Meera Nair

sightless eyes look to Marrakesh

In Posts on June 13, 2013 at 8:01 pm

Under the auspices of the World Intellectual Property Organization (WIPO), a diplomatic conference will soon convene in Morocco. From June 17-28, delegates from Canada and other countries are to meet in Marrakesh and conclude discussions concerning a treaty for access to copyrighted works for the blind or visually impaired. Whatever language emerges, those eleven days will close this chapter of international cooperation or lack thereof.

The dialogue of access began more than thirty years ago. Sightless eyes of added generations still look hopefully for some resolution that would augment the creation and sharing of copyrighted works in formats accessible to the blind or visually impaired. Yet on the eve of this final negotiation, the treaty language under consideration shows that more attention has been lavished upon securing the assets of publishers than facilitating access for others. That the majority of the world’s blind population are among the poorest in the world leaves many disappointed at best, outraged at worst, with this state of affairs and are calling for improvement.

No one would suggest that publishers be forced to abandon a legitimately earned market. But publishers have long acknowledged that the number of potential buyers among the visually impaired is too small to warrant investment in specialized formats. Consequently, the supply of copyrighted materials accessible for the blind or visually impaired is very limited in high-income countries, and almost non-existent in low-income countries. What is sought is an exception to copyright law whereby appropriate organizations may create copies of copyrighted works, in a format conducive to the needs of those they serve, and, to share such material across international borders.

For publishing representatives, such an exception seems fraught with danger. That by creating this precise exception to copyright, special requests would pour in from every other vested interest. Or worse, that the outcome will be more piracy as others take advantage of this exception to line their own pockets. In terms of other special interests, subsequent requests could be left for subsequent consideration with the option to reject. As for piracy, would-be pirates already have photocopiers, digital recorders, scanners and high-speed internet connections in their arsenal – they are not held back for want of an exception meant for the blind.

James Love, the director of Knowledge Ecology International, has for years written at length about the tortured journey of this treaty. Following the last iteration of talks in April 2013, he explained in detail the systematic dilution of the efforts of the World Blind Union (WBU) to create a usable treaty. Despite the extensive protection offered via copyright through domestic laws, international trade agreements and existing treaties (the Berne Convention and the WIPO Internet treaties come to mind), WBU’s proposed language has been layered with stringent conditions or removed entirely.

For instance, the publishing community wishes to negate the exception if a work is commercially available in a suitable form at a reasonable price. Each word—available, form, reasonable—will differ in interpretation from country to country, thereby inviting trepidation and, in all likelihood, lawsuits. Permission to circumvent a technology protection measure in order to make an accessible-format copy is in doubt. Earlier language to ensure that private contracts cannot override the exception has disappeared. And, perhaps most ominous, in a recent letter to the Obama Administration, the Intellectual Property Owners (IPO) Association (currently presided over by Richard F. Phillips of Exxon Mobil) has thrown their weight behind publishers’ insistence that a set of conditions known as the Berne three-step test be included.

The language of the three-step test seems transparent; reproduction of a copyrighted work may be permitted “… (i) in certain special cases, (ii) provided that such reproduction does not conflict with a normal exploitation of the work and (iii) does not unreasonably prejudice the legitimate interests of the author.” But a plain English reading of the law, particularly if the three tests are assessed individually, could invalidate the exception even though a WIPO interpretation may well support the exception, or indeed, deem the three-step test inapplicable depending on the situation at hand. The insistence upon the three-step test adds unnecessary complexity to the treaty and will likely only serve to frighten away any organization that lacks access to a competent intellectual property lawyer or scholar.

Last week the Canadian Library Association made public their letter calling on the Government of Canada to support the spirit and the intent of the treaty. Dated to 5 June 2013 and sent to representatives of both Industry Canada and Canadian Heritage, the Association asked that the Canadian delegation support: (i) the inclusion of libraries as authorized organizations who can utilize the treaty to provide services to their visually impaired patrons; (ii) the removal of requirements to assess commercial availability; and (iii) the circumvention of technological protection measures as necessary to create more materials in accessible format. The Association makes plain the challenge to be overcome: “With an optimistic estimate of only 5% of publications available in accessible formats, it is essential that all possible provisions are made to expand that volume of material.”

The paucity of materials available for the blind or visually impaired has been described as nothing less than a book famine. Reading is critical for all individuals to progress in life but what if there is nothing to read?

My earlier coverage on this topic is here and here. In his current technology column, Michael Geist details the objectives of the treaty, its challenges, and asks if Canada would “stand up for the rights of the visually impaired?”

Update — June 14, 2013  Sara Bannerman has written about the treaty as well; she notes that: “This is an opportunity for Canada to show leadership and vision, and to emphatically insist on the fullest and most meaningful access for the visually impaired.”

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