[A2k] How will WIPO provide a “speedy solution” t o the problems faced by the reading disabled pe rsons in accessing copyrighted works?

[Thiru Balasubramaniam]

How will WIPO provide a “speedy solution” to the problems faced by the
reading disabled persons in accessing copyrighted works?

Submitted by thiru on 17. August 2009

In May 2009, at the WIPO Standing Committee on Copyright and Related
Rights (SCCR) 18th session, the governments of Brazil, Ecuador and
Paraguay formally tabled a proposal to WIPOendorsing the World Blind
Union's Treaty for Reading Disabled Persons.

Following on the heels of this landmark session of the SCCR, on July
13, 2009, WIPO convened a public meeting entitled "Meeting the Needs
of the Visually Impaired Persons: What Challenges for IP".

The WIPO forum, attended by around 150 people, must not be perceived
as a substitute for the norm-setting member states driven SCCR.
However, it provided a snapshot of how the World Blind Union, the
DAISY Consortium, the International Publishers Association, the
Chilean Ambassador to the WTO, the Senegalese Ambassador to the UN in
Geneva and a senior official from Canada’s Department of Foreign
Affairs and International Trade would respond to the proposal by
Brazil, Ecuador and Paraguay as well as the previous calls made at
SCCR 16 and SCCR 17 to find "a speedy solution to the problems faced
by the blind, the visually impaired and other reading disabled persons
in access protected to works."

Swashpawan Singh,Honorary Advisor, for WIPO Visually Impaired
Initiative, kicked off the event with an overview of how WIPO and its
Member States recognized the need for print disabled persons to access
the written word thus enabling them to "seek, receive and impart
information and ideas regardless of frontiers" which would facilitate
them to "participate more fully in the cultural life of the community,
to enjoy the arts and to share in scientific advancement and its
benefits". Mr. Singh recalled the mandate of SCCR 17, but focused his
remarks on the work of the WIPO stakeholder's platform. He noted that
the WIPO VIP Initiative was established with the "objective to make
available published works in accessible formats in a reasonable time
frame" across multiple jurisdictions.

According to Mr. Singh, the Platform brought together major
stakeholders including reading disabled persons and representatives of
the publishing industry and reproductive rights organizations to
identify a common set of elements to meet the objective of making
greater quantities of copyrighted works accessible to print disabled
persons. These elements drawn up by the SP meetings in January 2009
and April 2009 included the treatment of

     (1) an enabling legal regime; (2) technological tools for the
conversion of works;(3) issues of formats, standards and
interoperability;(4) concerns relating to development and specific
needs of developing countries; (5) creating and disseminating
information materials and training modules; and (6) assessment of
particular challenges posed by the digital environment.

The Stakeholder Platform commissioned new studies on trusted
intermediaries, technical formats and new technologies reported Mr.
Singh and progress on these fronts, would "evolve a consensus on the
modalities of an enabling legal regime and a viable and practical
technical framework". Mr. Singh emphasized that the Stakeholder's
Platform was given a specific mandate by the Member States and its
success was to be measured by an increase of digital and analog works
in accessible formats within a reasonable time frame.

Mr. Chris Friend, Strategic Objective Leader Accessibility, World
Blind Union (WBU), stressed that the technological advances which
rendered works accessible in digital audio, large print or braille
formats required the commensurate political will from governments to
ensure the end of the book famine for print disabled persons. Friend
made a compelling argument in favor of the Brazil, Ecuador and
Paraguay Treaty proposal which would “specifically facilitate a number
of situations preventing accessibility, such as the cross-border
exchange” and sharing of the WBU’s own collections legally made under
copyright exceptions. Friend declared to the WIPO conference that it
would be an “act of gross inhumanity” if governments looked on
complacent with business as usual “whilst 314 million visually
impaired readers are incarcerated in a world without books”.

Friend outlined the WBU "twin-track approach" to find a political
solution to the book famine. The first part is the proposed "WIPO
Treaty for Improved Access for Blind, Visually Impaired and other
Reading Disabled Persons" introduced by the WBU at SCCR 17 and
subsequently tabled by Brazil, Ecuador and Paraguay. The second part
of the twin-track approach involves participating in a dialogue with
Rights Holders to seek convergence on technical matters including the
"integration of accessibility features into publishing software and on
the question of the security on sharing digital master files."

The clear justification for the Treaty approach, Friend emphasized,
lay in its immediate impact on reading disabled persons once
implemented. Friend noted that in Spain for example, ONCE the national
organisation of the blind holds over 100,000 titles in accessible
formats and in Argentina, Tiflolibros holds over 50,000 titles in
accessible formats. These organizations "would like to share and
exchange their titles with all visually impaired readers" living "in
the nineteen Spanish speaking countries across Latin America".
However, they cannot currently do this because of copyright
restrictions, and they need the proposed Treaty to make this possible.

     Similarly, there are collections of hundreds of thousands in the
USA, Canada, the UK, Australia and New Zealand, and literally millions
of visually impaired readers in the 60 other countries, where English
is either spoken as a first or second language, could benefit from
having access to these charitable collections.

Again, Friend explained, this cannot be done because of copyright but
the Treaty would make it possible.

     France, Canada, Belgium, Luxemburg and Switzerland could,
similarly, share their collections of French titles with the book-
starved visually impaired in Francophone African countries; Brazil and
Portugal could also share with Portuguese speaking countries like
Angola, Mozambique, East Timor and Macau; all other language groups
including Arabic, Russian and many others could do the same. Again
current copyright forbids this but the Treaty would make it possible.

Similarly, Friend asserted, the Treaty would serve the needs of print
disabled persons among the large diaspora populations of China and
India. Perhaps the the WBU position is best encapsulated in the
question posed to the audience as he concluded: [h]ow long must we
wait before the world realise that to deny people access to knowledge
is denying them a fundamental Human Right?" Friend exhorted the WIPO
membership to address the "indefensible imbalance" between authors
rights and the human rights of reading disabled persons by supporting
the Treaty proposal which would redress this imbalance without "any
financial disadvantage to the Rights Holders".

Mr. Herman Spruijt, President, International Publishers Association
(IPA), presented his industry' three demands in the context of
addressing the needs of prints disabled persons:

     1. Publishers ask that the complexity of disability access is
recognized, and the fact that we are navigating in a fast moving
stream of technological developments.
     2. Publishers see the best possible solutions to be found in
flexible solutions that encourage collaboration and win-win rather
than artificial polarization.
     3. Publishers ask WIPO member States to ensure that the issue of
disability access is not misused to discredit rightsholders or
copyright itself.

And almost defensively, he added “we are also a force for social good
and public interest!”

Spruijt remarked that three issues of emerging consensus arose out of
the dialog between publishers and disabled charities namely 1) an
emphasis on market driven solutions, 2) the potential of technology to
solve key issue and 3) the need to strengthen the role of trusted
intermediaries. However, he struck a discordant note when he asserted
that marketplace solutions and technological developments alone would
solve the problems of print disabled persons. Responding to a question
from the floor on Amazon’ Kindle technology (and thus market driven
solutions) and the ensuing controversy resulting from Amazon's
decision to turn off the text to speech (TTS) feature, Mr. Spruijt
declared the Kindle TTS feature "premature" because Amazon did not
seek permission from the publishers and authors and his statement
resulted in casting doubts on his assertion that technology and market
place solutions would deliver the promised goods. Spruijt concluded by
stating,

     [w]hilst the WIPO Standing Committee on Copyright and Related
Rights is debating the merits of a treaty, the stakeholder platform is
exploring other aspects of the issue and we are able to have
discussions at expert level without the burden of politics that is
always a threat in plenary debates.

In a context maybe without an apparent “burden of politics,” or any
kind of possible “threat,” the next speakers continued to emphasized
that existing copyright rules restricted access and that an
international solution was badly needed.

For example, Mr. Dipendra Manocha, Director, Regional Resource Centre,
Digital Accessible Information System (DAISY) Consortium, described
DAISY’s experience making materials accessible to print disabled
persons in developing countries. The raison d'être of the DAISY
Consortium is to "develop and promote international standards and
technologies which enable equal access to information and knowledge by
all people with print disabilities and which also benefit the wider
community".

Manocha stressed that standards were the key to accessibility which is
why developers follow standards with proven track record for
accessibility for all such as

* DAISY for documents and publications: http://www.daisy.org
* EPub for electronic document distribution format: http://www.openebook.or=
g/
* Web Content Accessibility guidelines for web site user interface: http://=
www.w3.org/wai
* Unicode for Local Language Representation: http://www.unicode.org

Manocha cited the example of the DAISY DTBOOK-XML which functioned as
the source document for a multiple distribution formats including 1)
hard copy print books, 2) EPUB e-text books, 3) braille books, 4)
talking books and 5) large print books.

Manocha concluded emphasizing that existing copyright rules restricted
scaling up library services and compelled DAISY to waste existing
resources on rendering works accessible in multiple jurisdictions.

Following Mr. Manocha, H. E. Mr. Mario Matus, Permanent
Representative, Permanent Mission of Chile to WTO highlighted the role
of Chile in the limitations and exceptions discussions at the WIPO
SCCR and elaborated upon why governments can and should play a greater
role in public policies relating to this topic. Ambassador Matus
reminded the audience that in 2004, Chile requested the WIPO SCCR to
include an agenda item on exceptions and limitations to copyright for
educational purposes, libraries and for disabled persons (SCCR/12/3).
At SCCR 13, Chile presented a refinement (SCCR/13/5) of its original
proposal calling for the following:

    1. Identification, from the national intellectual property systems
of Member States, of national models and practices concerning
exceptions and limitations.
    2. Analysis of the exceptions and limitations needed to promote
creation and innovation and the dissemination of developments stemming
therefrom.
    3. Establishment of agreement on exceptions and limitations for
purposes of public interest that must be envisaged as a minimum in all
national legislations for the benefit of the community; especially to
give access to the most vulnerable or socially prioritized sectors.

The final complement in Chile's trio of proposals was a joint proposal
(SCCR/16/2) with Brazil, Nicaragua and Uruguay which presented a work
plan as a basis for which WIPO could move forward with the identifying
of existing limitations and exceptions at the national and
international levels.

Ambassador Matus emphasized that while Chile supported the work
undertaken by the WIPO Stakeholder's Platform, Chile believed the
Platform was a parallel (and private sector?)process to the work of
governments in the SCCR negotiations where discussions focused on
establishing binding and regulatory solutions. For Ambassador Matus
the Platform only dealt with contractual and licensing terms. He
stressed that while Chile's proposals on WIPO's L&E work agenda are
broad, Chile believed that WIPO's work on reading disabled persons
could be prioritized while also advancing discussions on libraries and
archives.

Emphasizing that the intellectual property ecosystem was predicated
upon the balance of rights and obligations of producers and users of
knowledge, Ambassador Matus noted that the TRIPS Agreement and WIPO
"internet" treaties provide more clarity to rights holders about their
rights in the digital environment. However, Ambassador Matus stressed,
the same intensity to clarify the rights of copyright owners had yet
to be applied to their counterpoint, limitations and exceptions, to
ensure harmony in the intellectual property system, particularly in
the digital environment.

Ambassador Matus ended his remarks by declaring that the time had come
for a Treaty for Reading Disabled Persons which is why Chile endorsed
the Treaty proposal tabled by Brazil, Ecuador and Paraguay at SCCR 18.
Ambassador Matus stressed that reading disabled persons’ efforts to
access culture have been unjustly undermined, and the world could not
let this stand.

The last speaker, Mr. Douglas George, Director of Intellectual
Property, Information and Technology Trade Policy Division, Department
of Foreign Affairs and International Trade, first provided a quick
overview of Canada's domestic regime vis-a-vis persons with perceptual
disability before sharing his thoughts on the international dimension.
Section 32 of the Canadian Copyright Act, Mr. George noted, allows the
adaptation of materials into accessible formats, such as Braille and
audiobook under an exception. Under Canadian law, "an exception is
available only if a work in a form adapted to the needs of the
perceptually disabled is not otherwise commercially available in
Canada".

Moving on to the international dimension, Mr. George encouraged
countries with no provisions pertaining to creating copies into
accessible formats to use existing domestic legislation from various
countries. However, he did concede that "one area where there is
significant uncertainty relates to the international exchange of
accessible material created under a limitation or exception. It is
with respect to the import and export of adapted materials that an
international instrument, whether binding or non-binding, can give the
greatest value-added".

Mr. George underscored that the Canadian position on the Treaty for
Reading Disabled Persons emanated from the following core concepts and
principles:

* "any instrument should allow a variety of mechanisms for the
production of accessible copies for domestic purposes, e.g. an
exception, a compulsory license or a conditional exception;
* countries should be allowed to have different types of limitations
or exceptions with respect to different types of adapted materials;

(Note: for example, a country might have an exception to produce
Braille material but a compulsory license to produce audio books.)

* it is not necessary to have a uniform rule in all countries to allow
the international exchange of adapted materials;
* it would be necessary to discuss the norms which would apply to the
exchange of materials among countries which have different limitations
or exceptions for the production of adapted material;

(Note: for example the export of an adapted copy made under an
exception to a country which used a compulsory licence)

* any instrument should facilitate the international exchange of
adapted material; and

* finally, it would be necessary to clarify how the three step test
for limitations and exceptions applies to the import and export of
material made under a limitation or exception".

Ultimately, the Canadian position, as advanced by Mr. George could
best be summed up by this concluding statement that a "uniform rule is
not necessary to allow the international exchange of adapted materials".

However, for many stakeholders and observers in the audience, if not
“uniform,” a “rule” was clearly needed to ensure fair access to
copyright works for blind, visually impaired and reading disabled
persons.


------------------------------------------------------------


Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


Tel: +41 22 791 6727
Mobile: +41 76 508 0997