Note: I have posted 3 recent comments at and a post at http://tacd-ip.

org/archives/518#comments ( or ) If a bunch more WIPO SCCR sessions go by and there is still no Treaty for the Visually & otherwise Reading Impaired or an International Treaty that allows non-commercial sharing and reproduction of digital files amongst Libraries worldwide, the potential recipient communities will be looking for persons to blame. The obvious persons -- based upon the last few SCCR sessions -would include Jens Bammel of the IPA, Michel Barnier of the EU Commission, Olav Stokkmo of IFRRO, and Professor Justin Hughes of the US WIPO delegation among others. I would add two more persons to this list: Dr. Ruth Okediji of the Minnesota University Law School and Mr. Winston Tabb of Johns Hopkins University and the IFLA. These 2 persons it seems are the only persons that were involved in both the creation of the WBU/Brazil et al Treaty (tabled as

SCCR18/5) and the IFLA Library TLIB Treaty proposal (tabled as SCCR23/5 also by Brazil and others). They were both part of the KEI July 2008 ‘expert panel’ that developed the original WBU Treaty proposal. * They both delivered presentations at the April 2011 IFLA Presidential Conference at The Hague in April 2011 prior to the IFLA TLIB Treaty introduction at SCCR22. ** Mr. Tabb as former Chair of the IFLA Copyright (CLM) Committee has represented IFLA and delivered the IFLA intervention at the most recent WIPO SCCR sessions. * ** The IFLA TLIB Proposal (although not in the tabled SCCR23/5 document) contains the following Explanatory Note for Article 9: If the treaty proposal by Brazil, Ecuador and Paraguay relating to limitations and exceptions for blind, visually impaired and other reading disabled persons (SCCR18/5) permitting these uses is adopted first at WIPO, this Article will be deleted from the draft Treaty. If the WIPO SCCR18/5 (now SCCR23/7) Treaty proposal for a limited disabled beneficiary population cannot be adopted by WIPO, how-inthe-heck do they expect a Treaty allowing for the right of reproduction & distribution of copyrighted material amongst libraries and for the benefit world-wide of anyone claiming a copy is for private 'non-commercial' study can ever be adopted? In reference to the proposed SCCR23/5 Library Treaty Reproduction and Distribution of Copies by Libraries and Archives, the US WIPO Delegation in the SCCR23 ‘Draft Compilation’ by the WIPO Secretariat noted that: Obviously when a copy of an entire work is being made, there is the question of substantially adverse market effects to the publishers and authors. It is also important that this type of

activity not be done in a systematic way, but that it would be a single occasions at the requests of libraries. There is a danger that one library could end up making copies for all libraries, essentially taking away an author's market to the entire country once one copy is sold to one library. From the Draft Report of WIPO SCCR22 213. The representative of the International Federation of Library Associations and Institutions (IFLA), speaking also on behalf of the Electronic Information for Libraries (EIFL), pointed out that the definition in Article A on authorized entities actually matched with the work of libraries. As libraries were one of the key distributors of material serving print disabled persons in developing countries, he supported the suggestions of several Member States that “activities” was preferable to “primary missions” in Paragraph 1 of the definition of authorized entities. The term 'authorized entity' did not appear in any of the 4 documents in the SCCR22/8 WIPO Secretariat ‘Comparative List’ that were then merged into the single-text ‘Chair’s text’ SCCR22/16. The term originates in the US Copyright Act Section 121 'Chafee Amendment'. In the USA not all entities that provide ‘activities’ to the reading disabled community automatically qualify as ‘Authorized Entities’. From the December 2011 US Department of Education 'AIM Commission' Report to Congress: Page 45. Authorized Entity With respect to what kind of organization may qualify as an authorized entity, the Commission’s discussion focused on whether Congress intended a campus-based or system-wide office that provides academic support services for postsecondary students with disabilities to qualify as “a nonprofit

organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities.” However, this is largely a matter of legal interpretation. With respect to such (university) offices or institutions, which collectively number more than 5,000 in the United States, the latter issue includes consideration of how interpreting the intent of Congress to include organizations that are so numerous by their nature would impact the (publishing) industry as a whole. Limiting the types of organizations that would qualify to exercise reproduction and distribution privileges as an authorized entity under this copyright exception may be needed to avoid harm to copyright owners in their mainstream markets. From IFLA statement (streamed transcript) at WIPO SCCR23: This committee takes as its mandate the United Nations Convention on the Rights of Persons with Disabilities where it is stated that print disabled people have the right to equal access to books, knowledge and information at the same time, cost and quality as everyone else. But nowhere in Article 30 of the UN CRPD or in the Universal Declaration on Human Rights does it suggest that such disadvantaged persons should get their right to ‘equal access’ at no cost. That contention just gives the IP Rights-holder camp who would oppose any potential treaty a point to argue whether the wide distribution of such free copies interferes with the TRIPS 13 ‘normal exploitation’ of copyrighted works. For the more popular titles the number of ‘free’ copies in circulation under the proposed treaties could well exceed those sold and/or licensed through ‘normal’ distribution channels. (See -- IP Experts Focus On 3-Step Test In Copyright, Discuss Way Forward --


The dispassionate described the TVI at SCCR23 as having become 'unraveled'. The WBU says of the results of WIPO SCCR23 on its website homepage (current as of 12 JAN 2012): Despite all our efforts, WBU feels that this meeting regressed on the matter of achieving a treaty for blind and other print disabled people. The following was an intervention statement by the IFLA representative at a recent WIPO SCCR meeting: Like many others, we were disappointed by the stalemate at the end of the last meeting … In our view, the book famine that visually impaired people around the world are experiencing is intolerable and must be dealt with without further delay. We in the library profession know this, since it is libraries that are the main agents for delivering reading materials and access to information services for visually impaired and other reading disabled people. The proposed treaty for the visually impaired is extremely well advanced in its development and must not be held back in any way. The above statement was made not at WIPO SCCR23 but at SCCR21 in November 2010 and was referring to the 'stalemate' at SCCR20 in June 2010. So maybe persons in the IP Rights camp who are opposed to any VI or Library-based Treaty or binding instrument just take all these admonitions and warnings by IFLA, WBU, EBU, NFB, or KEI as meaningless threats with no down-side to their being ignored... But just like the (American baseball) Chicago Cubs -- There is always SCCR24 JULY 2012.

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