[A2k] Fwd: TWN IP Info - WIPO: Treaty concluded for visually impaired to access published works

K.M. Gopakumar kumargopakm at gmail.com
Thu Jun 27 00:58:35 PDT 2013

*Title :* TWN IP Info - WIPO: Treaty concluded for visually impaired to
access published works
*Date :* 27 June 2013


TWN Info Service on Intellectual Property Issues (Jun13/11)
27 June 2013
Third World Network

*WIPO: Treaty concluded for visually impaired to access published works
Published in SUNS #7614 dated 27 June 2013*

Marrakesh, 26 Jun (K. M. Gopakumar) -- Major breakthrough negotiations on
an International Treaty for Visually Impaired Persons/Persons with Print
Disability concluded late night on 25 June.

The Treaty creates a legal obligation on the part of the Contracting Party
to provide an exception or limitation in its national copyrights law on the
right of reproduction, the right of distribution, and the right of making
available to the public, to facilitate availability of the works in
accessible format copies.

The Treaty covers persons with blindness, visual impairment, reading
disability or any other physical disability which prevents them from
holding or manipulating a book or to focus or move their eyes in the normal

The informal negotiations on the final night resolved the major contentious
issues related to the requirement of commercial availability, the Berne Gap
(countries that are not Parties to the Berne Declaration for the Protection
of Literary and Artistic Works) and the three-step test, individual right
to import an accessible format copy of a work, technology protection
measures (TPM), the right to translation, cooperation to facilitate
cross-border exchange and concerns of least developed countries (see SUNS
#7611 dated 24 June 2013).

The major achievement of the negotiations is in three areas: First,
negotiators decided to drop the commercial availability test requirement in
the importing country for the cross-border exchange of an accessible format
copy of the work. Secondly, the right of importation is extended to
individuals, hence, any beneficiary person can import the work directly
from an authorised entity from another country. Thirdly, there is an
obligation on the part of Contracting Parties to take appropriate measures
to prevent content providers from digitally locking the work to prevent its
conversion to an accessible format copy.


Dropping of the commercial availability test is expected to facilitate the
transfer of accessible format copies from developed countries to developing
countries and to fill a knowledge gap that exists among the blind, visually
impaired and persons living with print disability. Out of the three options
from the negotiating text, the first option emerged as the preferred option
(see SUNS #7611 dated 24 June 2013).

During the negotiations, it became untenable for the European Union (EU) to
continue its demand on the insertion of commercial availability.

One observer cited two reasons for the EU's late flexibility, which
resulted in the dropping of the commercial availability. First, globally,
the commercial availability requirement is mentioned in the national laws
of around six countries including the United Kingdom and Canada. According
to this observer, except for the UK, no other EU Member State has a
commercial availability requirement in their national law. Secondly, the
European Parliament resolution, which provides the negotiating mandate for
the European Commission to negotiate the treaty, does not mention the
commercial availability requirement.

Article D of the draft negotiation text (Article 5 in the concluded text)
now creates an obligation on the Contracting Parties to facilitate the
cross-border exchange of an accessible format copy of the work.

Article 5.1 reads: "A Contracting Party shall provide that if an accessible
format copy of a work is made under an exception or limitation or pursuant
to operation of law, that accessible format copy may be distributed or made
available to a beneficiary person or an authorized entity in another
Contracting Party by an authorized entity".

The footnoted agreed statement concerning Article D (1) states, "It is
further understood that nothing in this Treaty reduces or extends the scope
of exclusive rights under any other treaty".

Under Article D (2), a Contracting Party may fulfill Article D (1) by
providing an exception or limitation in its national copyright law by
giving effect to: "(A) Authorized entities shall be permitted without the
authorization of the right holder to distribute or make available for the
exclusive use of beneficiary persons accessible format copies to an entity
or organization in another Contracting Party that is an authorized entity.
(B) 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

Further, Article D (3), i. e. Article 5.3 in the concluded text, states: "A
Contracting Party may fulfill Article D (1) by providing other limitations
or exceptions in its national copyright law pursuant to Article D (4) and
Articles 10 and 11 viz. General Principles on Implementation and General
Obligations on Exceptions and Limitations."

Article D (4), known as the Berne Gap provision and which aims to
discipline countries that are not parties to the Berne Convention through
the three-step test, reads:

"(1) When an Authorized Entity in a Contracting Party receives accessible
format copies pursuant to Article [D(1)] and that Contracting Party does
not have obligations under Article 9 of the Berne Convention, it will
ensure consistent with its own legal system and practices that the
accessible format copies are only reproduced, distributed or made available
for the benefit of beneficiary persons in that/its jurisdiction.

"(2) The distribution and making available of accessible format copies by
an Authorized Entity pursuant to Article [D(1)] shall be limited to that
jurisdiction unless the contracting party is a Member of the WIPO Copyright
Treaty or otherwise limits exceptions and limitations implementing this
Treaty to the right of distribution and the right of making available to
certain special cases which do not conflict with the normal exploitation of
the work and do not unreasonably prejudice the legitimate interests of the
right holder.

"(3) Nothing in this Article affects the determination of what constitutes
an act of distribution or an act of making available."

The footnoted agreed statement on Article D (2) (4) mentioned in Article D
(1) states: "It is understood that nothing in this Treaty creates any
obligations for a Contracting Party to ratify or accede to the WCT (WIPO
Copyright Treaty) or to comply with any of its provisions and nothing in
this Treaty prejudices any rights, exceptions and limitations contained in
the WCT."

Article D (4) (2) extends the three-step test to export purposes, which is
viewed as a "Berne-plus" requirement.

This is viewed as a major concession given to developed countries. However,
one observer pointed out that the extension of the three-step test to
export purposes is subject to interpretation, citing the agreed statement
to Article D (4) (2): "It is understood that nothing in this Treaty
requires or implies a Contracting party to adopt or apply the three step
test beyond its obligations under this instrument or under other
international Treaties".

Another view is that the three-step test for export may not have an adverse
impact on the cross-border exchange of accessible format copies of works.
On the other hand, a much more cautious observer remarked: "Let's wait and


Negotiations resulted in the removal of the bracket on the word "them" and
permits importation of the accessible format copy of the work by an
individual beneficiary person or the person acting on behalf of the
beneficiary person.

Article E (Article 6 of the concluded text) reads: "To the extent that
national law of a Contracting Party would permit a beneficiary 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 that Contracting
Party shall also permit them to import an accessible format copy for the
benefit of beneficiary persons, without the authorization of the right

The accompanying statement states: "It is understood that the Contracting
Parties have the same flexibilities set out in Article C when implementing
their obligations under Article E".

According to a delegate from the GRULAC (Group of Latin America and the
Caribbean) region, certain developed countries attempted to insert the
commercial availability test in Article E after agreeing to drop it from
Article D.


The negotiations led to a consensus on the agreed statement, which now
explicitly allows the circumvention of TPM applied by the Authorized
Entities to facilitate access in accordance with national law. The agreed
statement proposed by the United States initially contained language which
created confusion regarding the freedom for an importing country to
circumvent TPM applied by Authorized Entities.

Article F (Article 7 in the concluded text) states: "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 reads: "It is understood that Authorized
Entities, in various circumstances, choose to apply technological measures,
in the creation, distribution and making available of accessible format
copies and nothing herein disturbs such practices when in accordance with
the national law."


Initially, there were proposals from both the EU and the US to include
mandatory monitoring of activities by the International Bureau of WIPO
which shall administer the Treaty. However, many developing countries and
civil society organisations including the World Blind Union argued that
creating such a requirement would affect the efficient functioning of the
Treaty. Hence, the preference was for voluntary efforts.

The US delegation proposed an amendment to Article J (Article 9 in the
concluded text) even after its adoption at the informal session of the Main
Committee that negotiated the main provisions of the Treaty. The issue was
raised again yesterday (25 June) which resulted in Paragraph J (2). At the
same time, developing countries insisted on the incorporation of technical
assistance provisions in Article J to facilitate the implementation of the
Treaty in an effective way.

This was opposed by developed countries. However, the concerns raised by
developing countries are reflected in Article J (4).

Article J states: "1. Contracting Parties shall endeavor to foster the
cross-border exchange of accessible format copies by encouraging the
voluntary sharing of information to assist authorized entities in
identifying one another. The International Bureau shall establish an
information access point for this purpose.

"2. Contracting parties undertake to assist their authorized entities
engaged in activities under Article D to make information available
regarding their practices pursuant to Article (A), both through the sharing
of information among authorized entities, as well as through making
available information on their policies and practices, including related to
cross-border exchange of such formats, to interested parties and members of
the public as appropriate.

"3. The International Bureau is invited to share information, where
available, about the functioning of the Treaty.

"4. Contracting Parties recognize the importance of international
cooperation and its promotion, in support of national efforts for
realization of the purpose and objectives of this Treaty."

The footnoted agreed statement states: "It is understood that Article [J]
does not imply mandatory registration for authorized entities nor does it
constitute a precondition for authorized entities to engage in activities
recognized under this Treaty; but it provides for a possibility for sharing
information to facilitate the cross-border exchange of accessible format


Another important issue was the incorporation of translation right as part
of Article C (Article 4 of the concluded text).

A consensus was reached to remove the words "the right of translation" from
Article C (1) and to insert an agreed statement on Article C (3), which
states: "It is understood that this paragraph neither reduces nor extends
the scope of applicability of limitations and exceptions permitted under
the Berne Convention, as regards the right of translation, with respect to
visually impaired/print disabled persons".


Another issue was regarding the concerns of Least Developed Countries
(LDCs) to incorporate the extension of the implementation transition period
under Article 66.1 of the World Trade Organisation's TRIPS Agreement. Under
the new extension, LDCs need not implement the TRIPS Agreement till 2021.

Article 12 of the adopted text addresses this issue: "Contracting Parties
recognize that a Contracting Party may implement in its national law other
copyright exceptions and limitations for the benefit of beneficiary persons
than are provided by this Treaty having regard to that Contracting Party's
economic situation, and its social and cultural needs, in conformity with
that Contracting Party's international rights and obligations, and in the
case of a least-developed country taking into account its special needs and
its particular international rights and obligations and flexibilities

While celebrating the Treaty, several activists and negotiators point to
two potential shortcomings of the Treaty.

First, the Treaty has no provisions to prevent the misuse of contractual
provisions by the right holders who may impose conditions that explicitly
prevent the conversion of the work into an accessible format copy. The use
of contractual restrictions is one of the common tools used by copyright
holders to prevent or limit users from making use of the limitations and
exceptions on copyright. A draft article in this regard was deleted prior
to the Diplomatic Conference during the negotiations at the WIPO Standing
Committee on Copyrights (SCCR).

However, another negotiator points out that nothing in the Treaty prevents
a Contracting Party by restricting such misuse of contractual provisions.
Further, he also states that under the treaty there is a positive
international legal obligation on the part of the contracting party to
facilitate the conversion of accessible format copy, cross-border exchange
of accessible format copy to individuals and authorized entity in another
country and to allow importation of accessible format copy. Hence,
non-prevention of misuse of contractual provisions would amount to
violation of treaty obligation.

Second, the Treaty is silent on whether an Authorized Entity can make an
accessible format copy of a work exclusively for export purposes even if
the accessible format copy is commercially available in the country of
export. Considering the technological gap existing between developed and
developing countries, such a provision would have facilitated conversion of
works into an accessible format copy as per the requirement of a developing
country context by the Authorized Entities based in developed countries.

This concern was raised by the delegate of Ecuador many times during the
informal negotiations at the Main Committee. Unfortunately, it failed to be
captured in the final text.

The informal negotiations coordinated by the Facilitator (Martin Moscoso,
Director of the Copyright Office of Peru) on the contentious issues got
resolved around 9 pm on 25 June.

The outcome of the negotiations were then reported to the informal meeting
of the Main Committee around 11 pm which decided to forward the
consolidated text for the consideration of the Formal Session of the Main

The Formal Session of the Main Committee adopted the main provisions of the
Treaty Text and referred to the Drafting Committee to check the language
and drafting consistency.

The Treaty will be placed before the consideration of the plenary meeting
of the Diplomatic Conference on 27 June for adoption. +

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