In a significant shift from its past position, the U.S. government yesterday expressed its willingness to consider a treaty on limitations and exceptions to copyright for the benefit of the blind, visually impaired, and other reading disabled persons as one of the options to address problems faced by this community. The statement was made on the second day of deliberations at the Standing Committee on Copyrights and Related Rights (SCCR), of WIPO at its ongoing 19th session. The delegations of Brazil, Ecuador, and Paraguay had introduced a treaty proposal in May this year at the SCCR’s 18th session. As I reported then, the U.S. government had avoided taking any position on the treaty, contending that copyright was just one hurdle facing the blind and there were many other issues that needed to be solved. Many in the public interest community, including PK, had felt that the U.S.’s refusal to take a positive stance was unjustified in the face of compelling evidence of the need for a solution to the problems faced by the blind.
As I have noted before, the exclusive rights granted by copyright law can act as a barrier preventing the blind from accessing works under copyright. It is estimated that the blind in developed countries have access to only 5% of printed material. The situation gets much worse in developing and least developed countries. Means to address this problem have been under consideration at WIPO SCCR since its 15th session in 2006. What is more, the same issue was considered as far back as 1983 when a WIPO and UNESCO working group had proposed model provisions to deal with the issue.
In view of this history, the U.S. delegation’s statement seems especially significant. Here is an excerpt from the statement:
[T]he United States believes that the time has come for WIPO Members to work toward some form of international consensus on basic, necessary limitations and exceptions in copyright law for persons with print disabilities. This international consensus could take multiple forms, including model law endorsed by the SCCR, a detailed Joint Recommendation to be adopted by the WIPO General Assemblies, and/or a multilateral treaty. The United States is open to discussing and exploring all these options.
While the U.S. statement did not comport completely with the position of the public interest community, who would have preferred outright support for a treaty, the statement does represent a major advance in the U.S. policy position. The U.S. is one of the more than 50 countries that have limitations and exceptions addressing the needs of the blind. It is also a major producer of copies of works in accessible formats and a treaty would allow these works to be exported to other countries. Its commitment to solving problems of the blind would provide a significant boost to international efforts in this direction.
In addition to its position on the treaty, yesterday’s statement also represents a shift in U.S. commitment to copyright limitations and exceptions in the international arena. Addressing this issue, the delegation said:
we recognize that some in the international copyright community believe that any international consensus on substantive limitations and exceptions to copyright law would weaken international copyright law. The United States does not share this point to view. The United States is committed to both better exceptions in copyright law and better enforcement of copyright law. Indeed as we work with countries to establish consensus on proper, basic exceptions within copyright law, we will ask countries to work with us to improve the enforcement of copyright. This is part and parcel of a balanced international system of intellectual property.
With these statements, the U.S. delegation seemed to be the star of the show, at least in the minds of the many non government organizations (NGOs). Their statement drew an enthusiastic applause from many representatives of the visually impaired. I hope that the U.S. government’s new commitment to a balanced international copyright regime, results in concrete benefits and is reflected in its actions both at WIPO and in other arenas, including in its pursuit of the Anti-Counterfeiting Trade Agreement (ACTA).
In addition to the U.S., many countries including Argentina, Cuba, India, Malaysia, and Pakistan, also expressed support for the treaty. Many other countries in Group B, (the group of rich countries which includes the U.S. and generally arrives at joint negotiating positions), continued to question the need for the treaty or remain completely silent about it. Australia, for example, said that it has no domestic consensus on the issue and questioned the need for a treaty. The European Union and the Commission for the European Union remained completely silent about the treaty instead expressing support for the stakeholder’s platform, a forum of publishers and representatives of the blind convened by WIPO to work on technical means to improve accessibility.
In addition to the treaty for the visually impaired, the SCCR also discussed the issue of copyright limitations and exceptions generally. The focus of a discussion was a draft questionnaire the committee had circulated during its last session in May aiming to understand the nature of limitations and exceptions in WIPO member countries. The initial draft questionnaire which had 57 questions has now expanded to 115 questions based on suggestions from various member states. Ironically, just as they did in the last session, many developed countries, including the U.S., complained about the length of the questionnaire and the difficulties of responding to it while developing countries favored maintaining the questionnaire as is. India pointed out that the questionnaire was a “data collection” exercise and had to be judged by its usefulness, not length.
At the end of the day, non-governmental organizations were allowed to make their statements. The process will continue today, and I will get an opportunity to make a statement on behalf of PK. Next up on the committee’s agenda are the treaty for protection of audiovisual performers and our old friend (or foe) the treaty for protection of broadcasting organizations. It seems treaty proposals don’t ever die in WIPO. Efforts to pass a treaty for protection of audio visual performers (ex: actors in television and motion picture content) were aborted in 2000, when a diplomatic conference to agree on treaty language failed. We have reported before on how attempts to adopt a broadcast treaty failed. I will update you on what happens with these. Stay tuned.