[A2k] Fwd: TWN IP Info:WIPO: Hectic, contentious negotiations on WIPO treaty for visually impaired

Gopa Kumar kumargopakm at gmail.com
Tue Jun 25 08:50:20 PDT 2013


TWN Info Service on Intellectual Property Issues (Jun13/10)
25 June 2013
Third World Network
www.twn.my

*WIPO:  Hectic, contentious negotiations on treaty for visually impaired*

Marrakesh, 25 June, (K M GopaKumar) – Hectic negotiations are in progress
at the Diplomatic Conference to find a solution to contentious issues on
the Treaty to Facilitate Access to Published Worksby Visually Impaired
Persons and Persons with Print Disabilities (Treaty).

The Diplomatic Conference under the World Intellectual Property
Organization (WIPO), which started on 18 June, is expected to present the
final text at the plenary on 27 June.

Eight days of formal and informal negotiations did not succeed in finding
consensus on contentious issues onthe “commercial availability” test
requirement under Article D (3) and Technological Protection Measures (TPM)
provisions in Article F on individual rights to import the work in
accessible format copy and the right to translation. (see SUNS#7611 dated
24 June).

After late night informal negotiations by the facilitator, Martin Moscoso,
Director of the Copyright Office of Peru, the WIPO Secretariat circulated
an informal consolidated text on 25 June. The Secretariat also released
another document containing a list of outstanding issues and a list of
resolved issues. The list of outstanding shows 11 issues that are still
unresolved. However, the informal consolidated text shows that there are
still brackets in issues shown in the list as resolved.

[The facilitator is entrusted with the task of bringing together various
interested parties and to produce a consensus text for the consideration of
the Main Committee.]

The informal consolidated draft that was circulated shows that there is
little progress on the above-mentioned contentious issues. However, there
is consensus on other issues. The informal text, after incorporating
administrative provisions and final clauses, now contains 22 Articles.

*Commercial Availability*

The informal text shows three options on commercial availability in Article
5 (Article D in the Draft Text VIP/DC/3 REV). The proposed commercial
availability clause is in Article D 3 provides freedom to the exporting
country to limit the cross border exchange of accessible format copy of a
work if it is available in the importing country. In other words, the
commercial availability clause can be used to limit the obligation under
Article D to facilitate cross border exchange of work in accessible format.
Under the Treaty, persons living with visual impairment and reading
disability would be able to gain access to works in accessible format,
which currently already exists in developed countries. However, the
European Union is the main group pushing for the inclusion of the
commercial availability clause.

The informal text shows three options.

Option 1 proposes dropping the commercial availability requirement all
together from Article D.

Option 2 proposes a commercial availability requirement with a rebuttable
presumption that the request from an authorized entity for an accessible
format copy constitutes the lack of commercial availability in that
contracting party.  Option 2 reads:

“[In special circumstancesthe flexibilities][The flexibility] in Article
[C(4)] shall apply *mutatis mutandis* to the distribution and making
available of accessible format copies under Article [D] with the following
additional conditions:

a)Whenever an Authorized Entity receives a request from an authorized
entity in another Contracting Party for an accessible format copy of a
work, such request shall be [presumed] sufficient evidence that the work in
the particular accessible format cannot be obtained commercially under
reasonable terms for beneficiary persons it serves in that market.”

The footnoted proposed agreed statement concerning Article [D3a] reads:  It
is understood that the [presumption/conclusion] in paragraph a) can be
rebutted only by clear and substantial evidence to the contrary consistent
with the Contracting Party’s legal system and practice.

“b) Nothing in this article shall imply or require that a Contracting Party
imposes in its law or otherwise that an Authorized Entity that receives a
request for an accessible format copy of a work has a duty to investigate
whether the work in the particular accessible format cannot be obtained
commercially under reasonable terms for beneficiary persons in that market.”

The footnoted Agreed Statement concerning Article [D3a and b] reads: “For
the purpose of this Article, it is understood that reasonable terms in the
receiving country include inter alia timely access, price and the practical
ability to use the particular accessible format copy.

This whole proposal is in brackets: “[Agreed statement concerning Article
[D3]:  It is understood that the requirements of commercial availability
under reasonable terms referred in Article [C(4)], when applied for
purposes of Article [D], will be subject and evaluated according the
conditions of the receiving country.]”

Option 3 proposes an irrefutable presumption on the lack of commercial
availability on the basis of the request from the authorized entity from
the importing country. It reads:

“Whenever an Authorized Entity in a Contracting Party/Member State requests
a copy of an accessible format copy, such request shall constitute
sufficient evidence that the work requested is not commercially available
in the importing country for beneficiary persons.”

*Technological Protection Measures (TPM)*

Regarding TPM the 25 June consolidated text shows an agreement in the draft
text, however, there is no consensus on the agreed statement, which is
still within square brackets. Article F reads:

“A Contracting Party shall take appropriate measures, as necessary, to
ensure that when it provides adequate legal protection and effective legal
remedies against the circumvention of effective technological measures,
this legal protection does not prevent Beneficiary Persons from enjoying
the limitations and exceptions established in this Treaty.”

The footnoted agreed statement concerning Article […] reads:  “[it is
understood that Authorized Entities, in various circumstances, choose to
apply technological measures, in accordance with national law, in the
creation, distribution and making available of accessible format copies and
nothing herein requires or implies that those uses of technological
measures should be circumvented.]”.

This Agreed statement proposed by the United States implies that developed
countries like the US may put a legal obligation on the Authorized Entities
to digitally lock the accessible format copy of the work and this may
restrict the freedom to unlock the digital lock in the importing country.
Even though the first sentence of the agreed statement provides the freedom
to unlock as per the provisions of the national law, the second sentence
creates confusion about that freedom.

*Individual Right to Import Accessible Format Copies*

The consolidated text shows no consensus on the right of individuals to
import the accessible format copy of a work without going through an
Authorized Entity.  Limiting the right of importation to Authorized
Entities would restrict the benefit of the Treaty to a small number of
people by creating unnecessary procedural requirements. Further, it
indirectly imposes restrictions on the enjoyment of exhaustion of rights
available to individuals. In many WIPO Member States under the
international exhaustion doctrine, individuals can legally import
introduced copies from any jurisdiction without any restrictions. Article F
reads:

“To the extent that national law of a Contracting Partywould permit
abeneficiary person, someone acting on his or her behalf, or an authorized
entity, to make an accessible format copy of a work, the national law of
thatContracting Partyshall also permit *[them/authorized entities] *to
import an accessible format copy for the benefit of beneficiary
persons,without the authorization of the right holder”.

The Agreed Statement reads: “it is understood that Authorized Entities, in
various circumstances, choose to apply technological measures, in
accordance with national law, in the creation, distribution and making
available of accessible format copies and nothing herein requires or
implies that those uses of technological measures should be circumvented”.
This Agreed statement creates a confusion regarding the right guaranteed
under Article F if TPM is introduced by an Authorized Entity.

Apart form Article F there is text in square brackets in Article D, which
reads: “Authorized entities shall be permitted, pursuant to Article A, to
distribute or make available accessible format copies to a beneficiary
person in another Contracting Party without the authorization of the right
holder”.

*Right to Translation*

There is also no consensus on the right to translate.  Certain WIPO Member
States’ copyright law currently provides for the right to translation for
visually impaired persons.  For instance, the copyright law of Japan
provides for the right of translation and adaptation for the purposes of
visually impaired persons. The current language in the consolidated text on
the right of translation is in square brackets.

“Contracting Parties may also provide an exception for the right of public
performance *[and the right of translation]* to facilitate access to the
work for beneficiary persons as defined herein”.

The footnoted proposed agreed statement on the right of translation is in
brackets and reads: “It is understood that this Article/paragraph neither
reduces nor extends the scope of applicability of the limitations and
exceptions permitted under the Berne Convention.]

Further, the consolidated text provides the following three options:

Option (1): no provision.

Option (2): self-standing agreed statement.

Chile and the US’s proposal reads:  [It is understood that this paragraph
neither reduces nor extends the scope of applicability of the limitations
and exceptions permitted under the Berne Convention, including to the right
of translation.]

Option (3): provision.

   - The African Group & India proposal for Article C1(c):  [A contracting
   party may, to the extent necessary to create an accessible format copy in
   accordance with Articles 10, 11 and 12, provide for a limitation and
   exception to the right of translation.]
   - Mexico’s Agreed Statement:  It is understood that the [limitation and
   exception to the right of translation] right of translation refers to the
   translation made at the request of an Authorized Entity [or otherwise] from
   the work to a national language or dialect of the country in question, as
   long as the work does not already exist in those languages in an accessible
   format.]
   - The US’s Agreed Statement language:  [It is understood that an
   Authorized Entity ordinarily has no need to translate into a language when
   a translation in that language can be obtained commercially on reasonable
   terms.]

 Informal negotiations coordinated by the facilitator outside the main
venue are at a hectic pace at the time of writing.+




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