Bridges Weekly Trade News DigestVolume 16Number 41 • 28th November 2012

WIPO Negotiations on New Legal Instrument for Visually Impaired Move Forward

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After five days of intense negotiations, members of the World Intellectual Property Organization (WIPO) made significant progress on the text for a future legal instrument aimed at improving access to copyrighted material for the visually impaired and print disabled. However, delegations were unable to reach a compromise on several provisions and left open the question of whether the instrument will have binding obligations.

The twenty-fifth session of the Standing Committee on Copyright and Related Rights (SCCR) - held from 19-23 November in Geneva, Switzerland - was the second step in a roadmap recently adopted by the WIPO General Assembly “with a view to conclude or advance substantially the text-based work.” (See Bridges Weekly, 10 October 2012)

“We want a good new instrument … one that will place the visually impaired community and the print disabled in a better position after the conclusion of the new instrument than they are at the moment,” WIPO Director-General Francis Gurry said at the start of the meeting.

Delegations agree on definitions

In informal consultations under the guidance of SCCR chair  Ambassador Darlington Mwape of Zambia, delegations were able to find convergence on the preamble and in some areas of past disagreement, such as certain definitions. (See Bridges Weekly, 25 July 2012)

Specifically, delegations agreed that the term “work” - which is necessary to ascertain what would fall under the instrument’s scope - should mean literary and artistic works in the form of text, notation, and/or related illustrations, whether published or otherwise made publicly available in any media. In this regard, an agreed statement will be drafted to clarify that audiobooks are included in this definition.

Members also agreed on the definition of the term “authorised entity,” which defines who will be allowed to make, obtain, and supply accessible format copies of works. According to the current version of the text, an authorised entity is one recognised by the government to provide education, instructional training, adaptive reading, or information access to the visually impaired/print disabled on a non-profit basis.

The definition also includes government institutions or non-profit organisations that provide the same services to beneficiary persons as one of their “primary” activities or institutional obligations. However, an agreed statement will also be drafted in this case, in order to clarify the scope of the word “primary.”

Differences remain on flexibilities

Despite the progress made on definitions, a major issue that remained unresolved was the reach of the flexibilities provided by the instrument. In this regard, the African Group argued that the exceptions and limitations permitted under the potential future treaty should not be negated by “new obligations regarding sovereign discretion by member states regarding how governments create other exceptions and limitations to address public interest needs nationally.”

Particularly, delegations could not agree on whether to openly reaffirm in the text the so-called “three step test,” which sets limits to the exceptions and limitations of a copyright holder’s right. The concept dates back to the Berne Convention for the Protection of Literary and Artistic Works and is also included in the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and in the more recent Beijing Audiovisual Performances Treaty. The provision has been historically controversial in international negotiations because of different interpretations on how to apply it in a way that upholds the public interest, while also protecting copyright holders’ rights.

Developed countries fear that not including a reference to it in the text might set an unpredictable precedent for future instruments, sources say. Similarly, the International Federation of Reproduction Rights Organisations (IFRRO) - an NGO representing the interests of authors and publishers - said that “it is, in our view, indispensible that exceptions in the legal instrument be made subject to the so-called three step test.”

However, a representative of Knowledge Ecology International (KEI) - a Washington-based NGO - argued that if “the three step test is already part of international law, it does not need to be included here. It is an effort to restrict the freedom of countries to write national laws to address the public interest.”

Another issue that has delegations at odds involves two provisions that would restrict cross-border exchanges of accessible format copies. Some developing countries reportedly argue that it would be difficult for their authorised entities to implement either of these provisions; this could, in turn, limit their countries’ access to imported books.

Final outcome still uncertain

It still remains unclear whether the future instrument should be a binding one, like a treaty, or a soft law instrument in the form of guidelines or recommendations. The EU - which on previous occasions had avoided referring to a binding instrument as a possible outcome of negotiations - appeared to show some flexibility on the issue at this session.

“The EU and its member states are now in the position to negotiate the conclusion of an instrument, including a binding treaty,” the EU delegate said.

The US, for its part, notably omitted the word “treaty” from its interventions. “We will be taking this working document home and I assure you that everyone on the US delegation will be working diligently to explain it in Washington, to seek support for it in our capital, and we are very hopeful of bringing back a favourable decision in December,” the US said as the meeting was drawing to a close.

The text will now be considered by an extraordinary meeting of WIPO’s General Assembly on 17-18 December, which will decide whether to convene a diplomatic conference in 2013 for the adoption of the new instrument.

ICTSD reporting; “WIPO Committee Finishes A Step Closer To Treaty For Visually Impaired,” IP WATCH, 24 November 2012.

2 responses to “WIPO Negotiations on New Legal Instrument for Visually Impaired Move Forward”

  1. john e miller

    The inclusion of the 3-step test may be a trap door mechanism at the national implementation level even if a binding treaty is concluded next summer. Step 1 relates to ‘certain special cases’. It can be argued that the current SCCR25/2 definition of beneficiary persons — which would encompass about 10% of the world’s population — cannot be considered a certain special case.

    The still bracketed Article I was an attempt by civil society interests to ‘push back’ against the 3 step test restrictions but that article has been asked to be withdrawn by the delegate from Venezuela who originally proposed it.

    So the resistance of Treaty supporters to including the 3 step text in the Articles of a binding instrument as opposed to the Preamble may be that the entirety of the proposed treaty might not be in compliance. On such a basis could ratification be opposed by Creative Industry interests at each national level e.g. by Members of the International Publishers Association (IPA) in 50 countries.

  2. john e miller

    From the above: Particularly, delegations could not agree on whether to openly reaffirm in the text the so-called “three step test,” …

    And why was there an open mention of the TRIPS Article 13 3-step test in the SCCR25/2 treaty proposal in the first place? Because the original SCCR18/5 WBU proposal as offered by Brazil et al put it there:

    ARTICLE 3. Relations to Other Agreements

    (a) Contracting Parties agree that the provisions of this Treaty are consistent with obligations set out under those of the following treaties and conventions to which they are a party:

    5. the Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (the TRIPS Agreement);

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