Blog, EU

Shifting Language Threatens WIPO Treaty on Visually Impaired

BY Matthias Langenegger
March 7, 2013

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

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