At least half of that title isn't a metaphor. I'm referring to the heated discussions that took place at WIPO SCCR 17 last Friday, as the member states tried to decide what the future work of the Committee might look like with regard to limitations and exceptions for the visually impaired.
What was so incredibly striking was the evident desire of certain member countries to foreclose the idea that WIPO might want to pass a treaty guaranteeing certain rights for the blind to access copyrighted works.
Some background: At the end of these meetings, a day or so is devoted to debating and deciding what the conclusions of the meeting have been. The Chair writes up a draft document, which is presented to the delegates. There then ensues a vigorous debate as to what points of view might have been included or left out, if there was undue emphasis or a noted absence of a particular proposal, etc.
To give some of the flavor of this, here's one snippet from my notes on Friday:
France: clear preference for going back to the original paragraph. only two requests for that; delete “undue” and convert “platform” to “mechanism.”
If at this stage difficult to go back to original, then have a great many amendments to make on the new version.
prefer replace “Expeditiously” with “without delay”;
agree to delete sentence after “visually impaired” up to “protected works”
delete all reference to international exchange
replace platform with mechanism
delete last sentence on WBU paper.
Some of this looks like tedious sniping over inconsequential phrasings, and some if it, to the dismay of many in the room, really is. Replacing “expeditiously” with “without delay”—does that make a real difference?
Other changes, though, do have real consequences for how the meeting and its accomplishments are framed.
Look, for instance, at the last line of my notes on this statement made by France (on behalf of the EU). The desire was to remove from the document any reference to a proposed treaty on limitations and exceptions for the blind.
Another piece of important background: at this meeting of the Standing Committee on Copyright and Related Rights, the World Blind Union circulated the text of a draft treaty—a proposal that WIPO could take up in order to ensure that member countries would, at minimum, provide for some limitations and exceptions for the disabled. In other words, the treaty would mean that the lawful owner of a copy of a work can convert that work into an accessible format for a visually impaired person (and only for the use by a visually impaired person), on a non-profit basis, without running afoul of copyright law.
As it stands now, while countries are allowed to provide limitations and exceptions, there is no uniform treaty outlining what sorts of limitations and exceptions should be in place in national laws. It seems fairly evident that countries that have agreed to minimum levels of copyright protection could also agree to minimum levels of exceptions to keep legitimate users from being sued, and the WBU proposal is one method of ensuring that. Furthermore, national limitations and exceptions don't address the problem of moving accessible works from one country to another. Instead, import/export restrictions combined with varying national laws means that a lot of the work in converting works into accessible formats would have to be done over and over again, even when several countries share a common language.
However, a number of interests don't see it that way. Publishers and other rightsholders have vocally opposed the idea that WIPO should establish any required exceptions and limitations. Some have claimed that this would run counter to WIPO's mission of promoting IP—as though promoting intellectual property meant that it must be applied without exception. Of course, it doesn't, and no groups would actually say so—WIPO treaties all provide for countries to—optionally—include limitations and exceptions. And that's all, according to these 26 rightsholder groups, that WIPO should ever have to say on the subject. National laws, they say, provide all the necessary protections that users might need against overbroad or over-applied copyrights. A nation-by-nation approach, with no required minimums, is promoted as ensuring the flexibility needed to ensure copyright balance.
Meanwhile, these same interests press for WIPO to continue increasing required minimums of protection across the globe, regardless of the flexibilities that might be required to ensure balance from one nation to another.
In the meantime, IFRRO, the International Federation of Reproduction Rights Organizations (and one of the signatories of the above protest against limitations and exceptions treaties) proposed an alternative to the WBU's treaty for access to works. Instead of WIPO passing a concrete agreement that would ensure access without fear of liability, they stress that the solution lies in voluntary licensing between organizations for the blind and publishers. To that end, they would rather WIPO use its resources to convene some sort of “platform for stakeholder consultation”–a meeting to discuss licensing in order to “facilitate the greater availability of accessible reading materials for the blind and visually impaired in a trusted and secure environment.”
Now, there's certainly nothing wrong with convening meetings in an attempt to reach private agreements—but to suggest that this is the only workable solution is disingenuous. Advocates for the blind have been, and still are, working to get licenses for accessible works, and yet, according to the WBU, they have access to only 5% of all written works.
And so WIPO is faced with two proposals put forward with the objective of aiding the visually impaired: one from the visually impaired themselves, and another from the publishers whose works the impaired wish to access via limitations and exceptions. The two aren't necessarily mutually exclusive, though one would propose work that is uniquely within WIPO's power—creating treaties—while the other suggests WIPO act as a glorified meeting hall to continue discussions that are already taking place, with limited results. Moreover, we can't ignore the fact that the IFRRO proposal, while not explicitly exclusive of a full-on treaty, is being pushed by a group that, as I noted above, actively opposes any treaties on limitations and exceptions—whether for libraries, distance education, or yes, for the blind.
And yet what happened last Friday? Member countries, all the while protesting their undying support for the cause of the disabled, kept raising barriers to even any mention of the WBU proposal in the Chair's conclusions of the meeting.
In the end, the conclusions on limitations and exceptions for the blind were to read as follows:
The Committee acknowledged the special needs of visually impaired persons and stressed the importance of dealing, without delay and with appropriate deliberation, with those needs of the blind, visually impaired, and other reading disabled persons, including discussions at the national and international level on possible ways and means facilitating and enhancing access to protected works. This should include analysis of limitations and exceptions. This should also include the possible establishment of a stakeholders platform at WIPO, in order to facilitate arrangements to secure access for disabled persons to protected works. A number of delegations referred to a paper presented by the World Blind Union (WBU) and expressed interest in further analyzing it.
Note that both the WBU proposal and the IFRRO proposal are mentioned.
What's truly extraordinary, though, is the process that led to their current state. Along the way, the scope of the potential work was reduced, the urgency of the matter was downgraded, and references to some of the most pressing questions, like the international exchange of accessible works, were removed. Other attempts were made to strip any reference to the WBU proposal, while retaining IFRRO's suggestion.
- The United States inserted the word “reading” before “disabled persons,” so that the scope of a proposed instrument would not include the needs of any disabilities other than the visually impaired.
- France, on behalf of the EU, wished to remove the phrase “including discussions at the national and international level on possible ways and means facilitating and enhancing access to protected works.” This would have removed one of the key references suggesting that a treaty might be a way forward.
- France also successfully pressed for the elimination of a phrase regarding the “international exchange of materials in accessible formats.” This removed explicit acknowledgement that WIPO might address the trans-border problems faced by the blind—something that is much more likely to require a treaty to be adequately dealt with. This request led to an extremely heated back-and-forth between France (and the EU) and Pakistan (and the Asian group).
- Japan also supported removing the language regarding transborder issues.
- As noted above, there was the initiative by France to remove reference to the WBU proposal.
These debates ended with the WBU proposal with a lesser status than the IFRRO proposal (though the IFRRO proposal was not named as such). However, the door was not specifically closed to norm-setting, despite the efforts to foreclose it before it's even debated in open session.
The pace of progress in WIPO is typically slow—as new proposals are introduced, delegates must often take them back to experts in their home countries for detailed analysis to see how they fit in with domestic legislation and other national obligations. There's also going to be the differing political and legal goals of a given government's cultural ministers, copyright authorities, trade representatives, and foreign relations departments.
Yet despite these time-consuming consultations, it's still possible for things to happen here. And some incremental progress has been made towards an exceptions and limitations treaty for the blind, at least.
But that progress is puny in comparison to what might have been done. The topic of limitations and exceptions saw a fair bit of interest in the last SCCR meeting, and this meeting began not with the formal session of the SCCR, but with a series expert reports—four on various limitations and exceptions, including those for the blind. This has created a momentum in the committee for a work plan that might do something concrete to move international discussion of copyrights forward.
But there's still a sense of disappointment in that any progress that was made was made in spite of, and not because of, the efforts of some developed countries.
It's a bit of a dance—twenty steps forward, nineteen and a half back. That's fine if you enjoy this process in and of itself. But if you're trying to get across the room (to read a book?), it's an exercise in frustration.