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WIPO Treaty for the Visually Impaired — Moving from a Treaty on Paper to a Treaty that is Workable on the Ground

Posted by Rahul Cherian at Sep 28, 2012 04:41 AM |
After many years of hard lobbying by the World Blind Union, it appears that the WIPO Treaty on limitations and exceptions for visually impaired persons/persons with print disabilities (TVI) could become a reality next year. However, due to pressure from the European Union and the United States, and their insistence on several untenable provisions, there is a real risk that the TVI could become unworkable on the ground.

The following is a list of concerns that must suitably be addressed if the TVI is to make a realistic dent in the “book famine” in which only a few per cent of books are available in accessible formats that persons with print disabilities can read.

  1. Definition of authorised entity to be widened.
    The current definition of authorized entity prescribes 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.
  2. Authorised entities must be required to follow simple rules and procedures when converting and distributing works in accessible formats.
    As is proposed now, authorized entities could be required to follow complex rules and procedures with respect to the permitted activities. In this connection it is critical to note that:
    • Smaller organisations will not be in a position to keep organised records. Therefore smaller organisations that serve rural or small populations must not be subject to a requirement to keep records where they do not distribute accessible formats in electronic form.
    • There must be no requirements for organisations to apply Technology Protection Measures to accessible formats in electronic form.
    • While organisations can inform beneficiary persons to whom they supply accessible formats that there must be no subsequent distribution to non-beneficiary persons, an organisation should have no obligation to oversee the use by the beneficiary persons they supply accessible formats to, or any responsibility for misuse by beneficiary persons they supply accessible formats to.
    • There must be no requirement to share the records that organisations are required to keep with any person or entity other than in the eventuality of copyright infringement proceedings.
    The rules and procedures must therefore be simplified to reflect the above.
  3. The exception must automatically kick in if the relevant accessible formats are not available in the market on the same day as the mainstream format.
    At present there is no clarity on when the exception kicks in and the existing wording can be interpreted such that the exception may apply only after significant time has passed after the books are available in the market in the mainstream format. If a work is made available in the market in a mainstream format it is essential that beneficiary persons can enjoy the work in the relevant accessible format at the same time. Failure to do so is discriminatory towards beneficiary persons. In this connection, the TVI must expressly clarify that if the accessible format copy is not available on the same day as the mainstream format, the exception automatically applies and authorised entities and beneficiary persons can create accessible format copies on the same day that the mainstream format is commercial available.
    This will also be an incentive for rights holders to take steps to ensure that accessible format copies are made commercially available on the same day as mainstream formats.
  4. Making available” to be possible through wire and wireless means.
    One of the proposed changes to the TVI is the clarification that “making available” accessible format copies to the public should be as per Article 8 of the WIPO Copyright Treaty thereby expressly providing for communication to the public, by wire or wireless means, including the making available to the public in such a way that members of the public may access works from a place and at a time individually chosen by them. Given that technology is making it increasingly possible for beneficiary persons to access accessible format copies over wire and wireless means, this is clarification is very critical.
  5. The Authorised Entity in the exporting country must not have any obligation to verify any form of legal eligibility in the importing country.
    As per the current wording of the TVI an authorized entity in one Member State:
    • Must, when exporting to beneficiary person in another Member State, verify whether that other Member State would permit that beneficiary person to make or import that accessible copy; and
    • Can only export to an entity or organization in another Member State that the originating authorizing entity has identified as another authorized entity.
    It is obvious that authorised entities in one country cannot verify the above with any degree of certainty and therefore it is impossible for authorised entities to comply with this requirement. Moreover, as in the case of all copyright exceptions and limitations, rights holders have the right to take copyright infringement action against any person or entity that operates outside, or exceeds, the exception. This requirement relating to the verification legal legibility must therefore be deleted.
  6. Member states having the flexibility to decide whether to link exceptions to commercial availability.
    At present, the draft TVI provides Member States the flexibility to decide whether to confine permitted activities to instances where there is no commercial availability of accessible format copies. This flexibility is critical for Member States since the economic and distribution ground realities in each Member State vary widely and only a Member State can decide this issue conclusively for its own circumstances. Any attempt to change this position in the TVI must be opposed.
    In short, barring the above issues, the Treaty appears to heading in the right direction. The upcoming intersessionals in Geneva (17-19th October 2012) to discuss the text of the Treaty will be crucial to decide the fate of the Treaty. Watch this space.

Rahul is the founder of Inclusive Planet Centre for Disability Law and Policy and he advices the World Blind Union on legal issues relating to the WIPO Treaty for the Visually Impaired.