Universalizing fair use: An important Argentinian proposal

The government of Argentina has submitted an important proposal in current negotiations towards an international instrument on limitations and exceptions to copyright at the World Intellectual Property Organization (WIPO).

Most international treaties seek to establish minimum standards.  In the case of the current WIPO negotiations, relating to exceptions and limitations to copyright for education and research institutions and persons with disabilities, this means that all countries would agree to permit a minimum set of things, such as permitting photocopying for classroom use or reproduction for classroom display.

As the Argentinian government notes, this often does not go far enough, especially in the online context, since countries invariably differ widely in their implementation of such minimum standards, and digital transactions often involve multiple country jurisdictions.

Many everyday actions done in the context of educational institutions potentially involve multiple jurisdictions, and could be legal in one jurisdiction but not in the other:

• playing an Internet video from a web site based in one country in the classroom of another;
• uses of works in distance education, where students may be based in a different country from the instructor;
• downloading works from a web site in another country for educational purposes;
• making available or sending articles, texts, or digital course packs from one country to another.

Understanding the legality of any of these actions, along with many others, currently involves expensive legal analysis of the copyright regimes of multiple countries--an untenable situation for educational institutions, as the Argentinian government notes.

Argentina therefore proposes that "within the scope of a treaty on limitations and exceptions, lawful conduct in one territory should not be illegal in another. If reproduction or making available is valid under the treaty, it cannot then be invalid under the rules of another State jurisdiction." (p. 4).  The exact wording of the proposal is as follows:

Where performed in accordance with the exceptions and limitations set forth in this agreement, the reproduction or making available of a work shall be governed by the law of the country in which the reproduction or making available occur, without precluding the reproduced work from being delivered to or used by a person or institution benefitting from exceptions and limitations located in another Member State, provided that such delivery or use is consistent with the terms and conditions set forth in this agreement. (p. 4).

The Argentinian government has proposed a solution worthy of serious discussion at the WIPO meeting to be held next week.

WIPO to discuss library and archive copyright provisions

Some interesting proposals will soon be under discussion at the World Intellectual Property Organization that could free libraries, archives, educational and research institutions, and people with disabilities from copyright provisions that hamper their ability to make use of copyright works.  Read my full post about the upcoming meeting on WIPOMonitor.org here.

Last chance: Canada should sign Visually Impaired Treaty

The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, which would make accessible-format copyright works more available, was finalized almost a year ago on June 27 2013.

Whereas 66 countries, including the EU, France, the UK, and the United States, have all signed the treaty, Canada as yet has not.

The treaty is open for signature for up to one year; that deadline is coming up soon in June.  Canada should sign the treaty to indicate its support for ending the book famine affecting accessible-format works.  Canada's signature belongs on the treaty, given the role that Canada reportedly played during the treaty's negotiation.

WIPO Treaty Should Allow Libraries to Make All Books Accessible to Visually Impaired Patrons

Jim Fruchterman reports that EU countries are standing in the way of provisions that would allow libraries to make or import an accessible version of a book that it has in its collection, even if a commercially available work in that format already exists.  Reports come from the currently-underway Diplomatic Conference to Conclude a Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities.

There are proposals on the table that would force some entities, including the visually impaired themselves, to buy accessible copies of works if they are commercially available, rather than making or importing such versions under a limitation or exception to copyright.  Libraries should not be forced to do this.  It would be impossible for a library to purchase an accessible duplicate of every book in the library; such a requirement would prevent and does prevent libraries from making all of its works available in accessible format to the visually impaired.  Such a requirement guarantees the inaccessibility of most books.

As I said in a previous post, two groups are especially affected by visual impairments: children and the elderly.  The new treaty should promote reading by putting in place provisions that ensure any book can be made available by libraries, through import or through making an accessible version - certainly for books that they have in their collection.  The treaty should ensure that everyone can borrow any book from the library.

Private solutions have never solved the access problems for the visually impaired and probably never will.  Both books and the visually impaired have been around for hundreds of years, and the problem isn't solved yet; it is currently estimated that only 5% of works are available in a accessible format.  What's the holdup?  Clearly, it is time for governments to step in.

The Canadian delegation, along with all others, should support provisions that ensure any book can be lent by libraries in accessible format, through importing or making an accessible version, to its patrons.

[updated]

Canada stands up for visually impaired access

Jamie Love of Knowledge Ecology International reports that Canada, along with 16 other countries, is backing measures that would allow the visually impaired to break digital locks in order to have access to copyright works.  The United States, which proposes more restrictive measures on digital locks, is now isolated, according to Love.

This is an excellent move by Canada and the 16 others that is consistent with Canadian provisions that allow the circumvention of TPMs by the perceptually impaired or those working on their behalf. 

This move is made in the context of the currently-underway Diplomatic Conference to Conclude a Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities.  See also my posts here and here.

A Balancing Act for the Blind and Visually Impaired

On Monday June 17, a diplomatic conference will be held to negotiate a treaty/international instrument that would allow accessible-format works to be exported from country to country.  Intended to address the problem that currently only 5% of copyright works are currently available in accessible format.  Copyright law in many countries currently prohibits the export of copyright works, including accessible-format works.   This creates a situation where works must be separately converted to accessible formats in each country, or where separate permissions must be requested for each country to create or export the works, inhibiting the flow of accessible-format works around the world.

Recently, I noted that the negotiations have entered troubled waters.  Media conglomerates, copyright lobby groups, the Obama administration, and the European Commission have sought to weaken or derail the treaty. 

The Canadian government continues to stress "balance" in copyright as a way of navigating this issue.  It claims that the current Canadian copyright law, which does contains export measures for the visually impaired, is "balanced".  Indeed, Canada was the first country in the world to put in place such provisions, including provisions that allow the circumvention of TPMs by the perceptually impaired or those working on their behalf.  However, the idea that copyright is "balanced" in addressing the interests of the visually impaired is contentious, as the question of balance always is.  Canada’s act regarding the export of accessible works  applies only to works by Canadian authors, does not apply to large print books or cinematographic works, does not apply if the work is reasonably available in the destination country, and sets out various other restrictions. 

The idea that copyright is currently "balanced" in addressing the interests of the visually impaired is often questioned.  Only 5% of works are accessible to the visually impaired...this is is not balance.  Canada should not take any action that will allow a different or better balance to be achieved in the future by enshrining restrictive or highly bureaucratic measures in an international treaty.

Two groups are especially affected by visual impairments: children and the elderly. This is an issue that affects us all, when we're old and when we're young.  It also affects disproportionately those living in developing countries.  I want to be able to read when I'm old.  I want my friends in developing countries to be able to too.  I want Canadian negotiators to stand up and make sure that happens.

As I said in a January 2011 op-ed in The Hill Times, Canada could do more. It could enable less restrictive laws around the world, ensuring that the perceptually impaired can circumvent TPMs in order to be able to access works.  This is an opportunity for Canada to show leadership and vision, and to emphatically insist on the fullest and most meaningful access for the visually impaired,  unimpeded by TPMs or by other restrictive measures. Canada's position should be based on preserving this policy flexibility for a future of fuller access for everyone.

[corrected June 14 2013][revised June 16 2013]

WIPO Treaty for the Visually Impaired in Trouble

As negotiators at WIPO prepare for a June 17-22 diplomatic conference in Marrakesh to create a new international instrument/treaty for the benefit of the visually impaired.  The treaty is intended, by its proponents, to make copyright works more accessible to the visually impaired.  It is currently estimated that only 5% of works are available in a accessible format.  Stevie Wonder and other key activists have been proponents of the treaty.

Negotiations have, according to reports (and here), hit stumbling blocks that could foil the agreement.  WIPO held an "Informal and Special Session" to discuss the instrument in April that concluded by posting a draft text (of April 20) of the instrument/treaty, available here.  Media conglomerates, copyright lobby groups, the Obama administration, and the European Commission have sought to weaken or derail the treaty.  The draft text has been filled with brackets and alternatives that will make a final agreed text more difficult to come to.  It is now feared that the conference will end in a deadlock, or in a treaty that contains so much red tape it will be utterly useless.  I have observed in my book that this has been the result of many efforts to create copyright exceptions,  including the provisions of the 1971 Berne Convention, which was intended, but failed utterly, to create copyright exceptions for developing countries.

An access to information request has shown the close involvement of UK publishers with the UK negotiators.  Intellectual property owners argue that any treaty on users' rights that doesn't have something in it for them is unacceptable.

Knowledge Ecology International held a discussion on the instrument/treaty.  Video clips are available here.

C-32 & the A2K Problem

My op-ed, "The A2K problem: copyright, accessibility and the future of copyright in Canada," appears in today's Hill Times. In it, I argue that Canada's Bill C-32 is an early move among international efforts to address the copyright needs of the visually impaired, easing the difficulties of creating and making available accessible-format works. It could set an example for other countries and international negotiations to follow. However, I argue that Canada could do more to address those needs than what is contained in C-32. Canada’s efforts should rise to the standard of a new age of access to knowledge, instead of becoming part of the A2K problem.

Carleton University has posted the full op-ed here.