference to the WBU treaty proposal remained, as it is a
truthful fact that “A number of delegations referred to a paper presented by
the World Blind Union (WBU) and expressed interest in further analyzing it.”
Leaving the reference away could have been considered as modification of
facts. It remains to be seen if consensus on the factual content can also be
reached at some point.

After all, the conclusions of SCCR 17 can be seen both from a positive and a
negative point of view. The interpretation finally relies on the Member
States. In a world of limited resources choices have to be made. The
broadcasting treaty will be maintained on the Agenda of the next session of
the SCCR. Let’s hope that the work on limitations and exceptions will,
however, continue without (undue) delay or even expeditiously.

World Intellectual Property Organization, SCCR Seventeenth Session, Geneva
(5-7.11.2008)
http://www.wipo.int/edocs/mdocs/copyright/en/sccr_17/sccr_17_www_112533.pdf

Member States Review Key Copyright Issues (10.11 2008)
http://www.wipo.int/pressroom/en/articles/2008/article_0059.html

Unpacking the WIPO SCCR Limitations and Exceptions (to copyright) agenda
http://www.keionline.org/blogs/2008/11/11/unpacking-lne/

Wrangling Over the Rights of the Blind
http://www.publicknowledge.org/node/1874

GREEN PAPER – Copyright in the Knowledge Economy COM(2008) 466/3
http://ec.europa.eu/internal_market/copyright/docs/copyright-infso/greenpaper_en.pdf

What is WIPO ?
http://www.wipo.int/about-wipo/en/what/

(Contribution by Anniina Huttunen – doctoral student – Helsinki University
of Technology, EDRi representative at the WIPO SCCR meeting)