[as delivered orally this morning]
Thank you, Mr. Chairman.
My first comment would be on the issue of other disabilities. We have expressed regret in the past that deaf persons were excluded from the Marrakesh Treaty. I believe this is the time when they’re supposed to talk about the status of deaf persons or persons with disabilities. I also will mention that my mother is deaf, has been deaf for several decades. One possible approach is to say that the contracting parties to the Marrakesh Treaty shall or may — depending how you want to do it, extend the provisions of the treaty to persons who are deaf, hearing impaired or have other disabilities who due to that disability need accessible format of a work in order to access a copyrighted work to substantially the same degree as a person without the disability, period.
The next point I want to raise, is on the areas of education and research exception. We would say that generally speaking in some countries there is a fairly wide divergence between what people do and what the law says. When you have that kind of divergence one response may be to ramp up the enforcement mechanisms to deal with widespread infringement and another possible response is enforcement efforts, is to change the laws so that some practices are actually recognized as legitimate and non-infringing, other cases, compromises are reached such as exceptions. I think bringing the countries in has a lot of benefits, you can have strong laws in the books and if no one follows them, they don’t think they’re fair and they’re not benefiting them for designed for somebody else, it is a hollow victory. You want something where people operate lawfully and you try to address the legitimacy of different parties.
In this committee I would focus my opinion on distance education and training which is a cross-border issue, it is difficult to imagine a fully developed — the potential of online distance education and training programs without dealing with cross-border issues and when there is uncertainty about the status of exceptions of cross-borders. In that area I think it is important to look both at non-commercial and commercial services because they’re both important. One of our staff members used to work in the research and development section of Berlitz and we have followed for some time the rise of certain kind of commercial — not just degree programs but training programs related to the professions and other things and I think that the answers may be different for the non-commercial and commercial sector in terms of how you handle some issues. For example, remuneration.
A second thing that would be an important focus is the issue raised in the 1971 appendix to the Berne Convention as it relates to legislation. Some have looked at that huge part of the text of the Berne Convention as one of the most embarrassing parts of the copyright system, it was a failure.
It was something that was done to respond to the desire of countries for development and access to knowledge but it has not been very effective and since WIPO has tried to update every other aspect of the copyright system from the broadcasting system to performances, copyright, everything else, they never really have gone back to the 1971 appendix and asked why it didn’t work and what needs to be fixed. There are many things in the African Group proposal which have tried to respond to the failures of the ’71 appendix and tried to improve t I think that we should really pay a lot of attention to that. I think it is notable that the main demandeurs for this education program today is the African Group. The very same group that was involved in the negotiations that ended poorly in 1971.
Finally I want to say that I would like to focus on the right owners to bargain with. But many of the proposals are not — many are exceptions like United States took for exceptions and other countries do, but this third area, where you get rid of exclusive rights but you have the remuneration is an important area in education. In northern Europe it has been in many European countries and they have had extensive work in this area, great authors have asked that people consider the exceptions in some areas and I think it is surely appropriate to be part of the agenda. On page 18 of the African Group proposal, paragraph 22 there is a proposal for exceptions that follows the contours of the limitations on remedies, a subject that professor Ricketson says does not fall under the three-step test in a presentation on his study on copyright on exceptions. I also want to mention that in the United States the federal government uses this approach of limitations on remedies with compulsory licenses for copyrighted goods in the United States and that separately the United States has implemented a compulsory licensing program for works that are not reasonably priced with libraries in the extended term of copyright in connection with the Copyright Act.
There may be areas where some approaches would be preferable in some countries and some approaches may be preferable in other countries. I think that the challenge of this group is to sort out how you move forward with such a complicated area where legal traditions are different in different countries as people have pointed out and it is completely accurate. It is hard to imagine how you can get consensus in some areas.
Finding a way to move forward, searching for areas where you can do this may be a good way. I think it may be good to think of a parallel to the work on a binding treaty, how technical assistance in soft form is improved so you have early deliverable in the area that’s not as threatening to the participants here. I note in the Marrakesh Treaty WIPO started the stakeholder platform in combination with the discussion on the treaty and neither one was supposed to be a substitute for the other and it may be that there are some role of discussion for working on model provisions that are not as a substitute for the work on the treaty but perhaps as a complement building confidence toward reaching consensus on binding norms.
Thank you very much.