Copyright: Towards a recognition of users' rights at WIPO?

Last week (December 14th-18th), the World Intellectual Property Organization's standing committee on copyright and related rights (SCCR) was considering, among other things1, a proposal by Brazil, Ecuador and Paraguay for an international treaty aimed at increasing the accessibility of books for blind people. The SCCR eventually decided to initiate "focused, open-ended consultations" regarding exceptions and limitations for print-disabled persons, and will then consider whether it is ready to move forward with a treaty.

Because the public interest objective of granting persons with reading disabilities access to books is so compelling, over 50 countries already have included specific limited exceptions in their legislation. In the European Union, the EU Copyright Directive (EUCD) allow Member States to implement limited exceptions “for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability” (article 5.3.b).

At the moment, WIPO treaties only provide a general framework for exceptions to copyright - the so-called Three-Step test. For the first time, the proposed treaty would impose a specific exception to all signatories in order to favor the rights of the public. This issue needs to be addressed: millions of visually impaired people in Latin America, Asia and Africa suffer a chronic shortage of accessible reading material. In developing countries, less than 0.5% of published works are available in formats that reading disabled persons can read. Even in richer countries, 3% to 5% of published works are available in the main languages (English, Spanish, German, French) but the legal uncertainty of copyright laws severly restricts the import and export of these works across borders. As expert studies have shown, current international law limits the access to knowledge and forces very costly, unnecessary duplication of accessible formats.

Whereas recent modifications of international copyright law sought to further expand the exclusive rights of copyright owners2, the proposed treaty - backed by the World Blind Union - would give rights to the users of copyrighted works by encouraging the production and the cross-border sharing of accessible books between reading disabled people’s organizations around the world. By pooling their resources, these organizations would be able to increase the number of books digitized into an open format accessible to visually impaired persons3 (see the background paper by Brazil, Ecuador and Paraguay on WIPO Treaty for improved access for blind, visually impaired and other reading disabled persons).

Despite an intense campaign of US lobbies (U.S. Chamber of Commerce, the Motion Picture Association of America and the Recording Industry of America, also strong proponents of the dangerous ACTA agreement), the United States finally decided to adopt a pragmatic approach by agreeing to discuss the proposal, while also requiring that alternatives to a WIPO treaty be explored. On December 15th, the US delegation stated that:

"The law of the United States has these exceptions because we believe access to information, cultural expression, and ideas is essential and we know that governments have a role to play in facilitating that access and reducing barriers to information, education and full participation in a democratic society." 4

However, the European Union is not in favor of applying worldwide limitations and exceptions on copyright for the visually impaired. Surprisingly, the EU - represented by the European Commission before WIPO - even opposed the creation of a working group to work on the matter. Despite the fact that it is clear that national or EU policies alone cannot solve this problem of access to culture for the blind, the European Commission is arguing in favor of national solutions and promises to monitor the situation within the EU. The EU sucessfully introduced an amendment to the SCCR's conclusions that deleted the reference to a possible future treaty providing a framework for copyright limitations and exceptions for persons with print disabilities. Such a position only seems to reflect a dogmatic vision of copyright too often displayed in the European Union.

It is time for international copyright law to stop systematically advantaging corporate interests and to recall the founding principle proclaimed in article 27.1 of the 1948 Universal Declaration of Human Rights:

Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

The new exceptions provided in the proposed treaty signals a more general need to take an open approach to enabling the rights of the public to access cultural and knowledge works, as expressed in article 27.1 of the Universal Declaration of Human Rights. As technologies evolve and allow to better fulfill essential public policy objectives (such as granting visually impaired people with increased access to books, and fostering peoples' access to culture and knowledge in general), copyright law must change for our societies to benefit from technological progress. The new exception provided by the proposed treaty represent a great opportunity to start a larger reflection on the public's rights in relation to cultural works5.