WIPO Conference: Bringing Copyrighted Works to Visually Impaired Persons and People with Print Disabilities

From June 18- 28, nation states were conducting negotiations for an international treaty to secure copyright exceptions for the visually impaired and people with print disabilities. These discussions, hosted by the World Intellectual Property Organization (WIPO), may secure the ability of nation states to allow conversion of published works to braille, large print and audio books without attending to the rights of the copyright holder.

There were significant international tensions at play in this negotiation. With less than 5% of print materials currently in an accessible format for visually impaired persons (VIPs) and the print disabled, this treaty represents a significant educational and social benefit. In the international sphere, the ability to access these materials may represent a human rights issue; Article 13, the right to education, and Article 15(1)(a), the right of everyone to take part in cultural life, of the International Covenant on Economic, Social and Cultural Rights (ICESCR) are both important considerations for treaty-makers and nations.  On the other hand, the rights of the copyright holder are supported by several international agreements; Article 9(2) of the Berne Convention dictates the “three-step test”, which limits the ability of nation states to provide exceptions to copyright.

The Canadian Copyright Act provides exceptions for those with “perpetual disabilities”, where  “perpetual disability” (with respect to print works) is defined as “a disability that prevents or inhibits a person from reading a literary… work in its original format.” Section 32 states that reproduction of a work in an alternate format for persons with a perpetual disability is not a circumvention of copyright. Canada, however, is one of fewer than 60 countries that currently limit copyright to promote access for VIPs and the print disabled. Even in countries where limitations are allowed, these exceptions often do not cover the import and export of a converted work, even between countries with similar exceptions. This leads to costly negotiations between governments and rights-holders, which further limits access.  This treaty may not only provide an international standard for limitations, but also represent an end to the complicated licensing process that is currently in place.

A significant issue in the meeting was the exception allowing for the circumvention of technological protection measures (TPMs) for VIPs and the print disabled. TPMs allow copyright holders to control how their work is accessed and used in an online environment.  Specialized technologies can prevent copying, printing, or making alterations. TPMs can also prevent the use of certain applications – for example, text-to-speech software – a limitation which is clearly devastating for people with print disabilities. Section 41.16 of the Copyright Act states that the circumvention of TPMs are not prohibited for the sole purpose of making the work accessible to persons with perpetual disabilities. Article 11 of the WIPO Copyright Treaty, however, protects TPMs internationally. This provision ensures that contracting nation states provide adequate protection and legal remedies against the circumvention of technological measures for copyrighted works.

Midway through negotiations, a proposal to provide exceptions for the visually impaired and print disabled read as follows:

“A Member State/Contracting Party shall ensure effective and necessary measures in accordance with that Member State/Contracting Party’s national copyright law regarding technological protection measures such that beneficiary persons are not prevented from enjoying limitations and exceptions under this instrument/Treaty.”

This proposal reached a near-consensus in its initial stages.  The United States, however, had proposed a limiting clause on this exception which would allow VIPs and the print disabled the benefit of this exception only where “appropriate and effective protection measures have not been taken.” This response was expected, as even before negotiations had began the United States and the European Commission appeared to be pushing to limit treaty provisions.

Late on June 25th, 2013, a consensus was reached on the treaty provisions. A final informal consolidation was issued and all the articles were adopted. Both those lobbying for and against broad exceptions appear to agree that the text itself is balanced.

A wide-ranging international treaty now appears to be a certainty; however, actual implementation by nation states is still at issue. Supporters must now fight to ensure that this treaty is ratified and enforced. It seems that while these negotiations concluded on June 28th, conversations regarding copyright exceptions and increasing access for the visually impaired and print disabled are likely far from over.

Naomi Metcalfe is an IPilogue Editor and a JD Candidate at Western University.
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