In what comes as a major setback to India, home to nearly 50% of the world’s blind population, the 24th Session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) concluded on July 25, 2012 in Geneva without making any significant progress on WIPO’s maiden treaty recognizing the rights of the disabled. The proposed treaty seeks to impose an obligation on member nations to create exceptions and limitations in their domestic copyright regime to enable conversion of books into accessible formats in order to benefit persons with print disabilities. Several developing nations have been pushing for this treaty for the past four years with an aim to provide equal opportunities to the disabled. The Indian Parliament even inserted Section 52(1)(zb) to the Copyright Act, 1957 which permits conversion of all works into accessible formats by anyone, for the benefit of visually impaired, provided that it is for a non-commercial purpose.
Image from here
As indicated by several news reports, the stalemate is primarily the result of a disagreement among the representatives of the European Union and the United States, on the ‘nature of instrument’. The opponents expressed reservations over enacting a binding legal treaty and instead preferred a recommendatory resolution. This opposition largely derives from the concerns of large publishing houses that fear economic losses later on. The US cautioned that shifting WIPO’s attention to the protection of rights of users rather than those of the copyright owners exclusively could set a bad precedent which could be used to further dilute copyrights in the future. In my view, this concern is overstated because fair use exceptions have long been entrenched in copyright jurisprudence and the proposed treaty does nothing more than explicitly recognizing rights of the visually impaired.
Be that as it maybe, the current draft of the treaty makes laudable exceptions for the benefit of visually impaired. The treaty requires members to permit reproduction, distribution and making available of literary and artistic works to public for non-commercial purposes. This exception allows visually impaired to convert books into accessible formats without seeking permission from the copyright owner. The most commendable aspect of the treaty is undoubtedly the provision on cross-border transfer of works in accessible formats. This could greatly aid developing countries in importing expensive foreign titles in accessible formats.
Infirmities in the Text
Having said that, the current text of the treaty does not effectively address accessibility concerns of visually impaired. These exceptions are narrower in comparison to the ones recently inserted under Section 52(1)(zb). Below mentioned instances clearly indicate the predominance of the US and the EU interests in the negotiations:
- Under the treaty, only ‘trusted intermediaries’ can avail these exceptions. In other words, only non-profit entities whose primary objective is to create accessible formats are permitted to avail the exceptions under the treaty. This is problematic as it excludes other non-profit entities such as libraries from enabling works in accessible formats.
- Although people with dyslexia are one of the beneficiaries of the treaty, the exceptions do not extend to adaption or alteration of works. This again is insufficient as it does not permit simplification or alteration of works to benefit persons with learning disabilities.
- The treaty provides exceptions only for the literary and artistic works while leaving out dramatic works, sound recordings and cinematographic films.