Tag Archives: WIPO

WIPO Standing Committee on Copyright Limitations and Exceptions Meeting This Week

This week, the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) will meet from June 30-July 4. The agenda for this session of SCCR includes discussion of broadcasting, limitations and exceptions for libraries, and limitations and exceptions for educational and research institutions and for persons with other disabilities.

At the last meeting of SCCR which took place from April 28-May 2, the EU blocked the conclusions of the meeting, refusing to agree to language referring to “text-based” work on limitations and exceptions for libraries. Ultimately, the Chair of SCCR released the conclusions as a Chair’s document, rather than as the agreement of the WIPO member states. Because WIPO operates on the basis of consensus, a single country or group can block action at WIPO, including for example, blocking adoption of conclusions or agreement to hold a diplomatic conference. By blocking the conclusions, the EU has potentially made it more difficult to move forward on work on limitations and exceptions at SCCR.

A live webcast of this week’s SCCR, as well as meeting documents, is available here.
Additional coverage of SCCR is available here.

THE MARRAKESH TREATY

by guest blogger Jonathan Band, policybandwidth

Read the full text of A User Guide to the Marrakesh Treaty

On June 27, 2013, a Diplomatic Conference of the World Intellectual Property Organization (WIPO) held in Marrakesh, Morocco, adopted the “Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.” The Treaty is intended to promote the making and distribution of copies of books and other published materials in formats accessible to people with print disabilities. The Treaty would achieve this objective by obligating countries signing it (referred to as Contracting Parties) to adopt exceptions in their copyright laws that permit the making of copies in accessible formats as well as the distribution of those copies both domestically and internationally.

ARL worked closely with the U.S. delegation throughout the negotiating process, and through the Library Copyright Alliance was represented in WIPO meetings in Geneva and the Diplomatic Conference itself in Marrakesh.

I. Overview

The copyright law in many countries presents a barrier to the making and distribution of copies of works in formats accessible to the print disabled. The making of a copy in an accessible format such as braille, without the authorization of the rights-holder, could constitute an infringement of reproduction right. The unauthorized distribution of the accessible format copies could constitute an infringement of the distribution or making available to the public right. Similarly, the export or import of accessible format copies could trigger infringement liability.

For this reason, over 50 (primarily developed) countries have adopted exceptions that allow the making and distribution of accessible format copies. However, over 130 WIPO countries, in which the majority of print disabled people live, do not have copyright exceptions relating to the print disabled. Moreover, the existing exceptions do not always explicitly permit the import or export of accessible format copies. Because of the high cost of producing accessible format copies, and the relatively low demand for many individual titles, the ability to share accessible format copies across borders would benefit the print disabled in both developed and developing countries.

The Marrakesh Treaty addresses these problems by requiring Contracting Parties to adopt copyright exceptions that allow, under certain conditions:

  1. the making of accessible format copies;

  2. the domestic distribution of accessible format copies;

  3. the export of accessible format copies; and

  4. the import of accessible format copies.

The Treaty does not dictate how these goals are to be achieved; rather, it provides Contracting Parties with great flexibility concerning the implementation of their obligations. As Article 10(3) provides,

“Contracting Parties may fulfill their rights and obligations under this treaty through limitations or exceptions specifically for the benefit of beneficiary persons, other limitations or exceptions, or a combination thereof….”

The Treaty creates minimum standards for exceptions, with a ceiling presented by existing obligations under the Berne Three-Step Test.

Many aspects of the Treaty (e.g., the focus on actions by “authorized entities”) are similar to the specific exception for the print disabled in the U.S. Copyright Act, 17 U.S.C. § 121, also known as the Chafee Amendment. This similarity is no accident; parts of the Treaty are based on proposals originally offered by the U.S. delegation.

The Treaty represents a significant development in international copyright law because it is the first treaty devoted exclusively or primarily to creating international minimum standards for copyright exceptions. At the same time, it should be remembered that the Berne Convention itself contains exceptions for quotations, illustration in teaching, and news reporting.

51 countries signed the Treaty on June 28, 2013. The Treaty does not take effect until 20 countries ratify it, and then it is binding on the countries that have ratified it. (Under international law, signing a Treaty indicates a country’s support for the Treaty, but is a lesser step than ratification.)

II. The Treaty and U.S. Law

U.S. law currently complies with the Treaty’s requirements, and the United States could ratify the Treaty without amending the Title 17. The relevant exceptions for the print disabled appear in the Chafee Amendment, 17 U.S.C. § 121; the fair use doctrine, 17 U.S.C. § 107 (especially as it has been interpreted by the ARL Code of Best Practices and the recent HathiTrust decision), and the anticircumvention provisions of the Digital Millennium Copyright Act, 17 U.S.C. § 1201. These provisions map favorably against the obligations set forth in Articles 4(1), 5(1), 6, and 7 of the Treaty.

Even though the United States could ratify the Treaty without amending Title 17, the Treaty still has the potential to provide substantial benefits to the print disabled in the United States. This is because the Treaty should result in more Contracting Parties adopting exceptions permitting authorized entities to make accessible format copies and to export them to other Contracting Parties, including the United States.

Because of the high cost of producing accessible format copies, the increased ability to share accessible format copies across borders should result in more titles being available to the print disabled in the U.S. An authorized entity in the U.K. would be able to export an accessible format copy of an English history book to a print disabled professor in New York. Likewise, an authorized entity in Spain would be able to export an accessible format copy of a Spanish novel to a print disabled student in California.

For this reason, ARL supports U.S. ratification of the Treaty.

In particular, we appreciate the efforts of the U.S. delegation. The delegation has had the difficult task of balancing the conflicting demands of many interests…. While I certainly have not agreed with all the positions the U.S. adopted, I understand the conflicting pressures under which it has operated.

Jonathan Band, from his statement at WIPO on behalf of the Library Copyright Alliance, on the occasion of the passage of the treaty for the visually impaired.

The Beginning of the End of the Book Famine

What a difference a week makes! After a lengthy negotiation process that had many advocates wondering whether the result would be worth the effort, last night the WIPO negotiators in Marrakech passed a meaningful treaty for the visually impaired.

The Library Copyright Alliance has been involved in the treaty negotiation process from the beginning, and has issued a press release welcoming the treaty’s passage. In it, Carrie Russell points out a key fact about the treaty that may explain (but not excuse) the MPAA’s last-minute efforts to neuter the agreement:

By passing what is an exception to copyright, the World Intellectual Property Organization demonstrated that there is international support for balance in copyright law. We applaud the world delegates for approving a treaty that makes it possible for every visually-impaired person around the world to have fair access to reading materials.

And it looks like WIPO got some key details right. Perhaps most heartening, it did not remove references to fair use and fair dealing, despite the State Department’s misguided expressions of concern.

After years of legislation that has made copyright longer and stronger, WIPO has finally done something to help the public. It’s worth celebrating.

Now with United States government support for maximalist copyright on behalf of the motion picture industry (from an earlier, relatively balanced approach to the treaty), this meaningful treaty —to help visually impaired people who have the audacity to hope, the audacity to read —has becomes meaningless.

Strong words from the ever-awesome Carrie Russell at ALA in a new blog post, Hooray for Hollywood? Choosing maximum copyright over justice.