Costs and Benefits of the US Proposal to WIPO SCCR on Copyright Exceptions for Disabilities

On May 27, 2010, the US government presented to the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR), a proposal for a "Consensus Instrument" for persons with disabilities related to reading printed publications.

The US proposal was held during an "open ended" consultation a proposed treaty for persons who are blind, are visually impaired or have other reading disabilities. The treaty, first proposed by the World Blind Union, is identified by the WIPO SCCR as document SCCR/18/5. The draft treaty text is here. A background note on the proposal is available here, and my notes during the May 27, 2010 meeting are here.

The US proposal is quite a bit more limited than a treaty, in several areas. It may be marketed as a complement to a treaty, or seen as a substitute. I will have a detailed analysis up soon, but in the meantime, here are some notes on the benefits and costs of the US proposal.

I will start with the benefits, which I find very limited.

1. It does provide a higher level of confidence that at least *some* cross-border exchanges of works created under an exception are *consistent* with the Berne and the TRIPS. As regards WIPO, it cannot bind the WTO, but in practice, I'm sure it would make the specific type of exception even less likely to be overturned by the WTO.

In practice, this is not a huge benefit, in my opinion, because I find it extremely unlikely that the WTO would make such a ruling. In 2000, the WTO found that Canada could use exceptions in patent law to import and export pharmaceuticals, in order for Canada and other countries to enjoy the benefits of economies of scale. This case involved a TRIPS 3-step test, in evaluating a non-remunerative exception of patent rights. What was particularly important was that that the WTO found the exception to be valid for both import and export.

2. In some countries, particularly in Latin America, the joint recommendation, which is permissive and not mandatory, may have some immediate legal significance, where the provisions of the Berne are thought to have some self executing value. I see this as a second order benefit, but maybe others can make the case that it is more important than we think, empirically.

Next, I will turn to the costs.

3. There is the opportunity cost of stopping work on the treaty. I think this is the main objective of the publishers and the USPTO. You may completely end work on the treaty. Publishers will insist that you wait years to see how things works out. By then, a lot of people will have moved on, and the SCCR will likely be focused on some other issues. Even if you could get the attention of the SCCR a second time, you will have to educate a new generation of country negotiators, WIPO officials, NGOs, donors, etc. These things are not that easy to turn on and off.

4. The US proposal takes off the table the whole notion of bringing national laws up to a minimum standard, in terms of their own exceptions. This is not a huge problem for high income countries, nearly all of which have good domestic exceptions. It is a very bad outcome for developing countries, where exceptions are not that good or non-existent.

5. The US proposal would limit the exceptions to physical braille and works distributed only by a narrow class of trusted intermediaries, and make references to highly problematic standards for the intermediaries, that come out of a voluntary licensing negotiation involving, for the present, only 100 books.

This can have the effect of creating real changes in global norms -- but in the wrong direction. Whereas today the WTO would likely allow a much wider set of cross border exchanges, under the new regime, there will be politically and even legal reasons why the freedom to import and export will be narrowed. The new restrictions associated with the trusted intermediaries would be the main thing you would get from the US proposal.

ADDITIONAL COMMENTARY

The US proposal is effectively the publisher proposal to create a new restrictive form of global regulation of the use and distribution of works for persons with disabilities. The publishers want prior notice of works being used, the opportunities to charge royalties, the elimination of the exception for dual use works, and other changes that run counter to legal traditions in the US and in other countries.

If the US seeks to implement the liberalized export recommendation, they will have to amend US law. In doing so, there will be a predictable effort to change not only the export legality issue, but to introduce into US domestic law these new norms being endorsed in the Stakeholder Platform regarding remuneration, notice, and the specific limits and regulation of exceptions for dual use formats. US groups may find it more difficult to oppose these changes if they are accepting them in the WIPO negotiations.

I would add that this negotiation is being compared by many professional IP trade negotiators to the 1971 amendments to the Bern involving compulsory licensing of works in developing countries, and the 2003 changes in the TRIPS on exports of medicines manufactured under a compulsory license. In both cases, the right-owners were able to deflect demands for more access, and create new regulatory obligations that imposed high transaction costs, surveillance on persons using the exceptions, and a narrowing of possible uses of the 3-step test, under the new "global consensus." Both the 1971 and the 2003 negotiations were widely considered failures for users of works and consumers of medicines.