Friday, January 20, 2012

Canada's bid to join TPP threatens access for blind, print disabled

There is a danger that, in Canada's quest to join the Trans-Pacific Partnership Agreement (TPP), Canada may cede whatever leadership it has gained in the field of progressive copyright provisions. Canada's Bill C-11, the proposed "Copyright Modernization Act", includes provisions that would allow people who are blind and print disabled to circumvent Technological Protection Measures(TPMs) to access works (s. 41.16). These provisions, while they have been criticized as not going far enough, at the same time could put Canada on the map as being among the first to enact such provisions for the benefit of the blind and print disabled. Under the last leaked text of the American proposal for the TPP, these types of provisions would not be allowed as a permanent exception. The proposal enumerates (Art. 4, 9 (d)) the various possible permanent exceptions to TPM infringement, and these do not include a specific exception for the benefit of people who are blind and print disabled. The proposed TPP allows for temporary exceptions, which could include an exception for the blind and print disabled, but these would have to be subject to review or renewal every 3 years (Art. 4, 9(d)(viii)). Bill C-11 does not provide for such a review/renewal process.

The other possibility that has been suggested by many commentators, is to limit the provisions of Bill C-11 so as to prohibit only circumvention for infringing purposes.

All of this comes on the heels of difficulties at WIPO in the negotiation of a treaty for the blind and visually-impaired, where it seemed progress had been swifter until December.

If Canada joins the TPP negotiations, this could provide an opportunity to negotiate on the TPP TPM provisions, as well as other improvements to the TPP. (KEI suggests a few, including new norms on the sharing of accessible works, and requiring open access for publicly-funded research.) On the other hand, if Canada is not successful in negotiating better terms, then Canada may have given away a leading and innovative legal solution to an important problem. There is a danger that, under the TPP, Canada could abandon the rights of those who are blind and print disabled to access works.