Fear And Loathing In WIPO's Geneva Part 2: Is Poverty The Ultimate Print Disabil ity?

The Treaty Definition For Disability Is So Broad That, Even Though A Large Compo nent Of Persons Who Are Blind Or Otherwise Reading Disabled Live In Poverty, 100 % Of Those Chronically Impoverished Live In Poverty. Where Are THEIR Free Books? Press Release Group Intl. – May 17 2010 In their WIPO Standing Committee on Copy right and Related Rights (SCCR) 19_3 ‘Background’ Paper on the proposed WIPO (SC CR18_5) Treaty on Copyright Exceptions and Improved Access for Blind, Visually Impaired and Other Reading Disabled Persons , the sponsoring countries and the W orld Blind Union (WBU) say: “The proposal is modest and limited in scope, and it respects the rights of righ ts holders. We are not proposing a ‘revolution’!” Note: All documents at http://www.wipo.int/copyright/en The provenance for the proposed Treaty bears notice: In both the WIPO SCCR 13_5 and SCCR 16_2 Document it was suggested that work be undertaken by the WIPO Comm ittee for the(p2): “... Establishment of agreement on exceptions and limitations for purposes of pu blic interest that must be envisaged as a minimum in all national legislations f or the benefit of the community; especially to give access to the most vulnerabl e or socially prioritized sectors.” And in the current WBU Treaty proposal itself it says 18_5 p2 “3. … By undertaking such an initiative, the World Intellectual Property Organiz ation (WIPO) would act in accordance with the efforts undertaken by the United N ations to address the need for enhancing, as foreseen in document SCCR 16_2, acc ess to knowledge for the most vulnerable or socially prioritized sectors.“ So: Just WHO is this "most vulnerable or socially prioritized population"? The US 2005 data from the Centers for Disease Control (CDC) looks at disability in two ways: The functional impact of disability (inability to see printed words , inability to hold a book, not able to walk 3 city blocks or grasp an object, l earning disability, etc.) and the cause of such functional disabilities (blindne ss, arthritis, loss of use of extremity, mental or neurological condition, etc.) . Prevalence and Most Common Causes of Disability Among Adults, US 2005. http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5816a2.htm Of the 291.1 million people in the total US population in 2005, 54.4 million (18 .7 percent) had some level of disability and 35.0 million (12.0 percent) had a s evere disability. From “Americans With Disabilities: 2005 Household Economic Studies” Almost every sector of disability excepting deafness or speech impairment could have some persons who would qualify under the SCCR 18_5 WBU treaty proposal defi nitions -- of the almost 20% of the overall US population claiming one or more d isabilities: WBU SCCR 18_5 Treaty Article 15. Disabilities Covered:



(a) For the purposes of this Treaty, a ‘visually impaired’ person is: 1. and 2. a person who is blind or visually impaired and then (b) Contracting Parties shall extend the provisions of this Treaty to persons wi th any other disability who, due to that disability, need an accessible format o f a type that could be made under Article 4 in order to access a copyright work to substantially the same degree as a person without a disability. The following is NOT from a Third World country but from the UK: “… A family’s lack of money has a significant impact on the education of their c hildren... 3.8 million children (out of total UK population of roughly 60 millio n) are living in poverty in the UK today. Even a good school and committed teachers can’t fully compensate for the stress that living in poverty places on a family or for the social exclusion, poor hous ing, or a lack of books or a computer at home. This lack of resources means poor children face an uphill struggle just to have the same type of learning environ ment as their peers." From www.endchildpoverty.org.uk … And this from OXFAM April 2009 from Closed Books to Open Doors –West Africa’s Literacy Challenge “Even the best efforts of West African governments cannot meet the challenge, an d there remains a need for significant external financing... (to) train another 750,000 teachers, provide books and materials and make up for the infrastructure deficit. Spending 20% of their total revenue on education – and half of that on primary education – would give most of West Africa’s governments less than $50 per child for the whole year... – a tiny figure compared to the $9,138 spent per child in the US.” The famous ‘3 Step Test” in TRIPS Article 13 states: “Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right-holder.” In his WIPO SCCR 9_7 study (2003) on Copyright Limitations and Exceptions in the Digital Environment, Professor Sam Ricketson of Australia noted (p22): “Clear definition and limitation of exceptions here will therefore be necessary to establish that these ARE ‘certain special cases’ within the first step of the three-step test.” The following footnote was then added on p22: “Not only do I argue that the use in question should be for ‘a quite specific pu rpose,’ but that there must also be ‘something SPECIAL about this purpose, ‘spe cial’ here meaning that it is justified by some clear reason of public policy or some other exceptional circumstance.” The WBU Treaty proponents have said that they are in harmony with existing Agree ments: Article3. Relations to Other Agreements


(a) Contracting Parties agree that the provisions of this Treaty are consistent with obligations set out under those of the following treaties and conventions t o which they are a party: 5. The Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 ( the TRIPS Agreement) However, not in the definition of Covered Disabilities nor anywhere else in th e proposed Treaty does the Treaty employ ‘Language similar to TRIPS 13’ or in fa ct is there any mention of TRIPS Article 13 at all even though TRIPS Article 13 specifically addresses ‘Limitations and Exceptions’ which is what the proposed T reaty is all about in the first place. Why not? Well, how could they with a straight face claim that any set of criteri a which would include 15-20% of the entire population (based upon US data) be co nsidered a certain SPECIAL case? …From an author’s point-of-view, how can it be a ‘certain special case’ when -- even though he or she is fortunate enough to wr ite a book that sells a million copies --there may be more than a million FREE c opies out there in the world via an exception to copyright Treaty? So, for the final whammy: What if (or when do) the various Poverty Law (US) and Social Justice (UK) Centers get into the act and begin to challenge ratification of the proposed WIPO / WBU Treaty in that any such approval discriminates again st the chronically poor in denying THEM free access to books as well? When will they say ‘How can you especially … give access to the most vulnerable or sociall y prioritized sectors and leave out those in abject poverty that cannot afford t o purchase the books at all? Is there a way out of this conundrum? We believe so and it may be simple at that : Offer to the Intellectual Property (IP) interests who might oppose Treaty ratifi cation to have the SCCR 18_5 WBU Brazil Treaty implemented in 2 (or more) phas es the first phase being that Article 16 ‘Accessible Formats’ definition for Pha se 1 be defined as "Braille or BRF Braille file only". Most DAISY hardware devices / software and screen-readers such as JAWS can handl e a BRF file as well... and the issue of piracy and leakage to the general commu nity is largely deflated. The Copyright Law of Japan is very simple -- almost like 3-phrase haiku poetry - in its exceptions as regards disability: Article37. (1) It shall be permissible to reproduce in Braille a work already made public. That’s it… In fact Japanese copyright law makes no statement as to the disabilit y status (or national status) of the recipient as, with Braille, none is really necessary – after all: Who else reads Braille? Once again… Where is David Mamet when we need him?