WBU suspends participation in WIPO & EU Stakeholder discussions, pending agreement at WIPO on legal framework

On February 26, 2011, the World Blind Union issued a statement announcing it would "suspend participation in the WIPO Stakeholder Platform and EU Stakeholder Dialogue projects, pending agreement at WIPO on a proper binding legal framework." [See full statement below]. The WBU statement is expected to dramatically change the environment for considering a new WIPO treaty for persons who are blind or have other disabilities.

KEI welcomes the WBU suspension of its participation in the WIPO and EU Stakeholder projects. In our opinion, the publishers have used the private stakeholder discussions to undermine work on a treaty, and to shrink the rights of persons with disabilities. Now scarce time, attention, resources and ambitions can be focused on the more important historic effort to obtain a treaty to protect the rights of persons with disabilities.

Context

The US and the EU have been working closely with publishers, pushing the disabilities community to accept a weak non-binding recommendation on imports and exports of accessible works, based upon new procedures and norms for "trusted intermediaries" that have been the subject of controversial private sector negotiations in the WIPO and EU stakeholder platforms, in the context of voluntary licenses to distribute works. The constant and undoubtedly intentional confusion between the standards for the voluntary licenses and the norms for a treaty that deals with legal limitations and exceptions to rights has been a source of frustration for those seeking a new global legal framework for cross border sharing works created under copyright exceptions.

The US and EU positions, which are nearly identical to the positions of IFFRO and certain publisher trade associations, is to have a weak, soft, narrow and restrictive recommendation, based upon the WIPO standards for trusted intermediaries, go first, before WIPO considers a more ambitious (and effective) treaty instrument. The US and the EU WIPO negotiators can then claim to have done something for persons with disabilities, while actually making persons with disabilities objectively worst off -- by narrowing the international flexibilities to exchange works created under exceptions.

One illustration of how the publishers saw the strategic benefits of the "stakeholder platform" negotiations is found in Olav Stokkmo's "end of year message" as the CEO of IFRRO (Link here), which reads in part:

A highlight of the year came with the signature on 14 September of the Memorandum of Understanding as a result of hard work put into the European Commission’s stakeholder dialogue on enhanced access to copyright works by people with reading impairment.

The MoU is significant not only as proof of progress in meeting legitimate user concerns but also as a template for future agreements with other users in other areas. The fact that the settlement was achieved by agreement between different stakeholders without recourse to legislation shows that results can be achieved through dialogue and that they can be faster and more effective than if the heavy hand of the legislator has to intervene.

In the parallel discussions in the World Intellectual Property Organization (WIPO) on improved access to copyright works stakeholder dialogue has also led to results: The TIGAR (Trusted Intermediaries Global Access Resources) project will start piloting cross border access to copyright works for persons with print disabilities through a network of Trusted Intermediaries.

. . .

It is heartening too that the European Commission has recognised that stakeholder dialogue is the way forward because there is still a tendency to assume that only legislation can solve copyright issues. As a result of a false perception that copyright is a problem to be solved and that user requirements must trump rights of creators, we have in 2010 seen a disturbing shift towards proposals for extensive copyright exceptions with no compensation. . .

We also question the timetable set by the WIPO Standing Committee on Copyright and Related Rights (SCCR) to reach agreement on new international instruments for copyright exceptions. . . Experience tells us that new international legislation does not offer the timely and flexible solutions that RROs, creators and publishers can provide.

The Statement by the World Blind Union follows:

STATEMENT BY WORLD BLIND UNION 26-02-2011

WBU suspends participation in the WIPO Stakeholder Platform and EU Stakeholder Dialogue projects, pending agreement at WIPO on a proper binding legal framework.

"Unfortunately, the WIPO TIGAR project is being erroneously portrayed by some organisations as an alternative to the underpinning legal framework needed to guarantee equal access to information promised under the UN convention on the rights of persons with disabilities" says Maryanne Diamond, President of World Blind Union. "In fact it demonstrates quite the opposite, and it is now even clearer that a licensing arrangement without underpinning legal rights gets us nowhere."

"We have engaged in more than two years of patient, resource intensive dialogue with rights holders, and the result has been proposals for organisations that serve disabled people to sign legal frameworks that undermine existing rights and incur costs and liabilities that are completely unreasonable. This demonstrates that governments of the world must now stand up and create the clear legal framework needed to deliver the right of equality of access to published works set out in the convention. WBU and its member organisations value our dialogue with the publishing industry which is aimed at helping them develop more inclusive ways of publishing" says Diamond. "However, at this stage we need to prioritize their scarce resources on assisting governments to create the legal framework. Once this is in place we can then re-start the dialogue with rights holders to make this cost effective for all parties".

"Having considered the proposals, RNIB in the UK, Vision Australia, ONCE in Spain, CNIB in Canada, the European Blind Union and many other leading organisations envisaged as supporting the network to share these costly and specialised publications between countries advise me that they cannot participate in the network on the proposed basis, and need to concentrate their limited resources on getting a clear legal framework for international exchange".

Background

For two years now WBU and other organisations including RNIB, Vision Australia, ONCE, CNIB and EBU have participated fully in negotiations with rights holder organisations in the WIPO Stakeholder Platform and EU Stakeholder Dialogues. The World Blind Union aimed to try to agree worldwide and European licensing régimes to complement a new, binding international copyright treaty along the lines of the proposal tabled by Brazil, Ecuador and Paraguay at WIPO in 2009. The proposed treaty would provide a minimum level of legal certainty- whilst respecting copyright- to ensure we can share accessible format books worldwide where license agreements do not exist.

After analysis of the proposed terms for the "TIGAR" pilot scheme and these stakeholder agreements more broadly, we have concluded that the terms would be too onerous and the cost benefits too unclear. This is so for the larger organisations in developed countries, and the difficulties in participating in the complex agreements envisaged under TIGAR would be far greater for organisations in developing countries. WBU has decided therefore to suspend its participation in both the WIPO Stakeholder Platform and EU Stakeholder Dialogue, pending the agreement of an appropriate and binding legal instrument at WIPO.

Ends

Contacts:

Maryanne Diamond
President
World Blind Union
Tel: +61 3 9864 9261
Mobile: +61 419 312 129
Maryanne.diamond@visionaustralia.org

Chris Friend
Chair, WBU Global Right to Read Campaign
Tel: +44 (0)1444 446663
Mobile: +44 07919 552 170
cfriend@sightsavers.org

Dan Pescod
Vice chair, WBU Global Right to Read Campaign
Tel: +44 (0) 20 7391 2009
dan.pescod@rnib.org.uk

WBU suspends Stakeholder discussions

In an effort to put copyrighted materials into the hands of those visually and reading disabled around the world, these three items -- and there may be others -- are real and tangible as they exist today:

1. The Copyright Laws of several countries especially Japan say that any material under copyright can be rendered into Braille format on embossed paper or in digital BRF file without restriction.

2. The UK Visually Impaired Persons Act of 2002 at Section 31A says that a 'One for One' accessible reproduction of copyrighted material can be made if the recipient has a qualified disability and has 'lawful possession or lawful use' of the copyrighted material. That accessible reproduction can, once received, be forwarded to any other similarly qualified individual. Section 31A nowhere mentions that the person making the accessible copy or the recipient must be a citizen of the UK.

3. In a recent opinion summarized in WIPO SCCR Document 20_7 Q 71, the US Copyright Office has stated that a bona fide 'Authorized Entity' as defined in Section 121 of the US Copyright Act is exempt under certain conditions from export restrictions otherwise described in Section 602. The Library of Congress/NLS said in a published 1996 opinion that the so-called 'Chafee Amendment' would apply to copyrighted material from any country with which the USA has a bilateral or multi-lateral Copyright Agreement as described in Circular 38.

I provided a draft proposal on the WIPO SCCR Vision website in July 2010 of a Treaty that might similarly conform to the Copyright Laws of the countries as mentioned above in Item 1:

https://www3.wipo.int/forum/?p=36&cpage=1#comment-91

I have communicated since May 2010 with all 3 signers of the 26 FEB 2011 WBU statement. I suggested prior to WIPO SCCR 20 that in their negotiations toward the Brazil WBU Treaty at WIPO SCCR 18_5, a Treaty such as I suggested above might achieve *something* which would be better than nothing; nothing seems to be about what they have right now.

UK Copyright (VIP)Act 2002 revisited

This was my above comment to the 1MAR2011 blog on "WBU Suspends ..." last sentence of 2.:

"Section 31A nowhere mentions that the person making the accessible copy or the recipient must be a citizen of the UK."

The following is from the December2011 UK Consultation-on-Copyright Section 7.165:

"Although UK law does not explicitly prevent such accessible works being exported to other countries, licensing schemes that cover this exception do limit use to the EU."

I have letters to publishers dating to at least April 2007 making the 7.165 claim as it pertains to UK (VIP)Act 2002 Section 31A.

WBU & WIPO

Very interesting.

If only WIPO could be as influential on this issue as it was on the 1996 WCT and WPPT treaties.

WWSD?

What will Stevie Wonder have to say about this?