Thoughts on a WIPO treaty for the blind

The 24th Session of the World Intellectual Property Organisation (WIPO) Standing Committee on Copyright and Related Rights (SCCR) kicked off this week in Geneva. Among the topics up for discussion in this session are exceptions for libraries and archives, exceptions for educational institutions, protecting the rights of broadcasters, and an instrument providing access to copyright works for persons with a print disability. Of all the topics on the table for negotiation at this session, it is the instrument for the visually impaired that is the closest to gaining international consensus and it is hoped that by the end of the session there will be an agreed treaty text that can be recommended to the WIPO Generally Assembly in October.

I love reading. I always, have, and, hopefully, always will. I can’t imagine living in a world where 95% of the knowledge, mystery, and magic contained in printed works was closed off to me. Unfortunately, this is the reality for Australia’s visually impaired persons (VIPs) under the current international intellectual property regime. Publishers currently only reproduce around 5% of their output in a format that is accessible to VIPs, and the situation is even worse for the majority of VIPs who live in developing countries who have access to closer to 1% of published print books. The result is a situation where the right of VIPs to participate in cultural life, a human right recognised in both the Article 27 of the Universal Declaration of Human Rights, and Article 30 of the UN Convention on the Rights of Persons with Disabilities, is not being respected.

This was a situation of which I was completely unaware until sitting in on the presentation given by Disability Discrimination Commissioner Graham Innes at the ADA forum in March. The focus of Commissioner Innes’ presentation was on the WIPO discussions on a treaty to require its members to provide exceptions in domestic copyright law to enable persons with a print disability to convert works to an accessible form without a publishers’ authorisation.

The thing is, the technology is available for institutions other than publishers, and individuals, to convert works into Braille, audio, or large print format. However, because the majority of works we’re talking about are protected by copyright, any reproduction for this purpose infringes the exclusive rights of the copyright holder, thus creating pirates out of persons with a print disability who take the initiative to broaden the range of reading material available to them. Brave and stupid may be the publisher who decides to sue VIPs for converting works into accessible forms, but, as Commissioner Innes commented in his presentation, a) most people, including those with a disability, prefer to act inside the law, and crucially, b) without an exception removing liability for copyright infringement, we can’t expect any organisations to start making use of these technologies and providing converted works on a larger scale to print disabled persons.

A Treaty for VIPs has been on the WIPO agenda for over thirty years now. Setbacks to the treaty have been significant and as states and rightsholder groups have argued that enshrining an exception for VIPs would open the door to piracy of works by non-VIP users, or that an exception for VIPs impinges on a comparable human right of creators to be compensated for their work. Even as these parties have recognised the necessity of providing greater access to works for visually impaired or print disabled persons, the adoption of a treaty itself has been contentious. The Association of American Publishers still considers that a treaty providing exceptions for visually impaired people sets a precedent for further treaties on specific exceptions (read library and education exceptions), and argues that the existing international IP framework may still be sufficient to provide access to printed material for VIPs, preferring  better licensing deals and softer, non-binding agreements rather than a binding agreement in the form of a treaty.

The fact that in over 30 years no market or soft-law solution has managed to alleviate the book famine for VIPs stands as evidence that what print disabled persons need is a binding treaty requiring states to implement exceptions in their domestic law to allow works to be converted into accessible formats. A treaty is needed to ensure that states across the board, whether net exporters or importers of content, allow organisations to fill the gap left by publishers for the production of accessible works. A treaty is needed to ensure that reservoirs of accessible material in more developed countries are available to VIPs in the poorest countries, who would otherwise lack the resources to provide the material themselves. Finally, a treaty is needed to reaffirm that access to knowledge and culture are human rights, and that the failure of domestic legislatures to allow persons with a print disability to fully exercise these rights is no longer an option.  

The SCCR24 discussions wind up on the 24th July, with the majority of discussion on education exceptions and library exceptions still to come. An agreement on the text for a treaty for visually impaired and print disabled persons would be a fantastic outcome to conclude the session.