[A2k] KEI blog on non paper distributed at SCCR 22 on disabilities

Jamie Love james.love at keionline.org
Fri Jun 17 06:45:48 PDT 2011

Non paper distributed at SCCR 22 on disabilities

In a major breakthrough on the WIPO negotiations on copyright
exceptions for persons with disabilities, at around 1pm today, a
non-paper "resulting from informal discussions among Argentina,
Brazil, Ecuador, the European Union and its Member States, Mexico,
Paraguay and the United States of America" was distributed at the WIPO
SCCR 22.

A copy of the document is available here:


The seven page paper presents an agreement on many of the most thorny
issues in the agreement, among some but not all countries. For
example, the Africa group did not sponsor the non-paper, and nor did
any government from Asia.

I will quickly point out some comments on the text

1. There is no agreement about the status. It could be a
recommendation, an "instrument" or a treaty. That has to be resolved
later, and is the hot topic of the negotiations right now.

2. The term "print disabilities" is used frequently, but not defined.
It is not entirely clear if the text covers works "born digital." In
Article B, beneficiary persons refers to "printed works." KEI believes
publishers wanted the term print disability precisely because they
would argue it did not apply to e-books, and the entertainment
industry wanted the term print disability because they did not want it
apply to captioning of films for persons who are deaf. It is not clear
how limiting this will be, as publishing increasingly moves to works
born digital, including many, like Kindle E-Books, that are not
accessible because of the inaccessible menus and disabling of text to

In this regard, note that text covering person who were deaf was
eliminated from an earlier version of the text.

3. The definition of "Beneficiary persons" makes references to persons
who are "unable, through physical disability, to hold or manipulate" a
book. The DAISy consortium is concerned that some disabilities are
considered "diseases" rather than "physical disabilities," such as a
severe allergic reaction to paper.

4. The term authorized entity contains two restrictive and potentially
problematic paragraphs that during the informal negotiations KEI and
the WBU recommended be eliminated:

An authorized entity has the trust of both persons with print
disabilities and copyright rights holders. It is understood that to
obtain the trust of rightholders and beneficiary persons, it is not
necessary to require the prior permission of said rightholders or
beneficiary persons.[1]

If an authorized entity is a nation-wide network of organizations,
then all organizations, institutions, and entities that participate in
the network must adhere to these characteristics.

fn 1. Member States/Contracting parties should encourage rightholders
and beneficiary parties to cooperate and participate in authorized

Here are some issues:

*  What does it mean to say "An authorized entity has the trust of . .
. copyright rights holders" when "it is not necessary to require the
prior permission of said right holders"?

*  Many developing country organizations and negotiators are concerned
about efforts to create unrealistically high expectations about the
administrative burdens on those distributing works.

*  Will these provisions address the role of teachers, health works,
parents, employers, first responders and others who are in practice
involved in the distribution of work?

5. Articles F on technological protection measures is somewhat more
limited than was proposed by the WBU, but seemed acceptable to most

6. Article G on contracts simply says countries are free to do
whatever they want.

7. There is a short Article H on privacy, something that some
countries had at one point wanted to eliminate.

8. The role of for-profit entities is set out in footnote 2, which
ways "It is understood that cooperation or partnerships with other
organisations, including for profit organisations, shall be
permitted." This is more limited than the proposal by the WBU. As a
practical matter, the role of for-profit entities will be important to
the extent that such entities are involving the digitalization of
orphaned works.

9. The text eliminated some of the parts of the WBU proposal on
subjects such as standards, which were not central the copyright
issues, but that may have had practical benefits in terms of expanding

10. The provisions on cross border exchanges of works are only
implemented in Article D. Article D, which seems to focus on the right
to export by an "authorized entity." Article E on the importation of
works allows beneficiary persons or authorized entities to import. The
asymmetry is designed to have more limited rights to export works.
According to the USPTO, the text would not permit a blind individual
to share an accessible copy a blind individual in another country.

11. The relationship between the text and other flexibilities in
national intellectual property laws is possibly problematic if Article
D(3) is considered a limitation on the use of flexiabilities that are
not subject to the three step test. There are several exceptions in
the Berne convention that are not subject to the three step test, and
there are also exceptions in the TRIPS agreement on exhaustion of
rights (Article 6), control of anticompetitive practices (Article 40)
and the limitations on remedies (Article 44) which are not subject to
the three step test. This could be fixed if the text added something
along the lines of, "and/or and without prejudice to other exceptions
to the exclusive rights of authors that are otherwise permitted by the
Berne Convention or the TRIPS Agreement."

In this regard, note also that the preamble makes references to "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" and does not acknowledge other
important flexabilities.

12. In Article E, regarding imports, there is no reference to "or
someone acting on his or her behalf," as is found in Article D(2)(B).

13. In Article A, on the definition of "reasonable price for
developing counties," compare what the WBU proposed to the non-paper:

*  WBU text: "prices that are affordable, taking into account
disparities of incomes for persons who are visually impaired. "

*  Non-Paper: "prices that are affordable in that market, taking into
account the humanitarian needs of persons with print disabilities."

Source URL: http://keionline.org/node/1161

Links: [1] http://keionline.org/sites/default/files/text_distributed_friday_1pm.doc

James Love.  Knowledge Ecology International
http://www.keionline.org, +1.202.332.2670, US Mobile: +1.202.361.3040,
Geneva Mobile: +41.76.413.6584, efax: +1.888.245.3140.

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