Do the Visually Impaired Need Their Own ACTA?
Do the Visually Impaired Need Their Own ACTA?
Do the Visually Impaired Need Their Own ACTA?

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    Last week, the Standing Committee on Copyright and Related Rights (SCCR)—part of the World Intellectual Property Organization (WIPO), a United Nations body, failed to make any progress toward increasing access to copyrighted works by the reading disabled. Though this is bad news, the issue is not over. There’s no reason why laws should prevent people who aren’t being served by the market from helping themselves by creating and sharing accessible works. But getting this message understood by a UN entity that operates by consensus is very hard. To understand why progress on helping the reading disabled has been so elusive, it helps to put WIPO into context—it’s an institution not renowned for speed.

    At Least the Broadcast Treaty Continues to Go Nowhere

    For example: Progress has been slow or non-existent on the Broadcast Treaty at WIPO for years. Frankly, this is pretty great. Most versions of the broadcast treaty give broadcasters exclusive, intellectual property-like rights in the content they broadcast—an undeserved windfall. This right would go beyond merely protecting broadcasters’ signals from wholesale retransmission, and would give them rights to individual programs they have paid to broadcast. This approach is silly: There are already copyrights on most of the material that broadcasters transmit, and those rights are almost always sufficient to stop the bad guys in court. (And if there are no copyrights on the material being broadcast, viewers should be free to record it and do with it as they please. Public domain material shouldn’t somehow become protected when someone decides to sell it.) There are even ways to address (like a legitimately signal-based treaty) other legitimate complaints some broadcasters have without magicking up existing new layers of intellectual property to add to the current menagerie of copyright, patent, trademark, and boat hull design.

    On the broadcast treaty front, last week’s news from SCCR was pretty good. The WIPO secretariat is evidently interested in moving something—anything—forward on the agenda, and several countries strongly expressed their interest in the treaty. But at the last minute, India nixed plans for special talks on the treaty, designed to get rid of some of the outstanding technical difficulties with its approach. Some countries realize that an IP approach would create unintended consequences. (In the course of a minute, Jukka Liedes, chairman of SCCR and master of diplomatic phrasing, managed to call these special talks an “open-eneded consultation,” an “analytic session,” a “seminar,” an “expert session,” and a “special day.” He’s good.) Thus, there is not likely to be much movement on the broadcasters’ treaty until the next meeting of the SCCR, in November.

    But Treaty for the Reading Disabled Also Went Nowhere

    So it’s not surprising that there are procedural means to slow up progress on a treaty for the visually impaired. It is surprising and disheartening that some nations are willing to use them, deliberately blocking progress toward helping the reading disabled.

    The US and the EU countries, with large and influential publishing lobbies, would rather avoid having discussion on a treaty. These countries have put forward various complex proposals that could do some good or some bad to help the reading disabled. But they’re more sensitive to appearances, and are less willing to go on the record opposing a treaty that has such wide support among the groups who represent blind and limited vision groups, and among civil society generally. (Not all of the EU countries were so reticent—Italy in particular vocally opposed to the very notion that an international treaty could ever create limitations and exceptions, rather than merely increasing yet further the scope and enforcement of IP.)

    As last week’s meeting progressed, the US at least showed some flexibility, accepting language that acknowledged that a treaty might be in the future. The US, EU, and GRULAC countries (the main supporters of a treaty for the reading disabled) were able to work out a compromise. The African Group was the biggest obstacle as midnight on the last day of the meeting approached. There were even heated words between the African and Latin American/Caribbean sides. The African Group countries want talks to move forward on a comprehensive treaty on limitations and exceptions, to include educational and archival uses, along with access to works by the disabled. Rather than seeing some meager progress towards helping the reading disabled as also advancing toward their larger agenda, they see an incrementalist approach as a “piecemeal” solution that will make it more difficult to ever address the valid needs of other kinds of users. I think this is wrong as a matter of political calculation; the publishing representatives who mobilized in Geneva to speak out against a treaty for the blind would go to the mattresses to oppose a comprehensive limitations and exceptions treaty, and the rich world would be unlikely to support one.

    Voltaire lived in Laussane, near Geneva where the dysfunctional WIPO negotiations took place. He wrote of the “wise Italian” who said that “le mieux est l’ennemi du bien,”—the better is the enemy of the good. It’s too bad that the African Group agrees.

    What’s the Best Way Forward for the Visually Impaired?

    The content industry is crafty. Seeing how difficult is is to move treaty talks through the United Nations system, they’ve started to route around it. ACTA, a one-of-a-kind negotiation that is looking to create a “(non)-treaty of the willing” is expressly designed to avoid the political and procedural challenges of WIPO. From the content industry’s perspective, the fact that pesky NGOs are not invited is a definite plus. Do the visually impaired groups need an ACTA-like process of their own—one where the publishing groups are not invited, and where the nations interested in helping the reading disabled in a meaningful way hammer out a deal among themselves?

    While there could be some benefit to this, a treaty that does not include much of the rich world might not do as much good as even a watered-down instrument that emerges from the WIPO process. The best way forward is not to simply give up on WIPO—progress on items like the broadcast treaty has been slowed up because there are legitimate problems with it. While the proposed treaty isn’t perfect, opposition to the treaty is more political than technical. Moving forward will require civil society and disability rights groups in the US, EU, and South America need to strengthen our ties to Africa-based groups that broadly support creating comprehensive limitations and exceptions, but that also understand that an incrementalist approach is more feasible in this forum. A political problem calls for a political solution.