[A2k] EFF Statement on Copyright Exceptions and Limitations at WIPO SCCR 18

[Gwen Hinze]

STATEMENT OF THE ELECTRONIC FRONTIER FOUNDATION TO 18th SESSION OF
WIPO STANDING COMMITTEE ON COPYRIGHT AND RELATED RIGHTS
May 25-29, 2009

Mr. Chair, congratulations on your election.

I speak on behalf of the Electronic Frontier Foundation and its 13,000
members worldwide. We strongly support the Treaty for Exceptions and
Limitations for the Visually Impaired proposed by Brazil, Ecuador, and
Paraguay as the first part of the work plan on copyright exceptions
and limitations discussed at the 16th session of this Committee.

As this body recognized in its last session, the reading disabled have
special needs, which are in urgent need of assistance.  Although we
are heartened by the goal of  increasing the works accessible to
visually impaired users in the Stakeholder Platform discussions, a
cross-border licensing regime with trusted intermediaries and a focus
on improving technology standards developed by a few experts in a
closed session can provide only a partial solution and is no
replacement for the norm-setting work of this body to address the
pressing needs of the world=92s 161 million visually impaired persons.
While we support the development of interoperable technical standards,
a treaty for minimum copyright exceptions and limitations and
international agreement on imports and exports of accessible format
works is required to empower reading disabled users to obtain access
to information in the formats best suited to their particular needs,
and for the development of innovative new assistive technologies.

Access regimes based on licensing frequently fail to address market
failure in smaller economies, and to date have not enabled the import
and export of accessible material. The international copyright regime
should remain faithful to the mandate of Article 9 of the United
Nations Convention on the Rights of Persons with Disabilities and
empower reading disabled users to develop their own presentation
formats and assistive technologies that meet their needs, such as in-
text searching, as described in Case Study 8 in chapter 4 of document
SCCR/15/7.

Mandatory minimum exceptions and limitations are also essential to the
future of cross-border and digital education and internationally
accessible digital libraries, which are currently constrained by the
divergence of exceptions and limitations in different countries and
the unclear application of private international law to the Internet.
Students and teachers who want to use digital copyrighted information
obtained from outside of their country cannot be sure that they can do
so legally. Educators, libraries, and other knowledge providers face
uncertainty about what information they can digitize, and make
available without fear of legal liability. These problems are only
likely to become more acute in the future because copyright law is
territorial, but the Internet is global and facilitates flows of
information services across borders.

While the copyright regime allows countries some flexibility in
creating exceptions in national law, it has proven to be insufficient.
Providing greater certainty to students, educators, information
service providers and technology developers seeking to address
educational and development imperatives requires an international
treaty for mandatory minimum exceptions for education, libraries and
archives, and the reading disabled and for the import and export of
accessible format material.

EFF commends WIPO for commissioning studies on exceptions and
limitations for educational purposes and the draft questionnaire.
However, we are concerned that the framing of several of the questions
seems to be based on the premise that copyright owners=92 rights are
paramount and exceptions should be framed as narrowly as possible,
rather than seeking information about the rationale for existing
exceptions in balancing private and public rights in national laws. We
believe the questions should illuminate the impact of current
copyright and anti-circumvention laws on educators=92 ability to provide
quality education to help Member States understand the particular
needs of educators and students that are not currently being met. We
are also concerned that question 2 perpetuates the confusion that the
three-step test, a guide for countries=92 compliance with the Berne
Convention andTRIPs agreement, can serve as a substitute for the
implementation of actual exceptions and limitations.

Exceptions and limitations are essential to maintaining the legitimacy
of the international copyright regime in the digital age. For this
reason, we ask this Committee to begin work on guiding the
construction of exceptions and limitations that would revive balance
in the international copyright regime and make it more effective for
the 21st century.

Thank you for your consideration.



--
Gwen Hinze
International Policy Director
Electronic Frontier Foundation
email:gwen@eff.org
Tel.: + 1 415 436 9333 x110

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