From Jun 17 to 28, 2013, a tactful contention will be convened in Marrakesh, Morocco on a new UN covenant on copyright exceptions for persons who are blind or have other disabilities. Copyright attention lobbies have succeeded in squeezing a range of a agreement, and a new lobbying bid by a Motion Picture Association of America (MPAA) and a Association of American Publishers (AAP) has blown adult progressing compromises and swell on a negotiating text.

The World Blind Union and a members and supporters in a traffic are now endangered that that Obama Administration and a European Commission are creation final that will describe a covenant distant reduction useful, or even derail a negotiations entirely.

The biggest warn has been a assertive position taken by a MPAA and a member organizations. Earlier a Obama White House bent to MPAA lobbying and demanded that a UN covenant bar deaf persons as beneficiaries, as good as all audio visible works. The ostracism of audio visible works extends even to videos that embody both audio marks and embedded content and total that are used in preparation and training, and that could be used to emanate special format works that were accessible to persons who are blind.

After a Obama Administration was means to bar deaf persons as beneficiaries and audiovisual works wholly from a covenant in 2012, there was an bargain that a MPAA would be understanding of a covenant — something that Fritz Attaway had betrothed before he late from a MPAA in Sep 2012. But in new months, a MPAA has pounded a covenant with a vengeance, perfectionist that it embody changes that serve shorten a use of exceptions, and that levy new risks for non-profit libraries for a blind that use a treaty.

The MPAA lobbying bid is led privately by Chris Dodd, a former U.S. senator and stream MPAA CEO, and targets a White House, a Department of State and other executive departments, as good as several U.S. Senators and members of a House of Representatives. Disney and Viacom are among a companies that are reportedly a many aggressive, and News Corp and Time Warner are also intent in a run effort.

The MPAA’s assertive actions have speedy a always tough book and biography publishers to take an even some-more assertive position in a negotiations. Unfortunately, as a USPTO and White Staff have changed, a Obama Administration has increasingly sided with a MPAA and a book and biography publishers opposite blind groups.

As a consequence, final week, a final pre-diplomatic contention constructed a content with 88 brackets, and 17 “Alternative” versions of text, and few agreements on a many critical issues.

If a Obama Administration and a EU do not uncover some-more coherence and regard for blind persons, a tactful contention in Morocco will possibly finish in deadlock or furnish a lousy covenant that will be singular in scope, unnecessarily formidable and tough to use — a outcome eerily identical to a 1971 agreement* to enhance entrance to copyright works in building countries that everybody agrees was a failure.

On Apr 20, 2013, a World Blind Union released press recover that said:

“A 4 and a half year UN traffic on a new World Intellectual Property Organisation (WIPO) covenant for people who are blind or have other imitation disabilities is in risk of delivering possibly a hollow, “trophy treaty” or no covenant during all . . . a 3 days of contention during WIPO this Apr have continued in a same capillary as a 5 days of negotiations in Feb this year. The negotiators have worked roughly exclusively on diction to reaffirm copyright protections that already exist in ubiquitous copyright instruments; and have clinging roughly no time to insuring that a covenant will inspire a cranky limit pity of desperately indispensable books for a blind.”

A blunt and forceful chronicle of this was given by Fredric Schroeder during a WBU’s involvement during a full a same day. (Link to video here”.)

What are a issues?

Objectives of a treaty

Background on a progressing phases of a WIPO traffic are accessible during http://keioline.org/r2r. In essence, a traffic covers dual topics. First, what should be a smallest customary for copyright stipulations and exceptions for persons with disabilities? Second, what needs to be finished to discharge barriers to cranky limit exchanges of accessible works?

Earlier studies have uncover that usually about 60 countries (including scarcely all high income countries) have copyright exceptions for persons who are blind and other disabilities. Among a countries with pithy exceptions, some need to be stretched and updated to simulate changes in technologies and to enhance a series of disabilities covered. These studies also uncover that few countries assent a trade of accessible works, heading to dear duplication of investments in creation such accessible versions and hence an under-supply of accessible works, and good disparities of entrance among countries, income groups and languages. In unsentimental terms this means blind people have entrance to a little fragment of published works in high income countries, and roughly no entrance in building countries. Also, persons who review in minority (in a nation they reside) languages are feeble served.

The covenant is ostensible to repair things by providing a baseline of strong exceptions, and clarifying a right to discharge accessible works opposite borders.

Beneficiaries and works covered

The 2008 WBU offer tangible persons who were blind or visually marred as beneficiaries, yet also supposing that “Contracting Parties shall extend a supplies of this Treaty to persons with any other incapacity who, due to that disability, need an accessible format . . in sequence to entrance a copyright work to roughly a same grade as a chairman yet a disability.” This was finished to be thorough as regards disabilities.

In unbroken drafts, a covenant has been narrowed, with a United States seeking really early on to conclude a covenant in terms of “print” disabilities, that is broader than blind and visually marred (it includes persons who have earthy disabilities that forestall them from reading), yet excludes persons who are deaf, who can read, yet can't hear.

The 2008 WBU breeze sought to be thorough as regards a form of works and rights covered.

‘Work’ means any work of a form in that copyright could maintain either or not such insurance is supposing by inhabitant laws or was supposing yet has expired, and includes literary, dramatic, low-pitched and artistic works, databases and films. . .

References to ‘copyright’ embody copyright and any applicable rights associated to copyright that are supposing by a Contracting Party in correspondence with a Rome Convention, a TRIPS Agreement, a WPPT or otherwise, and references to a ‘owner of copyright’ and ‘author’ shall be construed accordingly.

‘Database’ means a collection of eccentric works, information or other materials organised in a systematic or process proceed and able of being away accessed by electronic or other means.

In Jun 2011, a immeasurable organisation of countries including Argentina, Australia, Brazil, Chile, Colombia, Ecuador, a European Union and a Member States, Mexico, Norway, Paraguay, a Russian Federation, a United States of America and Uruguay, introduced a offer that had usually one set of brackets in a text, and seemed to be a pointer of conspicuous swell in a negotiations. The new text, SCCR/22/15 Rev.1, tangible a works lonesome as any “protected work within a clarification of a Berne Convention, either published or differently done publicly accessible in any media.”

Since Jun 2011 there has been a poignant decline of works covered, and a relapse in a progressing nearby accord on many other issues.

The stream breeze of a covenant enclosed a slight clarification that a U.S. due after Jun 2011. The difference would ask to “literary and artistic works within a clarification of Article 2.1 of a Berne Convention, in a form of text, footnote and/or associated illustrations,” and a nonetheless to be drafted resolved on matter concerning audio books.

The differences between a Jun 2011 and after texts meant that deaf persons are excluded, and by tying a difference to text, footnote and or associated illustrations, it appears as yet audio visible works that embody power-point slides and other presentations involving embedded content and total shown in a video are off limits, something that creates barriers for adopting a flourishing series of audio visible educational and training materials (by mixing a audio lane with accessible versions of a embedded text, total and other visually presented materials). The WBU supposed a restrictions on works lonesome after being told by a USPTO that it would kill a covenant unless audiovisual works were excluded.

Relationship to a Copyright “three step test.”

The so called three-step exam in copyright was initial introduced in 1967 in a incomparable rider of a Berne Convention that combined or stretched other exceptions, including a broader selection difference and a new difference for education. The three-step exam was a reduction on exceptions to a facsimile right in copyright that a negotiators did not wish to enumerate separately. The mins and reports from a 1967 traffic make it pure a three-step exam would not be used to shorten a “particular” exceptions differently described, such as for news of a day, education, quotations, etc.

When a 3 step exam is applied, an difference has to be (1) singular to certain special cases, (2) not in dispute with “a normal exploitation” of a work, and (3) not “unreasonably prejudice” a “legitimate interests” of a author. Today some chronicle of this exam is found in a immeasurable series of US shared FTAs, new copyright or associated rights treaties, and in a WTO TRIPS trade agreement. Taken literally, a “test” can be utterly restrictive, quite if implemented as 3 apart tests that work independently, and where multitude wants to emanate a giveaway difference for certain uses of works.

The tangible aptitude and focus and of a 3 step exam is argumentative and technically complex. In 2000 a WTO ruled a three-step exam does not ask where there is a opposite customary for a sold exception, and a 1996 WIPO Copyright Treaty (WCT) and some FTA agreements contend that all of a supposed Berne exceptions and some new versions to residence digital technologies are deliberate in correspondence with a test. (See: http://keionline.org/node/1655)

The 2008 WBU offer pronounced “Contracting Parties determine that a provisions” of a new covenant for a blind exceptions “are unchanging with obligations” in a list 7 treaties and trade agreements, including all vital copyright and associated rights treaties, as good as a UN Convention on a rights of persons with disabilities and a WTO TRIPS Agreement.

The Jun 2011 content that was co-sponsored by many countries including a U.S. and a EU enclosed a singular judgment in a preamble: “Emphasizing a significance and coherence of a three-step exam for stipulations and exceptions determined in Article 9(2) of a Berne Convention and other ubiquitous instruments.” The Jun 2011 content also supposing that one proceed to exercise a difference was by “providing any other difference or reduction in a inhabitant copyright law” that meets a 3 step test.

In other words, in a Jun 2011 text, any difference that meets a 3-step exam was seen as an alternative to a specific exceptions that were supposing in a treaty, that a parties agreed, were include with all existent copyright treaties. This effectively broadened a difference and providing an additional flexibility. The either/or proceed in a Jun 2011 content was offering to make it easier for countries to sanction a gathering if a inhabitant use was to assent uses of works for a blind underneath other some-more ubiquitous supplies in a inhabitant copyright law, such as a law on satisfactory use or satisfactory practices, an educational difference or a incapacity rights law.

As WIPO incited to an hearing of broader copyright stipulations and exceptions issues, a EU began to backtrack and direct additional denunciation in a covenant for a blind content that would need any of a exceptions set out in a covenant be implemented theme to a 3 step test, lifting questions about what if anything a covenant would permit. In other words, a EU proceed would initial emanate a set of exceptions, yet afterwards emanate a 3 step exam that had to be met in a exercise of those exceptions — suggesting there would be versions of a exceptions that would destroy a test.

In response to a EU proposals, some Latin American Countries due a new essay on a “Interpretation of a Three-Step Test,” that was designed to yield assurances that a three-step exam would not be practical in a proceed that would criticise a purpose of a treaty, that was to enhance entrance to copyrighted works for persons with disabilities. This new essay was seen as a negotiate chip, to keep a EU from being too assertive in dire a new demands.

By 2013 all ruin pennyless lax on a 3 step exam issue, and literally 5 days of a scheduled 4 day traffic were spent on this issue. The Feb 2013 traffic resulted in an endless yet in places peculiar outline of a 3 step exam in a Berne Convention, a 1996 WIPO Copyright Treaty (WCGT) and a WTO TRIPS agreement, as good as some rarely nuanced discussions of users rights in a new 485 word Article/S.

KEI and other groups remarkable immediately that a new content quoted selectively from a 3 step exam in a 1996 WCT, entirely quoting a restrictive-three step test, yet withdrawal out a footnote in that content to an critical and good famous “agreed statement” in a covenant that focused on and stretched user rights and coherence for a three-step test. The referenced denunciation for a 3 step exam for a TRIPS agreement was also edited, during a ask of a EU, given a EU did not approve of a tangible denunciation in a TRIPS.

The new Article/S contained a footnote that read:

Ad referendum: these elements of a covenant are a outcome of a SCCR event that met from Feb 18 to 22, 2013. This denunciation has been tentatively resolved by a delegations attending a session.

Between Feb and April, a MPAA and a AAP mounted an assertive lobbying to free a Feb contain on a 3 step test. The Obama Administration’s Department of State send a démarche to a embassies and missions around a universe instructing a diplomats to inspire antithesis to references in a Treaty that contained a word “fair practices, exchange or uses” on a drift that this denunciation will be unconnected to a Treaty. During a Apr negotiation, a US worked with a EU to introduce new some-more limiting language.

One aspect of this new lobbying bid was to emanate a new traffic in Apr to residence something called a supposed “Berne Gap,” clarification countries that have not sealed a Berne Convention or complied with a WTO TRIPS Agreement. In these discussions there were large new attempts to introduced new denunciation on a three-step test, mostly focusing on a handful of countries that are really poor. This was widely seen as a non-problem, since a exceptions in a covenant are already really limited, and over that, many slightest grown countries already have really limiting copyright laws on a books. The genuine indicate of a “Berne Gap” traffic was for a publishers to continue to press for legitimacy of their speculation that all exceptions contingency be serve narrowed by a 3 step test.

Can a covenant equivocate a discuss over a three-step test?

The WBU, a allies, and many other countries would cite a elementary matter that a covenant does not change a incomparable tellurian copyright system. A “General Clause” on this theme was due in Feb 2013, and it reads:

Nothing in this covenant shall disparage from any obligations that Contracting Parties have to any other underneath any other treaties, nor shall it influence any rights that a Contracting Party has underneath any other treaties.

This elementary non-derogation clause, that is used in some other treaties, would equivocate a formidable and inapt traffic over a broader tellurian copyright norms, and would safety whatever purpose a 3 step exam now has in any other copyright treaty. But a publishers are rejecting this, while carrying a insolence to explain others are perplexing to “hijack” tellurian copyright norms.

Technical Protection Measures

In 2008, a WBU due a 54 word, one sentence, essay on technological insurance measures that was generally formed on stream US and EU law.

ARTICLE 6. CIRCUMVENTION OF TECHNOLOGICAL MEASURES
Contracting parties shall safeguard that beneficiaries of a difference supposing by Article 4 have a means to suffer a difference where technological insurance measures have been practical to a work, including when compulsory a right to by-pass a technological insurance magnitude so as to describe a work accessible.

In a Jun 11, 2011 offer by a U.S., EU and others, a TPM was modified. The new Article F was 118 words, yet brackets, and called for “appropriate measures” to overcome TPMs for (1) people where a work was not accessible “in a accessible format accessible commercially during a reasonable price,” or (2) for a non-profit “authorized entities” that yield services to a blind.

By Apr 2013, a TPM Article F had grown to 234 difference covering dual opposite alternatives, and 290 difference of records including serve choice content in an Annex. Among a records in a Annex is a offer by a US to limit a range of measures to overcome TPMs to cases where there is an “actual or expected inauspicious impact on a customer chairman . . determined by convincing justification in a pure legislative or executive proceeding.”

The Apr 2013 U.S. offer was against by many countries, including Canada, Australia and Switzerland, as good as all building nation blocks, as a new weight on blind groups.

Ironically, in a recently resolved Section 1201 move in a US on a exceptions to a DMCA to overcome TPMs, a Librarian of Congress postulated a difference to certified entities portion a blind, notwithstanding a fact that “proponents did not yield endless analysis.” (Federal Register/ Vol. 77, No. 208, Oct 26, 2012, Page 65263)

While a US is pulling for argumentative new content in a TPM sustenance of a agreement, it is also lobbying to have a whole essay removed, so that a content says 0 about a ability to overcome TPMs to have a advantage of a exception. Developing countries are endangered that such an outcome will make it formidable to order measures to overcome TPMs when implementing a treaty.

For-Profit Entities, Commercial Use and Commercial Availability

A handful of countries, including Argentina, Australia, Canada, Singapore and a UK have some form of reduction of a use of an difference where an accessible format is accessible commercially. The publishers are penetrating to have denunciation environment this out as a requirement or highlighted as an alternative, and use step dual of a three-step exam to direct that countries welcome this restriction.

The 2008 WBU offer due a two-tier approach. There would be no exam for blurb accessibility for non-profit uses of a exception, yet there would be when for-profit entities used a difference for blurb services. For example, if Google wanted to yield accessible versions of books to blind persons as a blurb enterprise, a reduction would apply.

In a 2011 EU, US et al proposal, a difference was singular to activities “undertaken on a non-profit basis” only, yet a footnote pronounced “It is accepted that team-work or partnerships with other organizations, including for distinction organizations, shall be permitted.” The footnote was seen as critical for safeguarding entrance to a immeasurable collections being digitized by Google, Microsoft and other companies, in tie with out of imitation or differently orphaned copyrighted works.

In a 2013 versions of a text, a footnote about partnerships with for distinction organizations disappeared, and a difference was singular to “activity undertaken on a non-profit basis.”

Despite a squeezing of a difference to “activity undertaken on a non-profit basis,” a EU and to some limit a US have pushed to boost a inflection of denunciation that suggests a difference can and eventually will be narrowed where there is blurb accessibility of an accessible format.

While on a face a blurb accessibility choice seems like a reasonable and suitable restriction, it turns out that this is a really formidable reduction to exercise in practice. In a new Section 1201 move in a US, publishers attempted to limit a TPM difference to cases where there was a blurb alternative. But a NTIA and others remarkable that this was formidable to evaluate, for example, where an accessible format compulsory someone to buy an Apple OS iPAD, or another specific device. There are also outrageous issues about a pricing. KEI investigate uncover that audio books are consistently labelled distant above a prices for paperback editions, for example, and these cost disparities boost over time as a descending prices in a marketplace for used books spin some-more important, yet a prices for audio books do not tumble as significantly. And, in a cranky limit context, accessibility or “reasonable” prices, might be opposite in a importing and exporting country. Also, these supplies emanate new risk for a non-profit libraries distributing a works, including probable incriminating liabilities underneath some of a supplies recently upheld by a US and a EU.

Contracts

In a 2008 WBU Draft, there was an article, drafted by WIPO consultant and former UK IP Office central Judith Sullivan, to safeguard that contracts can't be used to criticise a exceptions.

Article 7. Relationship With Contracts
Any contractual supplies discordant to a difference supposing in Article 4 shall be 0 and void.

In a 2011 offer by a US, EU and others, a Article was weaken, yet useful, since it during slightest done it pure that it was probable to understanding with bad contracts.

ARTICLE G RELATIONSHIP WITH CONTRACTS
Nothing herein shall forestall Member States/Contracting Parties from addressing a attribute of agreement law and orthodox exceptions and stipulations for customer persons.

Between 2011 and 2013, a Article on contracts was separated altogether, as a EU and a US increasingly have bent to lobbying by publishers.

Current draft: No essay on Contracts

Concluding thoughts

It was never startling that book and biography publishers (along with collection societies) would be a problem in a WIPO negotiations. But what has been startling has been a new presentation of a MPAA as a vital competition of a simplified and serviceable covenant — even yet a MPAA had already succeeded in stealing deaf people and audio visible works from a treaty.

In a shutting moments of a Apr 18-20 negotiations, a Library Copyright Alliance deputy Jonathan Band told representatives that a covenant had spin so formidable it would be roughly unfit to tell countries what they could indeed do to exercise a provisions, and that a EU and a US had to “dial back” their final on interest of a publishers. KEI reminded a representatives a covenant creates a slight difference for some persons with disabilities, and any uses outward of that slight difference are not stable by a exception, and theme to all of a rapist and polite penalties of existent copyright law. KEI pronounced a publishers in ubiquitous and a MPPA in sold were perplexing to spin a covenant into some form of ACTA, and afterwards hypocritically accusing others of hijacking a covenant for broader purposes. Pranesh Prakash, a counsel representing a Center for Internet and Society (CIS) in India, pronounced “There is 0 in these supplies that would modify transgression by sighted people underneath a fake of this covenant magically into official acts. And, indeed, there are eclectic ways of infringing copyright yet such review to this treaty. Yet, these really same toilsome mandate (such as a “commercial availability” requirement) and official processes will unrealistically boost transaction costs for a visually marred and describe infructuous a really purpose of this treaty.” (See also William New, Mixed Reactions Among Participants In WIPO Talks On Treaty For The Blind, IP-Watch, 22 Apr 2013).

When asked this month about because a film attention had spin so active in a negotiations, one lobbyist told William New, it was “all about a precedent,” a perspective that other film attention lobbyists emphasized informally during a final week’s negotiations.

What this means is that Chris Dodd, Bob Iger, a Chairman and CEO of a Walt Disney Company, Philippe Pierre Dauman, a President and CEO of Viacom, and other MPAA member association CEOs and ubiquitous counsels of those firms are peaceful to saddle blind people with a diseased and reduction useful treaty, to prove some incomparable tellurian lobbying campaign, over a fashion it might someday have for something else — this in a covenant that has 0 mercantile impact on a film industry. In a past integrate of months a MPAA has blown adult formidable to strech compromises, introduced new areas of controversy, and might even kill a covenant altogether if they don’t behind off.

Some serve investigate is accessible here http://keionline.org/r2r

Some Interviews during a traffic are accessible here:

• April 18-20, 2013, Informal Session and Special Session, SCCR, http://www.youtube.com/playlist?list=PLLw9jWaZPEpzty2Zwt16DM26bMFUspc6W
• Dec 17-18, 2012 WIPO Extraordinary General Assembly, http://www.youtube.com/playlist?list=PLLw9jWaZPEpyjIKZbb7gj7jHa_l4f3m2t
• November 19-23, 2012, WIPO SCCR 25, http://www.youtube.com/playlist?list=PLLw9jWaZPEpzoueECjm6z8vMug3Wp051H
• July 16 to Jul 25, 2012, WIPO SCCR 24, http://www.youtube.com/playlist?list=PL1D33B99A9E32BB92

* Berne Convention, Appendix, Special Provisions Regarding Developing Countries.

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