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.