How will WIPO provide a “speedy solution” to the problems faced by the reading disabled persons in accessing copyrighted works?

In May 2009, at the WIPO Standing Committee on Copyright and Related Rights (SCCR) 18th session, the governments of Brazil, Ecuador and Paraguay formally tabled a proposal to WIPO endorsing the World Blind Union's Treaty for Reading Disabled Persons.

Following on the heels of this landmark session of the SCCR, on July 13, 2009, WIPO convened a public meeting entitled "Meeting the Needs of the Visually Impaired Persons: What Challenges for IP".

The WIPO forum, attended by around 150 people, must not be perceived as a substitute for the norm-setting member states driven SCCR. However, it provided a snapshot of how the World Blind Union, the DAISY Consortium, the International Publishers Association, the Chilean Ambassador to the WTO, the Senegalese Ambassador to the UN in Geneva and a senior official from Canada’s Department of Foreign Affairs and International Trade would respond to the proposal by Brazil, Ecuador and Paraguay as well as the previous calls made at SCCR 16 and SCCR 17 to find "a speedy solution to the problems faced by the blind, the visually impaired and other reading disabled persons in access protected to works."

Swashpawan Singh,Honorary Advisor, for WIPO Visually Impaired Initiative, kicked off the event with an overview of how WIPO and its Member States recognized the need for print disabled persons to access the written word thus enabling them to "seek, receive and impart information and ideas regardless of frontiers" which would facilitate them to "participate more fully in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits". Mr. Singh recalled the mandate of SCCR 17, but focused his remarks on the work of the WIPO stakeholder's platform. He noted that the WIPO VIP Initiative was established with the "objective to make available published works in accessible formats in a reasonable time frame" across multiple jurisdictions.

According to Mr. Singh, the Platform brought together major stakeholders including reading disabled persons and representatives of the publishing industry and reproductive rights organizations to identify a common set of elements to meet the objective of making greater quantities of copyrighted works accessible to print disabled persons. These elements drawn up by the SP meetings in January 2009 and April 2009 included the treatment of

(1) an enabling legal regime; (2) technological tools for the conversion of works;(3) issues of formats, standards and interoperability;(4) concerns relating to development and specific needs of developing countries; (5) creating and disseminating information materials and training modules; and (6) assessment of particular challenges posed by the digital environment.

The Stakeholder Platform commissioned new studies on trusted intermediaries, technical formats and new technologies reported Mr. Singh and progress on these fronts, would "evolve a consensus on the modalities of an enabling legal regime and a viable and practical technical framework". Mr. Singh emphasized that the Stakeholder's Platform was given a specific mandate by the Member States and its success was to be measured by an increase of digital and analog works in accessible formats within a reasonable time frame.

Mr. Chris Friend, Strategic Objective Leader Accessibility, World Blind Union (WBU), stressed that the technological advances which rendered works accessible in digital audio, large print or braille formats required the commensurate political will from governments to ensure the end of the book famine for print disabled persons. Friend made a compelling argument in favor of the Brazil, Ecuador and Paraguay Treaty proposal which would “specifically facilitate a number of situations preventing accessibility, such as the cross-border exchange” and sharing of the WBU’s own collections legally made under copyright exceptions. Friend declared to the WIPO conference that it would be an “act of gross inhumanity” if governments looked on complacent with business as usual “whilst 314 million visually impaired readers are incarcerated in a world without books”.

Friend outlined the WBU "twin-track approach" to find a political solution to the book famine. The first part is the proposed "WIPO Treaty for Improved Access for Blind, Visually Impaired and other Reading Disabled Persons" introduced by the WBU at SCCR 17 and subsequently tabled by Brazil, Ecuador and Paraguay. The second part of the twin-track approach involves participating in a dialogue with Rights Holders to seek convergence on technical matters including the "integration of accessibility features into publishing software and on the question of the security on sharing digital master files."

The clear justification for the Treaty approach, Friend emphasized, lay in its immediate impact on reading disabled persons once implemented. Friend noted that in Spain for example, ONCE the national organisation of the blind holds over 100,000 titles in accessible formats and in Argentina, Tiflolibros holds over 50,000 titles in accessible formats. These organizations "would like to share and exchange their titles with all visually impaired readers" living "in the nineteen Spanish speaking countries across Latin America". However, they cannot currently do this because of copyright restrictions, and they need the proposed Treaty to make this possible.

Similarly, there are collections of hundreds of thousands in the USA, Canada, the UK, Australia and New Zealand, and literally millions of visually impaired readers in the 60 other countries, where English is either spoken as a first or second language, could benefit from having access to these charitable collections.

Again, Friend explained, this cannot be done because of copyright but the Treaty would make it possible.

France, Canada, Belgium, Luxemburg and Switzerland could, similarly, share their collections of French titles with the book-starved visually impaired in Francophone African countries; Brazil and Portugal could also share with Portuguese speaking countries like Angola, Mozambique, East Timor and Macau; all other language groups including Arabic, Russian and many others could do the same. Again current copyright forbids this but the Treaty would make it possible.

Similarly, Friend asserted, the Treaty would serve the needs of print disabled persons among the large diaspora populations of China and India. Perhaps the the WBU position is best encapsulated in the question posed to the audience as he concluded: [h]ow long must we wait before the world realise that to deny people access to knowledge is denying them a fundamental Human Right?" Friend exhorted the WIPO membership to address the "indefensible imbalance" between authors rights and the human rights of reading disabled persons by supporting the Treaty proposal which would redress this imbalance without "any financial disadvantage to the Rights Holders".

Mr. Herman Spruijt, President, International Publishers Association (IPA), presented his industry' three demands in the context of addressing the needs of prints disabled persons:

1. Publishers ask that the complexity of disability access is recognized, and the fact that we are navigating in a fast moving stream of technological developments.
2. Publishers see the best possible solutions to be found in flexible solutions that encourage collaboration and win-win rather than artificial polarization.
3. Publishers ask WIPO member States to ensure that the issue of disability access is not misused to discredit rightsholders or copyright itself.

And almost defensively, he added “we are also a force for social good and public interest!”

Spruijt remarked that three issues of emerging consensus arose out of the dialog between publishers and disabled charities namely 1) an emphasis on market driven solutions, 2) the potential of technology to solve key issue and 3) the need to strengthen the role of trusted intermediaries. However, he struck a discordant note when he asserted that marketplace solutions and technological developments alone would solve the problems of print disabled persons. Responding to a question from the floor on Amazon’ Kindle technology (and thus market driven solutions) and the ensuing controversy resulting from Amazon's decision to turn off the text to speech (TTS) feature, Mr. Spruijt declared the Kindle TTS feature "premature" because Amazon did not seek permission from the publishers and authors and his statement resulted in casting doubts on his assertion that technology and market place solutions would deliver the promised goods. Spruijt concluded by stating,

[w]hilst the WIPO Standing Committee on Copyright and Related Rights is debating the merits of a treaty, the stakeholder platform is exploring other aspects of the issue and we are able to have discussions at expert level without the burden of politics that is always a threat in plenary debates.

In a context maybe without an apparent “burden of politics,” or any kind of possible “threat,” the next speakers continued to emphasized that existing copyright rules restricted access and that an international solution was badly needed.

For example, Mr. Dipendra Manocha, Director, Regional Resource Centre, Digital Accessible Information System (DAISY) Consortium, described DAISY’s experience making materials accessible to print disabled persons in developing countries. The raison d'être of the DAISY Consortium is to "develop and promote international standards and technologies which enable equal access to information and knowledge by all people with print disabilities and which also benefit the wider community".

Manocha stressed that standards were the key to accessibility which is why developers follow standards with proven track record for accessibility for all such as

* DAISY for documents and publications: http://www.daisy.org
* EPub for electronic document distribution format: http://www.openebook.org/
* Web Content Accessibility guidelines for web site user interface: http://www.w3.org/wai
* Unicode for Local Language Representation: http://www.unicode.org

Manocha cited the example of the DAISY DTBOOK-XML which functioned as the source document for a multiple distribution formats including 1) hard copy print books, 2) EPUB e-text books, 3) braille books, 4) talking books and 5) large print books.

Manocha concluded emphasizing that existing copyright rules restricted scaling up library services and compelled DAISY to waste existing resources on rendering works accessible in multiple jurisdictions.

Following Mr. Manocha, H. E. Mr. Mario Matus, Permanent Representative, Permanent Mission of Chile to WTO highlighted the role of Chile in the limitations and exceptions discussions at the WIPO SCCR and elaborated upon why governments can and should play a greater role in public policies relating to this topic. Ambassador Matus reminded the audience that in 2004, Chile requested the WIPO SCCR to include an agenda item on exceptions and limitations to copyright for educational purposes, libraries and for disabled persons (SCCR/12/3). At SCCR 13, Chile presented a refinement (SCCR/13/5) of its original proposal calling for the following:

  1. Identification, from the national intellectual property systems of Member States, of national models and practices concerning exceptions and limitations.
  2. Analysis of the exceptions and limitations needed to promote creation and innovation and the dissemination of developments stemming therefrom.
  3. Establishment of agreement on exceptions and limitations for purposes of public interest that must be envisaged as a minimum in all national legislations for the benefit of the community; especially to give access to the most vulnerable or socially prioritized sectors.

The final complement in Chile's trio of proposals was a joint proposal (SCCR/16/2) with Brazil, Nicaragua and Uruguay which presented a work plan as a basis for which WIPO could move forward with the identifying of existing limitations and exceptions at the national and international levels.

Ambassador Matus emphasized that while Chile supported the work undertaken by the WIPO Stakeholder's Platform, Chile believed the Platform was a parallel (and private sector?)process to the work of governments in the SCCR negotiations where discussions focused on establishing binding and regulatory solutions. For Ambassador Matus the Platform only dealt with contractual and licensing terms. He stressed that while Chile's proposals on WIPO's L&E work agenda are broad, Chile believed that WIPO's work on reading disabled persons could be prioritized while also advancing discussions on libraries and archives.

Emphasizing that the intellectual property ecosystem was predicated upon the balance of rights and obligations of producers and users of knowledge, Ambassador Matus noted that the TRIPS Agreement and WIPO "internet" treaties provide more clarity to rights holders about their rights in the digital environment. However, Ambassador Matus stressed, the same intensity to clarify the rights of copyright owners had yet to be applied to their counterpoint, limitations and exceptions, to ensure harmony in the intellectual property system, particularly in the digital environment.

Ambassador Matus ended his remarks by declaring that the time had come for a Treaty for Reading Disabled Persons which is why Chile endorsed the Treaty proposal tabled by Brazil, Ecuador and Paraguay at SCCR 18. Ambassador Matus stressed that reading disabled persons’ efforts to access culture have been unjustly undermined, and the world could not let this stand.

The last speaker, Mr. Douglas George, Director of Intellectual Property, Information and Technology Trade Policy Division, Department of Foreign Affairs and International Trade, first provided a quick overview of Canada's domestic regime vis-a-vis persons with perceptual disability before sharing his thoughts on the international dimension. Section 32 of the Canadian Copyright Act, Mr. George noted, allows the adaptation of materials into accessible formats, such as Braille and audiobook under an exception. Under Canadian law, "an exception is available only if a work in a form adapted to the needs of the perceptually disabled is not otherwise commercially available in Canada".

Moving on to the international dimension, Mr. George encouraged countries with no provisions pertaining to creating copies into accessible formats to use existing domestic legislation from various countries. However, he did concede that "one area where there is significant uncertainty relates to the international exchange of accessible material created under a limitation or exception. It is with respect to the import and export of adapted materials that an international instrument, whether binding or non-binding, can give the greatest value-added".

Mr. George underscored that the Canadian position on the Treaty for Reading Disabled Persons emanated from the following core concepts and principles:

* "any instrument should allow a variety of mechanisms for the production of accessible copies for domestic purposes, e.g. an exception, a compulsory license or a conditional exception;
* countries should be allowed to have different types of limitations or exceptions with respect to different types of adapted materials;

(Note: for example, a country might have an exception to produce Braille material but a compulsory license to produce audio books.)

* it is not necessary to have a uniform rule in all countries to allow the international exchange of adapted materials;
* it would be necessary to discuss the norms which would apply to the exchange of materials among countries which have different limitations or exceptions for the production of adapted material;

(Note: for example the export of an adapted copy made under an exception to a country which used a compulsory licence)

* any instrument should facilitate the international exchange of adapted material; and

* finally, it would be necessary to clarify how the three step test for limitations and exceptions applies to the import and export of material made under a limitation or exception".

Ultimately, the Canadian position, as advanced by Mr. George could best be summed up by this concluding statement that a "uniform rule is not necessary to allow the international exchange of adapted materials".

However, for many stakeholders and observers in the audience, if not “uniform,” a “rule” was clearly needed to ensure fair access to copyright works for blind, visually impaired and reading disabled persons.