Norm setting on copyright limitations and exceptions at WIPO: What is ready?

Over the past several weeks there have been a several cases where some well motivated and knowledgeable persons about copyright policy have expressed criticism of an effort by WIPO to negotiate a treaty for persons who are blind or have other reading disabilities, on the grounds that this is not ambitious enough, and a larger all inclusive treaty on limitations and exceptions should be the target.

At the same time, publishers are seeking to block any WIPO norm setting in the area of statutory exceptions to exclusive rights, including even for reading disabled persons. Failing that, the publishers want to narrow the scope of the exceptions as much as possible, for example by not including many important reading disabilities, such as persons who cannot travel to libraries, people who suffer from severe dyslexia, or who, because of physical disabilities, cannot turn the pages of a book.

At the 16th session of the WIPO SCCR Brazil, Chile, Nicaragua and Uruguay endorsed a broad work program for L&E (SCCR 16/2). This broad agenda is supported by all of the civil society NGOs, including KEI. It singled out for particular attention those L&E dealing with education, libraries, archives, innovative services and persons with disabilities, but it is not limited to even those areas.

The stakeholder groups that are interested in global norm setting in terms of minimum limitations and exceptions all support the larger agenda. However, as a practical matter, not every area is ripe for norm setting.

Recognizing this, the proposal by Brazil, Chile, Nicaragua and Uruguay sets out a process that provides for different stages of work, beginning with the collection of information on state practices and analysis, and ending up with norm setting. For some sectors, there is a large need for gathering information on state practices. This has already been done in some other sectors, such as for Libraries and Archives (SCCR 17/2) and for visually impaired persons (SCCR/15/7), and other studies are underway.

The World Blind Union (WBU), working with other NGOs, including for many years, the International Federation of Library Associations and Institutions (IFLA), has petitioned WIPO for global norm setting. One effort took place in 1982, in an experts meeting hosted by WIPO and UNESCO. (See meeting report here:http://www.keionline.org/misc-docs/tvi/1982_report.pdf).

More recently, the WBU has proposed a series of very concrete “asks” of the WIPO SCCR, including the interventions set out here:

http://www.keionline.org/index.php?option=com_content&task=view&id=213

In the fall of 2008, the World Blind Union tabled a proposal for a treaty for blind and other reading disabled persons. Before doing so, the WBU consulted widely with copyright experts and stakeholders, and undertook considerable work to resolve differences among its diverse membership, and it worked with the broader disabled community, to ensure that the proposal was in the inclusive spirit of the recent UN Convention on the Rights of Persons with Disabilities.

None of the other sectors or work areas for copyright limitations and exceptions are as mature for norm setting as is the community of persons with reading disabilities. Other groups are also getting organized, but at different paces. Most are at a nascent stage of maturity. The library community is the second most organized group, and it has yet to table a specific comprehensive “ask” for the global library community. The education sector is not organized at all. The innovative services sector barely has a clue that the WIPO discussions are taking place. No one working on “orphan works” is ready to propose a global norm.

It is simply not practical to move every important limitation and exceptions issue into a global norm setting mode, at this point. If you wait for every sector to be ready, you may wait a lifetime.

KEI supports the notion that the WIPO SCCR should begin it’s norm setting agenda in small confidence building steps, working with communities that know what they want. The reading disabled community is at the head of the line both because they are ready now, and because they have a very compelling need. According to the World Health Organization, there are 45 million persons who are blind, and 90 percent of them live in developing countries, mostly in appalling poverty and with very limited employment opportunities.

The UK RNIB has a slogan: “Books before we are dead.” I think this is something people need to think about. If persons with reading disabilities know what they want, and in fact if they have known what they wanted for a very long time, we should act and address their needs. No one among the civil society NGOs disagrees that this should be part of a larger work program on copyright limitations and exceptions. But it should not wait until everything can be harmonized.