The Hathitrust Judgment and its impact on TVI negotiations at WIPO

Before the WIPO intersessionals began on October 17, 2012, the definition of “authorized entity” in the draft Treaty prescribed that only authorized entities that address the needs of beneficiary persons as one of their primary (in brackets) activities or institutional obligations can undertake conversion and distribution of books in accessible formats. This requirement is unacceptable since it will exclude many legitimate organisations and institutions that undertake these activities but who do not address the needs of beneficiary persons as a “primary” activity or institutional obligation. Some examples of such organisations/institutions are mainstream education institutions and mainstream libraries. Delhi University which has a large number of blind students will be excluded and this is unacceptable.

The main proponents pushing for the word "primary" was the United States and the European Union while India and other developing countries wanted the word to be deleted for obvious reasons. There was a virtual deadlock in the negotiations on this particular point.

The United States was pushing for the word “primary” because under US Copyright law, an authorized entity means a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities. Under US law there was uncertainty as to whether educational institutions and libraries would be covered under the definition of “authorized entity”.

Enter the HathiTrust Judgment http://www.tc.umn.edu/~nasims/HathivAG10_10_12.pdf. The judgment, which was pronounced a few days before the October WIPO intersessionals by the New York Southern District Court, held that libraries and educational institutions fall under the definition of “authorized entities” under US law.

The US delegation to WIPO was instantly alerted about this judgment and was requested to negotiate broader wording for authorized entities under the Treaty as was now the position under US law.

At the intersessionals that concluded on October 19, as observers, we were not allowed into the room and the discussions were happening between the Member States but at the end of the intersessionals this is the proposed wording of authorized entity:

Authorized entity means an entity that is authorized or recognized by the government to provide education, instructional training, adaptive reading or information access to beneficiary persons on a non-profit basis.  It also includes a government institution or non-profit organization that provides the same services to beneficiary persons as one of its primary activities or institutional obligations.

As can be seen from above, this definition is broader than the previous definition since the word primary has been deleted from the main definition and it explicitly covers educational institutions and libraries. It is also interesting to note that even for profit entities that provide the above services on a non-profit basis to beneficiaries are covered.

It remains to be seen what form the definition of authorized entities will take but the HathiTrust judgment has definitely helped in the negotiation process.

The next meeting of the Standing Committee on Copyright and Related Rights takes place in Geneva between November 19 and November 23, 2012.

Watch this space for updates. See my earlier posts on the WIPO negotiations.