U.S. Only Major Country Not to Support Treaty for the Visually Impaired

During the week of November 19, the member states of the World Intellectual Property Organisation (WIPO) made decisive progress towards the adoption of the Treaty for the Visually Impaired (TVI). Most importantly, after three years of advocacy by the European Blind Union and other civil society groups as well as insistence by the European Parliament, the European Union has finally publicly supported the negotiation of a binding treaty as opposed to a non-binding recommendation. This leaves the United States isolated as the only major country not yet backing a binding instrument that would, among other things, enable cross-border sharing of books in accessible formats for the print disabled.

Mid-December, WIPO member states will meet again for an Extraordinary General Assembly to decide about the future of the currently negotiated Treaty. Will the United States want to go down in history as the country that blocked a binding international solution to help alleviate the print disabled’s book famine? This depends on how the U.S. government will weigh the interests of the publishers and those of the disability community. Ironically, Alan Adler from the Association of American Publishers acknowledges the “difficulty of providing market solutions in this area” and hence recognises the “need for some regulatory assistance.” Adler is clear that the publishers are not opposed to the Treaty for the Visually Impaired as such. But they are opposed to it on a principled basis as it would establish a precedent for global minimal mandatory limitations and exceptions to copyright. This new paradigm could, down the line, be extended to benefit libraries, educators, students, researchers and innovative business relying on flexible copyright. To date, global minimum mandatory protection is afforded to copyright holders only.

While advocates hope that the United States will come around to supporting a binding treaty, the biggest danger now is that in the December session the treaty text will be watered down and result in an unworkable solution. As James Love from Knowledge Ecology International reports, the United States has already excluded audio-visual works and eliminated deaf people as beneficiaries. Looking ahead, Jim Fruchterman, who runs the biggest online library for the print disabled, has identified several non-negotiable provisions. First, the Treaty needs to allow for direct access by the print disabled to authorized international entities. A solution that would limit import and export of books to an exchange between organizations would exclude all consumers in poorer countries that lack access to authorised providers of books in their own countries. Second, the concept of commercial availability is a concern. The disability community insists that the print disabled should not be denied access to books through library services just because the book is available for sale in an accessible format. Finally, the Treaty needs to clarify that contracts cannot overrule accessibility. This is particularly important as we are moving into a world of ebooks which are made available through license agreements (i.e. contracts) that almost always prohibit making those books accessible.

While the forces advocating for a balanced copyright regime have reached a first tipping point with the defeat of the Anti-Counterfeit Trade Agreement earlier this year, the climate in Brussels and Washington remains unfriendly. European Commissioner for Internal Market Michel Barnier recently proposed a new initiative on “Licensing Europe” and there is a concern that in a world of licensed knowledge, statutory access protections in copyright will be wiped out. In Washington, mid-November the Republican Study Committee published a progressive report on copyright only to withdraw it hours later because of political pressure. In this climate, the risk that we will end up with an unworkable international copyright norm for the print disabled is very real. As the World Blind Union reminds us, only 7 percent of published books are ever made accessible in the richest countries, and less than 1 percent in poorer ones. The week of December 17, policy makers have the moral obligation to finally allow the print disabled the access to knowledge they so desperately seek—and the publishers agree markets struggle to provide—by recommending a Diplomatic Conference for the adoption of a strong and workable Treaty for the Visually Impaired.

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The treaty supporters as mentioned above want a document that would say that +/- 10% of the world's population is now exempt from copyright restrictions with virtually no accountability as to whom would make or receive such copyright exempted materials. If a person or organization is not capable of finding out if an accessible copy of copyrighted material is available, how would they be able to provide to an Authorized Entity half-way around the world the medical and/or professionally credentialed documents as required to establish eligibility under the Beneficiary Persons Article B?

Even if there may be some 'non-negotiable provisions' that would cause temporary inconveniences, any treaty as enacted would be in force for years or decades to come -- people who are worried as to how it may be implemented on the day following enactment should think this through.

The US may indeed at this point be isolated. The USA -- if any treaty as currently proposed would be enacted -- would almost certainly be by far the largest net exporter of copyrighted materials in accessible format.

I'm not certain but this might be part of the bigger treaty proposal which, recently, the Republicans, the Tea Party wing of the Party with Bob Dole in attendance in a wheel chair to support the treaty, voted down the U.N. Disability Treaty, and embarrassed their senior statesman, Dole, and the United States in the eyes of the World. Such ignorant people would almost certainly not be expected to support anything to do with books and reading material.

US is the country that under President Dwight David Eisenhower with Helen Keller and hki.org (Helen Keller International,Org.)started as trailblazers providing numerous countries the means (+money)to combat blindness, malnutrition leading to blindness+ neonates getting their eyedrops preventing blindness. Now 57 yrs later under President Obama's adm. the basic right of Blind (and/or Blind and Deaf )children and adults to learn to read in Braille or large print or audiotapes is denied for copyrighted material payments. Since every book has the ISBN and older books the Library of Congress Catalog Card No. it should pose no hindrance. Various Aid orgs, direct US Aid- publishers' payments for authors/instituions can be tallied up. Contact the Braille Plus.Inc (http://www.brailleplus.net) who are in US and publishing educational and other books in Braille,audio,large print,translations etc.- they know all about ISBN. For children's books in Braille https://nfb.org/ (National Braille Press). Helen Keller International.Org http://www.hki.org/ Reading is fundamental and US Congress with Pres.Obama's adm. can rise to the occasion in granting numerous blind children and adults the best gift in time for the Holidays and a Happier New Year.

I am very worried but knowing the world's usual indifference to anyone who is handicapped, I don't hold out much hope. We should all speak up - as we usually do - and our small efforts may eventually lead to some improvement and consideration of the many people throughout the world who cannot see. We cannot remain silent.

The 'convention' that was not ratified by the US Senate last week is the UN Convention on the Rights of Persons with Disabilities (CRPD). The 'treaty' that is discussed by Ms. Franz above in its current incarnation is WIPO SCCR25/2 (and is linked above at TVI). That proposed treaty is viewed by many of its supporters as mandated by the CRPD especially at Article 30 'Participation in cultural life, recreation, leisure and sport':

3. States Parties shall take all appropriate steps, in accordance with international law, to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials.

... of course THAT all depends upon how one interprets the word 'appropriate'.

Thanks for your comments. First the good news: Mid December, the US has, together with the other WIPO governments, agreed to negotiate a treaty for blind & print disabled people to be concluded in Marrakech in June 2013. However, the treaty text is not finalised. So WIPO will meet again on February 18-22 to work and hopefully finalise the text.

Regarding the comment on the commercial availability clause, there are several problems with it, but very importantly I believe that the visually impaired should have the option of library access, in addition to commercial access, just like the rest of us. This is why the clause on commercial availability will hopefully be deleted in the final version. Here's a good blog post on the December negotiation including the issue of commercial availability: http://cis-india.org/accessibility/blog/wipo-to-convene-conference-to-fi...

And yes, CRPD is a separate instrument from the TVI (also negotiated by a different body), but that in fact one can view the TVI as a way to help implement access to cultural life and education in the CRPD.

The following is from the International Publishers Association (IPA) Newsletter #97 dated 20 DEC 2012:

Much work remains to be done before the Diplomatic Conference. WIPO’s Standing Committee on Copyright and Related Rights (SCCR) will convene in February to refine the negotiating text and to sort out the many unresolved issues. For IPA, the instrument must meet the following conditions:

· Priority must be given to commercially available works;

· The current levels of international copyright protection must be maintained, and

· The focus of the instrument should be exclusively on its objective: to ensure that accessible works are made available to persons with print disabilities through authorized entities.

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