Andrew Baker is an LLB/BCL candidate at McGill University Faculty of Law.
The EU Parliament has just released a report (see article 70) calling on the EU Commission to support a WIPO treaty proposal that would create binding legal norms for copyright exceptions for accessible formats of print material.
The European Blind Union (EBU) is in favour of a treaty claiming that the lack of accessible format materials has created a “book famine” where only 5% of print materials are available in braille, audio, and large-print formats in developing countries; a figure that drops to a mere 1% in developing nations. At present, the EU Commission supports only soft law solutions arguing that a treaty is an inappropriate policy tool to improve accessibility.
While it would seem that technological advances would continually create new opportunities for improvements to accessibility, this is not always the case. Digital rights management systems for many new platforms inadvertently make it more difficult to produce accessible format versions. Existing efforts to license content from rights-holders are often cumbersome and have been met with limited success. This problem is further complicated in the international sphere by asymmetric import and export policies. Moreover, in many instances conversion costs themselves remain prohibitive and disability advocates argue that copyright exceptions are necessary to making accessibility feasible. See here, for further background into the issues facing the production of accessible materials.
The current debate over a treaty solution versus soft law policies seeks to strike the appropriate balance between rights-holders and disability rights advocates. In developed countries, there have been an increasing number of statutory protections enacted to increase production of accessible formats. The issue has been debated recently in Canada within the broader framework of copyright reform. IP Osgoode has blogged on a provision contained in Bill C-32 which also sought to improve access in developing countries (see here for a review of the provision). Nevertheless, the EBU argues that a treaty is necessary to address the issues copyright creates.
In a recent letter to the EBU, Michel Barnier reiterated the position of the EU Commission by explaining that while remaining committed to copyright exceptions to improve access, the Commission is opposed to any solution involving a new treaty. He explained that a treaty would only be binding on its membership whereas a Joint Recommendation within the existing Berne Convention would ensure wider coverage for accessibility initiatives. Barnier also notes that recent treaties have had low ratification rates and that joint recommendation under the existing treaty is a less complicated process. See here for a further analysis of the EU Commission’s policy stance.
Nevertheless, many commentators are unconvinced by the EU Commission’s commitment to policy reforms explaining that Joint Recommendations would not offer the same degree of exceptions that a treaty could provide. They point out that unreasonable industry concerns create a larger hindrance to the treaty process than Barnier’s concerns about a lack of signatories. The industry’s willingness to participate in the ACTA treaty process while remaining opposed to any WIPO solutions for accessibility is deemed as a hypocritical stance directly contradicting Barnier’s position.
Since 2009, there have been several proposals brought forth to WIPO by various member countries, but reconciling the demands of rights-holders and disability advocates remains a challenge. The European Parliament’s report is welcome news for the EBU and all the supporters of its right to read campaign, but its impact on the European Commission remains to be seen.
