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Ring Side View : Update on WIPO Negotiations on the Treaty for the Visually Impaired

Posted by Rahul Cherian at Aug 13, 2012 04:25 AM |
As a legal advisor of the World Blind Union and part of the World Blind Union delegation to the 24th meeting of the WIPO Standing Committee on Copyright and Related Rights (SCCR) that concluded on July 25, 2012 I had a ring side seat to the negotiations that happened between Member States in relation to the Treaty.

On call almost 24 x 7 to answer questions and clarify positions to Member States on aspects relating to the Treaty and the ground reality faced by the print disabled community, those were possibly the most grueling 10 days of my life.

Progress at the last 3 SCCRs was painfully slow. At the start of this SCCR on July 16 2012 the single biggest hurdle to progress on the Treaty was the stand that the African Group had taken at the earlier SCCRs with respect to a comprehensive text covering exceptions and limitations to copyright for education, libraries, archives and disabilities. See my discussion with Jamie Love from Knowledge Ecology International on this issue. It was evident that while a comprehensive text had its merits, it would be impossible to make progress on this comprehensive text because, other that for exceptions for disabilities, the issues relating to education, libraries and archives had not reached the level of maturity required to progress to a Treaty. So it was essential that exceptions for disabilities were de-linked from exceptions for education etc. This is exactly what the African Group did much to the excitement of the WBU team.

Much was left to be done over the next few days including discussion on the text of the working document which prepared by Chair after SCCR 23, available here. Normally, discussions on text happen at the plenary session attended by Member States as well as accredited organizations such as the World Blind Union, my organization Inclusive Planet Centre for Disability Law and Policy and others. This process, while adding to transparency and more participation is sometimes slow and the request of some Member States considering the urgency of the matter, discussions were taken out of plenary into a closed room round table discussion. All Member States could participate and many did. Unfortunately, accredited organizations were not invited to attend. Full credit to Member States in terms of effort put into this effort as they worked well beyond normal working hours on most days in an attempt to reach consensus on the text.

Another critical outcome we had hoped for was that there would be consensus between Member States that the instrument would be in the form of a Treaty. As the negotiations between Member States progressed it became clear that the United States and the European Union were blocking the Treaty while everybody else was pushing hard for the Treaty.  The United States and the European Union were pushing for some form of non-binding instrument that would be more in the nature of a recommendation. Further coverage of this is at Huffington Post and in the Guardian. The drawbacks of a soft law as opposed to a Treaty is obvious in that a soft law has no binding force as opposed to a Treaty. Rumor has it that the reason for the United States not supporting the Treaty is that the publishing lobby is apparently a huge contributor to President Obama’s re-election campaign and that he could ill afford to alienate this lobby by pushing for the Treaty.  The European Union’s opposition to a binding Treaty was despite a resolution adopted by the European Parliament in February 2012 calling on the European Union to support a binding Treaty.

We had hoped that SCCR 24 would close with agreement on the text, agreement that it would be a Treaty and finally that the SCCR referring the Treaty to the upcoming General Assembly in October 2012 to call for a Diplomatic Conference in 2013 to expressly agree on the Treaty.

However, this was not to be. Although much progress was made on the text, the text remains incomplete, with a lot of brackets in the text on undecided points. There was no consensus that the instrument should be a treaty. And lastly there was no decision on referring the issue to a diplomatic conference.

The next steps as outlined in the conclusions to SCCR 24 are the following:

  1. an inter-sessional meeting of the SCCR be held in Geneva between the 2012 General Assembly and the 25th session of the SCCR to continue work;
  2. the 25th session of the SCCR will attempt to conclude or advance substantially the text of the document; and
  3. that the General Assembly convene an extraordinary session to be held in December 2012 to evaluate the text from SCCR/25 and to make a decision on whether to convene a diplomatic conference in 2013.

SCCR 24 made more progress on this issue that any of the previous SCCRs I have attended. We are very optimistic that the Treaty will become a reality of the next 18 to 24 months with the increased pressure being exerted on the US and the European Union by the blind groups in these jurisdictions respectively. Needless to say, the Treaty will benefit developing countries the most since the majority of persons with print disabilities are in these countries. India and other developing countries are mindful of this and are pushing as hard as possible to make it happen.


My next post will be on the pros and cons of the text that was proposed at the end of SCCR 24.

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