October 30, 2014

We Have a Treaty! Now What? | Peer to Peer Review

Having written a column a couple of weeks ago expressing skepticism, even cynicism, about the prospect of the international diplomatic conference sponsored in Marrakesh by the World Intellectual Property Organization (WIPO) actually producing a treaty on copyright exceptions for the blind and visually impaired, I was both pleased and surprised to hear that such a treaty was agreed to by the delegates in the wee hours of June 25.

This is an important milestone in the history of international copyright agreements, as well as for the over 300 million persons who live with these disabilities, 90 percent of whom are from the developing world. But, as chief U.S. negotiator Justin Hughes said at the closing session of the conference, this agreement is the beginning of a process, more than the end of one. So it is worthwhile simultaneously to celebrate this progress, attempt to understand what has been accomplished, and think ahead about next steps.

Like most WIPO treaties, the new “Treaty To Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities” is not “self-executing.” Nothing changes in any country simply because the treaty text has been agreed upon. There was a signing ceremony, but all that did was send the treaty text to WIPO for the process of implementation. Over the next few years, at least 20 of the 186 nations that are members of WIPO must ratify the treaty, at which point it will “enter into force.”

Once in force, member states of WIPO will be obligated to adopt provisions in their individual national laws to implement the provisions of the treaty. The degree to which they actually do this, however, varies a good deal. Some countries that do not like provisions in a treaty will assert that their national laws already accomplish the stated goal (the United States has taken this approach to moral rights), or they may simply drag their feet and ignore the obligation. There are few enforcement mechanisms to make a country comply with a treaty obligation.

The vagaries of the implementation process, however, should not prevent us from recognizing how important this treaty is. For one thing, it brings to the forefront of international concern a very disturbing problem—the “book famine” that afflicts millions of blind and print-disabled people. Figures from the World Blind Union suggest that only about five percent of the books published each year worldwide are available in accessible formats to this large segment of the population. Under the agreed treaty text, member states will now be obligated to adopt limitations and exceptions to the exclusive rights of copyright holders that permit the production and distribution of copies of printed works in accessible formats for the benefit of persons who are blind, visually impaired, or print-disabled. Currently only about a third of the WIPO member nations have such provisions in their law.

Benefits Cross Borders

Perhaps the most remarkable provision of the new treaty, partly because it was so controversial, is the provision that allows member states to distribute copies in accessible formats across borders, so that a copy made in one WIPO member nation can be made available to “beneficiary persons” in another member country. This provision has significant implications and benefits. It can, for example, allow different nations that share a common language, such as Spain and Mexico or Portugal and Brazil, for example, to exchange accessible copies in order to increase access for all people speaking that language who need such assistance. And it could provide help for refugees or immigrants, who would be able to obtain accessible copies in their native languages even if they are residing somewhere where there are few services in that language.

This provision on cross-border exchange also highlights another area of controversy, one that was overcome by splitting the proverbial baby. The issue was whether the limitations and exceptions required by the treaty would have to be confined to works for which an accessible copy could not be obtained on the commercial market. In the final draft, the article that describes the scope of the obligatory exception (Article 4) says that it is permissible for a country to limit the provision(s) in their national law in that way, but it is not required. But the next article, on cross-border exchange, does not mention commercial availability as a prerequisite to such exchange. So the benefits described above for refugees, immigrants, and persons “separated by a common language” need not get bogged down in attempts to find accessible copies across transnational markets. If a copy is lawfully made in one member country, according to the terms of that nation’s law, it can be shared as needed with persons in another member state.

Limits and Exceptions

All of these details are important, but there is another feature of the agreement, quite apart from the minutia of its requirements, that should give us a moment of amazement and gratitude. This is the first international copyright agreement that is dedicated to limitations and exceptions. As I pointed out in my previous column, most of the opposition to a treaty that was coming from various rights holder groups was because of a fear that any international agreement dealing with limitations and exceptions, even ones as obviously unthreatening as those for the blind, would make an irreversible change of direction in international intellectual property (IP) law. Up until now, the multiple treaties that make up the international copyright environment all dealt with harmonizing the rights that were protected in all of the member countries and the means for enforcing those rights. The international landscape was, in a word, one-sided, showing strong concern for the rights holders, mostly large industry groups, while leaving user rights and public interest matters up to the individual countries. Now that the ice has been broken, I hope that the fears of the rights holders come true and that international copyright negotiations make a serious effort to balance rights with limitations and exceptions.

One troubling aspect of this new treaty is that it returns multiple times to the so-called “three step test,” which is the only important language about limitations and exceptions found in previous international agreements. The three-step test comes from Article 9(2) of the Berne Convention on copyright, and it is simultaneously a vague and pernicious attempt to cabin acceptable limitations and exceptions. According to that article, which was also incorporated in the World Trade Organization’s agreement on IP, copyright exceptions should apply only “in certain special cases,” should “not conflict with a normal exploitation of a work,” and not “unreasonably prejudice the interests” of the rights holder. This language was probably written to try to prevent other countries from adopting a “fair use” style exception, although the 150-year common law tradition behind fair use in the United States protects it from challenge. But the broad language of the three-step test makes it a blunt instrument with which nearly any copyright exception can be attacked. It is so easy to claim that any user right conflicts with normal exploitation—“we could have sold that user a license” —and prejudices the rights holders’ interests, that the three-step test is a virtual mantra in infringement complaints and lawsuits. I am sure it was included in this treaty, especially in multiple “agreed statements” that purport to explicate the text, in order to pacify objections. But I suspect—my suspicious nature is never far from the surface—that the rights holders who fought the treaty see it as the Trojan horse by which they can fight implementation country by country.

Nevertheless, the very existence of this treaty is cause for celebration. In his closing statement at the conference, lead U.S. negotiator Hughes quoted the founder of the National Federation of the Blind about the importance of providing the visually impaired with “access to the mainstreams of community life.” In a digital age, it is horrifying that so much of our common life is still closed to so many, and this treaty is a small step toward improvement. Even more important, however, is the possibility that this agreement is the beginning of a new direction in international copyright discussions, one that takes account of the users as well as the owners of copyrighted works and seeks a balance that can actually support worldwide progress and development.

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Kevin L. Smith About Kevin L. Smith

As Duke University’s first Director of Scholarly Communications, Kevin Smith’s (kevin.l.smith@duke.edu) principal role is to teach and advise faculty, administrators and students about copyright,intellectual property licensing and scholarly publishing. He is a librarian and an attorney (admitted to the bar in Ohio and North Carolina) and also holds a graduate degree in religion from Yale University. Smith serves on Duke’s Intellectual Property Board, Digital Futures Task Force and Open Access Advisory Panel. He is also currently the vice chair of the ACRL’s Scholarly Communications Committee. His highly-regarded blog on scholarly communications discusses copyright and publication in academia, and he is a frequent speaker on those topics.

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Comments

  1. I wrote on ICTSD.org Article “WIPO Negotiations … Move Forward” 28NOV2012 (via cache):

    “The inclusion of the 3-step test may be a trap door mechanism at the national implementation level even if a binding treaty is concluded next summer. Step 1 relates to ‘certain special cases’. It can be argued that the current SCCR25/2 definition of beneficiary persons — which would encompass about 10% of the world’s population — cannot be considered a certain special case.”

    “… So the resistance of Treaty supporters to including the 3 step text in the Articles of a binding instrument as opposed to the Preamble may be that the entirety of the proposed treaty might not be in compliance. On such a basis could ratification be opposed by Creative Industry interests at each national level e.g. by Members of the International Publishers Association (IPA) in 50 countries.”

    BTW Professor Hughes also said at SCCR25 NOV2012: “But as the distinguished delegate of Kenya said we have to be practical and we do have to look at the calendar and a great many of us have absolutely no desire to live in Geneva.”

    So part of the US Administration’s attitude might be: Let’s just get out of town and let the US Senate worry about it.

  2. Closing comments of the IPA Secretary-General at Marrakesh WIPO Diplomatic Conference THURS Evening 27 JUN session 2:20:00 (my transcription):

    “All treaties merit careful consideration for accession. A broader commitment to the full body of international copyright law would have made negotiations during these past 10 days far easier.”

    Corollary, maybe?: IPA does not consider that there was sufficient commitment in the final Marrakesh Treaty text to the full body of international copyright law.

  3. Great article, Kevin. Just picked this up through Denise Nicholson’s extremely useful copyright list (South Africa). As someone who actively participated in the negotiations, we are indeed looking forward to the ratification and implementation phase. But, we got a far better treaty than we expected, and we believe that the 3-step test and commerciality doctrines were sufficiently constrained to avoid significant threats to implementation in practice. The big IP holders concerns were more about what’s next in international IP instruments than helping the blind. I doubt that libraries (like our Bookshare library, the largest of its type) will face significant challenges if we continue to be diligent about truly serving people with significant disabilities that affect print.

    • Along the lines of ‘what’s next’, a concern of big IP holders may be the constraints that the Treaty puts on TPMs. The Treaty states at Article 7 that publishers cannot use TPMs that would restrict access via legitimate exceptions; Authorized Entities, however, who might deploy TPMs as in Footnote 11, seem to be impervious to circumvention.

      So while AEs cannot at times re-format works without somehow bypassing digital restraints used by publishers, such blanket provisions in the Treaty as in Article 7 might impede a publisher using TPMs to provide some security for the 99+% of actual customers that are not beneficiaries of the Treaty and that is a BIG what’s next.

      In his recent 1 AUG 2013 House Judiciary Sub-Committee statement, Mr. Fruchterman, while commenting on the DMCA, said: We need to get rid of dumb TPMs that lock out customers with disabilities.

      But until then, it seems Big IP still may feel they are at risk if they keep using TPMs that can be readily circumvented whether for legitimate purposes or otherwise.