The World Intellectual Property Organization’s move to finalize a treaty on access to published works for the visually impaired is long overdue, according to a leading Canadian lawyer in the field.
At its December meeting, the WIPO general assembly agreed to convene a diplomatic conference in Marrakech, Morocco, in June 2013 in a bid to hash out the details of the international pact during top-level negotiations.
“It’s a human rights issue at least as much as it is a copyright issue. It’s sad that it’s taking so long,” says Howard Knopf, counsel to Ottawa firm Macera & Jarzyna LLP.
“There are hundreds of millions of blind people around the world who have to struggle very hard to do what most people take completely for granted. None of them asked to be blind and they have real difficulty just from a technological standpoint doing certain things. Why would we want to make it harder for them by leaving the law in such a state that it’s illegal to get access to the kind of materials that are necessary to get things done?”
According to WIPO, some countries have domestic laws that grant exceptions for the use of copyrighted works by visually impaired people, but there’s a void of standards at the international level.
“This is a fantastic opportunity now to make this stuff available in a sensible way that doesn’t undermine the rights of copyright owners and it would be a shame if they can’t do it,” says Knopf.
“We can’t cure blindness but we should as much as possible try to create a level playing field. Technology should be seen as an enabling aspect of this and not something to be feared.”
Dan Pescod, who has spent years lobbying for a treaty through the World Blind Union, says blind and partially sighted people have been living with a “book famine” that sees just five to seven per cent of works ever made available in accessible formats such as braille, audio books or large print. In the realm of electronic books, text-to-speech technology is also a rarity.
He says charities are generally behind those works that are available in converted formats but notes “outdated copyright laws” remain a challenge.
“When charities convert the print or digital version of a book into an accessible format, they are, of course, making a copy of the book,” says Pescod. “Such a conversion does not break copyright law in countries where there is a legal exception to copyright law for the benefit of blind people. However, only a third of the world’s countries have such an exception.”
Even when the law is on their side in one country, he says charities can’t legally transfer converted files across international boundaries.
“This means that the time and cost of reformatting has to be replicated by blind people’s organizations in different countries across the globe, costing thousands. . . . That is money would have been better spent making more titles accessible,” says Pescod.
According to Pescod, opposition to a treaty has revolved around a “slippery slope” argument that new copyright exceptions for visually impaired people will lead to further exemptions for libraries and educational institutions.
“However, we feel that access for blind people is too important to be sacrificed on the altar of publisher fears over slippery slopes. We are not out to undermine publishers or to change copyright law for the sake of it. We have simply asked, repeatedly, that our issue be judged on its own compelling merits rather than with the merits of other future possible laws.”
According to Knopf, western powers such as the United States, Canada, and the European Union have traditionally favoured a non-binding “soft law” on the issue. “That kind of thing might make you feel good but it won’t do very much. A treaty is the only thing that can really get this job done,” he says.
The mood changed in November last year when the Canadian delegation softened its position and signalled its endorsement of a stronger treaty. The European Union and the United States soon followed, a development Knopf hopes is a signal that Canada’s influence at WIPO is on the rise.
“Canada has been less visible in recent years than in the past, but there are signs that that is changing and we’re getting re-engaged and hopefully this will be part of that picture,” he says.
Work on a draft treaty has already begun, but Pescod says there are still question marks over a number of issues, including international transfers of accessible works and whether the treaty should cover books already available commercially in accessible formats.
“Some negotiators want to require blind people’s organizations to check in other countries as to what is commercially available on reasonable terms before being allowed to use the treaty,” he says.
“We reject this as unworkable in practice and likely to stop organizations, which would be otherwise willing to send their accessible books to those needing them in other countries, from doing so. This is certainly not over as yet and I will only celebrate its conclusion when it is signed and delivered.”
