[A2k] James Love: Costs and Benefits of the US Proposal to WIPO SCCR on Copyright Exceptions for Disabilities (updated version)

Manon Anne Ress manon.ress at keionline.org
Thu Jun 3 05:20:12 PDT 2010


On May 27, 2010, the US government presented to the World Intellectual
Property Organization (WIPO) Standing Committee on Copyright and Related
Rights (SCCR), a proposal for a "Consensus Instrument" for persons with
disabilities related to reading printed publications.

The US proposal was held during an "open ended" consultation a proposed
treaty for persons who are blind, are visually impaired or have other
reading disabilities. The treaty, first proposed by the World Blind
Union, is identified by the WIPO SCCR as document SCCR/18/5. The draft
treaty text is here. A background note on the proposal is available
here, and my notes during the May 27, 2010 meeting are here.

The US proposal is quite a bit more limited than a treaty, in several
areas. It may be marketed as a complement to a treaty, or seen as a
substitute. I will have a detailed analysis up soon, but in the
meantime, here are some notes on the benefits and costs of the US

I will start with the benefits, which I find very limited.

1. It does provide a higher level of confidence that at least *some*
cross-border exchanges of works created under an exception are
*consistent* with the Berne and the TRIPS. As regards WIPO, it cannot
bind the WTO, but in practice, I'm sure it would make the specific type
of exception even less likely to be overturned by the WTO.

In practice, this is not a huge benefit, in my opinion, because I find
it extremely unlikely that the WTO would make such a ruling. In 2000,
the WTO found that Canada could use exceptions in patent law to import
and export pharmaceuticals, in order for Canada and other countries to
enjoy the benefits of economies of scale. This case involved a TRIPS
3-step test, in evaluating a non-remunerative exception of patent
rights. What was particularly important was that that the WTO found the
exception to be valid for both import and export.

2. In some countries, particularly in Latin America, the joint
recommendation, which is permissive and not mandatory, may have some
immediate legal significance, where the provisions of the Berne are
thought to have some self executing value. I see this as a second order
benefit, but maybe others can make the case that it is more important
than we think, empirically.

Next, I will turn to the costs.

3. There is the opportunity cost of stopping work on the treaty. I think
this is the main objective of the publishers and the USPTO. You may
completely end work on the treaty. Publishers will insist that you wait
years to see how things works out. By then, a lot of people will have
moved on, and the SCCR will likely be focused on some other issues. Even
if you could get the attention of the SCCR a second time, you will have
to educate a new generation of country negotiators, WIPO officials,
NGOs, donors, etc. These things are not that easy to turn on and off.

4. The US proposal takes off the table the whole notion of bringing
national laws up to a minimum standard, in terms of their own
exceptions. This is not a huge problem for high income countries, nearly
all of which have good domestic exceptions. It is a very bad outcome for
developing countries, where exceptions are not that good or

5. The US proposal would limit the exceptions to physical braille and
works distributed only by a narrow class of trusted intermediaries, and
make references to highly problematic standards for the intermediaries,
that come out of a voluntary licensing negotiation involving, for the
present, only 100 books.

This can have the effect of creating real changes in global norms -- but
in the wrong direction. Whereas today the WTO would likely allow a much
wider set of cross border exchanges, under the new regime, there will be
politically and even legal reasons why the freedom to import and export
will be narrowed. The new restrictions associated with the trusted
intermediaries would be the main thing you would get from the US


The US proposal is effectively the publisher proposal to create a new
restrictive form of global regulation of the use and distribution of
works for persons with disabilities. The publishers want prior notice of
works being used, the opportunities to charge royalties, the elimination
of the exception for dual use works, and other changes that run counter
to legal traditions in the US and in other countries.

If the US seeks to implement the liberalized export recommendation, they
will have to amend US law. In doing so, there will be a predictable
effort to change not only the export legality issue, but to introduce
into US domestic law these new norms being endorsed in the Stakeholder
Platform regarding remuneration, notice, and the specific limits and
regulation of exceptions for dual use formats. US groups may find it
more difficult to oppose these changes if they are accepting them in the
WIPO negotiations.

I would add that this negotiation is being compared by many professional
IP trade negotiators to the 1971 amendments to the Bern involving
compulsory licensing of works in developing countries, and the 2003
changes in the TRIPS on exports of medicines manufactured under a
compulsory license. In both cases, the right-owners were able to deflect
demands for more access, and create new regulatory obligations that
imposed high transaction costs, surveillance on persons using the
exceptions, and a narrowing of possible uses of the 3-step test, under
the new "global consensus." Both the 1971 and the 2003 negotiations were
widely considered failures for users of works and consumers of

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