Attached is a PDF of the proposal by the European Union that was presented at the April 15, 2011 informals in Geneva, held at the US Embassy. The European Union now proposes that WIPO adopt a soft non-binding recommendation on cross border sharing of accessible works, and then monitor progress on the issue for 3 to 5 years. Only after the period of monitoring would WIPO assess whether or not the non-binding measures “meet the reasonable needs of persons with print disabilities because of legal restrictions,” and only then would WIPO consider “discussions” about whether or not to hold a diplomatic conference.
Persons familiar with the negotiations were shocked that the European Union was so openly hostile to current efforts to consider a diplomatic conference. Recommendations on model exceptions were proposed at WIPO and UNESCO in 1982, twenty nine years ago, and a binding treaty dealing with national norms and cross border sharing of works was proposed by WIPO/UNESCO consultant Wanda Noel in 1985, some 26 years ago. The EU is now proposing that the question of a diplomatic conference be delayed until 2014 to 2016, at the earliest.
A copy of the EU proposal, as presented on April 15, 2011, is available here:
/wp-content/uploads/eu_15April2011.pdf
The key paragraph is number 4, which reads:
(a) At the conclusion of this three [five] year period, if the development of national law exceptions for persons with print disabilities and/or cross-border exchanges on special format copies remain inadequate to meet the reasonable needs to persons with print disabilities because of legal restrictions, the International Union for the Protection of Literary and Artistic Works (Berne Union) Assembly, the WIPO Copyright Treaty (WCT) Assembly and the General Assembly of the World Intellectual Property Organization (WIPO) commit themselves to opening discussions with a view to the convening of a Diplomatic Conference for the purpose of rendering the international legal norms of the Joint Recommendation into a Protocol to the Berne Convention on Exceptions for the Benefit of Persons with Print Disabilities.
The EU left the entire section of the nature of the recommendation for voluntary action blank.
The US did not present a paper, but their position was reported to be similar if not essentially the same as the Europeans, in terms of moving forward with a non-binding agreement, followed by years of monitoring and inaction on a diplomatic conference. KEI has asked USPTO for clarification of its position.
The combination of the soft recommendation and the monitoring and delay in action advocated by the European Commission and the USPTO is widely seen as a face saving way for the Obama Administration and the European Commission to kill the treaty, or at least to delay it so long its proponents can no longer maintain their advocacy efforts.
At this point, advocates of the treaty will be looking for help in changing the positions of the European Commission and the US government — the two groups now blocking action on the treaty.
- Within the US government, the USPTO head David Kappos and the White House have dug in against the treaty.
- In Europe, the European Parliament has held two large public meetings on the treaty, sent several letters and questions to the Commission, and plans a vote on the treaty proposal.
- The US Congress has yet to show any support for the treaty.
For more context, see: