Throughout its 40-year history, CCIA has aligned itself with
sensible IP and technology policy efforts and has also taken broader stands on
things like human rights and free expression. Often, a case arises that
commingles these interests.
One such issue involves international copyright exceptions
for those who are blind or have other reading disabilities. Delegates at the
World Intellectual Property Organization (WIPO) in Geneva are currently parsing
the language of the Visually Impaired Persons (VIP) treaty ahead of a June
diplomatic conference in Marrakech to adopt a treaty that was first conceived
in 1985 and first proposed to WIPO in 2008.
Though the stated treaty goal is to standardize policy
internationally so visually impaired people can get more consistent access to
materials, the problem is that the delegates have amalgamated language from
various versions of the so-called “three-step” test for justifying exceptions. Some of these interpretations are more
restrictive that others, and the fear is that some rightsholders may take
advantage of the resulting confusion to establish a highly restrictive
application of the three-step test through the courts.
While this would safeguard and expand revenue streams for
content owners, the resulting access barriers for the visually impaired would
be devastating– particularly in developing countries, where the World Blind Union
estimates 90-percent of the world’s visually impaired citizens live and where
only one-percent of published books are ever made available to them in an
accessible format. Another concern is that more restrictive interpretations of
the three-step would then also be applied to other copyright exceptions.
The three-step model was first established in 1967 as part
of the Berne
Convention for the Protection of Literary and Artistic Works as a mechanism
to gauge the legality of limitations and exceptions to copyright at the
international level. The convention’s Article
9(2) dealt with the right of reproduction and states that exceptions should
be limited to certain “special” cases and should not “conflict with a normal
exploitation of the work and does not unreasonably prejudice the legitimate
interests of the author.”
Since then, the three-step approach has been replicated in
other settings, including two other WIPO treaties and the WTO TRIPS
agreement. The TRIPS three-step
language –which appears as part of the current WIPO VIP treaty draft text - is
particularly restrictive. Among other things, it expands the test beyond cases
of reproduction into all exceptions; and it further commoditizes IP by
stipulating rightsholder interests instead of author interests.
The draft text is equally troubling for what it does not
include. Gone is proposed language on the three-step test that would safeguard
the “legitimate interests” of larger society or third parties, including
“interests deriving from human rights and fundamental freedoms… competition…
scientific progress and cultural, educational, social, or economic
development.”
First conceived in 1985, a draft VIP treaty was proposed to
WIPO in November 2008. Since then,
CCIA has been conferring with WIPO delegates and steadily advocating for treaty
language that would expand, not hamper, visually impaired people’s access to
content (see below for a list of previous CCIA statements on this issue).
The international copyright community should do the right
thing on this issue by adopting language that is not overly restrictive and by
making the treaty binding, so member states cannot simply opt out. With a final treaty signing just three
months away, there is no time to waste in speaking up to ensure the interests
of the world’s estimated 285 million visually impaired citizens aren’t
sidelined by a relentless focus on rightsholder’s financial interests.
Previous CCIA statements on the VIP treaty:
CCIA
statement on VIP issue during Copyright Standing Committee meeting -Feb
2013
CCIA
Statement on increasingly complex treaty language - July 2012
CCIA
Statement on musician Stevie Wonder's involvement -Sept 2010
CCIA
Statement on VIP treaty progress - June 2010
CCIA
Statement on the issue of access - Dec 2009
