Today the discussion on the definition of “authorized entity” has started. It is one of the important and technical issues that could make a treaty good or bad, useful or ineffective.
An “authorized entity” or AE is the institution that provides the works in accessible format to the people with visual impairments who are the beneficiaries of the future treaty. Depending on how broad or narrow or inclusive v. restrictive the definition gets to be by the end of the negotiation, access is conditioned.
Some of the questions this morning:
Should an AE be a governmental or non governmental agency?
Must the *primary mission* be to (only) serve the Visually Impaired? That, for example, would be very limiting since school or libraries or even non profit whose primary mission might be education, archiving or others, might still want to provide accessible formats to a visually impaired person.
Finally who decides the rules for the AE operations?
Here are some of the interventions during the debate. The EU is responding to the Indian Delegate who refered to an Indian University providing (or not) an accessible format for a student (India: Because I studied in law school and law school did not have the primary objective of providing accessible formats to blind students.)
EU: …As regards the definition — sorry the intervention of our Indian colleague, just to explain to him that in our view his university in India which I assume may have a department that takes particular care of those students that have a print disability, it is as regards the primary mission or activities of that department of the whole entity of the university that we should be looking in to in order to determine whether it is or not an authorized entity. There is another element as well that needs to be kept in mind. Authorized entities are going to play a particular role in our view as regards the Cross Border of files of accessible format copies.
[….]
As usual the US is refering to past informal (secret) negotiations:
UNITED STATES: Thank you, Mr. Chairman. We appreciate the suggestions and comments that have already been made on the definition of an authorized entity. We concur completely that one of the important things that we must all discuss together is the question of how to formulate the issue of a primary mission or one of the primary missions or primary activities. This in the discussions both today and over the past two years has clearly emerged as something we can work on together but something we will have to sort out. For this delegation it is the perfect kind of subject for informal discussions that have been so fruitful in the past. We also think that that, of course, impacts how the authorized entities include schools and the degree to which they include schools and this delegation is very sensitive of reaching the right result on that. In addition we do note that I think the United States concurs with the sentiment expressed by the Distinguished Delegate for the European Union
…
While Brazil, Nigeria, Peru are calling for a reality check:
>> BRAZIL: Thank you, Mr. Chairman. Good morning, to everyone. Our delegation appreciates the textual suggestions made by several Delegations so far regarding the definition of authorized entities. I would like to comment on the suggestions made by the delegation of the European Union. Basically our Delegations amen able to general instruction presented there but would like to point out two things that to our understanding it is to be more discussed. There is a mention to primary missions which has already been commented by India. We have a similar situation in our country, for instance, universities has obligations to provide services to the blind community and they do so but we cannot say it is their primary mission. So we think that we should have a conceptual discussion on this issue and agree that also this could be a very interesting topic for informal consultation. So that we can arrive in to a language that takes out this realities in to account. And the other comment I would like to make is regarding rules and procedures that would apply to authorized entities. We have some concern that we should not create reasonable responsibilities on authorized entities. In this regard we could also work on language that can be agreeable to all. Especially regarding item C which is to discourage and address the making and distribution ofauthorized copies. So we think that these two points they deserve some attention and we are ready to contribute to this exercise, this SCCR to arrive to an agreeable solution. Thank you.
>> NIGERIA: I want to add on behalf of the delegation of Nigeria comments to the importance of this definition and in particular taking in to account the institutional realities on the ground in many developing and least developed countries. I think in this regard it is instructive to take note of something that was done in the TRIPS agreement which was to make clear that a reorganisation or establishment of new institutions simply to address or to
fulfill a particular substantive requirement would not be necessary and I think that if you have an institution that does not maintain a separate department to take care of people and persons with print and visual disabilities or impairments, that such an institution should not have the obligation as a result of anything we might come to in this definition to create such a department or to create such an institutional bureaucracy. In fact, the discussion within the
Africa group in the proposal which Nigeria completely supports was to either eliminate the rules and procedures paragraph, which would be paragraph 2 or to substitute the word “may”, an authorized entity may maintain rules and procedures in particular because of the large numbers of rural educational and teaching institutions in countries like India, Nigeria, South Africa, Pakistan, et cetera. For those institutions any sort of administrative burden would simply make this an unworkable and unaccessible treaty which would be an irony.
>> Peru: …We would like to endorse the statements made by India and Brazil in that in our countries many of these services are established by entities whose primary mission or primary activity is not to serve this important community of our populations but as part of an inclusion policy. And in not establishing ghettos so that they include Persons with Disabilities but rather to assist public libraries and educational institutions with shared services which facilitate access to information. Those general services and so we would like to express concern about the term of primary mission or activity but we do also understand that there is a legitimate concern to try to avoid a generalized uncontrolled use of works which are put in circulation which are circulated. So we are flexible that if we have a proposal that indicates that there is a primary mission or activity this would have to be supplemented with inclusion of another authorized entity indicating libraries or educational institutions which have as one of their activities to assist persons with print disabilities.
Are the EU and US trying to impose their restrictive views and concepts of what is an institution serving people with visual impairments? It looks as if the rest of the world is pushing back.
>> NIGERIA: … Article C 2 A the opening paragraph authorized entities shall be permitted without the authorization of the Copyright rightsholder to make an accessible format copy of a work. And the proposal is to delete the next phrase right after the comma obtain from another authorized entity a work in accessible format. So in other words, simply deleting the phrase between the commas. Thank you Mr. Chair.
Here is the text that emerged at the last meeting and that is being edited right now:
SCCR/23/7
page 51“authorized entity”1
means a governmental agency, a non-profit entity or non-profit organization that has as one of its activities to assist persons with print disabilities by providing them with services relating to education, training, adaptive reading, or information access needs, in accordance with national law.An authorized entity maintains rules and procedures to determine the beneficiary persons that they serve.2
An authorized entity has the trust of both beneficiary persons and copyright rights holders. It is understood that to obtain the trust of such rights holders and beneficiary persons, it is not necessary to require the prior permission of said rights holders or persons.
If an authorized entity is part of a nationwide network of organizations, then all organizations, institutions, and entities must adhere to these characteristics, in accordance with national law.
[Article A continues, page 21]