WORLD BLIND UNION RESPONSE TO THE BUSINESS LOBBY AGAINST THE PROPOSED WIPO TREATY FOR VISUALLY IMPAIRED PEOPLE
The World Blind Union (WBU) has been engaged these past five years in a campaign for a WIPO "treaty for the visually impaired". Recently, non-publishing business groups have become vociferous in their opposition to the treaty- something which could at this very late stage do great damage to the chances that a treaty would be agreed to ensure blind and partially sighted people get access to the books they need and are currently unable to receive.
Specifically, this note seeks to make clear our position with regard to the wider copyright system, and to address the question of how our campaign relates to the "wider agendas" that some NGOs have in relation to intellectual property law.
WBU notes that neither BusinessEurope nor the US organisation “IPO” - nor any other major rightsholder –contacted us to ask whether what they were being told by others was an accurate portrayal of this negotiation, or even just to understand the issues involved from the perspective of the visually impaired. The result is that these organisations - and their membership who are in charge of determining what public statements they make - have sent letters and made statements which endanger the fragile treaty negotiations which have taken years of painstaking work and are just a month from their conclusion.
OUR REMIT
The World Blind Unionhas a very clear and simple remit. We exist to serve blind and partially sighted people across the world. As we say on our website, in the "about us" section, "we are the Voice of the Blind, speaking to governments and international bodies on issues concerning blindness and visual impairments in conjunction with our members."
If we campaign at a UN body such as WIPO, we do so specifically and only for the benefit of the people we represent. We do so only because we have identified a specific barrier/ problem within the intellectual property system which is having a detrimental effect on blind people, and which we therefore wish to solve for the benefit of blind people.
WHY WE NEED A WIPO TREATY AND CANNOT JUST RELY ON VOLUNTARY MEASURES
Space here precludes a lengthy exposé on this question. Much more can be found on the World Blind Union and European Blind Union websites.
Of overarching importance, it should be noted that blind and partially sighted people suffer a book famine in which 93-99% of books are not available to them in accessible formats such as large print, Braille and audio.
The implementation of Copyright law at the national level restricts the making of such formats in many countries of the world, and also stops specialist charities which make these books from pooling their resources by sending accessible format books from one country to another.
The main “voluntary” way of allowing copies into accessible formats to be made for blind and partially sighted people, and of sending those accessible copies across international borders, is for a rightsholder to provide a license to a blind person or their organisation. However, this “solution” has proven at best to be only partially effective. It must therefore be underpinned and complemented by a clear legal framework which allows accessible formats to be made and distributed where necessary without (often unforthcoming) rightsholder licenses or agreements, just as is clearly permitted by the international copyright system.
A third of the world’s countries already have such a copyright law exception for blind people on their statute books, recognising this necessity.
Let’s look at one example of what such an exception means in practice. A modern eBook, available for purchase and download from a site like Amazon on the internet, could be read by a blind person using screen-reading text-to-speech software. Fantastic! But often even here the eBook will have been set up so as to disable the text-to-speech screen-reading technology a blind person would use to access the book. If the blind person, having legally bought the book, bypasses this setting or re-formats the book so as to make it compatible with their screen-reader, this would be a criminal act without the copyright law exception being implemented in a way that allows that format shifting to be legal. That person would not realistically want to spend time finding out who the publisher is, contacting them and asking for a license or permission to re-format the book. A national copyright law exception for blind people recognises that reality and allows the reformatting of the book to make it accessible, without rightsholder permission, as a common sense, legal copyright exception to help improve access.
Even well-funded, worldwide licensing solutions such as the WIPO “TIGAR” project can only be partially successful in solving the “book famine”.
TIGAR- touted back in 2009 as likely to lead to a rapid breakthrough and sea change in the number of books available to blind people- has four years later sent hundreds, not thousands or millions of books across international borders. This is not surprising. It is hugely complex to set up all the parameters for such a system, to get agreement for all the rights involved, to administer it and so on.
WHAT WE ARE NOT
WBU is most expressly NOT a general "public access" / "open source" / "copyleft" group. Very simply, we don't have views on matters outside of our remit- neither for nor against.
WBU NEUTRALITY ON WIDER AGENDAS AT WIPO
WBU has some representatives who have been attending WIPO meetings for 8 years. We are therefore very familiar with the arguments of a diverse range of organisations on how they feel copyright law ought to change. These range from library organisations such as IFLA, to open access organisations such as KEI, to many others. We note indeed that due in no small part to these organisations, there are issues on the table for consideration at WIPO that have nothing to do with WBU's campaign for a treaty for visually impaired people. That's their prerogative, of course. The merit of those issues is not for WBU to assess.
Given our remit, WBU has stayed out of these wider / other debates, and has not signed joint declarations from NGOs on them. This puts us at times in an unusual position, because many of these NGOs have expressed strong support for our treaty, which they, like us, deem to be important and necessary. It would be easier for our relations with these organisations, therefore, were we to diversify away from "our" issue and support them! Despite this, we have been strictly neutral on these wider questions. They are simply beyond our remit.
TROJAN HORSE
Despite the above, it is frustrating to say the least to see that WBU / our draft treaty is still often referred to or seen as a "Trojan Horse" or the top of a "slippery slope" which could lead to the end of copyright / IP law as we know it!! It must be judged on its own merits, not on the merits of other issues that might come up in the future or indeed on the basis of feelings about some of the NGOs which have voiced support for it.
THE TREATY- WHAT WBU WANTS
Simple. WBU seeks to ensure that all countries have clear and effective copyright law exceptions for blind, partially sighted and print disabled people. (The last being people whose disability means they need the same sort of "accessible format" works the treaty envisages blind people accessing). Only about a third of the world's countries have these exceptions right now. Publishers already accept that other countries have a perfect right to bring in these exceptions. The treaty would vastly accelerate the process of doing so and ensure that exceptions implemented are compatible with those of other countries, ensuring that accessible versions may be exported and imported with legal certainty. We need to be able to send accessible works across international boundaries, both to other organisations serving blind people and, as the need arises, directly to blind individuals. Finally, we need to ensure that technical protection measures (TPMs) cannot be used as a "digital padlock" that would prevent the lawful enjoyment the treaty intends. (We only need wording to ensure that objective -nothing broader- on TPM. We know that there are wider discussions on the matter in various fora).
THE TREATY- WHAT WBU DOES NOT SEEK TO HAVE
WBU is not looking to expand or contract copyright law protection or amend the international copyright system. Indeed, WBU has never advocated for changing the basis of copyright law. It is the case that existing limitations and exceptions in core copyright instruments need to be 'operationalised' in a consistent way that facilitates the greater access that existing treaties already allow.
It should be noted that in the original draft treaty WBU proposed, in Article 1 we stated
“The purpose of this Treaty is to provide the necessary minimum flexibilities in copyright laws that are needed to ensure full and equal access to information and communication for persons who are visually impaired or otherwise disabled in terms of reading copyrighted works”
See Doc SCCR/18/5 at this link:
Since exceptions are voluntary and implemented differently nationally - and since national treatment doesn't extend to exceptions, cross-border uses of otherwise lawful works under exceptions don't work (unless countries deliberately and explicitly say so). This is not just WBU’s view- it is corroborated by the WIPO “Sullivan Study” published in 2007.
It is that legal/ technical problem that we came to WIPO to resolve. We came to WIPO to achieve this to meet the objectives above, despite the long and painful road we have as a result travelled, because we respect the law and the rights of rightsholders. We want to achieve the narrow changes that will facilitate access within the copyright system.
It should be recalled that the draft treaty under consideration for Marrakech has a lot of provisos and caveats to protect rightsholders, such as:
- Its use would be on a not-for-profit basis as regards any entity making accessible versions of books available – nobody can make profits off of the exceptions in favour of the visually impaired.
- It is strict in insisting on who the beneficiaries are - only (quite rightly) visually impaired and print disabled people.
- It insists already on respect for copyright, for existing legal commitments (see the "general clause" among others), and so on.
WBU has not opposed these things as we understand the need to ensure that rightsholders' interests are respected.
PROVING A NEGATIVE
WBU cannot prove that we are not out to wreck copyright law or that we are not really a "Trojan horse" for much wider copyright law changes. That's not surprising. We cannot provide evidence of what we have never advocated or said! Neither, though, have we gone on the record to contradict the above. Indeed, we are on record supporting copyright protection:
Common sense combined with a close examination of our track record ought to convince any reasonable person that we are in earnest when we say we just want a treaty that works for blind and print disabled people, and that we leave wider debates / issues to others whose remit they are.
DON'T MESS UP A CHANCE TO DO SOME GOOD IN THE WORLD!
Finally, WBU asks those opposing our treaty to have a serious think about what they are doing and the plausibility of their arguments. To help them do so, the companies who have called our treaty into question should feel free to contact WBU to better understand what the visually impaired community really needs, and why.
In any case, this treaty will not stop the fight (such as it is) against climate change, as has been suggested. It will not undermine electric companies, pharmaceutical companies etc. Indeed, it will not even undermine publishers, who are much more relevant stakeholders and who have not called at the eleventh hour for Marrakech to be postponed or said recently that this negotiation is "premature"! The treaty would, though, help one of the most marginalised groups of people in the world get access to education, culture and the inclusion and pleasure that reading brings. Surely that has to be worth supporting, and Marrakech represents a once-in-a-lifetime chance to make this happen.
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