Compliance with international treaty obligations has often been used as a justification to erode user rights granted by copyright law, the most famous example being the enactment of the DMCA. So when international organizations embark upon the business of treaty making, we in the public interest community pay attention. One such organization, the World Intellectual Property Organization (WIPO) is discussing several copyright issues in its ongoing 18th session. The session started yesterday with the election of the Chair and the adoption of the agenda. Up for discussion this time are two positive issues: limitations and exceptions to copyright; and a treaty for the blind, visually impaired, and other reading disabled. The presence of these issues on the agenda is significant because it could eventually lead to a shift in WIPO’s tendency to increase protection for content owners at the expense of consumers, libraries, archives, and educational institutions.
The Committee first considered limitations and exceptions. The issue is still in the initial stages of study and a large part of the discussion focused on a draft questionnaire prepared by the Secretariat aimed at gathering information about limitations and exceptions in national laws. Delegations from Chile, Mexico, and India asked for a more extensive list of questions arguing that this would permit a deeper and clearer understanding of national laws.
Why is design of a questionnaire important? Well, as I realized during the course of the proceeding, the outcome of the study would be determined by the kinds of questions asked. For example, absence of any questions about ISP liability could completely avoid discussion of whether or not releasing ISPs from liability if they take down material has negative effects on users. Yet many delegations refused to recognize this, but argued that having to respond to detailed questions would be burdensome. Ironically, advanced countries with greater resources such as US and Australia made this argument while developing countries such as Chile and India called for a more detailed questionnaire.
The other positive agenda item, a treaty for the blind is in a more developed stage. I have written before about the issues faced by the blind in accessing information. Yesterday, Brazil, Ecuador, and Paraguay introduced a formal treaty proposal to address this issue. This is the first concrete proposal representing user interests at WIPO and the fact that is was introduced is a great achievement in itself. Yet, the proposal needs to be adopted as a treaty by WIPO to make a real difference for the blind, and other reading disabled. And there are significant obstacles to achieving that goal. For one, not all countries have backed the proposal. Some, countries like Egypt favored a broader proposal for limitations and exceptions that included within it provisions for the blind. Egypt expressed discomfort with a stand-alone treaty addressing the blind and reading disabled. Others including the US were ambivalent about taking any position. The US delegation said that copyright was just one among several issues preventing access by the blind. No mention was made of appeals by the blind and the public interest groups that although copyright was one problem, it was a major one that needed to be addressed.
Discussions on these issues have not concluded yet. Today, the Committee is discussing the proposals tabled by Brazil, Ecuador and Paraguay. After government interventions, Inter-governmental organizations and non-government organizations will be given an opportunity to make interventions. Then the committee will consider other items on the agenda: protection for audio visual performers and broadcasters (again ). Stay tuned.