From June 17 to 28, 2013, a diplomatic conference will be convened in Marrakesh, Morocco on a new UN treaty on copyright exceptions for persons who are blind or have other disabilities. Copyright industry lobbies have succeeded in narrowing the scope of the agreement, and a recent lobbying effort by the Motion Picture Association of America (MPAA) and the Association of American Publishers (AAP) has blown up earlier compromises and progress on the negotiating text.
The World Blind Union and its members and supporters in the negotiation are now concerned that that Obama Administration and the European Commission are making demands that will render the treaty far less useful, or even derail the negotiations entirely.
The biggest surprise has been the aggressive position taken by the MPAA and its member organizations. Earlier the Obama White House bowed to MPAA lobbying and demanded that the UN treaty exclude deaf persons as beneficiaries, as well as all audio visual works. The exclusion of audio visual works extends even to videos that include both audio tracks and embedded text and figures that are used in education and training, and which could be used to create special format works that were accessible to persons who are blind.
After the Obama Administration was able to exclude deaf persons as beneficiaries and audiovisual works entirely from the treaty in 2012, there was an understanding that the MPAA would be supportive of the treaty -- something that Fritz Attaway had promised before he retired from the MPAA in September 2012. But in recent months, the MPAA has attacked the treaty with a vengeance, demanding that it include changes that further restrict the use of exceptions, and which impose new risks for non-profit libraries for the blind that use the treaty.
The MPAA lobbying effort is led personally by Chris Dodd, the former U.S. senator and current MPAA CEO, and targets the White House, the Department of State and other executive departments, as well as several U.S. Senators and members of the House of Representatives. Disney and Viacom are among the companies that are reportedly the most aggressive, and News Corp and Time Warner are also engaged in the lobby effort.
The MPAA's aggressive actions have encouraged the always hard-line book and journal publishers to take an even more aggressive position in the negotiations. Unfortunately, as the USPTO and White Staff have changed, the Obama Administration has increasingly sided with the MPAA and the book and journal publishers against blind groups.
As a consequence, last week, the last pre-diplomatic conference produced a text with 88 brackets, plus 17 "Alternative" versions of text, and few agreements on the most important issues.
If the Obama Administration and the EU do not show more flexibility and concern for blind persons, the diplomatic conference in Morocco will either end in deadlock or produce a lousy treaty that will be limited in scope, unnecessarily complex and hard to use -- a result eerily similar to a 1971 agreement* to expand access to copyright works in developing countries that everyone agrees was a failure.
On April 20, 2013, the World Blind Union issued press release which said:
"A four and a half year UN negotiation on a new World Intellectual Property Organisation (WIPO) treaty for people who are blind or have other print disabilities is in danger of delivering either a hollow, "trophy treaty" or no treaty at all . . . the three days of discussion at WIPO this April have continued in the same vein as the five days of negotiations in February this year. The negotiators have worked almost exclusively on wording to reaffirm copyright protections that already exist in international copyright instruments; and have devoted almost no time to insuring that the treaty will encourage the cross border sharing of desperately needed books for the blind."
A blunt and forceful version of this was given by Fredric Schroeder during the WBU's intervention at the plenary the same day. (Link to video here".)
What are the issues?
Objectives of the treaty
Background on the earlier phases of the WIPO negotiation are available at http://keioline.org/r2r. In essence, the negotiation covers two topics. First, what should be the minimum standard for copyright limitations and exceptions for persons with disabilities? Second, what needs to be done to eliminate barriers to cross border exchanges of accessible works?
Earlier studies have show that only about 60 countries (including nearly all high income countries) have copyright exceptions for persons who are blind and other disabilities. Among the countries with explicit exceptions, some need to be expanded and updated to reflect changes in technologies and to expand the number of disabilities covered. These studies also show that few countries permit the export of accessible works, leading to costly duplication of investments in making such accessible versions and hence an under-supply of accessible works, and great disparities of access among countries, income groups and languages. In practical terms this means blind people have access to a tiny fraction of published works in high income countries, and almost no access in developing countries. Also, persons who read in minority (in the country they reside) languages are poorly served.
The treaty is supposed to fix things by providing a baseline of robust exceptions, and clarifying the right to distribute accessible works across borders.
Beneficiaries and works covered
The 2008 WBU proposal defined persons who were blind or visually impaired as beneficiaries, but also provided that "Contracting Parties shall extend the provisions of this Treaty to persons with any other disability who, due to that disability, need an accessible format . . in order to access a copyright work to substantially the same degree as a person without a disability." This was done to be inclusive as regards disabilities.
In successive drafts, the treaty has been narrowed, with the United States seeking very early on to define the treaty in terms of "print" disabilities, which is broader than blind and visually impaired (it includes persons who have physical disabilities that prevent them from reading), but excludes persons who are deaf, who can read, but cannot hear.
The 2008 WBU draft sought to be inclusive as regards the type of works and rights covered.
'Work' means any work of a type in which copyright could subsist whether or not such protection is provided by national laws or was provided but has expired, and includes literary, dramatic, musical and artistic works, databases and films. . .
References to 'copyright' include copyright and any relevant rights related to copyright that are provided by a Contracting Party in compliance with the Rome Convention, the TRIPS Agreement, the WPPT or otherwise, and references to the 'owner of copyright' and 'author' shall be construed accordingly.
'Database' means a collection of independent works, data or other materials arranged in a systematic or methodical way and capable of being individually accessed by electronic or other means.
In June 2011, a large group of countries including Argentina, Australia, Brazil, Chile, Colombia, Ecuador, the European Union and its Member States, Mexico, Norway, Paraguay, the Russian Federation, the United States of America and Uruguay, introduced a proposal that had only one set of brackets in the text, and appeared to be a sign of remarkable progress in the negotiations. The new text, SCCR/22/15 Rev.1, defined the works covered as any "protected work within the meaning of the Berne Convention, whether published or otherwise made publicly available in any media."
Since June 2011 there has been a significant shrinkage of works covered, and a breakdown in the earlier near consensus on many other issues.
The current draft of the treaty included a narrow definition that the U.S. proposed after June 2011. The exception would apply to "literary and artistic works within the meaning of Article 2.1 of the Berne Convention, in the form of text, notation and/or related illustrations," plus a yet to be drafted agreed upon statement concerning audio books.
The differences between the June 2011 and later texts mean that deaf persons are excluded, and by limiting the exception to text, notation and or related illustrations, it appears as though audio visual works that include power-point slides and other presentations involving embedded text and figures shown in a video are off limits, something that creates barriers for adopting the growing number of audio visual educational and training materials (by combining the audio track with accessible versions of the embedded text, figures and other visually presented materials). The WBU accepted the restrictions on works covered after being told by the USPTO that it would kill the treaty unless audiovisual works were excluded.
Relationship to the Copyright "three step test."
The so called three-step test in copyright was first introduced in 1967 in a larger revision of the Berne Convention that created or expanded other exceptions, including a broader quotation exception and a new exception for education. The three-step test was a restriction on exceptions to the reproduction right in copyright that the negotiators did not want to enumerate separately. The minutes and reports from the 1967 negotiation make it clear the three-step test would not be used to restrict the "particular" exceptions otherwise described, such as for news of the day, education, quotations, etc.
When the three step test is applied, an exception has to be (1) limited to certain special cases, (2) not in conflict with "a normal exploitation" of the work, and (3) not "unreasonably prejudice" the "legitimate interests" of the author. Today some version of this test is found in a large number of US bilateral FTAs, new copyright or related rights treaties, and in the WTO TRIPS trade agreement. Taken literally, the "test" can be quite restrictive, particularly if implemented as three separate tests that operate independently, and where society wants to create a free exception for certain uses of works.
The actual relevance and application and of the three step test is controversial and technically complex. In 2000 the WTO ruled the three-step test does not apply where there is a different standard for a particular exception, and the 1996 WIPO Copyright Treaty (WCT) and some FTA agreements say that all of the so-called Berne exceptions and some new versions to address digital technologies are considered in compliance with the test. (See: http://keionline.org/node/1655)
The 2008 WBU proposal said "Contracting Parties agree that the provisions" of the new treaty for the blind exceptions "are consistent with obligations" in a list seven treaties and trade agreements, including all major copyright and related rights treaties, as well as the UN Convention on the rights of persons with disabilities and the WTO TRIPS Agreement.
The June 2011 text that was co-sponsored by many countries including the U.S. and the EU included a single sentence in the preamble: "Emphasizing the importance and flexibility of the three-step test for limitations and exceptions established in Article 9(2) of the Berne Convention and other international instruments." The June 2011 text also provided that one way to implement the exception was by "providing any other exception or limitation in its national copyright law" that meets a three step test.
In other words, in the June 2011 text, any exception that meets the 3-step test was seen as an alternative to the specific exceptions that were provided in the treaty, which the parties agreed, were consist with all existing copyright treaties. This effectively broadened the exception and providing an additional flexibility. The either/or approach in the June 2011 text was offered to make it easier for countries to ratify the convention if the national practice was to permit uses of works for the blind under other more general provisions in the national copyright law, such as a law on fair use or fair practices, an educational exception or a disability rights law.
As WIPO turned to an examination of broader copyright limitations and exceptions issues, the EU began to backtrack and demand additional language in the treaty for the blind text that would require any of the exceptions set out in the treaty be implemented subject to a three step test, raising questions about what if anything the treaty would permit. In other words, the EU approach would first create a set of exceptions, but then create a three step test that had to be met in the implement of those exceptions -- suggesting there would be versions of the exceptions that would fail the test.
In response to the EU proposals, some Latin American Countries proposed a new article on the "Interpretation of the Three-Step Test," which was designed to provide assurances that the three-step test would not be applied in a way that would undermine the purpose of the treaty, which was to expand access to copyrighted works for persons with disabilities. This new article was seen as a bargaining chip, to keep the EU from being too aggressive in pressing its new demands.
By 2013 all hell broke loose on the three step test issue, and literally 5 days of a scheduled 4 day negotiation were spent on this issue. The February 2013 negotiation resulted in an extensive but in places odd description of the three step test in the Berne Convention, the 1996 WIPO Copyright Treaty (WCGT) and the WTO TRIPS agreement, as well as some highly nuanced discussions of users rights in a new 485 word Article/S.
KEI and other groups noted immediately that the new text quoted selectively from the three step test in the 1996 WCT, fully quoting its restrictive-three step test, but leaving out the footnote in that text to an important and well known "agreed statement" in the treaty that focused on and expanded user rights and flexibility for the three-step test. The referenced language for the three step test for the TRIPS agreement was also edited, at the request of the EU, since the EU did not approve of the actual language in the TRIPS.
The new Article/S contained a footnote which read:
Ad referendum: these elements of the treaty are the result of the SCCR session that met from February 18 to 22, 2013. This language has been tentatively agreed by the delegations attending the session.
Between February and April, the MPAA and the AAP mounted an aggressive lobbying to reopen the February comprise on the three step test. The Obama Administration's Department of State send a démarche to its embassies and missions around the world instructing its diplomats to encourage opposition to references in the Treaty that contained the phrase "fair practices, dealings or uses" on the grounds that this language will be extraneous to the Treaty. During the April negotiation, the US worked with the EU to propose new more restrictive language.
One aspect of this new lobbying effort was to create a new negotiation in April to address something called the so-called "Berne Gap," meaning countries that have not signed the Berne Convention or complied with the WTO TRIPS Agreement. In these discussions there were countless new attempts to introduced new language on the three-step test, largely focusing on a handful of countries that are very poor. This was widely seen as a non-problem, because the exceptions in the treaty are already very limited, and beyond that, most least developed countries already have very restrictive copyright laws on the books. The real point of the "Berne Gap" negotiation was for the publishers to continue to press for legitimacy of their theory that all exceptions must be further narrowed by a three step test.
Can the treaty avoid a debate over the three-step test?
The WBU, its allies, and many other countries would prefer a simple statement that the treaty does not change the larger global copyright system. A "General Clause" on this topic was proposed in February 2013, and it reads:
Nothing in this treaty shall derogate from any obligations that Contracting Parties have to each other under any other treaties, nor shall it prejudice any rights that a Contracting Party has under any other treaties.
This simple non-derogation clause, which is used in some other treaties, would avoid a complex and inappropriate negotiation over the broader global copyright norms, and would preserve whatever role the three step test currently has in any other copyright treaty. But the publishers are rejecting this, while having the audacity to claim others are trying to "hijack" global copyright norms.
Technical Protection Measures
In 2008, the WBU proposed a 54 word, one sentence, article on technological protection measures that was generally based upon current US and EU law.
ARTICLE 6. CIRCUMVENTION OF TECHNOLOGICAL MEASURES Contracting parties shall ensure that beneficiaries of the exception provided by Article 4 have the means to enjoy the exception where technological protection measures have been applied to a work, including when necessary the right to circumvent the technological protection measure so as to render the work accessible.
In the June 11, 2011 proposal by the U.S., EU and others, the TPM was modified. The new Article F was 118 words, without brackets, and called for "appropriate measures" to overcome TPMs for (1) individuals where a work was not available "in the accessible format available commercially at a reasonable price," or (2) for the non-profit "authorized entities" that provide services to the blind.
By April 2013, the TPM Article F had grown to 234 words covering two different alternatives, plus 290 words of notes including further alternative text in an Annex. Among the notes in the Annex is a proposal by the US to limit the scope of measures to overcome TPMs to cases where there is an "actual or likely adverse impact on a beneficiary person . . established by credible evidence in a transparent legislative or administrative proceeding."
The April 2013 U.S. proposal was opposed by many countries, including Canada, Australia and Switzerland, as well as all developing country blocks, as a new burden on blind groups.
Ironically, in the recently concluded Section 1201 proceeding in the US on the exceptions to the DMCA to overcome TPMs, the Librarian of Congress granted the exception to authorized entities serving the blind, despite the fact that "proponents did not provide extensive analysis." (Federal Register/ Vol. 77, No. 208, October 26, 2012, Page 65263)
While the US is pushing for controversial new text in the TPM provision of the agreement, it is also lobbying to have the whole article removed, so that the text says nothing about the ability to overcome TPMs to have the benefit of the exception. Developing countries are concerned that such an outcome will make it difficult to legislate measures to overcome TPMs when implementing the treaty.
For-Profit Entities, Commercial Use and Commercial Availability
A handful of countries, including Argentina, Australia, Canada, Singapore and the UK have some type of restriction of the use of an exception where an accessible format is available commercially. The publishers are keen to have language setting this out as a requirement or highlighted as an alternative, and use step two of the three-step test to demand that countries embrace this restriction.
The 2008 WBU proposal proposed a two-tier approach. There would be no test for commercial availability for non-profit uses of the exception, but there would be when for-profit entities used the exception for commercial services. For example, if Google wanted to provide accessible versions of books to blind persons as a commercial enterprise, the restriction would apply.
In the 2011 EU, US et al proposal, the exception was limited to activities "undertaken on a non-profit basis" only, but a footnote said "It is understood that cooperation or partnerships with other organizations, including for profit organizations, shall be permitted." The footnote was seen as important for protecting access to the vast collections being digitized by Google, Microsoft and other companies, in connection with out of print or otherwise orphaned copyrighted works.
In the 2013 versions of the text, the footnote about partnerships with for profit organizations disappeared, and the exception was limited to "activity undertaken on a non-profit basis."
Despite the narrowing of the exception to "activity undertaken on a non-profit basis," the EU and to some extent the US have pushed to increase the prominence of language that suggests the exception can and eventually will be narrowed where there is commercial availability of an accessible format.
While on its face the commercial availability option seems like a reasonable and appropriate restriction, it turns out that this is a very difficult restriction to implement in practice. In the recent Section 1201 proceeding in the US, publishers tried to limit the TPM exception to cases where there was a commercial alternative. But the NTIA and others noted that this was complex to evaluate, for example, where an accessible format required someone to buy an Apple OS iPAD, or another specific device. There are also huge issues about the pricing. KEI research show that audio books are consistently priced far above the prices for paperback editions, for example, and these price disparities increase over time as the falling prices in the market for used books become more important, but the prices for audio books do not fall as significantly. And, in a cross border context, availability or "reasonable" prices, may be different in the importing and exporting country. Also, these provisions create new risk for the non-profit libraries distributing the works, including possible ruinous liabilities under some of the provisions recently supported by the US and the EU.
In the 2008 WBU Draft, there was an article, drafted by WIPO expert and former UK IP Office official Judith Sullivan, to ensure that contracts cannot be used to undermine the exceptions.
Article 7. Relationship With Contracts Any contractual provisions contrary to the exception provided in Article 4 shall be null and void.
In the 2011 proposal by the US, EU and others, the Article was weaken, but useful, because it at least made it clear that it was possible to deal with bad contracts.
ARTICLE G RELATIONSHIP WITH CONTRACTS Nothing herein shall prevent Member States/Contracting Parties from addressing the relationship of contract law and statutory exceptions and limitations for beneficiary persons.
Between 2011 and 2013, the Article on contracts was eliminated altogether, as the EU and the US increasingly have bowed to lobbying by publishers.
Current draft: No article on Contracts
It was never surprising that book and journal publishers (along with collection societies) would be a problem in the WIPO negotiations. But what has been surprising has been the recent emergence of the MPAA as a major opponent of a simplified and usable treaty -- even though the MPAA had already succeeded in removing deaf people and audio visual works from the treaty.
In the closing moments of the April 18-20 negotiations, the Library Copyright Alliance representative Jonathan Band told delegates that the treaty had become so complex it would be almost impossible to tell countries what they could actually do to implement its provisions, and that the EU and the US had to "dial back" their demands on behalf of the publishers. KEI reminded the delegates the treaty creates a narrow exception for some persons with disabilities, and any uses outside of that narrow exception are not protected by the exception, and subject to all of the criminal and civil penalties of existing copyright law. KEI said the publishers in general and the MPPA in particular were trying to turn the treaty into some form of ACTA, and then hypocritically accusing others of hijacking the treaty for broader purposes. Pranesh Prakash, a lawyer representing the Center for Internet and Society (CIS) in India, said "There is nothing in these provisions that would convert infringement by sighted people under the pretence of this treaty magically into lawful acts. And, indeed, there are multifarious ways of infringing copyright without such resort to this treaty. Yet, these very same onerous requirements (such as the "commercial availability" requirement) and bureaucratic processes will unrealistically increase transaction costs for the visually impaired and render infructuous the very purpose of this treaty." (See also William New, Mixed Reactions Among Participants In WIPO Talks On Treaty For The Blind, IP-Watch, 22 April 2013).
When asked this month about why the film industry had become so active in the negotiations, one lobbyist told William New, it was "all about the precedent," a view that other film industry lobbyists emphasized informally during the last week's negotiations.
What this means is that Chris Dodd, Bob Iger, the Chairman and CEO of the Walt Disney Company, Philippe Pierre Dauman, the President and CEO of Viacom, and other MPAA member company CEOs and general counsels of those firms are willing to saddle blind people with a weak and less useful treaty, to satisfy some larger global lobbying campaign, over the precedent it may sometime have for something else -- this in a treaty that has zero economic impact on the movie industry. In the past couple of months the MPAA has blown up difficult to reach compromises, introduced new areas of controversy, and may even kill the treaty altogether if they don't back off.
Some further analysis is available here http://keionline.org/r2r
Some Interviews during the negotiation are available here:
* Berne Convention, Appendix, Special Provisions Regarding Developing Countries.
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