Is the Senate Rushing to Judgment on Bill C-11 (implementation of WIPO Treaty for the Blind)?

The Senate is rushing at unusual speed to hold hearings on Bill C-11 - a bill to implement the WIPO Marrakesh Treaty for the Blind. There are reasons to be concerned about the "commercially available" exception to the exception and the possibility of collective and Copyright Board involvement. I’ve written this here and here.

 The Senate announced late on Friday, June 10, 2016 that is will hold a Committee hearing next Wednesday, June 16, 2016. That is far from adequate lead time for anyone who may wish to prepared constructive comments - assuming that potential witnesses are even available on such short notice.

I’m hearing reliable reports that Canada wants to be early in line to ratify the treaty – which is commendable. But that is not a good enough reason to rush the passage of a flawed implementation bill that may actually serve as a disincentive to the production of material for blind persons by both publishers and organizations working for the blind. There appears to be the possibility of potential Trojan horse provisions not required by the Treaty that could enable royalties and the prospect of Access Copyright, for example, applying for a tariff at the Copyright Board. Even the mere possibility of such a development is more than enough reason to pause for sober, second thought.

Readers who believe that more lead time is needed and/or a follow up hearing in the fall should contact the Committee right away as follows:

Clerk: Lynn Gordon - (613) 991-3620
Administrative Assistant: Julie Flannery - (613) 990-6187
General Information: (613) 990-0088 or 1-800-267-7362
Fax: 1-613-947-2104
Email: banc@sen.parl.gc.ca
Mailing Address:
Standing Senate Committee on Banking, Trade and Commerce
The Senate of Canada
Ottawa, Ontario
Canada, K1A 0A4 

HPK

KEI @ WIPO re Canada & a Treaty for the Blind

Here's the KEI statement just delivered at the WIPO General Assemblies meeting. It concludes with a rather provocative comment on Canada regarding the proposed treaty for the blind:.

We also note that Canada has made an appalling proposal to limit exports of works to only Canadian authors, a proposal that would lead to very restrictive access if embraced by other countries.

(Emphasis added)

Unless Canada's position has changed very recently, this is not quite accurate (which is quite uncharacteristic for KEI). It partly describes what is proposed in Bill C-32 but fails to note that Bill C-32 would also allow for exportation of books by authors from the importing country. This also fails to note that Canada is also pushing for a much more liberal position internationally. Bill C-32 is presumably based upon what the Canadian government thinks (perhaps with an over abundance of caution?) is currently possible under international law.

True, Bill C-32 would allow a Canadian entity to export only books by Canadians and Kenyans to Kenya, for example. That would not include British, American, French, etc. authors. True, that would be a serious limitation in this example. But it would not be such a big problem vis a vis exports to the USA, UK, or France, for example, since these countries have enormous catalogues of books by their nationals that would be needed by the blind.

However, the Canadian position being advocated for an international instrument is clearly much more liberal.

As Canadian Ambassador John Gero said at WIPO last June and as reported by KEI itself via my blog here:

With respect to exportation, the bill in front of the Canadian parliament also has specific measures related to the export of special format materials. It includes a number of provisions to ensure that there is an appropriate balance between the interests of the parties involved. First, exportation is limited to special format versions of works by Canadian authors or authors of the country of importation. Second, the bill allows for the possibility of a royalty collected for export material even though there is a complete exception for domestic production of special format materials. Third, export from Canada can only be done by organizations, not by individuals; and the importer recognized by the law can only be an organization and not an individual. And fourth, the bill allows for the possibility of requiring a contract between the Canadian exporting organization and the foreign importing organization. A contract of this type could stipulate, for example, that the copies could only be used by persons with print disabilities. In this sense, this provision is aligned with the concept of trusted intermediaries by ensuring that the distribution is limited to persons with print disabilities.

Of note, the bill allows the export of special format materials to foreign countries regardless of what the law is in the foreign country and regardless of whether the foreign country has a limitation or exception for the creation of special format materials.

Although the bill does not allow for the export of third country material, any international instrument should establish rules and principles under which third country material can be exported.

(Emphasis added)

Leaving aside whether the proposed provisions in Bill C-32 are necessary or ultimately even helpful (since they arguably may inadvertently limit rather than expand current export possibilities), the fact is that Canada is proposing an “instrument” (not necessarily a “treaty”) that would do the right thing - i.e. “establish rules and principles under which third country material can be exported”. In turn, those rules would presumably allow Canadians to export not only books by Canadians and Kenyans to Kenya, for example, but also books by American, British, French and any other authors who whose works are needed by blind Kenyans.

HK

The Wonder of Stevie @ WIPO

In what must have been a magical moment, the legendary blind musician Stevie Wonder today addressed the WIPO General Assembly on the need for a breakthrough for the blind and others whose access to copyrighted works is limited.

According to IP-Watch:

Wonder said he was launching today a “declaration of freedom for people with disabilities,” empowering them by “providing them with the tools to learn and grow.”

"I understand that the EU, the group of Brazil, Mexico and Paraguay, the US and the Africa[n] group have proposed different plans on how to address the cross border transfer of information,” for those who are visually impaired, Wonder said. “And there are issues on how to develop a protocol that has a binding effect, and at the same time respects the rights of all involved.” “

It can be done,” he said. “We have the greatest minds in the world right here in this room. Please work it out. Or I’ll have to write a song about what you didn’t do.” He added that if WIPO could accomplish an agreement by next year, he would come back and sing a celebratory concert at the 2011 General Assemblies.

He also performed and promised to the obvious delight of all a return engagement if WIPO delivers.

Here's Stevie Wonder:

According to IP-Watch, Wonder said:

"It is time to “declare a state of emergency and end the information deprivation that continues to keep the visually impaired in the dark,” he told assembled delegates."

He's right.

BTW, IP- Watch deserves great credit for covering this so well and needs your support. It is the best independent source of reliable information on international developments regarding IP law - particularly those centered in Geneva. Subscribe now.

HK

US Takes Postive Step Towards Possible Treaty for the Blind

The US Delegation in Geneva at WIPO - notably and interestingly led by the very capable Prof. Justin Hughes - has just delivered as very positive statement on a possible treaty for the blind....

The US is clearly open to the possibility of a multilateral treaty. And the USA is specifically suggesting "a properly-limited international rule of exhaustion in relation to special format copies made under existing national law exceptions for persons with print disabilities."

This is good news.

Here is the US opening statement, courtesy of Jamie Love. Even Jamie is impressed....and his tweets say the EU "is beginning to look pretty bad, in comparison to US statement."
*****************************************

World Intellectual Property Organization
Standing Committee on Copyright and Related Rights (SCCR)
Nineteenth Session
December 14-18, 2009

United States of America

Statement on Copyright Exceptions and Limitations for
Persons with Print Disabilities

As Delivered

December, 2009

Geneva, Switzerland




Thank you, Mr. Chairman.


The United States is proud to have a series of specific exceptions and
limitations in our copyright law, including for education, libraries,
and persons with print disabilities.


The law of the United States has these exceptions because we believe
access to information, cultural expression, and ideas is essential and
we know that governments have a role to play in facilitating that access
and reducing barriers to information, education and full participation
in a democratic society. So while the United States believes profoundly,
in the words of our Supreme Court, that copyright law is “the engine of
free expression,”1we are also committed to policies that ensure everyone
has a chance to get the information and education they need and to live
independently as full citizens in their communities.


Because education and civic engagement can be severely limited when
information is not available in accessible formats, under US copyright
law qualified non-profit organizations and government agencies are free
to reproduce and distribute published literary works under copyright in
specialized formats for use by blind persons or persons with other print
disabilities. We acknowledge that more is needed, but we are proud of
what this copyright exception has achieved. One of the main providers of
materials under this exception, the National Library Service,
distributes two (2) million Braille and audiobook copies of works to
nearly 800,000 users each year. And we have had this provision in our
law since 1996.


Of course, the United States is not alone in serving those with print
disabilities through carefully crafted limitations and exceptions in
copyright law. As we all know, over 50 countries have specific statutory
exceptions addressed to the needs of the visually-impaired and persons
with print disabilities. Other countries like India are in the midst of
thoughtful deliberations on their own national exceptions.


So the United States is pleased that WIPO is addressing this issue. We
believe that WIPO can move forward on this issue meaningfully and
seriously.


In that respect, the United States wants to first acknowledge the WIPO
Study on Copyright Limitations and Exceptions for the Visually Impaired,
prepared by Ms. Judith Sullivan, and presented to the Standing Committee
in 2006.2 This Study represents the kind of thorough comparative work we
must always do as a foundation for the development of new norms in
international copyright law. We also recognizes the on-going work of the
WIPO Stakeholders' Platform, which continues to explore in detail how
the needs of persons with print disabilities can be better addressed
through trusted intermediaries, new technologies, better formats, and
improved "best practices" in the publishing industry.


The United States also wants to acknowledge and express our appreciation
for the draft treaty language prepared by the World Blind Union and
submitted as a formal proposal at the last session of the Standing
Committee by our colleagues from Brazil, Ecuador, and Paraguay.3 We want
to recognize the tremendous work on that draft that was done by the
World Blind Union, the International Federation of Library Associations,
the DAISY Consortium, and several other groups and individuals. The WBU
treaty proposal will help the Standing Committee focus on this problem
and find the right means of addressing access to materials for people
with print disabilities through well-crafted exceptions to copyright
protection that can become an integral part of the international
copyright system.


As we explained in the last meeting of the Standing Committee, the
United States has been engaged in a process of understanding the
problems that confront persons with print disabilities in our own
country. This has been a joint effort of the U.S. Patent and Trademark
Office and the U.S. Copyright Office with leadership from the White
House. This process included a Notice of Inquiry in March 2009 that
generated numerous public responses; a public roundtable in May with
many stakeholder representatives presenting different perspectives on
making copyrighted works accessible to persons with print disabilities;
a further public comment period in October and December that included
specific questions on the WBU treaty proposal; and, just last week, an
informal White House meeting of representatives from our country’s
leading organizations for the blind and visually-impaired, our library
community, and our copyright industries.


Those of us working on this issue in the U.S. Government believe that we
are genuinely studentsof this problem; we are still in the process of
learning. But we are committed to doing our homework and doing it well.


Having said that we are still learning and studying, the United States
comes to this meeting with greater clarity and conviction in our views
on how the international copyright community should proceed in
addressing the needs of those with print disabilities.


Our commitment to reaching an international consensus

on copyright exceptions for persons with print disabilities


First, the United States believes that the time has come for WIPO
Members to work toward some form of international consensus on basic,
necessary limitations and exceptions in copyright law for persons with
print disabilities. This international consensus could take multiple
forms, including a model law endorsed by the SCCR, a detailed Joint
Recommendation to be adopted by the WIPO General Assemblies, and/or a
multilateral treaty. The United States is open to discussing and
exploring all these options.

The United States believes that the initial most productive course of
action may be a work program that begins with a series of serious,
focused consultations aimed at producing a carefully-crafted Joint
Recommendation of the Berne Assembly and the WIPO General Assembly. We
further believe this initial Joint Recommendation could be a step toward
the development of a treaty establishing basic copyright limitations and
exceptions for persons with print disabilities.


The first goal of international consensus in this area


In our consultations and review it has become clear to us that the most
pressing problem – the one identified repeatedly by experts – is the
cross-border distribution of special format materials made for persons
with print disabilities, whether these special format materials are made
under copyright exceptions in national law or special licensing
arrangements. Therefore, the United States believes that our first goal
should be to reach international consensus on the free exportation and
importation of special format materials for persons with print
disabilities in all countries.


We are confident that this body, the Berne Assembly, and the WIPO
General Assembly have the expertise, wisdom, and resolve to find a
suitable solution to this problem. We are prepared to work with other
countries to explore creative solutions to this problem, including, but
not limited to, [a] the establishment of a properly-limited
international rule of exhaustion in relation to special format copies
made under existing national law exceptions for persons with print
disabilities and/or [b] an international legal norm that trusted
intermediaries and non-profit organizations working for persons with
print disabilities must be able to exchange special format copies
without fear that copyright law bars such activities.


We believe that a solution to the problem of cross-border distribution
of special format materials, properly delineated to prevent abuses,would
solve the foremost problems identified by the print disability and
visually-impaired communities.


Further international consensus on basic exceptions for print
disabilities


The United States is also prepared to participate in a WIPO work program
to establish further international consensus on specific exceptions and
limitations for persons with print disabilities that should be part of
national copyright laws.


As a practical matter, we believe that this project will take longer
than finding common ground on the cross-border distribution of special
format copies made under existing national exceptions. First, any such
consensus should acknowledge the diversity of established national laws
in this area and the diversity of successful experiences with copyright
exceptions for persons with print disabilities that WIPO Members have
had. Second, any such consensus should ensure that WIPO Members retain
the flexibility to craft copyright exceptions and limitations to meet
changing social, economic, and technological conditions that affect the
print disability community. Third, the specific exceptions and
limitations that emerge from such a process should acknowledge – as many
in the visually impaired and print disability communities have told us
-- that market practices can often help to solve problems of access to
materials and that mandatory exceptions are most needed to address
market failures. Finally, consensus on basic copyright exceptions for
the print disability communities can and should be reached within the
framework of the Berne acquis; Berne Article 9(2); and the corresponding
provisions of TRIPS, the WCT, and the WPPT.


A balanced system of international copyright law


We recognize that some in the international copyright community believe
that any international consensus on substantive limitations and
exceptions to copyright law would weaken international copyright law.
The United States does not share that point of view. The United States
is committed to both better exceptions in copyright law and better
enforcement of copyright law. Indeed, as we work with countries to
establish consensus on proper, basic exceptions within copyright law, we
will ask countries to work with us to improve the enforcement of
copyright. This is part and parcel of a balanced international system of
intellectual property.


Thank you.


# # #

Canada's Intervention at WIPO SCCR meeting

This is a summary of Canada's intervention at the WIPO SCCR meeting May 25-29, 2008. As can be seen, Canada is more positive about the concept of treaty for the rights of the blind than certain other prominent Group B countries:

The Canadian delegation made two interventions at the meeting, one on access by the visually impaired to copyright works (on May 27) and the other the proposed treaty on broadcasters' rights (on May 28).

The substantive discussion on access by the visually impaired focussed primarily on the Brazil, Ecuador and Paraguay draft treaty.

The Canadian intervention on this issue included the following elements:

1) It noted that it would be premature for the Canadian delegation to comment specifically on the Brazil, Ecuador and Paraguay draft treaty (given that it was introduced during the meeting).

2) It said that any instrument should allow a variety of mechanisms for the production of accessible copies for domestic purposes, e.g. an exception, a compulsory licence or a conditional exception.

3) It expressed general principles that should feature in any eventual solution. The principles expressed were intended to apply regardless of the type of instrument (i.e. binding or non-binding) which might be adopted.

4) It noted that countries should be allowed to have different types of limitations or exceptions with respect to different types of adapted materials.

(Note: for example, a country might have an exception to produce Braille material but a compulsory licence to produce audiobooks.)

5) It noted that it is not necessary to have a uniform rule in all countries to allow the international exchange of adapted materials.

6) It noted that it would be necessary to discuss the norms which would apply to the exchange of materials among countries which have different limitations or exceptions for the production of adapted material.

(Note: for example the export of an adapted copy made under an exception to a country which used a compulsory licence.)

7) It noted that any instrument should facilitate the international exchange of adapted material.

8) It would be necessary to clarify how the three step test for limitations and exceptions applies to the import and export of material made under a limitation or exception.

-----------------------------------------------------------------

Obama Admin Seeks Blocking WIPO Treaty for Blind

Jamie Love is reporting from WIPO that:

This evening the United States government, in combination with other high income countries in "Group B" is seeking to block an agreement to discuss a treaty for persons who are blind or have other reading disabilities.

Disappointing but not surprising. Not exactly "change."

We'll have to wait to see where Canada stands on this.

PS:

I've just discovered a tweet from Manon Ress from a few hours ago that says:

Canada is opposing the treaty for the reading disabled.

I hope she's wrong, but I can't recall that she has ever been wrong before on these kind of things. Maybe there's more to this than meets the eye. Let's hope.

HK

PS - May 29, 2009 7:45 AM - Jamie Love tweets that "WIPO #sccr18: Group B acting badly on treaty: EU plus Australia,Canada,Japan,New Zealand,Norway,Switzerland,the Holly See,United States"

PS: Cory Doctorow @ BoingBoing says "Update 3: Canada is upset with me. That's fine, I'm upset with Canada."

PS: This is going to be the first seriously Twittered SCCR. For those with accounts, check out "#sccr18"

WIPO Copyright Meeting - May 2009

Following the recent Fordham Conference, I posted this comment on April 25, 2008 on the question of whether there could be a WIPO treaty for rights of the blind in the works:

• Despite the earlier promise (or at least the expectation) of a WIPO treaty for the rights of the blind, WIPO Deputy Director Michael Keplinger (whose appointment will shortly expire) indicated that no such thing was in the works. At best, we could expect “soft law.” Whether such an explicit statement reflects the wishes of the new WIPO DG, Francis Gurry, is not known because Mr. Gurry was not present. Of course, the WIPO Secretariat cannot unilaterally decide to launch a treaty process - such a mandate must come from the WIPO General Assembly. But the Secretariat can be very influential in such matters. One would think that a copyright treaty for the rights of the blind is about as close as one could get to a useful, necessary and relatively non-controversial multilateral issue. If WIPO is really unable or unwilling to press forward on this issue, there are bound to be more questions about WIPO’s future role in international norm setting and treaty making. Certain countries may think that they don’t need WIPO in such a role today or even in future. However, things could change very quickly in international politics and economics - especially when - not if - the “BRIC” (Brazil, Russia, India and China) countries (which were not represented on the faculty of this year’s Fordham conference and have not been invited to the ACTA table) assert the power that is rapidly shifting in their direction. Hopefully, the forthcoming SCCR meeting in May will shed some light and accomplish something more than calling simply for another semi-annual SCCR meeting at some presumably pleasant time in Geneva.

The WIPO Standing Committee on Copyright and Related Rights (SCCR) is meeting in Geneva next week. Here are the documents. Hopefully, we will see if WIPO can make any progress on this issue and whether Mr. Keplinger's comment was indeed reflective of the Secretariat's views.

For many reasons, WIPO has been unable to achieve any notable successes in international substantive law norm setting since the 1996 Internet treaties. Even these treaties, which are now almost thirteen years old, have yet to be ratified by major developed countries apart from the USA, Japan, Switzerland and Australia - the latter under intense American pressure and the profoundly American-deferential leadership of former Prime Minister John Howard. (The ratification by Belgium is regarded as something of an anomalous accident, since Belgium is part of the EU and the EU has not yet ratified).

The troubles of WIPO under its former DG, Kamil Idris, certainly didn't help. The result has been a wave of bilateral and plurilateral initiatives that have ignored WIPO and even the WTO. It will be recalled that the TRIPs agreement in the 1994 WTO Uruguay Round treaty was arguably a rebuke to WIPO, which under the late Arpad Bogsch had taken a rather purist approach to IP that was largely insulated from such worldly concerns as economics, trade policy and the needs of developing countries.

The potential apotheosis of plurilateralism may be the current ACTA initiative, which is a significant threat to a sustainable system of international norm setting in IP law.

WIPO needs a new and positive milestone and the world needs a newly renewed WIPO. The pieces and the players are in place, particularly Francis Gurry, the new DG at WIPO who has fully earned the significant respect and confidence he enjoys. If ever there was an issue around which well-intentioned countries could rally, a treaty for the rights of the blind could be that issue.

Next week, we may see a draft treaty or a proposal tabled by Brazil, as the Irish Times reports. Also, look to leadership from Jamie Love and his very worthy KEI NGO. Here's one of his blogs.

Finally, we await with interest where Canada will stand on all of this.

HK

PS: William New of IP Watch reports that:

A group of Latin American and Caribbean countries have declared their intention to support discussion of a proposal to negotiate a World Intellectual Property Organization treaty ensuring an exception to copyright for visually impaired readers who lack access to protected reading materials. The proposal is expected to be brought to the floor of a key copyright committee meeting this week.

Mr. New also reports on other aspects of the forthcoming meeting, including this:

The committee will elect a chair for the meeting. In the case of the SCCR, unlike any other WIPO committee, the same person has been chair for as long as a decade: Jukka Liedes of Finland. He has generally shown sympathy for developed country – especially European – perspectives. It is unclear why developing countries do not push an alternative candidate for the chairmanship.