<nettime> Marrakesh agreement on copyright exceptions for blind persons

[nettime's avid reader <nettime@kein.org>]

KEI statement on the Marrakesh agreement on copyright exceptions for 
blind persons

James Love on 26. June 2013 - 12:47
http://keionline.org/node/1765

We are very happy with the agreement. There were a few areas where the
treaty could have been better, but these are areas of minor quibbles.
The first order issues all went in favor of blind persons. The treaty
will provide a dramatic and massive improvement in access to reading
materials for persons in common languages, such as English, Spanish,
French, Portuguese and Arabic, and it will provide the building blocks
for global libraries to service blind persons. On the issues that
mattered the most for blind persons, such as the ability to deliver
documents across borders to individuals, and to break technical
measures, the treaty was a resounding success. There are some areas
where the treaty could have been improved, and it would have been
improved, but the US and EU negotiators were remarkably responsive to
publisher lobbies. But, the result shows a shift in power in global
negotiations on intellectual property rights. The United States and
the European Union failed to block or render ineffective the treaty.
Developing countries formed strong links with several independent
countries like Australia, Canada, Switzerland and even Japan to move
the treaty in a positive direction.

The text is complex, and we are working on a detailed analysis of
the final provisions, which we will not even see in final form until
Thursday.

The World Blind Union and other blind organizations did a fabulous
job, as did developing country negotiators from Asia, Africa and
Latin America. The support for the blind groups from libraries and
civil society groups was strong, and the combined effort of the blind
and non-blind civil society NGOs was more powerful than the lobbying
by Exxon, General Electric, Monsanto, GSK, Random House, Pearson
Publishing, the MPAA and its member groups and others who opposed this
treaty.

-------------



TWN Info Service on Intellectual Property Issues (Jun13/11)

27 June 2013 Third World Network

www.twn.my

*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 speed.

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.

*COMMERCIAL AVAILABILITY*

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 holder."

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 watch".

*DIRECT DISTRIBUTION*

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 holder".

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.

*TECHNOLOGY PROTECTION MEASURES (TPM)*

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."

*COOPERATION TO FACILITATE CROSS-BORDER EXCHANGE*

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 copies".

*RIGHT TO TRANSLATION*

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".

*LDC CONCERNS*

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
thereof."

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 Committee.

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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