Last Friday, the World Intellectual Property Organization’s (WIPO) 185 country-members concluded another round of negotiations on exceptions and limitations for the blind and persons with printing disabilities. However, they did not reach a consensus on many of its most contentious issues, such as allowing exports of adapted works across borders and circumventing technological protection measures to enable accessibility. People with hearing disabilities were also written out of the draft. In addition, US negotiators were able to block exceptions and limitations for audiovisual works, under the pressure of MPAA. Who loses? All of us, but especially the 285 million visually impaired people in the world.

As noted by Chris Friend, head of the World Blind Union's (WBU) Right to Read campaign:

"We need [treaty] provisions to clearly permit cross-border sharing of accessible books both between organizations and directly from organizations to blind or print disabled individuals. We reject complicated requirements for checks on whether the books are commercially available. Such procedures would sacrifice the usability of the treaty on the altar of publisher reassurance."

Late in the day, the Committee adopted the Draft Text of an International Instrument/Treaty [DOC].But many of the important decisions were deferred to an “extraordinary session” called for December 17-18. At this point the main question is if WIPO will proceed with a diplomatic conference in 2013. Unfortunately, that is still not clear.

What Organizations that Represent the Blind Want

The WBU, which represents the interests of the blind and visually impaired in 190 member countries, proposes for the following in the WIPO treaty:

Make it legal for print disabled individuals and specialist organizations to make accessible copies of published works in all countries which sign the treaty;

Make it legal for accessible books to be sent internationally without permission from publishers;

Prevent contracts with publishers from undermining copyright exceptions for print disabled people (currently they sometimes do).

What the Current Text Would Allow

There is not an official text released by SCCR, but a draft text was distributed during the negotiations and is also accessible on the KEI website. These are some of the core issues under discussion:

Nature of the instrument — The text still has an identity crisis. As we have pointed out, EFF, KEI, WBU, and many other organizations support a binding instrument (a treaty). The draft still does not address that issue. Even worse, they call the language “recommendations,” which would have even less impact internationally.

The scope of application — the exceptions and limitations will cover literary works in the form of text, notation, and/or related illustrations, whether published or otherwise made publicly available in any media. These will include eBooks and audiobooks.

Article D deals with cross-border exchange —This is one of the most controversial issues in the text, having attracted great pressure from publishers to restrict any cross-border exchanges. The alternative texts vary from allowing cross-border exchange to not allowing them at all. But we ask: if publishers have not explored that market yet, why are they trying to protect it? Copyright impedes cross-border exchanges if there is no authorization of the copyright holder, which in most cases is not the author but the publisher. A great number of people with print disabilities are in developing countries. Developing countries would be the main beneficiary of such a provision and would thus import books in accessible formats. This is a clear public good, a matter of human rights, and EFF urges country members to allow it.

Article E brings to the text the infamous three-step test —This has the potential to limit what exceptions and limitations can be granted through national laws.

Article F brings obligations in regard to technological protection measures (TPMs) — Countries vary in regard to support of provisions that affirm digital locks and exceptons that would allow circunvention. EFF affirns TPMs must not be a barrier to the production, distribution, and making available of works in accessible formats. So, countries should ensure the right to circumvent digital locks in order to enable accessibility and be sure the rules under negotiation are effective in the world we currently live in.

Where Countries Stand

As reported by KEI, the US is getting more isolated in its opposition to a treaty. The European Union recently announced, "The EU and its Member States are now also in the position to negotiate the conclusion of an instrument, including a binding treaty." Although the first day of WIPO’s negotiations were held in secret, they were followed by separate briefs to non-industry NGOs. One was by the entire US delegation for blind groups and "print" publishers, and a separate one for KEI was conducted by the State Department. Otherwise the negotiations followed the normal path of assembly discussions.

India supports the treaty, however, it is concerned with the current restrictive language and the possible adoption of a three-step test provision that could cap exceptions and limitations developed within national laws. This is because India has a newly adopted amendment to its copyright law [PDF], which contains exceptions that go further than what the blind treaty is expected to provide and addresses a broader base of “persons with disability.”

The WBU supports the need to leave it to the countries to decide if they want to go beyond what the treaty may provide for. They have commented: “What we do want to happen is that each country can be protected so that it can either keep the national law it already has for print-disabled people, or implement national law for print-disabled people.” The WBU does support countries like India, which wants to ensure that they have flexibilities in their own national law. The WBU is not talking about other issues like translation or audiovisual works (such as movies or music). The WBU’s request is “same book, same day, same price,” said Dan Pescod of WBU to IP Watch.

Canada also expressed support for the development of a treaty to facilitate access to materials by persons with print disabilities, despite its own restrictive national laws regarding export rules.

Africa is home to many developing countries. “It is important to Nigeria that this process results in something that is workable, that is simple, that delivers, and meets the needs of the visually impaired,” a Nigerian delegate stated. “It is important to us that we do not create or agree to a multilateral system that creates a second class citizenry.”

Brazil has been one of the core supporters of the treaty since the beginning, having proposed the earlier text of the negotiations back in 2009, and has pushed the work on behalf of the Developing Agenda Group (DAG) towards a binding instrument. Brazil has also been a key mediator of some of the most controversial issues that have come up during the past years of negotiations.

To see where each country stands on this issue, check out the quiz developed by the Royal National Institute of Blind People (RNIB).

Take Action

Join RNIB’s pledge, and act now by urging your country to support a clear, effective, and binding WIPO treaty for blind people. Tell them it is time for them to make blind people's "right to read" a reality. You can check at the WIPO website to contact your national WIPO representative.