Response from Share the Vision

UKIPO consultation on a proposed international instrument on limitations and exceptions for persons with print disabilities

Response from Share the Vision

Introduction

Share The Vision [STV] welcomes the IPO’s consultation on this important topic and wishes to contribute its thoughts on the UK’s participation in the forthcoming negotiations prior to and at the next session of the WIPO Standing Committee on Copyright and Related Rights in November 2011.

Background

STV is a UK-wide partnership of the main voluntary sector bodies that produce and lend accessible reading materials for print disabled people and the main bodies for publicly funded libraries. Founded in 1989, STV’s objective is to enhance access to library and information services for print disabled people via cooperative working within and between the two sectors.

Copyright legislation at the national, European and international level is a major concern for STV and we have regularly contributed to discussions and consultations on this topic at all levels. In so doing, we have benefited from the particular expertiseof two of our member organisations, the British Library and RNIB. We have also participated in the activities of the International Federation of Library Associations which has long campaigned for appropriate copyright exceptions for print disabled people and libraries and archives.

Attending conferences and providing workshops in developing countries has confirmed our belief in the need for a treaty which will enhance life chancesby increasing access to reading materialsfor the poorest people in the poorest countries in the world.

We recognise that present and former staff of the IPO have long understood the lack of reading materials in appropriate formats for print disabled people and have been supportive in attempts to ameliorate this situation both in the UK and internationally. We believe that now is the time for IPO to take this work a stage further by taking the lead in attempting to secure an international treaty for the following reasons.

(a) The Hargreaves Review and the Government’s response

We noted that Hargreaves recommended that the UK should take a lead at EU level in pushing for desirable changes to international copyright legislation. In response, "The UK’s international strategy for IP", recently published by IPO, has promised that the UK will "push for consensus on how to improve access to copyright materials for print disabled people." This endeavour should be pursued in the wider context of the Government’s response to the Hargreaves recommendations which stated that "the Government agrees with the Review’s central thesis that the widest possible exceptions to copyright within the European framework are likely to be beneficial to the UK." STV agrees with the Government and believes that in the case of the UK’s print disabled people this also applies to an international treaty which is a potential and desirable outcome of the WIPO negotiations.

STV also agrees with the Government in its belief that “unnecessary restrictions removed by copyright exceptions are not re-imposed by other means, such as contractual terms, in such a way as to undermine the benefits of the exceptions.” In order that contract law and licences cannot override an exception for print disabled people, it is necessary to have a binding treaty which states this, rather than a recommendation for publishers not to do it. We hope IPO will attempt to secure the implementation of the Government’s policy in these negotiations.

(b) The UN Convention

The Preamble to the draft text correctly commences with a reference to the principles proclaimed in the UN Convention on the Rights of Persons with Disabilities. It is important to recall that the UK, as a signatory nation, has committed to the requirements of Articles 21(a) and 30.3 of the Convention. These require States Parties to ensure that disabled people have information in accessible formats and technologies in a timely manner without additional cost and that laws protecting intellectual property rights do not constitute unreasonable or discriminatory barriers to access to cultural materials by disabled people. Clearly at the present time they do constitute bariers, so we need an international treaty to deal with an international problem which prevents the UK and other signatory nations complying with the obligations into which they have freely entered. As a UN agency, WIPO also needs to ensure it complies with its obligations under the Convention.

Despite difficult financial circumstances, both the previous and present Governments have not only maintained the level of international aid provided by the UK but have actually increased it and thereby demonstrated a lead to the rest of the world. However, the desired improvements in alleviating poverty in developing countries are not solely dependent on direct funding but can also be assisted by other means, such as enabling access to information which permits education and self development. This particularly applies to the many print disabled people in developing countries and can be achieved with no detriment to the profits of UK rights holders.

It is within this context that we wish to comment on the “current draft text” and respond to the questions you have posed. In so doing, we note that your link is to SCCR/22/15REV.1 which is dated June 22,2011 whereas a later version based on the discussions of that document was issued on June 24, 2011 as a “document prepared by the Chair.” The following comments are based on the Chair’s document, SCCR22/16 PROV.1

Our response to IPO’s questions

Does the text strike the right balance betweenrights holders and beneficiaries?

Bearing in mind the long running negotiations on this matter and the need to find a compromise that can command the widest possible acceptance by all the parties involved, it is probably as fair as can be hoped. It has never been the intention of librarians and organisations serving print disabled people to undermine the rights of creators and the creative industries on which we depend to make available the output of human creativity. We merely wish to ensure that everyoneincluding print disabled people can have legitimate and equitable access. In order to achieve this situation, we need an appropriate adjustment to existing legislation.

It is perhaps illustrative of the need to compromise that the last paragraph of the Preamble states “to provide the necessary minimum flexibilities in copyright laws that are needed to ensure full and equal access to information and communication for persons who are visually impaired…” This minimalist approach presumably reflects the concerns of rights holders but WIPO should aim for provision of"appropriate adjustments to copyright laws to ensure full and equal access… for persons who are visually impaired”.

We note that this draft has adopted the definition “authorized entity” to define who may produce and exchange alternative formats on behalf of print disabled people, whereas the previous usage was “trusted intermediaries. The use of the word “authorized” implies that some body will have the power to authorize an “entity” for these purposes or not, as the case may be. As this matter pertains to international and national law presumably that body will be the national government? It is difficult to believe that the UK Government would wish to introduce such regulation at the present time and in the spirit of its response to Hargreaves we believe it would be preferable not to use the term. However, we recognise that the rights holders will strongly disagree and we would not wish the whole project to fail because of disagreement over this point.

On the other hand, we note that Article D2 A and B permits authorized entities to distribute or make accessible copies “without the authorization of the rightsholder” and Article E permits importation of an accessible format copy “without the authorization of the copyright holder.” This is crucial to providing a timely and effective service for intended beneficiaries. Experience in the UK prior to the passage of the Copyright [Visually Impaired Persons] Act 2002 was that some publishers never responded to requests for permission to produce an accessible format of a book for which they held the copyright.

Therefore, our overall view is that the text represents a reasonable and workable compromise which we would not wish to undermine.

Does the text need amending? If so, whatamendments would you propose?

As stated above, we suggest changing the Preamblefrom “to provide the necessary minimum flexibilities in copyrightlaws” to “to provide appropriate adjustments to copyright laws”.

In addition, there seems to be an inconsistency between

Articles D and E regarding who is permitted to export and import accessible formats. Article D only permits an “authorizedentity” to do so whereas Article E permits “a beneficiary personor an authorized entity” to do so. Surely it is intended that the rights of export and import should be the same and the text needs amending accordingly?

Article G allows Member States to do what they like about allowing contract law to override the proposed exception forprint disabled people. In accordance with the UK Government’s recent policy statement quoted above, we would expect the IPOto propose an alternative wording which reflects UK policy.

Are there any aspects missing from the text?

Bearing in mind the efforts in the UK and EU to make copyrightrelated legislation future proof in terms of technologicaldevelopments, the text does not appear to address the issue of the increasing trend for books to be born digital as well as in print form. The Preamble refers to new technologies andservices and technological publishing and communication platforms but the definition of a “work” in Article A, “whether published or otherwise made publicly available in any media”does not really clarify that this document is intended to incorporate books and other publications whether in printed or digital format. Not unreasonably, Article B (b) states that abeneficiary person is a person who “is unable to read printed works” but this is the only mention of a type of work and couldlead one to conclude that this document is only concerned with the production and provision of accessible formats of print books rather than access to content whatever the original format. Hopefully, publishers will publish simultaneously in accessible formats thereby increasing timely access and theirmarket providing they comply with Article F and Article G does not permit them to override the exception and exclude print disabledpeople via licences applied to their publications which preventthe use of assistive technology.

Do you consider the text could form a jointrecommendation or a treaty?

As is evident from our earlier remarks, we strongly believethat the time is long overdue for a treaty. The normal outcomefrom such deliberations is a treaty and we see no sound orfair reasons to deny one in this case. If WIPO and its MemberStates are to comply with their obligations to the UN Conventionthere is surely no alternative, unless, for all the grand statementsof principles, they regard print disabled people as unequalcitizens whose legitimate needs do not merit fair and equal treatment.

If a joint recommendation, what are your views on a

possible two-step approach, i.e. a joint recommendation followed by returning to discussions on a treaty at a later date?

We believe that this is not a satisfactory proposal. This matter has been under discussion at international level since the early1980’s and many print disabled people have already been denied the opportunity to access culture and information. It is simply notfair to provide them with a second rate and partial solution which is not binding and does not comply with the UN Convention. We sincerely hope that the UK will persuade its European and otherinternational partners not to consign another generation to unnecessary and unfair delays.

We appreciate that this is an informal consultation and that contributions will not be published but we are content for ourviews to be made known to any interested parties.

Mark Freeman

Acting Chair, Share the Vision

Helen Brazier

Co-ordinator, Share the Vision