Next week (March 8-12) delegates from various developing countries will gather in Washington, DC for a week long “INTERNATIONAL TRAINING FOR DEVELOPING COUNTRIES AND COUNTRIES IN TRANSITION ON EMERGING ISSUES IN COPYRIGHT AND RELATED RIGHTS AND ISSUES PERTAINING TO BLIND AND VISUALLY IMPAIRED PERSONS” co-organised by the US Copyright Office and WIPO. We hope that at least 6 Myths about the treaty for people with disabilities proposed by Brazil, Ecuador and Paraguay will be clearly debunked once and for all during the training.
The list below was put together by the World Blind Union and the RNIB and distributed at the last WIPO SCCR meeting in December 09.
MYTH NUMBER 1
A Treaty to facilitate access for reading disabled person is bad for copyright in general and could “dismantle” the system.
“By requiring the recognition of a specific, detailed exception to copyright protection, the draft Treaty would break the mould of every previous Treaty instrument that forms part of the long-standing global framework of copyright norms.”
Steven J. Metalitz for Association of American Publishers (AAP), Independent Film and Television Alliance (IFTA), Motion Picture Association of America (MPAA), National Music Publishers’ Association (NMPA), Recording Industry Association of America (RIAA),
THE TRUTH
At national level, copyright exceptions for reading disabled people now exist in some 60 countries. The Chafee amendment in the USA and the UK’s Copyright VIP 2002 Act, to name but two, have not undermined publishing or the copyright system. The implementation of both these laws was opposed by many Rights Holders who feared they would undermine the copyright systems of those countries. In reality, they have improved access to books and not damaged publishing. More importantly both laws are used to make many accessible books that would otherwise not be available to reading disabled people.
Copyright law is supposed to strike a balance between the interest of Rights Holders and users. Under the heading “What is WIPO?” the World Intellectual Property Organisation’s website says the following:
“the World Intellectual Property Organization (WIPO) is a specialized agency of the United Nations. It is dedicated to developing a balanced and accessible international intellectual property (IP) system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest.”
The proposed Treaty represents a part of that balance between the rights of Rights Holders and those of users, and seeks to safeguard the interest of millions of reading disabled people around the world. After all, reading disabled people have rights too, and these are now enshrined in the UN Convention on the Rights of Persons with Disabilities.
The making of very specific, reasonable and limited exceptions at WIPO is not a radical change of copyright law. If it does change the system
a little, it does so for the benefit of reading disabled people and to the detriment of nobody.
MYTH NUMBER 2
A Treaty for the visually impaired is “premature”.
“It would be premature and counter-productive to prescribe in Treaty form the very technologies and market that is facilitating, for the first time in human history, the very accessibility long sought by blind and visually impaired individuals. There is a real danger that these cooperative efforts could be adversely affected if WIPO or any government were to step in and attempt to create and implement copyright-specific mandates or exceptions that bind the hands of the stakeholders, especially those being proposed in the draft Treaty”.
Keith Kupferschmid for the Software & Information Industry Association (SIIA)
THE TRUTH
Some tell us that a Treaty at WIPO would “take too long” and that we should therefore abandon our call for such a thing. Ironically, the people telling us this usually represent organisations lobbying against this Treaty. They are actively working to ensure that their prediction comes true!
Far from being premature, the idea of a Treaty was first raised before people owned mobile phones, before the iron curtain fell, before perhaps some of the youngest delegates to WIPO, this December, were born! 1
On numerous occasions the World Blind Union, the International Federation of Library Associations (IFLA) and others have asked WIPO to address the need for new global norms to expand access to works under copyright limitations and exceptions, focusing in particular on the need for sharing copies of accessible works across borders. So after waiting for 25 years, is the Treaty proposal really premature? If so, when would it be “mature”?!
MYTH NUMBER 3
There are many issues other than copyright that are problematic, so why focus on copyright and
exceptions to copyright?
“Copyright exceptions, through their legal nature, do not address the key obstacles to access. The biggest obstacle to wider accessibility are the costs for re-formatting works in VIP charities. A reduction of these costs can only be reached through cooperation with Rights Holders. A copyright exception is therefore not a suitable tool to achieve the shared objective”.
International Publishers Association website
THE TRUTH
Reading disabled people’s organisations know first hand that the lack of books in accessible formats is a multi-faceted problem. At no time have we said copyright law was the only barrier.
We are therefore working on various solutions to it. These include licensing, technological changes, the accessibility of e-books, the internet and so on.
But current copyright law does represent one significant barrier we need to remove to improve access to works. The World Blind Union drafted a WIPO Treaty Proposal because it encountered copyright barriers which prevented its members’ efforts to share accessible books. It should be remembered that the vast majority of the 5 per cent of books that are made accessible are created by specialist agencies rather than publishers. These agencies want to pool their scarce resources worldwide but the national nature of copyright law prevents this.
We took this copyright-related problem to WIPO, as it is WIPO that deals with international intellectual property law. WIPO commissioned the Sullivan Study as a result, and this study showed that the sharing of books, made under exceptions across national borders, was indeed a legal gray area.
We recognise that there are many activities which will be needed to solve the book famine, and that there are many organisations which have a role in doing so. We are working with all of them.
But WIPO has a particular remit on copyright, and therefore WIPO’s biggest and most relevant contribution to solving the book famine lies in international norm-setting. The fact that other measures are also needed to solve the book famine should not be used to suggest that WIPO’s norm-setting role is irrelevant.
MYTH NUMBER 4
An International Treaty for the Visually Impaired would lead to piracy.
“The reticence of authors’ and publishers’ to license this activity is caused in part by fears that it may lead to infringement or otherwise undermine the economic incentive for the creation and distribution of books”.
Jule Sigall, Microsoft
2.”A copyright exception risks an imbalance. Electronic formats, in particular those easily interpreted even by less sophisticated tools for VIPs, are also most susceptible to abuse and piracy, as they can be used for mainstream products. A broad exception therefore carries a large risk for the authors and publishers. A balance must therefore be found between the legitimate interests of Rights Holders and persons with disabilities.”
International Publishers Association’s (IPA) website
THE TRUTH
We respect the rights of Rights Holders. We understand that piracy is a serious problem in the digital age. Piracy was not of our causing, and sadly we do not have the answers to it. Having said that, specialist accessible format agencies work hard to protect the intellectual property of Rights Holders, and actively work to prevent misuse of their materials.
In any case, the publishers and other Rights Holders have produced no evidence that copyright exceptions lead to abuse and piracy. Will anyone – reading disabled or not – who is intent on piracy, wait until a copyright exception is in place to engage in illicit activity? Where is the evidence for this? Are internet “pirates” just sitting there waiting for a Treaty for reading disabled people so that they can make their illegal fortune?!
It is therefore wrong and even unfair to use this as an argument to prevent a Treaty which would facilitate reading disabled people’s legitimate right of access to published works.
MYTH NUMBER 5
The Treaty for the Visually Impaired is a “slippery slope” to other exceptions/the undermining of copyright law
“Viewed in context, the draft Treaty appears to many as the not-so-thin edge of a wedge to be driven into the longstanding structure of global copyright norms. It advocates a U-turn in the approach to global copyright norms that would almost certainly not be restricted to the issue of access for the visually impaired, or even for the disabled community generally. Adoption of this proposal would be used to justify its radical approach — mandating in national law exceptions and limitations that reach far beyond what would be even permissible under global norms today — in many other fields of copyright law.”
Steven J. Metalitz for Association of American Publishers (AAP), Independent Film and Television Alliance (IFTA), Motion Picture Association of America (MPAA), National Music Publishers’ Association (NMPA), Recording Industry Association of America (RIAA).
THE TRUTH
This argument does two things.
Firstly it makes the erroneous general assumption that exceptions undermine copyright law. They do not. They are a small but legitimate part of copyright law. Copyright law is supposed to be about both the protection of the legitimate rights of Rights Holders and the protection, through exceptions, of the rights of access users are entitled to.
Secondly, it raises fears over the possibility of other proposals for exceptions following after the proposal for a Treaty for reading disabled people. It uses this possibility as an excuse to refuse to analyze the specific merits of the Treaty proposal for access for reading disabled people.
Those putting forward this argument are insinuating that WIPO Member States are not capable of judging each norm-setting proposal at the SCCR on its own merits. They are currently doing so in the areas of broadcasting and the internet, for instance.
It is only fair to reading disabled people, who have been so long denied access to reading, to take the Treaty proposal seriously on its own merits, and indeed to do the same with any other proposal that might one day come before the Committee. You cannot meaningfully judge proposal “A” on the basis that you might one day not like proposal “B”, “C” or “Z”!
MYTH NUMBER 6
Rather than a Treaty, the best solution for the access needs of people with reading disabilities is that publishers help on a voluntary basis.
“The bilateral approach of mutual cooperation working within the market-place is the best way to develop the technological solutions to the specific issues related to facilitating access to copyrighted works for the blind and visually impaired”.
Keith Kupferschmid, Software and Information Industry Association
THE TRUTH
Implicit and wrong in this assertion is that we must either have mutual cooperation to end the book famine or we must back a Treaty. In fact, we can and indeed should do both.
The WIPO Stakeholder Platform is working on pilot schemes for the transfer of licensed material in accessible formats across jurisdictions. It is also looking to develop more accessible publishing processes. We are working hard on these initiatives with Rights Holders.
The proposed Treaty is still necessary, irrespective of this work.
Even with the best will from all parties, and great progress, nobody can honestly argue that ALL books will be provided by ALL Rights Holders to ALL reading disabled people in the foreseeable future. For the many instances where the Rights Holder files cannot be obtained, national and international law should provide for reading disabled people’s organisations to make, and share, accessible copies. This provision is not currently in place.
What does the Treaty do that the “Stakeholder Platform” would not?
Collaboration with Rights Holders is very important. However, there are many instances where specialist agencies and reading disabled people will need to make and share accessible format works themselves. Currently over 90% of accessible works are made available by specialist agencies using national copyright exceptions without publisher files.
Notwithstanding the work of the Stakeholder Platform and other collaboration with Rights Holders, the Treaty would, alone, provide for:
The sharing of existing files/collections among language groups (such as in Arabic, Chinese, English, French, Portuguese and Spanish speaking and all other multi-national language groups).
The sharing of new books/files made accessible by exceptions rather than licensing (90%+ of current files are made that way by specialist agencies).
Legal cover to modification of works to better describe them to blind people, such as descriptions of images.
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